# HAD RI v. STATE OF RAJASTHAN

- **Citation:** [1976] 2 S.C.R. 339
- **Court:** Supreme Court of India
- **Decided:** 1975-11-06
- **Case number:** Criminal Appeal No. 61 of 1972
- **Bench:** M. H. Beg, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/had-ri-v-state-of-rajasthan-6817
- **Pages:** 8

## Headnote

Evidendc-Corroboration-Qua/ity. not quamity that matters.
The appellant was convicted for the offence of murder.
P.W. 1, brother. of
the deceased, was the sole eye.witness of the crime and his statement was recorded by the Magistrate under s. 164, Code of Criminal Procedure, during
inyestigation.
·
B
The trial Court found certain discrepancies in the evidence of P. W. 1, re·
C
. garding the range of shooting and about the second gun shot. but observed that,
because he tried to embellish his statement, it could not be said that he was an
unreliable witness.
The Court accepted his evidence since it found oorroboratiott in the evidence of P.W. 5 who said that he s.aw the appellant running with
a gun about the time of occurrence.
P. W. 5 was, however, not mentioned in
the First Information Report.
The High Court, however, took the' view that the evidence of P.W. 1 was
reliable.
It also believed the corroborative evidence of P.W. 5 and upheld the
conviction and sentence of the appellant and felt assured by the statements of
persons to whom P.W. 1 reported immediately after the occurrence that, in
his presence, the accused fired at the deceased.
Allowing the appeal,
D
HELD : (1) The fact that the !ltatement of the witness (P.W. 1) was recorded by the Magistrate under s. 164. Cr.P.C. is not a ground for rejecting the eviE
dence. There cannot be any hard and fast rule of law for treating a witness as
suspect from the mere fact of his statement being recorded under s. 164 Cr.P.C.
If the Court finds that the evidence of a witness has been consistent throughout
and there was no reason whatsoever for the Police to have taken' steps for bis
statement being recorded under s. 164, Cr.P.C., the fact of such recording would
be of no moment in appraising the testimony of such a witness. [343 F-Gl
(2) Howeve~, P.W. 1 cannot be said to be an absolutely reliable witness and
F
both the trial Court and the. High Court proceeded on the view that his evidence
required corroboration. f344 El
(a) It is not possible to accept evidence of P.W. 5 as corroborating the
evidence of P.W. 1.
His evidence stands untested by cro&s-examination
on
material points. namel.Y,, whether he went to the scene of the occurrence and
whether he had informed anybody at the place of the occurrence as to .his having
seen the accused escaping with a gun.
The trial Court had committed a serious
G
error in disallowing the defence cOunsel to cross-examine him on the ground that
they were mere omissions not amounting to contradictions. The questions were
clearly admissible under s. 162, Cr.P.C. read with s. 145 of the Evidence Act.
The High Court failed to notice this aspect while accepting the evidence of
P.W. 5. [343 A-Bl
(b) Even the prompt lodging of the First Information
Report &bowing
P.W. 1 as an eye-witness an<! mention of gun fire in the First Information Report
II
would not be the requisite corroboration needed for the purpose of accepting
his testimony. If the witness himself is not absolutely reliable, his repeatint
tbe name of the accused to several persons, after the occurrence. would not add
fo the quality of his evidence. [345 BJ
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340
SUPREME COURT REPORTS
[1976] 2 s.c.R.
(c) In the instant case, there is a discrepancy in P.W. l's statement,
as
recorded in the First Information Report, that he was with the deceased at the
time of firing, and his evidence in the Court that he saw from the by-Jane
on the opposite side entirely the accused firing with his gun. This app_eared
in the view of the site plan, to be a serious discrepancy in the evidence of an
only e~-witness which, throws grave doubt about his presence at the time of
shooting. There is also a contradiction between the evidence of the witness who
gave the First Information Report and the statement in the F.I.R. regarding
what P.W. 1 told him immediately after the occurrence. Therefore, it is not
possible to agree with the High Court that the F.I.R. would also lend assurance
to the credibility of P.W.

## Text

)
339
HAD RI
A
v.
STATE OF RAJASTHAN
November 6, 1975
[M. H. BEG AND P. K. GOSWAMI, JJ.]
Evidendc-Corroboration-Qua/ity. not quamity that matters.
The appellant was convicted for the offence of murder.
P.W. 1, brother. of
the deceased, was the sole eye.witness of the crime and his statement was recorded by the Magistrate under s. 164, Code of Criminal Procedure, during
inyestigation.
·
B
The trial Court found certain discrepancies in the evidence of P. W. 1, re·
C
. garding the range of shooting and about the second gun shot. but observed that,
because he tried to embellish his statement, it could not be said that he was an
unreliable witness.
The Court accepted his evidence since it found oorroboratiott in the evidence of P.W. 5 who said that he s.aw the appellant running with
a gun about the time of occurrence.
P. W. 5 was, however, not mentioned in
the First Information Report.
The High Court, however, took the' view that the evidence of P.W. 1 was
reliable.
It also believed the corroborative evidence of P.W. 5 and upheld the
conviction and sentence of the appellant and felt assured by the statements of
persons to whom P.W. 1 reported immediately after the occurrence that, in
his presence, the accused fired at the deceased.
Allowing the appeal,
D
HELD : (1) The fact that the !ltatement of the witness (P.W. 1) was recorded by the Magistrate under s. 164. Cr.P.C. is not a ground for rejecting the eviE
dence. There cannot be any hard and fast rule of law for treating a witness as
suspect from the mere fact of his statement being recorded under s. 164 Cr.P.C.
If the Court finds that the evidence of a witness has been consistent throughout
and there was no reason whatsoever for the Police to have taken' steps for bis
statement being recorded under s. 164, Cr.P.C., the fact of such recording would
be of no moment in appraising the testimony of such a witness. [343 F-Gl
(2) Howeve~, P.W. 1 cannot be said to be an absolutely reliable witness and
F
both the trial Court and the. High Court proceeded on the view that his evidence
required corroboration. f344 El
(a) It is not possible to accept evidence of P.W. 5 as corroborating the
evidence of P.W. 1.
His evidence stands untested by cro&s-examination
on
material points. namel.Y,, whether he went to the scene of the occurrence and
whether he had informed anybody at the place of the occurrence as to .his having
seen the accused escaping with a gun.
The trial Court had committed a serious
G
error in disallowing the defence cOunsel to cross-examine him on the ground that
they were mere omissions not amounting to contradictions. The questions were
clearly admissible under s. 162, Cr.P.C. read with s. 145 of the Evidence Act.
The High Court failed to notice this aspect while accepting the evidence of
P.W. 5. [343 A-Bl
(b) Even the prompt lodging of the First Information
Report &bowing
P.W. 1 as an eye-witness an<! mention of gun fire in the First Information Report
II
would not be the requisite corroboration needed for the purpose of accepting
his testimony. If the witness himself is not absolutely reliable, his repeatint
tbe name of the accused to several persons, after the occurrence. would not add
fo the quality of his evidence. [345 BJ
A
B
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D
340
SUPREME COURT REPORTS
[1976] 2 s.c.R.
(c) In the instant case, there is a discrepancy in P.W. l's statement,
as
recorded in the First Information Report, that he was with the deceased at the
time of firing, and his evidence in the Court that he saw from the by-Jane
on the opposite side entirely the accused firing with his gun. This app_eared
in the view of the site plan, to be a serious discrepancy in the evidence of an
only e~-witness which, throws grave doubt about his presence at the time of
shooting. There is also a contradiction between the evidence of the witness who
gave the First Information Report and the statement in the F.I.R. regarding
what P.W. 1 told him immediately after the occurrence. Therefore, it is not
possible to agree with the High Court that the F.I.R. would also lend assurance
to the credibility of P.W. 1. [345 F-GJ
(3) If P.W. 5 mentioned. at the place of occurrence, that he had seen the
accused running away with a gun, omission to mention his name in the F.I.R.
could not be dismissed as inoonsequential. [343 CJ
( 4) Since, under the Evidence Act, no particular number of witnesses are
required for the proof of any fact,. it is a sound and well-established rule of
law that quality and not quantity of evidence matters. In each case. the
Court has also to consider whether it could be reasonably satisfied so as to act
even upon the testimony of a single witness for the purpose of convicting a
person.
Tf a witness who is the only witness against the accused to prove a
serious charge of murder can modulate his evidence to suit a particular prosecution theory for the purpose of securing a conviction, such a witness cannot
be considered as a reliable person and no conviction could be based on his sole
testimony. [344 B, 346 BJ
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 61 of
1972.
Appeal by Special Leave from the Judgment and Order dated the
11th November, 1971 of the Rajasthan High Court at Jodhpur in
D. B. Criminal Appeal No. 823 of 1970.
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A. N. Mulla and R. L. Kohli for the Appellant.
lnder Mekrana and S. M. Jain for the Respondent.
S. S. Khanduja for the Intervener.
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The Judgment of the Court was delivered by
GOSWAMI, J.
This appeal by special lea~e is dircctc~ a.gainst the
judgment of the Rajasthan High Court affirmmg the conv1ct10n of the
accused under section 302, Indian Penal Code.
The accused was
sentenced to imprisonment for life.
The prosecution case is as follows :-
On June 6 1970 just before sunset, Govindram (deceased) and
his brother P~tram (PW 1) were returning from the 'guwar' (open
space) of Bass Perna in the village Dabli Bass Chcl}a· The lane by
which they were coming from the 'guwar' goes stra1sht. towa:ds the
north and it passes on the backside of several houses 111cl1:1dmg the
house of one Rajaram and the house of the accused,, Badn; These
houses arc on the right side as one proceeds from the guwar towards
the north
The house of one Gangaram is the first hous~ on the left
side of th~ lane. After passing his house, there is a lane w~1ch bragcb~s
off from the main Jane from the 'guwar' and that by-lane 1s towar s t c
west. All these are shown in the site plan (Ex. P3). When the two
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BADRI v. ~AJASTHAN (Goswami, J.)
341
brothers reached near the house of Gangaram,
Govindram
asked
Patram to go ahead to his house saying he would reach home after
taking a pair of shoes from the house of one J agmal Chamar which is
shown in the plan as the last house on the left of the main lane.
Govindram thus parting company with Pa tram proceeded towards· the
north on the main lane and Patram proceeded by the by-lane towards
the west leading to their houses. Patram had hardly moved a pavanda
(about 5t feet) when he heard the voice of accused, Badri. He stopped
and saw B_adri coming out of the 'nohra' (courtyard) of
Rajaram.
Badri was armed with a gun of single barrel. Badri abused Govindram and held out a threat that he would not let him go alive.
Badri
bad by then moved 4 or 5 pavandas behind the house of Rajaram
towards the north.
While threatening as above, Badri also fired at
him. Patram ran away to save his life. When Patram had gone about
7 or 8 pavandas, he heard another report of gun-fire. He went to his
house and then to the house of his brother, PW 3 Gopal, residing in
the adjoining house.
Patram told Gopal that Badri had killed his
brother Govindram by gun-fire.
Patram and Gopal then went to the
house of their uncle, PW 6 Bhadar, and all three of them went to the
place of ·occurrence and found Govindram lying dead in a pool of
blood. They then sent Gopal to the Sarpanch of Pakka Saharana to
lodge report to the police. They did not approach Harisingh Sarpanch
of the village as he was related to the accused.
Gopal went on foot
to Pakka Saharana, about six miles from his house,
and took the
Sarpanch with him and they went in a jeep to the Police Station, Hanu~
mangarh.
The first information report was lodged at the Thana at
11-00 P.M. and the name of the accused was mentioned therein.
A
The prosecution produced Patram, the solitary eye-witness of the
incident. Another witness, Lachhiram (PW 5) was also examined to
. prove that he saw the accused armed with a gun running towards 10
Chak at about sunset five months back. He was examined in the court
on November 6, i970. The trial court accepted the evidence of Patram.
The trial court also relied upon the corroborating evidence of
Lachhiram even though his name was not mentioned in the first infor-·
mation report.
We may note, however, that the trial court observed
that Patram "falsely introduced the second gun-fire re.port" and "had
definitely wrongly given this range of fire" (namely 27} feet).
The
trial court further held as follows :-
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"The witness (Patram) may not be wholly true, but
substantially true and simply because the witness has falsely
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spoken to (sic) as to one or two facts ·under compelling
circumstances, it could not'be said that be was ~nly partly
true, In my opinion, it would b-;'} better to label bnn as substantially reliable.
In the F.I.R., the incident was correctly
stated as that of one gun-fire.
In the morning, when the
investigation began and when the doctor errone~u~ly. thought
that the entry wound was in the chest and the 1113unes Nos.
H
2 3 and 5 were also gun-shot injuries, the witness Patram
~as compelled to change his version a little, probably under
the advice of the S.H.0. (the Police Officer). The witness
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3-12
SUPREME COURT REPORTS
[ 197 6) 2 S.C.R.
was compelled and tempted to say something which he did
not see".
x
x
x
x
"If because of such compeiffng circumstances,
Patram
tried to embellish his statement for the second gun-fire report
and the range, it cannot be said that he was an unreliable
witness".
The High Court disagreed with the trial court that Patram made a
deliberate false statement in stating that he heard the report of the
second gun-fire.
The High Court also did not agree with the trial
court that Patram deliberately gave a wrong range of firing. The High
Court then concluded as follows :-
"Having differed from the Trial Court on two points,
where (sic) has noticed some infirmities in the evidence of
Patram, we are of the opinion that the evidence of Patram is
reliable and acceptable in sustaining the conviction of the
accused ·appellant.
In this, we derive assurance from the
statements of Gopal (PW 3) and Bhadar (PW 6) who categorically state that soon after the incident Patram approached
them and told them that in his presence Badri accused had
fired at Govindram. The prompt lodging of the first information report naming a single accused and showing Patram as
an eye-witness also lend assurance to the credibility of Patram.
Then, again in our opinion, the evidence
of
Lachhiram
(PW 5) also lends corroboration to the~prosecution case".
We should first deal with the question whether Lachhiram's evidence can be relied upon for the purpose of corroboration of Patram.
We find that the trial court did not allow the defence counsel to crossexamine Lachhiram with regard to his earlier statement to the police
as to whether he had mentioned about going to the place of occurrence and whether Bhadar told him that Badri had killed Govindram
and further whether he had told them to have seen Badri fleeing away
with the gun.
The only object of the examination of Lachhiram was
to prove that he saw the accused armed with a gun running towards
10 Chak and that when he later heard that Govindram had been killed
he went to the place of occurrence and, on enquiry as to who committed the murder, Bhadar told him that Badri murdered Govindram.
It was his evidence also that he also disclosed then and there that he
saw Badri running with a gun towards Chak 10. Since the above was
the evidence that was led in examination-in-chief, it was perfectly legitimate for the defence to question him as to whether he hnd told the
police that he informed anybody at the place of occurrence as to his
having seen Badri escaping with the gun.
f.
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BAD.RI v. RiA,JASTHAN (Goswami, J.)
343
The trial court has committed a serious error in disallowing the
A
above questions on the ground that these were mere omissions not
amounting to contradictions. These questions were clearly admissible
under section 162, Criminal Procedure Code, read with section 145,
Evidence Act. The High Court has failed to notice this aspect while
accepting the evidence of Lachhiram.
The evidence of Lachhiram,
therefore, stands untested by cross-examination on a very material
. point and it is not possible to accept this untested evidence as corroB
borating Patram.
Besides, since Lachhiram went to the place of occurrence and met
Gopal, Patram and Bhadar and others there and related to them that
he had seen Badri with a gun running towards Chak 10, omission
to mention his name in the first information report cannot be dismissed
as inconsequential in this case.
C
That leaves the solitary witness Patram and it is urged on behalf of
the appellant that his testimony is absolutely unreliable and no conviction can be sustained on his uncorroborated testimony.
It is pointed out that Patram's statement was recorded by
the
D
Magistrate on June 20, 1970, under section 164, Criminal Procedure
Code, during the course of police investigation. It is, therefore, urged
that it has introduced a serious infirmity in his evidence. Mr. Mulla,
however, concedes that the evidence on that account alone cannot be
rejected but we should treat his evidence with caution and look for
material corroboration.
It is true that ordinarily the police in the course of investigation
sends witnesses for having their statements recorded· by a Magistrate
under section 164, Criminal Procedure Code, when they feel that there
may be some uncertainty about the evidence or such a witness may at
some. distant time prevaricate.
There cannot be any hard and fast
rule of law for treating a witness as su&pect from the mere fact of his
E
statement being recorded under section 164, Criminal Procedure Code.
F
If the c:Ourt finds that the evidence of the witness has been consistent
throughout and there was no reason whatsoever for the police to have
· taken the step for his statement being recorded under Section 164,
Criminal Procedure Code, the fact of such recording would be of no
moment in appraising the t~timony of such a witness. In this case
Patram is the brother of the deceased and we do not find any reason
disclosed by the police as to the necesfilty of his statement being reG
corded under section 164, Criminal Procedure Code. We, therefore,
do not consider this by itself as introducing any infirmity in the evidence of Patram.
This Court had to deal with the case of a solitary witness in Vadivelu Thevar v. The State of Madras.(1) Oral testimony was classified
in that case into three categories, namely (1) wholly reliable •. (2)
H
wholly unreliable and (3) neither wholly reliable nor wholly unrehable.
(1) A.I.R. 1957°S.C. 614.-
344
SUPREME COURT REPORTS
(1976) 2 S.C.R.
A
While ther~ is no difficulty about the first two, with regard to the third
category this Court observed :
"It is in the third category of cases, that the court has
to be circumspect and has to look for corroboration in matetfal
particulars by reliable testimony, direct or circumstantial".
B
Since under the Evidence Act no particular number of witnesses
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are required for the proof of any fact, it is a sound and well-established
rule of law that
quality and not quantity of evidence matters.
Jn
each case the court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose
of convicting a person.
It is not disputed that Gcivindram died of gun-shot injury. We are
satisfied from the medical evidence that there was one gun-fire and
injury No. 1 is the entry wound and injury No. 4 shows four lacerated
exit wounds.
The only question was who had fired at Govindram.
We find Rawat, who was cited as prosecution witness but was examined
as DW 1, came out from his house after hearing one gun-fire report
and found Govindram "crying 'Hai Hai' in the street" and that soon
after, his "speech stopped". It is his evidence that Gopal and Patram
came there after some time and Patram asked him as to whether he
had seen the assailant of Govindram, but he replied that he "had not
seen the murderer". It was, therefore, easy for Patram even without
seei.,1g the incident to gather that Govindram was shot at.
Mere
mention of gun-fire in the FIR is, therefore, not of great significance
in this case. The most important question is the truth about Patram's
seeing the accused Badri shooting at Govindram.
·It appears in this case both the trial court as well as the High Court
proceeded on the footing that the evidence of Patram required corroboration. The High Court, as we have pointed out above, found corroboration from the evidence of Lachhiram. This, however, has been
found by us to be untenable. We have, therefore, to consider whether
there is any other corroboration as has been pointed out by the High
Court. The High Court was assured from the statements of Gopal and
Bhadar to whom Patram immediately reported "that in his presence
Badri accused had· fired at Govindram". When we read the evidence
of Gopal and Bhadar we find as follows:-
Gopal stated "my brother Patram came to me and told me that
our brother, Govindram, has been murdered by Badri by a gun-shot".
Bhadar stated "Patram informed me that Badri has killed Govindram
with his gun".
When we examine the evidence of Patram we find
that as soon as Badri fired at Govindram "I in1mediately ran away to
save my life towards my house". In these circumstances Patram could
not have informed Gopal and Bhadar that Govindram had already been
killed or murdered. The natural evidence of Patram would have been,
therefore, that he informed Gopal and Bhadar that Badri had fired at
Govindram.
But this was not his statement to Bhadar and Gopal as
reproduced by the High Court.
We are not, therefore, prepared to
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BADRI v. R.AJASTHAN (Goswami, J.)
345
give so much importance to the statement· of Patram only because of
the fact that Gopal and Bhadar were informed by him that Badri had
killed or murdered Govindram. He did not waste a moment to see the
consequences of the firing. Even the prompt lodging of the first information report and showing Patram as an eye-witness therein would not
be the reqcisite corroboration needed for the purpose of accepting the
testimony of Patram.
Besides, if Patram is himself not absolutely
reliable his repeating the name of the a_ccused l-0 several persons aiter
the occurrence would not add to the quality of his evidence.
-
We have ourselves gone through the evidence of Patram- and are
not prepared to hold that he is an absolutely reliable witness.
The
trial court, who had the opportunity of watching the demeanour of the
witness, unhesitatingly observed that Patram could be influ.ence_d by
the police to change his statement to suit the prosecution.· Although
the High Court ha~ disagreed with this observation of the trial court,
we are not prepared to dismiss it out of hand.
Besides, Gopal_._ who was reported, immediately after the occurrence,
and with whom Patram had quite some time to converse with, even at
the place of occurrence soon after, cannot be taken as giving a wrong
statement in his FIR to the police when the exact words of Patram
were recorded therein. - It is a very simple report and the particular
statement of Gopal is as follows :-
-
"My.brother Patram came running to me and while weep-·
ing began to state 'I and Govindram both were coming together. When we reached near the back door .of the house
of Badri son of Gopal J at Bhambhoo then Badri fired a shot
with his gun at Govindram.
As soon as the
bullet hit
Govindram he fell down on the ground.
I
have come
running''.
This statement is now denied by Gopal and he stated before the court
that this was wrongly recorded by the police. Even Patram disowns
this statement. We are not prepared to accept that the statement given
by Gopal, which is a simple statement, could have been wrongly recorded by the Police Officer. The first information report ·would go
· to show that Patram and the deceased were together and they reached
near the back door of Badri's house which is actually the place shown
in the site plan where the dead body was lying. For Patram to be together with the deceased at the time. of firing, as recorded in the FIR,
and again his seeing from the by-lane near Gangaram's house the
accused firing with his gun, as deposed to in court, are serious discrepancies in the version of an only eye-witness in the case and they throw
grave doubt about his presence at the time of shooting.
Gopal has contradicted himself by disowning his report in the FIR.
Inasmuch as the earliest version given by Patram to Gopal as appearing in the FIR is even disowned by Patram, it is not possible to agree
with the High Court that the FIR would "also lend assurance to the
credibility of Pa tram".
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SUPREME COURT REPORTS
[197 6] 2 S.C.R.
Further, there was difference of opinion between the two Medical
Officers examined in the ca~e. The trial court refused to accept the .. r-.
evidence of the first doctor" and su=oned as a court witness another •
·
doctor who disagreed with the previous one and gave evidence' before\ ' '
the court after pursuing the post-mortem report. The trial court has ~ '
noted that Patram was "compelled to change his version a little" be- · ' "i
cause of doctor's opinion after the post-mortem examination was held
I
on the spot the following morning .. If a witness, who is the only witness against the accused to prove a serious charge of murder, ·can
modulate his evidence to suit a particular prosecution theory for the
deliberate purpose of securing a conviction, such a witness caunot be
considered as a reliable person aud no conviction can be based on his
sole testimony.
We are, therefore, unable to uphold the conviction of the accused
under section 302 IPC in this case. The appeal is allowed. and the
conviction and sentence of imprisonment for life are set aside .
P. B. R.
. Appeal allowed.
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1276 SCl/75-2,500-14-5-76-GIPF.