PEER SINGH …APPELLANT(S) Versus THE STATE OF MADHYA PRADESH …RESPONDENT(S)

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.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 743 OF 2012
PEER SINGH …APPELLANT(S)
Versus
THE STATE OF MADHYA PRADESH …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 746 OF 2012
CRIMINAL APPEAL NO. 744 OF 2012
J U D G M E N T
Deepak Gupta, J.

  1. 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.
    2
  2. 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.
  3. 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
    Singh.
    3
  4. 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?
  5. 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
    4
    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.
  6. 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.
    5
  7. 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
    6
    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.
  8. 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
    prosecution.
    7
  9. 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.
    8
  10. 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.
    9
  11. 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.
  12. Therefore, a grave doubt is raised with regard to the
    presence of these three accused at the place of incidence. The
    10
    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.
    .………………………..J.
    (S.A. Bobde)
    …………………………J.
    (Sanjay Kishan Kaul)
    …………………………J.
    (Deepak Gupta)
    New Delhi
    April 09, 2019