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PETITIONER: MAHESH CHANDER AND ANOTHER

       Vs.

RESPONDENT: STATE OF DELHI

DATE OF JUDGMENT03/04/1991

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) FATHIMA BEEVI, M. (J)

CITATION:  1991 AIR 1108            1991 SCR  (2)  51  1991 SCC  Supl.  (1) 257 JT 1991 (2)   108  1991 SCALE  (1)572

ACT:     Constitution  of  India: Article 136-Court’s  power  to interfere with concurrent findings of fact- scope of.      Indian Penal Code, 1860: S. 302 r/w s. 34-Death due  to homicidal violence-Murder trial-Evidence-Place of occurrence and  cause  of death not disputed-Motive for  crime  brought out-Serious  doubts in trustworthiness and  truthfulness  of evidence  of  eye-witnesses  and suspicion  in  veracity  of prosecution  case overlooked by courts below-Conviction  and sentence  of  life imprisonment awarded by  Sessions  Court- Findings  affirmed and sentence maintained by High  Court  - Legality and correctness of.      Code  of criminal Procedure, 1973: S.  154-F.I.R.-Delay in  registration-  Name of one of the accused known  to  the witness  and presence of main eye-witness at the  scene  not mentioned-Effect of.      Indian  Evidence Act, 1872: S.9-Identification  parade- Accused already seen by witness in police station-Refusal by accused  to participate-Presence of accused at the place  of occurrence  not  proved-whether adverse inference  could  be drawn.

HEADNOTE:      Appellants in Criminal Appeals nos. 628 and 432 of 1979 were  accused nos. 1 and 2 respectively in the trial  court. Deceased  was brother-in-law (sister’s husband)  of  accused no.1-At  the time of marriage of P.W. 4 (sister  of  accused no.1)  with  the deceased, her father-in-law  presented  her gold ornaments which, while her visit to her parents’ house, were  retained by her father and brother, accused no.1,  who refused to return the same, Despite persistent demand by her husband  she  could not be able to bring them  back  and  on being rebuked by the husband she went to her Parent’s  house on 25.5.1975 to bring the same. On the same day the deceased being left alone in the house, brought Km. Sunita (P.W. 11), daughter of his brother (PW.5) for house-hold job.      In  the intervening night between 27/28-5-1975  accused no.1 with                                                        52 his friend accused no.2 stayed at the house of the deceased. They  took their bed in the outer court-yard by the side  of

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the deceased while PW-11 slept in the adjoining verandah. At about 3.15 a.m. PW-11 woke up and found accused no.2 sitting over the deceased and securing him firmly. Accused no.1 gave a  blow with the wooden pestle (Moosal) on the head  of  the deceased,  who shouted "MAR DIYA, MAR DIYA, BACHAO,  BACHAO" (being  killed  being killed, save me, save  me.)  On  being questioned  by  PW-11, the two accused threatened  her,  and while  accused  no.2 was dragging the  deceased  inside  the house  and accused no.1 kept on hitting him,  PW-11  escaped from  the  scene and went to her father’s house  to   inform him.  On the way she met PW-3, but she was  so  dumb-sticken that  she  could not reply to his queries.  On  hearing  the voice of deceased, "MAR DIYA, BACHAO, BACHAO", at 3.30  a.m. PW-1, a neighbour of the deceased and who had  earlier  seen both the accused lying on different cots in the  court-yard, came  from the upstairs of his terrace and saw accused  no.2 dragging the deceased and accused no. 1 beating him. At that time  PW-3 also reached there. Both PWs 1 and 3  shouted  at the  accused  but  on being threatened by  the  latter,  the witnesses  stepped back. PW-5, on being informed  by  PW-11, reached  the  scene  with  PWs 1,3 and 6,  and  saw  from  a distance  of 8-10 paces running the accused from there.  All the four witnesses entered the house and found the  deceased dead.  PWs 1 and 6 went to the police post  concerned  where PW-1  gave report before the Sub-Inspector  incharge,  PW-17 who  endorsed  the  same  to the  main  Police  Station  for registration  of a case. PW-17 accompanied by PWs 1  and  3, went to the place of occurrence, recorded statements of  PWs 3,5  and 6 and conducted the investigation. On 29.5.1975  he arrested  both  the accused. An  identification  parade  was arranged  but  accused no.2 refused to  participate  on  the ground  that  his  face  was  never  muffled  and  that  the prosecution  witnesses had seen him in the  police  station. The  investigation  completed  in  both  the  accused  being charged for offence punishable under s. 302 read with s. 34, I.P.C. for committing murder of the deceased.      Accepting  the  prosecution case,  the  Sessions  Court convicted  both  the  accused of  the  offence  charged  and sentenced  them  to undergo imprisonment  for  life.  Appeal against  conviction  was dismissed by the High  Court  which affirmed the findings of the trial court and maintained  the sentence. Hence the present appeals.      Before  this Court it was contended by  the  appellants that  presence of the prosecution witnesses at the scene  of occurrence was not believable and their evidence was  highly tainted with interestedness; that in                                                        53 the  F.I.R. name of accused no.2 who was known to  the  eye- witness  and presence of the sole eye-witness PW-11  at  the scene  were not mentioned; that there was 5 hours’ delay  in registration  of the F.I.R. while the distance  between  the place  of occurrence and the police station was only  3  km; and  that no adverse inference could be taken on refusal  to participate  in identification parade by accused no.2 as  he was seen by the witnesses earlier in the police station.      On consideration of court’s power under Article 136  of the  Constitution  and the scope of interference  in  appeal arising from concurrent findings of fact,      Allowing the appeals, this court,      HELD:1 Under Article 136 of the Constitution, the Court within  its  restrictions  imposed by itself  has,  in  very exceptional circumstances when a question of law of  general public importance arises or a decision shakes the conscience of  the  Court, the undoubted power to  interfere  with  the findings of fact masking no distinction between judgment  of

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acquittal  and conviction, if the High Court in arriving  at those  findings  has acted either  perversely  or  otherwise improperly. [60C-D]      The  State  of Madras v.A.Vaidyanath Iyer,  [1958]  SCR 580, relied on.      Himachal  Pradesh  Administration  v.Shri  Om  Prakash, [1972] 1 SCC 249; Arunachalam v. P.S.R. Sadhanathan,  [1979] 3  SCR  482 and State of U.P. v. Pheru Singh &  Ors,  [1989] Suppl. 1 SCC 288, referred to.      2.1  The trial court and the appellate  Court,  without making a comprehensive and detailed analysis of the evidence in  the proper perspective and by overlooking  the  manifest errors  and glaring infirmities surrounding the  case,  were not right in rendering their conclusions that the appellants were guilty of the offence charged .[65G-H;66A]      2.2. Although the place of occurrence and case of death of  the  deceased  due to homicidal  violence  were  not  in dispute and the dispute regarding the gold ornaments  served as motive for the crime, yet a meticulous examination of the entire   evidence   created  a  serious  doubt   about   the truthfulness  and  trustworthiness of the  evidence  of  the eyewitnesses. The credibility of the evidence was completely shaken  and  the  circumstances  attending  the  case   also debilitate the entire prosecu-                                                        54 tion  case.  To what extent falsehood in  the  evidence  had taken  root and spread over the entire prosecution case  was hard  to  fathom.  Hence the  irresistible  and  inescapable conclusion was that the prosecution had failed to  establish the  guilt of the appellants beyond all  reasonable  doubts. [60E-H;65F-G;66A]      2.3  The prosecution story that PW-4’s brother  accused no. 1, who was said to have retained her jewels and  refused to  return  them,  and  who  consequent  upon  his   defiant attitude, was ill-disposed of towards the deceased, came  to his  house within two days of his sister being  driven  away and  took  his bed in the front court-yard  along  with  the deceased  and accused no.2, was patently incredible and  too big  a  pill to be swallowed. Moreover the deceased who  had sent  away his wife from his house on 25.5.1975  asking  her either  to  get  back the jewels or not  to  return  to  her marital home would not have allowed accused no.1 to come  to his  house  and to enter a friendly talk with him  and  also would  not  have allowed him to sleep in his house  by   his side. [64B-D]      2.4  Though PWs 1,3,5, and 6 stated that they had  seen accused  no.1  and  one another running from  the  scene  of occurrence, they all in a chorus asserted that they did  not know  the  name of the other culprit, It was  quite  amazing that  none of the PWs except PW-11 know the name of  accused no.2.  The case of the prosecution that the accused who  had been  questioned by PWs 1 and 3 about their vicious  attack, perpetrated  on the deceased, continued to be in  the  scene house till PWs 1 and 3 along with PWs 5 and 6 returned  back was  not  plausible  and persuasive. The  conduct  of  these witnesses  sin not chasing and attempting to  apprehend  the accused  or  even  not raising a hue and  cry  in  order  to collect other villagers and apprehend the accused especially when one when one of them was unarmed and another was  armed only  with  a stick, created a hallow of  suspicion  in  the veracity  of  the prosecution case and led to  an  inference that  the  culprits whoever they might have been  might  not have  stayed  back for 1-1/2 hours till the arrival  of  the witnesses but might have left the scene earlier. [63F;64A]      2.5  It  was  brought in the  evidence  that  PW-1  was

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related  to the deceased as a third degree collateral PWs  5 and  6 were the younger brother and father of  the  deceased respectively. PW-11 was the daughter of PW-5. Thus PWs 5,  6 and  11 were shown to be the members of the same family  and PW-1 closely related to them. PWs 3 and 6 had married   from the same village. [61G-H;62A]      3.1  The evidence of PW-11, who claimed to  have  known names of                                                        55 both the accused even earlier to the incident, unambiguously made  it  clear  that she had revealed  their  names to  her mother, inmates of her house and neighbors even much earlier to  the  lodging of the report at the  police  station.  The houses  of PWs 1,3,5,6 and the deceased were all situated in the  same locality. It was very surprising that in spite  of the  fact  that PW-11 informed every one the  names  of  the appellants excepts her father, name of accused no.2 was  not mentioned in the F.I.R. which was registered by 8.15 a.m. on 28.5.9175.  It is incomprehensible as to why this adolescent girl PW-11 had chosen to sleep in the house of the  deceased when  her  house was situated within a short  distance  from there. The only irresistible inference was that PW-11  could not have been present at the scene house. [62C-D;63B-D]      3.2 The admission of PW-1 in the cross-examination that the  D.S.P. came to the place of occurrence at 8.00 or  8.30 a.m. on 28.5.1975 and stayed there for about 5 or 10 minutes and  that the S.H.O. came 10 minutes before the  arrival  of D.S.P.,  when examined along with the glaring  admission  of PWQ-3  that  all  the witnesses had  a  consultation  before lodging  the report, gave an impression that the report  was obtained from PW-1 only at the scene place at a later  point of time and thereafter the case was registered. [64E-G]      4.   No adverse inference could be drawn by refusal  of accused No. 2 from participating in identification parade as the case of the prosecution that the appellants were in  the house  of the deceased after perpetrating the heinous  crime till the late arrival of PWs 5 and 6 along with PWs 1 and  3 was not acceptable; and it was admitted by PW-5 that he  had seen the accused in the police station during the course  of investigation. [68B-F]

JUDGMENT:      CRIMINAL  APPELLATE  JURISDICTION  :  Criminal   Appeal Nos.432 & 628 of 1979.      From the Judgment and Order dated 4.5.1979 of the Delhi High Court in Crl. A.No.323 of 1976.      A.N.   Mulla,  Uma  Dutta  and  B.D.  Sharma  for   the Appellants.      Tapas Ray, Kailash Vasdev and Ms. A Ssubhsashinsi  (NP) for the Respondent.      Shreepal Singh, (NP) for the intervener.                                                        56      The Judgment of the Court was delivered by      S.  RATNAVEL PANDIAN, J.  The above appeals by  special leave  under  Article 136 of the Constitution of  India  are directed  against  the  correctness  and  legality  of   the judgment  dated 4th May, 1979 of the High Court of Delhi  in Criminal Appeal No.323/76.      These  two  appellants  were  accused  Nos.  2   and  1 respectively  before the 8th Additional Sessions  Judge  and they  took  their trial in Sessions Case No.  38/75  on  the charge  that on 28.5.1975 at about 3.30 a.m. in  Pitam  Pura within the jurisdiction of Punjabi Bagh Police Station  both

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appellants   in  furtherance  of  their   common   intention committed murder of Hanumant Singh, the deceased herein  and thereby  committed an offence punishable under  Section  302 read with 34 IPC.  The facts of the case briefly stated  are as follows:      The  deceased Hanumant Singh was the son  of  Harkishan Singh  (PW-6).  At the time of the marriage of the  deceased with  Smt. Santosh (PW-4), PW-6 presented about 30 tolas  of gold  ornaments worth about Rs.10,000 to PW-4. PW-4  on  her first  visit to the house of PW-6 brought all the  ornaments and stayed there for 6 months.  Then she went to her parents house  wearing  all those ornaments but left them  with  her father  Dhani  Ram and brother Mohinder Singh  and  all  the ornaments  were  never returned by her father  and  brother. The deceased persistently asked his wife PW-4 to bring  back the  ornaments telling her that her father and  brother  had intended to grab the same.  Though PW-4 went to her  parents house  many  times  to  fetch  the  ornaments  she  was  not successful.  On 25.5.75 the deceased rebuked PW-4 and  asked her  to  bring  the ornaments from  her  parents,  but  PW-4 expressed  her helplessness.  So under the pressure  of  her husband, PW-4 went to her parents house on 25.5.75 at  about 3.00  a.m. to get back the ornaments.  As PW-4 had  gone  to her parents house, the deceased brought Km. Sunita  (PW-11), the  daughter  of  his  brother  Kartar  Singh  (PW-5)   for household job and PW-11 stayed in the house of the deceased. On 27.5.75 at about 8.00 p.m.  the appellant Mohinder  Singh who is none other than the brother of PW-4 came to house  of deceased  along  with his friend appellant  Mahesh  Chander. The deceased and these two appellants took their bed in  the outer  court-yard.   PW-11  was  sleeping  in  the  verandah adjoining the outer court-yard.      At  about  3.15  a.m.  on  the  intervening  night   of 27/28.5.75 PW-11 was woke-up and found the appellant  Mahesh Chander sitting over the                                                        57 deceased  and  securing  him firmly.   While  so,  appellant Mohinder Singh gave a blow with a wooden pestle (Moosal)  on the  head  of the deceased resulting in  bleeding  injuries. The  deceased  shouted "MAR DIYA, MAR DIYA,  BACHAO  BACHAO" (Being  killed,  being  killed, save me,  save  me).   PW-11 questioned  both the appellants as to what they were  doping to  which  the appellants threatened PW-11 saying  that  she would  also  be killed if she uttered any  word.   So  PW-11 became  panicky  and  kept silent.   Then  appellant  Mahesh Chander   dragged  the  deceased  inside  the  house   while appellant  Mohinder Singh kept on hitting the deceased  with that  pestle.  At this point of time PW-11 escaped from  the scene  house and went to the house of her father  (PW-5)  to inform him.  On the way PW-11 met PW-3 at some distance  but despite enquiry by PW-3, PW-11 could not give any reply  and she was dumb-sticken.  PW-1, a neighbour of the deceased who had earlier seen the deceased and both the appellants  lying on  different cots in the front court-yard of the  house  of the  deceased  and who was sleeping on the  terrace  of  his house  heard  the voice of the deceased "MAR  DIYA,  BACHAO, BACHAO" by about 3.30 a.m.  From the upstairs of his terrace he saw the appellant Mahesh dragging the deceased inside the house and appellant Mohinder Singh beating the deceased with the wooden pestle (Ex.P.1).  By that time, PW-3 came by  the side of the house of the deceased.  Both PWs 1 and 3 shouted at  the appellants to which both the  appellants  threatened the witnesses if they tried to intervene.  Then PW-1 and PW- 3  stepped  back.  PW-1 ran to the house of PW-6  to  inform him.  In the meanwhile PW-5 on being informed by PW-11  came

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to the scene house along with Pws 1,3,and 6.  When they were at  a  distance of 8 to 10 paces, they saw   the  appellants running  towards  Shakurbasti.   Thereafter  all  the   four namely,  PWs  1,3,5 and 6 entered the house  and  found  the deceased  dead.  PWs 1 and 6 went to the police  station  of Shakurbasti where PW-1 gave the report Ex.PW-1/B before  PW- 17,  the Sub-Inspector of Police of Punjabi Bagh who was  at the relevant time was incharge of Shakurbasti Police Station also.   PW-17  after making his endorsement  Ex.PW-17/A,  to the  report, dispatched the same for registration of a  case to  the  concerned  Punjabi Bagh Police  Station  where  the F.I.R.  Ex.PW-7/A was registered by PW-7  (Head  Constable). PW-17  accompanied by PWs 1 and 6, went to the  scene  place and  recorded  the  statements of PWs  3,5,6,  and  11.   He summoned  the  crime team and got the  place  of  occurrence photographed.   He  seized the blood-stained  earth  from  5 different  spots  under the recovery memo Ex  PW2/B-13.   He also  recovered some human hair Ex.P8 from the  front  court yard and the blood-stained wooden moosal Ex.P1 from near the dead  body.  He prepared a rough site plan and held  inquest over the dead                                                        58 body of the deceased.  He sent the dead body for post-mortem examination.  PW-2 the police Surgeon performed necropsy  on the  dead  body  of  the deceased and  noted  as  many as  9 injuries, of which injury Nos. 1 to 3 were lacerated wounds, injury  Nos. 5,7 and 9 were fractures and injury No.6 was  a contusion.   Injury No.4 was a bruise over the tip of  right shoulder.   The  bones at various places  were  broken.   On 29.5.75   PW-17   arrested   both   the   appellants.     An identification parade was arranged but the appellant  Mahesh refused to participate in the parade.  After completing  the investigation PW-17 laid the charge-sheet.  The  prosecution examined PWs 1,3, and 11 as eyewitnesses to the  occurrence. PWs5  and  6  were examined to speak  about  the  appellants running  away  from the scene after the  commission  of  the crime.  The other witnesses were formal witnesses and  PW-17 was the investigating officer.      The  appellants when examined under Section 313 of  the Code of Criminal Procedure, denied their complicity with the offence  in question though admitted the relationship.   The appellant Mahesh Chander explained his refusal to take  part in  the identification parade stating that he did so as  his face  was  never  muffled and that the PWs saw  him  in  the police station.  The appellants examined PWs 1 to 6 on their side to prove the strained relationship between the  parties and  the  arrest  of the appellants in  the  office  of  the Electricity  Board,  Gurgaon.   The  learned  Trial   Judge, accepting  the  case of the prosecution convicted  both  the appellants  under Section 302 read with Section 34  IPC  and sentenced them to undergo imprisonment for life.      Feeling  aggrieved by the judgement of the Trial  Court both  the  appellants preferred Criminal Appeal  No.  323/76 before  the  High  Court which  for  the  reasons  assigned, affirmed the judgement of the Trial Court and dismissed  the appeal as being devoid of merits.  Hence these two appeals.      Mr. A.N. Mulla, the learned senior counsel appearing on behalf  of the appellants after taking us very  meticulously through  the  judgement  of the Trial as well  as  the  High Court,  the depositions of the witnesses and other  relevant records  contended  inter alia submitting that  despite  the prolonged deliberation, neither the name of appellant Mahesh Chander  nor the presese of Km. Sunita (PW-11) at the  scene was  made mention of in the First Information  Report;  that the  First Information Report was registered at  about  8.15

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a.m.  on 28.5.75 after a delay of 5 hours from the  time  of occurrence  in spite of the fact that the police station  is only at a distance of 3 kilometers from the                                                        59 scene  and that PW-5 who is none other than the  brother  of the  deceased and an Advocate by profession did not  mention the  fact  of his daughter (PW-11) informing him  about  the murder of the deceased to any one.  According to the learned counsel it is highly surprising that Mrs. Kartar Singh  (w/o PW-5)  though  was informed by her daughter  Sunita  (PW-11) about the participation of both the appellants in the murder by   mentioning  their  names,  she  did  not  inform   this information  to her husband before PWs 1 and 6 left for  the police station and that the present story of the prosecution is nothing but a fabricated one in order to project PW-11 as an  eye-witness  and that if really PW-11 had slept  on  the verandah  of  the house of the deceased  and  witnessed  the occurrence she would have immediately mentioned the incident to PW-3 whom she met on the way to her house.  Though  PW-11 claims  to have told the incident to her father  (PW-5)  she had not mentioned the name of Mahesh Chander whose name  she claims  to  have known even earlier to this  occurrence  and whose  name  she mentioned to her mother.   It  is   further submitted that the evidence of PW-11 is nothing but a tissue of  falsehood and her evidence is demonstrably proved to  be unworthy  of  credence for more than one reason  that  being that  PW-11  who was by then aged about 13  would  not  have slept  alone in the house of the deceased.  Secondly if  she had  been an eye-witness  to the occurrence, she would  have immediately come forward with a statement that she saw  both the appellants by mentioning their names.  Thirdly PW-5, the father  of PW-11 who had filed a criminal case  against  the deceased  for offences under Sections 307 and 324 IPC  which case  was pending during the relevant time should  not  have allowed  his daughter to go to the house of his  enemy,  the deceased.      In continuation of his submission Mr. Mulla urged  that no  adverse  inference can be drawn  against  the  appellant Mahesh   Chander  on  his  refusal  to  take  part  in   the identification  parade since PW-5 has admitted that  he  had seen Mahesh Chander at the police station.  According to the learned  counsel  PW-3 is a chance witness as he  could  not have  come  to  the  house of PW-1  at  that  odd  hour  for purchasing milk; that the evidence of PWs 1,3,5,6 and 11 are highly tainted with the interestedness and that the evidence of  PWs  5 and 6 that they saw the appellants  running  away from  the  house of the deceased is nothing  but  deliberate perjury.      Before we examine the above contentions with  reference to  the evidence adduced by the prosecution, we  shall  deal with  the  scope  of interference of this  Court  in  appeal arising from the concurrent findings of fact.  In The  State of Madras v. A. Vaidynatha Iyer, [1958] SCR                                                        60 580 at 588 this Court has ruled thus :           "In  Art.136 the use of the words  "Supreme  Court           may in its direction grant special leave to appeal           from   any   judgement,   decree,   determination,           sentence or order in any cause or matter passed or           made by any Court or tribunal in the territory  of           India"   shows   that  in  criminal   matters   no           distinction   can   be  made  as   a   matter   of           construction between a judgement of conviction  or           acquittal."      See  also  Himachal Pradesh Adminstration  v.  Shri  Om

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Prakash, [1972] 1 SCC 249; Arunchalam v. P.S.R. Sadhanathan, [1979]  3  SCR 482 at page 487 and State of  U.P.  v.  Pheru Singh & Ors., [1989] Suppl. 1 SCC 288 to which one of us (S. Ratnavel Pandian, J.) was a party.      A  conspectus of the above decisions clearly shows that the  power  under  Article  136  can  be  invoked  in   very exceptional circumstances when a question of law of  general public importance arises or a decision shakes the conscience of  the court and the Court within its restrictions  imposed by itself has the undoubted power to inferfere even with the findings of fact making no distinction between judgement  of acquittal and conviction, if the High Court, in arriving  at those  findings,  has acted either perversely  or  otherwise improperly.      In the light of the above proposition of law, we  shall now   scrutinise  the  evidence  and  examine  whether   the concurrent  findings  of fact in the present case  call  for interference.      With  regard to the place of occurrence and  the  cause death  of the deceased due to homicidal violence are not  in dispute.  The motive for the occurrence is spoken to by  PWs 5  and 6.  It is the evidence of PW-6, who is the father  of the  deceased that during the marriage of his  deceased  son with PW-4, he presented gold ornaments worth about Rs.10,000 and  that  when  PW-4 had been to  her  parents  house,  her parents and her brother appellant Mohinder Singh had removed all  the jewels from her and retained the jewels with  them. Though   the   deceased  was  consistently   stressing   and pressurising  his wife to get back those  ornaments,  PW-4’s parents did not return them. Despite the fact that PW-4  had expressed  her helplessness in the matter, the  deceased  on 25.5.75 sent PW-4 to her parents house asking her either  to get back the ornaments or not to return to her marital home. This serves as a motive for the appellants to put an end  to the life of the deceased.                                                        61      The deceased was alone in his house after his wife  had left.   In  order to do the household job in  his  house  he brought his brother’s (PW-5’s) daughter Sunita (PW-11)  who, according  to  the prosecution stayed in the  house  of  the deceased.      According to PW-11, she, by chance woke up by 3.15 a.m. and  saw  the  appellant Mahesh  Chander  sitting  over  the deceased  and  securing  him  firmly  while  the   appellant Mohinder  Singh hitting the deceased with the wooden  pestle (Moosal)  Ex. P.1. The deceased tried to riggle  out of that situation  and shouted "MAR DIYA, MAR DIYA, BACHAO  BACHAO". When  PW-11  questioned both the appellants,  her  life  was threatened by the appellants.   When the appellants took the deceased  inside the house dragging him PW-11  escaped  from the  scene,  came  to her parents’ house  and  informed  her father  PW-5  about  the entire incident.  On  the  way  she claims to have met PW-3, but she did not tell PW-3 about the incident despite the enquiry by PW-3.      PW-1 claims to have got up from his bed on hearing  the distressed cry of the deceased and seen the appellant Mahesh Chander dragging the deceased towards the inner verandah and the  appellant Mohinder Singh beating the deceased with  the wooden  pestle (Moosal).  He witnessed the same standing  on his terrace where he was sleeping.  According to him he  met PW-3  and  that both of then questioned  the  appellants  to which  the  appellants  replied  that  they  would  also  be murdered  if  they  interfered  and  that  thereafter   they reiterated.   PW-1 further states that when he went  to  the house of PW-6 to inform this incident, PW-5 came there  from

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his  house and then they all (i.e. PWs 1,3,5, and 6)  rushed to  the  house  of  the deceased where  they  saw  both  the appellants running towards Shakurbasti.  PW-5 states that he on  being informed about this incident by his daughter  went to  the scene house along with PWs 1,3 and 6 and  found  his brother  lying dead in the inner room of the house.   PWs  5 and 6 speak of having seen both the appellants running  from the scene and that at that time appellant Mahesh Chander was having a lathi in his hand.      According  to all the witnesses there was  an  electric light fitted in the house of the deceased and there was also moon light.      It  is brought in the evidence that PW-1 is related  to the  deceased   as a third degree collateral.   As  we  have pointed  out  earlier. PWS 5 and 6 are younger  brother  and father of the deceased respectively.                                                        62 PW-11  is  the daughter of PW-5.  Thus PWs 5,6, and  11  are shown to be the members of the same family and PW-1  closely related  to them.  PW-3 and PW-6 have married from the  same village, namely, Asoda.      The  prosecution through the evidence of PWs 1  and  11 attempts to prove that both the appellants were in the house of the deceased on the  night of 27.5.75 and took their beds in the front court-yard of the said house.  While PW-11  has deposed  that she woke up by chance at 3.15 a.m., it is  the evidence  of PW-1 that he got up only on hearing the cry  of the deceased.      We shall first of all scrutinise the evidence of PW-11, the  sole eye witness to the entire occurrence.  As  rightly pointed  out  by  Mr.  Mulla who  is  proved  to  have  been enemically disposed of towards the  deceased, could not have allowed his 13 years old daughter to take the household  job in the house of the deceased and to sleep there during night hours.  Further when the house of PW-5 is situated within  a short distance from the house of the deceased, we are unable to  comprehend as to why this adolescent girl had chosen  to sleep  in the house of the deceased.  PW-11 claims  to  have known the names of both the appellants even earlier to  this incident.   She did not inform about incident much less  the names  of  the  appellants to PW-3  while  she  was  rushing towards  her house from the scene spot in spite of the  fact that she was asked by PW-3 as to what was the matter. In her house she narrated the entire incident to PW-5 stating  that Mohinder  Singh ans some one were beating the deceased,  but she  did  not  mention  the name  of  the  appellant  Mahesh Chander.  However, she claims to have told the names of both the  appellants to her mother, brothers, sisters,  and  some neighbours. The relevant portion of her evidence reads thus:           "My mother met me after my father ran towards  the           house  of Hanumant Singh.  I told my mother,  that           Mohidner  Singh and Mahesh Chander had  beaten  my           uncle  Hanumant Singh.  I told only that  Mohinder           Singh  and  Mahesh  Chander  had  beaten  Hanumant           Singh,  but  I did not ask her to go and  tell  my           father accordingly.  My brothers and sisters  were           also present at our house besides my mother." Then  she  states she gave the names of Mohinder  Singh  and Mahesh  Chander  to  the police in her  statement.   In  yet another portion of her evidence she states :           Before  my going to make any statement before  the           police                                                        63           our  neighbours came to our house.  I  told  those           neighbours also that Mohinder Singh and Mahesh had

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         beaten Hanumant Singh.  Our neighbours came to our           house  about  1/1-1/2 hour after  my   father  ran           towards the house of Hanumant Singh."      The evidence of PW-11 unambiguously makes it clear that she revealed the names of both the appellants to her mother, inmates of her house and neighbours even much earlier to the lodging of the report at the police station.  The houses  of PWs  1,3,5,6, and the deceased are all situated in the  same locality.   Admittedly  PWs  1 and 6  left  for  the  police station by 5.00 or 5.30 a.m.  It is very surprising that  in spite of the fact that PW-11 informed every one the names of the   appellants  except her father the name   of  appellant Mahesh  Chander  is not mentioned in the  F.I.R.  which  was registered  by  8.15 a.m. on 28.5.75.  The  explanation  now offered  by the prosecution through PWs5 and 11  that  PW-11 did  mention  the name of appellant Mahesh  Chander  to  her father  is  neither conceivable nor  believable.   The  only irresistible  inference  is that PW-5 could  not  have  been present at the scene house and witnessed the occurrence.      PW-5  who is an Advocate by profession and  brother  of the deceased could not have kept silent without ascertaining or at least asking the names of both the perpetrators of the crimes  from his daughter. Even assuming that  his  daughter did  not mention the name of appellant Mahesh  Chander,  the wife of PW-5 who rushed to the scene house on being informed by  her  daughter  should have told the names  of  both  the appellants  to her husband and father-in-law (PWs 5 and  6). Further  it  is quite ununderstandable as to why  PW-5  kept himself back instead of going to the police station but only sent  PW-1  and his father, PW-6.  Though PWs  1,3,5  and  6 state  that  they saw the appellant Mohinder Singh  and  one another  running from the scene of occurrence they all in  a chorus  assert that they did not know the name of the  other culprit.   It is quite amazing that none of the  PWs  except PW-11  knew  the name of Mahesh Chander.  The  case  of  the prosecution  that the appellants who had been questioned  by PWs  1 and 3 about their vicious attack, perpetrated on  the deceased, continued to be in the scene house till PWs 1  and 3 along with PWs 5 and 6 returned back is not plausible  and persuasive.   Further the conduct of these witnesses in  not chasing and attempting to apprehend the appellants or at the worst  not raising a hue and cry so that the neighbours  and other villagers might have got collected and apprehended the appellants especially when one of the appellants was unarmed and                                                        64 another one was armed only with a stick, creates a hallow of suspicion in the veracity of the prosecution case and  leads to  an inference that the culprits whoever they  might  have been  might  not have stayed back till the  arrival  of  the witnesses  but might have left the scene earlier.   In  this connection reference may be made to the evidence of PW-3 who has stated that it took 1-1/2 hours for PWs 5 and 6 to  come to the scene.      The  story  of  the prosecution  that  PW-4’s  brother- appellant Mohinder Singh- who was said to have retained  the jewels  of  PW-4  and  refused  to  return  them,  and  who, consequent  upon his defiant attitude, was  ill-disposed  of towards  the  deceased  came to the house  of  the  deceased within two days of his sister being driven away and took his bed  in  the  front court-yard of the  deceased  along  with deceased and the other appellant Mahesh Chander, is patently incredible and is too big a pill to be swallowed.   Moreover the  deceased  who had sent away his wife  (PW-4)  from  his house on 25.5.75 asking her either to get back the jewels or

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not  to  return to her marital home would not  have  allowed Mohinder Singh to come to his house and to enter a  friendly talk  with him and also would not have allowed him to  sleep in his house by his side.      PW-1  as  we  have pointed out  supra  claims  to  have witnessed  the attack on the deceased by the two  appellants by  standing on the terrace of his house and then after  the arrival  of  PWs 5 and 6, he went with PW-6  to  the  police station and laid the report at Shakurbasti Police Station at about 5.00 or 5.30 a.m.  This report was despatched by PW-17 to  the concerned Punjabi Bagh police station by  6.45  a.m. and  the case was registered in that station at  about  8.15 a.m.   A  suggestion was made to PW-17 that the  report  was obtained from PW-1 only at the scene place at a later  point of  time and thereafter the case was registered. PW-17  had, of course, denied that suggestion.  But the admission of PW- 1 in the cross-examination that the D.S.P. came to the place of  occurrence  at 8.00 or 8.30 a.m. on 29.5.75  and  stayed there  for about 5 or 10 minutes and that the Station  House Officer (PW-17) came 10 minutes before the arrival of D.S.P. when examined along with the glaring admission of PW-3  that all  the  witnesses had a consultation  before  lodging  the report,  we are left with an impression that there  is  some force in the defence suggestion.      PW-1  makes  an embellishment in his  evidence  stating that  the  deceased  was dragged  by  the  appellant  Mahesh Chander  by  holding  the hair of  the  deceased.   The  new introduction is purposely made by                                                        65 PW-1  to support  the recovery of a bunch of hair  from  the scene  by PW-17.  In his earlier statement he has  not  come forward  with  such  a statement.  Though we  would  not  be giving  any significance or importance for such an  omission in the earlier document, we are constrained to point out the significant  omission, since PW-1 has now come forward  with such  an exaggerated version in order to fall in  line  with the  prosecution case that the deceased was  dragged  inside the house by his hair.  A thorough scrutiny of the  evidence of  PW-  1 does not inspire confidence in the minds  of  the court and command acceptance.      An adverse inference has been drawn by the courts below on   the  refusal  of  the  appellant  Mahesh   Chander   to participate in the identification parade.  Mahesh has  given an  explanation stating that since his face was not  muffled and  he was shown to the witnesses at the police station  he refused  to  participate in the identification  parade.   In support  of  this  explanation it has been  brought  to  our notice the following evidence of PW-5 admitting that he  had seen Mahesh Chander at the police station :                "I  gave the particulars of the  co-accd.  of           Mahinder  Singh,  accd.   I joined  again  in  the           police  investigation  about 15  days  after  this           occurence.   I had seen Mahesh Chander,  accd.  in           handcuffs  in  the police station that day  and  I           identified and told the police that I had seen him           running  alongwith  (Mohinder Singh)  outside  the           house of Hanumant Singh."      As  we  are  not inclined to accept  the  case  of  the prosecution  that  the appellants were in the house  of  the deceased after perpetrating the heinous crime till the  late arrival  of  PWs 5 and 6 along with PWs 1 and 3  no  adverse inference  could be drawn by such refusal of  the  appellant Mahesh Chander to take part in the identification parade.      Thus  a meticulous examination of the  entire  evidence creates   a  serious  doubt  about  the   truthfulness   and

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trustworthiness  of the evidence of the eye-witnesses.   The credibility  of  the evidence is completely shaken  and  the circumstances attending the case also debilitate the  entire prosecution case.  To what extent falsehood in the  evidence has  taken root and spread over the entire prosecution  case is hard to fathom.  The Trial Court and the Appellate  Court without making a comprehensive and detailed analysis of  the evidence  in the proper perspective and by  overlooking  the manifest errors and glaring infirmities surrounding the case have  rendered  their conclusions that  the  appellants  are guilty of                                                        66 the offence charged. In spite of our best efforts and  great deal  of pondering over the matter, we are quite  unable  to agree  with the conclusions arrived at by both  the  courts. Hence  the irresistible and inescapable conclusion,  in  our considered  opinion, is that the prosecution has  failed  to establish the guilt of the appellants beyond all  reasonable doubts.,      In  the  result, we set aside the  conviction  and  the sentence  as  recorded  by the High Court,  allow  both  the appeals  and  acquit  the appellants.  The  bail  bonds  are discharged. R.P.                                         Appeals allowed.                                                        67