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2005 DIGILAW 814 (PNJ)

Biru v. State Of Haryana

2005-08-03

MEHTAB S.GILL, PRITAM PAL

body2005
Judgment Mehtab S.Gill, J. 1. This appeal has been filed against the judgment/order dated 20.9.1999/22.9.1999 of the Additional Sessions Judge, Hissar whereby he convicted appellants Biru, Ram Karan, Sultan, Ram Singh, Bahadar, Chokha, Leelu, Hari Ram, Guddi and Ram Payari under Sections 302/149 I.P.C. and sentenced them to undergo imprisonment for life. He also convicted them under Section 148 IPC and sentenced them to undergo R.I. for three years and to pay a fine of Rs. 500/- each. 2. The prosecution case is unfolded by the statement of Aad Ram complainant (PW-8) given to ASI Jagbir Singh at Police Station Sadar, Hissar on 2.7.1994. Aad Ram stated that he is a resident of Village Gangwa and is an agriculturist by procession. He lives in his fields. He had constructed his Dhani (farm house) in his fields and lives there with his family members. The Dhani is at a distance of 2-1/2 kms. from the village. He has three sons and six daughters. His five daughters are married and the youngest daughter Santosh is still a spinster. She is studying in V Class in Village Gangwa. Her age is 13/14 years. The complainant has a civil dispute pending with Biru, Ram Karan sons of Chandu, Sultan, Hari Ram Lilu sons of Kanshi Ram and Chokha etc., who are Kumhars by caste. They are all residents of Village Gangwa. These persons had threatened the complainant several times and proceedings under Sections 107/151 Cr.P.C. were initiated by the police between both the parties. The above named persons also live in their Dhani, in their fields. Their Dhanis are near that of the complainant. 3. On 2.7.1994 at about 7.30 a.m., complainant along with his wife Reshma Devi had gone to Hissar in connection with some private work. Complainants son Rameshwar, his daughter Bhateri who had given birth to a male son 2/3 days earlier, and his daughter Dapan Devi and Santosh Devi and his two younger sons were present in the house. At about 1 p.m., when he along with his wife returned back to their dhani, his wife found the dead-body of his daughter Santosh lying on the Southern side of his house. There were a number of injuries on her body. Dhapa was standing near the dead-body. At about 1 p.m., when he along with his wife returned back to their dhani, his wife found the dead-body of his daughter Santosh lying on the Southern side of his house. There were a number of injuries on her body. Dhapa was standing near the dead-body. Dhapa told her father that in the morning, at about 8 a.m., accused Biru, Ram Karan, sons of Chandu Ram, Sultan, Ram Singh, Bahadur sons of Biru, Chokha son of Pat Ram, Leelu, Hari Ram, sons of Kanshi Ram, sunita wife of Leelu, Guddi wife of Hari Ram, Ram Piyari wife of Ram Karan, Kumhar by caste, residents of Village Gangwa, who were armed with Hailis, Kassolis, Kassias, Lathis and Dandas, after raising a lalkara, all of a sudden came to their dhani. On seeing them coming, Rameshwar out of fear, fled away to the village. Santosh tried to stop the accused, on which she was attacked and a number of injuries were inflicted on her person. She died at the spot. This occurrence had also been witnessed by Manohar Lal son of Ram Rakh, caste Kumhar, resident of Gangwa. The complainant then went to Police Station Sadar, Hissar and made a statement before ASI Jagbir Singh. 4. In the police proceedings, ASI Jagbir Singh recorded that Aad Ram came to the police station and his statement was recorded, and after reading it out to him, Aad Ram admitting it to be correct, thumb-marked the statement Ex. PE and an offence under Sections 302, 149, 148 IPC was made out. On the basis of this statement F.I.R. was recorded. Special reports were sent. 5. The police did not take any action, but after investigating the matter, made out a case under Sections 302/34 IPC against Dhapa, sister of the deceased and Rameshwar brother of the deceased. The Investigating Agency found the accused named in the FIR Ex. PE innocent and did not challan them. After adducing evidence, the trial Court acquitted Dhapa and Rameshwar. 6. Aad Ram seeing that the police were not taking any action on the FIR Ex. PE, filed a complaint on 2.8.1994 in the Court of Additional Sessions Judge, Hissar under Sections 302/148 IPC read with Section 149 IPC. The trial Court vide its order dated 20.9.1999 convicted Biru, Ram Karan, Sultan, Ram Singh, Bahadur, Chokha, Leelu, Hari Ram, Guddi and Ram Piyari. PE, filed a complaint on 2.8.1994 in the Court of Additional Sessions Judge, Hissar under Sections 302/148 IPC read with Section 149 IPC. The trial Court vide its order dated 20.9.1999 convicted Biru, Ram Karan, Sultan, Ram Singh, Bahadur, Chokha, Leelu, Hari Ram, Guddi and Ram Piyari. The present appeal has been filed by the appellants on they being convicted, on the basis of the complaint filed by Aad Ram. 7. The prosecution to prove its case, brought into the witness-box PW-1 Dr. Surender Singh, PW-2 Ram Singh, PW-3 Mahabir Parshad, PW-4 Dalbir Singh, PW-5 Manphool Singh, PW-6 Dhapa, PW-7 Rameshwar and PW-8 Aad Ram complainant. In their statements recorded under Section 313 Cr.P.C., all the accused denied the allegations. In defence, DW-2, Sunita, DW-2 ASI Jagdish Chander, DW-3 Inspector Rajinder Singh and DW-4 Jagdish Mittal were examined. 8. Learned counsel for the appellants has stated that there are two versions before the Court one given by Dhapa Devi (PW-6) and the other by Sunita (DW- 1). It is settled law that in case of doubt, the version favourable to the accused is the one, which is to be taken into consideration. 9. Dhapa Devi (PW-6) in her testimony before the Court has stated that she was present in her house at 8/8.30 p.m. along with her brother Rameshwar (PW- 7). Her sister Santosh was tethering buffaloes along the Khurli. At 8/8.30 a.m., Biru, Sultan, Ram Singh, Bahadur, Hari Ram, Chokha Ram, Leelu, Guddi and Ram Piyari came into their house armed with lathis, Dandas, Kasias, Kasolis and Jailies. They were shouting, "Mar do, Mar do". Rameshwar (PW-7) out of fear ran away. All the accused then assaulted Santosh with their weapons. Santosh succumbed to her injuries. Manohar witnessed the occurrence. Rameshwar (PW-7) returned at 11 a.m. Dhapa Devi (PW-6) narrated the incident to Rameshwar. Her father Aad Ram (PW-8) and mother returned from Hissar at about 1 p.m. She narrated the occurrence to Aad Ram also. Dhapa Devi further stated that litigation is pending between the two families, regarding the possession of land. She (Dhapa Devi) was falsely accused of committing the murder of Santosh by the appellants, on the instigation of the police. In her cross-examination, she has admitted that she has three brothers and she along with her sister were living in the same house with their parents. She (Dhapa Devi) was falsely accused of committing the murder of Santosh by the appellants, on the instigation of the police. In her cross-examination, she has admitted that she has three brothers and she along with her sister were living in the same house with their parents. Dhani of appellant Leelu and Hari Ram was about one acre from their Dhani. Dhani of Biru is also at a distance of not more than one acre. Dispute was regarding 14 kanals of land between the appellants and the complainant. None of the appellants tried to pursue her brother Rameshwar (PW-7) when he was running towards the village. She was standing 2/3 paces away from her sister Santosh, when the appellants inflicted blows on her sister. Throughout the time, when injuries were being inflicted on Santosh, she (Dhapa Devi) was standing 2/3 paces away. The appellants did not cause any injury to her. 10. The other version before the Court is given by of Sunita (DW-1). Her presence has been admitted by complainant Aad Ram (PW-8) in his statement given to ASI Jagbir Singh, on the basis of which the FIR Ex. PE was recorded. In Ex. PE, it is stated that Sunita was also present along with the other appellants when deceased Santosh was attacked. Sunita in her testimony has stated that a dispute over the ownership of agricultural land was going on, between her husband Leelu and complainant Aad Ram. A civil suit was pending between both the parties. The disputed land was in the possession of Leelu etc. Aad Ram filed a false complaint dated 28.6.1994 in the Police Station Civil Lines, Hissar against Leelu, Sultan, Hari Ram, Biru and Ram Phal, that he is apprehending danger to his life from these persons. Her husband Leelu along with others left Village Gangwa for Police Station Civil Lines, Hissar at 7.30 a.m. on 2.7.1994, as they had been summoned by the police. At about 8.30 a.m. Sunita (DW-1) went to tether her cattle under the shade of the kikkar trees near the Dhani of Aad Ram. Dhapa Devi along with her sister Santosh came there and stopped her from doing so. In the meanwhile, Guddi wife of the elder brother of the husband of Sunita also reached there. An altercation took place and the ladies from both the sides exchanged fist blows and slaps. Dhapa Devi along with her sister Santosh came there and stopped her from doing so. In the meanwhile, Guddi wife of the elder brother of the husband of Sunita also reached there. An altercation took place and the ladies from both the sides exchanged fist blows and slaps. Thereupon Dhapa Devi (PW-6) brought a Kasia. She aimed the Kasia at Sunita, but it hit Santosh on her head and Santosh fell down. PW-7 Rameshwar who was also present there, shouted that as Santosh has been accidentally injured, more Kasia blows be given to her (Santosh), so that she dies and then they can falsely implicate Beeru etc. He further stated that Santosh was a girl of immoral character and it is better she be killed. Dhapa Devi then gave more Kasia blows to Santosh and killed her. Sunita along with Guddi and Ram Piyari ran away. Aad Ram then lodged a false complaint on the basis of which the FIR Ex. PE was recorded. She has further stated that when the police came, she told the police that Dhapa (PW-6) had murdered Santosh. 11. Learned counsel has further argued that the solitary eye-witness Dhapa Devi (PW-6) is inimical towards the appellants. Her testimony is not truthful. The police did not believe the version of Aad Ram, but after finding out the truth, challaned Dhapa Devi and Rameshwar for the murder of Santosh. A witness who is being charged for the murder of her own sister, should not be believed. Though Dhapa Devi and Rameshwar have been acquitted, the State has not filed any appeal in the High Court for the reasons best known to the State. The evidence of the alleged eye-witness i.e. Dhapa Devi (PW-6) is to be scrutinized carefully. The prosecution has tried to corroborate her statement by the statement of Rameshwar (PW-7), her real brother, but has miserably failed. Apart from these two witnesses, it was the duty of the prosecution to get more evidence to corroborate the prosecution case, as Dhapa (PW-6) and Rameshwar (PW-7) were themselves under a cloud and had been charged for the murder of their own sister. The prosecution was duty bound to corroborate their statements from independent and reliable witness. Aad Ram (PW-8) has tried to corroborate the statement of Dhapa Devi, he also has miserably failed. He is also a staunch enemy of the appellants. The prosecution was duty bound to corroborate their statements from independent and reliable witness. Aad Ram (PW-8) has tried to corroborate the statement of Dhapa Devi, he also has miserably failed. He is also a staunch enemy of the appellants. The only witness left is Manohar Lal son of Ram Rakh whose Dhani was 1-1/2 acres away from the place of occurrence. In the FIR Ex. PE and in the statements of Dhapa (PW-6) and Rameshwar (PW-7) it has been stated that Manohar Lal had witnessed the occurrence. Manohar Lal has not been brought into the witness- box, for the sole reason that he would not have supported the prosecution case, as the prosecution story was false. The learned Public Prosecutor gave a statement in Court on 11.1.1999 after closing the prosecution evidence, that he gives up PW Manohar Lal as being unnecessary. In fact, this independent witness, whose presence has been accepted by the prosecution, was the most important and necessary witness to prove the case of the prosecution. Inference should be drawn against the prosecution to this effect, that he would not have supported the case of the prosecution. Learned counsel for the appellants has relied upon a judgment of the Honble Supreme Court in Balbir v. State of Haryana and another, 1999(4) RCR(Crl.) 839 (SC) : 2000 SCC(Crl.) 160, wherein the Honble Supreme Court has held that an independent material witnesses, if not examined in a private complaint in the absence of any explanation, then inference can be drawn against the prosecution. 12. DW-1 Sunitas presence is admitted in FIR Ex. PE. She is an eye-witness to the occurrence. Strangly when the complaint was filed in the Court of Shri S.K. Gupta, Additional Chief Judicial Magistrate, Hissar on 2.8.1994, after one month of the alleged occurrence, her name was eliminated from being one of the accused. This the prosecution had done, as by that time, they had come to know that in the police case, Sunita was an eye-witness. 13. The pedigree-table reproduced hereafter shows that all the adult members of two families have been roped in. 14. Learned counsel for the State has stated that motive in this case is very strong. Appellants and complainant Aad Ram were at loggerheads. Appellants were in a dominating position, as they had more male members. 13. The pedigree-table reproduced hereafter shows that all the adult members of two families have been roped in. 14. Learned counsel for the State has stated that motive in this case is very strong. Appellants and complainant Aad Ram were at loggerheads. Appellants were in a dominating position, as they had more male members. Appellants threatened Aad Ram to give up the disputed piece of 14 kanals of land. Aad Ram (PW-8) had five daughters and one son. Manohar Lal was given up by the Public Prosecutor, as being unnecessary, not for the reason that he would not have supported the case of the prosecution, but two eye-witnesses Dhapa Devi (PW-6) and Rameshwar (PW-7) who corroborate each other and who also get corroboration from the statement of Aad Ram (PW-8), convincingly proved the case of the prosecution. By getting Manohar Lal into the witness-box, would have only added to quantity, but not quality. DW-1 Sunita in her statement has not named Manohar to be present on the date of occurrence. There are two versions before the Court, one brought about by complainant Aad Ram (PW-8), on he being told of the occurrence by Dhapa Devi (PW-6) and the other version being of Sunita (DW-1). The version brought about by Dhapa Devi (PW-6) is the truthful version and DW-1 Sunitas version is an after-thought, only to save themselves. The alibi of Kanshi Ram, Beeru, Sultan, Chokha, Ram Karan and Leelu etc. (8 persons in all) cannot be believed. ASI Jagdish Chander (DW-2) has given a false statement only to help the appellants. Similarly, DW-3 Rajinder Singh Inspector, the Investigating Officer has also given a false statement to help the appellants. 15. We have heard the learned counsel for the parties and perused the record with their assistance. 16. The common intention of the appellants could be three-fold. Firstly, to eliminate Aad Ram with whom they were in litigation. The second would be to attack the house of Aad Ram and to eliminate the male members, and thirdly to eliminate the entire family. But in this case, the common intention as per the prosecution version was to eliminate Santosh, the minor daughter of Aad Ram. As alleged by Dhapa Devi (PW-6), Rameshwar (PW-7) and Aad Ram (PW-8), they attacked Santosh, a girl of 13/14 years of age. But in this case, the common intention as per the prosecution version was to eliminate Santosh, the minor daughter of Aad Ram. As alleged by Dhapa Devi (PW-6), Rameshwar (PW-7) and Aad Ram (PW-8), they attacked Santosh, a girl of 13/14 years of age. All the appellants inflicted injuries on her person, but straingely did not touch any other member of the family of Aad Ram who were present in the house. If the appellants were intending to eliminate Aad Ram, he could have easily been way- laid by the appellants while he was going to Hissar. Dhani of the appellants was just 1-1/2 acres away. Aad Rams movements could have been easily watched. We fail to understand why the appellants wanted to murder Santosh, a small girl of 13/14 years of age. The injuries inflicted on the person of Santosh are thirty in number. Dhapa Devi (PW-6) who was standing 2/3 paces away, was not even touched by any of the appellants. 17. Dr. Surender Singh (PW-1) has stated in his testimony before the Court, that it was correct that the vagina of deceased Santosh admitted two fingers easily by which he opined that she was habitual to sexual intercourse. It has come in the statement of Sunita (DW-1) that Rameshwar (PW-7) stated that Santosh is a girl of loose character. This probably is the reason that Santosh was eliminated by the complainant party. After eliminating her, a false FIR Ex. PE was registered against the appellants. 18. The version put forward by Sunita (DW-1) wife of Leelu Ram is truthful, cogent and it appeals to the mind. Sunitas name is mentioned as an accused in the FIR dated 2.7.1994, Ex. PE, and her presence has been conceded at the time of the occurrence by Aad Ram. In the complaint filed in the Court of Additional C.J.M., Hissar on 2.8.1994, out of which the present impugned judgment dated 20.9.1999 has been rendered, Sunita (DW-1) has not been arrayed as an accused. Sunita (DW-1) stated that the family of her husband Leelu Ram have a dispute over the ownership of agricultural land with Aad Ram complainant. A civil suit is pending between Aad Ram and her husbands family. The land was in the possession of her husband. Sunita (DW-1) stated that the family of her husband Leelu Ram have a dispute over the ownership of agricultural land with Aad Ram complainant. A civil suit is pending between Aad Ram and her husbands family. The land was in the possession of her husband. Aad Ram had filed a false complaint with the police against her husband Lelu, Sultan, Hari Ram, Biru and Ram Phal, that he apprehended danger to his life from these persons. Police summoned Leelu Ram, Sultan, Hari Ram, Biru and Ram Phal to Police Station, Civil Lines, Hissar. Aad Ram and his wife were also summoned. Leelu along with others left their Village Gangwa for the Police Station Civil Lines, Hissar at 7.30 a.m. Sunita had gone to tether her buffalos and the other cattle under the Kikkar trees near the Dhani of Aad Ram. It was at about 8.30 a.m. on 2.7.1994 when she was tethering the cattle, Dapan Devi and her sister Santosh came to her. Both asked Sunita not to tie her cattle there. In the meanwhile, Guddi wife of the elder brother of Leelu also came there. An altercation took place between Sunita, Dhapa Devi and Santosh. They exchanged fists blows. Dhapa Devi (PW-6) brought a Kasia. She aimed the Kasia at Sunita, but it hit Santosh. Ram Piyari accused also came to the spot. Santosh fell down. Rameshwar (PW-7) told Dhapa Devi (PW-6) that since Santosh had accidentally suffered injuries, more injuries should be inflicted on her, so that she dies and Beeru etc. be falsely implicated in the murder of Santosh. Then Dhapa Devi gave number of Kasia blows to Santosh and killed her. Rameshwar (PW-7) stated that Santosh was a girl of loose character and it was better to kill her and attribute the murder to Beeru etc. Sunita, Guddi and Ram Piyari ran back to their Dhanis. In her cross-examination, this witness has stated that she did not go to the police to lodge a complaint, but when the police came to the village, she told the police that Santosh was murdered by Dhapa Devi. Her statement was recorded on 2.7.1994. She has further stated that Santosh was a girl of loose character. She studied in Government Primary School, Gangwa. 19. Her statement was recorded on 2.7.1994. She has further stated that Santosh was a girl of loose character. She studied in Government Primary School, Gangwa. 19. ASI Jagdish Chander (DW-2) has stated that on the basis of a complaint made by Aad Ram (PW-8) dated 28.6.1994, to the Superintendent of Police, Hissar which was forwarded to the SHO, Police Station Civil Lines, Hissar. And Ram stated in this complaint that he apprehended danger to his life from Beeru etc. The SHO marked the complaint to ASI Jagdish Chander for inquiry. He summoned both the parties to the police station on 2.7.1994 for conducting an enquiry. He further stated that he returned to the police station at 2.30 p.m. and found Kanshi Ram, Biru, Sultan, Hari Singh, Chokha Ram, Leelu Ram etc. (total eight in number) from the party of Sultan in the police station. Aad Ram had not come to the police station. These very persons (eight in number) had been summoned by him to the police station at 9 a.m. Constable Ashok Kumar had informed him at 9.30 a.m. in the Courts on 2.7.1994 where he had gone for some work, that Kanshi Ram etc. (eight persons) were present in the Police Station Civil Lines, Hissar. 20. The Investigating Officer Rajinder Singh Inspector (DW-3) has stated that on 2.7.1994 on receiving a wireless message from ASI Jagbir Singh, he reached Village Gangwa at 5 p.m. He saw the dead-body of Santosh in the Dhani of Aad Ram. Aad Ram had also given his statement to ASI Jagbir Singh where he had implicated 8 male members and 3 females including Sunita wife of Leelu Ram, as the persons who had committed the murder of Santosh. This witness has further stated that he noticed incised wounds on the hands, legs, chest, neck and head of Santosh. He further noticed that the injuries on both hands and legs were parallel to each other. Dhapa Devi (PW-6) and Rameshwar (PW-7) were found in the Dhani. He asked them to give their statements, but they refused by saying that they are not well. This conduct on the part of Dhapa Devi and Rameshwar showed that they wanted to hide the truth from him. Dhapa Devi (PW-6) and Rameshwar (PW-7) were found in the Dhani. He asked them to give their statements, but they refused by saying that they are not well. This conduct on the part of Dhapa Devi and Rameshwar showed that they wanted to hide the truth from him. The Investigating Officer (DW-3) further stated that (from) the type of injuries inflicted on the hands and legs of Santosh and refusal of Dhapa Devi and Rameshwar to give their statements, he drew an inference that the injuries found on the person of Santosh were not caused by appellants Sultan etc. He investigated the case on 3rd, 4th, 5th, 6th of July, 1994. All these days Dhapa Devi and Rameshwar were missing from the Dhani. He had carried out a search in the neighbourhood, for them, but they could not be traced. On 6.7.1994, the Investigating Officer recorded the statements of Sunita, Guddi, Ram Piyari and after investigating the case, he came to the conclusion that Santosh was murdered by none other than Dhapa and Rameshwar. The Investigating Officer then called Manohar Lal for investigation. Manohar Lal told him that he did not see any occurrence, nor did he see appellant Sultan etc. committing the murder of Santosh. 21. ASI Jagdish Chander stated in his testimony before the Court that on 2.7.1994 he had called both the parties on the basis of the complaint filed by Aad Ram, which had been addressed to the S.P., Hissar and was then marked to the S.H.P., and further marked to him. He has stated that at the time when the alleged occurrence had taken place on 2.7.1994, Kanshi Ram, Beeru, Sultan, Chokha, Ram Karan and Leelu etc. (8 persons) were present in Police Station Civil Lines, Hissar. From the statements of these two police officials, DW-2 and DW-3, we can safely conclude that the appellants did not commit the murder of Santosh. 22. The lone eye-witness Dhapa Devi (PW-6) in her testimony before the Court has hidden more of the occurrence, than what she has revealed. She has not been truthful and her testimony cannot be believed. She was the only eye- witness to the occurrence. The case of the prosecution hinged very strongly on her shoulders. 22. The lone eye-witness Dhapa Devi (PW-6) in her testimony before the Court has hidden more of the occurrence, than what she has revealed. She has not been truthful and her testimony cannot be believed. She was the only eye- witness to the occurrence. The case of the prosecution hinged very strongly on her shoulders. She in her statement stated that at about 8/8.30 a.m. Beeru, Sultan, Ram Singh, Bahadur, Hari Ram, Chokha, Leelu, Guddi and Ram Piyari came to their house armed with Danda, Kasia, Kasoli, Jaili at that time. Her sister Batheri, Santosh and her brother Rameshwar (PW-7) were present. Her father Aad Ram and mother had gone to Hissar. All the appellants attacked Santosh who was tethering the buffaloes. Santosh succumbed to her injuries and thereafter appellants ran away. Manohar Lal witnessed the occurrence. Rameshwar (PW-7) out of fear ran away and returned at 11 a.m. She has further stated that her three brothers namely Rameshwar, Bansi and Munshi and her sister are all living in the Dhani with her parents. Dhani of appellant Hari Ram is 4 acres away from their Dhani. Dhani of Beeru is also close-by. Dhanis of appellant Hari Ram and Leelu and Sultan are also about one acre away, meaning thereby that the appellants and the complainant party are all living close-by. A suggestion was put to this witness that her sister Santosh was a girl of easy virtue, she and her brother found Santosh in a compromising position with some boy, and it was because of this that they had inflicted injuries on her. From the testimony of this witness strangely it comes out that though she was standing only at a distance of 2/3 paces from Santosh when Santosh was being attacked by the appellants, no injury was inflicted on her. In her testimony, she was stated that during the occurrence, she kept standing there all the while. From the testimony of this witness strangely it comes out that though she was standing only at a distance of 2/3 paces from Santosh when Santosh was being attacked by the appellants, no injury was inflicted on her. In her testimony, she was stated that during the occurrence, she kept standing there all the while. Appellants would not have spared her also, if they intended to murder Santosh, PW-7 Rameshwar, who is a 28 years old person (on 9.10.1998, the date of his recording statement in Court) was not pursued to inflict injuries on him by the appellants and further, this witness has stated that after he ran away from the occurrence, he came back at 11 a.m. Rameshwar (PW-7) in his testimony did not state anything regarding that he went to inform anybody in the village, or that he did not make a hue and cry, though he had seen the appellants coming to his house. 23. In the judgment relied upon by the counsel for the appellants in Balbir v. State of Haryana and another (supra), the Honble Supreme Court held as under :- "In the police challan three persons were cited as eye-witnesses to the occurrence. If the prosecution had deliberately avoided examining such important witness, the Court should have exercised its powers under Section 311 Cr.P.C. to know their versions regarding the occurrence. Evidence of PW-4 and PW-5 could never have been evaluated or appraised without the aid of the evidence of those whom the investigating agency cited as the real eye- witnesses. The very approach for considering the truth of the testimony of PW-4 and PW-5 cannot be divorced totally from the broad reality that the statutory investigating agency had found their version unfounded as well as concocted, and instead the agency found that the real culprit was G. xxx xxx xxx That apart, the incident happened at the bus-stand. The prosecution did not cite at least one of the shopkeepers of such a busy area to speak to what really happened. According to the police version the incident was witnessed by three persons. There is no explanation whatsoever for not examining any one of them." 24. In the case in hand, the lone independent eye-witness Manohar Lal was given up as being unnecessary. 25. According to the police version the incident was witnessed by three persons. There is no explanation whatsoever for not examining any one of them." 24. In the case in hand, the lone independent eye-witness Manohar Lal was given up as being unnecessary. 25. The Honble Supreme Court in Habeeb Mohammad v. State of Hyderabad, AIR 1954 SC 51 has held as under :- "It is the bounden duty of the prosecution to examine a material witness, particularly, when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to Section 114 of the Evidence Act, but the circumstances of his being withheld from the Court casts a serious reflection on the fairness of the trial." 26. We are of the considered view that murder of Santosh was not committed by the appellants. Giving them the benefit of doubt, we acquit the appellants of the charges framed against them. 27. Appeal is allowed. Judgment and order dated 20.9.1999/22.9.1999 of Additional Sessions Judge, Hissar is set aside. Appellants be set at liberty forthwith, if not required in any other case.