Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 642 OF 2008
Kusti Mallaiah ...Appellant
Versus
The State of Andhra Pradesh ...Respondent
J U D G M E N T
Dipak Misra, J.
Calling in question the legal propriety of the
judgment of conviction and order of sentence passed in
Criminal Appeal No. 990 of 2005 by the High Court of
Judicature, Andhra Pradesh whereby the Division Bench
has concurred with the conviction and the imposition of
sentence by the learned Principal Sessions Judge, Medak
at Sangareddy in S.C. No. 79 of 1998 wherein the learnedPage 2
trial Judge, after finding the appellant along with one
Koninti @ Yerrolla Veeraiah, A-1, guilty of the offences
punishable under Sections 302 and 404 read with 34 of
the Indian Penal Code (for short “IPC”), had sentenced
each of them to undergo rigorous imprisonment for life on
the first count and three years on the second score.
2. Shorn of unnecessary details, the case of the
prosecution as unfolded is that on 9.2.1997 in the
morning hours Koninti @ Yerrolla Veeraiah, A-1, and
Kusti Malliah, A-2, took the deceased, Neelagiri
Parvamma, with them Shiver in the Thimmaiapally
hillocks. Kusti Yellaiah, PW-6, eye witness to the
occurrence, had accompanied them. The accused
persons and the deceased consumed liquor and,
thereafter, both the accused removed her clothes,
ravished her and assaulted her. The said action of
the A-1 and A-2 was objected to by PW-6, but he was
pushed away and being scared he went and stood at
a distance of approximately 300 yards. Thereafter,
both the accused persons stole the gold and silver
ornaments and brutally assaulted with stones, as a
2Page 3
consequence of which she sustained injuries and
succumbed to the same. PW-6, being panickystricken, ran away from the spot. On the next day,
i.e., 11.2.1997 about 8.00 a.m. PW-1, P. Vittal Reddy,
the Village Administrative Officer, Thammaiahapally,
coming to know about the dead body of a woman
lying in the forest, from a village shepherd, rushed
there and found the dead body of the deceased lying
half naked. He returned from the forest and about
11.30 a.m. and gave the information at Papannapet
Police Station. On the basis of said information the
investigating agency proceeded to the spot, prepared
the inquest report, registered an FIR under Section
302, IPC, sent the dead body for post mortem and
after PW-4, Neelagiri Bhoomiah, husband of the
deceased and PW-5, Neelagiri Mogulamma, daughter
of the deceased, identified the photograph and small
cloth purse to be that of the deceased, recorded their
statements. On 7.5.1997, the accused persons were
arrested and 30 gold gundlu weighing about half tula
was seized from the custody of A-1 and two silver
3Page 4
anklets and one hand bolukada weighing about 22
tulas from the possession of A-2. On that day itself
the statement of PW-6, who was an eye witness to
the incident, was recorded. After completion of
investigation charge-sheet was laid before the
competent Magistrate who, in turn, committed the
case to the Court of Session. The accused persons
denied the charges, pleaded innocence and claimed
to be tried.
3. The prosecution, in order to bring home the charges,
examined as many as 14 witnesses and got marked
exhibits P-1 to P-11 and also MO-1 to MO-9. On
behalf of the accused Ext. D-1 to D-3, the
contradictions in the statements of PWs-4 and 5 were
marked.
4. The learned trial Judge, after considering the
evidence on record, came to the conclusion that the
prosecution had been able to establish the guilt of
the accused persons for the offences punishable
under Sections 302 and 404 read with 34 IPC and
4Page 5
convicted them to suffer imprisonment as has been
referred to hereinbefore.
5. Challenging the judgment of conviction and order of
sentence, A-1 preferred Criminal Appeal No. 909 of
2002 wherein the High Court, analyzing and
appreciating the ocular and documentary evidence
on record, came to hold that the finding of guilt
recorded by the learned trial Judge on the basis of
the sole testimony of PW-6 could not be faulted.
Being of this view the High Court dismissed the
appeal and confirmed the conviction and sentence.
It is worthy to note that the said appeal was disposed
of on 21.9.2004. Thereafter, A-2, the present
appellant, preferred Criminal Appeal No. 990 of 2005
which has been dismissed relying on the earlier
judgment on 10.7.2006.
6. We have heard Mrs. Rachana Joshi Issar, learned
counsel for the appellant, and Mr. D. Mahesh Babu,
learned counsel for the respondent-State.
5Page 6
7. It is urged by the learned counsel for the appellant
that there are material contradictions in the evidence
of PWs-4 and 5, namely, the husband and daughter
of the deceased, and further their statements under
Section 161 of the Code of Criminal Procedure and
the depositions in court being irreconcilable, their
version should be treated as totally untrustworthy
and unreliable. It is canvassed by her that the
learned trial Judge as well as the High Court has
completely erred in relying on the ocular testimony of
PW-6 as his evidence is not beyond reproach. The
learned counsel would emphatically submitt that
there is delay in lodging the FIR which would clearly
reflect that the appellant has been roped in as the
husband of the deceased had harboured some kind
of suspicion relating to his relationship with the
deceased and, therefore, the prosecution story
deserves to be thrown overboard.
8. Resisting the aforesaid submissions it is urged by
Mr. Babu that there are no contradictions which
would make the prosecution version unreliable and
6Page 7
further there is no reason to discard the evidence of
husband and daughter. That apart, contends the
learned counsel for the respondent, the evidence of
PW-6 being absolutely credible the High Court, after
analyzing it, given due acceptation and hence,
judgment of conviction does not call for any
interference.
9. First, we shall deal with the submission pertaining to
the delay in lodging of the FIR. The occurrence, as
has been stated, took place on 10.2.1997. The FIR
was lodged by Vittal Reddy, PW-1, and it contained
that dead body of a woman was lying naked in the
forest and it had been noticed by a shepherd who
was grazing the cattle and on the basis of the same a
report under Section 174 of the Code of Criminal
Procedure was registered and, accordingly, the body
was sent for post mortem. The post mortem report
revealed the following external and internal injuries: -
“External injuries:
1. Lacerated injury fore head left side 2½” x ½”
communicating into the cavity of skull.
7Page 8
2. Lacerated injury right temple 1½” x ¼” x
1/8”
3. Incised wound right cheek ½” x ¼” x ¼”
4. Contusion front of chest right side 2” x ½”
5. Contusion right thigh upper 1/3” x 2” x 1”
6. Lacerated injury dorsum of the left foot 2½” x
½” x ½”
7. Incised wound Labinamejorce left ½” x ¼” x
¼”
8. Incised wound left inguinal region in 2” x ½”
x ¼”.
Internal Injuries:
1. Fracture frontal bone
2. Clotted blond was found over the frontal
area of brain.
3. Fracture 1st metatarsal bone.
All the above injuries were ante mortem in
nature.”
10. Be it noted, the autopsy was done and photograph of
the deceased, Ext. P-8, was taken by PW-14, the
photographer. It is clear from the evidence on record
that when the wife of PW-4 and mother of PW-5 did
not come back from her parental home after two
days as per schedule, the husband requested one of
the villagers to go to his father-in-law’s house and
ask his wife to return to her matrimonial home. After
8Page 9
the information was sent, on the next day his
mother-in-law and sister-in-law came to the house
and informed that the deceased had not come to
their house. Thereafter, his brother, Lingaiah, and he
searched for her and on 18.2.1997 they came to
know that some woman was found dead in
Thammaiahapally and the police had been informed.
Thereafter, he along with his daughter went to the
police station where they were shown the
photograph of the deceased and a small cloth purse
which they identified to be that of the deceased and,
thereafter, the investigation commenced for offences
punishable under Sections 302 and 404 read with 34
IPC was registered. Thus, the chronology of events
clearly shows that the police, on the basis of the
report recorded under Section 174 CrPC, conducted
the inquest and after the PW-4 and his daughter, PW-
5, identified the photograph, commenced the
investigation. During this time the husband and his
brother was searching for the deceased. Regard
being had to the totality of the circumstances, the
9Page 10
submission that there has been delay in lodging of
the FIR and for that reason the entire prosecution
story should be thrown overboard does not deserve
acceptance.
11. The next ground of assail pertains to material
contradictions in the statement recorded under
Section 161 of CrPC and the depositions in court and
further in the evidence of PW-4 and PW-5. It is urged
that the said contradictions destroy the very marrow
of the prosecution case. To appreciate the said
submission, we have scrutinized the statement
recorded under Section 161 CrPC of PW-4 and
noticed that he has said everything in detail about
whatever he has stated in his deposition in court
except that his wife and he had a quarrel on the date
of Ramjan festival. We do not really perceive any
contradiction which can be called material
contradiction. We say so as the omission in the
statement of PW-4 recorded under Section 161 CrPC
is not a significant omission so that it can be
regarded as a contradiction so significant and glaring
10Page 11
that the prosecution case should be disbelieved. As
far the contradiction in the evidence of PWs-4 and 5
is concerned, on a studied scrutiny of the same we
find that there are minor discrepancies. For the
aforesaid purpose, we proceed to analyse the
evidence of PWs-4 and 5. The husband of the
deceased, PW-4, has deposed that A-1 had wanted
to marry his daughter and A-1 had illicit relationship
with his wife. He had clearly stated that he had
identified the gold and silver ornaments. He had also
identified the small cloth purse and the photograph in
court. The version of the daughter, PW-5, is that
prior to the day of death when her mother left the
house there was a quarrel between her parents. She
has also identified the ornaments of her mother.
Thus, there is no material contradiction which would
make their version untrustworthy. True it is, there
are certain minor discrepancies regarding the timing,
the factum of meeting of A-1 and the deceased in the
market by the daughter, the quarrel between the
husband and the wife but they are absolutely minor.
11Page 12
They even cannot earn the status of minor
contradictions.
12. In Ousu Varghese v. State of Kerala1
, it has been
opined that the minor variations in the accounts of
witnesses are often the hallmark of the truth of the
testimony. In State of Rajasthan v. Smt. Kalki
and another2
, it has been observed that material
discrepancies are those which are not normal, and
not expected of a normal person.
13. At this juncture, it is also apt to reproduce a passage
from State of U.P. v. M.K. Anthony3
, wherein it
has been laid down as follows: -
“10. While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read as a whole
appears to have a ring of truth. Once that
impression is formed, it is undoubtedly
necessary for the court to scrutinise the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed
out in the evidence as a whole and evaluate
them to find out whether it is against the
general tenor of the evidence given by the
witness and whether the earlier evaluation of
the evidence is shaken as to render it unworthy
of belief. Minor discrepancies on trivial matters
1
(1974) 3 SCC 767
2
(1981) 2 SCC 752
3
(1985) 1 SCC 505
12Page 13
not touching the core of the case, hypertechnical approach by taking sentences torn out
of context here or there from the evidence,
attaching importance to some technical error
committed by the investigating officer not going
to the root of the matter would not ordinarily
permit rejection of the evidence as a whole.”
14. Similar view has been reiterated in State Rep. by
Inspector of Police v. Saravanan & Anr.4
15. In the case at hand neither PW 4 nor PW 5 has made
any endeavor to make any attempt to materially
improve their earlier statement in their deposition
before the court to make their evidence acceptable.
It is also not a case where it can be said that they
had withheld something material during investigation
and embellished certain aspects during their
deposition in court. That being the position we are
unable to agree with the submission of the learned
counsel for appellant that there are such material
contradictions which discredit the testimony of said
witnesses and accordingly the said submission is
rejected.
4
AIR 2009 SC 152
13Page 14
16. The last limb of submission pertains to the credibility
of the testimony of PW-6. The learned counsel has
seriously criticized the evidence of the said witness
on the ground that he had not told anyone about the
incident and only revealed it when the dead body
was identified. Criticism is also advanced against the
investigating agency that it recorded his statement
after ten days. As is manifest from the evidence
brought on record, he had accompanied the accused
on the fateful night. He has deposed that A-1 and A-
2 consumed liquor along with the deceased and after
ravishing her hit her with a big stone. The scare
compelled him to run away from the scene but he
witnessed the occurrence from a distance of
approximately 300 yards. The principal attack is that
it is quite unnatural that he would not reveal the
incident to anyone. It is worth noting that he had
accompanied the accused persons and the deceased.
The illicit relationship between the deceased and A-1
has been unequivocally stated by PWs-4 and 5. As
per the evidence of PW-6, the three consumed liquor
14Page 15
and thereafter the whole episode took place. This
witness has deposed about the stealing of ornaments
from the deceased. There has been recovery of the
ornaments from the accused persons and the same
have been recovered from their custody in presence
of PW-9. The seizure memo, Ext. P-6, has been duly
proven and there is nothing on record to disbelieve
the testimony of PW-9 or to discard Ext.P-6. Proper
procedure has been followed as per the deposition of
the Investigating Officer, PW-13. The post mortem
report, Ext.P-7, clearly mentions that the deceased
died on account of head injury. Thus, the testimony
of PW-6 gets corroboration from the medical
evidence and also from the factum of recovery. That
apart, nothing was suggested to him that he had any
animosity with the accused persons. Thus, the
cumulative nature and character of the evidence of
this witness is difficult to ignore solely on the ground
that he did not tell the incident to any one and only
revealed after the police examined him. It is
common knowledge that people react to situations in
15Page 16
different manner. As is evincible, he had
accompanied the accused persons along with the
deceased. As deposed by the husband and daughter,
the deceased had an illicit relationship with A-1.
Three of them consumed liquor and she was ravished
by the accused persons and, eventually, there was
assault. Having accompanied them and witnessing
the incident it is natural that a sense of fear would
creep in. In such circumstances the delay in
recording of his statement by the Investigating
officer would not corrode the version of the
prosecution. That apart, nothing has been put to him
in the cross-examination that he was not present at
the spot or he was involved in the crime along with
the accused persons. The roving cross-examination
only concentrated on his seeing the occurrence from
300 yards away because of darkness, which we think
is absolutely immaterial, for they belonged to the
same village, he had accompanied them and there
was no one else except the accused persons and the
deceased at that distance. That apart he has
16Page 17
categorically stated that he was able to see the
assault by the accused persons and removing the
gold and silver ornaments. Thus, there is no
impediment to place reliance on his evidence as it is
trustworthy and unimpeachable.
17. It has been held in catena of decisions of this Court
that there is no legal hurdle in convicting a person on
the sole testimony of a single witness if his version is
clear and reliable, for the principle is that the
evidence has to be weighed and not counted. In
Vadivelu Thevar v. The State of Madras5
, it has
been held that if the testimony of a singular witness
is found by the court to be entirely reliable, there is
no legal impediment in recording the conviction of
the accused on such proof.
In the said
pronouncement it has been further ruled that the law
of evidence does not require any particular number
of witnesses to be examined in proof of a given fact.
However, faced with the testimony of a single
witness, the court may classify the oral testimony
5
AIR 1957 SC 614
17Page 18
into three categories, namely,
(i) wholly reliable,
(ii) wholly unreliable, and
(iii) neither wholly reliable nor wholly unreliable.
In the first two categories there
may be no difficulty in accepting or discarding the
testimony of the single witness.
The difficulty arises
in the third category of cases. The court has to be
circumspect and has to look for corroboration in
material particulars by reliable testimony, direct or
circumstantial, before acting upon the testimony of a
single witness.
18. Similar view has been expressed in Lallu Manjhi
and another v. State of Jharkhand6
, Prithipal
Singh and others v. State of Punjab and
another7
and Jhapsa Kabari and others v. State
of Bihar8
.
19. On the analysis of evidence of PW-6 we find that his
evidence is cogent and trustworthy and further gets
corroboration from the medical evidence and also for
6
(2003) 2 SCC 401
7
(2012) 1 SCC 10
8
(2001) 10 SCC 94
18Page 19
the factum of recovery of gold and silver ornaments
which has been clearly proven by PW-9.
20. In view of the aforesaid analysis, we do not perceive
any error in the judgment of conviction and order of
sentence passed by the learned trial Judge that has
been affirmed by the High Court and, accordingly,
the appeal, being devoid of merit, stands dismissed.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 28, 2013.
19
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 642 OF 2008
Kusti Mallaiah ...Appellant
Versus
The State of Andhra Pradesh ...Respondent
J U D G M E N T
Dipak Misra, J.
Calling in question the legal propriety of the
judgment of conviction and order of sentence passed in
Criminal Appeal No. 990 of 2005 by the High Court of
Judicature, Andhra Pradesh whereby the Division Bench
has concurred with the conviction and the imposition of
sentence by the learned Principal Sessions Judge, Medak
at Sangareddy in S.C. No. 79 of 1998 wherein the learnedPage 2
trial Judge, after finding the appellant along with one
Koninti @ Yerrolla Veeraiah, A-1, guilty of the offences
punishable under Sections 302 and 404 read with 34 of
the Indian Penal Code (for short “IPC”), had sentenced
each of them to undergo rigorous imprisonment for life on
the first count and three years on the second score.
2. Shorn of unnecessary details, the case of the
prosecution as unfolded is that on 9.2.1997 in the
morning hours Koninti @ Yerrolla Veeraiah, A-1, and
Kusti Malliah, A-2, took the deceased, Neelagiri
Parvamma, with them Shiver in the Thimmaiapally
hillocks. Kusti Yellaiah, PW-6, eye witness to the
occurrence, had accompanied them. The accused
persons and the deceased consumed liquor and,
thereafter, both the accused removed her clothes,
ravished her and assaulted her. The said action of
the A-1 and A-2 was objected to by PW-6, but he was
pushed away and being scared he went and stood at
a distance of approximately 300 yards. Thereafter,
both the accused persons stole the gold and silver
ornaments and brutally assaulted with stones, as a
2Page 3
consequence of which she sustained injuries and
succumbed to the same. PW-6, being panickystricken, ran away from the spot. On the next day,
i.e., 11.2.1997 about 8.00 a.m. PW-1, P. Vittal Reddy,
the Village Administrative Officer, Thammaiahapally,
coming to know about the dead body of a woman
lying in the forest, from a village shepherd, rushed
there and found the dead body of the deceased lying
half naked. He returned from the forest and about
11.30 a.m. and gave the information at Papannapet
Police Station. On the basis of said information the
investigating agency proceeded to the spot, prepared
the inquest report, registered an FIR under Section
302, IPC, sent the dead body for post mortem and
after PW-4, Neelagiri Bhoomiah, husband of the
deceased and PW-5, Neelagiri Mogulamma, daughter
of the deceased, identified the photograph and small
cloth purse to be that of the deceased, recorded their
statements. On 7.5.1997, the accused persons were
arrested and 30 gold gundlu weighing about half tula
was seized from the custody of A-1 and two silver
3Page 4
anklets and one hand bolukada weighing about 22
tulas from the possession of A-2. On that day itself
the statement of PW-6, who was an eye witness to
the incident, was recorded. After completion of
investigation charge-sheet was laid before the
competent Magistrate who, in turn, committed the
case to the Court of Session. The accused persons
denied the charges, pleaded innocence and claimed
to be tried.
3. The prosecution, in order to bring home the charges,
examined as many as 14 witnesses and got marked
exhibits P-1 to P-11 and also MO-1 to MO-9. On
behalf of the accused Ext. D-1 to D-3, the
contradictions in the statements of PWs-4 and 5 were
marked.
4. The learned trial Judge, after considering the
evidence on record, came to the conclusion that the
prosecution had been able to establish the guilt of
the accused persons for the offences punishable
under Sections 302 and 404 read with 34 IPC and
4Page 5
convicted them to suffer imprisonment as has been
referred to hereinbefore.
5. Challenging the judgment of conviction and order of
sentence, A-1 preferred Criminal Appeal No. 909 of
2002 wherein the High Court, analyzing and
appreciating the ocular and documentary evidence
on record, came to hold that the finding of guilt
recorded by the learned trial Judge on the basis of
the sole testimony of PW-6 could not be faulted.
Being of this view the High Court dismissed the
appeal and confirmed the conviction and sentence.
It is worthy to note that the said appeal was disposed
of on 21.9.2004. Thereafter, A-2, the present
appellant, preferred Criminal Appeal No. 990 of 2005
which has been dismissed relying on the earlier
judgment on 10.7.2006.
6. We have heard Mrs. Rachana Joshi Issar, learned
counsel for the appellant, and Mr. D. Mahesh Babu,
learned counsel for the respondent-State.
5Page 6
7. It is urged by the learned counsel for the appellant
that there are material contradictions in the evidence
of PWs-4 and 5, namely, the husband and daughter
of the deceased, and further their statements under
Section 161 of the Code of Criminal Procedure and
the depositions in court being irreconcilable, their
version should be treated as totally untrustworthy
and unreliable. It is canvassed by her that the
learned trial Judge as well as the High Court has
completely erred in relying on the ocular testimony of
PW-6 as his evidence is not beyond reproach. The
learned counsel would emphatically submitt that
there is delay in lodging the FIR which would clearly
reflect that the appellant has been roped in as the
husband of the deceased had harboured some kind
of suspicion relating to his relationship with the
deceased and, therefore, the prosecution story
deserves to be thrown overboard.
8. Resisting the aforesaid submissions it is urged by
Mr. Babu that there are no contradictions which
would make the prosecution version unreliable and
6Page 7
further there is no reason to discard the evidence of
husband and daughter. That apart, contends the
learned counsel for the respondent, the evidence of
PW-6 being absolutely credible the High Court, after
analyzing it, given due acceptation and hence,
judgment of conviction does not call for any
interference.
9. First, we shall deal with the submission pertaining to
the delay in lodging of the FIR. The occurrence, as
has been stated, took place on 10.2.1997. The FIR
was lodged by Vittal Reddy, PW-1, and it contained
that dead body of a woman was lying naked in the
forest and it had been noticed by a shepherd who
was grazing the cattle and on the basis of the same a
report under Section 174 of the Code of Criminal
Procedure was registered and, accordingly, the body
was sent for post mortem. The post mortem report
revealed the following external and internal injuries: -
“External injuries:
1. Lacerated injury fore head left side 2½” x ½”
communicating into the cavity of skull.
7Page 8
2. Lacerated injury right temple 1½” x ¼” x
1/8”
3. Incised wound right cheek ½” x ¼” x ¼”
4. Contusion front of chest right side 2” x ½”
5. Contusion right thigh upper 1/3” x 2” x 1”
6. Lacerated injury dorsum of the left foot 2½” x
½” x ½”
7. Incised wound Labinamejorce left ½” x ¼” x
¼”
8. Incised wound left inguinal region in 2” x ½”
x ¼”.
Internal Injuries:
1. Fracture frontal bone
2. Clotted blond was found over the frontal
area of brain.
3. Fracture 1st metatarsal bone.
All the above injuries were ante mortem in
nature.”
10. Be it noted, the autopsy was done and photograph of
the deceased, Ext. P-8, was taken by PW-14, the
photographer. It is clear from the evidence on record
that when the wife of PW-4 and mother of PW-5 did
not come back from her parental home after two
days as per schedule, the husband requested one of
the villagers to go to his father-in-law’s house and
ask his wife to return to her matrimonial home. After
8Page 9
the information was sent, on the next day his
mother-in-law and sister-in-law came to the house
and informed that the deceased had not come to
their house. Thereafter, his brother, Lingaiah, and he
searched for her and on 18.2.1997 they came to
know that some woman was found dead in
Thammaiahapally and the police had been informed.
Thereafter, he along with his daughter went to the
police station where they were shown the
photograph of the deceased and a small cloth purse
which they identified to be that of the deceased and,
thereafter, the investigation commenced for offences
punishable under Sections 302 and 404 read with 34
IPC was registered. Thus, the chronology of events
clearly shows that the police, on the basis of the
report recorded under Section 174 CrPC, conducted
the inquest and after the PW-4 and his daughter, PW-
5, identified the photograph, commenced the
investigation. During this time the husband and his
brother was searching for the deceased. Regard
being had to the totality of the circumstances, the
9Page 10
submission that there has been delay in lodging of
the FIR and for that reason the entire prosecution
story should be thrown overboard does not deserve
acceptance.
11. The next ground of assail pertains to material
contradictions in the statement recorded under
Section 161 of CrPC and the depositions in court and
further in the evidence of PW-4 and PW-5. It is urged
that the said contradictions destroy the very marrow
of the prosecution case. To appreciate the said
submission, we have scrutinized the statement
recorded under Section 161 CrPC of PW-4 and
noticed that he has said everything in detail about
whatever he has stated in his deposition in court
except that his wife and he had a quarrel on the date
of Ramjan festival. We do not really perceive any
contradiction which can be called material
contradiction. We say so as the omission in the
statement of PW-4 recorded under Section 161 CrPC
is not a significant omission so that it can be
regarded as a contradiction so significant and glaring
10Page 11
that the prosecution case should be disbelieved. As
far the contradiction in the evidence of PWs-4 and 5
is concerned, on a studied scrutiny of the same we
find that there are minor discrepancies. For the
aforesaid purpose, we proceed to analyse the
evidence of PWs-4 and 5. The husband of the
deceased, PW-4, has deposed that A-1 had wanted
to marry his daughter and A-1 had illicit relationship
with his wife. He had clearly stated that he had
identified the gold and silver ornaments. He had also
identified the small cloth purse and the photograph in
court. The version of the daughter, PW-5, is that
prior to the day of death when her mother left the
house there was a quarrel between her parents. She
has also identified the ornaments of her mother.
Thus, there is no material contradiction which would
make their version untrustworthy. True it is, there
are certain minor discrepancies regarding the timing,
the factum of meeting of A-1 and the deceased in the
market by the daughter, the quarrel between the
husband and the wife but they are absolutely minor.
11Page 12
They even cannot earn the status of minor
contradictions.
12. In Ousu Varghese v. State of Kerala1
, it has been
opined that the minor variations in the accounts of
witnesses are often the hallmark of the truth of the
testimony. In State of Rajasthan v. Smt. Kalki
and another2
, it has been observed that material
discrepancies are those which are not normal, and
not expected of a normal person.
13. At this juncture, it is also apt to reproduce a passage
from State of U.P. v. M.K. Anthony3
, wherein it
has been laid down as follows: -
“10. While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read as a whole
appears to have a ring of truth. Once that
impression is formed, it is undoubtedly
necessary for the court to scrutinise the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed
out in the evidence as a whole and evaluate
them to find out whether it is against the
general tenor of the evidence given by the
witness and whether the earlier evaluation of
the evidence is shaken as to render it unworthy
of belief. Minor discrepancies on trivial matters
1
(1974) 3 SCC 767
2
(1981) 2 SCC 752
3
(1985) 1 SCC 505
12Page 13
not touching the core of the case, hypertechnical approach by taking sentences torn out
of context here or there from the evidence,
attaching importance to some technical error
committed by the investigating officer not going
to the root of the matter would not ordinarily
permit rejection of the evidence as a whole.”
14. Similar view has been reiterated in State Rep. by
Inspector of Police v. Saravanan & Anr.4
15. In the case at hand neither PW 4 nor PW 5 has made
any endeavor to make any attempt to materially
improve their earlier statement in their deposition
before the court to make their evidence acceptable.
It is also not a case where it can be said that they
had withheld something material during investigation
and embellished certain aspects during their
deposition in court. That being the position we are
unable to agree with the submission of the learned
counsel for appellant that there are such material
contradictions which discredit the testimony of said
witnesses and accordingly the said submission is
rejected.
4
AIR 2009 SC 152
13Page 14
16. The last limb of submission pertains to the credibility
of the testimony of PW-6. The learned counsel has
seriously criticized the evidence of the said witness
on the ground that he had not told anyone about the
incident and only revealed it when the dead body
was identified. Criticism is also advanced against the
investigating agency that it recorded his statement
after ten days. As is manifest from the evidence
brought on record, he had accompanied the accused
on the fateful night. He has deposed that A-1 and A-
2 consumed liquor along with the deceased and after
ravishing her hit her with a big stone. The scare
compelled him to run away from the scene but he
witnessed the occurrence from a distance of
approximately 300 yards. The principal attack is that
it is quite unnatural that he would not reveal the
incident to anyone. It is worth noting that he had
accompanied the accused persons and the deceased.
The illicit relationship between the deceased and A-1
has been unequivocally stated by PWs-4 and 5. As
per the evidence of PW-6, the three consumed liquor
14Page 15
and thereafter the whole episode took place. This
witness has deposed about the stealing of ornaments
from the deceased. There has been recovery of the
ornaments from the accused persons and the same
have been recovered from their custody in presence
of PW-9. The seizure memo, Ext. P-6, has been duly
proven and there is nothing on record to disbelieve
the testimony of PW-9 or to discard Ext.P-6. Proper
procedure has been followed as per the deposition of
the Investigating Officer, PW-13. The post mortem
report, Ext.P-7, clearly mentions that the deceased
died on account of head injury. Thus, the testimony
of PW-6 gets corroboration from the medical
evidence and also from the factum of recovery. That
apart, nothing was suggested to him that he had any
animosity with the accused persons. Thus, the
cumulative nature and character of the evidence of
this witness is difficult to ignore solely on the ground
that he did not tell the incident to any one and only
revealed after the police examined him. It is
common knowledge that people react to situations in
15Page 16
different manner. As is evincible, he had
accompanied the accused persons along with the
deceased. As deposed by the husband and daughter,
the deceased had an illicit relationship with A-1.
Three of them consumed liquor and she was ravished
by the accused persons and, eventually, there was
assault. Having accompanied them and witnessing
the incident it is natural that a sense of fear would
creep in. In such circumstances the delay in
recording of his statement by the Investigating
officer would not corrode the version of the
prosecution. That apart, nothing has been put to him
in the cross-examination that he was not present at
the spot or he was involved in the crime along with
the accused persons. The roving cross-examination
only concentrated on his seeing the occurrence from
300 yards away because of darkness, which we think
is absolutely immaterial, for they belonged to the
same village, he had accompanied them and there
was no one else except the accused persons and the
deceased at that distance. That apart he has
16Page 17
categorically stated that he was able to see the
assault by the accused persons and removing the
gold and silver ornaments. Thus, there is no
impediment to place reliance on his evidence as it is
trustworthy and unimpeachable.
17. It has been held in catena of decisions of this Court
that there is no legal hurdle in convicting a person on
the sole testimony of a single witness if his version is
clear and reliable, for the principle is that the
evidence has to be weighed and not counted. In
Vadivelu Thevar v. The State of Madras5
, it has
been held that if the testimony of a singular witness
is found by the court to be entirely reliable, there is
no legal impediment in recording the conviction of
the accused on such proof.
In the said
pronouncement it has been further ruled that the law
of evidence does not require any particular number
of witnesses to be examined in proof of a given fact.
However, faced with the testimony of a single
witness, the court may classify the oral testimony
5
AIR 1957 SC 614
17Page 18
into three categories, namely,
(i) wholly reliable,
(ii) wholly unreliable, and
(iii) neither wholly reliable nor wholly unreliable.
In the first two categories there
may be no difficulty in accepting or discarding the
testimony of the single witness.
The difficulty arises
in the third category of cases. The court has to be
circumspect and has to look for corroboration in
material particulars by reliable testimony, direct or
circumstantial, before acting upon the testimony of a
single witness.
18. Similar view has been expressed in Lallu Manjhi
and another v. State of Jharkhand6
, Prithipal
Singh and others v. State of Punjab and
another7
and Jhapsa Kabari and others v. State
of Bihar8
.
19. On the analysis of evidence of PW-6 we find that his
evidence is cogent and trustworthy and further gets
corroboration from the medical evidence and also for
6
(2003) 2 SCC 401
7
(2012) 1 SCC 10
8
(2001) 10 SCC 94
18Page 19
the factum of recovery of gold and silver ornaments
which has been clearly proven by PW-9.
20. In view of the aforesaid analysis, we do not perceive
any error in the judgment of conviction and order of
sentence passed by the learned trial Judge that has
been affirmed by the High Court and, accordingly,
the appeal, being devoid of merit, stands dismissed.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 28, 2013.
19
