Prithvi Raj, J.
(1) Zile Singh accused was tried by an Additional Sessions Judge for the charge of having murdered his father, Lakhi, on the night between 27th and 28th September, 1971. The Additional Sessions Judge found the accused guilty. He convicted the accused under section 302 1. P. C. and sentenced him to death by his order dated the 8th September, 1972. A reference has been made for confirmation of his sentence. The accused has challenged the correctness of the order passed by the Additional Sessions Judge in Criminal Appeal No. 175 of 1972.
(2) The prosecution story is that the accused had previously been working in Karachi in the office of Indian High Commission and during the period he was working there his family lived sometimes in the house of the deceased and sometimes in the house of the accused's in-laws in village Mehrauli. The accused suspected illicit intimacy between his wife and the deceased. A quarrel had taken place on this account between him and the deceased. The accused is alleged to have lodged a report with the police. However, the matter was subsequently compromised between them.
(3) The accused was employed as a peon in Naval Headquarters and was posted to Directorate of Stores, R. K. Puram, New Delhi. On September 27, 1971, he absented himself from the office after lunch.
(4) The house of the deceased is situated by the side of the house of his brother Charan Singh , P. W. 20, in village Mandhela Kalan. The house of Prithi Singh, P. W. 22, is at a distance of 50 paces from the house of the deceased. The house of Rajpal, P. W. 28, the other son of the deceased who was separated from the deceased, is situated by the side of the house of the deceased. The house of Harnarain, P. W. 23, is also situated by the side of the house of the deceased. On the night between 27th and 28th of September, 1971, the deceased smoked 'huqqa' in the company of Charan Singh and Harnarain in front of the house of Charan Singh. After smoking 'huqqa' all of them went to sleep. The deceased slept on a cot in front of his house.
(5) The prosecution version is that at about 12 midnight Prithi Singh, P. W. 22, when he was sleeping outside his house, heard noise created by Rajpal, Charan Singh and Harnarian Lambardar. Rajpal was saying that the accused had murdered his father Lakhi. Prithi Singh came to the place of occurrence and found the deceased murdered having cuts on his neck and was bleeding. A blood-stained axe was found laying near the cot of the deceased. At the time Prithi Singh reached the scene of occurrence Harnarain, Charan Singh and Raj Pal were present there.
(6) Raj Pal lodged a report, Exhibit P. W. 32/A, at police station Najafgarh which is at a distance of 6 miles from the place of occurrence. The report was lodged at 4.45 A.M. Brahm Dutt Sharma, S.H.O., along with Ram Swarup, S. 1., Jiwan Dass, A. S. I., Constables Nand Lal, Ved Raj, Shiv Ram Singh and Sukhbir Singh left for the place of occurrence. Brahm Dutt, P. W. 32, S.H.O. reached the place of occurrence on receiving a copy of the F.I.R and found the deceased lying on a cot outside his house. The bed on which the dead body was lying was blood-stained and some blood had fallen on the ground through the bed. A blood-stained shoe (Juti), Exhibit P/4, blood-stained axe, Exhibit P/1/P/2, was also found lying near the deceased towards his head. The investigating officer after preparing a sketch, Exhibit P. W. 22/B, of the axe took the same into possession vide memo. Exhibit P. W. 22/A. The shoe was taken into possession vide memo. Exhibit P. W. 22/D. Blood-stained earth was also taken into possession vide memo. Exhibit P. W. 22/C. He also took blood from the bed sheet of the deceased's bed and after drying the same it was converted into a sealed parcel and taken into possession vide memo. Exhibit P. W. 22/E. The investigating officer on the information given by Raj Pal and Prithi Singh, prepared inquest report. Exhibit P. W. 21/C, the contents whereof were read over to Raj Pal and Prithi Singh who attested the same. The investigating officer prepared a site plan, Exhibit P. W. 32/B. The dead body of the deceased was sent for post-mortem along with the inquest report. Eye-witnesses of the occurrence are Raj Pal, who lodged the F.I.R., Charan Singh and Harnarain.
(7) Raj Pal, P. W. 28, in his statement before the trial Court did not support the prosecution story. He is the son of the deceased. He deposed that on 27th September, 1971, he as usual slept in his house. At the time he went to sleep the deceased along with Charan Singh and Harnarain Public Witness s. was smoking 'huqqa' in front of the house of Charan Singh. Next morning when he got up a 4 A.M. and went inside the Gali to urinate, he found some blood under the cot on which the deceased was sleeping. Coming nearer the cot he found the deceased murdered. According to him at that time none else was present there. He went to the house of his uncle Charan Singh and apprised him of the said fact. Charan Singh was alleged to have called Prithi Singh P. W. According to him Charan Singh and Prithi Singh went to the police station to lodge a report. He admitted having signed the F. I. R. at points A & B. He stated that the police which came at the spot did not record his statement. He, however, stated that the police took into possession one shoe (Juti) in his presence vide memo. Exhibit P. W. 22/D, axe Exhibit P/1/2, vide memo. Exhibit P. W. 22/A, blood-stained earth vide memo. Exhibit P. W. 22/C and blood from the bed sheet vide memo. Exhibit P. W. 22/E. He admitted having attested all the recovery memos. and the inquest report, Exhibit P. W. 21/C. He was allowed to be cross-examined by the prosecution. He was confronted with his statement made to the police to the effect that he saw the accused bending over his father on his cot with an axe in his hand and that the accused threw that axe on seeing him and ran away outside the village in the Gali. He denied having made the aforesaid statement to the police.
(8) P. W. 20, Charan Singh, who is the brother of the deceased, also did not support the prosecution. He was cross-examined on behalf of the prosecution after the prosecution had obtained permission from the Court.
(9) The next eye-witness Harnarain also did not support the prosecution. He was declared hostile and was cross-examined by the counsel for the prosecution.
(10) In the circumstances no support can be drawn from the statements of Rajpal and Harnarain witnesses.
(11) So far as Charan Singh is concerned it may be stated that his statement was recorded by the trial Court on 29th May, 1972. In the trial Court, Shri Mohan Lal, S.P.P., made a request that the statement of Charan Singh P. W. recorded by the Committing Magistrate on the 17th March, 1972, be transferred to the file of the Sessions Court and be read in evidence as P. W. 20/A. No formal order is forthcoming on the record of Sessions Court by which the Additional Sessions Judge had taken the statement of the said witness on his file. However, the statement had been exhibited on the record as Exhibit P. W. 20/A on the 29th May, 1972, i.e., the day when the S. P. P. made the aforesaid request to the trial Court.
(12) The question to be determined is whether the statement of Charan Singh P. W. was duly transferred in compliance with the provisions of section 288 Criminal Procedure Code . and can be read as evidence in the case.
(13) The learned counsel for the accused vehemently contended that the statement of Charan Singh having not been transferred in accordance with the provisions of section 288 Criminal Procedure Code . cannot be read as evidence in the case. It was urged that from the record of the case no indication is available that the Additional Sessions Judge had exercised his judicial mind in the matter and that the witness had no notice that his statement recorded by the Committing Court would be used as substantive evidence in the Sessions Court. That being so, it was urged, an opportunity was denied to the witness to explain the contradictory portions of his statement. Not only this, the learned counsel submitted, the accused was also denied an opportunity of testing the statement of the witness by a further cross-examination. It was stated that the accused did not have notice at the time when the witness was in the witness box that his previous statement was to be transferred to the Sessions file and would be used as substantive evidence against him. It was also submitted that from a perusal of the record of the Sessions Court it is apparent that Charan Singh witness was examined as Public Witness 20 on the 29th May, 1972. His statement was read over and acknowledged by him as correct and signed by the trial Judge as is borne out from the record. It was after, the witness had left the witness box, the learned counsel submitted, that a request was made to the trial Court by the S.P.P. that the previous statement of the witness be transferred to the file of Sessions Court and be read in evidence as Public Witness 20/A. There being no compliance with the mandatory provisions of section 288 Criminal Procedure Code ., it was strongly urged, the said statement cannot be taken into consideration while adjudicating upon the guilt of the accused. In support of his contention the learned counsel for the accused placed reliance upon Kesto Dului and others v. state and others 1961 1 Cri. L.J. 646; State v. Hardyal Singh Air 1953 Pepsu 66;(2) Thommen v. State of Kerala, : AIR1958Ker74 ; Kanwar Pal v. Emperor A.I.R. 1947 All 393 and Mst. Bhukhin w/o Gajraj v. Emperor . The view taken in the said cases was that section 288 Criminal Procedure Code . was not a device for the prosecution to reinforce the evidence-in-chief nor a means to destroy the legitimate effect of cross-examination. It was also held that when a witness is in the witness box and his statement made during the trial is a departure from the previous statement made during the enquiry the Sessions Judge has full discretion to order its transfer but not without giving an opportunity to the witness to explain the departure from the previous statement.
(14) The learned counsel for the accused, thereforee, submitted that the statement of Charan Singh was transferred long after he had left the witness box. No opportunity was afforded to him to explain his previous statement. Besides, it was urged the accused had been taken in by surprise as during the time Charan Singh was in the witness box there was no indication that his previous statement was intended to be transferred under section 288 Criminal Procedure Code . and read as evidence in the case.
(15) It would be appropriate here to refer to Tara Singh v. State, : 2SCR729 , in which case while dealing with the scope of section 288 Criminal Procedure Code . their Lordships of the Supreme Court observed at page 446 that the prosecution must confront the witness with those portions of the statement of the witness which are to be used for the purposes of contradicting him and 'Then only can the matter be brought in as substantive evidence under section 288'.
(16) Section 288 Criminal Procedure Code . vests a discretion in the trial Judge to transfer a statement of a witness made before the Committing Court to the file of his Court when the interest of justice so requires. It is only when the trial Judge is satisfied and comes to the conclusion that a witness has gone back on the statement which he had made in the Committing Court and that he had done so intentionally that an order can be passed transferring the previous statement. It is a well-settled principle of law that resort to the provisions of the said section has to be made with discretion and very sparingly. It is only in cases when a witness had relised either entirely or to a great extent from his statement made before the Committing Court and the trial Court is of the opinion that there is a complete change of version and that the previous statement made by the witness before the Committing Court appears to the trial Court in all probability to be true one, while the statement made before the trial Court in all probabililty appears to the trial Court being untrue that the trial Court can take on his file the previous statement of the witness. There can be no dispute that a witness, before his statement is transferred under the provisions of section 288 Criminal Procedure Code ., should be treated fairly and afforded an opportunity to explain the portions of the contradictory statement made by him in the Committing Court apart from affording an opportunity to the accused to cross-examine the witness before the previous statement of a witness can be made a substantive evidence by transferring it to the file of Sessions Court under the provisions of section 288 Criminal Procedure Code . Section 288 Criminal Procedure Code . reads as follows:-
'288.Evidence given at preliminary inquiry admissible:-The evidence of a witness duly recorded in the presence of the accused under Chapter xviii may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872.'
(17) A perusal of the aforesaid section shows that no specific order is required to be passed when the statement is transferred. All that the said section lays down is that such previous statement of a witness may be treated as evidence in the case in the discretion of the presiding Judge if he is of the opinion that the witness has relised completely or from a major part of his previous statement made before the Committing Court which statement in all probability was a true one while the statement made before the trial Court in all probability appeared to be untrue. The Additional Sessions Judge who recorded the statement of Charan Singh and who had an occasion to mark the demeanour of the witness and also had the benefit of going through the statement of the witness before the Committing Court cannot be said to have not applied his judicial mind in transferring the statement to his file, as was the case in Kesto Dului's case (supra). The application of the judicial mind is borne out from the fact that the previous statement of the witness was duly transferred to the Sessions file and exhibited as Public Witness 20/A. The decision in Hardyal Singh's case (supra) proceeded on its own facts where the Court found that there was lack of application of judicial mind of the Court in transferring the previous statements of three witnesses en bloc. The decision in Thommen's case (supra) and Kanwar Pal's case (supra) also proceeded on their own facts which are distinguishable from the facts of the instant case. We arc, thereforee, of the opinion that on exception can be taken to the exercise of discretion by the trial Court in transferring the statement of Charan Singh to the Sessions file for the reasons stated hereafter. All that was required to be done was to confront the witness with his previous statement as envisaged by section 145 of the Evidence Act as held by their Lordships of the Supreme Court in Tara Singh's case (supra).
(18) Charan Singh in cross-exammation on behalf of the prosecution was asked whether he had told the Committing Magistrate that while the accused went to Karachi in connection with his service his wife and children used to live in the house of deceased. To this question the witness stated that he did not remember and he might have so told the Magistrate. He was confronted with his previous statement at portion A to A where it was so stated. When the witness stated that it was incorrect that he had told the Committing Magistrate that he had seen a blood-stained axe lying by the side of the cot of the deceased, he was confronted with portion B to B of his previous statement. Again when he denied that he never told the Magistrate that he had seen the accused standing near the cot of the deceased and that when he went near the accused ran away towards fields, he was confronted with portion C to C of his previous statement. Further when he denied that he had seen the accused and had fully recognised him under the street light when he had told the accused to stop, the witness was confronted with portion D to D of his previous statement.
(19) From the cross-examination of Charan Singh, as quoted above, there can be no manner of doubt that the witness had been treated fairly and was confronted with the contradictory portions of the statement made by him earlier. In our opinion the witness was afforded an ample opportunity to explain the contradictions. The only thing, thereforee, to be considered is whether in this situation the accused had notice that the previous statement of the witness was intended to be transferred under section 288 Criminal Procedure Code . to the Sessions file and used as substantive evidence. We are of the opinion that from the way and the manner in which the cross-examination of this witness was conducted by the prosecution, the accused had sufficient notice that the previous statement of this witness was intended to be used as substantive evidence; more so when the accused was represented by a counsel. Mst. Bhukin's case (supra) is accordingly distinguishable as on the facts of that case the Court held that the accused had no notice that the previous statement was intended to be used as substantive evidence in that case. If the defendant did not cross-examine the witness fully being alive to the fact that his previous statement was intended to be used as substantive evidence, no grievance can be made by the accused that he had no notice. The witness being closely related to the accused, being his uncle, resoled from his previous statement obviously with a view to saving the accused. The Additional Sessions Judge was not wrong in exercising his discretion in transferring the previous statement. The statement was exhibited immediately just after the evidence of Charan Singh and not long after he had left the witness box. It also seems that probably request by the Special Public Prosecutor for transferring the statement of Charan Singh was made while the said witness was still in the witness box. It was for that reason that immediately after completing the statement of Charan Singh the request made by the Special Public Prosecutor was reduced to writing and to show that the request had been acceeded to, the statement of this witness made before the Committing Magistrate was exhibited as Public Witness 20/A and was transferred to the Sessions file.
(20) The witness was given full opportunity to explain his previous statement. After his attention was drawn to the discrepancies in the specific portions of the previous statement marked as A to A to D to D a suggestion, was made to him that he had joined hands with the accused to save him. The only Explanationn given by the witness was that it was incorrect to suggest that he had joined hands with the accused to save him. The only Explanationn given by the witness was afforded to the witness to explain his previous statement. The witness had further stated that it was incorrect to suggest that he had seen the accused murdering his father Lakhi nor did he so state to the Magistrate. This statement of the witness is suggestive of the fact that the Committing Magistrate has recorded the same of his own volition. There is no material on the record to support such a suggestion.
(21) Once the statement of Charan Singh becomes substantive evidence it can be taken into consideration against the accused. It is amply borne out from this statement that the accused had a motive to commit this ghastly crime because he was having suspicion about illicit relations of the deceased with his wife, Prem Wati. Charan Singh had also deposed that twice or thrice a quarrel had taken place between the accused and the deceased and that he and Pardhan Prithi Singh had asked both of them to compromise and that at one occasion a report was also lodged by the accused at police station Najafgarh about the quarrel, Charan Singh had also stated that about 6 months back (he was examined on 17th March, 1972) at about 9 P.M. he, deceased and Harnarain were smoking 'huqqa' in the verandah of his baithak; that at about 10/11 P.M. they went to bed; that his and Harnarain's cots were in the verandah of his baithak while the deceased slept in the street in front of his house. Raj Pal was sleeping at a small distance in the door of his house. He further stated that at about 2.30 in the night-again said at about 2 A.M. in the night, he heard the noise 'hai'. This noise came from the side of the street and the same was of Raj Pal. He and Harnarain at once got up on hearing the noise. He went near the cot of the deceased and saw that his neck had been cut and the cot was blood-stained and an axe stained with blood was lying near the cot. He further deposed that he saw the accused who was wearing white clothes under the street light running towards the fields from the cot of the deceased. He and Hamarain asked the accused not to run away but the accused did not stop. He stated that he had fully recognised the accused under the street light.
(22) It is pertinent to note that despite an opportunity being given, the veracity of his previous statement was not tested in cross-examination by the defense counsel. It is no doubt true that Charan Singh had completely resoled from his earlier deposition made before the Committing Court during the trial of the case. But reasons for such a conduct on the part of this witness are not far to seek. With the passage of time Charan Singh's feelings for his nephew, the accused, grew stronger and he was anxious to save him which resulted in his taking a somersault in the trial Court by completely resiling from his earlier statement. Despite the opportunity given to him when he was asked in cross-examination by the S.P.P. that he had joined hands with the accused with a view to saving him, he offered no Explanationn as to why he had made the earlier statement. We are, thereforee, of the view that his previous statement made before the Committing Court on 17th March, 1972, was true and we accept the same as such.
(23) The next important witness is Public Witness 22, Prithi Singh Pardhan of the village of the deceased. He supported the version given by Charan Singh that the accused had doubted illicit intimacy between his wife and the deceased and quarrel had taken place between them and that a report was also lodged by the accused with the police. He stated that 8/9 months ago the was examined on 29th May, 1972) at about 12 mid-night he was sleeping outside his house when he heard a noise created by Raj Pal, Charan Singh and Lambardar. Raj Pal was saying that Zile Singh had murdered his father. He went to the spot and found the deceased murdered who had cuts on his neck and was bleeding. Hamarain, Charan Singh and Raj Pal were present there. Axe, Exhibit P/1/P/2 was lying near the cot of the deceased which was bood-stained at that time. Raj Pal told him that the accused had murdered the deceased with that axe. Raj Pal went to lodge a report with the police. He also stated that the police took into possession the articles from the spot such as axe, Exhibit P/1/P/2 vide recovery memo. Exhibit Public Witness 20/A; samples of blood-stained earth and the control earth vide memo. Ex. Public Witness 22/C; shoe, Exhibit P/4, lying under the cot of the deceased vide Exhibit Public Witness 22/D; blood from the bed on which the dead body of the deceased was lying vide memo. Exhibit Public Witness 22/E. He further stated that the above articles were recovered in his presence and that the axe, samples of blood and earth were converted in sealed parcels. Sketch map. Exhibit Public Witness 22/B, of the axe, and inquest report. Exhibit Public Witness 21/C, were prepared in his presence. He further stated that some ladies informed them that a bag was lying in the fields. Bag, Exhibit P/5, was recovered in his presence which contained file (Reti), Exhibit P/3 which was taken into possession vide memo. Exhibit Public Witness 22/F. The police prepared site plan. Exhibit Public Witness 22/G, of the place from where the bag was recovered. He signed the recovery memos., inquest report and the site plan as an attesting witness. In cross-examination he stated that the police reached the scene of occurrence at 4/5 A.M. and that there was moon light.
(24) The statement of Prithi Singh as assailed by the learned counsel for the accused on the ground that he was not a truthful witness. It was contended that although in his examination-in-chief be had stated that the accused suspected illicit relationship between his wife and the deceased but in his cross-examination he had stated that he had no knowledge if there were illicit relations between the deceased and the wife of the accused. We have examined the vernacular record of the case and find that the statement of this witness in this respect as recorded in Urdu is as follows, 'Mujhe Zile Singh Aur Lakhi Ke Jhagre Se Pahle Ham Na that Ke Lakhi Aur Zile Singh Ki Bibi Ka Najaiz Tallaq Tha'. Obviously the English record is not the correct translation of this part of the statement of the witness. On this account the witness cannot be condemned as a liar. Another criticism directed against this witness was that he had stated in his cross-examination that about 20 persons were present at the time when the police had taken into possession the various articles mentioned by him and that out of the persons present 8/10 had signed the memos. of recovery. The learned counsel for the accused submitted that the recovery memos are not signed by 8/10 persons out of the persons alleged to be present. For this little lapse on the part of this witness his statement as a whole cannot be ignored. It is the duty of the court to sift grain from chaff. The witness has no where said that all the 8/10 persons signed each memo. On examining his statement as a whole we have no doubt that he is a reliable witness and we reply on this testimony.
(25) From the statement of Charan Singh, Ex. Public Witness 20, and the statement of Prithi Singh, Public Witness 22, it is evident that the said witnesses were awakened from their sleep on hearing the noise created by Raj Pal; that both of them went near the cot of the deceased and saw that his neck had been cut and the clothes of the deceased and the cot on which the dead body was lying were stained with blood. Besides an axe stained with blood was lying near the cot. Charan Singh had fully recognised the accused who was clad in white clothes under the street light and saw him running towards the fields from the cot of the deceased. Charan Singh had even asked the accused not to run away. Motive for committing the murder is also established from the statement or those witnesses as the accused suspected illict relations between his wife and the deceased.
(26) Prithi Singh, Public Witness 22, had categorically stated that Raj Pal was saying that the accused had murdered his father. The learned counsel for the accused submitted that this was hearsay evidence and could not be taken into consideration. Section 6 of the Indian Evidence Act envisages that facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
(27) The fact in issue in the instant case is as to who committed the murder of Lakhi. Raj Pal's saying that 'his brother Zile Singh had murdered his father Lakhi' immediately at the time of the occurrence would be a relevant fact connected with the occurrence. The learned counsel for the appellant contended that a statement to be relevant under section 6 should be that of a person who has seen the actual occurrence or who uttered it simultaneously with the incident or soon thereafter as to make it reasonably certain that the speaker is still under the stress of the excitement caused by his having seen the occurrence. It was accordingly contended that Raj Pal having not supported the prosecution and denied the occurrence, there is no evidence before us that he is an eye-witness and he cannot be made one to draw support from the above statement.
(28) There is sufficient evidence on the record that Raj Pal had witnessed the occurrence though he has gone back on his statement made to the police. He had lodged the F. I. R. at police station Najafgarh immediately after the occurrence as stated by Public Witness 32 though he denies having lodged it but admits his signatures at points A and B on the said report. According to Raj Pal, Charan Singh and Prithi Pardhan of the village went to the police station to lodge the report. No such suggestion was put to the witness Prithi Singh. From the statement of Charan Singh, Exhibit Public Witness 20/A, it is evident that he heard the noise 'hai' uttered by Raj Pal and went near cot of Lakhi; that when Prithi Public Witness and some other persons of the village arrived at the spot, he and Raj Pal narrated about the incident to Prithi Pardhan. Raj Pal was the first person to create noise which attracted other persons to the scene of occurrence. To constitute 'same transaction' the series of acts should be connected together to form the same transaction. If so, the proximity of time would assume significance. Raj Pal immediately on the occurrence created noise 'hai' and was saying that 'his brother Zile Singh had murdered his father Lakhi'. He had no time to manufacture testimony, there being no interval to do so. He had immediately disclosed the same of the assailant. We are, thereforee, of the opinion that the statement of Prithi Singh Public Witness 22 that 'Raj Pal was saying that his brother Zile Singh had murdered his father Lakhi' is admissible in evidence and we have no hesitation in relying on it.
(29) The accused is alleged to have made an extra-judicial confession of the crime to Nathu Public Witness 19. Nathu stated that at about 3/4 A.M. he was smoking 'huqqa' in his field. By the side of that field there is a kacha way going towards Bahadurgarh. Some body was passing from that kacha way and he called out to find who he was. The person passing the way replied that he was Zile Singh. The witness asked him to come and smoke 'huqqa' but Zile Singh replied that he would not smoke it and is alleged to have stated that he is son of Lakhi and had finished his father. The witness after the sun rise went to the house of the deceased where he found 2/4 persons present and the neck of the deceased was cut who was lying dead on the cot. In cross-examination he stated that when he went to the house of Lakhi and found him dead, he did not talk to anybody about Zile Singh accused having met him and his having told him about his having murdered his father. He admitted that his statement was not recorded by the police on that day but the next day and till then he did not apprise any one of the confession said to have been made to him. In the circumstances, we are reluctant to accept the statement of this witness.
(30) Shri Ram Swarup, Public Witness 31, arrested the accused in the present of Ved Raj Singh, Public Witness 25, at the bus stand of village Munirka at 2.30 P.M. on the 28th September, 1971. From his personal search identity card. Exhibit P/9, C.G.H.S. card. Exhibit P/10, two Rail tickets. Exhibit P/11 and P/12, two ten rupee notes. Exhibits P/13 and P/14, two one rupee notes. Exhibits P/15 and P/16 and a key. Exhibit P/17 were recovered vide memo. Exhibit Public Witness 25/B. The accused was wearing Kurta, Exhibit P/8 and Pant, Exhibit P/7 at the time of his arrest which were recovered vide memo. Exhibit Public Witness 25/A. The clothes were blood-stained and were converted into a parcel with the seal bearing the imprint ''R.S.P.'
(31) The parcel of blood-stained clothes. Exhibits P/7 and P/8, was sent for examination to the Forensic Science Laboratry vide Exhibit P.W. 32/E. On examination they were found to be stained with blood and blood clots vide Exhibit Public Witness 32/F. As a result of serological analysis of the articles Exhibits P/7 and P/8, human blood of '0' group was detected in the blood stains on the said clothes vide Exhibit Public Witness 32/H. It may be noted that the group of the blood of the deceased was '0'.
(32) The recovery of Pant, Exhibit P/7, and Kurta Exhibit P/9 was assailed on the ground that if the accused had committed the murder of the deceased and the clothes were blood stained during the commission of the crime, the accused would have destroyed the clothes and would not have kept them on his body till the next day when he was allegedly arrested at the bus stand of villege Munirka. There is no merit in this contention in view of the statements of P.W. 25 Ved Raj Singh and Public Witness 31 Ram Swarup that they took into possession the said clothes by taking them off the body of the accused. The accused in his statement under section 342, Criminal Procedure Code . had stated that the police did not take into possession any clothes from his person. No suggestion was put to P. W. 25 and Public Witness 31 in cross-examination that they had planted these clothes.
(33) Another submission was that Public Witness 31 in his statement had not mentioned that clothes, Exhibits P/7 and P/8, were blood-stained and that they were converted into a sealed parcel. This submission is equally devoid of force. While deposing to the recovery of these clothes both Public Witness 25 Ved Raj Singh and Public Witness 31 Ram Swamp had stated that the clothes were taken into possession vide recovery of these Exhibt P. W. 25/A wherein it is mentioned that the clothes' were blood-stained and on recovery they were made into a sealed parcel.
(34) The learned counsel for the accused next submitted that the sample of the seal was not sent to the Malkhana at the time twelve parcels were deposited there. Referring to the statement of Suraj Bhan, Head Constable, Public Witness 13, it was submitted that the parcels were taken out of Malkhana as stated by the witness by Head Constable Jai Lal and Constable Jagdish Mitter on 7th October, 1971, for being taken to the Laboratory in R. K. Puram. They were deposited in the Malkhana in the evening of the same date as the parcels could not be sent to the Laboratory for want of time. According to the said witness, the learned counsel submitted the parcels were again taken out of Malkhana by Head Constable Than Singh and Constable Jagdish Mitter on 8th October, 1971, for taking to the Laboratory and were received in the Malkhana from the Laboratory on the 2nd December, 1971. It was, thereforee, submitted that according to the statement of Suraj Bhan, Public Witness 13, the parcels were taken out twice from the Malkhana. That being so, the possibility of the seals of the parcels having been tampered with could not be eliminated. Particular stress was laid on the statement of Sohan Lal, P. W. 3, when he stated in examination-in-chief that the police never showed to him any clothes in this case and he never identified any of them. This answer elicited from the witness Sohan Lal in examination-in-chief the learned counsel submitted, were indicative of the fact that the clothes were shown to the witness. This fact, the learned counsel submitted, strengthened the apprehensions that the parcels were tampered with.
(35) We are unable to sustain this contention as no such suggestion was put to Public Witness 31 when he appeared as a witness. Sohan Lal. P.W. 3, washerman, in our opinion, is not a credible witness. On the testimony of such a witness it would not be safe to come to the conclusion that Exhibit P/7 (pant) and Exhibit P/8 (Kurta) were tampered with. Besides, the affidavits of the various police officials who handled these exhibits had been filed on the record. In their affidavits the said officials have categorically stated that during the time the parcels remained with them no body tampered with them.
(36) The accused made disclosure statement, Exhibit Public Witness 25/c, as deposed by Ved Raj Singh, Public Witness 25, and S. 1. Ram Swarup, Public Witness 31, wherein the accused disclosed that he had purchased the axe from a shop in Najafgarh and got the handle fixed from another shop. He also disclosed that he purchased the file (Reti) from a shop in Najafgarh. The disclosure statement was signed by the accused and Dalip Singh and Ved Raj Singh are the attesting witnesses.
(37) We have examined the disclosure statement. Exhibit Public Witness 25/c, the relevant portion of which is to the effect that the blade of the axe was purchased from the Main Bazar Najafgarh and the Reti from the same market and that the handle was got fitted to the blade of the axe at the shop of a Khati situate at Gaushala Road which shops the accused undertook to point out. We have given our careful consideration to the disclosure statement and we are of the opinion that it cannot be said that the fact of the shop situated in Main Bazar Najafgarh was in any manner a disclosure in consequence of information received from the accused. The shops from which the accused was alleged to have brought the blade of the axe or Reti or got the handle fitted from Main Bazar, Najafgarh, could not be said to be concealed in any manner which required to be discovered at the instance of the accused by receiving information from him. That being so, disclosure statement, Exhibit Public Witness 25/C, and the pointing out memos. Exhibits Public Witness 18/A and Public Witness 18/C are of little consequence.
(38) Banwari, Public Witness 2, who is a carpenter in village Najafgarh from whom the accused is alleged to have got prepared a wooden handle Exhibit P/1, and fitted in the blade. Exhibit P/2, of the axe, has deposed that for the above work he charged the accused a sum of rupees one as his labour. The learned Counsel for the accused contended that it would not be safe to rely on the testimony of this witness as in his examination-in-chief he had deposed that the accused had been brought to his shop by the police and that he had not identified the accused as the person who had got fitted the handle from him. That being so, we agree that it would not be safe to place implicit reliance on the testimony of this witness regarding the accused being the person who got fitted a handle in an axe from him.
(39) On 27th September, 1971, Hakim Chand, P. W. 4, shopkeeper of Najafgarh, sold a file' (Reti) vide cash memo. No. 271, the carbon copy of which is Exhibit Public Witness 4/A but he could not say who had purchased the file against the said cash memo. He was not able to identify the accused when he was brought by the police to his shop.
(40) Murari Lal, Public Witness 5, a hardware dealer of village Najafgarh, vide original of exhibit Public Witness 5/A is alleged to have sold a blade of axe for Rs. 5.50 on 27th September, 1971, to the accused. He stated that he identified the accused as the person who purchased the blade of axe as the police had told him that the accused had told them that he had purchased the blade from his shop.
(41) The testimony of Public Witness s. 2 to 5 does not carry the prosecution case any further. No reliance can be placed upon their statements.
(42) The accused was employed as a peon in Naval Headquarters and was posted to Directorate of Naval Designs, Naval Headquarters, R. K. Puram New Delhi. Shri J. C. Marwaha, Assistant Civilian Staff Officer, Directorate of Naval Design Naval Headqaurters, R. K. Puram, Public Witness 9, who was posted as such since September, 1970, deposed that the accused was employed as a peon in Naval Headquarters and was posted to the Directorate of Naval Designs from the Directorate of Naval Stores on 27th September, 1971. The accused reported for duty on the forenoon of 27th September, 1971. He stated that he was responsible for recording the attendance of civilian ministerial staff working under him and the accused was working under him. The accused did not report for duty after lunch and the witness marked him absent after lunch on 27th September, 1971, where after the accused never came to the office. Relevant entry from the attendance register maintained in the office was proved as Exhibit Public Witness 9/A. The witness stated that the original was in his hand and was correct. In cross-examination he stated that the absense of the accused was detected at 2 P.M. when he had not turned up for duty after lunch. The witness was asked that salary in their office is paid in the afternoon. He stated that it was not so and that the salary is paid at the time it was received in the office. He, however, did not remember if 27th September, 1971 was a pay day in their office but he thought it was so.
(43) P.W. 9 is a reliable witness. He had deposed from the office record that the accused was absent after lunch from duty on 27th September, 1971, and did not turn up for duty the next date i.e., 28th September, 1971. It has to be noted that the accused was arrested from bus stand of village Munirka at 2/2.30 P.M. on 28th September, 1971. The absence of the accused from the office after lunch hour was tried to be explained by the learned counsel for the accused on the ground that it was a pay day and the lower staff in the office including the accused may have left office a little early as it was Dussehra the next day. We are unable to accept this contention, as in the year 1971 Dussehra did not fall on the 28th September. Further, no question was put in cross-examinatipn to Public Witness 9 to elicit the information as to whether their office was closed on the 28th September, 1971, on account of Dussehra holiday as was sought to be urged by the learned counsel for the accused. The absence of the accused from the office in the after lunch hours on 27th September, 1971, and his not reporting for duty the next day is a circumstance to be taken against him.
(44) The accused with his family was living in the house of Neki Ram, P.W. I, in village Munirka. He had been living there for a period of about 8/9 months prior to the occurrence. Neki Ram had stated that on 26th day in the month in which Dussehra fell in the year 1971 the accused went away from the house and thereafter did not return. In cross-examination he stated that he did not know if the accused was present in the house when he (the witness) left for duty on the 26th day. He stated that on the said day he was on duty from I P.M. to to 7 P.M. He further stated that he had seen the accused on the morning of 25th and after that he had not seen him. He also stated that he was staying on the ground floor and the accused used to live on the first floor. The stairs leading to the first floor are situated in the court-yard of his house. He denied a positive suggestion that the accused was present in the house on 26th and 27th of the month in which Dussehra fell.
(45) From the statement of P. W.I it is evident that the accused was not seen in the above-said rented house in village Munirka after the morning of 25th September, 1971. The absence of the accused from his house is another circumstance to be considered along with the other circumstances in the case.
(46) P. W. 7, Ram Phal and P. W. 8, Ram Singh, have deposed that they saw the accused traveling in a bus near about the date of occurrence going towards Mandhela Kalan. They got down from the bus first and the accused got down later.
(47) P. W. 27, Prehlad Singh, saw the accused about 9/9' months ago (he was examined on 11th May, 1972), while he was going in his tractor to Najafgarh to see Ram Lila programme at about 8 P.M., along with Ram Phal and one resident of Mandhela Khurd near corner of village Mandhela. A suggestion was put to him in cross-examination that he had asked the accused to get him a bottle of rum and as the accused refused to get a bottle of rum, he was deposing against him.
(48) From the statements of P. Ws. 7, 8 and 27 it is established that the accused was seen going towards village Mandhela Kalan on the night between 27th and 28th September, 1971.
(49) The recovery of bag, Exhibit P/5, is testified by Pardhan Prithi Singh, P. W. 22. Information regarding the bag was given by some ladies. However, the identity of the bag could not be fully established. It is no doubt true that P. Ws. 7 and 8 had stated that the accused was carrying a bag in his hands at the time he was seen by them traveling in a bus but they were not able to conclusively say that bag, Exhibit P/5, was the bag which the accused carried at that time
(50) The dead body of the deceased was sent for post-mortem examination to P. W. 21, Dr. R. K. Jairath, Medical Officer, Police Hospital, Delhi, on 28th September, 1971, who performed the post-mortem examination on the dead body of the deceased and found three injuries on it. Injury No. 2 was as follows :-
'2.An incised wound on the left side of front of neck starting about'' to the left of thyroid cartilage and extending slightly upwards and laterally up to a level 1' below the angle of the mendible, size 3' x 1'' deep up to 2' in the middle and 1'' at the periphery. The wound was covered by blood clots. The Margins were regular and inverted, and there was no trailing of the ends. The common carotid artery had been cut transversely. The cut ends of the vessel were clean and regular. All the soft structure, i.e., blood vessel, muscle, and nerves on this side of the neck at the level of the wound had been cut in one line. There was a sharp cut over the body of the third cervical vertibra'.
(51) According to the doctor the injuries on the deceased were possible by a heavy cutting weapon and the same were sufficient to cause instantaneous death. The doctor stated that in particular injury No. 2 alone was sufficient to cause death. The death in the opinion of the doctor was the result of haemorrhage due to injuries to the neck. The doctor also stated that injuries on the person of the deceased could be caused by an axe Exhibit P/1. The time between death and the meal taken by the deceased was stated to be 4 to 5 hours.
(52) P. W. 32, Brahm Dutt, took into possession one sealed envelope containing bunch of hair of the deceased, a blood-stained dhoti of the deceased as also khes, bed sheet, a mattress and a pillow, Exhibits P. 36 to P. 40, all of which were blood-stained vide memo. Exhibit P. W. 32/D. According to the report of the Junior Scientific Officer, Shri Chandan Lal, Exhibit P. W. 32/F, all the above articles were stained with blood.
(53) In view of the direct evidence of Charan Singh, Exhibit Public Witness 20/A, that he had seen the accused under the street light, in white clothes, running towards the fields from the cot of the deceased and further that he and Lambardar Harnarain had asked the accused not to run away but to stop and the fact that immediately after the occurrence Prithi Singh Pardhan, P. W. 22, reached the spot; he and Raj Pal narrated the whole incident to him, there can be no manner of doubt that the accused committed the murder of the deceased. Further from the statement of Prithi Singh, P. W. 22, it is duly proved that immediately on the occurrence Raj Pal was saying that the accused had murdered the deceased when Raj Pal had hardly any time to cook up a story in order to falsely implicate the accused. Blood-stained axe, Exhibit P/1/P/2 was found lying near the cot of the deceased. The report about the incident was lodged in the police station without any loss of time and the police had reached the spot at 4/5 A.M. Motive for the crime is provided by the suspicion that the accused had against the deceased about the latter's illicit relations with the accused's wife. The recovery of clothes. Exhibits, P/7 and P/8 (Pant and Kurta) which were taken off the body of the accused and were found to be blood-stained, coupled with the absence of the accused from his office after lunch on 27th September, 1971, and the next day, i.e., 28th September, 1971; the accused having been seen going in a bus towards village Mendhela Kalan by P. Ws. 7, 8 and P. W. 27 having seen the accused on the way towards the said village; his absence from his house as deposed by P. W. 1; and having got a handle to the axe, Exhibit P/1, fitted from Public Witness 2, are the various links in the chain of the prosecution evidence, the commulative effect of which negatives the innocence of the accused.
(54) In view of our discussion above, we are of the view that the charge of murdering the deceased against the accused is established beyond reasonable doubt. However, taking into consideration the fact that normally a son would not suspect his father of having illicit relations with his wife unless there may be some basis for it, we are of the opinion that the ends of justice will be fully met if 'the sentence of death passed against the accused is converted into that of life imprisionment.
(55) The Murder Reference is, thereforee, declined and the appeal is accepted to the extent that the sentence of the appellant is changed to that of imprisonment for life. The conviction under section 302 of the Indian Penal Code is, however, maintained.