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CASE NO.:

Appeal (crl.) 825 of 2000

PETITIONER:

CHANDER PAL

Vs.

RESPONDENT:

THE STATE OF HARYANA

DATE OF JUDGMENT: 07/02/2002

BENCH:

N. Santosh Hegde & Doraiswamy Raju

JUDGMENT:

(With Crl.A. No.826/2000)

J U D G M E N T

SANTOSH HEGDE, J.

The appellants in these two criminal appeals are accused

Nos.1 and 2 in Sessions Case No.24/1993 on the file of the

learned Sessions Judge, Faridabad. They along with 3 other

persons, namely, Dharambir, Dharam Singh and Kewal Ram

were chargesheeted for an offence punishable under Sections

302, 324 read with Section 34 IPC by the Police Station NIT,

Faridabad, for having committed the murder of one Ravinder

Kumar on 1.8.1992 at about 10.30 a.m. The learned Sessions

Judge while acquitting 3 of the accused, who are not before us,

convicted Chander Pal, appellant in Crl. A. No.825/2000 under

Section 302, and Rajinder, appellant in Crl.A. No.826/2000

under Section 302 read with Section 34 IPC and sentenced

them to undergo RI for life and to pay a fine of Rs.500/- each in

default to undergo RI for 6 months. Appeal filed by these

convicted appellants and the appeal and revision filed against

the acquittal of some of the accused and for enhancement of

sentence to capital punishment came to be dismissed by the

High Court of Punjab & Haryana at Chandigarh vide its

judgment in Crl.A. Nos.458-DB & 469-DB of 1995.

This is against the said judgment and conviction imposed

on the appellants by the High Court confirming the conviction

and sentence imposed by the learned Sessions Judge, the

appellants are now before us in these appeals.

The prosecution case narrated in brief is as follows :

The appellants herein were known to deceased Ravinder

Kumar and on 31.7.1992 when they were playing the game of

Ludo at the shop of Kewal Ram, (accused No.5), an argument

ensued between the appellant Chander Pal and the deceased,

during the course of which it is alleged that the deceased

slapped Chander Pal. According to the prosecution, this

incident was witnessed by one Dolly alias Sanjiv who was

examined in the Sessions Court as PW-5 as also by PW-6

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Lajpat Rai. Being infuriated by the said affront of having been

slapped, it is contended by the prosecution that the appellants

herein along with the acquitted accused persons hatched a

conspiracy to do away with the deceased, in furtherance of

which it is stated that on 1.8.1992 at about 10.30 a.m., the

second appellant herein, namely, Rajinder went to the house of

the deceased and called him on the pretext of having to talk to

him. This was done in the presence of the brother of the

deceased, Bhim Sen who was examined before the trial court as

PW-1. The deceased who answered the request of Rajinder,

walked with him to a place which is about 60 yards away from

the house of the deceased, they were joined by the first

appellant Chander Pal and other accused persons who came

there on a scooter and a motor cycle and while the second

appellant Rajinder and other acquitted accused persons held the

deceased, the first appellant Chander Pal is alleged to have

stabbed the deceased, causing him 2 incised wounds on the

chest and abdomen and another incised wound on his thigh as

also a small abrasion caused by a blunt weapon used by one of

the acquitted accused. The prosecution further states that this

incident in question was noticed by PW-2 Ashok Kumar who

was the owner of the tea-stall in front of which the said incident

took place, and it is also stated that the said Ashok Kumar when

he tried to intervene in the fight, suffered a minor injury on the

posterior aspect of his left forearm. It is further stated that the

deceased was then taken to Escorts Medical Centre, Faridabad,

where on arrival he was declared dead by the doctor.

Thereafter, on getting information from the hospital authorities,

PW-11 Manmohan Singh, ASI, took charge of the

investigation and went to the hospital and on reaching there he

recorded a statement Ex. PA made by PW-1, Bhim Sen,

brother of the deceased. Based on the said statement

(complaint), a case was registered and inquest proceedings were

held by said PW-11. During the course of the said proceedings,

PW-11 is supposed to have inspected the place of occurrence

and lifted blood stained earth from there. In the meantime, the

dead body of the victim was sent for post mortem examination

which was conducted on the very same day by Dr. Amar Bajaj,

PW-9 at B.R. Hospital, Faridabad who, after examining the

wounds referred to hereinabove, opined that the death had

occurred due to the injuries to the vital organs leading to shock

and haemorrhage which was the ultimate cause of death. It is

further stated that PW-2 was medically examined by Dr. A K

Gupta, PW-3 of the hospital at Faridabad on 1.8.1992 and the

doctor then noted an injury in the shape of a reddish contusion

on the posterior aspect of the left forearm. The prosecution's

further case is that the appellants herein and others were

apprehended by PW-11 on 14.8.1992 and he also took into

custody a scooter from Dharam Singh and a motorcycle from

Dharambir, the acquitted accused. The further case of the

prosecution is that on interrogation on 17.8.1992, the first

appellant Chander Pal led them to the recovery of a knife Ex. P-

1 which according to the prosecution was used in the stabbing

of the deceased. It is further stated that an iron rod Ex. P-2 was

recovered at the instance of Rajinder, second appellant herein.

It may be relevant at this point of time to note that Dr. S.

Raina, PW-4, who first saw the deceased when he was brought

to the Escorts Medical Centre, Faridabad, had sent an

intimation to the jurisdictional Police in the form of a

communication in Ex. PE wherein it is seen that he had

recorded that the deceased was brought to the said hospital by

one Subhash Baweja, resident of 3-G/96, NIT, Faridabad. On

his statement, it was noted that the age of the deceased was 26

years and that the place of the incident was shown to be at

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Market No.3, Near Kalyanpur Jhuggi by a group of persons

while the deceased was taking tea. The name of the accused

was not mentioned. The doctor as per Ex. PE has also stated

that the age mentioned in the said Ex. PE was later corrected to

26 years on the information given by the relatives of the patient

who reported at the time of preparation of the card of the

patient.

In regard to the motive, the prosecution has relied on the

evidence of PW-5 & PW-6, while in regard to the incident of

1.8.1992, the prosecution has relied on the evidence of PW-1,

the brother of the deceased, and PW-2, Ashok Kumar, the

owner of the tea-stall who, according to them, along with

Mohan Lal had witnessed the incident in question. It may be

noted at this stage that neither Subhash Baweja who took the

deceased to the hospital nor Mohan Lal who was the other eye-

witness to the incident was examined by the prosecution. The

prosecution also relied on the evidence of recovery of the knife

as also the other weapons. The learned Sessions Judge after trial

and on consideration of the material on record, accepted the

evidence of PW-5 who had stated that he had witnessed the

altercation between the deceased on the one hand and the

appellants herein on 31.7.1992 in the vedio shop of A-5 when

the deceased allegedly slapped the appellant Chander Pal which

incident he reported to PW-1 on the very same day. Having

accepted the motive pointed out by the prosecution, the learned

Sessions Judge accepted the evidence of PWs.1 and 2 partially,

inasmuch as the evidence of PWs.1 and 2 was accepted in

regard to the appellants herein, but was rejected with reference

to the 3 acquitted accused persons. It came to the conclusion

that the evidence of these witnesses was reliable enough to base

a conviction as against these appellants even though same was

not acceptable in regard to other accused. It held that the non-

examination of Subhash Baweja and Mohan Lal did not in any

way affect the prosecution case, hence, found these two

appellants guilty and sentenced them as stated hereinabove.

In appeal, as already stated, the High Court concurred

with the findings of the Sessions Court and the appeals filed by

the appellants herein came to be dismissed.

In Crl. A. No.825/2000, Mr. Sushil Kumar, learned

senior counsel appearing for Chander Pal, contended that the

entire prosecution case, on the face of it is unacceptable, being

full of contradictions and improbabilities. According to the

learned counsel, the courts below seem to have given the

benefit of doubt to the prosecution rather than to the defence.

He contended that the approach of the learned Sessions Judge

in appreciating the evidence of eye-witnesses is so inconsistent

inasmuch as the learned Judge while rejecting the evidence of

PWs. 1 and 2 on certain factual foundations, seriously erred in

accepting the very same evidence on the very same factual

foundation in regard to the appellants. He also submitted that

the material contradictions pointed out by the defence have

been very casually rejected by the learned Sessions Judge who

also failed to draw adverse inference in regard to the non-

examination of at least two very material and independent

witnesses. He submitted that non-examination of Subhash

Baweja who had taken the victim to the hospital and had given

certain particulars of the place of the incident, shakes the very

foundation of the prosecution case and further he submits that

the place mentioned by Subhash Baweja to the doctor was an

entirely a different place than that shown in the prosecution

case. He submits that in the absence of any plausible

explanation both in regard to the contradictions found in the

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case of the prosecution as to the place of the incident as also the

reason for non-examination of this Subhash Baweja, the case of

the prosecution becomes unbelievable. Arguing further, he

contended that Mohan Lal is another person whose name has

come out in the course of the prosecution evidence to show that

he was also an eye-witness to the incident and the reason given

by the prosecution for his non-examination as "unnecessary"

gives rise to a suspicion that the prosecution was not prepared

to produce independent witnesses in this case. He also doubted

the timing of the complaint of PW-1 which is stated to be at

12.30 p.m. This doubt as to the recording of the complaint is

based on the fact that the F.I.R. had reached the jurisdictional

Magistrate only at 6 p.m. While the court was only 2-3 kms.

from the Police Station, this unexplained delay, according to

learned counsel, is fatal to the prosecution case. He also

expressed a doubt as to how PW-11, the investigating officer,

came to know of the incident because intimation from the

hospital had gone only to the police out post at the hospital and

the explanation of PW-11, that an unknown person telephoned

to him, cannot be believed because there was no telephone in

his Police Station. The learned counsel ridiculed the

explanation of PW-11 that he was informed of the crime in the

telephone of a shop nearby by pointing out how could a

stranger know the telephone number of that shop and the

arrangement PW-11 had with that shop. He submitted that the

evidence of PWs-1 and 5 are that of interested witness and not

worthy of acceptance on their own showing. He pointed out that

PW-5 had been suspended by his employer Escorts factory at

Faridabad on the ground that he had committed theft and that

there are such material contradictions and improvements in his

evidence which on the face of it, show that he is not a truthful

witness. In regard to PW-1, it is argued by learned counsel that

his evidence that he saw the incident from outside his house

itself shows that he is not a truthful witness inasmuch as it is

seen from the prosecution evidence itself that the place of

incident cannot be seen from the house of PW-1 or even on

immediately on coming into the street. That apart, it is also

pointed out that this witness, according to PW-2, came to the

place of incident only after the attack on deceased was over and

when the accused persons were fleeing from the place of

incident. It is also pointed out that this witness being the brother

of deceased is an interested witness, hence, courts below ought

not to have been relied upon to his evidence. In regard to PW-2,

learned counsel contends that assuming that PW-2 could have

been present at the place of the incident his evidence in regard

to the identity of the accused persons, could not have been

accepted because he did not know these accused persons and

there being no identification parade, it is not safe to rely upon

his sole testimony to convict the appellant. He also points out

that even though PW-2 stated that he helped to carry the

deceased who was bleeding profusely to the hospital, there were

no blood stains on his clothes which is highly improbable, and

so far as the injury suffered by him is concerned, apart from the

fact that this part of his evidence was not accepted by the trial

court, on the face of it such evidence is unbelievable and at

least unsafe to base a conviction. The learned counsel also

pointed out that, according to PW-2, A-1 was in police custody

from 2.8.1992 and he had seen the said accused in police

custody. Therefore, the Police had facilitated the identification

of this accused without any identification parade, hence the

identification of A-1 by PW-2 ought not to be accepted.

While Mr. U R Lalit, learned senior counsel appearing

for A-2, concurs with the arguments addressed by Mr. Sushil

Kumar on behalf of A-1 and he further supplemented it by

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contending that there are umpteen contradictions between the

evidence of PWs.1 and 2 rendering it unsafe to rely upon their

evidence to base a conviction. He also pointed out that while

other accused persons who have been attributed the same overt

acts of A-2 have been acquitted by disbelieving the prosecution

case in regard to them on the common evidence, he said that

there is no way by which the courts below could have accepted

the very same evidence in regard to the second appellant to

convict him.

In reply, Mr. Dhanda, learned counsel appearing for the

State, submitted that the very fact that the complaint in question

has named all the accused persons and had come into existence

as early as 12.30, barely an hour after the death of the deceased,

itself shows that the prosecution has come out with a clean

case. He further submitted that PWs.1, 2 and 5 do not have any

reason whatsoever to falsely implicate the appellants or other

accused and at least PW-2 not being an interested witness

whose presence at the place of the incident cannot be doubted,

has rendered a natural version of the incident which took place

on 1.8.1992 and there is no reason why his evidence cannot be

accepted. According to him, the contradictions, if any, relied

upon by the learned counsel for the appellants herein, are not

material contradictions so as to turn down the case of the

prosecution. Even otherwise, according to the learned counsel

for the State, on many material aspects the defence has not even

questioned the veracity of the prosecution case, he urged that

the defence evidence adduced by examining DW-2 cannot be

accepted because the documents relied upon by the defence are

not maintained in the normal course of business. He also

contended that the so-called telegram and petitions sent are all

concocted documents. He also urged that the appellants were

absconding for nearly 13 days which itself goes to show the

culpability of the accused.

We have heard learned counsel for the appellants. The

prosecution case was that on 31.7.1992 there was an altercation

between the deceased and the appellants herein while playing a

game of Ludo, this is based on the evidence of PWs. 5 and 6.

So far as PW-6 is concerned, for very good reasons the courts

below have not chosen to place any reliance on his evidence. It

is pointed out that the father of the deceased was a Police

official and PW-6 was also a Police official in the same Police

force, therefore, the investigating agency has gone out of the

way to make out a case against the appellants and other accused

persons to solve an undetected murder. This suggestion of the

defence finds support from the fact that prosecution has chosen

to examine PW-6 in support of its case. Coming now to the

evidence of PW-5 in regard to the incident on 31.7.1992, it is to

be seen that this witness is a neighbour of the deceased, and

was known to the family of the deceased to that extent this

witness is an interested witness. His presence at the time of the

incident was not corroborated by any other independent source.

This witness states that during the course of scuffle on

31.7.1992, he also sustained an injury while trying to intervene

in the fight, which injury was caused by the second appellant

herein. But in the cross-examination, he states that he did not go

to the doctor to get the injury treated and it is only when the

Police came to record his statement they took him to the doctor

and got the injury treated. However, it is seen from his evidence

that he did not state before the Police that the injury on him was

inflicted by Rajinder though he improved his statement before

the court and stated so in his examination-in-chief. That apart,

in the examination in chief, he stated that the incident on

31.7.1992 took place at about 6.30 p.m. while in his statement

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before the Police under Section 161 Cr.P.C., he had mentioned

the time as 4 p.m. These contradictions in his statement before

the court when compared with the previous statement and

coupled with the fact that he is admittedly a neighbour and

friend of the deceased and his brother, makes us feel that it is

not safe to rely upon his evidence to accept the prosecution case

that the incident in question on 31.7.1992 had taken place and

that the same was witnessed by this witness.

Reverting back to the prosecution case in regard to the

incident of 1.8.1992, it is to be noticed that the same is based on

the evidence of PWs.1 and 2. We will first consider the

evidence of PW-1 who is none other than the brother of the

deceased. It is on record that he hails from an affluent family of

the area and he states that on 1.8.1992 at about 10 a.m. the

second accused herein came to his house and took the deceased

with a view to have a talk with him. He further states after

about 10 minutes, he heard the shrieks for help from his brother

and when he rushed out of the house, he saw that some of the

accused including the second appellant herein had caught hold

of his brother and the first appellant was inflicting blows with a

knife. He specifically states in his examination-in-chief that the

blows were inflicted on the deceased within his view. This he

says in respect of his position as at that point of time he was in

front of his house. The prosecution has produced a Memo and a

sketch prepared by PW-7 which indicates that from the place of

PW-1's residence even from outside the house, it is not possible

to see the place of incident because there is a bend in the road

which blocks the vision. Therefore, it is most unlikely that PW-

2 could have actually seen the attack on his brother. This

inference of ours is also supported by the fact that PW-2 in his

evidence specifically states that PW-1 arrived at the place of the

incident when the accused persons started fleeing from the

scene of occurrence. It is also to be noted at this point that

though it is the prosecution case that PW-1 accompanied the

deceased to the hospital, in the records of the hospital, it is

nowhere noted that he did so. On the contrary, the contents of

Ex. PE show that it was Subhash Baweja who brought him to

the hospital and who could give the particulars of the deceased

wherein it is stated that the deceased was of 29 years. Notings

in Ex. PE and the evidence of PW-3, the doctor show that

subsequently at the instance of a relative, this age was changed

from 29 to 26 years. This was clearly at a later point of time, as

stated by the doctor. If actually PW-1 had accompanied the

deceased to the hospital then it was reasonable to believe that

he would have given the particulars of the deceased to the

doctor himself, and that if he had actually noticed the incident

in question, the actual place as put forth by the prosecution in

their case would have been mentioned in Ex. PE and not the

place as given by Subhash Baweja. And also the fact that the

deceased's age was wrongly mentioned in the first instance and

it was later on corrected from 29 to 26 years which the doctor

says was on the information given by the relatives of the patient

reported at the time of preparation of the card indicates that

when the deceased was brought to the hospital, his relatives

including PW-1 were not present and it was Subhash Baweja

who took the deceased to the hospital and who described the

incident and place of incident to the doctor which was recorded

as Ex. PE. In this background, the non-examination of Subhash

Baweja throws considerable doubt on this part of the

prosecution case as to where exactly the incident in question

took place and why Subhash Baweja whose presence was not

mentioned by PWs. 1 and 2 at the place of the incident or in the

hospital came to pick up the deceased and bring him to the

hospital and also give a different version as to the place of

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incident then the one put forth by the prosecution. PW-11 who

was the investigating officer in his evidence before the court

has given no explanation whatsoever as to why Subhash

Baweja was not examined even though his complete address

was mentioned in Ex. PE recorded by the doctor. This lapse on

the part of the prosecution also gives rise to a doubt as to the

fact whether PWs.1 and 2 did at all witness the incident in

question or the same actually took place near the tea stall of

PW-2. At this point, it is also relevant to notice the fact that

according to the evidence of PW-1, there was another eye-

witness to the incident, namely, Mohan Lal who according to

this witness, witnessed the attack on the deceased and also

accompanied the deceased to the hospital and that Mohan Lal

was also present in the hospital when the Police came there.

This witness is also not examined and from the records, we find

that he was given up as "unnecessary". We find it extremely

difficult to accept this explanation and non-examination of both

Subhash Baweja and Mohan Lal, in our opinion further throws

very strong doubt on the prosecution case. As a matter of fact

Mohan Lal played a very important role as a Panch witness in

the seizure of the blood stained earth from a place where the

deceased was attacked, and according to the Panchnama of

seizure, the seal put on the package in which the earth was

packed, was given to the possession of Mohan Lal. Thus

Mohan Lal seems to have played an important role even in the

investigation and still the prosecution has failed to examine this

witness. There is one more reason why we are hesitant to accept

the evidence of PW-1. That is because of the fact that PW-1

was not familiar with the first appellant Chander Pal and the

defence has suggested to this witness that he could not have

identified A-1 because he was really not known to him. It is

also suggested that this witness while mentioning the names of

other accused persons in the complaint, this witness has

mentioned either the name of their fathers or at least their caste

and place of residence while in regard to the appellant Chander

Pal he has neither mentioned the name of his father nor the

place of the incident. The explanation given by PW-1 to the

suggestion made in this regard to him by the defence is that he

used to visit the Kelvinator factory where A-1 was working for

the purpose of procuring business from the factory and during

those visits he had seen Chander Pal, hence he was able to

identify the accused. We notice that his visit to Kelvinator

factory on previous occasions is not corroborated by any other

evidence; be it oral or documentary. It has also come in

evidence that the said factory engages about 5,000 to 7,000

workmen and this witness has not given any special reason why

he specifically noticed Chander Pal so as to remember his name

and identify him at the time of the assault out of those many

employees of the Kelvinator factory. In the background of the

interestedness of this witness, and the material contradiction in

his evidence even this suggestion of his not knowing Chander

Pal becomes relevant. Therefore, we find it difficult to place

reliance on the evidence of this witness.

This brings us to the consideration of the other eye-

witness PW-2, Ashok Kumar. This witness of course is stated

to be a person owning a tea-stall where according to the

prosecution the incident in question took place. He stated in his

examination in chief that on 1.8.1992 at about 10.30 a.m. while

he was proceeding to his tea-stall, he saw the deceased and

second appellant Rajinder talking to each other and at that time

the accused persons came on a scooter and a motorcycle and all

4 of them pounced on the deceased while second appellant

caught hold of the deceased. The first appellant inflicted blows

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on him with a knife. He stated that he tried to rescue the

deceased but one of the acquitted accused Dharambir attacked

on his left forearm with an iron rod. He further stated that on

hearing the cries of the deceased, his brother PW-1 arrived and

the said incident was witnessed by Mohan Lal also. He stated

that after the accused persons left the place of occurrence, the

deceased was removed to Escorts Hospital at Faridabad, where

he was declared brought dead and his statement was recorded

both in the hospital as well as at the place of occurrence. He

stated that Mohan Lal attested the Memo Ex. PA which was the

Panchnama prepared by the Thanedar for having collected the

blood stained earth. This witness has admitted that there are

about 1,000 people residing in the Jhuggis near the place of

incident and that the house of PW-1 was about 60 yards away

from the place of the incident. He stated that the attack on the

deceased lasted for about 1 or 2 minutes. He specifically stated

in his evidence that when PW-1 arrived at the place of incident,

the accused persons were in the process of fleeing after

inflicting injuries on the deceased. This shows that there is

contradiction between the evidence of this witness and that of

PW-1 who in his evidence has stated that he saw the incident in

question and identified the accused who assaulted the deceased.

This witness also specifically stated that he did not know

Chander Pal before the incident in question. Therefore, there

being no identification parade, it becomes rather difficult to

accept the evidence of this witness when he identifies Chander

Pal, appellant herein, as one of the assailants. It is, however,

very interesting to note that this witness in course of his

evidence given before the court had stated that he had seen

Chander Pal, the accused in Police custody at the Police Station

on 2.8.1992. If this evidence is correct then it throws a very

serious doubt on the prosecution case that if actually the first

appellant was arrested on 1.8.1992 as suggested by the defence

to PW-11 and as stated by PW-2 then it shows that till

14.8.1992, the day when he was shown to be arrested by Police,

the prosecution had no case against him and his arrest on

1.8.1992 also facilitated his identification by the prosecution

witness. In this background, if we were to examine the evidence

of PW-2, we get an impression that he is a person who seems to

be waiting to help the prosecution in this case beyond the realm

of truth. There is another unanswered question in the

prosecution case i.e. why no prosecution witness spoken about

the role played by Subhash Baweja. It is to be noted that none

of the prosecution witnesses including PW-2 speaks about the

presence of Subhash Baweja either at the place of incident or in

the hospital. This omission to mention the name of Subhash

Baweja by witnesses is very ominous. The absence of

explanation in this regard throws a cloud of suspicion on the

evidence of PW-2 as well as PWs.1 and 11. That apart, the

supposed injury suffered by PW-2 as having been caused by

one of the accused Dharambir has been totally disbelieved by

the Sessions Court as also the High Court. To this extent, it is

not even accepted by the courts below.

With all these contradictions and strong doubts created in

our mind with reference to certain facts which are referred by

us hereinabove, we think it rather difficult to place reliance on

the evidence of PWs.1 and 2 in the background of the fact of

the suggestion made by the defence that the murder in question

was a blind one without any witness and only because the

deceased was the son of a former police official, the

investigating officer has implicated these accused persons with

extraordinary zeal of obtaining a conviction. In this regard, we

will have to refer to certain peculiar facts which are found on

record. As per the evidence of PW-1, the accused persons were

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arrested on 14.8.1992. This is spoken to by PW-11,

investigating officer. Though according to the prosecution the

accused persons were all known to them and knew their places

of residence and work, no explanation is given why they could

not be arrested earlier. The IO in his examination before the

court has not given any explanation as to what efforts he made

to trace out these accused persons. Nowhere in his evidence he

states whether these accused persons were absconding. He

merely states that the accused persons were arrested by him on

14.8.1992. He of course denies the suggestion that the first

appellant was nabbed on 2.8.1992 itself but then there is

sufficient material on record to show that the arrest of this

accused person, as stated by PW-11 cannot be believed. There

is a series of telegrams which were sent by the brother-in-law of

the first appellant to the Chief Minister of Haryana, Deputy

Commissioner of Faridabad, Chief Justice of Punjab & Haryana

High Court, Inspector-General of Haryana as also an

application to the C.J.M., Faridabad, which were made on

various dates before this accused was supposed to have been

arrested by the Police i.e. on 14.8.1992. In these

communications, it was specifically averred that the appellant

Chander Pal was arrested by the Police on 2.8.1992 and had

been kept in illegal detention. The prosecution pleads that these

telegrams were sent deliberately to create evidence to malign

the prosecution. Assuming that this explanation of the

prosecution is plausible, but then we cannot brush aside a

positive statement made by PW-2 to which a brief reference has

already been made by us earlier in this judgment. As stated

above, this witness PW-2, Ashok Kumar, has stated in his

cross-examination thus : "I had seen Chander Pal accused in the

custody of Police at the premises of Police Station. He was seen

in the custody of Police by me on 2.8.1992. His photographs

were not taken by the Police in my presence." This evidence of

PW-2 is neither clarified in the re-examination nor any

explanation has been given by PW-11 or any other prosecution

witness. That being so, we will have to accept that it is a fact

and that this accused was as a matter of fact arrested by the

Police on 2.8.1992 itself. This is somewhat corroborated by the

defence evidence wherein the timesheet of Kelvinator factory

reflecting the entry and exit of first accused to the said factory

in the course of his work was produced through DW-1 and the

said timesheets are kept on record by the Sessions Court. A

perusal of this timesheet shows that this accused had marked

his presence in the factory in the forenoon of 31.7.1992. DW-1

has stated in his evidence that the accused was to have joined

duty again on 1.8.1992 in the afternoon but since then he was

marked absent because he had not reported for duty. This fits in

with the theory of the defence that this accused person was

arrested by the Police on 1.8.1992, and was seen by PW-2 in

their custody. In our opinion if as a matter of fact the first

accused was arrested and was kept in custody from 2.8.1992, it

becomes abundantly clear how PWs.1 and 2 so easily identified

the first appellant with whom they were not familiar till then.

We will now briefly examine the approach of the learned

Sessions Judge in regard to the prosecution evidence as pointed

out to us by learned counsel for the appellants. While

discussing the evidence of the prosecution with reference to the

acquitted accused, this is how learned Judge considered the

prosecution evidence :

"However, the case of prosecution against

Dharambir and Dharam Singh was of course

symptomatic of deficiencies owing to failure on its

(prosecution) part to lead positive and concrete

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evidence on the point of identity of these two

assailants. In the first information report, Ex. PA,

Dharam Singh accused was not named as assailant.

The name of that assailant was described therein as

Biru. It was not at all the case of prosecution that

Dharam Singh accused was also addressed by the

name of Biru. Both of them were described therein

as belonging to Thakur community and residents

of Asaoti. However, that version has convincingly

been demonstrated on record to be factually

incorrect. On the own telling of Bhim Sen (PW 1),

he had not mentioned the father's name of either

that person named Biru or other accused

Dharambir. In his deposition in Court, he (PW 1)

had disowned the fact that he had described both

the assailants as belonging to Thakur community

and residents of village Aasoti but he was duly

confronted with that statement, Ex. PA, where they

were described as such. Admittedly, he had never

visited the house of either Dharam Singh or

Dharambir accused and had also no business

dealings with them. He was also frank enough to

concede that he had no dealings of any kind with

Dharambir-accused. In his statement before the

Court, he has no doubt asserted that he had been

seeing Dharambir playing Ludo in the company of

Chander Pal and Ravinder but had to admit that he

had not made any such statement before the police.

No evidenciary value could, thus, be attached to

the vague and bald statement made by him that he

knew both these accused from before. Had that

been so, there was no question of his having made

an apparent mistake in describing their names,

parentage, community or place of residence."

If the learned Sessions Judge was justified in rejecting

the prosecution evidence based on the reasoning found in the

paragraph extracted hereinabove, we fail to understand how the

very same evidence could be accepted in regard to the

appellants herein. Every one of the reasoning mentioned in the

above paragraph of the judgment of learned Sessions Judge, if

applied on the same yardstick to the prosecution evidence in

regard to the appellants herein, we do not find any symptomatic

differences in regard to applying the said evidence to the

appellants herein and rejecting the same with reference to the

acquitted accused. In our opinion, on the parity of the reasoning

adopted by learned Sessions Judge, the case of the appellants

could not have been distinguished from those of the acquitted

accused persons. It is this fundamental error in the judgment of

learned Sessions Judge which has denied the appellants herein

the benefit of doubt which should have been made available to

the appellants. We need not dwell upon the confirming

judgment of the High Court in this regard very much because in

our opinion it has merely accepted and confirmed the judgment

of learned Sessions Judge without noticing the material

discrepancies in the evidence of PWs.1 and 2, without noticing

the effect of non-examination of Subhash Baweja and Mohan

Lal and without taking into consideration the effect of illegal

detention or arrest of first appellant on 2.8.1992 itself or the

reasoning of the learned Sessions Judge while rejecting the

prosecution case in regard to the acquitted accused.

For the reasons stated above, we on a re-appreciation of

the entire material on record and taking into consideration the

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arguments addressed on behalf of the parties, are satisfied that

the prosecution has failed to prove beyond all reasonable doubt

that these appellants are the assailants of deceased Ravinder and

are responsible for his murder. Therefore, we allow these

appeals, set aside the judgment and conviction imposed on

them by the Sessions Court as well as by the High Court and

acquit the accused persons. They shall be set at liberty

forthwith, if not required in any other case.

...................................J.

(N Santosh Hegde)

................................J.

February 7, 2002. (Doraiswamy Raju)