# RAJENDRA PRASAD v. STATE OF BIHAR

- **Citation:** [1977] 3 S.C.R. 68
- **Court:** Supreme Court of India
- **Decided:** 1977-02-25
- **Bench:** Y. V. Chandrachud, P. K. Goswami, P. N. Sh!Nghai.. Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajendra-prasad-v-state-of-bihar-7235
- **Pages:** 7

## Headnote

c
:H
Crin1i11a! J!rocedure.. Code 1898-Powers of Hi/~h Court to set aside ocq11ittal
-Whetl!er n:1al Cf!Ul'l 111dgn1e11t should be palpably 1\'rong-Credibility of witness
-Test 1dent1ficat1011 parade-Delay in.
F.l.R.-Ahsence to na111e acc11sed-/j co1n•ictio11 ca11 be bnsed 011 sole testi~
111011y of a witness.
P. W. 9 Sabir aged about 18 year \Vent to the
house of Lala
(deceased)
\vho used to render physicril training and swin1ming lessons to young boys and
requested Lala to accon1pany hirn to the b<ink of a river.
\\'hen
Lala
was
cleaning his teeth and washing his fncc the appellant \\Cnt there \Vith 4 or 5
rersons. ·The prosecution case is thrit those 4 or 5 persons engngcd Lala in
talk and the appellant thn1~t a dagger on the back of Lala who died within
minutes after the assault.
20 to 25 persons who were there and P.\V. 9 and
others ran behind the appellant.
The prosecution exan1inccl 13 witnesses out
of \Vhieh 4 'vere cyc-\vitnesses, na1nely, P.W. 1. 4. 9 and 10.
The Sessions
Judge disbelieved all the eye
V11itnesscs, and acquitted
the
appellant.
The
Sessions Judge while <icquitting the :ippellant took the fol'Jo\ving facts into
consideration :-
( 1)
(2)
(3)
( 4)
P.\V. 4 who lodged the First Tnforn1ation Report did not na1ne any
<iccuscd and, in f<ict. he did not know the <1ccused before the occurrence nnd could not even
identify hin1 at
the
test
identification
parnde.
V. \Vs
1 nnd 10 had opportunity to see the accused before and
therefore the test identification parade could not be attached much
significance.
P. \Vs 1 nnd 2 are supposed to hnve seen the accused at the time
when he was running a\vay fron1 the place
of
occurrence
and,
therefore, it \V!!S highly ,improbable that they V11ould be able to retain
1he i1nprcssion of the accused.
It is highly improbable that P.\V. 9 hnd seen the incidC'nt since he
did not go to the Police Station nor even s!ayed at the
place
of
occurrence till the arrival of the police.
On the other hand. he
confined hi1nself in his house until a constable came to take him
to the police station.
The police in the beginning
Sll"o~cted him
as one of the persons who participCJtcd
in
the
nnirder
of
the
deceased.
His conduct is very sllspicious.
The I-ligh
Court in appeal by the State relied on the evidence of P.\V.
~
ns being corroborated by P. Vls. l and 10.
The
1-Tigh
Court thrrefore, set
aside the ncquittal and convicted the· accused under s. 302 l.P.C. rind sentenced
him to rigorous in1prison1ncnt for life.
Allovvino- the appeal under s. 2(a) of the Supre1ne C:ourt (Enl<irgement of
Criminal A'Prc<1l Jurisdiction) Act, 1970.
HELD : (I) When a trial court, with full view of the witnesses. acquits
an accused after disbeliev~ng direct. testin1ony it will_ b~ essential for the !Jigh
Court in nn appeal against ricqu1ttal to clea·rly 1nd1cate firn1 and weighty
grounds fro1n the record for discarding the reasons of the trial ccurt in or~er
to be able to reach a cont1;ary con_clu~io~ of guilt of the ace;used.
The High
court should be able to point ont in 11s JtKlgmcnt that the tnal court re-no;ons
'
• •
RA.JENDRA PRASAD v. BJllAR (Goswami, J.)
69
are palpably and unerringly shaky and
its
own
reasons
arc
demonstrably
A.
cogent.
As a salutary rule of appreciation of evidence in an appeal against
.acquittal it is not legally sufficient that it is just possible for the High Court
10· take a contrary view about the credibility of witnesses but it is absolutely
-imperative that the lfigh Court convincingly finds it \Yell-nigh impossible for
the trial court.to reject their testi1nony.
l74 A-C]
(2) This is not a case where
it can be said that the Sessions Judge came
to a palpably wrong conclusion on the evidence or that the reasons for
.ncquittal of the accused are manifestly erroneous, shocking one's sense of
B
justice.
The H.igh Court \Vas not right in interfering with the acquittal of the
accused in this case. r74-Dl
(3) Since the Sessions Cou1t and the High Court reached different con-
.clusions from the sa

## Text

68
A
RAJENDRA PRASAD
v.
STATE OF BIHAR
February 25, 1977
B
(Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAI.. JJ.J
c
:H
Crin1i11a! J!rocedure.. Code 1898-Powers of Hi/~h Court to set aside ocq11ittal
-Whetl!er n:1al Cf!Ul'l 111dgn1e11t should be palpably 1\'rong-Credibility of witness
-Test 1dent1ficat1011 parade-Delay in.
F.l.R.-Ahsence to na111e acc11sed-/j co1n•ictio11 ca11 be bnsed 011 sole testi~
111011y of a witness.
P. W. 9 Sabir aged about 18 year \Vent to the
house of Lala
(deceased)
\vho used to render physicril training and swin1ming lessons to young boys and
requested Lala to accon1pany hirn to the b<ink of a river.
\\'hen
Lala
was
cleaning his teeth and washing his fncc the appellant \\Cnt there \Vith 4 or 5
rersons. ·The prosecution case is thrit those 4 or 5 persons engngcd Lala in
talk and the appellant thn1~t a dagger on the back of Lala who died within
minutes after the assault.
20 to 25 persons who were there and P.\V. 9 and
others ran behind the appellant.
The prosecution exan1inccl 13 witnesses out
of \Vhieh 4 'vere cyc-\vitnesses, na1nely, P.W. 1. 4. 9 and 10.
The Sessions
Judge disbelieved all the eye
V11itnesscs, and acquitted
the
appellant.
The
Sessions Judge while <icquitting the :ippellant took the fol'Jo\ving facts into
consideration :-
( 1)
(2)
(3)
( 4)
P.\V. 4 who lodged the First Tnforn1ation Report did not na1ne any
<iccuscd and, in f<ict. he did not know the <1ccused before the occurrence nnd could not even
identify hin1 at
the
test
identification
parnde.
V. \Vs
1 nnd 10 had opportunity to see the accused before and
therefore the test identification parade could not be attached much
significance.
P. \Vs 1 nnd 2 are supposed to hnve seen the accused at the time
when he was running a\vay fron1 the place
of
occurrence
and,
therefore, it \V!!S highly ,improbable that they V11ould be able to retain
1he i1nprcssion of the accused.
It is highly improbable that P.\V. 9 hnd seen the incidC'nt since he
did not go to the Police Station nor even s!ayed at the
place
of
occurrence till the arrival of the police.
On the other hand. he
confined hi1nself in his house until a constable came to take him
to the police station.
The police in the beginning
Sll"o~cted him
as one of the persons who participCJtcd
in
the
nnirder
of
the
deceased.
His conduct is very sllspicious.
The I-ligh
Court in appeal by the State relied on the evidence of P.\V.
~
ns being corroborated by P. Vls. l and 10.
The
1-Tigh
Court thrrefore, set
aside the ncquittal and convicted the· accused under s. 302 l.P.C. rind sentenced
him to rigorous in1prison1ncnt for life.
Allovvino- the appeal under s. 2(a) of the Supre1ne C:ourt (Enl<irgement of
Criminal A'Prc<1l Jurisdiction) Act, 1970.
HELD : (I) When a trial court, with full view of the witnesses. acquits
an accused after disbeliev~ng direct. testin1ony it will_ b~ essential for the !Jigh
Court in nn appeal against ricqu1ttal to clea·rly 1nd1cate firn1 and weighty
grounds fro1n the record for discarding the reasons of the trial ccurt in or~er
to be able to reach a cont1;ary con_clu~io~ of guilt of the ace;used.
The High
court should be able to point ont in 11s JtKlgmcnt that the tnal court re-no;ons
'
• •
RA.JENDRA PRASAD v. BJllAR (Goswami, J.)
69
are palpably and unerringly shaky and
its
own
reasons
arc
demonstrably
A.
cogent.
As a salutary rule of appreciation of evidence in an appeal against
.acquittal it is not legally sufficient that it is just possible for the High Court
10· take a contrary view about the credibility of witnesses but it is absolutely
-imperative that the lfigh Court convincingly finds it \Yell-nigh impossible for
the trial court.to reject their testi1nony.
l74 A-C]
(2) This is not a case where
it can be said that the Sessions Judge came
to a palpably wrong conclusion on the evidence or that the reasons for
.ncquittal of the accused are manifestly erroneous, shocking one's sense of
B
justice.
The H.igh Court \Vas not right in interfering with the acquittal of the
accused in this case. r74-Dl
(3) Since the Sessions Cou1t and the High Court reached different con-
.clusions from the same evidence this Court \Vent lhrcugh the entire evidence
carefully in order to see \Vhcther the appreciation of the evidence by the
Sessions Judge was so unreasonable and unrealistic as to entitle the High Court
to interfere \vith the same. r?OE-F]
'
CRIMINAL APPELLATE JumsmcnoN : Criminal Appeal No. 159 of
1974.
I From the Judgment and Order dated 2-1-1974 of the Patna High
Court in Govt. Appeal No. 48/68).
S. Shau/wt Hussain, for the appellant.
Pramod Swarup, for the respondent.
The Judgment of the Court was delivered by
GoswAMI, J. The day, April 4, 1966, broke ominously for Lala
1larhi (deceased) who used to render physirnl training and swimming
lessons to young boys. One such boy, Sabir Hanfi (PW 9), aged about
18 years, went to the house of Lala Barbi
(hereinafter,
Lala)
at
Purani Bazar, in the town of Muzaffarpur.
Lala was then asleep.
Sabir Hanfi woke him up and they both went to the Ashram Ghat
(known also as Balu Ghat) on the bank of the Gand<:k river.
There
when Lala was cleansing his teeth and washing his face, the appellant
Raje11dra Prasad (hereinafter to be described as the accused) came
there with four or five persons. ' It is said that the accused had some
differences \Vith Lala over son1e money \Vhich he had given to him to
.assault somebody which Lala failed to accomplish. As his companions
were keeping Lala engaged in talk, the accused thrust a dagger on the
.back of Lala who then rnlled Sabir Hanfi.
Lala. himself a
robu"st
':lOUng rnan) rushed towards the accused \Vho took to his heels \Vith
l1is companions.
Lala fell down rushing forward a space of about
forty yards and breathed his last.
Sabir Hanfi and others also ran
behind Lala to his aid.
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Although thirteen witnesses were examined by the prosecution only
four of them were eye-witnesses to the occurrence.
They are Ram
Pukar Sah (PW 1), Parmeshwar Prasad (PW 4), Laehman Prasad
(PW 10) and Sabir Hanfi (PW 9). The Sessions Judge disbelieved
.all the eye-witnesses and acquitted the accused.
On the other hand
H
the High Court relied on the evidence of PW 9 as being corroborated
by PWs 1 and 10.
The High Court, therefore, set aside the acquittal
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70
SUPREME COURT REPORTS
[1977] 3 S·C.R.
and convicted the accused under section 302, Indian Penal Code, and
sentenced him to rigorous imprisonment for life.
Hence this appeal
under section 2(a) of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970.
PW 4 who lodged the first information report without naming any
accused and who did not know the accused before the occurrence
could not even identify him at the Test Identification Parade which
was held on September 29, 1966. The evidence of PW 4 is, therefore,
of no significance.
The case, therefore, depended upon the evidence
of recognition of the accused while running from the place of occurrence by PWs I, 10 and the direct testimonl'. of PW 9 who knew the
accused from before.
The accused was known only to Sabir Hanfi
(PW 9) by name. The other two witnesses did not know the accused
from before and saw him only while running away followed by twenty
or twentyfive other persons.
The evidence of PWs 1 and l 0, which we have carefully perused,
go tp show that they did not know the accused from before.
They
however, identified the accused in the Test Identification Parade held
on September 29, 1966, nearly six months after the occurrence. There
is no reason why the Test Parade was delayed so long when the
accused had surrendered on June 17, 1966. As stated earlier, the trial
court which had opportunity to see these witnesses disbelieved them
by giving certain reasons.
For example, according. to the Sessions
Judge, these two witnesses had the opportunity to know the accused
from before and, therefore, their identification in the Test Indentification Parade was not considered of such
significance.
He further
observed that these witnesses saw the accused at the time when he was
running away from the place of occurrence and, therefore, "it is highly
improbable that they would be able to retain the impression of the
assailant of Lala Barhi in their mind for so many months". The High
Court, on the other hand, held that identification by PWs 1 and 10
was reliable. Thus when two courts have come to a different conclusion on the same evidence, we had ourselves to go through the entire
evidence carefully in order to see whether the appreciation
of the
evidence by the Sessions Judge was so unreasonable and unrealistic
as to entitle the High Court to interfere with the same.
PW 1 is the father of PW 10. His unole died on !lie previous
night and both he and li"is son (PW 10) went for his cremation at
Chandwara Ghat.
The cremation was over at about 6.16 A.M. on
the morning of the day of occurrence. They then went to Balu Ghat
for a bath.
They saw Lala Barbi doing physical exercise on the bank
of the river and they went to take their bath in the river. After about
ten minutes they heard a hulla 'pakro' 'pakro'. On hearing the hulla
they came up to the Bank from the river and saw Lala Barhi running
away towards the East and four persons were chasing him and raising
a hulla 'pakro' 'pakro'.
They further stated that about twenty or
twenty-five persons followed to catch two or three persons who were
chasing the Lala. They had come out of the water at that time. PW
10 stated that he could not identify the other companions of Lala because he "saw their back only and not their face".
Since both the
'
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RA,JENDRA PRASAD v. BlHAR (Goswami, J,)
71
witnesses came out of the water on hearing the hulla which was raised
only after the assault, it was not possible for these two witnesses to
see the stabbjng,
Even if they recognised the persons running away,
they would not be able to say who, amongst them, had stabbed the
dece<Jsed,
PW 1 O has candidly admitted that he could not recognise
the companions of the deceased as they were running ahead and he
was watching from behind. If this be the position with regard to the
companions of the deceased it is difficult to see how these two witnesses 'vere able to recognise the accused who was
running
3\\'ay.
Apart from that there were twenty to twentyfive others following the
accused with two or three persons thus obstructing a clear view of the
accused.
In this state ·of evidence it is impossible to hold, on their
evidence. that the learned Sessions Judge did not reach a correct conclusion that identification by these two witnesses was futile for the
purpose of establishing the charge against the accused.
We are unable to appreciate how the High Court in this state of evidence could
reasonably come to a contrary conolusion with regard to the testimony
of these two witnesses.
This leaves PW 9 for consideration.
Although PW 9 knew the
assailant by name, th~ is no mention of the accused's name in the
first information report lodged the same day at 12.00 noon, five hours
after the occurrence, the Thana being only one and a half miles from
the place of occurrence.
The accused is described in the first information report as "a dark complexioned healthy young man. about the
age 'f 24/25 years", It may be that PW 9 is the only witness· who
had seen the stabbing. He may be the witness from the beginning of
the occurrence till the end and who described the incident in
detail.
Accordirg to him while the deceased was cleansing his
teeth the
accused came near him with four or five persons and that while some
of them kept the deceased engaged in some conversation the accused
stabbed the deceased on his back with a dagger. The whole case wHI,
therefore, rest on the evidence of this witness who knows the accused
from before,
The Sessions Judge has considered him as unreliable
for the following reasons :-
(1) It is highly improbable that if he had seen the
he would not have rushed to the police station
stayed at the place of occurrence till the arrival
police.
incident
or even
of the
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(2) That on the other hand PW 9 confined himself in
his
house from 4th April till the eyening of the following day
G
when a constable went to his house to take him to the
police station, •
(3) The police at first suspected that he might have a hand
in the murder of the deceased and suspected him and kept
him in the police lock-up.
( 4) The conduct of the witness is ·very suspicious and no reliance can be placed on his evidence.
6-240SCI /77
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SUPREME COURT REPORTS
[1977 J 3 S·C.R.
The High Court has considered the first two grounds as insufficient
for holding the witness as unreliable. It observed that "it is of common knowledge that generally people try to avoid becoming an informant and to be an eye-witness of the occurrence for various reason".
With regard to the third and fourth grounds the High Court referred
to the station diary entry (Ex. 4) and to the evidence of PW l 2 and
held as follows :~
" ... it was by mistake that PW 9 was arrested by a
constable. P.W. 12 has stated that in fact he was a prosecution witness. I do not find any valid reason for discrediting the evidence of P.W. 9".
From the evidence of PW 9 and PW 12 and in the context of the
C
station diary entry (Ex. 4), the position emerges as follows :-
D
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A police officer went to the house of PW 9 in the evening of April
5, J 966, to bring him to the Thana. He was found by the Officer-incharge of the Thana (PW 12) sitting at the police station at 7.30 P.M.
Now let us read the station diary entry (Ex. 4). Before we quote the
same we should state that this exhibit has not been correctlv translated
at page 56 of the Paper Book. We, therefore, ourselves examined the
original station diary entry and we will set out the same as correctly
translated. as under :-
"XVIII. Entered in Thana Daily S. 186
186. That this time, Shri G. S. Chaturvedi, Town Inspector,
came to Thana and took with him Mohd. Sabir Hanfi
alias Funna r/o Saraiyaganj Thana Town
the
accused (Abhiyukta) in connection with S. No. 5(4)66,
sec. 302 IPC.
On search nothing was found
on his
person except clothes he was wearing. After all the rules
of Hajat were observed he was kept in Hajat''.
Some uncertainty was felt by counsel regarding the meaning of the·
word "hajat". We have no doubt that the word
"hajat" means
custody in this context.
Bhargava's Standard Illustrated Dictionary,
Hindi Language, gives the meaning of Hajat, inter alia, as custody,
and states thus : "Hajat mein rakhna" means "to keep a culprit in
custody".
·
The High Court, we are afraid, does not appear to have examined
the original° station diary entry (Ex. 4) with care otherwise it would
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not have come to the conclusion that it was by mistake that PW 9 was
arrested by a constable simply from the self-serving statement of PW
~
12. The High Court does not even refer to the fact that a very important recital in the original entry
(Ex. 4), namely. the word
,
"abhivukta" (accused) has been scored out and in its place the word
"gavah" (witness) was substituted.
The interpolation of the word
"gavah" (witnes.) for· "abhiyukta" (accused) appeared to be
of a
H
different writer from the original writings in the entry. This is serious
tampering with an official record in a criminal case when a man's life
is in jeopardy in a trial for murder under section 302 !PC. We have
also grave suspicion about the date of correction of the entry in Ex. 4 .
•
I
'RAJENDRA PRASAD v. BIHAR €Goswami, 1.)
7 3 .
Althouoh the above entry shows that PW 9 was brought to the
Thana by the Town Inspector, G. S. Chaturvedi, he. was
not even
examined in the case to show why and under what circumstances PW
9 was brought by him. This entr)'. in the official record dearly sh~ws
that PW 9 was at that stage considered as an accused m connection
with this murder case and his person was searched before confmmg
him in the Hajat. If he was only a witness there was no .reason why
his person would be searched and why he wonld be kept m the lockup "after all the rules of Hajat were observed''. The High Court
completely lost sight of these serious infirmities in the prosecution
·evidence and it was absolutely impermissible to accept the statement
of PW 12 when he stated that PW 9 "had not been arrested" and that
·"he was only a prosecution witness''.
There are some other disquieting features with regard to the evi-
,dence of PW 9. It is not understood why he should have said that a
constable brought him to the Thana whereas the entry (Ex. 4) shows
that the Town Inspector, Chaturvedi, brought him to the Thana. If,
as the entry shows, he was brought by the Town Inspector, Chaturvedi,
.and he was kept confined in the lock-up as an accused in the murder
case, it is difficult to comprehend how at that very stage Ex. 4 could
be considered by PW 12 as containing a wrong recital without reference to the Town Inspector. Besides, PW 12, as he says, had taken
.charge of the investigation from Sub-Inspector, Gupteshwar Dayal
(PW 13) at 11.00 A.M. on April 5; 1966, inspected the place of
occurrence, unsuccessfully searched for the suspects Rajemlra Prasad,
Ram Bilas Sahani and Mohan Jha at their houses, examined some
witnesses and then reported to the Thana at 7.30 P.M. to find PW 9,
the principal witness, sitting there.
Even then he would not record
the statement of PW 9.
He admitted during the course of
crossexamination that when he first interrogated PW 9 at the Thana he
had not recorded his statement. He did not even record his statement
when he came to the Thana from his house at 11.00 P.M. that night,
These are very suspicious circumstances. PW 12, however, admitted
that he recorded the statement of PW 9 on
the following
day
(6-4-1966) at 12.05 A.N., after having produced him before the
'Superintendent of Police.
PW 9 admits that he was interrogated by
the Superintendent of Police for twenty to twentyfive minutes. PW 12
stated in his examination-in-chief that he allowed PW 9 to go to his
house. after he had recorded his statement on April 6, 1966, at 12.05
A.N.
From the evidence of PW 12 read with the entry (Ex. 4) it
does not appear that PW 9 was freed from police custody at least till
his statement was recorded on April 6, 1966.
Again, the statement
of PW 9 was recorded by the Magistrate under section 164, Criminal
Procedure Code, on AprH 12, 1966, when perhaps the police had
finally decided to treat him as a prosecution witness instead of an
accused.
This conclusion is irresistible on the state of evidence to
which we have referred .above. If under these circumstances the
Sessions Judge held that the conduct of this witness was such as would
seriously affect his credibility, the High Court was not at all justified
in taking a contrary view even without a proper analysis of the oral
and documentary evidence. When the evidence of recognition of the
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74
SUPREME COURT REPORTS
[19771 3 s.c.R.
accused by PWs 1, 10 and 4 is unreliable, no conviction can be based
on the sole testimony of a witness like PW 9, on whom the first suspicion fell, without any corroboration.
When a trial court, with full view of the witnesses, acquits an
accused after disbeliving direct testimony, it will be essential for the
High Court, in an aJJpeal against acquittal, to clearly indicate firm and
weighty grounds, from the record, for discarding the reasons of the
trial court in order to be able to reach a contrary conclusion of guilt
of the accused.
The High Court should be able to point out in its
judgment that the trial court's reasons are palpably and unerringly
shaky and its own reasons are demonstrably cogent.
As a salutary
rule of appreciation of evidence, in an appeal against acquittal, it is
not legally sufficient that it is just possible for the High Court to take
a contrary view about the credibility of witnesses but it is absolutely
imperative that the High Court convincingly finds it well-nigh impossible for the trial court to reject their testimony.
This is the quintessence of the jurisprudential aspect of criminal justice.
This is not a case where it can be said that the Sessions Judge
came to a palpably wrong conclusion on the evidence or that the
reasons for acquittal of the accused are manifestly erroneous, shocking
one's sense of justice.
The High Court was not right in interfering
with the acquittal of the accused in this case. The appeal is, therefore,
allowed. The judgment of the High Court is set aside.
The accused
shall be released from detention immediately.
P.H.P.
Appeal allowetl.