Ravi v. State

Dr. Arijit Pasayat, J.— 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, the appellant in Criminal Appeal No. 23 of 2007 was A-3.

2. 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 the appellants before the High Court. A-1 to A-4 were convicted for offence punishable under Section 302 of the Penal Code, 1860 (in short “IPC”).

3. Prosecution version in a nutshell is as follows:

There was previous enmity between the elder brother of Albert Walter (hereinafter referred to as “the deceased”) i.e Robert Victor Singh (PW 1) and A-1 and one Sasi, residing at R.C Street, Monday Market. There was a case that A-1 had hacked Sasi at his leg. In the murder case related to one Kumar, deceased Albert Walter was implicated as an accused. On 24-12-1991, when PW 1 and the deceased were going near Neyyoor Hospital, A-1 to A-4 chased the deceased.

4. On 7-1-1992, when PW 1, the 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, A-1 to A-4 armed with choppers in their hands chased the deceased who ran from north towards the south. Near the house of one Shahul Hameed, A-1 to A-4 caught hold of the deceased. A-1 hacked him at his neck, jaw and right cheek. A-2 hacked the deceased at his right hand and back. A-3 hacked him on his head three times with a chopper. A-4 hacked him on his abdomen. Consequent to the injuries inflicted by A-1 to A-4, he died at the very place of occurrence. The occurrence was witnessed by PW 1, Ranjith Guna Singh (PW 2) and Jagdeesh Chandran (PW 3) in the light shed by the electric light near the place of occurrence. PW 1, at around 8.30 in the night, went to Police Station Eraniel and lodged a written complaint, Ext. P-1 signed by him regarding the occurrence. At the time of occurrence Albert Walter was wearing a shirt, MO 1 and a lungi, MO 2.

5. On 7-1-1992, at around 8.30 in the night, when the Sub-Inspector, PW 13 was on duty in charge of the station, as per the complaint Ext. P-1 given by PW 1, a case was registered in Crime No. 10/92 under Section 302 IPC. The first information report and the complaint statement were sent to the court. The copies of these were sent to the higher officials. When PW 17 was incharge 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 2115 hrs and observing it in the presence of the witnesses prepared the observation mahazar, Ext. P-2. Shelvasdas (PW 6) was present along with him and attested as a witness to Ext. P-2. PW 17 prepared the rough sketch, Ext. 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 Ext. P-21.

6. During the inquest, PW 17 enquired the witnesses. He entrusted the corpse to Selvamani (PW 12), Constable with the requisition of conducting post-mortem, Ext. P-14 to the Medical Officer, Colachel. From the place of occurrence, the Inspector, PW 17 seized MO 3, bloodstained earth, MO 4, sample earth and prepared the mahazar, Ext. P-3 in the presence of PW 6 who attested it as a witness.

7. As per the requisition of the Police Department, PW 14 took photographs of the place of occurrence. The photos taken by him are MO 6 series and their negatives MO 7 series. As per the orders of the Inspector, on 8-1-1992, PW 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.

8. 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 × 5 × 4 cm on the right cheek extending from the mouth up to the back side of the head.

2. An incised injury measuring 4 × 3 × 3 cm noticed on the lower jaw.

3. An incised injury measuring 10 × 5 × 5 cm at the lower jaw beneath the first injury.

4. An incised injury measuring 10 × 10 × 5 cm on the left side of the neck extending up to the back side of the back. Its edges, muscles, blood vessels, throat, windpipe 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 × 2 × 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 × 1 cm on the right shoulder.

8. An incised injury measuring 8 × 4 × 2 cm on the right upper arm.

9. An incised injury measuring 5 × 3 × 2 cm on the pelvic region.

10. An incised injury measuring 15 × 3 × 2 cm in the middle part of the head, the bone was cut into two.

11. An incised injury measuring 7 × 3 × 2 cm on the right side of the parietal region of the head; the bone was seen cut.

12. An incised injury measuring 15 × 5 × 2 cm up to the left cheek of the temporal region and extending to the head.

PW 10 doctor issued the post-mortem report (Ext. P-15). The opinion given by the doctor was that Injuries 1 to 13 could be inflicted by choppers; that, Injuries 1 to 4 are grievous injuries; that, death would have occurred between 1700 hrs to 2000 hrs prior to the post-mortem examination and that, death could have occurred because of the injuries sustained and haemorrhage.

9. Since it became evident on investigation that offence had been committed under Section 120-B IPC, PW 17 had incorporated Section 120-B IPC in the case and sent the report to the Court of the Judicial Magistrate. On 14-1-1992 PW 17 arrested A-1 to A-4 below the Villukkuvi Overbridge. At that time, he recorded the confessional statement given by A-1, in the presence of the witnesses. The admissible portion of the confessional statement is Ext. P-22. On the basis of the confessional statement, A-1 took PW 17 and other witnesses to the southern bund of Pandara tank and from a hole there, took out a sickle and from the tank three sickles and presented them. These are Ext. P-8 series. PW 17 seized them under Ext. P-23, mahazar in the presence of the witnesses.

10. At the Eraniel Junction, PW 17 seized Car No. T.N 72 0156, MO 9 as identified by A-1 in the presence of witnesses under Ext. P-24, mahazar prepared by him. At Monday Market Auto Stand, he seized Auto No. T.N 74 4461 (MO 5) and prepared the mahazar, Ext. P-25. At Kanyakumari Taxi Stand, he seized Car No. T.N 69 Z 0255, as pointed out by A-1, from one Selvam under Ext. P-26, mahazar. Then, he brought the accused and the material objects to the police station and thereafter sent them to judicial custody.

11. On 15-1-1992 at around 6 o'clock in morning he arrested the accused A-8 and A-9 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 Ext. 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 Ext. P-28. After the chemical examination, the chemical examination report, Ext. P-29 and the serology report, Ext. P-30 were received.

12. When PW 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 the Code. Ext. P-17 is the statement of Ayyappan; Ext. P-18, is the statement of Selvam and Ext. P-19 is the statement of Kaba.

13. 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.

14. Before the High Court the stand about the sustainability of the evidence of PW 1 was reiterated. It was highlighted that he was the 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.

15. In support of the appeals, learned counsel for the 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.

16. Learned counsel for the State on the other hand supported the judgments of the trial court and the High Court.

17. 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 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.

18. 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.

19. “10. … On a consideration of the relevant authorities and the provisions of the 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 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.

11. [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.”

The above position was highlighted in Vadivelu Thevar v. State of Madras AIR 1957 SC 614, 1957 SCR 981, at AIR pp. 618-19, paras 10-11. The position has been reiterated 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 v. State of Karnataka (2006) 11 SCC 323 and to Kunju v. State of T.N (2008) 2 SCC 151

20. In the last named case, it was held as follows: (Kunju case (2008) 2 SCC 151)

“9. 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.

10. 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.

11. ‘8. In Vadivelu Thevar v. State of Madras AIR 1957 SC 614, 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 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.”

9. Vadivelu Thevar case AIR 1957 SC 614, 1957 SCR 981 was referred to with approval in Jagdish Prasad v. State of M.P 1995 SCC (Cri) 160, 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 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.’”

21. Additionally, in the instant case, the recovery under Section 27 of the Evidence Act, 1872 is there. MO 8 series, four vettu kathis were recovered by the investigating officer on the basis of confessional statement of A-1 vide Ext. P-4.

22. Looked at from any angle the judgment of the High Court does not suffer from any infirmity to warrant interference. The appeals are dismissed.