Holding

The prosecution failed to prove the appellants' guilt beyond reasonable doubt, so their convictions were unjustified.

Summary

The case concerned the murder of Ravinder Kumar on 1 August 1992. The prosecution alleged that Chander Pal (appellant‑1) and Rajinder (appellant‑2) stabbed the deceased, relying primarily on the testimony of the victim's brother (PW‑1) and a tea‑stall owner (PW‑2), while other key witnesses such as the person who took the victim to the hospital (Subhash Baweja) and a Panch witness (Mohan Lal) were not examined. The trial court convicted the two appellants under Sections 302 and 34 of the IPC, acquitting the other accused; the High Court affirmed the conviction. On appeal, the Supreme Court observed material contradictions in the statements of PW‑1, PW‑2 and other witnesses, the absence of an identification parade, and the fact that the accused had been in police custody at the time of identification, rendering the prosecution evidence unreliable. The Court held that the prosecution had failed to prove guilt beyond reasonable doubt and that the benefit of doubt must be given to the appellants. Consequently, the convictions were set aside and the appellants were acquitted.

Issues considered

The prosecution failed to prove the guilt of the appellants beyond reasonable doubt given contradictions and non‑examination of material witnesses.
Whether a conviction can stand without an identification parade and when identification is derived from police custody.
Whether the benefit of doubt should be extended where the prosecution evidence is unreliable.
Whether the reasoning applied to acquit other accused should be applied uniformly to the convicted appellants.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Penal Code, 1860s. 302, s. 324, s. 34

Subjects

murderIPC Section 302IPC Section 34reasonable doubtidentification paradewitness examinationbenefit of doubtcriminal appealacquittal

Judgment

A CHANDER PAL
v.
THE STATE OF HARYANh
..
FEBRUARY 7, 2002

B [N. SANTOSH HEGDE AND DORAISWAMY RAJU, JJ.]

Penal Code, 1860:

Section 302 rlw 34-Murder-Prosecution of five accused-Non- ..
C examination of independent witnesses .Contradictory statement of PWs· -
Failure to hold identification parade-Trial court convicted the accused
appellants and acquitted other accused on the same set of evidence-
Conviction confirmed by High Court- --On appeal-Held, conviction
unjustified-Benefit of doubt should be given to the appellants-accused,
D since prosecution fai/eC: to prove its case beyond reasonable doubt.

Appellants along with three others were prosecuted for committing
murder. As per the prosecution, murder incident was the result of an incident
of altercation between the deceased and the accused. PW-5, a neighbour and
friend of the deceased and PW-6, a colleague of deceased's father were the
E witnesses to the altercation incident. The murder incident was witnessed by
PW-I, brother of the deceased and PW-2. One 'M', another eyewitness to the
murder who had also played important role in investigation of the case and
One 'S' who had taken the deceased to the hospital, were not examined. No
identification parade was held. Defence suggested that since father of the
deceased was a police official, investigating agency had gone out of the way to
F make out a cast against the appellants and other accused to solve an undetected
crime. It also suggested to PW-I that he could not have identified Al because
he was not known to him, and that he had not mentioned his particulars in
the complaint while in respect of other accused he had done so. To the
suggestion, PW-1 had replied that he had seen Al in one of his visits to the
G factory where Al was employed.

Sessions Judge convicted the appellant-Al u/s 302 IPC and appellant-
A2 u/s 302 r/w Section 34 IPC, and acquitted the rest of the accused partly
relying on the evidence of PWs 1 and 2. On appeal High Court confirmed the
judgment of the trial court.
H 872
> CHANDER PAL v. ST A TE OF HAR YANA 873
In appeal to this Court, appellants contended that in view of absence of A
explanation with regard to material contradictions in the prosecution case
and with regard to failure in examination of'S' and 'M' prosecution case was
unacceptable; and that the case of the appellants could not have been
distinguished from those of the other accused on the set of the same evidence
and that the Sessions Court wrongly gave benefit to the prosecution.
B
Allowing the appeals, the Court

HELD: I. Prosecution has failed to prove beyond all reasonable doubt
that these appellants were the assailants of deceased and were responsible
for murder of the deceased. (887-E]
c
2. On the parity of the reasoning adopted by the 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
Sessions Judge which has denied the appellants herein the benefit of doubt
which should have been made available to the appellants. [887-B]
D
3. With all these contradictions and strong doubts with reference to
• certain facts, the evidence of PWs 1 and 2 cannot be relied on, in the
background 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 officia~, the investigating officer has implicated these E
accused persons with extraordinary zeal of obtaining a conviction. [884-GI

4. ln the background of the interestedness of PW-I, and the material
contradiction in his evidence the suggestion of his not knowing A-1 becomes
relevant. Therefore, evidence of PW-1 cannot be relied on. The explanation
given by PW-1 to the suggestion made in this regard to him by the defence F
that he used to visit the Kelvinator factory where A-I was working for the
purpose of procuring business from the factory and during those visits he
had seen A-I, hence he was able to identify the accused is not satisfactory.
The visit of PW-1 to Kelvinator factory on previous occasions is not
corroborated by any other evidence; be it oral or documentary. It had also come G
in evidence that the said factory engages about 5,000 to 7,000 workmen and
this witness had not given any special reason why he specifically noticed A-
l so as to remember his name and identify him at the time of the assault out
of them.any employees of the Kelvinator factory. (883-8-Cj

5. If as a matter of fact the first accused was arrested and was kept in H
874 SUPREME COURT REPORTS [2002] I S.C.R.

A custody from 2.8.1992, it becomes abundantly clear as to how PWs I and 2
so easily identified the first appellant with whom they were not familiar till
then. [885-H)

6. Non-examination of both 'S' and 'M' throws very strong doubt on the
prosecution case. As a matter of fact 'M' played a very important role as a
B 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 'M'.
Thus 'M' seems to have played an important role even in the investigation
and still the prosecution has failed to examine this witness. [882-F)

c 7. In view of the contradiction in the statements of PW-5 and his being
friend and neighbour of the deceased, it is not safe to rely upon his evidence
to accept the prosecution case that the incident of altercation had taken place
and that the same was witnessed by this witness. Courts below have rightly
not chosen to place any reliance on evidence of PW-6 in view of the suggestion
D that the father of the deceased and PW-6 being the police official in the same
police force, investigating agency had gone out of the way to make out a case
against the appellants and other accused persons to solve an undetected
murder. [880-D-E)

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 825
E of2000.

From the Judgment and Order dated 27.1.2000 of the Punjab & Haryana
High Court in Cr.I. A. No. 458-DB of 1995

Sushi! Kumar, U.R. Lalit, Ashok Pandey, R.P. Singh, Subhod Lalit, Ambhoj
F Kumar Sinha, J.P. Dhanda, Ms. Raj Rani Dhanda, K.P. Singh and Ohan Singh
Nagar for the appearing parties.

The Judgment of the Court was delivered by

SANTOSH HEGDE, J. The appellants in these two criminal appeals are
G accused Nos. I 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 !PC by the Police Station NIT,
Faridabad, for having committed the murder of one Ravinder Kumar on 1.8.1992
H at about 10.30 a.m. The learned Sessions Judge while acquitting 3 of the
)
CHANDER PAL v. ST ATE OF HAR YANA [SANTOSH HEGDE, J.] 875
accused, who are not before us, convicted Chander Pal, appellant in Cr!. A. A
No. 82512000 under Section 302, and Rajinder, appellant in Crl.A. No. 826/2000
.. under Section 302 read with Section 34 !PC 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 B
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 C
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 D
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 Lajpat Rai. Being infuriated by the said affront of having E
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. F
This was done in the presence of the brother of the deceased, Bhim Sen who
was examined before the trial court as PW- I. 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 G
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- H
876 SUPREME COURT RHORTS [2002 I I S.C.R.
\.
A 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,
B
PW-11 - Manmohan Singh, AS!, took charge of the investigation and went
to the hospital and on reaching there he recorded a statement - Ex. PA - made
by PW-I, 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- l l is supposed to ..
c 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
D 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- I I on 14.8.1992 and he also took into
E 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 17.8.199~, 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. •
F
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 :s seen that he had recorded that
the deceased was brought to the said hospital by one Subhash Baweja,
G 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 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
H Ex. PE was later corrected to 26 years on the information given by the relatives
CHANDER PALv. STATE OF HARYANA [SANTOSH HEGDE, J.] 877
of the patient who reported at the time of preparation of the card of the A
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-I, the brother of the deceased, and PW-2,
Ashok Kumar, the owner of the tea-stall who, according to them, along with B
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 th.: evidence of PW- C
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-I on the very same day. Having accepted the
motive pointed out by the prosecution, the learned Sessions Judge accepted D
the evidence of PWs.I and 2 partially, inasmuch as the evidence of PWs. I
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 s?me was not acceptable in regard to
other accused. It held that the non-examination of Subhash Baweja and E
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
~~~. F
In Crl. A. No. 825/2000, Mr. Sushi! 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 G
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. I 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 H
878 SUPREME COURT REPORTS [2002) I S.C.R.

A 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
B 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 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
C 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-~irnmination 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
D of the complaint of PW-I 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.l.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
E 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-I I, 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- I I that he was
informed of the crime in the telephone of a shop nearby by pointing out how
F could a stranger know the telephone number of that shop and the arrangement
PW-I I 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
G 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 show:> that he is not a truthful "'itness
inasmuch as it is seen from the prosecution evidence itself 'that the place of
incident cannot be seen from the house of PW- I or even on immediately on
H coming into the street. That apart, it is also pointed out that this witness,
CHANDER PAL v. ST ATE OF HAR YANA (SANTOSH HEGDE, J.] 879
according to PW-2, came to the place of incident only after the attack on A
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 B
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, C
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-I 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 D
any identification parade, hence the identification of A-I by PW-2 ought not
f
to be accepted.

While Mr. U R Lalit, learned senior counsel appearing for A-2, concurs
with the arguments addressed by Mr. Sushi! Kumar on behalf of A- I and he E
further supplemented it by contending that there are umpteen contradictions
between the evidence of PWs. l 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 F
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 G
the death of the deceased, itself shows that the prosecution has come out
with a clean case. He further submitted that PWs. l, 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 H
880 SUPREME COURT REPORTS [2002] I S.C.R.

A 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
B 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
C 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
D courts below have not chosen to place any reliance on his evidence. It is
pointed out that th.: father of the deceased was a Police official and PW-6
was a!so 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
E 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
th.: incident was not corroborated by any other independent source. This "
F witness states that during the course of scuffle on 3 1. 7. l 992, 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 hb statement they took him to the doctor and got the injury
treated. However, :t is seen from his evidence that he did not state before the
G 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 3;. 7. l 992 took
place at about 6.30 p.m. while in his statement before the Police under Section
161 Cr.P.C., he had mentioned the time as~ p.m. These contradictions in his
H statement before the court when compared with the previous statement and
-- CHANDER PAL v. STATE OF HAR YANA [SANTOSH HEGDE, J'.J

coupled with the fact that he is admittedly a neighbour and friend of the
881

A
deceased and his brother, makes us feel that it is not safe to rely upon his

- • evidence to accept ihe 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.I B
and 2. We will first consider the evidence of PW- I 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 I0 minutes, he heard the shrieks
for help from his brother and when he rushed out of the house, he saw that
c
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 D
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-I arrived at the place of the
E
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- I accompanied the deceased to the hospital, in the records of the hospital,
I 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 F
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-I had accompanied the deceased to the hospital
then it was reasonable to believe that he would have given the particulars of
G
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 H
I

~

882 SUPREME COURT REPORTS [2002] I S.C.R.

A 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
B Subhash Baweja throws considerable doubt on this part of the prosecution
Cllse as to where exactly the incident in question toOk place and why Subhash
Baweja whose presence was not mentioned by PWs. I 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 incident
C 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 th\l prosecution also gives rise to a doubt as to the fact whether PWs.I
l!lld 2 did at all witness the incident in question or the same actually took
D place near the tea stall of PW-2. At this point, it is also relevant to notice the
fact that according to the ovidenee of PW-1, there was another eye-witness
to the incident, namely, Mohan Lal who according to this witness, witnessed
the attatk Oft the deceased and also accompanied the deceased to the hospital
1111d that Mohan Lal was also present in the hospital when the Police came
E 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
F 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 witnee,,
There is one more reason why we are hesitant to accept the evidence of PW·
G 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· I 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
H appellant Chander Pal he has neither mentioned the name of his father nor
, CHANDER PAL v. STA TE OF HAR YANA [SANTOSH HEGDE, J.] 883

the place of the incident. The explanation given by PW-I to the suggestion A
made in this regard to him by the defence is that he used to visit the
Kelvinator factory where A- I was working for the purpose of procuring
business from the factory and during those visits he had s1,1en Chander Pal,
hence he was able to identify the accused. We nbtice that his visit to
Kelvinator factory on previous occasions is not corroborated by any other B
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 C
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- D
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 E
blows 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- I arrived and the said incident was witnessed by Mohan Lal also.
He stated that after the accused persons left the place of occurrence, the F
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 G
of PW- I was about 60 yards away from the place of the incident. He stated
that the attack on the deceased lasted for about I or 2 minutes. He specifically
stated in his evidence that when PW-I 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 H
884 SUPREME COURT REPORTS [2002] I S.C.R.

A witness and that of PW- I who in his evidence has stated that he saw thll
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 difficull to accept the evidence of this witness when he
B 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
C 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
D 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 spoke 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
E ominous. The absence of explanation in this regard throws a cloud of suspicion
on the evidence of PW-2 as well as PWs. I 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.
F With all these contradictions and strong doubts created in our mind
with reference to certain facts which ar~ referred by us hereinabove, we think
it rather difficult to place reliance on the evidence of PW s. I 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
G 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-I, the accused persons were
arrested on 14.8.1992. This is spoken to by PW-1 l, investigating officer.
H 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
r· -
CHANDER PAL v. STATE OF HARV ANA [SANTOSH HEGDE, J.] 885
why they could not be arrested earlier. The IO in his examination before the A
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 B
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 ofFaridabad, 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 C
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 D
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 E
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 F
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 G
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. l and 2 so easily identified H
the first appellant with whom they were not familiar till then.
886 SUPREME COURT REPORTS (20021 I S.C.R. -
A 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 :

B "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 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.
c 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
D mentioned the father's name of either that person named Biru or other
accused Dharambir. In his deposition in Court, he (PW I) had disowned
the fact that he had described both the assailants as belonging to
Thakur community and residents of village Asauti 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
E
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. Jn 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
F 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
G 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
H above paragraph of the judgment of learned Sessions Judge, if applied on the
CHANDER PAL v. STATE OF HARY ANA [SANTOSH HEGDE, J.] 887
same yardstick to the prosecution evidence in regard to the appellants herein, A
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 B
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. l and 2, C
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.
D
For the reasons stated above, we on a re-appreciation of the entire
material on record and taking into consideration the 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, E
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.

K.KT. Appeals allowed.