Vadivelu Thevar Vs. The State of
Madras [1957] INSC 36 (12 April 1957)
SINHA, BHUVNESHWAR P.
JAGANNADHADAS, B.
GAJENDRAGADKAR, P.B.
CITATION: 1957 AIR 614 1957 SCR 981
ACT:
Murder--Conviction on the testimony of a single
witness--Propriety--Capital sentence, if appropriate- Extenuating
circumstance-Indian Evidence Act (1 of 1872), s. 134.
HEADNOTE:
The appellants were charged with murder and
convicted on the sole testimony of a witness. The first appellant was sentenced
to death and the second to five years' rigorous imprisonment. it was contended
for them, inter alia, that the conviction and sentences should not be upheld
because in a case involving a charge of murder the court should not, on the
ground of prudence, convict an accused person upon the testimony of a single
witness, and, in any case, impose the extreme penalty of law.
Held, that the question whether in such a
case the court could convict him depended upon the facts and circumstances of
the case and unless corroboration was a statutory requirement, a court could
act upon such evidence, though uncorroborated, except in cases where the nature
of the testimony of the single witness itself required, as a matter of
prudence, that corroboration should be insisted upon, as in the case of a child
witness, an accomplice or any others of an analogous character.
Where the court has recorded an order of
conviction the question of sentence must be determined, not by the volume or
character of the evidence adduced, but on a consideration of any extenuating
circumstances which could mitigate the enormity of the crime.
Mohamed Sugal Esa Mamasan Rer Alalah v. The
King, A.I.R.
(1946) P.C. 3 and Vemireddy Satyanarayan
Reddy and three others v. The State of Hyderabad, (1956) S.C.R. 247,
distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 24 and 25 of 1957.
Appeals by special leave from the judgment
and order dated July 25, 1956, of the Madras High Court in Criminal Appeals
Nos. 247 & 248 of 1956 and Referred Trial No. 41 of 1956 arising out of the
judgment and order dated March 28, 1956 of the Court of Sessions, East Tanjore
Division at Nagapatam, in care S.C. No. 5 of 1956. 982 H. J. Umrigar and S.
Subramanian, for the Appellants.
P. S. Kailasham and T. M. Sen, for the
respondent.
1957. April 12. The Judgment of the Court was
delivered by SINHA J.-These two appeals by special leave, which arise out of
the same occurrence, are directed against the Judgment and Order dated July 25,
1956, of the Madras High Court, confirming the sentence of death passed by the
Court of Sessions, East Tanjore Division, at Nagapattinam, under s. 302 of the
Indian Penal Code, against appellant in Criminal Appeal No. 24 of 1957, for the
murder of Kannuswami, and modifying the order of conviction and sentence under
s. 302, read with s. 109 of the Indian Penal Code, to one under s. 326, Indian
Penal Code, and reducing the sentence of imprisonment for life to one for 5
years, in respect of the appellant in Criminal Appeal No. 25 of 1957. In the
course of this Judgment, we shall call the appellant in Criminal Appeal No. 24
of 1957, as the " first appellant ", and the appellant in Criminal
Appeal No. 25 of 1957, as the " second appellant ".
The occurrence which was the subject-matter
of the charges against the two appellants took place at about 11-30 p.m. on
November 10, 1955, at Muthupet, in front of the tea stall of Kannuswami,
husband of Shrimati Dhanabagyam-prosecution witness No. 1who will be referred
to, in the course of this judgment, as the " first witness ", and who
is the principal witness for the prosecution, because, as will presently
appear, the prosecution case and the convictions and sentences of the
appellants depend entirely upon her testimony.
The occurrence took place in the immediate
vicinity of a cinema-house in which the second show was in progress at the time
of the alleged cold-blooded murder. As there were no customers at that time at
the tea shop run by Kannuswami, his wife called him for his dinner to be served
to him behind the tea stall, as the husband and wife used to live there.
Kannuswami was about to attend to the call for dinner when 983 an old man came
into the shop and asked for a cup of tea.
When Kannuswami got busy preparing the tea,
the two appellants rushed into the premises. The old man-the intending
customer-naturally ran away, and the two accused dragged Kannuswami out of the
shop on to the road-side; and the first appellant gave him several blows on the
front part of his body in the region of the chest with an aruval a cutting
instrument about 2 feet long including the handle.
Kannuswami fell down on his back and cried
out for help.
His wife, the only other inmate of the house,
tried to come to his rescue by raising and putting his head into her lap after
the two accused had left him. But soon after, perhaps, realising that
Kannuswami was not dead as a result of the first blows, as deposed by the wife,
both the accused returned. Kannuswami's wife who figures in court as the sole
witness to the killing, placed his head on the ground and went and stood on the
steps of the tea stall. The first appellant this time, made the body of
Kannuswami lie with face downwards and gave a number of cuts in the region of
the head, the neck and back. These injuries were such as to cause instantaneous
death. At the time of the second assault, according to the evidence of the
first witness, Shunmuga Thevar-Prosecution Witness No. 3, one of the
proprietors of the cinema-housecame and remonstrated with the accused but to no
purpose. After inflicting the injuries, both the accused ran away. According to
the testimony of the first witness, it was the first appellant, the second
accused (A-2 in the record), who inflicted cutting injuries with the aruval.
The second appellant, the first accused (A-1 in the record), was standing
nearby at the time the cutting injuries were inflicted. There were two electric
lights burning in the tea shop, a Panchayat Board light burning on the road, as
also a light burning on the pathway leading to the cinema-house. The wife of
the deceased, finding her husband thus murdered, went and told
Ganapathi-Prosecution Witness No. 4--who had a tea stall on the other side of
the road, and informed him as to what had taken place. He asked her to lodge
information of the 984 occurrence at the Police Station. She then went to the
Mathupet Police Station, but found it shut. She went to the house of the
Sub-Inspector of Police, who took her to the Police Station, and recorded her
statement as the first information report (Exhibit P. 1). After recording the
first information report, the Sub Inspector came along with the first informant
to the scene of occurrence. He held an inquest early in the morning.
At the trial, the Prosecution examined,
besides the widow of the murdered man (P.W. 1), P.W. 2-an assistant in the tea
shop of Ganapathi Thevar, P.W.3-one of the proprietors of the cinema-house and
P.W. 4Ganapathi who kept another tea stall near the cinema house, in support of
the prosecution case. P.W. 2Singaram -testified to the occurrence and stated
that he had seen Vadivelu 'Cut' Kannuswami and Chinniah standing by the side of
Vadivelu, a few feet away;
but he added that the accused persons were
not those con- cerned with the crime though they bore the same names. The
Public Prosecutor was permitted to cross-examine this witness who admitted that
he knew that the Police were searching for the accused in the dock and that he
did not tell the Police that these were not the persons who had committed the
murder. He went to the length of admitting that he did not tell anybody that
the accused in the dock were not the persons who had committed the murder and
that it was in the committal court that he stated, for the first time, that the
accused persons were not concerned with the crime. He also admitted that at the
time of the occurrence, lights were burning at the place of occurrence, in the
tea shop and in the theatre. P.W. 3, one of the proprietors of the
cinema-house, when examined in court, admitted that he had been examined by the
police two days after the occurrence, but stated that he did not tell the
Police that he had seen the accused assaulting Kannuswami. It appears that,
though the record of the examination-in-chief of this witness would itself
indicate that the Public Prosecutor had, put questions to him in the nature of
cross- examination, yet it is not recorded, unlike the record of the
depositions 985 of P.W. 2 and P.W. 4, that this witness had been declared
hostile and the Public Prosecutor had been permitted to cross-examine him. That
appears to be a slip of the learned Sessions Judge, as he had been so treated
even in the committal court. The Investigating Sub-Inspector, P.W. 14, stated,
with reference to his diary, that P.W. 3 had stated before him that he had seen
accused No. 2 cutting the deceased on the head and neck with an aruval, and
accused No. I standing by the side of the second accused. Witness No. 4 for the
Prosecution-Ganapathi-who ran a tea stall near the cinema-house, about 50 to 60
feet away from the tea stall of the deceased Kannuswami, stated in court that
the first witness came to him weeping and saying that Chinniah and Vadivelu
Thevar had cut her husband, but added that the two accused in court were not
those persons. Thus, whatever may have been the previous statements of the
prosecution witnesses 2 to 4, aforesaid, their evidence in court does not
directly support the prosecution case. The orders of conviction and sentence,
as passed by the courts below, as indicated above, rest solely on the testimony
of the first witness.
It has been argued by the, learned counsel
for the appellants that the conviction and sentences of the appellants should
not, be upheld because they rest on the sole testimony of the first witness,
particularly, because, it is further argued, her testimony is not free from all
blemish. In this connection, her statement in court that it was the second
accused (first appellant) who gave the number of cut injuries with the aruval
to the deceased Kannuswami, was challenged in cross-examination. She has been
cross- examined with reference to her statement (Exhibit D-2) recorded by the
committing Magistrate, and she has categorically stated :
" Accused 1 had no weapon of any kind
with him. He did not give any cut. I have not stated in the committal court
that accused 1 continued to cut even after Shanmugham Thevar asked him not to
cut." Exhibit D-2 is in these terms:
127 986 " Even while he was asking not
to cut, accused 1 was cutting. Soon after, accused 1 stopped cutting and went
away." With reference to the statement of the first witness, as recorded
in Exhibit D-2, the learned Sessions Judge has observed that it was a mistake
of recording by the committing Magistrate. We have looked into the whole
-evidence of the first witness, as recorded by the committing Magistrate-not
printed in the record, but supplied to us by the learned counsel for the
appellants-and in our opinion, there is no doubt that the learned Sessions
Judge was correct in his conclusion that the recording by the Magistrate is
defective in the sense that accused 1 has been recorded in place of accused 2,
inasmuch as, throughout her deposition, the first witness had consistently
stated that it was accused 2 who actually used the deadly weapon against her
husband and that accused I was only aiding and abetting him and lending him
strength by his presence. That this conclusion is well-founded, is also
substantiated by the state of the record of the appeal in the High Court.
Each of the two appellants in the High Court
filed a separate Memorandum of Appeal through his own counsel. In neither of
the Memoranda of Appeal, any ground has been taken that the first witness had
materially contradicted herself with reference to her previous statement in the
committal court. Her testimony was assailed only as 'interested, artificial and
unnatural'. It is not even suggested that the learned Sessions Judge's
conclusion in respect of the recording by the committing Magistrate (Exhibit
D-2) was not based on any material. When the matter was argued before a Bench
of the High Court, there is no indication in the judgment that any point was
sought to be made of this alleged serious discrepancy in the statement of the
first witness at different stages. In the High Court, it was sought to be
argued only that she was an interested witness though her testimony throughout
had been consistent, as will appear from the following observations of the High
Court 987 " To prove that it was the two accused that caused these injuries
to the deceased, the prosecution put forth as many as four witnesses. Of these
four witnesses, P.Ws. 2, 3 and 4 turned hostile both in the committal court as
also in the Sessions Court. The only witness that remained constant throughout
was P.W. I who is no other than the wife of the deceased." The same was
the position with reference to the petition for leave to appeal to this Court
filed in the High Court.
It was a joint petition on behalf of both the
appellants, and as many as 13 grounds had been taken. There is not even a
suggestion that the testimony of the first witness was vitiated by any such
discrepancy as has been sought to be made out in this Court. It was after the
High Court refused to grant the necessary certificate that for the first time,
in the petition for special leave to appeal, filed in this Court, the ground is
taken that the High Court failed to appreciate that the testimony of the first
witness was untrustworthy for the reason that there was the alleged discrepancy
between her statement in the committal court and in the Court of Sessions.
Thus, it is abundantly clear that the finding of the learned Sessions Judge
about the mistake in recording the evidence of the first witness, by the
committal court, has not been challenged at any stage in the court below.
The second ground of attack against the
veracity of the first witness is that she had stated that Shanmugham Thevar-
Prosecution Witness No. 3-had also seen the first appellant giving the deadly
blows to her husband, and that the assailant continued giving his blows in
spite of protests of P.W. 3. This argument proceeds upon the assumption that
Prosecution Witness No. 3 is telling the truth and that, therefore, his
evidence effectively contradicts that of the first witness. P.W. 3 was, as
indicated above, cross- examined by the Public Prosecutor with reference to his
previous statement before the Investigating Police Officer (P.W. 14). P.W. 14
has stated that before him P.W. 3 had stated just the contrary Of what he
stated in court. The statements of P.W. 3 at 988 the earlier stage, before the
Police, and later when examined in court, may or may, not have been false, but
certainly both cannot be true. Hence, it cannot be said that the evidence of
P.W. 3 in court was the true version.
That being so, his evidence in court is not
strong enough to wipe out the evidence of the first witness on the ground that
it is contrary to what P.W. 3 had stated. It is, thus, clear that none of the
grounds, urged in support of the contention that the evidence of the first
witness is unreliable, has been made out. On the other hand, the first witness,
being the most important witness from the point of view of the prosecution, was
put to a severe test in her cross-examination. She has frankly made admissions
in her cross-examination, which throw a very lurid light on the past life of
her deceased husband. She admitted that he had been transported for life for
having committed a murder and that after his release also, he had been sent to
jail twice for having caused cut injuries to others. If the first witness were
inclined to tell falsehoods or at least to conceal her husband's past, she
could have taken shelter behind failing memory or want of information not an
uncommon characteristic of prevaricating witnesses. Her evidence, read as a
whole, rings quite true, and we have no hesitation in acting upon it. It is
true that her evidence in court has been sought to be contradicted by the
evidence of P.Ws. 2 to 4, but the latter set of witnesses have been shown to be
not reliable because they appear to have made different statements at different
stages for reasons of their own.
Their testimony does not inspire confidence
and we cannot, therefore, brush aside the testimony of the first witness as
compared to the evidence of P.Ws. 2 to 4. The testimony of the first witness is
consistent with what &he has stated in her first information report at the
Police Station without any avoidable delay, within less than an hour of the
occurrence. It cannot, therefore, be said that her statement in court, is an
afterthought, or the result of tutoring by other interested persons. Her story
of the double attack, first on the-front,: and subsequently on the- back and
989 side of the victim, is also consistent with the medical evidence as deposed
to by the Medical Officer-P.W. 8. It is not necessary to set out in detail the
dozen incised gaping. wounds on the person of the deceased, which are all set
out in extenso in the judgment of the learned Sessions Judge who has written a
very careful and satisfactory judgment.
Alternatively, it has been argued on behalf
of the appellants that it is not safe to convict the appellants on the
testimony of a single witness even though she may not have been demonstrated to
have been a lying witness. It has not even been claimed by counsel for the
appellants that this is a rule of law. He has only put it on the ground of
prudence that, ordinarily, the court should not, in a case involving a charge
of murder, convict an accused person upon the testimony of a single witness. In
this connection, our attention was drawn to the observations of their Lordships
of the Judicial Committee of the Privy Council in the case of Mohamed Sugal Esa
Mamasan Rer Alalah v. The, King (1).
In that case, their Lordships looked for
corroboration of the testimony of a single witness in a murder case. It is true
that in that case, the court had to look for and found corroboration of the
testimony of the single witness in support of the murder charge, but the
testimony of that witness suffered from two infirmities, namely:
(1)The witness was a girl of about 10 or 11
years at the time of occurrence.
(2)The girl witness had not been administered
oath because the Court did not consider that she was able to understand the
nature of the oath though she was competent to testify.
That was a case from Somaliland to which the
provisions of the Indian Evidence Act (1 of 1872) and of the Indian Oaths Act
(X of 1873), had been made applicable. Special leave had been granted to appeal
to His Majesty-in-Council on the ground that the local courts had admitted and
acted upon the unsworn evidence of a girl of 10 or 11 years of age. Their
Lordship upheld the conviction and sentence of death, holding that the (1)
A.I.R. (1946) P.C. 3.
990 evidence, such as it was, was admissible.
In the course of their Judgment, they made the following observations (at pp. 5-6)
which are pertinent to the present controversy :
" It was also submitted on behalf of the
appellant that assuming the unsworn evidence was admissible the Court could not
act upon it unless it was corroborated. In England where provision has been
made for the reception of unsworn evidence from a child it has always been
provided that the evidence must be corroborated in some material particular
implicating the accused. But in the Indian Act there is no such provision and
the evidence is made admissible whether corroborated or not. Once there is
admissible evidence a court can act upon it; corroboration, unless required by
statute, goes only to the weight and value of the evidence.
It is a sound rule in practice not to act on
the uncorroborated evidence of a child, whether sworn or unsworn, but this is a
rule of prudence and not of law." The decision of this Court in the case
of Vemireddy Satyanarayan Reddy and three others v. The State of Hyderabad (1)
was also relied upon in support of the contention that in a murder case the
court insists on corroboration of the -testimony of a single witness. In the
said reported decision of this Court, P.W. 14 has been described as " a
dhobi boy named Gopai. " He was the only person who had witnessed the
murder and his testimony had been assailed on the ground that he was an
accomplice.
Though this Court repelled the contention
that he was an accomplice, it held that his position was analogous to that of
an accomplice. This Court insisted on corroboration of the testimony of the
single witness not on the ground that his was the only evidence on which the
conviction could be based, but on the ground that though he was not an
accomplice, his evidence was analogous to that of an accomplice in the peculiar
circumstances of that case as would be clear from the following observations at
p. 252:
(1) [1956] S.C.R. 247.
991 is...... Though he was not an accomplice,
we would still want corroboration on material particulars in this particular
case, as he is the only witness to the crime and as it would be unsafe to hang
four people on his sole testimony unless we feel convinced that he is speaking
the truth. Such corroboration need not, however, be on the question of the
actual commission of the offence; if this was the requirement, then we would
have independent testimony on which to -act and there would be no need to rely
on the evidence of one whose position may, in this particular case, be said to
be somewhat analogous to that of an accomplice, though not exactly the
same." It is not necessary specifically to notice the other decisions of
the different High Courts in India in which the court insisted on corroboration
of the testimony of a single witness, not as a proposition of law, but in view
of the circumstances of those cases. On a consideration of the relevant
authorities and the provisions of the Indian 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.
In view of these considerations, we have no
hesitation in holding that the contention that in a murder case, the court
should insist upon plurality of witnesses, is 992 much too broadly stated.
Section 134 of the Indian Evidence Act has categorically laid it down that
" no particular number of witnesses shall in any case be required for the
proof of any fact." The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons, that it shall not be
necessary for proof or disproof of a fact, to call any particular number of
witnesses. In England, both before and after the passing of the Indian Evidence
Act, 1872, there have been a number of statutes as set out in Sarkar's I Law of
Evidence -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the
testimony of a single witness. The Indian Legislature has not insisted on
laying down any such exceptions to the general rule recognized in s. 134 quoted
above. The section enshrines the well recognized maxim that " Evidence has
to be weighed and not counted". Our Legislature has given statutory
recognition to the fact that administration of justice may be hampered if a
particular number of witnesses were to be insisted upon. It is not seldom that
a crime has been committed in the presence of only one witness, leaving aside
those cases which are not of uncommon occurrence, where determination of guilt
depends entirely on circumstantial evidence. If the Legislature were to insist
upon plurality of witnesses, cases where the testimony of a single witness only
could be available in proof of the crime, would go unpunished. It is here that
the discretion of the presiding judge comes into play. The matter thus must
depend upon the circumstances of each case and the quality of the evidence of
the single witness whose testimony has to be either accepted or rejected. If
such a testimony is found by the court to be entirely reliable, there is no
legal impediment to the conviction of the accused person on such proof. Even as
the guilt of an accused person may be proved by the testimony of a single
witness, the innocence of an accused person may be established on the testimony
of a single witness, even though a considerable number of witnesses may be
forthcoming to testify to the truth of the case for the prosecution. Hence, in
our opinion, it is a sound and well- established rule of law that the 993 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. 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.
We have, therefore, no reasons to refuse to
act upon the testimony of the 128 994 first witness, which is the only reliable
evidence in support of the prosecution.
Lastly, it was urged that assuming that the
court was inclined to act upon the testimony of the first witness and to record
a conviction for murder as against the first appellant, the court should not
impose the extreme penalty of law and in the state of the record as it is, the
lesser punishment provided by law should be deemed to meet the ends of justice.
We cannot accede to this line of argument. The first question which the court
has to consider in a case like this, is whether the accused has been proved, to
the satisfaction of the court, to have committed the crime. If the court is
convinced about the truth of the prosecution story, conviction has to follow.
The question of sentence has to be determined, not with reference to the volume
or character of the evidence adduced by the prosecution in support of the
prosecution case, but with reference to the fact whether there are any
extenuating circumstances which can be said to mitigate the enormity of the
crime. If the court is satisfied that there are such mitigating circumstances,
only then, it would be justified in imposing the lesser of the two sentences
provided by law. In other words, the nature of the proof has nothing to with
the character of the punishment. The nature of the proof can only bear upon the
question of conviction-whether or not the accused has been proved to be guilty.
If the court comes to the conclusion that the guilt has been brought home to
the accused, and conviction follows, the process of proof is at an end. The
question as to what punishment should be imposed is for the court to decide in
all the circumstances of the case with particular reference to any extenuating
circumstances. But the nature of proof, as we have indicated, has nothing to do
with the question of punishment. In this case, there are no such extenuating
circumstances which can be legitimately urged in support of the view that the
lesser penalty under s. 302 of the Indian Penal Code, should meet the ends of
justice. It was a cold- blooded murder. The accused came for the second 995
time, determined to see that their victim did not possibly escape the
assassins' hands.
As regards the second appellant, we need not
say anything more than that he was lucky enough to escape conviction under s.
302 of the Indian Penal Code, for the reasons given by the High Court, which
may not bear close scrutiny. He amply deserves the punishment of 5 years'
rigorous imprisonment under s.326 of the Indian Penal Code.
For the reasons aforesaid, both the appeals
fail and are dismissed.
Appeals dismissed.
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