Holding

The convictions of the appellants are set aside as the evidence of the eye‑witnesses was unreliable and uncorroborated, giving rise to a reasonable doubt.

Summary

A dacoity and murder occurred on 9 June 1985 in the house of informant Bhupendra Mohan Singh. Nine persons were charged under IPC Sections 396 and 412; the trial court convicted five and acquitted four, a decision upheld by the High Court. Three of the convicted—Mahmood, Mokid Alam and Post Card (Jagdish Mehto)—appealed, contending that the sole evidence against them was the testimony of five eye‑witnesses (PW1‑PW5) which was unreliable and lacked independent corroboration. The Supreme Court observed that the possibility of false implication could not be ruled out, the witnesses' statements were not convincing, and no other evidence supported the convictions. Applying the principle of benefit of doubt, the Court set aside the convictions and acquitted the appellants. The appeal was allowed.

Issues considered

Whether a conviction for dacoity and murder can be sustained on uncorroborated eye‑witness testimony that is found unreliable.
Whether the possibility of false implication warrants granting the benefit of doubt to the accused.

Legislation cited

Indian Penal Code, 1860s. 396, s. 412

Subjects

dacoitymurdereye‑witness testimonyreliability of evidencebenefit of doubtfalse implicationIPC Section 396IPC Section 412acquittalappellate jurisdiction

Judgment

A MAHMOOD AND ORS.
v.
THE STATE OF BIHAR

FEBRUARY lo, 2000

B [G.T. NA.1\J"AVATI AND YK SABHARWAL, JJ.]

Indian Penal Code, 1860-Sections 396 and 412--') Persons accused
for committing dacoity-Trial Court acquitted 4 accwed as testimony of eye
witnesses found unreliable and untrnstworthy--{Jpheld by the High Court-On
C appeal by 3 of the S convicted persons Held, Tnal Court rightly noticed pos-
sibility of false implication-Testimony nut convincing and trustwor-
thy-Benefit of doubt given and conviction set aside.

A dacoity w-c1s committed in the house of the informant, P.W. 4 who
escaped and was the occurrence from the house of P.W. 3 in the neighbour-
D hood. P.W. 1 and P.W. 2 are his brothers who also witnessed the incident
along with P.W. 5 and other villagers.

9 persons were charged with offences under Sections 396 and 412
IPC and 4 were acquitted by the Trial Court and the High Court as they
were neither identified nor named in the statements made by the eye
E witnesses, although they were residents of the same village 3 persons
appealed before this Court challenging their conviction.

The appellants contended that they cannot be convicted on the
evidence of P.W. 1 to P.W. 4 particularly in the absence of any other
F independent and corroborating evidence.

Allowing the appeal, this Court

HELD : 1. All the 9 accused were involved in one incident and were •
charged which the offence of dacoity and murder. The Trial Court noticed
G that possibility of false implication of the accused cannot be ruled out. The
testimony of P.W. 1 to P.W. 4 in respect of the acquitted accused has been
rightly held to be not convincing and trustworthy in the absence of any
other independent and corroborating evidence. [901-G-H]

2. P.W. 1, 1'.W. 2 and P.W. 4 are brothers, P.W. 3 is the person from
H whose house P.W. 4, the informant, saw the occurrence but he could name
898
·~-'f-

!
!

MAHMOUD v. STATE '.SABHARWAL, J.J 899

only oBe accused and P.W. 5 stated what was told to, him by P.W. 4. It is A
not safe to base the conviction of the appellants on the testimony of P.Ws.
1 to 5. It is not possible to uphold the conviction and the appellants are
given the benefit of doubt. [902-B-C; E]

Prem Singh v. State of Punjab, [1976] 1 SCC 805, relied on.
B
CRIMINAL APPELLATE JL'RlSDICTlON: Criminal Appeal No.
659 of 1993.

From the Judgment and Order dated 22.5.92 of the Patna High Court
in Crl.A.79 of 1987.
c
R.S. Sharma, Ranjan Dwivedi and Firoze Ahmed for the Appellants.

B.B. Singh for the Respondent.

The Judgment of the Court was delivered by
D
SABHARWAL, J. Nine accused were charged for offence under
Section 396 IPC. Three of them, namely, Jamil, Mokid Alam and Mah-
mood were further charged for offence under Section 412 IPC as well.
Briefly the case of the prosecution is :

A dacoity was committed in the House of informant Bhupendra E
Mohan Singh, situated in Phulwari village, on 9th June, 1985 at about 7 :
15 p.m. 10 to 15 dacoits raided his house. This dacoits took away his
licensed gun from tli.e hunst: besides ut!.iet drtide'i. They ransacked the
house of his brother also which is situated in the same 'Angan' and also
assaulted the wife of his brother. The informant somehow slipped out of F
his house and concealed himself in the house of his neighbour, Dinesh
Chandra Singh and from there he saw the entire occurrence. On learning
about the dacoity, the villagers rusht:d at the place of occurrence and some
of them set fire to a heap of straw. There was Chowkidar Morchand who
also came armed with bow and arrow. Some of the dacoits fired on the
villagers. Morchand Lal was also shot at and died at the spot. Another G
villager Sabo Lal was also injured by the firing. In the light of the lantern
as well as torchlights flashed by the dacoits themselves, the informant
identified Mohd. Dara, Mokid Alam, Mahmood, Post Card, Salim,
Mokimuddin and Alint among the dacoits. They also took away Rs. 12,000
besides ornaments, transistors, clothes, etc. S.C. Yadav Assistant Sub-In- H
;
\

900 SUPREME COl:RT RHORTS [2000) 1 S.C.R. '\
A Spector, rushed to the place of occurrence and recorded the statement of
Bhupendra Mohan Singh at about 8 : 15 p.m. on the basis of which case
was registered against seven named accused and their unidentified as-
sociates.

The prosecution examined 12 witnesses. The informant Bhupendra
B Mohan Singh is PW 4. PW 1 and PW 2 are his brothers. PW 3 is Dinesh
Chandra Singh, the neighbour from whose house PW 4 claims to have sei::n
the entire occurrence. All four of the claim that they had witnessed the
occurrence. PW 5, Manoranjan Singh, is also resident of the village and
said to have reached tht: place of occummct: soon after the dacoits had
C left. PW 10 is the investigating officer. The other witnesses art: formal.
The Court of Sessions convicted 5 accused, namely, Jamil, Mahmood,
Mokid Alam, Salim and Post Card @ J agdish Mehto for offence under
Section 396 IPC and sentenced them for rigorous imprisonment for life.
Accused Jamil, Mahmood and Mokid Alam were also convicted for of-
D fence under Section 412 IPC as well and were further sentenced to undergo
rigorous imprisonment for seven years for the said offence. The remaining
four accused, namely, Mehruddin, Mohd. Dara, Mokimuddin and Alim
were acquitted. The conviction of the five accused has been upheld by the
High Court. Three of them, namely, Mahmood, Mokid Alam and Post
E Card@ Jagdish are appellants before us.

Mohd. Dara and Mokimuddin have been named in the statemt:nt of
the informant (PW 4) which was recorded within about an hour of the
occurrence. PW 4 claims to have identified Mohd. Dara in tht: course of
the dacoity and thus named him in the statement. No otht:r witness stated
F that Mohd. Dara participated in the dacoity. Even PW 4 did not support
his version in the evidence recorded in court. Mohd. Dara was, therefore,
acquitted for want of legal evidence to connect him with the crime. The
otht:r acquittt:d accused, Mokimuddin was, in fact, a resident of the same
village. Except PW 4, no one else identified him. The st:ssions court held
G that the claim of the identification of this accused by PW 4 was doubtful
and this fact was further aggravated since PW 1 to PW 3 did not state
anything about the participation of this accused in this dacoity.

Like Mokimuddin, Mehruddin was also the resident of the same
village. In fact, his house is said to be situated at a distance o( only about
H 100 yards from the place of occurrence. He was not named in the statement
MAHMOOD v. STATE [SABHARWAL,J.] 901

of PWs 4. PW 1 and 2 who are also to be the victims of the dacoity, named A
him in their statements given to the investigating officer which were
recorded a day after the date of occurrence. Before giving his statement,
PW 4 had talked to his brothers PW 1 and PW 2. In fact, they are all
residing in one house. The claim was that all the four had seen occurrence.
The Court of Sessions thus concluded that if PW 1 and PW 2 had identified
this accused at the time of dacoity, then they would have definitely reported
about it to their brother PW 4 and in that eventuality, his name should have
been mentioned in the statement of PW 4. The absence of the name of this
accused in the statement of PW 4, according to the learned Additional
Sessions Judge, raises strong suspicion of the accused being falsely impli-
cated. The defence also disclosed a motive for the false implication of C
Mehruddin inasmuch as there was a dispute between the accused and the
family of the informant over a plot which was purchased on 15th April,
1985 in the name of the wife of the informant, which is claimed to have
been earlier acquired by the accused who was not ready to give up his
possession. The testimony of PW 1 and PW 2 involving Mehruddin was D
held not to be reliable and trustworthy.

The fourth acquitted accused Alim is also a resident of the same
village. He was also named in the statement of PW 4. Except PW 4, none
else had identified him. The claim of PW 4 regarding the identification of
this accused has been held to be doubtful by learned Additional Sessions E
Judge. The solitary evidence of PW 4, the learned Additional Sessions
Judge held, does not inspire confidence to prove the guilt against this
accused and thus he was also acquitted.

Learned counsel for the appellants contends that in view of the p
aforesaid findings and conclusions of learned Additional Sessions Judge
regarding the credibility of PW 4 and his two brothers and PW 3, the
appellants cannot be convicted on the evidence of only PW 1 to PW 4
particularly in absence of any other independent and corroborating
evidence. It is a case of one incident in which all the 9 accu~ed were said
to be involved. They were all charged of dacoity and murder. The learned G
Additional Sessions Judge has noticed that the possibility of the false
implication of the above mentioned accused as noticed herein before,
cannot be ruled out. The testimony of PW 1 to PW 4 in respect of the
acquitted accused has been rightly held to be not convincing and trustwor-
thy. The findings and conclusions of the sessions court in regard to the H
902 SUPREME COURT RHORTS [2000) 1 S.C.R.
A acquitted accused have not been dealt by the High Court. The said findings
hav.: also not been questioned before us. A faint attempt was, however,
made on behalf of the State that ewn if the testimony of PW 1, PW 2 and
PW 4 is ign01 ~d, there is other independent evidence in the form of
statements of PW 3 and PW 5. As alread) noticed, PW 3 is tht: pt:rson
B from whost: house PW 4, the informant, is said to have seen the occurrence.
PW 3 is also the witness of occurrence. He is neighbour of PW 4. Howt:vt:r,
PW 3 could only name one accused, i.t., Jamil. The other witness PW 5
only statt:s what was told to him by PW 4. He did not witm.:ss the
occurrence. On the facts of the case in our view it is not saft: to base the
conviction of the appellants only on the tc'timony of PWs I to 5. There is
C no otht:r t:vidence to sustain their conviction.
Examined in the context of afore,aid facts, the doubt the source of
light also assumes importance. There is also serious doubt about tht:
manner of identification of the sarees said to have been recovered from
the houses of the accused.
D
In Prem Singh v. State of Punjab, (197611 SCC 805, the conviction of
the appellant which was founded solely on the evidence of the two wit-
nesses whose testimony in regard to the other accused was hdd by the trial
court and the High Court to be unreliable and disbe!it:ved in regard to the
E participation of the said. This Court hdd that it is difficult to bast: convic-
tion solely on tht: evidence of such witnl·sses. In these circumstances, it is
not possible to uphold the conviction of tht: appellants. Thcrefon:, we give
tht:m benefit of doubt

The appeal i' accordingly allowtd, th1: conviction and sentence of tht:
F appellants is set aside and they arc acquitted of the offence chargt:d. They
shall be set at liberty forthwith if not required in any other case.

AO. Appeal allowed.