ASHOK KUMAR versus STATE (DELHI ADMINISTRATION)

Citation: [1977] 3 S.C.R. 143 · Decided: 07-03-1977 · Supreme Court of India · Bench: P.K. GOSWAMI · Disposal: Dismissed

Judgment (excerpt)

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 com-
n1itting 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 

Excerpt shown. Read the full judgment & AI analysis in Lexace.