IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1062 OF 2003

State of Madhya Pradesh … Appellant

Vs.

Kalyan Singh … Respondent

O R D E R

This is  a State  appeal  by special  leave against  the judgment  dated

20.3.2001 of Madhya Pradesh High Court  in Criminal  Appeal  No.447 of

1988 acquitting the respondent Kalyan Singh (Accused No.1) by giving him

the benefit of doubt.  

2. The prosecution case in brief is that there was enmity between Balbir

Singh,  father  of  respondent  and  Jagdish  (PW12)  on  account  of  Jagdish

defeating Balbir Singh in the Sarpanch elections. On 18.3.1984, a day after

the Holi festival, Jagdish as Sarpanch, invited the villagers for playing Faag

at Panchayat Bhawan. One Barar, a member of Jagdish’s group, was playing

Dholak. Balbir Singh came there and tried to snatch the Dholak from Barar.

Jagdish objected to Balbir trying to play Dholak at Faag function organized

by him and tried to pull the Dholak. In the meanwhile, Kalyan Singh, son of

Balbir came there armed with a gun. Balbir exhorted him to kill Jagdish.

Kalyan Singh fired at Jagdish causing injury on the hip of Jagdish. Jagdish

fired back with his pistol and Balbir collapsed and died. Thereafter, Kalyan

Singh took another shot at Jagdish. The shot hit Bhajju who fell down and

died. Gajraj (PW8), who was standing nearby, also received pellet injuries.

When Kalyan Singh again tried to shoot, Banmali (PW1) snatched the gun

and  ran.  Sovran  (A2)  and  Ghanshyam (A4)  beat  Banmali.  Banmali  fell

down. Gajraj took the gun from Banmali and kept it in the shop of Jagdish.  

3. On receipt of the information, police visited the place of incident and

on  the  Dehati  Nalshi  of  given  by  PW7  Sita  Ram,  (Ex.P7),  FIR  was

registered.  Jagdish  (PW12),  Gajraj  (PW8)  and  Banmali  (PW1)  who

sustained  injuries  in  the  incident  were  medically  examined.  After

investigation police submitted a charge-sheet against the respondent Kalyan

Singh (A1) for the offence under section 302 IPC for causing the death of

Bhajju,  for  the  offence  under  section  307  IPC for  attempting  to  murder

Jagdish and for offences under sections 25    and 27 of Arms Act, for using

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the gun without a licence. The charge-sheet was also filed against Accused

Nos.2 to 6 for offences under section 201 IPC, alleging that they had filed a

false report  with the police with the purpose of concealing the murder of

Bhajju.  

4. The defence was that Jagdish (PW12) and his party came to the house

of Balbir Singh and called him. When Balbir  came out, Jagdish (PW12)

shot  him  and  Balbir  died.  Then,  Bhajju  nephew  of  Balbir  Singh  came

running to the place of incident. One Hari Gupta belonging to the group of

Jagdish shot him and Bhajju died. The accused relied on the reports Ex.D4

and Ex.D9 and the evidence of  DW1 to DW4 who narrated the  defence

version. It is stated that DW4 was the father and DW3 was the brother of

deceased Bhajju.  

5. The police however on investigation was of the view that Hari Gupta

did not shoot Bhajju and they accepted the version of Jagdish and his party.

The Trial Court by its judgment dated 12.4.1988 acquitted Accused 2 to 6 as

prosecution was not able to prove the offence under section 201 IPC against

them. In so far as Kalyan Singh (A1) was concerned, the Trial Court held

that prosecution had proved the offences under sections 302 and 307 IPC

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and sections 25 and 27 of Arms Act. It  sentenced the first  respondent to

undergo RI for life, three years, one year and three years respectively for the

offences under sections 302 IPC, 307 IPC, sections 25 and 27 of Arms Act.  

6. Feeling  aggrieved,  Kalyan  Singh  filed  an  appeal.  The  Madhya

Pradesh High Court by its judgment dated 20.3.2001 allowed the appeal and

set aside the conviction and sentence against Kalyan Singh. It gave him the

benefit of doubt for the following four reasons :  

(i) Though the occurrence took place on 18.3.1984, the statements of

three eye-witnesses, namely, Banmali (PW1), Dhani Ram (PW3)

and  Michhua  (PW4)  were  recorded  only  on  6.4.1984  and  the

evidence of two other eye-witnesses – Pholua (PW5) and Sita Ram

(PW7) were recorded on 7.4.1984 and there was no explanation

for the delay of three weeks in recording their statements;  

(ii) Sita Ram (PW7) categorically stated that he had lodged the report

at police station,  but the prosecution case was that Dehati  Nalsi

(Ex.P7) was recorded at the spot.  

(iii) There  was  non-compliance  with  the  provision  of  section  157

Cr.PC as the report was not sent to the nearest Magistrate.  

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(iv) According to  the evidences  of  Dhani Ram (PW3) and Michhua

(PW4), Kalyan Singh fired from a distance but the Doctor found

blackening on the body of the deceased Bhajju and that did not fit

in with the case of the prosecution.  

The High Court accepted the contention of the defence that the prosecution

case was shrouded in mystery and full  of inconsistencies  and infirmities,

creating a doubt about the prosecution case.  

7. The said acquittal is challenged by the State in this appeal by special

leave. Learned counsel for the State submitted that each of the four reasons

mentioned by the High Court were not material, nor sufficient to dislodge

the effect of the clear evidence of the injured witnesses PWs 1, 8 and 12 and

the other eye-witnesses PWs.3, 4, 5, and 7. The question that therefore falls

for our consideration is whether the circumstances referred to by the High

Court are so insignificant and irrelevant, so as to require interference  with

the judgment of the High Court.  

8. The fact that the incident occurred on 18.3.1984 and the statements of

PWs.1, 3 and 4 were recorded only on 6.4.1984 and the statements of PWs.

5 and 7 were recorded only on 7.4.1984 nearly three weeks later is not in

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dispute. When this fact is looked at proper perspective, we find that High

Court  was  justified  in  accepting  this  as  a  relevant  circumstance.  The

prosecution case is virtually the version put-forth by Jagdish and his party.

According  to  the  prosecution  witnesses  (Jagdish  and  his  group),  Balbir

exhorted  his  son  Kalyan  Singh  to  kill  him (Jagdish)  and  Kalyan  Singh

accordingly fired two shots – one of which hit Jagdish on his hip and the

second missed Jagdish but hit Bhajju and killed him. It is also the case of

the prosecution that after Kalyan Singh shot Jagdish, Jagdish retaliated by

firing at  Balbir and consequently Balbir  Singh died.  But the evidence of

PWs. 1, 3 and 5 is significant. They stated that Jagdish did not fire back

after  being  hit.  Their  version  is  that  on  being  hit  by the  bullet  fired  by

Kalyan Singh, Jagdish fell down and his gun was accidentally triggered and

consequently Balbir Singh was hit. But this was different from the case of

the prosecution that when Kalyan Singh fired at Jagdish, Jagdish fired back

hitting Balbir Singh. We are referring to this aspect to show that PWs.1, 3

and 5 are clearly Jagdish’s men trying to exonerate Jagdish and implicate

Kalyan  Singh  and  their  belated  statements  are  apparently  an  attempt  to

create a story favouring Jagdish and implicating Kalyan Singh. If PWs.1, 3,

4, 5 and 7 were all present at the time of the incident, there is no explanation

why their statements were not recorded for three weeks. One explanation is

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that  they  were  not  eye-witnesses  and  another  is  that  they  did  not

immediately come forward to tell the truth but came forward belatedly with

a  fabricated  version.  It  is  apparent  that  there  was  a  clash  between  two

groups of Jagdish and Balbir. The two persons who died belonged to the

group of accused,  namely, Balbir,  father of the accused no.1 and Bhajju,

cousin of accused no.1. But Kalyan Singh is implicated for the murder of

Bhajju  by  these  alleged  eye-witnesses  by  belatedly  coming  forward  and

countering  the  defence  version  that  Hari  Gupta  of  Jagdish’s  group  shot

Bhajju. Therefore  the delay in recording the statements of PWs.1, 3, 4, 5

and 7 had a material bearing on the case.  

9. Similarly, the question whether Dehati Nalsi was recorded at site or

not also assumes relevance. Dehati Nalshi is based on Sita Ram’s statement

which in fact is the prosecution case. This is completely at variance from the

reports Ex.D4 and D9 which are the reports of the incident from the side of

the accused  alleging that  Jagdish  with  his  party  came to  Balbir’s  house,

called him out and shot him and that another person belonging to Jagdish

group  (Hari  Gupta)  shot  Bhajju.  Where  and  when  Dehati  nalshi  was

recorded therefore assumes relevance and significance.  

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10. In so far as the failure to send the report  to the nearest Magistrate,

learned counsel for the appellant drew our attention to Regulation 710 of the

Madhya Pradesh Police Regulations which stated that the FIR given to the

Officer-in-Charge of the police station, will be recorded in duplicate and a

copy will be sent to the Sub-Divisional Magistrate or the Magistrate having

jurisdiction. It is therefore submitted that in Madhya Pradesh, the report was

not being sent to Magistrate as required by section 157 Cr.PC but to Sub-

Divisional Magistrate or District Magistrate. He relied on the copy of the

report dated 18.4.1984 which had been filed with a supplementary affidavit

to show that a copy was sent to the District Magistrate, Tikamgarh. The fact

that  it  was  not  sent  to  the  nearest  Magistrate,  is  not  however  disputed.

Regulation  710  does  not  override  section  157  Cr.PC nor  does  it  give  a

choice to Police not to send the report to the Magistrate.  

11. In regard to the fourth circumstance, suffice it  to point  out  that its

correctness is not even disputed in the special leave petition.  

12. We are of the view that the circumstances relied on by the High Court

to give benefit of doubt to the respondent, are relevant and material. Taken

together, they rightly give room for doubt about the prosecution case and

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the  guilt  of  the  respondent.  The  appeal  has  no  merit  and  is  dismissed

accordingly.  

…………………………….J [R. V. Raveendran]

……………………………..J [P. Sathasivam]

New Delhi; June 26, 2008  

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