SRI RAM Vs. STATE

JUDGEMENT

(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 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--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:-