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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.  

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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.

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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

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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,  charge­

sheet  was  filed against  15 persons who were tried  and some

were convicted as detailed hereinabove.

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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

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Motisingh that he had seen Sobhagsingh (A­7), Thakursingh (A­

15),  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.

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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.

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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.

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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

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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