Case details

Court: Supreme Court of India
Decided: 9 April 2019
Bench: S.A. Bobde
Citations: 2019 INSC 482[2019] 6 S.C.R. 549
Type: Judgment (Appeal(s) allowed)

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Citation: [2019] 6 S.C.R. 549 (search it on the Supreme Court's e-SCR portal)

Supreme Court of India

PEER SINGH versus THE STATE OF MADHYA PRADESH on 9 April 2019

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[2019] 6 S.C.R. 549

PEER SINGH

THE STATE OF MADHYA PRADESH

(Criminal Appeal No. 743 of 2012)

APRIL 09, 2019

[S. A. BOBDE, SANJAY KISHAN KAUL AND

DEEPAK GUPTA, JJ.]

Penal Code, 1860: s.302 r/w s.148 and s.149 – Murder –Fifteen person tried for murder – Prosecution case was that thevictim-deceased was returning to his village on his motor cycle andwas accompanied by two pillion riders, one of them was PW-8 –When they came near their village, victim-deceased was attackedby large number of persons armed with dharia, swords etc. whichresulted in his death – Pillion riders managed to escape and informedthe father of the deceased about the incident, who then, along withothers, reached the spot – On the way, they met PW5 who informedthat he witnessed the incident – Police recorded “Dehati Nalishi”at the spot wherein the appellants were not named – Conviction of7 persons including appellants – Appeal against conviction – Held:The names of the three appellants were absent in the statement ofPW-1 as recorded in court – PW-5 and the three appellants belongedto the same area and appellants were known to PW-5 – Havingnamed the other four of the assailants, there was no reason for notgiving names of the other assailants if PW-5 had actually identifiedthem at the place of occurrence – There was no plausible explanationgiven from the side of prosecution as to why the names of the threeaccused-appellants were missing both in the “Dehati Nalishi” aswell as in the statement of PW-5 recorded under s.161 Cr.P.C. –Further, PW-5 again in court did not say that he had identified thethree accused-appellants as the assailants – In view of a gravedoubt with regard to the presence of appellants at the place ofincidence, appellants are entitled to benefit of doubt and areacquitted.

Allowing the appeals, the Court

HELD: 1. The “Dehati Nalishi” was recorded on the spotitself soon after the occurrence. As per the evidence on record,PW-5 was present at the spot till 4.00 A.M. During this time, the

549

Apolice was there. It would have been much better if the “DehatiNalishi” had been recorded at the instance of PW-5 who was notonly an eye-witness but could even identify some of the accused.Even if this aspect is overlooked, the fact remains that when thestatement of PW-5 was recorded under Section 161 Cr.P.C., hedid not name the three appellants. When the statement wasBrecorded in court he stated that when the deceased was beingattacked, he (deceased) told the pillion riders to go to his houseand inform that persons of ‘S’ are beating him. This fact is totallydifferent from what is recorded in the “Dehati Nalishi”.[Para 10][553-G-H; 554-A-B]C2. There is another discrepancy in the statements of PW-1and PW-5 made in court. The names of the three appellants wereabsent even in the statement of PW-1 as recorded in court. PW-5 and the three appellants belong to the same area and PW-5 isknown to all the three accused, and when he could name four ofDthe assailants, there is no reason as to why he could not namethe other assailants if he had actually identified them at the placeof occurrence. There is no plausible explanation given from theside of prosecution as to why the names of these three accused-appellants were missing both in the “Dehati Nalishi” as well asin the statement of PW-5 recorded under Section 161 Cr.P.C.EFurther, PW-5 again in court does not say that he had identifiedthe three accused-appellants as the assailants. Therefore, a gravedoubt is raised with regard to the presence of these threeaccused at the place of incidence. The benefit of doubt obviouslyhas to go to the accused-appellants. They are acquitted.F[Para 11, 12][554-B-E]

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 743 of 2012.

With

Crl. A. Nos. 746 and 744 of 2012.

GFrom the Judgment and Order dated 27.06.2011 of the High Courtof Madhya Pradesh, Bench at Indore in Criminal Appeal No. 1354 of2001.

U. R. Lalit, Sushil Kumar Jain, Meenakshi Arora, Sr. Advs. PuneetJain, Harsh Jain, Abhinav Deshwal, Ms. Ankita Gupta, Shailendra Sharma H

(for Ms. Pratibha Jain), Ehtesham Hashmi, Akbar Siddique, Ms. PallaviPratap, Advs. for the Appellant.

Vaibhav Srivastava, DAG, Chandan Kumar, Pradyuman Kaistha(for Mrs. Swarupama Chaturvedi), Advs. for the Respondent.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

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1. All the three appeals are being disposed of by a commonjudgment since they arise out of one incident and one judgment deliveredby the trial court.

2. The facts necessary for deciding this case are that 15 personswere tried for the murder of Babusingh on the night intervening 13/14[th]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, Shobharamand Thakursingh were convicted by the trial court for having committedthe offence punishable under Section 302 read with Section 149 and 148of Indian Penal Code (IPC) and all the 7 accused were sentenced toundergo imprisonment for life.

3. Harisingh died when the appeal was pending before the HighCourt, and Shobharam died during the pendency of the appeal in thisCourt, therefore, the appeal stands abated against them. We are informedat the Bar that Gulabsingh and Thakursingh did not file any appeal andthey have already undergone the sentence imposed upon them. Thus,we are left only with the appeals of Gajrajsingh, Bhagwansingh andPeer Singh.

4. These appeals can be disposed of on a short point and thereforeit is not necessary to deal with the entire evidence. The case of theprosecution is that at about 11.30 p.m. on the night intervening 13/14[th]September, 1992, Babusingh was returning to his Village Kalma fromDewas on a motorcycle. He was accompanied by Gattu (PW-8) andVasu (not examined) who were pillion riders. When they were nearingKalma Village they were attacked by a large number of persons whowere armed with dharia, swords etc.. After the attack took place, themotorcycle fell down and the assailants, which according to theprosecution included all the 15 accused, attacked Babusingh and someof them gave blows to Babusingh with sharp edged weapons and as aresult of the injuries Babusingh died. It is not disputed before us thatBabusingh was, in fact, murdered. The only issue is whether the threeappellants were present at the spot or not?

A5. The prosecution case is that the pillion rider Gattu (PW-8) wentto the Village, found the house of father of Babusingh i.e. Motisingh(PW-1) and informed him that his son had been attacked by a largenumber of persons. Thereafter, Motisingh (PW-1), along with his sonAntar Singh (PW-6), his nephew Uttamsingh, Gattu (PW-8) and Vasuproceeded towards the place of occurrence. On the way near theBPanchayat Bhawan they met Mansingh (PW-5) who also informed themthat he had seen the occurrence and he identified four of the assailantsviz. Gulabsingh, Thakursingh, Harisingh and Shobharam. Thereafter, allthese persons reached the spot. It is not disputed that the police came tothe spot and “Dehati Nalishi” was recorded at the spot and at theCinstance of Motisingh, the father (PW-1). This “Dehati Nalishi” canbe 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 completionDof the investigation, charge-sheet was filed against 15 persons who were tried and some were convicted as detailed hereinabove.

7. The main argument raised before us is that there is no evidenceagainst the three appellants namely Gajrajsingh, Bhagwansingh @Bhaggu, and Peer Singh. The first information which is in the nature ofE“Dehati Nalishi” was recorded at the instance of Motisingh (PW-1),the father of the deceased. This “Dehati Nalishi” was recorded on14[th] September 1992 and he states that at night two boys came to hishouse, woke him up and then informed him that they along with his sonBabusingh were coming to Kalma on a motorcycle which was driven byBabusingh. Some persons who were armed with dharia and swordFattacked Babusingh just before they entered the Village. All the threepersons who were riding the motorcycle fell down. All the assailantssurrounded Babusingh and started raining blows of dharia and swordson him. Babusingh shouted “Oh! Shobha, Oh Thakur, do not beat”.The two pillion riders managed to escape and informed Motisingh.GThereafter, he along with Antar Singh and two informants went on themotorcycle towards the place of occurrence and on the way they metMansingh who stopped them and he (Mansingh) informed Motisinghthat he had seen Sobhagsingh (A-7), Thakursingh (A-15), Harisingh (A-5), Gulabsingh (A-12), all residents of Tonk and other persons assaultingBabusingh with dharia and swords. Thereafter, they went to the placeH

of occurrence and saw that Babusingh was lying dead. It was alsostated by Motisingh that he and his son Babusingh had a longstandingenmity with Sobhagsingh and, therefore, his son had been murdered. Itwould be pertinent to mention that in this “Dehati Nalishi” none of thethree appellants have been named.

8. According to us the sequence of events is such that Gattu(PW-8) would be the most crucial witness because he was seated onthe motorcycle with the deceased. However, he states that he does notbelong 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 thatBabusingh shouted “Oh! Shobha, Oh Thakur, do not beat”. As suchhis evidence is of no use to the prosecution.

9. The next important witness is PW-5. To be fair to Mr. U.R.Lalit, learned senior counsel appearing for the appellants, we must recordthat he had raised a plea that PW-5 was not even present and is aprocured witness. We are not going into that question, since accordingto us even if the presence of Mansingh (PW-5) is accepted, that evidencecannot be used to convict the three appellants before us. In his statementrecorded in court he mentions the names of the accused as Gajrajsingh,Harisingh, Bhagwansingh @ Bhaggu, Peer Singh, Gulabsingh, Shobharamand Thakursingh. He also states that he knows these persons sincethey are distantly related and belong to the same area. He admits thatthe police had recorded his statement under Section 161 of Code ofCriminal Procedure (Cr.P.C.). This statement (Ex.D1) has been provedin the evidence of the investigating officer (PW-20). PW-5 had beenconfronted with the fact that the names of Peer Singh, Bhaggu andGajrajsingh are not mentioned in his statement recorded by the policeunder Section 161 Cr.P.C.. He states, he does not know why theirnames are not mentioned. We are unable to accept this explanation.

10. The “Dehati Nalishi” was recorded on the spot itself soonafter the occurrence. As per the evidence on record Mansingh (PW-5)was present at the spot till 4.00 A.M. During this time, the police wasthere. It would have been much better if the “Dehati Nalishi” hadbeen recorded at the instance of PW-5 who was not only an eye-witnessbut could even identify some of the accused. Even if we overlook thisaspect, the fact remains that when the statement of PW-5 was recordedunder Section 161 Cr.P.C on the morning of 14[th] September, he did notname the three appellants. When the statement was recorded in court A

Ahe stated that when Babusingh was being attacked he (Babusingh) toldthe pillion riders to go to his house and inform that persons of Sobhagsinghare beating him. This fact is totally different from what is recorded inthe “Dehati Nalishi” wherein it is stated that Babusingh took the namesof Sobhagsingh and Thakursingh. As pointed out earlier Gattu (PW-8)does not say anything in his statement.B

11. When we compare the statements of PW-1 and PW-5 thereis another discrepancy viz. in court, the father Motisingh reiterates thatMansingh (PW-5) told him that Sobhagsingh, Thakursingh, Harisinghand Gulabsingh were beating Babusingh. The names of the threeappellants are absent even in the statement of Motisingh as recorded inCcourt. Mansingh and the three appellants belong to the same area andMansingh is known to all the three accused, and when he could namefour of the assailants, we see no reason as to why he could not name theother assailants if he had actually identified them at the place ofoccurrence. There is no plausible explanation given from the side ofDprosecution as to why the names of these three accused-appellants weremissing both in the “Dehati Nalishi” as well as in the statement ofMansingh recorded under Section 161 Cr.P.C. (Exh.D-1). Further, aspointed above, Motisingh again in court does not say that Mansingh(PW-5) had identified the three accused-appellants as the assailants.

E12. Therefore, a grave doubt is raised with regard to the presenceof these three accused at the place of incidence. The benefit of doubtobviously has to go to the accused-appellants. In view of the abovediscussion, we allow the appeals and set aside the judgment of the trialcourt dated 19[th] November, 2001 in Sessions Case No.57 of 1993 and ofthe High Court dated 27[th] June, 2011 in Criminal Appeal No.1354 ofF2001 so far as the conviction of the appellants; Peer Singh, Bhagwansinghand Gajrajsingh is concerned. They are acquitted and directed to be setfree forthwith if not required in any other case. All pending applicationsare accordingly disposed of.

Devika Gujral

Appeals allowed.