Mahendra Singh vs The State Of M.P. on 3 June, 2022


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Supreme Court of India

Mahendra Singh vs The State Of M.P. on 3 June, 2022

Author: B.R. Gavai

Bench: B.R. Gavai, Hon’Ble Ms. Kohli

                                                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 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

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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

3
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

4
Kuber Singh (accused No.10) vide judgment dated 18 th April,

2000. However, by the same judgment dated 18 th 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 6 th 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

7
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

10
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

14
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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