H.R. Khanna, C.J.
(1) This is an appeal by Rattan Singh, aged 38 years, who has been convicted by learned Additional away with his wife. The accused expressed remorse and begged to be excused. Leaving the accused with those persons, Menga Singh left on his scooter for the police-station. As Menga Singh was not aware of the exact location of police-station Tilak Nagar, within whose jurisdiction the accused lived. Menga Singh contacted Bishan Singh at his house and accompanied by him went lo police-station Tilak Nagar. The above police-station is at a distance of about 1 1/2 miles from Vishnu Garden wherein the accused lived. At the police-station Menga Singh lodged report PW2/A at 1.45 a.m.
(2) Inspector Vishwa Nath (Public Witness 13), after recording the report PW2/A, went to the house of Menga Singh, The Inspector also deputed Asi Hem Raj to go to the house of the accused in Vishnu Garden and keep a watch there. On arrival at the house of Menga Singh, the Inspector found the accused in the company of Swaran Singh, Surjit Singh, Tara Singh and Santokh Singh. The Inspector recorded the statements of those witnesses and put the accused under arrest. The accused then handed over two bunches P. 1, and P. 2 of keys and the same were taken into possession as per memo P. A. Inspector Vishwa Nath thereafter interrogated the accused and the latter stated that he had kept tesa inside a room in his house. Memo P. C. with regard to the statement of the accused was prepared. In the course of the search of the accused the Inspector found that the kachha and the banyan which the accused was wearing, were bloodstained. The accused was thereafter taken by Inspector Vishwa Nath to his house. On arrival there the Inspector opened the lock of the house with the keys delivered to him by the accused. From inside the house the Inspector recovered tesa P. 5. The tesa was lying on a table and was bloodstained. It was taken into possession and was put into a sealed parcel. The dead body of Joginder Kaur was found lying on a cot in the house of the accused. The Inspector prepared the inquest report P. K. He also took into possession an earring and a bunch of hair which were found lying near the dead body. The articles of bedding were found to be bloodstained and were also taken into possession and made into a sealed parcel. Banyan P. 4. and kachha P. 3 of the accused were removed from his person and were put into a sealed parcel. The place of occurrence was also got photographed from Umed Singh (Public Witness 12).
(3) POST-MORTEM examination on the body of Joginder Kaur deceased was performed by Dr. S. S. Kaushal at 4.30 p.m. on October 8, 1966. The different articles, which had been taken into possession, were sent to the Chemical Examiner whose report P. S. showed that blood was found on tesa P. 5., banyan 4, kachha P3 and the clothes and articles of bedding of the deceased. According to the report P. T. of the Serologist the blood in question was of human origin.
(4) The accused in his statement under Seetion 342 of the Code of Criminal Procedure admitted that on the night between October 7 and 8, 1966 at about midnight hour he went, while carrying his son, to the house of Public Witness Menga Singh in Prem Nagar and knocked there. The accused also admitted that he met Menga Singh there but, according to him, Surjit Singh did not come there. The accused denied having made any confessional statement to Menga Singh. The accused admitted that Santokh Singh, Tara Singh and Rattan Singh, residents of Prem Nagar, were then sent for by Menga Singh. It was also admitted by the accused that Menga Singh left that place leaving him with the other persons present there. According to the accused, the police-officer, after arriving at the house of Menga Singh. recovered two bunches of keys P. 1. and P. 2 from his person. The accused denied having made any disclosure statement about tesa. Likewise, the accused denied that blood-stained kachha P. 3 and banyan P. 4 were recovered from his person. The accused admitted that the locks at the outer door of his house were opened with the keys which had been taken into possession by the police from him. According further to the accused, the police recovered bloodstained tesa P.5 from a room of the house in his occupation. The accused further made the following statement :
'PWMenga Singh developed social relations with me and he also then developed illicit connections with my wife. I resented the visits of Public Witness Menga Singh to my house and I was constrained to leave Delhi and started living with my wife at Calcutta. In the year 1961, I returned from Calcutta to Delhi and took up residence in a house in Vishnu Garden, Delhi, at a distance of five miles or so from the house of Public Witness Menga Singh to avoid the visits of Public Witness Menga Singh to my house. Public Witness Menga Singh, however continued his visits to my wife at my house. About a week before this incident, in my presence, Pw Menga Singh visited my wife at my house when I and my wife turned him out and also be laboured him. Public Witness Menga Singh left grumbling and while leaving he threatened and intimidated me and my wife. On the night of the occurrence I was with my friend Ajit Singh, in his house in the locality of Jangpura, Delhi. At about 11 p.m. after seeing a cinema show, I returned to my house. At the lime when I returned I found the shutters of the outer entrance gate of my house lying vide open, while the shutters of the room inside my house also lay closed, but not chained or bolted. On getting into that room, .1 saw my wife lying dead on a cut and blood lying on the ground. I raised alarm where upon my neighbours collected there. Inder Singh, Kuldip Singh and some other neighbours then told me that on that night they had seen Menga Singh getting into and coming out of my house and that Public Witness Menga Singh was then on scooter. I picked up my child. who was then there at my house and carried that child to the house of Public Witness Menga Singh. The rest I have already stated above.'
(5) In defense three witnesses were examined. According to Inder Singh (DW1), who lives in the neighborhood of the accused. he heard the cries of the accused on the night of occurrence at about 10.30 p.m. The witness then went to the accused and was told by him that his wife had been killed by some one. The witness then told the accuseed that earlier on that night at about 8.30 p.m. he had seen Menga Singh coming out of the house of the accused. The witness added that the accused then left along with his child with the intention of leaving him with Menga Singh. DW2 Nanak Singh's evidence is to the effect that he lives in a house contiguous to that of the accused. About 10 or 12 days before the present occurrence, the witness heard the accused and his wife telling Menga Singh to stop visiting their house. Menga Singh was then turned out whereupon he held out a threat to the accused and his wife . According to Ajit Singh (DW3), he went with the accused to see a cinema show and after that took meals with him on the night of occurrence. The witness and the accused thereafter parted company at about 9.45 p.m.
(6) Learned Additional Sessions Judge accepted the prosecution case and disbelieved the defense version. The accused was. accordingly, convicted and sentenced as above.
(7) There can be no manner of doubt that Joginder Kaur deceased died as a result of murderous assault. Dr. S.S. Kaushal. who performed post-mortem examination on the body of the deceased, found the following injuries:
'1.Stab wound 2'' x 4/20' x neck on left side parallel lo the lower border of the jaw starting from a point V from the lobule of left ear. 2, Stab wound 2 3/10' x '' x neck parallel and one inch below injury No. 1. 3. Stab wound 2' x '' x muscle on left side of the neck behind left ear. 4. Stab wound 2'' x x bone deep on left side of the forehead. 5. Stab wound 2 3/10' x 4/10 x jaw on right side face below the level of angle of the mouth. 6. Stab wound 3' x '' x jaw. 7. Five linear cut marks each 2' long on abdomen over an aria 6'x6' (corresponding cut marks on the shirt present). 8. Abrasion I linear on outer aspect of right thigh.'
(8) Blood vessels of the neck under injury 'No. 1 were found lo have been cut through and through. Trachea and Oesophagus as also cervical spine of level of 3rd and 4th vertebrae were found cut. Blood vessels, trachea and cervical spine were found cut under injury No. 2. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of cutting of the blood vessels of the neck, trachea and oesophagus. Injuries 1 and 2 were individually sufficient to cause death. Dr. Kaushal added that the injuries to the deceased could have been caused with tesa p. 5.
(9) Mr. Kalia, on behalf of the accused-appellant, has argued that the evidence of Dr. Kaushal, which was recorded before the Committing Magistrate, is not admissible and the Court below has erred in taking into consideration the said evidence. In this respect we find that Dr. Kaushal was examined as a witness before the Committing Magistrate. Dr. Kaushal was also summoned as a witness in the Court of Session and was examined as P. W. 2. In his deposition in the Court of Session, Dr. Kaushal stated that he had appeared on March 24, 1967 in the Court of the Committing Magistrate and had made statement. The doctor then went through that statement and stated that the said statement was correct and had been made by him before the Committing Magistrate. The statement of Dr. Kaushal made before the Committing Magistrate was then read over, admitted in evidence and transferred to the file of the Court of Session. Opportunity was thereafter given to the Public Prosecutor and the defense counsel to put further questions to the doctor but none of them put any further question. According to Section 509 of the Code of Criminal Procedure, the deposition of a medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission, might be given in evidence in any inquiry, trial or other proceeding under the Code, although the deponent is not called upon as a witness. It is furhter provided that the Court may, if it thinks fit, summon and examine such deponent as to the subject-matter of his deposition. The submission made by Mr. Kalia is that the statement of Dr. Kaushal made before the Committing Magistrate could have been used in evidence in the Court of Session if Dr. Kaushal had not been cited as a witness in that Court (Court of Session). As Dr. Kaushal was examined as a witness in the Court of Session, his deposition in Committing Court according to Mr. Kalia, cannot be read in evidence. This submission, in our opinion, is not well-founded. As stated above, the statement made by Dr. Kaushal in Committing Court was read over at the Session trial and was thereafter admitted in evidence and transferred to the file of the Sessions Court. It would have indeed been superflous and resulted in sheer duplication to record the same evidence over again. No prejudice can also be deemed to have been caused to the accused because an opportunity was given to the defense counsel to put further questions to the doctor. The correct position of law in this respect, in our opinion, if we may say so with due respect, has been stated in the case of Hashmat and another v. Emperor Air 1947 Lah 377. Falshaw, J. (as he then was), speaking for the Bench, referred to sub-section (2) of Section 509 and observed:
'ITseems to me that sub-section (2) clearly contemplates the treating as evidence in the Sessions case of the deposition of the medical witness before the committing Magistrate even in cases where he is again called and examined in the trial with a view to throw light on any doubtful parts of his previous statement, and it does not appear to me that there is anything in the section which can be held to justify the conclusion that where a medical witness is called as a witness in the Sessions trial it is necessary to discard his previous deposition and examine him afresh altogether. I thus consider that there is nothing illegal in the practice which has gone on for many years in this Province of transferring the deposition of the medical witness to the Sessions file and at the same time examining him again to clear up any doubtful points.'
(10) According to the prosecution case, it was the accused who caused injuries to Joginder Kaur as a result of which she died. In support of this allegation the prosecution has relied upon the confessional statement made by the accused to Menga Singh (PW1) and Surjit Singh (Public Witness 3) . The evidence of Menga Singh shows that on the night of occurrence, after the accused came to the house of the witness, the accused told him that he wanted to leave his son with the witness. When the witness asked the reason for that the accused stated that he had killed his wife because of her loose character and that as there was none to look after the infant child he wanted to leave the child with the witness. The evidence of Menga Singh in this respect is corroborated by that of Surjit Singh (Public Witness 3). After having been taken through the evidence of these witnesses we see no cogent ground to disbelieve the same. Mr. Kalia has urged that the evidence of extrajudicial confession should be received with caution. We have applied this rule of caution and in spite of that we are of the view that the evidence of these two witnesses on the point of extrajudicial confession should be accepted. The evidence of the above mentioned two witnesses is also to some extent corroborated by Santokh Singh (Public Witness 4). Although the evidence of Santokh Singh shows that the accused did not state in his presence that he had killed his wife and that Menga Singh should keep his son, it is manifest from his testimony that when Menga Singh expressed his resentment to the accused on the latter having killed his wife, the accused expressed his regrets and begged to be excused. Reference has been made by Mr. Kalia to the English version of the statement of Surjit Singh in cross-examination which tends to show that the accused did not make the confession in the presence of the above witness. The statement of Surjit Singh in examination-in-chief is, however, unequivocal and according to it the accused made the confession, as alleged by the prosecution, in his presence. The part of the statement of Surjit Singh in cross-examination, referred to by the defense counsel, in English record, does not tally with the statement of Surjit Singh in the Urdu record. Looking to all the facts of the case we are of the opinion that the Urdu version of the statement of Surjit Singh in this respect, which is in consonance with his remaining statement, is more reliable. It seems that some error crept in while translating the statement of Surjit Singh in English.
(11) Apart from the confessional statement of the accused we find that there are a number of other incriminating circumstances which corroborate the confessional statement. The dead body of the deceased was recovered from the house of the accused. It cannot be disputed that the said house was in the possession of the accused because admittedly the keys of the lock on the outer entrance of the house were taken into possession by the police from the accused. Bloodstained tesa was also found inside the house. The fact that the dead body of the wife of the accused. whom he suspected of illicit intimacy with another person, was Found in the house in possession of the accused with a number of injuries on it along with a bloodstained tesa nearby, is an incriminating circumstance which points to the guilt of the accused. The evidence of Puran Singh (Public Witness 6) and of Inspector Vishwa Nath (Public Witness 13) shows that bloodstained kachha and banyan were removed from the person of the accused. According to the reports of the Chemical Examiner and the Serologist, the blood in question was of human origin. The presence of bloodstains on the kachha and banyan of the accused, which he was found wearing soon after the occurrence, lends further support to the confessional statement of the accused.
(12) The version of the accused that when he returned to the house at about 11 p.m. after seeing a cinema show and found the dead body of the deceased lying inside the house, he went to the house of Menga Singh, is not at all convincing. It is difficult to believe that if the accused had found his wife murdered and had come to know that Menga Singh had earlier been to his house he would go to Menga Singh. The normal reaction of a person in that situation would be to go to the police-station and lodge a report. The material on record shows that Joginder Singh (Public Witness 5), brother of Joginder Kaur deceased, lives at a distance of about one furlong from the house of the accused. No attempt was made by the accused even to inform Joginder Singh about the occurrence. It is also not clear as to why the accused should make an effort to hand over his son to Menga Singh if the accused suspected or believed that Menga Singh was is the murdere of his wife. It is also extremely improbable that if Menga Singh was the murderer of the deceased, he would himself go to the police-station and lodge report about the present occurrence. Looking to all the circumstances, we are of the opinion that it was the accused who caused injuries to Joginder Kaur as a result of which she died.
(13) Mr. Kalia has also argued that the charge, which was framed against the accused by the Committing Magistrate, did not mention the place where the murder of the deceased had been committed. No attempt, it seems, was made in the Court of Session to rectify the charge in that respect. Be that as it may, we are of the opinion that the above omission in the charge would not materially affect the case as no prejudice is shown to have been caused to the accused. According to Section 225 of the Code of Criminal Procedure, no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Further Section 537 of the Code provides that no finding, sentence or order passed by a Court shall be reversed or altered on appeal on account of any error, omission or irregularity in the charge unless such error, omission or irregularity has in fact occasioned a failure of justice. As there is nothing to show that because of the above mentioned omission in the charge there has resulted a failure of justice, the conviction of the accused cannot be set aside on that score.
(14) The result is that the appeal fails and is dismissed.