REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.764 OF 2021
MAHENDRA SINGH AND ORS. ...APPELLANT(S)
VERSUS
STATE OF M.P. ...RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.765 OF 2021
JUDGMENT
B.R. GAVAI, J.
1. 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 6th August, 2019, delivered by the
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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.
2. The facts, in brief, giving rise to the present appeals are as
under:
3. 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
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about 6:00 pm and had also met Akhe Singh (PW4). 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 (PW4), 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; accusedPadam Singh had hit Bhagat
Singh with a rod; accusedDashrat 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 complainantAmol 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
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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 deadbody to the Police Station. It is his case that
the accused persons had assaulted the deceased on account of
previous enmity.
4. After the conclusion of the investigation, a chargesheet
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”).
5. 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
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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.
6. 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 6th August, 2019,
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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 Counsel
appearing on behalf of the appellants and Ms. Ankita
Chaudhary, learned Deputy Advocate General (“DAG” for short)
appearing on behalf of the respondentState of Madhya
Pradesh.
8. 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
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relied on the judgment of this Court in the case of Vadivelu
Thevar vs. The State of Madras1
. 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.
9. 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.
10. 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
1 (1957) SCR 981
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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 another2
, State of Andhra Pradesh vs.
Pullagummi Kasi Reddy Krishna Reddy alias Rama
Krishna Reddy and others3
; and Rupinder Singh Sandhu
vs. State of Punjab and others4
to fortify her submissions.
11. 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 PostMortem Report.
2 (2003) 7 SCC 749
3 (2018) 7 SCC 623
4 (2018) 16 SCC 475
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12. 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 wellestablished 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
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corroboration in material particulars
by reliable testimony, direct or
circumstantial.”
13. 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.
14. 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 PostMortem Report
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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.
15. 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.
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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.
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 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 crossexamination, 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
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route. Thereafter Amol Singh (P.W.6) became nervous and
started weeping. Akhe Singh (P.W.4) has given his testimony
on similar lines.
17. 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 deadbody 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 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).
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19. 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.
20. 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).
21. From the evidence of these witnesses, it is amply clear
that Amol Singh (P.W.6) could not have witnessed the incident.
22. 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
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not have been used to corroborate the version of Amol Singh
(P.W.6) that he has witnessed the incident.
23. Insofar as the contention of learned DAG for the
respondentState that the prosecution has proved the motive is
concerned, it is well settled that only because motive is
established, the conviction cannot be sustained.
24. 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.
25. In the result, we pass the following order:
(i) The appeals are allowed.
(ii) The impugned judgment dated 6th 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
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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.
26. Pending applications, including application for bail, shall
stand disposed of in the above terms.
…….........................J.
[B.R. GAVAI]
…….........................J.
[HIMA KOHLI]
NEW DELHI;
JUNE 03, 2022.
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