@ Balachandran Vs. State of Tamil Nadu
 Insc 41 (16
Arijit Pasayat & Aftab Alam
out of S.L.P. (Crl.) No.3221 of 2006) DR. ARIJIT PASAYAT, J.
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.
Factual background in a nutshell is as follows:
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
refused to receive the flower and told him that already her betrothal was held
with the accused. This incident was informed to the accused.
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.
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.
PW-3 arranged for taking the injured to the Bhavanisagar Government Hospital, where first aid was given.
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.
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.
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
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.
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
Learned counsel for the respondent supported the impugned judgment.
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.
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
Neither wholly reliable nor wholly unreliable.
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.
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.
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.
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.
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.
The above position was highlighted in Sunil Kumar v. State Govt. of NCT of Delhi [(2003) 11 SCC 367].
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.