The Supreme Court in the case Khem Chandra vs State of Uttar Pradesh observed that some corroboration is necessary when an ocular testimony falls into category of “neither wholly unreliable nor wholly reliable “.
In the present 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. The High Court confirmed the conviction, while dismissing the appeal.
Before the Apex Court, it was contended by the Senior Advocate Rajul Bhargav who appeared for the appellants that there are inconsistencies in the testimony of the ocular witness and therefore for convicting the accused, the same could not have been made the basis.
The impugned judgement was supported by Additional Advocate General for the State Garima Prashad and Senior Advocate S.R. Singh, appeared on behalf of the first informant.
The bench comprising of Justice BR Gavai and the Justice PS Narasimha observed and noted that in in Vadivelu Thevar v. State of Madras [1957] SCR 981, oral testimony was classified into three categories, namely: (1) wholly unreliable. (2) Wholly reliable. (3) Neither wholly reliable nor wholly unreliable.
Thus, in the said judgement it was observed that 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 and if it is same to be found to be above reproach or suspicion of interestedness, incompetence or subornation.
In the second category. Equally, the court 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, circumstantial or direct.
The Court observed that this court find that the testimony of Inder (PW­2) would fall under the 3rd category i.e. his evidence can be said to be “neither wholly unreliable nor wholly reliable. As such, it will be necessary that there should be some corroboration to his ocular testimony.
It was also noticed by the court that in the cases of two accused, the memorandum recorded under Section 27 of the Evidence Act is also not placed on record. Thus, it is stated that the said recoveries cannot be said to be free from doubt.
While allowing the appeal, the bench observed that though, Inder (PW­2) is an injured eye witness, there are serious discrepancies and inconsistencies with regard to time of the injuries sustained and the time at which he was medically examined. Dr. Anoop Kumar (PW­6), in his evidence, has changed on several occasions his stance.
His testimony is totally contrary to that of Inder (PW­2) and Omveer (PW­1). As it is held that it will not be safe to base the conviction on the sole testimony of Inder (PW­2) though he is an injured witness. The prosecution sought the collaboration with regard to alleged recoveries of the weapons used in the crime is also not free from doubt.
Neither the Vijay Singh been examined and nor the station diary entry with regard to telephonic intimation given by Vijay Singh at 9.05 am has been brought on record. The prosecution has failed to examine them, though independent witness were available. Therefore, the court find that this is a case wherein the appellants are entitled for benefit of doubt.