whether the three appellants were present at the spot or not?
“Dehati Nalishi” can be termed to be the first information given to the police.
The first information which is in the nature of “Dehati Nalishi” was recorded at the
instance of Motisingh (PW1), the father of the deceased.
The “Dehati Nalishi” was recorded on the spot itself soon after the occurrence.
The names of the three appellants are absent even in the statement of Motisingh as recorded in court. Mansingh and the three appellants belong to the same area and Mansingh is known to all the three accused, and when he could name four of the assailants, we see no reason as to why he could not name the other assailants if he had actually identified them at the place of occurrence. There is no plausible explanation given from the side of prosecution as to why the names of these three accusedappellants were missing both in the “Dehati Nalishi” as well as in the statement of Mansingh recorded under Section 161 Cr.P.C. (Exh.D1).
Further, as pointed above, Motisingh again in court does not say that Mansingh (PW5) had identified the three accused appellants as the assailants.
Therefore, a grave doubt is raised with regard to the presence of these three accused at the place of incidence. The benefit of doubt obviously has to go to the accusedappellants.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 743 OF 2012
PEER SINGH …APPELLANT(S)
THE STATE OF MADHYA PRADESH …RESPONDENT(S)
CRIMINAL APPEAL NO. 746 OF 2012
CRIMINAL APPEAL NO. 744 OF 2012
J U D G M E N T
Deepak Gupta, J.
- All the three appeals are being disposed of by a common
judgment since they arise out of one incident and one judgment
delivered by the trial court.
- The facts necessary for deciding this case are that 15
persons were tried for the murder of Babusingh on the night
intervening 13/14th September 1992 near Village Kalma, Dewas
District, Madhya Pradesh. The trial court acquitted 8 persons
and convicted 7 persons. Gajrajsingh, Harisingh,
Bhagwansingh @ Bhaggu, Peer Singh, Gulabsingh, Shobharam
and Thakursingh were convicted by the trial court for having
committed the offence punishable under Section 302 read with
Section 149 and 148 of Indian Penal Code (IPC) and all the 7
accused were sentenced to undergo imprisonment for life.
- Harisingh died when the appeal was pending before the
High Court, and Shobharam died during the pendency of the
appeal in this Court, therefore, the appeal stands abated against
them. We are informed at the Bar that Gulabsingh and
Thakursingh did not file any appeal and they have already
undergone the sentence imposed upon them. Thus, we are left
only with the appeals of Gajrajsingh, Bhagwansingh and Peer
- These appeals can be disposed of on a short point and
therefore it is not necessary to deal with the entire evidence.
The case of the prosecution is that at about 11.30 p.m. on the
night intervening 13/14th September, 1992, Babusingh was
returning to his Village Kalma from Dewas on a motorcycle. He
was accompanied by Gattu (PW8) and Vasu (not examined) who
were pillion riders. When they were nearing Kalma Village they
were attacked by a large number of persons who were armed
with dharia, swords etc.. After the attack took place, the
motorcycle fell down and the assailants, which according to the
prosecution included all the 15 accused, attacked Babusingh
and some of them gave blows to Babusingh with sharp edged
weapons and as a result of the injuries Babusingh died. It is not
disputed before us that Babusingh was, in fact, murdered. The
only issue is whether the three appellants were present at the
spot or not?
- The prosecution case is that the pillion rider Gattu (PW8)
went to the Village, found the house of father of Babusingh i.e.
Motisingh (PW1) and informed him that his son had been
attacked by a large number of persons. Thereafter, Motisingh
(PW1), along with his son Antar Singh (PW6), his nephew
Uttamsingh, Gattu (PW8) and Vasu proceeded towards the
place of occurrence. On the way near the Panchayat Bhawan
they met Mansingh (PW5) who also informed them that he had
seen the occurrence and he identified four of the assailants viz.
Gulabsingh, Thakursingh, Harisingh and Shobharam.
Thereafter, all these persons reached the spot. It is not disputed
that the police came to the spot and “Dehati Nalishi” was
recorded at the spot and at the instance of Motisingh, the father
(PW1). This “Dehati Nalishi” can be termed to be the first
information given to the police.
- Thereafter, the police lodged a formal First Information
Report (FIR), investigated the matter and recorded evidence of
the witnesses. The body of the deceased was sent for
postmortem and after completion of the investigation, chargesheet was filed against 15 persons who were tried and some
were convicted as detailed hereinabove.
- The main argument raised before us is that there is no
evidence against the three appellants namely Gajrajsingh,
Bhagwansingh @ Bhaggu, and Peer Singh. The first information
which is in the nature of “Dehati Nalishi” was recorded at the
instance of Motisingh (PW1), the father of the deceased. This
“Dehati Nalishi” was recorded on 14th September 1992 and he
states that at night two boys came to his house, woke him up
and then informed him that they along with his son Babusingh
were coming to Kalma on a motorcycle which was driven by
Babusingh. Some persons who were armed with dharia and
sword attacked Babusingh just before they entered the Village.
All the three persons who were riding the motorcycle fell down.
All the assailants surrounded Babusingh and started raining
blows of dharia and swords on him. Babusingh shouted “Oh!
Shobha, Oh Thakur, do not beat”. The two pillion riders
managed to escape and informed Motisingh. Thereafter, he
along with Antar Singh and two informants went on the
motorcycle towards the place of occurrence and on the way they
met Mansingh who stopped them and he (Mansingh) informed
Motisingh that he had seen Sobhagsingh (A7), Thakursingh (A15), Harisingh (A5), Gulabsingh (A12), all residents of Tonk
and other persons assaulting Babusingh with dharia and
swords. Thereafter, they went to the place of occurrence and
saw that Babusingh was lying dead. It was also stated by
Motisingh that he and his son Babusingh had a longstanding
enmity with Sobhagsingh and, therefore, his son had been
murdered. It would be pertinent to mention that in this “Dehati
Nalishi” none of the three appellants have been named.
- According to us the sequence of events is such that Gattu
(PW8) would be the most crucial witness because he was seated
on the motorcycle with the deceased. However, he states that he
does not belong to the Village and could not identify any of the
persons. In fact, when the statement was recorded in court he
did not even say that Babusingh shouted “Oh! Shobha, Oh
Thakur, do not beat”. As such his evidence is of no use to the
- The next important witness is PW5. To be fair to Mr. U.R.
Lalit, learned senior counsel appearing for the appellants, we
must record that he had raised a plea that PW5 was not even
present and is a procured witness. We are not going into that
question, since according to us even if the presence of Mansingh
(PW5) is accepted, that evidence cannot be used to convict the
three appellants before us. In his statement recorded in court
he mentions the names of the accused as Gajrajsingh,
Harisingh, Bhagwansingh @ Bhaggu, Peer Singh, Gulabsingh,
Shobharam and Thakursingh. He also states that he knows
these persons since they are distantly related and belong to the
same area. He admits that the police had recorded his
statement under Section 161 of Code of Criminal Procedure
(Cr.P.C.). This statement (Ex.D1) has been proved in the
evidence of the investigating officer (PW20). PW5 had been
confronted with the fact that the names of Peer Singh, Bhaggu
and Gajrajsingh are not mentioned in his statement recorded by
the police under Section 161 Cr.P.C.. He states, he does not
know why their names are not mentioned. We are unable to
accept this explanation.
- The “Dehati Nalishi” was recorded on the spot itself soon
after the occurrence. As per the evidence on record Mansingh
(PW5) was present at the spot till 4.00 A.M. During this time,
the police was there. It would have been much better if the
“Dehati Nalishi” had been recorded at the instance of PW5 who
was not only an eyewitness but could even identify some of the
accused. Even if we overlook this aspect, the fact remains that
when the statement of PW5 was recorded under Section 161
Cr.P.C on the morning of 14th September, he did not name the
three appellants. When the statement was recorded in court he
stated that when Babusingh was being attacked he (Babusingh)
told the pillion riders to go to his house and inform that persons
of Sobhagsingh are beating him. This fact is totally different
from what is recorded in the “Dehati Nalishi” wherein it is stated
that Babusingh took the names of Sobhagsingh and
Thakursingh. As pointed out earlier Gattu (PW8) does not say
anything in his statement.
- When we compare the statements of PW1 and PW5
there is another discrepancy viz. in court, the father Motisingh
reiterates that Mansingh (PW5) told him that Sobhagsingh,
Thakursingh, Harisingh and Gulabsingh were beating
Babusingh. The names of the three appellants are absent even
in the statement of Motisingh as recorded in court. Mansingh
and the three appellants belong to the same area and Mansingh
is known to all the three accused, and when he could name four
of the assailants, we see no reason as to why he could not name
the other assailants if he had actually identified them at the
place of occurrence. There is no plausible explanation given
from the side of prosecution as to why the names of these three
accusedappellants were missing both in the “Dehati Nalishi” as
well as in the statement of Mansingh recorded under Section
161 Cr.P.C. (Exh.D1). Further, as pointed above, Motisingh
again in court does not say that Mansingh (PW5) had identified
the three accusedappellants as the assailants.
- Therefore, a grave doubt is raised with regard to the
presence of these three accused at the place of incidence. The
benefit of doubt obviously has to go to the accusedappellants.
In view of the above discussion, we allow the appeals and set
aside the judgment of the trial court dated 19th November, 2001
in Sessions Case No.57 of 1993 and of the High Court dated 27th
June, 2011 in Criminal Appeal No.1354 of 2001 so far as the
conviction of the appellants; Peer Singh, Bhagwansingh and
Gajrajsingh is concerned. They are acquitted and directed to be
set free forthwith if not required in any other case. All pending
applications are accordingly disposed of.
(Sanjay Kishan Kaul)
April 09, 2019