Sri Ram vs State
2011 Latest Caselaw 3833 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of Hearing & Decision: 9th August, 2011

+        CRL.A 13/1998

         SRI RAM                                                 ..... Petitioner
                                Through       Mr.Rajesh Mahajan, Amicus Curiae.
                       versus


         STATE.                                           ..... Respondent
                                Through      Mr.Sanjay Lau, APP for the State.

         CORAM:
         HON'BLE MR. JUSTICE S. RAVINDRA BHAT
         HON'BLE MR. JUSTICE G.P.MITTAL

         1. Whether reporters of local papers may be
            allowed to see the Order?                                     Yes
         2. To be referred to the Reporter or not?                        Yes
         3. Whether the Order should be reported
            in the Digest?                                                Yes

                                    JUDGMENT

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

1. The present petition is directed against judgment and order dated 27.08.1997, of the learned Additional Sessions Judge, passed in S.C. No.120/1997. By the impugned judgment the appellant Sri Ram was convicted for offence committed under Section 302 IPC and sentenced to undergo life imprisonment besides fine. This Court had during the pendency of appeal granted suspension of sentence subject to conditions. When the appeal came up for hearing and was taken up neither the appellant nor his counsel were present. Subsequently, pursuant to the proceedings under Section 82 Cr.P.C. the appellant was declared P.O. In order to prosecute the present proceedings the Court appointed Amicus Curiae for assistance in the present case.

2. The prosecution story in the Trial Court was that on the night intervening 15/16.12.1993, at about 10:00 PM in an incident-apparently the origin of which was not witnessed by anyone, the four accused set upon Tej Bhan and beat him severely. Information about this was received through DD report No.37 (Ex.PW-7/A) P.S. R.K.Puram. The rukka and statement of PW-5 Samar Bahadur, Tej Bhan's brother was recorded. He had taken Tej Bhan to the Safdarjung Hospital in a seriously injured condition. Samar Bahadur stated that around 10:00 PM that night when he took out his child from the jhuggi where he was living, he witnessed four accused i.e. Sri Ram, Dharup Raj, Moti Lal and Mahesh mercilessly beating Tej Bhan. Samar Bahadur (hereinafter referred as PW-5) also mentioned that Sri Ram had a sword, while attacking Tej Bhan. The prosecution story initially was that an oral dying declaration was given by Tej Bhan. After investigation-during the course of which the police recorded the statement of other witnesses including PW-4 Raj Kumar, another eye-witness to the incident. All the four accused were arrested and charged with having committed the offence punishable under Section 302/34 IPC. They entered plea of not guilty and claimed trial. During the course of trial the prosecution examined 15 witnesses. After conclusion of evidence and after recording of the statement of accused under Section 313 Cr.P.C., the four defence witnesses were examined. The Trial Court after considering these materials concluded that the appellant alone was guilty of the offence under Section 302 IPC, and that the prosecution could prove the offence punishable under Section 323/34 as against the other accused. They had been in custody for more than a year, the Trial Court deemed it appropriate to confine the sentence to the period undergone by them.

3. It is argued by the learned Amicus Mr. Rajesh Mahajan that the Trial Court fell into error in not adopting the same approach as it did, in the case of the other three accused, in respect of the appellant Sri Ram. It was submitted that PW-5 in the initial statement recorded during the investigation did not ascribe a specific role vis-à-vis the accused. He also did not mention the use of any weapon by them. However, during the course of his testimony in Court, he improved on his initial statement and sought to implicate Mahesh with the role of having used a sword besides specifying the role played

by the other two accused. The learned Amicus pointed out to some parts of the trial Court judgment which indicated that the witness had exaggerated the role of the accused and therefore his testimony could not be relied upon. It was submitted that having arrived at such a conclusion, the same logic ought to have been applied in respect of the appellant Sri Ram. Learned counsel in this context submitted that the Court while evaluating the evidence presented before it in a criminal trial has to necessarily separate grain from chaff and in that process if it finds that a witness is unreliable, it should not accord any credibility to its testimony, instead of discarding it partly and accepting it in the other part. He relied upon the ruling in Balaka Singh Vs. State of Punjab, AIR 1975 SC 1962, particularly the following extract:-

"8. The suggestion of the appellants is that they were falsely implicated because the prosecution could not succeed in convicting Balaka Singh for the murder of Gurnam Singh in the previous murder case. It was to wreak fresh vengeance on the accused that they had been falsely implicated in the present case. It is true that there are as many as eight witnesses who are alleged to have seen the occurrence and they have given a parrot like version of the entire case regarding the assault on the deceased by the various accused persons. All these witnesses have with one voice and with complete unanimity implicated even the four accused persons, acquitted by the High Court, equally with the appellants making absolutely no distinction between one and the other. A perusal of the evidence of the prosecution witnesses would show that the prosecution case against the appellants and the four accused is so inextricably mixed up that it is not possible to sever one from the other. It is true that as laid down by this Court in Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 = (1954 Crl LJ 230) and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and background against which they are made then this principle will not apply. We are satisfied that in the facts of the present case, having regard to the partisan and interested evidence of the prosecution witnesses who can implicate the appellants and the four accused equally with regard to the assault on the deceased it is not possible to reject the prosecution case with respect to the four accused and accept it with respect to the other five

appellants. If all the witnesses could in one breath implicate the four accused who appear to be innocent then one cannot vouchsafe for the fact that even the acts attributed to Balaka Singh, Joginder Singh, Pritam Singh, Darbara Singh and Jarnail Singh may have been conveniently made to suit the needs of the prosecution case having regard to the animus which the witnesses as also Banta Singh bore against the appellants. In these circumstances, therefore, we are satisfied that in view of the finding of the High Court that the F.I.R. was a belated document having come into existence much later than the time it is said to have been recorded and which adds the names of the four accused against whom the prosecution case is absolutely identical with the appellants, the case of the appellants cannot at all be distinguished from that of the four accused in any respect. If the case against the four accused fails, then the entire prosecution will have to be discarded and it will not be possible for this Court to make out a new case to convict the appellants as has been done by the High Court."

4. It was next argued that PW-5 did not ascribe any role to the accused. If these two statements made in Court were false, it is submitted by the Amicus that appellant Sri Ram was also entitled to the same benefit of doubt which was extended to the other accused. It was next argued that the evidence presented in this case, did not reveal that there was some quarrel between the accused and the deceased. The defence had placed some material on record about the previous enmity in relation to the property dispute in the village. If these were kept in mind while considering the suddenness of the quarrel, learned Amicus submitted that the existence of a single injury, spoken by PW-8, did not at best make out a case for conviction under Section 304-II IPC as was recorded in the impugned judgment. Learned counsel submitted that if indeed the appellant had used this word in the manner spoken to by PW-5 and corroborated by PW-4, there would have been more injuries on the deceased than were actually found. It was emphasized here that the Trial Court having disbelieved the prosecution version about the nature of the attack and its severity as far as the other accused are concerned ought to have directed its mind to the existence of the single injury which indicated that attack was proceeded by some kind of quarrel. Having regard to the submission of learned Amicus even if the facts are held to be proved, the Court should convert the conviction from the one recorded under Section 302 IPC to the one under Section 304-II IPC.

5. It is evident from the above discussion that the incident occurred on the intervening night of 15-16.12.1993 and was witnessed by PW-4 and PW-5. In fact PW-5 the brother of the deceased reported the incident to the police when his statement was recorded i.e. after Tej Bhan was taken to the hospital. Both PW-4 and PW-5 are consistent about the nature of the attack and the role played by the appellant Sri Ram. Both maintained - in the statement under Section 161 Cr.P.C. that Sri Ram used a sword and participated in the attack upon the deceased Tej Bhan. It is only PW-5 who sought to improve upon the previous statement by deposing before the Court that other accused (who were eventually acquitted by the Trial Court in the impugned judgment) had also played a specific role. This version, however, was not stated by him previously in the police statement recorded under Section 161 Cr.P.C. PW-4 corroborated the version of PW-5 in all material particulars vis-à-vis role played by the appellant Sri Ram. The Court naturally disbelieved the prosecution as regards specific roles assigned to the other accused, including that of Mahesh who too is alleged to use the sword. The Trial Court in the impugned judgment observed in this context as follows:-

"The evidence in court of the two witnesses shows that they have exaggerated the version which they had given to the police by FIR Ex.PW-5/A and the statement Ext.PW-4/C. The medical evidence by Dr.Bhatia and the post mortem examination by Dr.Arvind, negatives what has been exaggerated by them in the court. Dr.Bhatia did not notice any injury on the legs or foot in his report Ext.PW-2/A. Dr.Arvind too in the post mortem report Ext.PW-8/A did not notice any injuries on the legs of the deceased which were appeared. In the absence of any injuries on the legs I find that as far as the version of holding of arms by 3 accused, namely, Moti, Mahesh and Dharup Raj are concerned, the witnesses have exaggerated their version. To that extent their testimonies are rejected. The FIR, statement Ext.PW-4/A and also the deposition before the court clearly leads to the inference that the accused were beating Tej Bhan and thereafter, suddenly accused Sri Ram brought the sword and gave blow of the same on the head of Tej Bhan which proved to be fatal. This part of evidence, that Sri Ram gave the fatal blow on the person of the deceased Tej Bhan is corroborated by the statement of Dr.Bhatia, the MLC Ext. PW-2/A as well as the post mortem examination conducted by Dr.Arvind and his report Ext. PW-8/A. To this extent that all the accused were quarrelling with the deceased and Sh.Sri Ram accused gave blow by grass cutter iron rod, on the head of the deceased Tej Bhan, the

evidence cannot be rejected. The quarrelling and beating by the remaining accused is supported by the FIR which was made immediately after the crime. I find no reason, to reject the testimonies of PW-4 Raj Kumar and PW-5 Samar Bahadur on this aspect of the matter."

6. Learned Amicus sought to persuade us by submitting that the logic which prevails upon the Trial Court to acquit the other accused applies with equal force to the present appellant. Although at the superficial level this statement is attractive and for this purpose reliance was placed upon the decision reported as Balaka Singh (supra). On a careful consideration of the evidence we are not inclined to accept the same. No doubt the witness i.e. material witness PW-5 sought to improve on his previous statement in Court as opposed to the statement made earlier during the investigation. In the Court he added certain new elements specially assigning specific roles to the other accused and also stating that one of them Mahesh had used the sword. The submission that Court should separate the grain from the chaff - drawing inspiration from the ruling in Balaka Singh is no doubt true but in the circumstances, we are of the opinion of what the Trial Court did in this case. The reasoning of the Trial Court would indicate that the improvements sought to be made during the testimony of PW-5 were disbelieved. It may be added that the appellant's conviction here is not based merely on the testimony of PW- 5 but also on the deposition of another eye-witness PW-4. He was consistent as regards the role played by the present appellant i.e. his being part of the attack and using sword. Moreover, there are certain objective materials which corroborate the prosecution version as the appellant's role. The medial evidence in the form of testimony of PW-8 as well as the post-mortem report Ex.PW-8/A reveals that there was only one fatal injury inflicted on the head. The injury was described by PW-8 in the following terms:-

"Injury No.I- Incised wound with clear cut margins with 9 stitches transversely placed on the skull top in partial region. It was measured 111 cm long 1 cm wide cut fracture of underneath partial bones. The left lateral end of incised wound was six c above the left penne. The middle end was crossing the middle to right penne. The midpoint of the wound was 18 cm behind the eye brows of left side. The margins of the wound were clear cut and abraded.

7. Now if this objective material is concerned, along with the deposition of PW-8, who further deposed that the same could have been inflicted with the sword seized during the investigation and produced as Ex.P-1. The prosecution version is not only plausible but the only explanation for the death of Tej Bhan. The second circumstance is that the recovery of sword itself, in respect of which no argument has been made.

8. As far as the last submission made by the Amicus to convert the conviction from the offence under Section 302 to 304-II IPC is concerned, we are afraid that such a cross is not permissible. Although the Court can infer that there was suddenness as to the attack, that circumstance is insufficient to warrant a finding that it was preceded by a sudden quarrel or that it was the result of something which took place between the deceased and the appellant at the spur of the moment. Moreover, the use of the weapon and the infliction of the injury also preclude the Court from drawing a conclusion that the intention of the assailant was not to cause death but only to cause injury as would have resulted in a natural course in the death of Tej Bhan. For these reasons we reject the second submission of the learned Amicus.

9. In view of the above, we are of the opinion that the prosecution established the charge of murder against the appellant Sri Ram. We do not find an infirmity with the findings and conviction recorded by the Trial Court in the impugned judgment. The appeal is, therefore, dismissed.

S. RAVINDRA BHAT, J.

G. P. MITTAL, J.

AUGUST 09, 2011 mr