IMPORTANT POINT
Conviction cannot be sustained where prosecution evidence is weak in material aspects.

JUDGMENT :

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. 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.

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 (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 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 (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 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 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 of the investigation, chargesheet 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 “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 attacked Babusingh just before they entered the Village. All the three persons