PEER SINGHversusTHE STATE OF MADHYA PRADESH

                        [2019] 6 S.C.R. 549                             549


                              PEER SINGH                                A
                                    v.
                THE STATE OF MADHYA PRADESH
                   (Criminal Appeal No. 743 of 2012)
                             APRIL 09, 2019
                                                                        B
          [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 the
victim-deceased was returning to his village on his motor cycle and
was accompanied by two pillion riders, one of them was PW-8 –           C
When they came near their village, victim-deceased was attacked
by large number of persons armed with dharia, swords etc. which
resulted in his death – Pillion riders managed to escape and informed
the father of the deceased about the incident, who then, along with
others, reached the spot – On the way, they met PW5 who informed        D
that he witnessed the incident – Police recorded “Dehati Nalishi”
at the spot wherein the appellants were not named – Conviction of
7 persons including appellants – Appeal against conviction – Held:
The names of the three appellants were absent in the statement of
PW-1 as recorded in court – PW-5 and the three appellants belonged
to the same area and appellants were known to PW-5 – Having             E
named the other four of the assailants, there was no reason for not
giving names of the other assailants if PW-5 had actually identified
them at the place of occurrence – There was no plausible explanation
given from the side of prosecution as to why the names of the three
accused-appellants were missing both in the “Dehati Nalishi” as         F
well 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 the
three accused-appellants as the assailants – In view of a grave
doubt with regard to the presence of appellants at the place of
incidence, appellants are entitled to benefit of doubt and are
acquitted.                                                              G
         Allowing the appeals, the Court
       HELD: 1. The “Dehati Nalishi” was recorded on the spot
itself 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
                                                                        H
                                549
550            SUPREME COURT REPORTS                         [2019] 6 S.C.R.


A     police was there. It would have been much better if the “Dehati
      Nalishi” had been recorded at the instance of PW-5 who was not
      only an eye-witness but could even identify some of the accused.
      Even if this aspect is overlooked, the fact remains that when the
      statement of PW-5 was recorded under Section 161 Cr.P.C., he
      did not name the three appellants. When the statement was
B
      recorded in court he stated that when the deceased was being
      attacked, he (deceased) told the pillion riders to go to his house
      and inform that persons of ‘S’ are beating him. This fact is totally
      different from what is recorded in the “Dehati Nalishi”.
      [Para 10][553-G-H; 554-A-B]
C            2. There is another discrepancy in the statements of PW-1
      and PW-5 made in court. The names of the three appellants were
      absent 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 is
      known to all the three accused, and when he could name four of
D     the assailants, there is 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 accused-
      appellants were missing both in the “Dehati Nalishi” as well as
      in the statement of PW-5 recorded under Section 161 Cr.P.C.
E     Further, PW-5 again in court does not say that he 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 accused-appellants. They are acquitted.
F     [Para 11, 12][554-B-E]
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 743 of 2012.
             With
             Crl. A. Nos. 746 and 744 of 2012.
G            From the Judgment and Order dated 27.06.2011 of the High Court
      of Madhya Pradesh, Bench at Indore in Criminal Appeal No. 1354 of
      2001.
             U. R. Lalit, Sushil Kumar Jain, Meenakshi Arora, Sr. Advs. Puneet
      Jain, Harsh Jain, Abhinav Deshwal, Ms. Ankita Gupta, Shailendra Sharma
H
           PEER SINGH v. STATE OF MADHYA PRADESH                            551


(for Ms. Pratibha Jain), Ehtesham Hashmi, Akbar Siddique, Ms. Pallavi       A
Pratap, 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.                                                     B
       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. The facts necessary for deciding this case are that 15 persons
were tried for the murder of Babusingh on the night intervening 13/14th     C
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          D
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      E
they have already undergone the sentence imposed upon them. Thus,
we are left only with the appeals of Gajrajsingh, Bhagwansingh and
Peer Singh.
       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    F
September, 1992, Babusingh was returning to his Village Kalma from
Dewas on a motorcycle. He was accompanied by Gattu (PW-8) 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       G
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?                                 H
552            SUPREME COURT REPORTS                          [2019] 6 S.C.R.


A            5. The prosecution case is that the pillion rider Gattu (PW-8) went
      to 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 large
      number of persons. Thereafter, Motisingh (PW-1), along with his son
      Antar Singh (PW-6), his nephew Uttamsingh, Gattu (PW-8) and Vasu
      proceeded towards the place of occurrence. On the way near the
B
      Panchayat Bhawan they met Mansingh (PW-5) 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
C     instance of Motisingh, the father (PW-1). 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
D     of 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 evidence
      against the three appellants namely Gajrajsingh, Bhagwansingh @
      Bhaggu, and Peer Singh. The first information which is in the nature of
E     “Dehati Nalishi” was recorded at the instance of Motisingh (PW-1),
      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
F     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.
G     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 (A-7), Thakursingh (A-15), Harisingh (A-
      5), Gulabsingh (A-12), all residents of Tonk and other persons assaulting
      Babusingh with dharia and swords. Thereafter, they went to the place
H
           PEER SINGH v. STATE OF MADHYA PRADESH                             553
                    [DEEPAK GUPTA, J.]

of occurrence and saw that Babusingh was lying dead. It was also             A
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          B
(PW-8) 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.                                C

        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 record
that he had raised a plea that PW-5 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 (PW-5) is accepted, that evidence     D
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       E
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 (PW-20). PW-5 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             F
names are not mentioned. We are unable to accept this explanation.
        10. The “Dehati Nalishi” was recorded on the spot itself soon
after 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 was
there. It would have been much better if the “Dehati Nalishi” had            G
been recorded at the instance of PW-5 who was not only an eye-witness
but could even identify some of the accused. Even if we overlook this
aspect, the fact remains that when the statement of PW-5 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          H
554              SUPREME COURT REPORTS                          [2019] 6 S.C.R.


A     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 (PW-8)
      does not say anything in his statement.
B
             11. When we compare the statements of PW-1 and PW-5 there
      is another discrepancy viz. in court, the father Motisingh reiterates that
      Mansingh (PW-5) 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
C     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
D     prosecution as to why the names of these three accused-appellants were
      missing both in the “Dehati Nalishi” as well as in the statement of
      Mansingh recorded under Section 161 Cr.P.C. (Exh.D-1). Further, as
      pointed above, Motisingh again in court does not say that Mansingh
      (PW-5) had identified the three accused-appellants as the assailants.
E            12. 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 accused-appellants. 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
F     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.

G
      Devika Gujral                                                 Appeals allowed.




H