IMPORTANT POINT
Where an eye witness is found partly reliable, Court to rely on his testimony has to look for corroboration in material particulars.

JUDGMENT

Y.K. Sabharwal, J.-The conviction of the appellant for offence under Section 302 IPC has been confirmed by the impugned judgment of the High Court. The main question to be determined in this appeal is whether the sole eye-witness on whose testimony the conviction is primarily based is partly reliable or wholly unreliable.

2. Facts in brief are that on the date of incident, the deceased went with his elder son Mahesh (PW 4) to market and when at about 12.00 noon, he was coming out from a shop after purchasing a bundle of bidi, the appellant fired at him from 12 bore rifle. The shot hit the deceased above the waste on his backbone. The appellant was accompanied by his brother-in-law, Giriraj who had a katta, father, who had a gupti and brother who also had a katta. The incident was seen by PW 6 and PW 5. The deceased was taken to a hospital but seems to have died on the spot.

3. The appellant and Giriraj, his brother-in-law were put up for trial. In respect of father and brother of the appellant, informant (PW 4) gave in writing that their names had been wrongly mentioned and, therefore, no action be taken against them.

4. The Sessions Court, on appreciation of evidence, in particular, the testimony of PW4, the medical evidence, the evidence of ballistic expert and that of seizure came to the conclusion that the prosecution has proved beyond reasonable doubt that the gun-shot injury which resulted in death of the deceased was inflicted by the appellant. Giriraj was given benefit of doubt since neither any injury was attributed to him nor was katta recovered and it was held by the Sessions Court that the intention of Giriraj to commit the murder of the deceased had not been proved. The State did not challenge the acquittal of Giriraj. The High Court, on re-appreciation of evidence, has confirmed the appellant s conviction and sentence of life imprisonment.

5. Learned counsel for the appellant submits that PW 4 had falsely implicated father and brother of the appellant as also Giriraj who stands acquittal. It is further submitted that admittedly there was enmity between the family of the deceased and that of the accused. The deceased was accused in a case of murder of brother of the appellant, but was acquitted in the said case. In view of the enmity, the close relationship between the witness (PW4) and the deceased and false implication of appellant s other family members, it is submitted that PW4 is a wholly unreliable witness and conviction based on the testimony of such a witness is unsustainable.

6. PW 4 is not wholly reliable has been noticed by the High Court and keeping in view the said factor the evidence was analysed. We, however, find it difficult to accept the submission that PW 4 is wholly unreliable. He is neither wholly reliable nor wholly unreliable is evident from the evidence on record. PW4 is partly reliable and partly unreliable and the effect of it is that the court to rely on his testimony has to look for corroboration in material particulars (See Vadivelu Thevar v. The State of Madras [(1957) SCR 981]. The testimony of PW4 does not deserve to be entirety rejected. A cautious approach is necessary. Such a testimony has to be examined carefully and with caution. The testimony of PW4, therefore, cannot be rejected on the ground of it being wholly unreliable.

7. Keeping in view the above principles, we have examined the record. The FIR was recorded minutes after the commission of the offence. It names the appellant, the nature of the weapon with which the fire was shot by him, the situs of injury and the names of the other eye-witnesses who were present. It is, however, different matter that those eye-witnesses (PW5 and PW6) did not support the prosecution and were declared hostile.

8. It has also to be borne in mind that in India the maxim falsus in uno, falsus in omnibus has no application. It is not the law that if the witness has spoken some falsehood, his entire testimony has to be discarded. Testimony