Supreme Court of India
MAHENDRA SINGH AND ORS. versus STATE OF M.P. on 3 June 2022
[2022] 6 S.C.R. 737
MAHENDRA SINGH AND ORS.
v.
STATE OF M.P.
(Criminal Appeal No.764 of 2021)
JUNE 03, 2022
[B. R. GAVAI AND HIMA KOHLI, JJ.]
Penal Code, 1860 – ss. 302 r/w s.149, and s.148 – Murder –Conviction of accused-appellants on basis of sole testimony of PW6– High Court found PW6 to be in the category of a witness who was“neither wholly reliable nor wholly unreliable”, and upheldconviction seeking corroboration from post-mortem report –Conviction of appellants – Challenged, on ground that PW6 fell inthe category of a “wholly unreliable” witness – Held: From evidenceof PW3 and PW4 which was fully corroborated by evidence of DW3and DW4, it was clear that PW6 could not have witnessed the incident– Evidence of PW6 would fall in the category of “wholly unreliable”witness – As such, no conviction could be based solely on histestimony – Corroboration sought by High Court from the medicalevidence was not justified – Medical evidence could only establishthat the death was homicidal – However, it could not have beenused to corroborate the version of PW6 that he had witnessed theincident – Prosecution failed to prove the case beyond reasonabledoubt and as such, accused-appellants entitled to be given thebenefit of doubt – Appellants accordingly acquitted.
Criminal Trial – Witnesses – Categories of witnesses – Held:Witnesses are of three types, viz., (a) wholly reliable; (b) whollyunreliable; and (c) neither wholly reliable nor wholly unreliable –When the witness is “wholly reliable”, the Court should not haveany difficulty inasmuch as conviction or acquittal can be based onthe testimony of such single witness – Equally, if the Court findsthat the witness is “wholly unreliable”, there would be no difficultyinasmuch as neither conviction nor acquittal can be based on thetestimony of such witness – It is only in the third category of witnessesthat the Court has to be circumspect and has to look forcorroboration in material particulars by reliable testimony, director circumstantial.
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ACriminal Trial – Motive – Only because motive is established,the conviction cannot be sustained.
Criminal Trial – Witness – Defence witness vis-a-visprosecution witness – Held: Same treatment is required to be givento the defence witness(es) as is to be given to the prosecutionBwitness(es).
Allowing the appeals, the Court
HELD:1.1. In its celebrated judgment in the case of VadiveluThevar, the Supreme Court has found that witnesses are of threetypes, viz., (a) wholly reliable; (b) wholly unreliable; and (c) neitherCwholly reliable nor wholly unreliable. When the witness is “whollyreliable”, the Court should not have any difficulty inasmuch asconviction or acquittal could be based on the testimony of suchsingle witness. Equally, if the Court finds that the witness is“wholly unreliable”, there would be no difficulty inasmuch asDneither conviction nor acquittal can be based on the testimony ofsuch witness. It is only in the third category of witnesses that theCourt has to be circumspect and has to look for corroboration inmaterial particulars by reliable testimony, direct or circumstantial.[Para 13][744-B-C]E
2.1. The High Court found the testimony of PW6 to be inthe third category and upheld the conviction seekingcorroboration from the Post-Mortem Report conducted by PW2.[Para 14][744-D]
2.2. However, it could clearly be seen from the testimonyFof PW3 and PW4, without even referring to the testimony of DW3and DW4, that it was DW3 who had informed PW6 about the dead-body of the deceased lying on route. The evidence of PW3 andPW4 is fully corroborated by the evidence of DW3 and DW4. It isa settled law that same treatment is required to be given to theGdefence witness(es) as is to be given to the prosecutionwitness(es). From the evidence of these witnesses, it is amplyclear that PW6 could not have witnessed the incident. [Paras 17,18, 20 and 21][745-D-E, G-H]
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2.3. The evidence of PW6 would fall in the category of“wholly unreliable” witness. As such, no conviction could bebased solely on his testimony. The corroboration sought by theHigh Court from the medical evidence was not justified. Themedical evidence could only establish that the death washomicidal. However, it could not have been used to corroboratethe version of PW6 that he has witnessed the incident. [Para22][746-A-B]
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2.4. Insofar as the contention of respondent-State that theprosecution has proved the motive is concerned, it is well settledthat only because motive is established, the conviction cannotbe sustained. [Para 23][746-C]
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3. The prosecution has failed to prove the case beyondreasonable doubt and as such, the accused are entitled to be giventhe benefit of doubt. The appellants are acquitted of the chargescharged with. [Paras 24, 25][746-C-D]
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Vadivelu Thevar v. The State of Madras [1957] SCR981 – relied on.
Shakila Abdul Gafar Khan (Smt) v. Vasant RaghunathDhoble and Another (2003) 7 SCC 749 : [2003]3 Suppl. SCR 426; State of Andhra Pradesh v.Pullagummi Kasi Reddy Krishna Reddy Alias RamaKrishna Reddy and Others (2018) 7 SCC 623; andRupinder Singh Sandhu v. State of Punjab and Others(2018) 16 SCC 475 : [2018] 6 SCR 479 – referred to.
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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.764 of 2021.
AFrom the Judgment and Order dated 06.08.2019 of the High Courtof Madhya Pradesh, Bench at Gwalior in Criminal Appeal No.317 of2000.
With
Criminal Appeal No.765 of 2021B
S. Nagamuthu, Sr. Adv., Raj Kishor Choudhary, Shakeel Ahmed,Rizwan Ahmad, Shivam Yadav, Jatin Anand Dwivedi, Advs. for theAppellants.
Ms. Ankita Chaudhary, DAG, Gopal Jha, Amit Sharma,CMs. Himanshi Shakya, Advs. for the Respondent.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
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1. Both these appeals, i.e., Criminal Appeal No.764 of 2021, filedDby Mahendra Singh (accused No.3), Pritam Singh (accused No.4) andShambhu Singh (accused No.9); and Criminal Appeal No.765 of 2021,filed by Lakhan Singh (accused No.11), challenge the judgment dated6[th] August, 2019, delivered by the Division Bench of the High Court ofMadhya Pradesh, Bench at Gwalior, in Criminal Appeal No.317 of 2000,Ethereby dismissing the appeal filed by the present appellants and upholdingtheir conviction under Sections 148 and 302 read with Section 149 IPCand imposing the sentence of one year rigorous imprisonment underSection 148 IPC; and life imprisonment and a fine of Rs.5,000/- eachunder Section 302 read with Section 149 IPC and, in default of paymentof fine, sentence of rigorous imprisonment for a period of two years.F
2. The facts, in brief, giving rise to the present appeals are asunder:
3. The investigation in the present case was set in motion on thebasis of the oral report of Amol Singh (P.W.6), on the basis of which aGFirst Information Report (“FIR” for short), Exhibit P-7, came to beregistered. It is stated by Amol Singh (P.W.6) in the FIR that on12[th] June, 1994, when he was returning from Basoda, he had met hisbrother Bhagat Singh (deceased) at about 6:00 pm and had also metAkhe Singh (PW-4). He further stated that they boarded a bus fromHNayi Sarak till Chak Ranapur. After reaching Chak Ranapur, they walked
towards their village Budhor. At about 7.00 p.m., when they reachedvillage Ratanpur, he was walking ahead, followed by Akhe Singh(PW-4), who in turn, was followed by Bhagat Singh, he heard the criesof his brother Bhagat Singh and when he turned, he saw Shambhu Rajputhitting Bhagat Singh with a ballam; accused Santosh, Lakhan, Mahendraand Pritam had also assaulted Bhagat Singh with ballam, causing injuryon front side of the body; accused-Padam Singh had hit Bhagat Singhwith a rod; accused-Dashrat Singh had assaulted Bhagat Singh with alathi on his head and three others hit Bhagat Singh with sticks. He furtherstated that when the accused charged to assault the complainant-AmolSingh (P.W.6) and Akhe Singh (P.W.4), they started running for their lifeand reached village Budhor and narrated the incident to Deewan Singh,Pooran Singh, Mokam Singh, etc. He has further stated that all of themhad come back to the spot of incident and found Bhagat Singh dead.They hired a tractor of Veer Singh and took the dead-body to the PoliceStation. It is his case that the accused persons had assaulted the deceasedon account of previous enmity.
4. After the conclusion of the investigation, a charge-sheet cameto be filed against 11 accused in the Court of Judicial Magistrate FirstClass, Ganj Basoda, who committed the case to the learned SessionsCourt, Ganj Basoda District Vidisha, Madhya Pradesh (hereinafterreferred to as “the Trial Court”). Charges were framed against all the11 accused for the offences punishable under Sections 148 and 302 readwith Section 149 of the Indian Penal Code, 1860 (hereinafter referred toas “IPC”).
5. At the conclusion of the trial, the Trial Court acquitted BharatSingh (accused No.1), Vishwanath Singh (accused No.2), Dashrath Singh(accused No.5), Padam Singh (accused No.6), Bana Lal alias BanaSingh (accused No.8) and Pappu alias Kuber Singh (accused No.10)vide judgment dated 18[th] April, 2000. However, by the same judgmentdated 18[th] April, 2000, the Trial Court convicted Mahendra Singh (accusedNo.3), Pritam Singh (accused No.4), Santosh (accused No.7), ShambhuSingh (accused No.9) and Lakhan Singh (accused No.11) for the offencespunishable under Section 148, 302 read with Section 149 of the IPC andsentenced them to one year rigorous imprisonment for the offencepunishable under Section 148 IPC; and life imprisonment and a fine ofRs.5,000/- each for the offence punishable under Section 302 read with A
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ASection 149 IPC. They were also sentenced to suffer rigorousimprisonment for a period of two years in default of payment of fine.
6. Being aggrieved by the judgment dated 18[th] April, 2000, passedby the Trial Court, all the convicted and sentenced accused preferred anappeal before the High Court of Madhya Pradesh. By the impugnedBjudgment dated 6[th] August, 2019, the High Court of Madhya Pradesh,Bench at Gwalior, has dismissed the appeal. Hence the present appeals.
7. We have heard Mr. S. Nagamuthu, learned Senior Counselappearing on behalf of the appellants and Ms. Ankita Chaudhary, learnedDeputy Advocate General (“DAG” for short) appearing on behalf ofCthe respondent-State of Madhya Pradesh.
8. Mr. S. Nagamuthu submits that the entire conviction of theappellants is based on the sole testimony of Amol Singh (P.W.6). Thelearned Senior Counsel submits that the evidence of Mahendra Singh(P.W.3) and Akhe Singh (P.W.4) along with the evidence of Mobat SinghD(D.W.3) and Kok Singh Raghuvanshi (D.W.4) would reveal that AmolSingh (P.W.6) could not have witnessed the incident. He submits thatAmol Singh (P.W.6) is the real brother of the deceased Bhagat Singhand therefore his testimony has to be scrutinized with greater care, cautionand circumspection. The learned Senior Counsel relied on the judgmentEof this Court in the case of Vadivelu Thevar vs. The State of Madras[1].It is submitted that the testimony of the said witness falls in the categoryof “wholly unreliable” witness and as such, the conviction on the basisof the testimony of such a witness could not be sustainable.Mr. Nagamuthu further submits that on the basis of the same evidence/Ftestimony, the learned Trial Court had acquitted six accused whileconvicting and sentencing the other five.
9. Mr. Nagamuthu further submits that there is also a doubt as towhether the FIR in the present case is a real FIR or not. It is furthersubmitted that delayed FIR would create a doubt about theGtrustworthiness of the prosecution case.
10. Ms. Ankita Chaudhary, learned DAG, on the contrary, submittedthat the learned Trial Court as well as the High Court have rightly reliedon the testimony of Amol Singh (P.W.6). It is submitted that merely H1 (1957) SCR 981
because a minor contradiction/ inconsistency cropped up in the evidenceof the witness, it cannot be a ground to disbelieve the truthfulness of thetestimony of such a witness. It is submitted that the maxim “falsus inuno falsus in omnibus” is not accepted in India. She therefore submitsthat grain has to be separated from the chaff to find out the truth fromthe testimony of the witness. She relied on the judgments of this Court inthe cases of Shakila Abdul Gafar Khan (Smt) vs. Vasant RaghunathDhoble and another[2], State of Andhra Pradesh vs. Pullagummi KasiReddy Krishna Reddy alias Rama Krishna Reddy and others[3]; andRupinder Singh Sandhu vs. State of Punjab and others[4] to fortify hersubmissions.
11. From the material placed on record, it would reveal that theconviction of the present appellants is based basically on the testimonyof Amol Singh (P.W.6). A corroboration is sought from the medicalevidence in the nature of Post-Mortem Report.
12. It will be apposite to refer to the following observations of thisCourt in its celebrated judgment in the case of Vadivelu Thevar (supra):
“…..Hence, in our opinion, it is a sound and well-established ruleof law that the court is concerned with the quality and not withthe quantity of the evidence necessary for proving or disproving afact. Generally speaking, oral testimony in this context may beclassified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have nodifficulty in coming to its conclusion either way — it may convictor may acquit on the testimony of a single witness, if it is found tobe above reproach or suspicion of interestedness, incompetenceor subornation. In the second category, the court equally has nodifficulty in coming to its conclusion. It is in the third category of 2 (2003) 7 SCC 749
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[2022] 6 S.C.R.
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13. It could thus be seen that this Court has found that witnessesare of three types, viz., (a) wholly reliable; (b) wholly unreliable; and (c)Bneither wholly reliable nor wholly unreliable. When the witness is “whollyreliable”, the Court should not have any difficulty inasmuch as convictionor acquittal could be based on the testimony of such single witness.Equally, if the Court finds that the witness is “wholly unreliable”, therewould be no difficulty inasmuch as neither conviction nor acquittal canCbe based on the testimony of such witness. It is only in the third categoryof witnesses that the Court has to be circumspect and has to look forcorroboration in material particulars by reliable testimony, direct orcircumstantial.
14. The High Court has found the testimony of Amol Singh (P.W.6)Dto be in the third category and has upheld the conviction seekingcorroboration from the Post-Mortem Report conducted by Dr. S.S.Bhargava (P.W.2). We will therefore have to consider as to in whichcategory the evidence/testimony of Amol Singh (P.W.6) would fall.
15. Amol Singh (P.W.6) has elaborately given the details of theEincident. He states that on the day of the incident Bhagat Singh andSantosh Khawas had gone to Nateran and he had gone to Basoda. Ataround 4.45 p.m., he departed to his village. Bhagat Singh sat in his busto go to village. They got down at Ratan Pur Chak bus stop and thereafterwere going to village Budhor. While walking towards their village, atFaround 6.00 p.m., he heard the cries of Bhagat Singh loudly that killedme (Mar Dala). Thereafter he saw all the accused assaulting thedeceased. He states that when the accused persons ran behind him, heran away from there and reached his house at Budhor. Thereafter, henarrated the incident to his brothers, namely, Prag Singh, Pooran Singh Gand Mokam Singh. All of them went to the spot, where they found BhagatSingh dead. Thereafter Pooran Singh got tractor trolley and carriedBhagat Singh at the Nateran Police Station. Thereafter he lodged theFIR. He has also stated that previous enmity was the motive forcommitting the crime.
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16. It will be relevant to refer to the testimony of Mahendra Singh(P.W.3). He has stated in his evidence that he was sitting at his Chabutara(Chowk) in his house. Mobat Singh (D.W.3) told Amol Singh (P.W.6)that Bhagat Singh is lying dead at Nagar Chak. Then, Mokam Singh,Amol Singh (P.W.6), Areg Singh, Parwat Singh, Himmat Singh, Ratan,Fullu, Gullu, Lallu went to see Bhagat Singh at the Chak and along withthem he had also gone to see Bhagat Singh. At the Nagar Chak in frontof the house of Genda, they found Bhagat Singh in a dead condition.Thereafter, Amol Singh (P.W.6) and Mokam Singh carried Bhagat Singhto Nateran. In his cross-examination, he has admitted that Mobat Singh(D.W.3) in his presence had told Amol Singh (P.W.6) that Bhagat Singhis lying dead on the route. Thereafter Amol Singh (P.W.6) became nervousand started weeping. Akhe Singh (P.W.4) has given his testimony onsimilar lines.
17. It could thus clearly be seen from the testimony of MahendraSingh (P.W.3) and Akhe Singh (P.W.4), without even referring to thetestimony of Mobat Singh (D.W.3) and Kok Singh Raghuvanshi (D.W.4),that it was Mobat Singh (D.W.3) who had informed Amol Singh (P.W.6)about the dead-body of Bhagat Singh lying on route.
18. The evidence of Mahendra Singh (P.W.3) and Akhe Singh(P.W.4) is fully corroborated by the evidence of Mobat Singh (D.W.3)and Kok Singh Raghuvanshi (D.W.4). Kok Singh Raghuvanshi (D.W.4)in his evidence states that when he was going from Basoda to Budhoron his motorcycle, one person by the name of Pran Singh stopped himand told him that Bhagat Singh was lying dead on the route. He thereafterwent to village Budhor and gave this information to Mobat Singh (D.W.3).
19. Mobat Singh (D.W.3) in his evidence states that he wasinformed about Bhagat Singh lying dead on the route by Kok SinghRaghuvanshi (D.W.4). He thereafter went to the house of Bhagat Singhand informed about the same to Prag Singh, Amol Singh (P.W.6), MokamSingh, Pooran Singh and Akhe Singh.
20. It is a settled law that same treatment is required to be givento the defence witness(es) as is to be given to the prosecution witness(es).
21. From the evidence of these witnesses, it is amply clear thatAmol Singh (P.W.6) could not have witnessed the incident.
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A22. We therefore find that the evidence of Amol Singh (P.W.6)would fall in the category of “wholly unreliable” witness. As such, noconviction could be based solely on his testimony. We find that thecorroboration sought by the High Court from the medical evidence wasnot justified. The medical evidence could only establish that the deathBwas homicidal. However, it could not have been used to corroborate theversion of Amol Singh (P.W.6) that he has witnessed the incident.
23. Insofar as the contention of learned DAG for the respondent-State that the prosecution has proved the motive is concerned, it is wellsettled that only because motive is established, the conviction cannot beCsustained.
24. In that view of the matter, we find that the prosecution hasfailed to prove the case beyond reasonable doubt and as such, the accusedare entitled to be given the benefit of doubt.
25. In the result, we pass the following order:D
(i) The appeals are allowed.
(ii) The impugned judgment dated 6[th] August, 2019, delivered bythe Division Bench of the High Court of Madhya Pradesh inCriminal Appeal No.317 of 2000 as well as the judgmentEand order dated 18[th] April, 2000, passed by the learnedAdditional Sessions Judge, Ganj Basoda, District Vidisha,Madhya Pradesh in Sessions Trial No.248 of 1996 arequashed and set aside.
(iii) The appellants are acquitted of the charges charged with.FThey are directed to be set at liberty forthwith, if not requiredin any other case.
26. Pending applications, including application for bail, shall standdisposed of in the above terms.
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Bibhuti Bhushan Bose
Appeals allowed.
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