# ASHOK KUMAR v. STATE (DELHI ADMINISTRATION)

- **Citation:** [1977] 3 S.C.R. 143
- **Court:** Supreme Court of India
- **Decided:** 1977-03-07
- **Case number:** Criminal Appeal No. 246 of 1976
- **Bench:** P. K. Goswami, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashok-kumar-v-state-delhi-administration-7164
- **Pages:** 6

## Headnote

Code of Cri1ninal Procedttrc,-S. 288-Scope of-Evide11ce of
recortled in commiuing court-./f could be transferred to Session
5ubstantire evidence.
143
witnesses
Co1irts-If
The appellant \Vas convicted under s. 302/ 34, Indian Penal Code
and
~enlenced. Statements of two
witnesses recorded in the
commilting
~ourt
A
B
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
lligh Court accepted the testimony of the
\Vitnesses before the
comn1itting
C
Cow·t.
In appeal it was contended that the statements of \Vitnesses in the comn1itting court transferred under s. 288 \Vere inadmissible in evidence and should
not be acted upon, since no specific portion of their contradictory ~ta1en1ents
hdd been put to ther11 in cross-examination.
Disn1issing the appeal,
D
HELD : There is no legal inflrn1ity about the transfer of deposition of
the witnesses to the record of the Sessions Court under S: 288 Cr. P.C.
It
\\'as a legitimate use of discretion by the Sessions Judge.
Evidenru recorded
iil the committing court is substantive evidence in this case and is adn1issible.
[147 E-El
Section 288 Cr. P .C. which provides for transfer of evidence n:col"ded in
the committing court under certain circumstances is subject inter alia to the
E
provisions of s. 145 of the Evidence Act.
Provisions of the latter a~;:tion have
·
been substantially complied \Vith in this case.
[147 F]
in the instant case after dra\vinc; the attention of the witnesses to their
contradictory statements recorded by the police, the statements recorded hy
the committing ~fagistrate \Vere read out to the witnesses \Vho did not deny
ro have n1ade then1 but' only explained that they had deposed in that n1anner
under threat and prcsstFe from the police.
[147 D]
CRJ:\II>:AL APPELLATE JURiso1cnoN : Criminal Appeal No. 246
of 1976.
(Appeal by Special Leave from the Judgment and Order dated
5-12-1975 of the Delhi mgh Court in Criminal Appeal No. 1 ll of
1974 ).
R. L. Ko/;li and R. C. Kohli, for the appellant.
G. L. Sanghi and M. N. Shroff, for the respondent.
The Judgment of ~he 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 seetion 302 /34, Indian Penal Code and sentence
of imprisonment for life.
'
'
F
G
H
A
B
c
D
E
F
·G
H
144
SUPREME COURT REPORTS
[1977] 3 S.C.R.
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 Rajindcr
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 ha~d of Rajinder Kumar while his younger
brother
stood
behind him in front of the gate of Mor Sarai.
Having seen this he
walked qu'ckly and when he was at a distance of four or fh·e paces
from them he heard Ashok Kumar and his brother, Vijay Kumar.
telling Rajinder Kumar that they would avenge the kidnapping of
thei•r sister no matter whether the court might punish him or not.
Hukam Chand then saw both the brothers taking out their

## Text

ASHOK KUMAR
v.
STATE (DELHI ADMINISTRATION)
March 7, 1977
[P. K. GOSWAMI AND P. S. KAILASAM, JJ.]
Code of Cri1ninal Procedttrc,-S. 288-Scope of-Evide11ce of
recortled in commiuing court-./f could be transferred to Session
5ubstantire evidence.
143
witnesses
Co1irts-If
The appellant \Vas convicted under s. 302/ 34, Indian Penal Code
and
~enlenced. Statements of two
witnesses recorded in the
commilting
~ourt
A
B
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
lligh Court accepted the testimony of the
\Vitnesses before the
comn1itting
C
Cow·t.
In appeal it was contended that the statements of \Vitnesses in the comn1itting court transferred under s. 288 \Vere inadmissible in evidence and should
not be acted upon, since no specific portion of their contradictory ~ta1en1ents
hdd been put to ther11 in cross-examination.
Disn1issing the appeal,
D
HELD : There is no legal inflrn1ity about the transfer of deposition of
the witnesses to the record of the Sessions Court under S: 288 Cr. P.C.
It
\\'as a legitimate use of discretion by the Sessions Judge.
Evidenru recorded
iil the committing court is substantive evidence in this case and is adn1issible.
[147 E-El
Section 288 Cr. P .C. which provides for transfer of evidence n:col"ded in
the committing court under certain circumstances is subject inter alia to the
E
provisions of s. 145 of the Evidence Act.
Provisions of the latter a~;:tion have
·
been substantially complied \Vith in this case.
[147 F]
in the instant case after dra\vinc; the attention of the witnesses to their
contradictory statements recorded by the police, the statements recorded hy
the committing ~fagistrate \Vere read out to the witnesses \Vho did not deny
ro have n1ade then1 but' only explained that they had deposed in that n1anner
under threat and prcsstFe from the police.
[147 D]
CRJ:\II>:AL APPELLATE JURiso1cnoN : Criminal Appeal No. 246
of 1976.
(Appeal by Special Leave from the Judgment and Order dated
5-12-1975 of the Delhi mgh Court in Criminal Appeal No. 1 ll of
1974 ).
R. L. Ko/;li and R. C. Kohli, for the appellant.
G. L. Sanghi and M. N. Shroff, for the respondent.
The Judgment of ~he 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 seetion 302 /34, Indian Penal Code and sentence
of imprisonment for life.
'
'
F
G
H
A
B
c
D
E
F
·G
H
144
SUPREME COURT REPORTS
[1977] 3 S.C.R.
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 Rajindcr
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 ha~d of Rajinder Kumar while his younger
brother
stood
behind him in front of the gate of Mor Sarai.
Having seen this he
walked qu'ckly and when he was at a distance of four or fh·e paces
from them he heard Ashok Kumar and his brother, Vijay Kumar.
telling Rajinder Kumar that they would avenge the kidnapping of
thei•r 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
O\"erpowered.
They then gave several blows on the back of his 1raist, 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
Ra jinder 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:-
l. Stab wound 4" x 2" left
inter
scapular
region
with
surrounding surgital emphysema.
2. Stab left lumber region 2" x 2".
3. Stab left thigh 'l!' x l".
4. Stab left cheek 'l!' x 2".
5. Stab left hand 4" x 1" on the dorsum.
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
ASHOK KUMAR v. STATE (DELHI ADMN.) (Goswami, J.)
145
14) made an entry in the daily diary about the report received from
the Irwin Hospitai.
He sent a copy of this report to S. I. Dewan
Singh (PW 20) who proceeded to the Ho.spital.
When
PW
20
arrived Rajinder Kumar was not in a pos1hon to make a statement
and he recorded the statement of Hukam Chand (Ex. PW 1 I A) at
about 8.40 P.M. which is the first information report registered under
section 307 /34 JPC.
According to the Doctor the punctured injury
at the left int~r scapular region was sufficient to cause his death ln
the ordinary <:ourse 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 assailants.
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 ma.de a
statement before Inspector Sardar Singh,
Station
Hou~e Officer.
P. S. Kotwali. Delhi (PW 21) in pursuance of which on May 28.
1973, a blood stained knife (Ex. P-7)
was
recovered. Evi•dencc
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 ~ell his mebncholy 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 n1ade 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 k111fc.
P.W. 2. Mohar Singh. was not examined
before the committing court
~
.
The a~cus'.:d denied the charge and stated that he was arrested
by the poltce m Agra on May 24, 1973, and not on the following
day
~t. Jat Dha~amshala as alleged
by
the
prosecution.
After
e~ammmg. the evidence of the defence witnesses as well as the station
diary entries about the .dep~rture of the Head Constable. Manohar
Lal and Constab.le Bal~~r Singh, to outside districts
the
Sessions
Judge held that It was
not at all improbable" that the two policemen accompanfod by Jai Bha~wan went to Agra and brought the
a~cused from there. The Sessions Judge also did not rely upon the
disclosure state~ent mad~ b~ the
accused and also ignored the recovery of the kmfe as bemg m pursuance of that disclosure statement.
A
B
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I 46
SUPREME COURT REPORTS
(1977] 3 S.C. R.
The Sessions Judge observed that it was very unusual in a murder
case that recovery of the offending weapon was so belated.
The trial court convicted the accused on the testimony of Hukam
Chand (PW I) 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 I
Hukam Chand.
This · evidence
treated as substantive evidence under section 288 Cr. P. C.
taken into consideration with the testimony of PW l 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 I 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 th.e 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 wh;'Ch ·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-exam;•ned 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 the.eat
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 I mentioned, therein, at three
places about the presence of Mohar Singh (PW 2) who was not even
exam:•ned 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 nnreliable witness.
ASHOK KUMAR v. STATE (DELHI ;.DMN.) (Goswami, J.)
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
occmrence 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 (Hukarii 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
s;•ngh
(PW 4).
The om;•;sion 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,
Crimi'nal Procedure Code, is inadmissible and should riot be acted
upon, since no specific portion of their contradictory statements had
been put to them in the course o! 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 t:'Jeir 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 ~-ecorded 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.
Raji'D.der 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 c,ourt to have seen
the occurrence.
He had been examined in the commitfrng 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.
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148
SUPREME COURT REPORTS
[1977] 3 S.C.R.
Although the High Court was not prepared to accept the defence
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 I.he
recovery of the knife ~nd 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.
W c agree
with
the
Sessions Judge that it was unusual for the police to delay recovery
of the blood-stained knife i•n 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
C
interfere with the conviction in thi~ case.
In the result the appeal is
dismissed.
P.B.R.
Appeal dismissed.