Tamil Selvam and Pandi vs State

T. Sudhanthiram,J.

The Appellants 1 and 2 in Crl.A. No. 1456 of 2003 and the Appellant in Crl.A. No. 1603 of 2003 are the accused 1 to 3 respectively in S.C.

No. 46 of 2002 on the file of the Principal Sessions Judge, Thanjavur. The accused 1 and 2 stand convicted for the offence u/s 302 r/w. 34 I.P.C.

and each one of the accused sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/- and in default to undergo four years rigorous

imprisonment and also convicted for the offence u/s 341 I.P.C. and each one of the accused sentenced to undergo one month simple

imprisonment. The third accused stands convicted for the offence u/s 302 r/w. 109 I.P.C. and sentenced to undergo life imprisonment and to pay a

fine of Rs. 5,000/- and in default to undergo four years rigorous imprisonment and convicted for the offence u/s 341 I.P.C. and sentenced to

undergo one month simple imprisonment and also convicted for the offence u/s 506(ii) I.P.C. and sentenced to undergo 7 years rigorous

imprisonment. Challenging the said conviction and sentence, the Appellants had preferred the above said appeals.

The case of the prosecution in brief is as follows:

(a) P.W.1 is the brother of the deceased Sekar and P.W.2 is the wife of the deceased. About six months prior to this occurrence, one Chinnaya

@ Selvam was murdered and a case was registered by Kottampatii Police, in which the deceased Sekar was shown as accused. In connection

with that case, the deceased also surrendered before the Court and he was in judicial custody for some time and thereafter, he was released on

bail. The accused were related to the deceased Selvam.P. Ws.1 and 2 and the deceased Sekar were residing in a rented house at Manogipatti,

South Pookadai in Thanjavur. On 07.03.1993, at about 8.15 p.m., P.W.2 was standing at threshold of the house and was expecting the arrival of

her husband. At that time, she heard a noise from the place near the house of a person who was working in a Bank and she ran to that place.

P.W.2 saw the accused 1 and 2 each one holding an aruval and attacking her husband on several parts of body. P.W.2 shouted not to attack her

husband. Then she was threatened. According to P.W.2, the occurrence was also witnessed by P.W.1, the brother of the deceased and also the

Panchayat President. The accused had run away from the scene of occurrence. The accused 1 and 3 escaped from the place in a TVS vehicle.

(b) P.W.2 went along with P.W.1 to the Thanjavur South Police Station and gave a complaint against the accused at 11.00 p.m. Ex.P3 is the

complaint given by P.W.1 to P.W.11, the Sub-Inspector of Police. P.W.11, the Sub-Inspector of Police, on receiving the complaint, registered a

case in Crime No. 80 of 1993 for the offence u/s 302 I.P.C. and prepared the First Information Report - Ex.P4. P.W.15, the Inspector of Police

took up the investigation. While he was about to go to the scene of occurrence received an information from P.W.9 and thereafter, he arrested the

second accused and recorded his confession statement at about 12.15 a.m. In pursuance of his confession, recovered an aruval at about 1.15 a.m.

and also recovered the dress materials of the accused. On further information, he went near the Thanjavur Medical College Hospital and

recovered Hyundai motorcycle, an aruval, a citizen watch and bloodstained earth. Thereafter, on further information, he went inside the hospital to

Ward No. 28 and saw the first accused, who was admitted for having sustained injury on his right leg. He recovered the cloths of the first accused.

Thereafter, he went to the scene of occurrence and prepared a rough sketch and recovered a Hercules cycle from the scene of occurrence. He

held inquest on the body of the deceased on 23.03.1993 at 5.30 a.m. to 11.30 a.m. and recorded the statement of the witnesses and prepared the

inquest report - Ex.P.17. He sent the body for the postmortem examination with the requisition.

(c) P.W.12, the doctor held autopsy on the body of the deceased on 08.03.1993 at 1.35 p.m. and he had noticed multiple cut injuries on the body

of the deceased and issued postmortem certificate - Ex.P5 and opined that the deceased appears to have died of shock and hemorrhage due to

multiple cut injuries.

(d). P.W.15 handed over the investigation to P.W.16 on 16.03.1993, who had returned from the leave. P.W.16 continued the investigation and

recorded the statement of the witnesses and after completing the investigation, laid a final report against the accused on 31.07.1993.

The prosecution examined P. Ws.1 to 16 and marked Exs.1 to 22 and produced M. Os.1 to 20.

When the accused were questioned u/s 313 of the Code of Criminal Procedure in respect of the incriminating materials appearing against them

through the evidence adduced by the prosecution, they have denied their complexity.

The trial Court after analysing the evidence available on record, convicted and sentenced all the three accused as already stated above.

The learned Counsel for the Appellants submitted that except P.W.2, wife of the deceased, other eye witnesses did not support the case of the

prosecution and even P.W.2 being the wife of the deceased is an interested witness and the cross-examination of P.W.2 established the fact that

she could not have been present at the scene of occurrence. The learned Counsel for the Appellants pointed out that P.W.2 has stated in the

cross-examination that she has witnessed the occurrence from a distance of quarter mile and it was night time occurrence. According to her

evidence, she is a resident of Pookara Street at Thanjavur and according to P.W.11, the Sub-Inspector of Police, the distance between the place

of occurrence Manogipatti to Thanjavur Pookara Street is at 8 kms. Though P.W.2 claimed that she was residing in the house of one

Parvathiammal - P.W.8, Parvathiammal had stated that the deceased and P.W.2 were not residing in her house. The learned Counsel for the

Appellants vehemently contended that P.W.2 had no occasion to come to the scene of occurrence in the night hours. The learned Counsel for the

Appellants further submitted that P.W.1, the brother of the deceased who had given the complaint Ex.P3 had not supported the prosecution case

and he had admitted only the signature Ex.P1 in Ex.P3. It was further pointed out that even as per the evidence of P.W.2, she went to the police

station along with P.W.1 and the complaint was given. At the time of going to police station she had seen the second accused in the police station.

According to P.W.15, the second accused was arrested in the night at 12.00 o'' clock, wherein Ex.P4, FIR was registered at 11.00 p.m., which is

not possible. P.W.2 also stated that she had given a complaint and signed in the complaint and according to the evidence, there are two complaints

and the complaint said to have been given by P.W.2 is suppressed. It was further pointed out that P.W.2 had admitted in the cross-examination

that she had not seen the accused prior to the occurrence and she had not known about the details of the accused. No identification parade has

been conducted by the prosecution. P.W.2 admitted in the cross-examination that it was only the police, who pointed out the second accused to

P.W.2 in the police station. The learned Counsel for the Appellants submitted that the trial Court had erred in relying on the solitary and unreliable

testimony of P.W.2 for convicting the accused.

Per contra, the learned Additional Public Prosecutor submitted that there is no legal impediment for convicting the person relying on the sole

testimony of the single eye witness - P.W.2. The learned Additional Public Prosecutor pointed out that the house of P.W.2 was shown in the plan

near the house of P.W.8 - Parvathi. Though P.W.1 who gave the complaint had turned hostile, the complaint was received by police at 10.00 p.m.

and after FIR being registered, on information, the second accused was arrested at 00.15 hours on 08.03.1993 and the first accused, who

sustained injury was admitted in the Thanjavur Medical College Hospital on 07.03.1993 at 9.00 p.m. itself and the police officer had recovered the

motorcycle of the first accused on 08.03.1993 at 2.30 a.m. and he had also seen the first accused in the hospital.

We have considered the submissions made by both sides and perused the records.

As per the evidence let in by the prosecution, except P.W.2, wife of the deceased, other eye witnesses have not supported the case of the

prosecution. Even P.W.1, brother of the deceased, who had given the complaint to the police had turned hostile. The whole case rests only on the

evidence of solitary eye-witness - P.W.2.

The Honourable Supreme Court in Vadivelu Thevar Vs. The State of Madras, had observed as follows:

On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly

established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the

testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of

the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a

witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and

no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the

evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories,

namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

(12) In the first category of proof, the Court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the

testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second

category, the court equally has no difficulty in coming to its conclusion. 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. There is another danger in insisting on plurality of

witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact,

they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give

evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable

and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports

contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are

exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony

is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty

of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.

In view of the above principles laid down by the Honourable Supreme Court, it is no doubt that conviction could be based on sole testimony

of a solitary eye-witnesses but in order to convict the accused, the presence of the single eye-witness at the place of occurrence has to be natural

and his or her testimony should be strong, reliable and free from any blemish.

P.W.2, wife of the deceased had stated in her evidence that on 07.03.1993, at 8.15 p.m., she was standing at the entrance of her house and at

that time, she heard noise. She had stated that she was residing in the house of Parvathiammal at Thanjavur Pookara Street. The place of

occurrence was at Mangampatti, Muthusami Nagar. According to P.W.11, the Sub-Inspector of Police, Thanjavur Pookara Street was 2 kms

away from the police station and the police station was at a distance of 6 kms from the place of occurrence and the distance between the place of

occurrence Mangampatti to Thanjavur Pookara Stret was 8 kms. In the observation mahazar- Ex.P15, it is mentioned that the house of the

deceased was behind the house of P.W.8, Parvathiammal. It is not possible to witness the occurrence from that place. Even according to P.W.2,

after hearing the noise, ran to the scene of occurrence and she had witnessed the occurrence from a distance of quarter mile. She also stated that

she stood in front of the house of P.W.8 and witnessed the occurrence, which is at the distance of 28 meters from the place of occurrence, as per

the observation mahazar. P.W.2 had not spoken about the presence of the light at night hours at the scene of occurrence. According to her, she

did not know the accused earlier to the occurrence. No identification parade was conducted by the prosecution. Though P.W.2 had claimed that

she had given a complaint to the police and signed in the complaint at about 10.00 p.m., according to the prosecution, the complaint was not given

by P.W.2, but it was given only by P.W.1. Further according to P.W.2, when she went to the police station, the second accused was already kept

in the police station. She had admitted in the cross-examination that before giving evidence, her statement was read out by the police and she was

asked to give evidence and she was tutored by the police to give evidence.

On scrutinizing the evidence of P.W.2, we do not find her trustworthy and reliable witness. The manner in which the First Information Report

was also prepared throws considerable doubt. The suppression of the complaint said to have been given by P.W.2 and failure to hold the test

identification parade also affects the case of the prosecution.

In the result, the judgment of the trial Court, dated 28.08.2003, made in S.C. No. 46 of 2002, by the learned Principal Sessions Judge,

Thanjavur is set aside. Accordingly, these Criminal Appeals are allowed. The Appellants are acquitted of the charges. The bail bonds executed, if

any, by the Appellants stand canceled. Fine amount paid, if any, is directed to be refunded to the Appellants.