Ravi vs State Rep. By Inspector Of Police

Ravi ...Appellant

Vs.

State Rep. by Inspector of Police ...Respondent

(With Criminal Appeal No.23 of 2007)

JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a

Division Bench of the Madras High Court. Two persons have

filed the appeal and the appellant Ravi was A-1 in Criminal

Appeal No. 22 of 2007, and Ravi, appellant in Criminal Appeal

No. 23 of 2007 was A3. Ten persons had faced trial before the learned Principal Sessions Judge, Kanyakumari. During the

pendency of trial one of them i.e. A-10 died and the charge

against him had abated. A-5 to A-9 were acquitted by the trial

Court and the remaining four were appellants before the High

Court. A1 to A4 were convicted for offence punishable under

Section 302 of Indian Penal Code, 1860 (in short the `IPC').

2. Prosecution version in a nutshell are as follows:

There was previous enmity between the elder brother of

Albert Walter (hereinafter referred to as the deceased) i.e.

Robert Victor Singh (P.W.1) and Al and one Sasi, residing at

R.C. Street, Monday market. There was a case that, Al had

hacked Sasiat his leg. In the murder case related to one

Kumar, deceased Albert Walter was implicated as an accused.

On 24.12.1991, when P.W.1 and deceased were going near

Neyyoor Hospital, Al to A4 chased the deceased. On 7.1.1992,

when P.W.1, deceased and one Ranjith Singh were coming

towards the south from Neyyoor Mission Hospital, opposite to

the Primary School, at around 7 or 7.15 in the night, Al to A4

2 armed with choppers in their hands chased deceased who ran

from north towards the south. Near the house of one Shahul

Hameed, Al to A4 caught hold of deceased. A1 hacked him at

his neck, jaw and right cheek. A-2 hacked deceased at his

right hand and back. A3 hacked him on his head 3 times with

a chopper. A4 hacked him on his abdomen. Consequent to

the injuries inflicted by Al to A4, he died at the very place of

occurrence. The occurrence was witnessed by P.W.1, Ranjith

Guna Singh (PW 2) and Jagdeesh Chandran (PW3) in the light

shed by the electric light near the place of occurrence. P.W.1,

at around 8.30 in the night, went to the Police Station, Eraniel

and lodged a written complaint Ex.P.1 signed by him

regarding the occurrence. At the time of occurrence Albert

Walter was wearing a shirt M.0.1 and a lungi M.0.2.

On 7.1.1992, at around 8.30 in the night, when the Sub-

Inspector P.W.13 was on duty in charge of the station, as per

the complaint Ex.P-1 given by P.W.1, a case was registered in

Crime No.10/92 u/s 302 IPC. The First Information Report

and the complaint statement were sent to the Court. The

3 copies of these were sent to the higher officials. When P.W.17

was in-charge as the Circle Inspector, Eraniel on 7.1.1992, at

2100 hrs., he received the FIR in this case and took up the

case for investigation. He visited the place of occurrence at

21.15 hrs and observing it in the presence of the witnesses

prepared the observation mahazar Ex.P.2. Shelvasdas (P.W.6)

was present along with him and attested as a witness to Ex.

P.2. P.W.17 prepared the Rough sketch Ex-P.20. He made

arrangements for photographing the place of occurrence. He

conducted inquest in the presence of the Panchayatdars. The

Inquest Report prepared by him is Ex.P.21. During the

inquest, P.W.17 enquired the witnesses. He entrusted the

corpse to Selvamani (P.W.12) Constable with the requisition of

conducting post-mortem, Ex.P.14 to the Medical Officer,

Colachel. From the place of occurrence, the Inspector P.W.17

seized M.O.3 blood-stained earth, M.O.4 sample earth and

prepared the mahazar Ex-P.3 in the presence of P.W.6 who

attested it as a witness.

4 As per the requisition of the Police Department, P.W.14

took photographs of the place of occurrence. The photos taken

by him are M.0.6 series and their negatives M.O.7 series. As

per the orders of the Inspector, on 8.1.1992, P.W.12 took the

corpse of Albert Walter under his responsibility, then after the

inquest was over, he took the corpse to the doctor and

entrusted the same for post-mortem examination. After the

post-mortem was over, he received the corpse back and

handed over the same to its relatives.

On 8.1.1992 as per the requisition of the Inspector PW-

17 through PW-12, the Doctor (PW-10) conducted the post

mortem examination of the corpse at 12 noon. He noticed

rigor mortis spread over the corpse and found the following

injuries on the corpse.

1. An incised injury measuring 10 x 5 x 4 cm on the

right cheek extending from the mouth upto the

backside of the head.

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2. An incised injury measuring 4 x 3 x 3 cms noticed

on the lower jaw.

3. An incised injury measuring 10 x 5 x 5 cm at the

lower jaw beneath the first injury.

4. An incised injury measuring 10 x 10 x 5 cms on the

left side of the neck extending upto the back side of

the back. Its edges, muscles, blood-vessels, throat,

wind-pipe had all been cut. The neck was found

hanging.

5. An incised injury on the right ear. The ear was found

cut into two.

6. An injury measuring 3 x 2 x 1 cm seen on the right

side of the back and below the shoulders. The right

humerus bone was fractured.

7. An abrasion measuring 2 x 1 cm on the right

shoulder.

8. An incised injury measuring 8 x 4 x 2 cm on the

right upper arm.

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9. An incised injury measuring 5 x 3 x 2 cm on the

pelvic region.

11. An incised injury measuring 15 x 3 x 2 cm in the

middle part of the head, the bone was cut into two.

12. An incised injury measuring 7 x 3 x 2 cm on the

right side of the parietal region of the head; the bone

was seen cut.

13. An incised injury measuring 15 x 5 x 2 cm upto the

left cheek of the temporal region and extending on

the head.

P.W.10 doctor issued the Post-mortem report (Ex.P.15).

The opinion given by the doctor was that the injuries 1 to 13

could be inflicted by choppers; that, injuries 1 to 4 are

grievous injuries; that, death would have occurred between 17

hrs to 20 hrs. prior to the post-mortem examination and that,

death could have occurred because of the injuries sustained

and haemorrhage.

7 Since it became evident on investigation that offence had

been committed u/s 120(B) IPC, he has incorporated section

120(B) IPC in the case and sent the report to the court of the

Judicial Magistrate. On 14.1.1992 P.W.17 arrested Al to A4

below the Villukkuvi over bridge. At that time, he recorded

the confessional statement given by Al, in the presence of the

witnesses. The admissible portion of the confessional

statement is Ex.P-22. On the basis of the confessional

statement, Al took P.W.17 and other witnesses to the

southern bund of Pandara tank and from a hole there, took

out a sickle and from the tank 3 sickles and presented them.

These are Ex. P.8 series. P.W.17 seized them under Ex.P.23

Mahazar in the presence of the witnesses. At the Eranial

Junction, P.W.17 seized the Car No. T. N. 72 - 0156, M.0.9 as

identified by Al in the presence of witnesses under Ex.P. 24

mahazar prepared by him. At Monday market, auto stand,

he seized the auto No. T.N.74-4461 (M.0.5) and prepared the

mahazar Ex.P.25. At Kanyakumari Taxi Stand, he seized the

Car in No. T. N. 69 Z 0255, as pointed out by Al, from one

8 Selvam under Ex.P.26 mahazar. Then, he brought the

accused and the material objects to the Police Station and

thereafter sent them to judicial custody. On 15.1.1992 at

around 6'o clock in morning he arrested the accused A8 and

A9 at Eraniel, brought them to the Police Station and then

sent them to judicial custody. He showed the sickles seized

on 16.1.1992 to the Medical Officer and made enquiries from

him. On 17.1.1992 he seized the registers from Hotel Sri Ram

on Tuticorin - Ettayapuram road. He sent a requisition to the

Judicial Magistrate to record the statements of the witnesses

Kaba, Selvam and Ayyappan under Section 164 of the Code

of Criminal Procedure, 1973 (in short the `Code'). He sent a

requisition Ex.P.27 to the Court, to send the case properties

for chemical examination. The objects were sent for chemical

examination along with the letter of the Judicial Magistrate.

The copy of the Judicial Magistrate's letter is Ex. P.28. After

the chemical examination, the Chemical Examination Report

Ex-P.29 and the Serology Report Ex.P.30 were received.

9 When P.W.16 was working as Judicial Magistrate,

Padmanabhapuram, as per the requisition of the Inspector,

he recorded the statements of the witnesses Kaba, Selvam

and Ayyappan on 27.1.1992 under Section 164 of Code.

Ex.P.17 is the statement of Ayyappan; Ex.P.18, is the

statement of Selvam and Ex.P.19 is the statement of Kaba.

Investigation was undertaken and on completion thereof,

a charge sheet was filed. Accused persons pleaded innocence

and false implication. During trial some of the witnesses

resiled from their statements made during investigation.

According to the trial Court, the evidence of PW-1 was

sufficient to fasten the guilt on the accused. The stand that on

the basis of solitary witness's evidence the prosecution version

should not be accepted, did not find favour with the trial

Court who directed conviction for offence punishable under

Section 302 IPC.

3. Before the High Court the stand about the sustainability

of the evidence of PW-1 was re-iterated. It was highlighted that

10 he was brother of the deceased and therefore was interested

and a partisan witness. The High Court did not accept that

plea and found the evidence of PW-1 to be clear and cogent

and dismissed the appeal.

4. In support of the appeals, learned counsel for appellants

submitted that conviction should not be recorded on the basis

of a single witness's evidence. It is pointed out that there was

no question of having sufficient light at the place of

occurrence at about 7.15 p.m. and PW-1 could not have

identified the accused.

5. Learned counsel for the State on the other hand

supported the judgments of the trial Court and the High

Court.

6. So far as the identification aspect is concerned PW-1 has

categorically stated that there was light in the nearby church

and the street lights near Primary School were burning at the

time of occurrence and he could see the occurrence in that

light. The trial Court and the High Court referred to the

11 presence of street lights in Ext.P-20, the rough sketch.

Therefore the plea of identification being not possible has no

substance. Further the accused persons were known to the

witness. That is also a relevant factor.

7. The law relating to the approach of the courts when

prosecution version essentially rests on the testimony of a

single witness has been highlighted by this Court in many

cases.

8. On a consideration of the relevant authorities and the

provisions of the Indian Evidence Act, 1872 (in short 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

12 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.

9. Therefore, there is no hesitation in holding that the

contention that in a murder case the court should insist upon

plurality of witnesses, is much too broadly stated.

10. The above position was highlighted in Vadivelu Thevar v.

The State of Madras (1957 SCR 981).

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11. The position has been re-iterated in large number of

cases. Reference may be made to Joseph v. State of Kerala

(2003 (1) SCC 465), Yakub Ismailbhai Patel v. State of Gujarat

(2004 (12) SCC 229) , Bhimapa Chandappa Hosamani and

Ors. v. State of Karnataka (2006 (11) SCC 323) and to Kunju

Balachandran v. State of Tamil Nadu [2008(2)SCC 151].

12. In last named case, it was held as follows:

"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 PW 2 that the 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.

It is necessary to refer to the pivotal argument of the appellant's 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.

In Vadivelu Thevar v. The State of Madras (1957 SCR 981) 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

14 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)

`11. ... 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.'

15 Vadivelu Thevar case (supra) was referred to with approval in 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."

13. Additionally, in the instant case, the recovery under

Section 27 of the Evidence Act, 1872 is there. M.O.8 series,

four Vettu Kathis were recovered by the Investigating Officer

on the basis of confessional statement of A-1 vide Exh.P4.

14. Looked at from any angle the judgment of the High Court

does not suffer from any infirmity to warrant interference. The

appeals are dismissed.

16 ..........................................J. (Dr. ARIJIT PASAYAT)

..............................

............J. (Dr. MUKUNDAKAM SHARMA) New Delhi, September 5, 2008

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