In a pertinent, practical, pragmatic, powerful and progressive judgment titled Mahendra Singh and Ors vs State of MP in Criminal Appeal No. 764 & 765 of 2021 and cited in 2022 LiveLaw (SC) 543 that was pronounced as recently as on June 3, 2022 in exercise of its criminal appellate jurisdiction, the apex court has made it crystal clear that conviction cannot be based solely on the testimony of a wholly unreliable witness. In this leading case, we see that the Trial Court convicted Mahendra Singh, Pritam Singh, Santosh, Shambhu Singh and Lakhan Singh under Section 148, 302 read with Section 149 of the Indian Penal Code. The Division Bench of Madhya Pradesh High Court too upheld the Trial Court judgment and dismissed their appeals. But the Apex Court acquitted the appellants of the charges charged with and directed to be set at liberty forthwith if not required in any other case.
In brief, the key points of this learned judgments are summed up as:
1. Witnesses are of three types, viz., (a) wholly reliable; (b) wholly unreliable; and (c) neither wholly reliable nor wholly unreliable. When the witness is “wholly reliable”, the Court should not have any difficulty in as much as conviction or acquittal could be based on the testimony of such single witness. Equally, if the Court finds that the witness is “wholly unreliable”, neither conviction nor acquittal can be based on the testimony of such a witness. It is only in the third category of witness that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. [Referred to Vadivelu Thevar vs The State of Madras (1957) SCR 981 para 12-13].
2. Only because the motive is established, the conviction cannot be sustained in a criminal trial. (Para 23).
3. In a criminal trial, the same treatment is required to be given to the defence witness(es) as is to be given to the prosecution witness(es). (Para 20).
To start with, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice BR Gavai for a Bench of Apex Court comprising of himself and Hon’ble Ms Justice Hima Kohli sets the pitch in motion by first and foremost putting forth in para 1 that, “Both these appeals, i.e., Criminal Appeal No.764 of 2021, filed by Mahendra Singh (accused No.3), Pritam Singh (accused No.4) and Shambhu Singh (accused No.9); and Criminal Appeal No.765 of 2021, filed by Lakhan Singh (accused No.11), challenge the judgment dated 6 th August, 2019, delivered by the Division Bench of the High Court of Madhya Pradesh, Bench at Gwalior, in Criminal Appeal No.317 of 2000, thereby dismissing the appeal filed by the present appellants and upholding their conviction under Sections 148 and 302 read with Section 149 IPC and imposing the sentence of one year rigorous imprisonment under Section 148 IPC; and life imprisonment and a fine of Rs.5,000/- each under Section 302 read with Section 149 IPC and, in default of payment of fine, sentence of rigorous imprisonment for a period of two years.”
To put things in perspective, the Bench then while stating the facts in brief which gave rise to the present appeals is then envisaged in para 3 that, “The investigation in the present case was set in motion on the basis of the oral report of Amol Singh (P.W.6), on the basis of which a First Information Report (“FIR” for short), Exhibit P7 , came to be registered. It is stated by Amol Singh (P.W.6) in the FIR that on 12th June, 1994, when he was returning from Basoda, he had met his brother Bhagat Singh (deceased) at about 6:00 pm and had also met Akhe Singh (PW-4). He further stated that they boarded a bus from Nayi Sarak till Chak Ranapur. After reaching Chak Ranapur, they walked towards their village Budhor. At about 7.00 p.m., when they reached village Ratanpur, he was walking ahead, followed by Akhe Singh (PW-4), who in turn, was followed by Bhagat Singh, he heard the cries of his brother Bhagat Singh and when he turned, he saw Shambhu Rajput hitting Bhagat Singh with a ballam; accused Santosh, Lakhan, Mahendra and Pritam had also assaulted Bhagat Singh with ballam, causing injury on front side of the body; accused-Padam Singh had hit Bhagat Singh with a rod; accused-Dashrat Singh had assaulted Bhagat Singh with a lathi on his head and three others hit Bhagat Singh with sticks. He further stated that when the accused charged to assault the complainant-Amol Singh (P.W.6) and Akhe Singh (P.W.4), they started running for their life and reached village Budhor and narrated the incident to Deewan Singh, Pooran Singh, Mokam Singh, etc. He has further stated that all of them had 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 Police Station. It is his case that the accused persons had assaulted the deceased on account of previous enmity.”
In hindsight, the Bench then recalls in para 4 that, “After the conclusion of the investigation, a charge-sheet came to be filed against 11 accused in the Court of Judicial Magistrate First Class, Ganj Basoda, who committed the case to the learned Sessions Court, Ganj Basoda District Vidisha, Madhya Pradesh (hereinafter referred to as “the Trial Court”). Charges were framed against all the 11 accused for the offences punishable under Sections 148 and 302 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).”
As we see, the Bench then discloses in para 5 that, “At the conclusion of the trial, the Trial Court acquitted Bharat Singh (accused No.1), Vishwanath Singh (accused No.2), Dashrath Singh (accused No.5), Padam Singh (accused No.6), Bana Lal alias Bana Singh (accused No.8) and Pappu alias Kuber Singh (accused No.10) vide judgment dated 18th April, 2000. However, by the same judgment dated 18th April, 2000, the Trial Court convicted Mahendra Singh (accused No.3), Pritam Singh (accused No.4), Santosh (accused No.7), Shambhu Singh (accused No.9) and Lakhan Singh (accused No.11) for the offences punishable under Section 148, 302 read with Section 149 of the IPC and sentenced them to one year rigorous imprisonment for the offence punishable under Section 148 IPC; and life imprisonment and a fine of Rs.5,000/each for the offence punishable under Section 302 read with Section 149 IPC. They were also sentenced to suffer rigorous imprisonment for a period of two years in default of payment of fine.”
As it turned out, the Bench then while mentioning the reason for the present appeals observes in para 6 that, “Being aggrieved by the judgment dated 18th April, 2000, passed by the Trial Court, all the convicted and sentenced accused preferred an appeal before the High Court of Madhya Pradesh. By the impugned judgment dated 6 th August, 2019, the High Court of Madhya Pradesh, Bench at Gwalior, has dismissed the appeal. Hence the present appeals.”
Needless to say, the Bench then remarked in para 7 that, “We have heard Mr. S. Nagamuthu, learned Senior Counsel appearing on behalf of the appellants and Ms. Ankita Chaudhary, learned Deputy Advocate General (“DAG” for short) appearing on behalf of the respondent-State of Madhya Pradesh.”
On the one hand, the Bench mentions in para 8 that, “Mr. S. Nagamuthu submits that the entire conviction of the appellants is based on the sole testimony of Amol Singh ( P.W.6). The learned Senior Counsel submits that the evidence of Mahendra Singh (P.W.3) and Akhe Singh (P.W.4) along with the evidence of Mobat Singh (D.W.3) and Kok Singh Raghuvanshi (D.W.4) would reveal that Amol Singh (P.W.6) could not have witnessed the incident. He submits that Amol Singh (P.W.6) is the real brother of the deceased Bhagat Singh and therefore his testimony has to be scrutinized with greater care, caution and circumspection. The learned Senior Counsel relied on the judgment of this Court in the case of Vadivelu Thevar vs. The State of Madras (1957) SCR 981. It is submitted that the testimony of the said witness falls in the category of “wholly unreliable” witness and as such, the conviction on the basis of the testimony of such a witness could not be sustainable. Mr. Nagamuthu further submits that on the basis of the same evidence/testimony, the learned Trial Court had acquitted six accused while convicting and sentencing the other five.”
Furthermore, the Bench then adds in para 9 that, “Mr. Nagamuthu further submits that there is also a doubt as to whether the FIR in the present case is a real FIR or not. It is further submitted that delayed FIR would create a doubt about the trustworthiness of the prosecution case.”
On the other hand, the Bench then points out in para 10 that, “Ms. Ankita Chaudhary, learned DAG, on the contrary, submitted that the learned Trial Court as well as the High Court have rightly relied on the testimony of Amol Singh (P.W.6). It is submitted that merely because a minor contradiction/inconsistency cropped up in the evidence of the witness, it cannot be a ground to disbelieve the truthfulness of the testimony of such a witness. It is submitted that the maxim “falsus in uno falsus in omnibus” is not accepted in India. She therefore submits that grain has to be separated from the chaff to find out the truth from the testimony of the witness. She relied on the judgments of this Court in the cases of Shakila Abdul Gafar Khan (Smt) vs. Vasant Raghunath Dhoble and another (2003) 7 SCC 749, State of Andhra Pradesh vs. Pullagummi Kasi Reddy Krishna Reddy alias Rama Krishna Reddy and others (2018) 7 SCC 623; and Rupinder Singh Sandhu vs. State of Punjab and others (2018) 16 SCC 475 to fortify her submissions.”
Of course, the Bench then reveals in para 11 that, “From the material placed on record, it would reveal that the conviction of the present appellants is based basically on the testimony of Amol Singh (P.W.6). A corroboration is sought from the medical evidence in the nature of Post-Mortem Report.”
Notably, the Bench then aptly states in para 12 that, “It will be apposite to refer to the following observations of this Court in its celebrated judgment in the case of Vadivelu Thevar (supra):
“…..Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified 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 no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.””
While continuing in the same vein, the Bench then underscores in para 13 holding that, “It could thus be seen that this Court has found that witnesses are of three types, viz., (a) wholly reliable; (b) wholly unreliable; and (c) neither wholly reliable nor wholly unreliable. When the witness is “wholly reliable”, the Court should not have any difficulty inasmuch as conviction or acquittal could be based on the testimony of such single witness. Equally, if the Court finds that the witness is “wholly unreliable”, there would be no difficulty inasmuch as neither conviction nor acquittal can be based on the testimony of such witness. It is only in the third category of witnesses that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.”
Practically speaking, the Bench then opines in para 14 that, “The High Court has found the testimony of Amol Singh (P.W.6) to be in the third category and has upheld the conviction seeking corroboration from the Post-Mortem Report conducted by Dr. S.S. Bhargava (P.W.2). We will therefore have to consider as to in which category the evidence/testimony of Amol Singh (P.W.6) would fall.”
It deserves mentioning that the Bench then states in para 15 that, “Amol Singh (P.W.6) has elaborately given the details of the incident. He states that on the day of the incident Bhagat Singh and Santosh Khawas had gone to Nateran and he had gone to Basoda. At around 4.45 p.m., he departed to his village. Bhagat Singh sat in his bus to go to village. They got down at Ratan Pur Chak bus stop and thereafter were going to village Budhor. While walking towards their village, at around 6.00 p.m., he heard the cries of Bhagat Singh loudly that killed me (Mar Dala). Thereafter he saw all the accused assaulting the deceased. He states that when the accused persons ran behind him, he ran away from there and reached his house at Budhor. Thereafter, he narrated the incident to his brothers, namely, Prag Singh, Pooran Singh and Mokam Singh. All of them went to the spot, where they found Bhagat Singh dead. Thereafter Pooran Singh got tractor trolley and carried Bhagat Singh at the Nateran Police Station. Thereafter he lodged the FIR. He has also stated that previous enmity was the motive for committing the crime.”
Be it noted, the Bench then specifies in para 16 that, “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 with them he had also gone to see Bhagat Singh. At the Nagar Chak in front of the house of Genda, they found Bhagat Singh in a dead condition. Thereafter, Amol Singh (P.W.6) and Mokam Singh carried Bhagat Singh to 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 Singh is lying dead on the route. Thereafter Amol Singh (P.W.6) became nervous and started weeping. Akhe Singh (P.W.4) has given his testimony on similar lines.”
Quite discernibly, the Bench then notes in para 17 that, “It could thus clearly be seen from the testimony of Mahendra Singh (P.W.3) and Akhe Singh (P.W.4), without even referring to the testimony 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.”
What’s more, the Bench then discloses in para 18 that, “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 Budhor on his motorcycle, one person by the name of Pran Singh stopped him and told him that Bhagat Singh was lying dead on the route. He thereafter went to village Budhor and gave this information to Mobat Singh (D.W.3).”
In addition, the Bench then reveals in para 19 that, “Mobat Singh (D.W.3) in his evidence states that he was informed about Bhagat Singh lying dead on the route by Kok Singh Raghuvanshi (D.W.4). He thereafter went to the house of Bhagat Singh and informed about the same to Prag Singh, Amol Singh (P.W.6), Mokam Singh, Pooran Singh and Akhe Singh.”
It is a no-brainer that the Bench then enunciates in para 20 that, “It is a settled law that same treatment is required to be given to the defence witness(es) as is to be given to the prosecution witness(es).”
As anticipated, the Bench then holds in para 21 that, “From the evidence of these witnesses, it is amply clear that Amol Singh (P.W.6) could not have witnessed the incident.”
Most significantly, the Bench then minces no words to hold in para 22 that, “We therefore find that the evidence of Amol Singh (P.W.6) would fall in the category of “wholly unreliable” witness. As such, no conviction could be based solely on his testimony. We find that the corroboration sought by the High Court from the medical evidence was not justified. The medical evidence could only establish that the death was homicidal. However, it could not have been used to corroborate the version of Amol Singh (P.W.6) that he has witnessed the incident.”
Quite forthrightly, the Bench then observes in para 23 that, “Insofar as the contention of learned DAG for the respondent-State that the prosecution has proved the motive is concerned, it is well settled that only because motive is established, the conviction cannot be sustained.”
Quite ostensibly, the Bench then holds in para 24 that, “In that view of the matter, we find that the prosecution has failed to prove the case beyond reasonable doubt and as such, the accused are entitled to be given the benefit of doubt.”
Most remarkably, the Bench then directs in para 25 that, “In the result, we pass the following order:
(i) The appeals are allowed.
(ii) The impugned judgment dated 6 th August, 2019 , delivered by the Division Bench of the High Court of Madhya Pradesh in Criminal Appeal No.317 of 2000 as well as the judgment and order dated 18th April, 2000, passed by the learned Additional Sessions Judge, Ganj Basoda, District Vidisha, Madhya Pradesh in Sessions Trial No.248 of 1996 are quashed and set aside.
(iii) The appellants are acquitted of the charges charged with. They are directed to be set at liberty forthwith, if not required in any other case.”
Finally, the Bench then concludes by holding in para 26 that, “Pending applications, including application for bail, shall stand disposed of in the above terms.”
In a nutshell, the Apex Court has taken a very pragmatic stand that the conviction cannot be based solely on the testimony of a wholly unreliable witness. It has exhaustively dwelt on why the benefit of doubt must definitely go to the appellants as discussed herein aforesaid. There is definitely no rhyme or reason to differ even slightly with what the Apex Court has held so very commendably!
Sanjeev Sirohi is an Advocate
