MAHESH CHANDER AND ANOTHER v. STATE OF DELHI

Citation: [1991] 2 S.C.R. 51

Court: Supreme Court of India

Bench: S. RATNAVEL PANDIAN, M. FATHIMA BEEVI

Case summary

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 restric- 4...

Judgment text

The Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. The above appeals by special leave under Artide 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 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 - ed 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 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-I as we have pointed out supra claims to have witnessed the attack on the deceased by the two appellants by standing on the ter;·ace 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-I 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, ve are left with an impression that there is some force in the defence suggestion. PW-I makes an embellishment in his evidence stating that the deceased was dragged by the appellant Mahesh Chander by holding the hair of the deceased. This new introduction is purposely made by MAHESH CHANDER v. STATE OF DELHI [PANDIAN, J.

] 65 PW-1 to suppo_rt 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-aced. of Mahinder Singh, aced. I joined again in the police investigation about 15 days after this occurence. I had seen Mahesh Chander, aced. 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 Hanu: mant 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 drawa 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 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 A 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. B 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. -~