Case: Chander Pal Vs. State Of Haryana

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 an 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 exist 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. PW-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. 14. We will not 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 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 (PW1), he had not mentioned the father’s name of either that person named Biru or other accused appellant Dharambir. In his deposition in Court, he (PW1) 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." 15. 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. If 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 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 is regard to the acquitted accused. 16. 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,

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 time 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 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 thisour 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. If 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 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 is regard to the acquittedon 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.