A.N. Grover, J.
1. This is an appeal against the conviction of one Jagdish who was tried under Section 307 of the Indian Penal Code by the learned Additional Sessions Judge, Delhi, and sentenced to five years' rigorous imprisonment.
2. The prosecution version is that on 20th October 1960, which happened to be a Diwali day, Sarwan Singh (P.W. 1), who was employed in the Delhi Transport Undertaking, had invited Chiranji Lal (P.W.3) to his house for dinner. Sarwan Singh used to reside in Malviya Nagar and he went to the bus stop to meet his guest. On reaching there he heard some kind of cries of 'pakro pakro' and a person of the name of Ram came and caught hold of him by the shoulders. That person shouted that Sarwan Singh was indulging in gambling. The latter got the Impression that the man who had caught hold of him must be a police constable as only a police constable could catch another person in that manner. Sarwan Singh told the person who had caught hold of him that he was a driver of the D.T.U. and not a gambler. That person retorted by saying that Sarwan Singh was a liar. In the meantime Jagjit Singh alias Jagdish Singh P.W. came there and asked Sarwan Singh not to allow the person who had caught hold of him to go because he was not a police official. That man, however, insisted on being released and uttered threats If he was not let off. On Sarwan Singh not allowing that man to go, Jagdish accused came along and gave a knife blow in the abdomen of Sarwan Singh who fell down. The other person, who had caught hold of Sarwan Singh, and the accused Jagdish both ran away. Certain police constables who were on patrol duty saw them running. Head Constable Ram Kishan (P.W. 6) and Foot Constable Inderaj. Singh (P.W. 9) were able to secure Ram and Jagdish accused. It may be mentioned that Ram was also tried under Section 307, Indian Penal Code, along with Jagdish, but he was acquitted by the learned Additional Sessions Judge on the ground that common Intention to inflict the injury by the knife had not been established so far as Ram was concerned. Sarwan Singh, who had received the injury, made a statement soon after the occurrence in the Safdarjang Hospital to the Sub-Inspector which was marked as Exhibit P.A. Therein he had mentioned that Ram had caught hold of him and Jagdish had given him the blow with the knife but in Court Sarwan Singh went back on that statement and tried to save both Ram and Jagdish by making a state ment of a different nature. According to him, Jagdish did net ask him to let go the man who had caught hold of him but someone else came and gave him the knife injury. The learned Additional Sessions Judge in paragraph 10 of his judgment examined the statement given by the eye-witnesses and it is quite clear that according to him, both Sarwan Singh and Jagdish Singh (P.W. 5) did not speak the truth in Court. Anyway the fact remains that these eye-witnesses did not support the prosecution Version at the trial.
3. The learned Additional Sessions Judge based the conviction of Jagdish appellant on the statement of Waryam Singh who is said to have died before the trial was held in the Court of the Additional Sessions Judge. Waryam Singh's statement had been recorded at the stage of committal and the learned Additional Sessions Judge has relied a great deal on his statement as also the fact that the blood-stained- clothes were recovered from the person of Jagdish accused and that he had tried to run and had been caught by two police officials. The learned Counsel for the appellant points out that the statement of Waryam Singh recorded in the Court of the Committing Magistrate, which was transferred to the file of the Sessions Court under Section 288 of the Coda of Criminal Procedure, was not relevant and was not good evidence as the essential conditions prescribed by Section 33 of the Indian Evidence Act had not been satisfied. Indeed, it is submitted, and that is clear from an examination of the record, that there is no order whatsoever by the learned Additional Sessions Judge to the effect that he was satisfied that Waryam Singh was dead and, therefore, his statement, made in the Court of the Committing Magistrate should be admitted as evidence under Section 33.
In Sajjan Singh v. The Crown ILR 6 Lah 437 AIR 1925 Lah 418, a Division Bench of the Lahore High Court laid, down that the deposition of a prosecution witness stated to have died prior to the trial in the Sessions Court, but whose death was not proved, was not admissible under Section 33 of the Indian Evidence Act. The following observations at page 439 are noteworthy:
Section 33 would have been' applicable if the death of the witness whose deposition was sought to be admitted had been first proved. In the present case there was no such proof, and accordingly the statement is not admissible and must be excluded from consideration. The same principle has been laid down in Indar v. Emperor AIR 1930 Lah, 1041, which was a judgment by Sir Shadi Lal C.J. and Agha Haidar J., and Kala v. Emperor AIR 1944 Lah 206. It is somewhat unfortunate that the learned Additional Sessions Judge did not apply his mind to the essential requirements of Section 33 and did not even record any order in that behalf. If the statement of Waryam Singh is to be excluded from consi deration, then there Is hardly any substantive evidence left in the case on which the conviction can be based.
There is another element of suspicion which has been brought to my notice with regard to the manner in which the investigation was done by the police. (His Lordship then discussed the evidence and proceeded:)
4. For all these reasons, the conviction cannot be sustained and the appellant is hereby acquitted. 1 must be brought to the notice of the learned Additions Sessions Judge against whose judgment the present appeal has been filed that he must in future take good care that whenever a statement has to be transfern under Section 288 of the Code of Criminal Procedure an has to be made evidence under Section 33 of the India Evidence Act the conditions laid down by the latter section must be observed and proper orders should be recorded in that behalf.