In Re: Anji

Ramaswami, J.—On information received the Sub Inspector of Police, Hosur, P. W. 1, searched the premises of the accused in the presence of Mahazar witnesses and recovered from an almirah inside the room in which the accused was sleeping, a bottle containing arrack of 4 drama. The accused was arrested. The arrack bottle was seized under a Mahazar and a charge-sheet was laid under S. 4 (1) (a) of the Madras Prohibition Act In the course of the enquiry the examination of the search witnesses was dispensed with on the ground that they have been gained over The case for the accused was that he had been implicated in a false case. On his behalf the accused examined two witnesses and the evidence of both of them has been found by the lower Court to be absolutely unhelpful- But this need not detain us because we have got to see whether on the evidence on record the prosecution had affirmatively and satisfactorily brought home the offence to this accused beyond reasonable doubt. The learned Magistrate held that in his opinion the search had been conducted properly and that there was nothing to show that the accused had been falsely implicated He writes:

Nothing has been elicited from the Sub Inspector in his cross-examination to show why his testimony should not be accepted and acted upon. There is no reason why after an unsuccessful raid in the adjoining villages in the night, the Sub Inspector should suddenly think upon foisting a case against the accused. There is absolutely no ill-feeling between P. W. 1 and the accused. To my mind, it is too much to expect a Sub Inspector to foist a case against an innocent accused in the presence of his superior officers (Circle inspector and Deputy Superintendent of Police). The evidence of the two defence witnesses in no way helped the accused, as both of them are not aware of the search at all. If really the accused''s father felt that his son was taken away by P. W. 1, one would have expected him to complain to the Dy. S. P. or the Inspector instead of to D. W. 1 who could not even suggest to him to take action against the miscreant. In the circumstances of this case I believe the evidence of P. W. 1 to be true.

Therefore, he came to the conclusion that the prosecution has established the guilt of the accused beyond reasonable doubt and convicted him under S. 4(1)(a) of the Madras Prohibition Act and sentenced him to pay a fine of Rs. 30 Hence this revision.

The only point of substance urged in this revision is that the evidence of the Sub Inspector has not been corroborated and that it is neither legally sound nor justifiable to base a conviction on the uncorroborated and interested evidence of the Investigating Officer alone. I am not aware of any decision or law which requires the Sub Inspector''s evidence like that of an accomplice, to be corroborated in material particulars before it can be acted upon. The evidence of the Sub Inspector will succeed or fail exactly like that of any other material witness. We need not attach a double dose of original sin to a police officer and begin with the presumption that a Sub Inspector cannot be believed unless his evidence is proved to be true by corroborative evidence.

S. 134 of the Indian Evidence Act states that no particular number of witnesses shall in any case be required for the proof of any fact, S. 3 lays down that a fact is said to be proved when, after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

The Mosaic law in some cases and the Civilians and Canonists in all exacted the evidence of more than one witness, a doctrine adopted by most nations in Europe and by the ecclesiastical and some other Tribunals.

The English rule of common law unus nullus (rule that one is equal to none) governed strictly at one time the effect of evidence. Testimony was counted, not weighed one oath being in no case sufficient In Anglo-Saxon and Norman times, proof was according to the importance of the case, made six-handed, twelve-handed etc., and he who had the greater number of witnesses prevailing. This rule of unus nullus came to be greatly relaxed and in England now the general rule is the same as enacted by S. 134 of the Indian Evidence Act. But there are certain exceptions where the testimony of a tingle witness is declared by English Statutes to be insufficient to prove a particular fact, e. g. in cases of treason, perjury, and personation at elections.

In Mohammadan Law the evidence was governed strictly by the numerical system S. 134 of the Indian Evidence Act repeals the rules of Mohammadan Law which in many cases requires a fact to be proved by a particular number of witnesses The Hindu law-givers adopted a via media.

The Saksinah has been dealt with by Shri P. V. Kane in his History of Dharmssastra, Vol. III, Ch. XIII, p. 330 and following in a most illuminating manner Gautama, Manu, Yajnavalkya and Narada and others require that ordinarily there should be at least three witnesses in a cause But Brihaspathi says that there may be nine, seven, five, four or three witnesses, or two only if they are learned Brahmanas Vishnu and Brahaspathi emphasise that a single witness alone cannot be examined for deciding a matter. But Yajnavalkya, Vishnu and Narada make it clear that though this is normally desirable one man alone may be a witness in a cause if he is endowed with the regular performance of hit religious duties, i.e., is possessed of good qualities and accepted as a reliable witness by both sides The Hindu lawgivers, however, prescribe that the evidence of the witnesses must be direct and not hearsay It must also be disinterested and litigants were not to approach secretly the witnesses. They should be produced for examination by parties or summoned by Court. On entering the witness-box they were solemnly enjoined by the presiding Judge to speak the truth The ancient law-givers'' have prescribed long exhortations to be addressed by a Judge to the witnesses relating to the importance and high worth of truth, stating how the conscience of a man pricks him, what rewards await the truthful witness here and in the next world and what sin and terrible torments in Hell are the lot of an untruthful witness, what evil befalls even the deceased ancestors of an untruthful witness and how he is liable to be punished by the king. For the shorter exhortations see pp. 342-343 of Kane, His of Dharmashastras Vol. III and Appendix thereto for the longer exhortations and in fact witnesses themselves before deposing took off their shoes and turbans and raised the right hand (in order to draw attention of the Court) touched gold or Dharbagrass The Court house also was furnished with fire, water jars and other suspicious and sacred objects in order to create a suitable climate for speaking the truth. They were bound by solemn oaths (sapathe) and faced the cast or north in giving evidence Witnesses were examined in the presence of parties and their depositions were taken down. The demeanour of these witnesses was weighed with the greatest attention by the presiding officers. In fact Brahaspathi and Manu for instance state that the truth of the statements of witnesses should be examined by marking their tone, their change of colour, their eyes, their gestures, and their demeanour. Narada, Vishnu and Yajnavalkya point out the actions and appearances of a party or witness that deposes falsely viz., he appears restless, changes his place, i.e. shifts himself, licks the corners of his lips, his forehead perspires, his face loses colour, he frequently coughs and heaves frequent sighs, he scratches the ground with his feet (toes), waves his hands and garment, his mouth becomes dry and his voice falters, he speaks incoherently, talks too much though not asked and does not reply straight to the questions asked and avoids meeting the eyes of the questioner. The Hindu law-givers also lay stress upon discrepancies or beda between witnesses and impress that the evidence of a Witness may be false owing to friendship, fear greed, anger and ignorance. But the law-givers make a sharp distinction in regard to type of Witnesses in civil cases and criminal cases. In civil cases elaborate qualifications are prescribed for acceptable witnesses, whereas in the case of crimes (Sahasa) they accepted the evidence of every one whatever might be their disqualification because crimes are often witnessed accidentally and the witnesses also will come from the time class or vicinity or with same habits as the offenders. Birds of the same feather flock together. This is reflected in the old Latin saying "when there is a murder in a brothel, Strumpets can only be witnesses." Testis lupanaris sufficit ad factum inlupanari. Therefore, the Hindu law givers though they consider plurality of witnesses desirable prescribe quality and not quantity as the touch-stone of reliable evidence on which convictions could be based. The Hindu law of evidence enshrines the maxim "Evidence has to be weighed and not counted"

Therefore, in criminal cases as pointed out in a recent decision of the Supreme Court in Vadivelu Thevar and another v. State of Madras Crl. Ap. NOS. 24 and 25 of 1957, it is the weight of the evidence and not the number of witnesses which the Court has to consider and one credible witness outweighs the testimony of a number of witnesses of indifferent character and unless corroboration is insisted upon by statute Courts should not insist on corroboration except in cases where the nature of the testimony of a single witness itself requires as a rule of prudence which will be dependent on the circumstance of each case that corroboration should be insisted upon, for instance in the case of a child witness or of a witness whose evidence is that of an accomplice or of an analogous character and it is not incumbent, unless there are special circumstances in the individual case, on the prosecution to produce all the persons who happened to be gathered at the spot when the offence occurred or discovered: Vadivelu Thevar v. State. of Madras 1957 M.L.J. Crl. Short Notes p. 17 (S.C.). It is not necessary for the prosecution to produce every witness who can speak to a particular fact where the prosecution produces one witness when there are two witnesses available it does not follow that the evidence of the person who has been produced should be disbelieved. The only limitation is witnesses essential to the unfolding of the narrative, on which the prosecution rests must of course be celled by the prosecution. It can by no means be laid down as a general maxim that the assertion of the witnesses is more convincing to the mind than the assertion of one witness. An accused can be convicted even on the basis of the evidence of a single eye witness; but such a witness must be a man or woman of worth: (1874) 22 Suth. W.R. Crl. 32; (1675) 24 Suth. W.R. Crl. 18; A. I. R. 1928 Mad. 1186 (F.B.)=39 Crl. L.J. 317; A. I. R. 1920 Pat. 366; A. I. R 1953 All. 163=1953 Crl. L. J. 428; A. I. R. 1955 NUC., (Raj) 1244; A. I. R. 1955 NUC, (Sau.) 1645; A. I. R. 1955 NUC (Him Pra.) 1302; A. I. R. 1955 NUC Hyde. 2355; Narottan Das and Others Vs. Krishna Prasad and Others, . see "Number of witnesses in criminal cases". Sec. 134 N 4 Pt. 1-a of V.V. Chitaley and S. Appu Rao Corpus Juris of India-Indian Evidence Act, VOL. VII. 1956.

To sum up in the language of a recent popular English text book Harrison Advocacy at Petty Sessions, (1956), (Sweet end Maxwell), page 30 what is required is quality not quantity testimony. If two witnesses give almost identical evidence it frequently, pays to call one of them to the witness box choosing the one who gives the greater appearance of truth. If one witness is called and he is believed the other does no more than waste time (and we may add public funds) and give the cross-examiner another chance by cross-examination to throw doubt on the testimony of both. The object of adduction of evidence is to convince the Magistrate with the best evidence of the truth of the version proposed to be proved and not to furnish materiel by respective evidence for the cross-examiner to work upon and manufacture "discrepancies", the favourite pastime in magisterial Courts. In this case the learned Magistrate examined all the relevant circumstances and found no reason not to accept the testimony of the Sub Inspector, There is no substance also in the contention that the Circle Inspector and the Deputy Superintendent of Police should have been examined, because if the Sub Inspector for the sake of getting kudos for discovery of illicit liquor was prepared to foist a false case on an innocent mar, can we expect different evidence from the other police officers who were equal participants in the discovery? The accused, if there is any substance in his contention, could have requested the Court to examine them as Court witnesses. In fact at the earlier stage the father of the accused would have complained to them. Therefore, besides putting forward an argument which has become mamool that a Sub Inspector cannot be presumed to speak the truth and that every police accusation is necessarily a concoction, there are no merits in it. In the result, this revision case is dismissed.