CASE NO.:
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Appeal (crl.) 112 of 2008
PETITIONER:
Kunju @ Balachandran
RESPONDENT:
State of Tamil Nadu
DATE OF JUDGMENT: 16/01/2008
BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Crl.) No.3221 of 2006)
DR. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
Bench of the Madras High Court dismissing the appeal filed by
the appellant who was convicted for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the IPC)
and sentenced to undergo imprisonment for life and to pay a
fine of Rs.200/- with default stipulation. The conviction was
recorded and sentence imposed by learned Additional Sessions
Judge Gobichettipalayam in Sessions Case No. 59 of 2002
dated 03.09.2002.
3. Factual background in a nutshell is as follows:
The accused Kunju @ Balachandran is the resident of
Ceylon Refugee Camp at Bhavanisagar. Sudhakaran
(hereinafter referred to as the deceased) also was residing in
the same Refugee Camp. Prior to the date of occurrence, the
parents of the accused arranged to get his marriage with Selvi
(PW-5). Betrothal ceremony was also over. The deceased fell in
love with Selvi (PW-5). Two days prior to the date of
occurrence, the deceased met PW-5 and offered flower to her.
PW-5 refused to receive the flower and told him that already
her betrothal was held with the accused. This incident was
informed to the accused.
On the date of occurrence i.e. on 28.2.2001, at about
6.50 p.m., the deceased along with two other friends, Stephen
(PW-1) and Siva (PW-2) was proceeding to take bath at A.R.S.
Canal. The accused came there and restrained the deceased
by catching hold of his arm and dragged and assaulted him
while abusing him in filthy language. He took out a Vettu
Aruval (M.O.I.) from his hip and gave cuts on various parts of
the body of the deceased. The deceased fell down, but the
accused continued to inflict injuries all over the body. PWs 1
and 2, the other witnesses made a hue and cry. The people
also gathered there. Therefore, the accused ran away from the
scene place.
On witnessing this incident, P.W.2 immediately went to
the house of the deceased and informed P.W.3, the brother of
the deceased. P.W.3 came to the scene and found that his
brother was gasping for his life.
Thereafter, PW-3 arranged for taking the injured to the
Bhavanisagar Government Hospital, where first aid was given.
Then, on receipt of the message from hospital, P.W.7 sub-
Inspector of Police came to the hospital, recorded the
statement (EX.P21) from PW-1. The case was registered for the
offences punishable under Sections 341 and 307 IPC. Since
the injured was in a serious condition, he was taken to
Coimbatore Government Hospital by PW.3. On the way, the
injured died. On receipt of the death information Ex.P26, the
Inspector of Police P.W.18 took up investigation and altered
the case into one under Sections 341 and 302 IPC.
4. After that investigation charge sheet was filed. Since the
accused pleaded innocence, trial was conducted. Learned trial
court considered the evidence on record and placing reliance
on the evidence of PW2 recorded the conviction and imposed
sentence as noted above. It is relevant to note that PW 1 who
was the author of the First Information Report (in short the
FIR) resiled from his statement recorded during investigation.
The trial court noted that though to certain extent PW 1
departed from his statement during investigation, he accepted
that three persons including the deceased and PW2 had gone
to take bath but at that time the accused also came bare.
Before the High Court, the stand taken before the trial court
was reiterated. But the High Court did not find any substance
and dismissed the appeal.
5. In support of the appeal learned counsel for the appellant
submitted that the motive for the crime has not been
established as the evidence of the girl does not show that she
was being harassed by the deceased. Additionally, it is
submitted that after PW 1 did not fully support the
prosecution version and on the testimony of a single witness
i.e. PW 2, the conviction should not have been recorded.
6. Learned counsel for the respondent supported the
impugned judgment.
7. As rightly noted by the trial court and the High Court
even though PW 1 did not support the prosecution version in
toto, yet his evidence lent corroboration to the evidence of PW2
that deceased, PW 2 and another had gone to take bath and at
that time the accused came there. The evidence of PW 2 has
not been shaken although he was cross examined at length.
7. It is necessary to refer to the pivotal argument of the
appellants learned counsel that PW-2 is the sole eyewitness in
the present case and no conviction should be based on the
testimony of such an eyewitness who cannot be described as
wholly reliable.
8. In Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)
this Court had gone into this controversy and divided the
nature of witnesses in three categories, namely, wholly
reliable, wholly unreliable and lastly, neither wholly reliable
nor wholly unreliable. In the case of the first two categories
this Court said that they pose little difficulty but in the case of
the third category of witnesses, corroboration would be
required. The relevant portion is quoted as under: (AIR p.
619, paras 11-12)
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.
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.
9. Vadivelu Thevar case (supra) was referred to with
approval in the case of Jagdish Prasad v. State of M.P. (AIR
1994 SC 1251). This Court held that as a general rule the
court can and may act on the testimony of a single witness
provided he is wholly reliable. There is no legal impediment in
convicting a person on the sole testimony of a single witness.
That is the logic of Section 134 of the Indian Evidence Act,
1872 (in short the Evidence Act). But, if there are doubts
about the testimony the courts will insist on corroboration. It
is for the court to act upon the testimony of witnesses. It is not
the number, the quantity, but the quality that is material. The
time-honoured principle is that evidence has to be weighed
and not counted. On this principle stands the edifice of
Section 134 of the Evidence Act. The test is whether the
evidence has a ring of truth, is cogent, credible and
trustworthy, or otherwise.
10. The above position was highlighted in Sunil Kumar v.
State Govt. of NCT of Delhi [(2003) 11 SCC 367].
11. On analysis of the factual scenario and on applying the
principles of law stated above, the inevitable conclusion is that
the appeal is without merit, deserves dismissal, which we
direct.
advocatemmmohan 
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