P (PLP)

Statements of certain witnesses were transferred to the Sessions files under section 288 of the Criminal Procedure Code, those statements had become a substantive piece of evidence, and corroborated by the statement: under section 164 of the Criminal Procedure Code should not have been excluded from consideration at the Sessions trial. A I R 1934 Cal. 124 and A I R 1923 Mad. 20 referred to, JUDGMENT.‑

Baloo appellant was tried by the Sessions Judge, Rahimyarkhan under section 302 Indian Penal Code for causing the death of his real brother Bahawal Bakhsh, alias Laloo but was convicted under section 304 Part I and was sentenced to three years' rigorous imprisonment. This is an appeal through Jail, I have heard the Public Prosecutor. Babawalpur. The story is simple. A kid belonging to the deceased strayed into, the field of Isa (P. W. 12). Accused stopped the deceased and altercation took place between them. The accused thereupon gavel an axe blow on the abdomen of the deceased which proved fatal. The accused had made various statements at different occasions but he had admitted everywhere that the axe belonged to him and the injury was caused by him. He only differed in his statements as to the manner in which the injury was caused by him. The prosecution case was based on the dying declaration of the deceased, the evidence of the two witnesses Isa and Musa (P. W. 12 & 13) and on the statement, of the accused. The learned Sessions, Judge has accepted the evidence relating to the dying declaration, but has rejected the evidence of eye‑witnesses because they resiled from their statements under section 164 Criminal Procedure Code and before the Committing Magistrate. In those statements they had clearly stated that the wound which proved fatal was caused by the axe produced by the accused and by him. Before the Sessions judge they tried to mitigate the offence of the accused and stated that the injury' on the abdomen of the deceased was only accidental. On account of this discrepancy the evidence of the eye‑witness was discarded. The learned Sessions judge has not taken the, correct view of the law on this point. Statements of these witnesses were transferred to the Sessions files under section 288 of the Criminal Procedure Code, and those statements had become a substantive piece of evidence and hence corroborated by the statements under section 164 of the Criminal Procedure Code, Those statements should therefore have found favour with the learned Sessions Judge. I am supported in my view by Manar Ali and others v. Emperor 1934 Cal. p.

124. It was held there: "A statement by a witness recorded by a Magistrate under section 164 is admissible in evidence to corroborate the statement made by that witness before the Committing Magistrate from which statement the witness resiled in the Sessions Court, because the credibility of the statement in the Committing, Magistrate's Court which must be considered as substantive evidence before the Court of Session, must be tested, in exactly the same way as one made in the Sessions Court". A I R 1923 Mad. page 20 was followed. I therefore, disagree with the view of the learned Sessions judge to reject their evidence. Their evidence before the Committing Magistrate is sufficient to prove the guilt of the accused. The medical evidence 'also supports the case of the prosecution. Dr. Pir Bakhsh (P. W. 1) who conducted Post mortem examination on the dead body of the deceased found on the body an incised wound 10" x 1 " on the left side of the abdomen. As a result of injury the. muscles of the abdominal wall and the subjacent part, of the, peritoneum were completely cut, making way for the intestines which had protruded out of the wound. Marks of injury were also found on small intestines on the left side. The injury .according to the doctor was sufficient to cause death in the ordinary Course off nature. The statement of the accused when read carefully fortifies the case of the prosecution. I therefore uphold the conviction of the accused and dismiss the appeal. K.M.A./A. H. Appeal dismissed.