MAHENDRA SINGH AND ORS.versusSTATE OF M.P.

                          [2022] 6 S.C.R. 737                               737


                  MAHENDRA SINGH AND ORS.                                   A
                                   v.
                           STATE OF M.P.
                  (Criminal Appeal No.764 of 2021)
                            JUNE 03, 2022                                   B
             [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
                                                                            C
“neither wholly reliable nor wholly unreliable”, and upheld
conviction seeking corroboration from post-mortem report –
Conviction of appellants – Challenged, on ground that PW6 fell in
the category of a “wholly unreliable” witness – Held: From evidence
of PW3 and PW4 which was fully corroborated by evidence of DW3
and DW4, it was clear that PW6 could not have witnessed the incident        D
– Evidence of PW6 would fall in the category of “wholly unreliable”
witness – As such, no conviction could be based solely on his
testimony – Corroboration sought by High Court from the medical
evidence was not justified – Medical evidence could only establish
that the death was homicidal – However, it could not have been
                                                                            E
used to corroborate the version of PW6 that he had witnessed the
incident – Prosecution failed to prove the case beyond reasonable
doubt and as such, accused-appellants entitled to be given the
benefit of doubt – Appellants accordingly acquitted.
       Criminal Trial – Witnesses – Categories of witnesses – Held:
                                                                            F
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 can 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       G
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.
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                                  737
738            SUPREME COURT REPORTS                         [2022] 6 S.C.R.


A           Criminal Trial – Motive – Only because motive is established,
      the conviction cannot be sustained.
            Criminal Trial – Witness – Defence witness vis-a-vis
      prosecution witness – Held: Same treatment is required to be given
      to the defence witness(es) as is to be given to the prosecution
B     witness(es).
            Allowing the appeals, the Court
             HELD:1.1. In its celebrated judgment in the case of Vadivelu
      Thevar, the Supreme Court has found that witnesses are of three
      types, viz., (a) wholly reliable; (b) wholly unreliable; and (c) neither
C
      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
D     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.
      [Para 13][744-B-C]
E          2.1. The High Court found the testimony of PW6 to be in
      the third category and upheld the conviction seeking
      corroboration from the Post-Mortem Report conducted by PW2.
      [Para 14][744-D]
             2.2. However, it could clearly be seen from the testimony
F
      of PW3 and PW4, without even referring to the testimony of DW3
      and DW4, that it was DW3 who had informed PW6 about the dead-
      body of the deceased lying on route. The evidence of PW3 and
      PW4 is fully corroborated by the evidence of DW3 and DW4. It is
      a settled law that same treatment is required to be given to the
G     defence witness(es) as is to be given to the prosecution
      witness(es). From the evidence of these witnesses, it is amply
      clear that PW6 could not have witnessed the incident. [Paras 17,
      18, 20 and 21][745-D-E, G-H]

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       MAHENDRA SINGH AND ORS. v. STATE OF M.P.                      739


      2.3. The evidence of PW6 would fall in the category of         A
“wholly unreliable” witness. As such, no conviction could be
based solely on his testimony. 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       B
the version of PW6 that he has witnessed the incident. [Para
22][746-A-B]
      2.4. Insofar as the contention of respondent-State that the
prosecution has proved the motive is concerned, it is well settled
that only because motive is established, the conviction cannot       C
be sustained. [Para 23][746-C]
      3. 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. The appellants are acquitted of the charges
charged with. [Paras 24, 25][746-C-D]                                D
     Vadivelu Thevar v. The State of Madras [1957] SCR
     981 – relied on.
     Shakila Abdul Gafar Khan (Smt) v. Vasant Raghunath
     Dhoble and Another (2003) 7 SCC 749 : [2003]
                                                                     E
     3 Suppl. SCR 426; State of Andhra Pradesh v.
     Pullagummi Kasi Reddy Krishna Reddy Alias Rama
     Krishna Reddy and Others (2018) 7 SCC 623; and
     Rupinder Singh Sandhu v. State of Punjab and Others
     (2018) 16 SCC 475 : [2018] 6 SCR 479 – referred to.
                                                                     F
                      Case Law Reference
[1957] SCR 981                   relied on           Para 8
[2003] 3 Suppl. SCR 426          referred to         Para 10
(2018) 7 SCC 623                 referred to         Para 10         G
[2018] 6 SCR 479                 referred to         Para 10
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.764 of 2021.

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740               SUPREME COURT REPORTS                        [2022] 6 S.C.R.


A           From the Judgment and Order dated 06.08.2019 of the High Court
      of Madhya Pradesh, Bench at Gwalior in Criminal Appeal No.317 of
      2000.
               With
               Criminal Appeal No.765 of 2021
B
            S. Nagamuthu, Sr. Adv., Raj Kishor Choudhary, Shakeel Ahmed,
      Rizwan Ahmad, Shivam Yadav, Jatin Anand Dwivedi, Advs. for the
      Appellants.
           Ms. Ankita Chaudhary, DAG, Gopal Jha, Amit Sharma,
C     Ms. Himanshi Shakya, Advs. for the Respondent.
               The Judgment of the Court was delivered by
               B. R. GAVAI, J.
             1. Both these appeals, i.e., Criminal Appeal No.764 of 2021, filed
D     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 Division Bench of the High Court of
      Madhya Pradesh, Bench at Gwalior, in Criminal Appeal No.317 of 2000,
E     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.
F
               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
G     First Information Report (“FIR” for short), Exhibit P-7, 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
H     Nayi Sarak till Chak Ranapur. After reaching Chak Ranapur, they walked
        MAHENDRA SINGH AND ORS. v. STATE OF M.P.                              741
                    [B. R. GAVAI, J.]

towards their village Budhor. At about 7.00 p.m., when they reached           A
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        B
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
                                                                              C
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.                                                D

       4. 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        E
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
                                                                              F
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           G
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        H
742               SUPREME COURT REPORTS                         [2022] 6 S.C.R.


A     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
B     judgment dated 6th 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 Counsel
      appearing on behalf of the appellants and Ms. Ankita Chaudhary, learned
      Deputy Advocate General (“DAG” for short) appearing on behalf of
C     the respondent-State 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
      (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
E     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/
F     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
G     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

H     1
          (1957) SCR 981
        MAHENDRA SINGH AND ORS. v. STATE OF M.P.                                743
                    [B. R. GAVAI, J.]

because a minor contradiction/ inconsistency cropped up in the evidence         A
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      B
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.
                                                                                C
      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 Post-Mortem Report.
      12. It will be apposite to refer to the following observations of this    D
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          E
       classified into three categories, namely:
          (1) Wholly reliable.
          (2) Wholly unreliable.
          (3) Neither wholly reliable nor wholly unreliable.                    F
              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         G
       difficulty in coming to its conclusion. It is in the third category of

2
  (2003) 7 SCC 749
3
  (2018) 7 SCC 623
4
  (2018) 16 SCC 475                                                             H
744             SUPREME COURT REPORTS                            [2022] 6 S.C.R.


A           cases, that the court has to be circumspect and has to look for
            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)
B     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
C     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)
D     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.
             15. Amol Singh (P.W.6) has elaborately given the details of the
E     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
F     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
G     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.

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        MAHENDRA SINGH AND ORS. v. STATE OF M.P.                               745
                    [B. R. GAVAI, J.]

       16. It will be relevant to refer to the testimony of Mahendra Singh     A
(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        B
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
                                                                               C
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.
        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            D
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.
       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)           E
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).
                                                                               F
       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.                                            G
        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.
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746                SUPREME COURT REPORTS                         [2022] 6 S.C.R.


A            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
B     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.
             23. 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
C     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:
D
             (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
E                 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.
F                  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.

G
      Bibhuti Bhushan Bose                                           Appeals allowed.




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