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 – 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 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 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 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.
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 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 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]
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. PW5 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 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 accusedappellants were missing both in the “Dehati Nalishi” as well as in the statement of PW-5 recorded under Section 161 Cr.P.C. 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. [Para 11, 12][554-B-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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