Some Corroboration Is Necessary When Witness Testimony Is 'Neither Wholly Reliable Nor Wholly Unreliable': Supreme Court

The Supreme Court observed that some corroboration is necessary when an ocular testimony falls into category of "neither wholly reliable nor wholly unreliable". 

In this case, the accused were convicted by the Trial Court under Section 302 read with Section 149, Section 307 read with Section 149 and Section 148 of the Indian Penal Code, 1860. Dismissing the appeal, the High Court confirmed the conviction.

Before the Apex Court, Senior Advocate Rajul Bhargav who appeared for the appellants, contended that there are inconsistencies in the testimony of the ocular witness and therefore the same could not have been made the basis for convicting the accused.  Additional Advocate General for the State Garima Prashad and Senior Advocate S.R. Singh, appearing on behalf of the first informant supported the impugned judgment.

The bench comprising Justices BR Gavai and PS Narasimha noted that in Vadivelu Thevar v. State of Madras [1957] SCR 981, oral testimony was classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the said judgment, it was observed thus: "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..……"

"We find that the testimony of Inder (PW­2) would fall under the 3rd category i.e. his evidence can be said to be "neither wholly reliable nor wholly unreliable". As such, it will be necessary that there is some corroboration to his ocular testimony", the court observed.

The court also noticed that, in the case of  two accused, the memorandum recorded under Section 27 of the Evidence Act is also not placed on record. As such, the said recoveries cannot be said to be free from doubt, it said.

Allowing the appeal, the bench observed:

"Though, Inder (PW­2) is an injured eye witness, there are serious discrepancies and inconsistencies with regard to time of the injuries sustained and time at which he was medically examined. Dr. Anoop Kumar (PW­6), in his evidence, has changed his stance on several occasions. His testimony is totally contrary to that of Omveer (PW­1) and Inder (PW­2). As held by us, it will not be safe to base the conviction on the sole testimony of Inder (PW­2) though he is an injured witness. The corroboration sought by the prosecution with regard to alleged recoveries of the weapons used in the crime is also not free from doubt. Neither the station diary entry with regard to telephonic intimation given by Vijay Singh at 9.05 am has been brought on record nor has Vijay Singh been examined. Though independent witnesses were available, the prosecution has failed to examine them. We therefore find that this is a case wherein the appellants are entitled for benefit of doubt."

Case details

 Khema @ Khem Chandra vs State of Uttar Pradesh |  2022 LiveLaw (SC) 689 | CrA 1200 ­ 1202 OF 2022 | 10 August 2022 | Justices BR Gavai and PS Narasimha

Headnotes

Criminal Trial - Oral testimony 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 - Referred to Vadivelu Thevar v. State of Madras [1957] SCR 981  (Para 21-22)

Criminal Trial - Previous enmity is a double­ edged sword. On one hand, it provides motive to the crime and on the other, there is a possibility of false implication. (Para 20)

Constitution of India, 1950 ; Article 136 - Criminal Appeal - In cases of concurrent findings of fact this Court will not ordinarily interfere with the said findings, in exceptional circumstances, this Court is empowered to do so. If this Court finds that the appreciation of evidence and findings is vitiated by any error of law or procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse, this Court would not be powerless to reappreciate the evidence. (Para 26)

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