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PETITIONER: BADRI

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT06/11/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. BEG, M. HAMEEDULLAH

CITATION:  1976 AIR  560            1976 SCR  (2) 339  1976 SCC  (1) 442

ACT:      Evidence-Corroboration-Quality.   not   quantity   that matters.

HEADNOTE:      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 investigation.      The trial  Court found  certain  discrepancies  in  the evidence of  P.W. 1,  regarding 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  corroboration in  the evidence  of P.W. 5 who said that he saw 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, ^      HELD :  (1). The fact that the statement of the witness (P.W. 1)  was recorded  by  the  Magistrate  under  s.  164, Cr.P.C. is  not a  ground for  rejecting the evidence. 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  his  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-G]      (2) However,  P.W. 1 cannot be said to be an absolutely reliable witness and both the trial Court and the High Court proceeded  on   the  view   that   his   evidence   required

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corroboration. [344 E]      (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  cross-examination on  material points,  namely, 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  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-B]      (b) Even  the prompt  lodging of  the First Information Report showing  P.W. 1  as an eye-witness and mention of gun fire in  the First  Information  Report  Would  not  be  the requisite corroboration  needed for the purpose of accepting his testimony.  If the  witness himself  is  not  absolutely reliable, his  repeating name  of  the  accused  to  several persons, after  the occurrence, would not add to the quality of his evidence. [345 B] 340      (c) In the instant case, there is a discrepancy in P.W. 1’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-lane on the opposite side entirely the accused firing with his gun. This appeared in  the view  of the  site plan,  to be  a  serious discrepancy in  the evidence  of an  only eye-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-G]      (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 inconsequential. [343 C]      (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  ease the  Court has also to consider whether it could be reasonably satisfied so as to act even upon the testimony of a single witnes for the purpose of convicting a person. 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 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 B]

JUDGMENT:      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.      A. N. Mulla and R. L. Kohli for the Appellant.      Inder Mekrana and S. M. Jain for the Respondent.

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    S. S. Khanduja for the Intervener.      The Judgment of the Court was delivered by      GOSWAMI, J.  This appeay  by special  leave is directed against the  judgment of  the Rajasthan High Court affirming the conviction  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,  Patram (PW  1) were  returning from the  ’guwar’ (open  space) of  Bass Pema in the village Dabli Bass  Chena. The  lane by  which they were coming from the ’guwar’ goes straight towards the north and it passes on the backside  of several  houses including  the house of one Rajaram and  the house  of the  accused, Badri. These houses are on  the right  side as  one proceeds  from  the  ’guwar’ towards the  north. The  house of  one Gangaram is the first house on the left side of the lane. After passing his house, there is  a lane  which branches off from the main lane from the ’guwar’  and that by-lane is towards the west. All these are shown in the site plan (Ex. P3). When the two 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 Jagmal Chamar which  is shown  in the plan as the last house on the left of  the main  lane. Govindram thus parting company with Patram 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 5 1/2 feet) when  he heard the voice of accused, Badri. He stopped and saw  Badri 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 had 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,  Hanumangarh.  The  first  information  report  was lodged at  the Thana  at 11-00  P.M. and  the  name  of  the accused was mentioned therein.      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, 1970. 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 information  report. We  may note,  however, that  the trial court  observed that  Patram "falsely  introduced  the second gun-fire  report" and  "had definitely  wrongly given this range  of fire"  (namely 27  1/2 feet). The trial court

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further held as follows:-           "The witness  (Patram) may not be wholly true, but      substantially true  and simply  because the witness has      falsely spoken  to (sic)  as to  one or two facts under      compelling circumstances,  it could not be said that he      was only partly true. In my opinion, it would be better      to label  him 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 erroneously  thought  that  the  entry      wound was in the chest and the injuries Nos. 2, 3 and 5      were also  gun-shot injuries,  the witness  Patram  was      compelled to  change his  version  a  little,  probably      under the  advice of  the S.H.O.  (the Police Officer).      The witness 342      was compelled and tempted to say something which he did      not see".           x x x x           "If  because  of  such  compelling  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 feeing 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  had told  the  police  that  he  informed anybody at  the place  of occurrence  as to  his having seen Badri escaping with the gun.

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343      The trial  court  has  committed  a  serious  error  in disallowing the  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 corro-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.      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  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 suspect from the mere fact of  his statement  being recorded  under  section  164, Criminal  Procedure  Code.  If  the  court  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 testimony 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 necessity of his statement being recorded 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) wholly  unreliable and (3) neither wholly reliable nor wholly unreliable. 344 While there  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   material  particulars  by  reliable      testimony, direct or circumstantial".      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 to

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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 Govindram  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 seeing 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 immediately  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 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 requisite 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 accused to several persons  after 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 influenced  by the police to change his  statement to  suit the prosecution. Although the High Court  has disagreed with this observation of the trial

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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      weeping 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 Jat 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 Patram". 346      Further, there  was difference  of opinion  between the two Medical  Officers examined  in the case. The trial court refused to  accept the  evidence of  the  first  doctor  and summoned 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" because  of doctor’s  opinion after  the post-mortem examination was held 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 cannot be considered as  a reliable  person and  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. 347