Ashok Kumar Vs. State (Delhi
Administration)  INSC 79 (7 March 1977)
CITATION: 1977 AIR 1304 1977 SCR (3) 143 1977
SCC (2) 233
Code of Criminal Procedure,--S. 288--Scope
of--Evidence of witnesses recorded in committing court---If could be
transferred to Session Courts-If substantive evidence.
The appellant was convicted under s. 302/34,
Indian Penal Code and sentenced. Statements of two witnesses recorded in the
committing court were transferred to the record during trial under s. 288 Cr.
P.C. and the trial court treated the evidence of these witnesses as substantive
evidence. The High Court accepted the testimony of the witnesses before the
In appeal it was contended that the
statements of witnesses in the committing court transferred under s. 288 were
inadmissible in evidence and should not be acted upon, since no specific
portion of their contradictory statements had been put to them in
Dismissing the appeal,
HELD: There is no legal infirmity about the
transfer of deposition of the witnesses to the record of the Sessions Court
under s. 288 Cr. P.C. It was a legitimate use of discretion by the Sessions
Judge. Evidence recorded in the committing court is substantive evidence in
this case and is admissible. [147 E-F] Section 288 Cr. P.C. which provides for
transfer of evidence recorded in the committing court under certain
circumstances is subject inter alia to the provisions of s. 145 of the Evidence
Act. Provisions of the latter section have been substantially complied with in
this case. [147 E] In the instant case after drawing the attention of the
witnesses to their contradictory statements recorded by the police, the
statements recorded by the committing Magistrate were read out to the witnesses
who did not deny have made them but only explained that they had deposed in
that manner under threat and pressure from the police. [147 D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal NO 246 of 1976.
(Appeal by Special Leave from the Judgment
and Order dated 5-12-1975 of the Delhi High Court in Criminal Appeal No. 111 of
R.L. Kohli and R.C. Kohli, for the appellant.
G.L. Sanghi and M.N. Shroff, for the
The Judgment of the Court was delivered by
GOSWAMI, J.--This appeal by special leave is directed against the judgment of
the Delhi High Court confirming the conviction of the appellant under section
302/34, Indian Penal Code, and sentence of imprisonment for life.
144 Ashok Kumar aged about 17 years and his
younger brother, Vijay Kumar, below the age of 16 years were chargesheeted for
an offence under section 302/34 IPC for causing the death of Rajinder Kumar
aged about 23 years. Vijay Kumar was sent for trial under the Children Act,.
1960, and is not, therefore, before us.
In June 1971 Jai Bhagwan, father of the
accused, had complained to the police against the deceased, Rajinder Kumar,
alleging that he had kidnapped his daughter, Saroj Kumari. It is said that
Saroj Kumari was recovered from the company of Rajinder Kumar at Ahmedabad and
Rajinder Kumar was charged for offences under sections 366 and 376, Indian
Penal Code, and the case was pending on the date of occurrence.
The prosecution case is that on May 22, 1973,
Hukum Chand (PW 1), father of the deceased, Rajinder Kumar, was coming back
from the Fountain in Chandni Chowk on H.C. Road and took a turn towards right
leading to Mor Sarai when. he saw the accused, Ashok Kumar, and his brother,
Vijay Kumar, having surrounded his son Rajinder Kumar. He also saw that Ashok
Kumar caught hold of the hand of Rajinder Kumar while his younger brother stood
behind him in front of the gate of Mor Sarai. Having seen this he walked
quickly and when he was at a distance of four or five paces from them he heard
Ashok Kumar and his brother, Vijay Kumar. telling Rajinder Kumar that they
would avenge the kidnapping of their sister no matter whether the court might
punish him or not. Hukam Chand then saw both the brothers taking out their
knives. Accused Ashok Kumar struck a blow on the left cheek of Rajinder Kumar.
Vijay Kumar struck one blow on Rajinder Kumar which was warded off by him as a
result of which his right forearm was struck by the knife on the back of his
palm. Rajinder Kumar tried to run away but was pursued by the two brothers and
was overpowered. They then gave several blows on the back of his waist, on left
abdomen and on the right thigh. As a result of these blows Rajinder Kumar fell
down on the footpath on the side of the quarters of Mor Sarai. Accused Ashok
Kumar ran away towards the station along with his brother. Hukam Chand sent for
a taxi and took Rajinder Kumar in it to the Irwin Hospital where he was examined
by Dr. U. Kaul (PW 12) who found the following injuries on his person :-
1. Stab wound 4" x 2" left inter
scapular region with surrounding surgical emphysema.
2. Stab left lumber region 2" x 2".
3. Stab left thigh 2" x 1".
4. Stab left cheek 2" x 2".
5. Stab left hand 4" x 1" on the
Constable, Vijay Kumar, (PW 7) who was on
duty at the Irwin Hospital informed the Police Station, Kotwali, about the
admission of Rajinder Kumar in the Hospital. Constable, Ram Saran (PW 145 14)
made an entry in the daily diary about the report received from the irwin
Hospital. He sent a copy of this report to S.I. Dewan Singh (PW 20) who
proceeded to the Hospital. When PW 20 arrived. Rajinder Kumar was not in a
position to make a statement and he recorded the statement of Hukam Chand (Ex.
PW 1/A) at about 8.40 P.M. which is the first information report registered
under section 307/34 IPC. According to the Doctor the punctured injury at the
left inter scapular region was sufficient to cause his death in the ordinary
course of nature. On the death of Rajinder Kumar at 11.35 P.M., the same night,
the section under which the case was registered was altered to section 302 IPC
and investigation proceeded accordingly. Names of Ashok Kumar and Vijay Kumar
appeared in the first information report, as the assailams. The first
information report also disclosed that there was another person, Mohar 'Singh
(PW 2) with Hukam .Chand. The accused, Ashok Kumar, was arrested on May 25,
1973, near Jat Dharamshala in Jamuna Bazar. It is said that on the following
day Ashok Kumar made a statement before Inspector Sardar Singh, Station House
Officer, P.S. Kotwali, Delhi (PW 21) in pursuance of which on May 28, 1973, a
blood stained knife (Ex. P-7) was recovered. Evidence was also led by the
prosecution to prove recovery of a shirt and pantaloons having stains of blood
although these had already been washed from the person of the accused, Ashok
Kumar, when he was arrested on May 25, 1973. The serological report showed the
origin of these stains as human blood. At the trial not only Hukam Chand gave
evidence as an eye witness, but Mohar Singh (PW 2), Rajinder Kumar Jain (PW 3)
and Puran Singh (PW 4) were also produced as eye witnesses. While PW 1, Hukam
Chand, continued to tell his melancholy story, PWs 3 and 4 did not support the
prosecution and were accordingly declared hostile.
It was shown in the course of their
cross-examination that they had earlier during the investigation made
statements as eye witnesses to the occurrence. The statements of PWs 3 and 4
which were recorded in the committing court were transferred to the record
during the trial under section 288, Criminal Procedure' Code. In the committing
court these witnesses had stated that they had seen the accused assaulting the
deceased with a knife. P.W. 2, Mohar Singh, was not examined before the
The accused denied the charge and stated that
he was arrested by the police in Agra on May 24, 1973, and not on the following
day at Jat Dhararashala as alleged by the prosecution. After examining the
evidence of the defence witnesses as well as the station diary entries about
the departure of the Head Constable. Manohar Lal and Constable Balbir Singh, to
outside districts the Sessions Judge held that it was "not at all
improbable" that the two policemen accompanied by Jai Bhagwan went to Agra
and brought the accused from there. The Sessions Judge also did not rely upon
the disclosure statement made by the accused and also ignored the recovery of
the knife as being in pursuance of that disclosure statement.
146 The Sessions Judge observed that it was
very unusual in a murder case that recovery of the offending weapon was so
The trial court convicted the accused on the
testimony of Hukam Chand (PW 1) and accepted the evidence of PWs 3 and 4
recorded in the committing court. Referring to PWs 3 and 4, the trial court
observed as follows :-"I treat the evidence of PW 3 Rajinder Kumar Jain
and PW 4 Puran as substantive evidence under section 288 Cr. P.C. I find
abundant corroboration thereof in the testimony of PW 1 Hukam Chand. This
evidence treated as substantive evidence under section 288 Cr. P.C. taken into
consideration with the testimony of PW 1 Hukam Chand provides a complete
picture by ocular evidence of what happened to the victim Rajinder Kumar on
that fateful evening at the hands of Ashok accused and his brother Vijay. I
accept this part of the testimony".
With regard to the evidence of PW 1 the trial
court observed as follows :-"In the case before me Hukam Chand is a father
of the deceased. He admits the enmity on the part of the accused towards the
deceased. He mentioned the name of the accused in the FIR and gave complete
sequence of events. He did not lose any time. He had no time to manufacture
things so as to be incorporated in the report. This is a strong circumstance in
favour of the prosecution in this case".
The High Court, as stated earlier, confirmed
the conviction by accepting the testimony of Hukam Chand as well as the
statements made by PWs 3 and 4 before the committing court in which they had
clearly supported the prosecution case.
Since the accused had opportunity to cross
examine the PWs 3 and 4 in the committing court the fact that he had not
actually cross-examined these witnesses is of no consequence. Apart from that
during the Sessions trial their explanation was that they had made the
statements before the committing court under the threat of the police. This
explanation had been rejected by both the courts.
Mr. Kohli submits that PWs 3 and 4 were not
mentioned in the first information report although PW 1 mentioned,.
therein, at three places about the presence
of Mohar Singh (PW 2) who was not even examined before the committing court.
Since PW 2 denied having seen the occurrence, his evidence is of no assistance
and the fact that he was contradicted by his previous statement made before the
police only dubs him as an unreliable witness.
147 So far as PWs 3 and 4 are concerned, we
do not see much force in the contention that their names were not mentioned in
the first information report. It is possible that even if they had seen the
occurence from some other point, PW 1 hastening away to the Hospital might not
have, noticed them. Besides, when S.I. Diwan Singh (PW 20) went to the place of
occurrence with PW 1 (Hukarn Chand) at about 9.45 P.M. the same night he found
a large crowd there. PW 20 stated that he recorded at that time the statements
of Mohar Singh (PW 2), Rajinder Kumar Jain (PW 3) and Puran Singh (PW 4). The
omission of the names of PWs 3 and 4 in the first information report lodged at
8.45 P.M. cannot, therefore, be of much significance to reject their testimony
on that score.
Next, Mr. Kohli submits that the statements
of PWs 3 and 4 recorded in the committing court and transferred under section
288, Criminal Procedure Code, is inadmissible and should not be acted upon,
since no specific portion of their contradictory statements had been put to
them in the course of their cross-examination by the public prosecutor. We find
that after drawing the attention of these two witnesses to their contradictory
statements recorded by the police with regard to their having seen the assault
which they denied, the entire respective statements recorded by the committing
magistrate in Hindi were read out to the witness who did not deny to have made
the same but only explained that they had deposed in that manner under threat
and pressure from the police.
Section 288, Criminal Procedure Code, which
provides for transfer of evidence recorded in the committing court under
certain circumstances, is subject, inter alia, to the provisions of section 145
of the Evidence Act, and the provisions of the latter section have been
substantially complied with in this case. Under the circumstances there is no
legal infirmity about the transfer of the deposition of the two witnesses to
the record of the Sessions Court under section 288, Criminal Procedure Code,
and it was a legitimate use of discretion by the Sessions Judge in adopting
this course. Their evidence recorded in the committing court is substantive
evidence in this case and is clearly admissible.
Rajinder Kumar Jain (PW 3) had written an
inland letter which the Inspector General of Police received on January 18,
1974, complaining about the police torture in threatening him to give evidence
in the court. He was examined before the Sessions Judge on January 19, 1974,
when he, for the first time, denied in court to have seen the occurrence. He
had been examined in the committing court on November 21, 1973, about six
months after the occurrence when he had made no complaint about police torture
and gave evidence as an eye witness to the occurrence. The trial court was,
therefore perfectly justified in not accepting the belated explanation of PWs 3
and 4 about police threat under which alone they stated that they had supported
the prosecution case.
148 Although the High Court was not prepared
to accept the defense case about the arrest of the accused in Agra, it is not
necessary to pursue the matter further. It is also not necessary to deal with
.the recovery of the knife and the blood stained clothes about which the High
Court was not prepared to accept the reasons given by the Sessions Judge for
discarding that evidence. We agree with the Sessions Judge that it was unusual
for the police to delay recovery of the blood-stained knife in a murder case.
But since the two courts have relied upon the evidence of the three eye
witnesses, it is not necessary to consider whether the High Court was right in
differing from the views of the trial court in the matter of the recovery of
the knife and the clothes.
After having perused the entire evidence, we
see no reason to interfere with the conviction in this case. In the result the
appeal is dismissed.
P.B.R. Appeal dismissed.