http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: KARUNAKARAN

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT12/11/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. UNTWALIA, N.L.

CITATION:  1976 AIR  383            1976 SCR  (2) 708  1976 SCC  (1) 434

ACT:      Testimony-Conviction on the basis of the sole testimony of a  single witness, even uncorroborated by other evidence, if absolutely  reliable is  valid Constitution of India Art. 136-Rule of  Practice interference  by the Supreme Court by. reappraisal of evidence.

HEADNOTE:      The appellant  along with  "J" &  ’.T" was  charged for offences u/s  120B/109/ 302  I.P.C. as well as 302/34 I.P.C. The trial  which proceeded in the absence of absconding "T", resulted  in  the  conviction  and  both  the  accused  were sentenced to  death sentence.  On a reference and appeals by the accused  the High Court acquitted "J" rejecting four out of five  eye witnesses  and disbelieving even the only other eye witness  who lodged  the First  Information Report.  The High Court  however maintained  the conviction and confirmed the death sentence on the appellant relying on the testimony of the very same single witness. on appeal by special leave, the Court ^      HELD: (i) Ordinarily in an appeal under Art. 136 of the Constitution the  Court would  hesitate to go into the facts to reappreciate  the evidence.  It is, however. not possible to adopt  that course,  where  the  testimony  of  the  sole witness has  been rejected  with  reference  to  the  second accused was  on the  same boat  with the appellant. When the accused is  going to  lose his life in such a serious charge u/s 302  I.P.C.. it  is only necessary that the Court should be circumspect  and closely  scrutinise the evidence to come to an  unhesitating conclusion  that the sole single witness is absolutely reliable. [710G, H, 711H, 712A]      (ii) In  the instant  case,  the  High  Court  was  not correct in  appreciating the  ocular  testimony  of  a  sole witness, because  (a) the  very fact  that the  eye  witness could be  persuaded to  substitute PWs.  1, 2. and 3 for his deceased brother  as chasing the assailants, contrary to the version of  the F.I.R.  degrades him  from the  status of an absolutely  reliable   witness,  not   having  a   qualm  of conscience,  but  an  obliging  and  untrustworthy  witness. [710H]      (b) ’The  version in  the F.I.R. stands contradicted by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

the testimony in court on a very material point and does not corroborate. [712-B]      (c )  Placing such reliance. therefore. as is requisite on the  testimony of the uncorroborated solitary witness for convicting  the  accused  facing  a  murder  charge  is  not possible in the case.. [712-B]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 425 1974.      Appeal by  Special Leave  from the  Judgment and  order dated the  22nd July 1974 of the Madras High Court at Madras in Criminal  Appeal No.  24 of 1974 and Referred Trial No. 3 of 1974.      A. N.  Mulla, K.  Jayaram and  P. Chandrasekhar for the Appellant. ,      A. V. Rangam and Miss A. Subhasini for the Respondent.      The Judgment of the Court was delivered by      GOSWAMI, J.  This appeal  by special  leave is directed against the  4 judgment  and order  of the,  High  Court  of Madras convicting the appellant (hereinafter to be described as the  accused) under section 302 IPC and sentencing him to death. 709      The police  had submitted  charge-sheet  under  section 302/34 IPC  against the present accused and accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and Thamizharasan alias Ramaswami,  who was  shown as  an  absconder.  On  the prayer of  the prosecution  the case  against the  first two accused without  the absconding  accused, was  taken up  for trial. The  two accused were charged under section 120B read with sections  302 and  109 IPC  as well  as  under  section 302/34 IPC. The case was referred to the High Court as usual and  the   accused  also  preferred  appeals  against  their conviction and sentence.      The High  Court acquitted  accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and accepted the reference in respect  of   the  present  accused.  His  appeal  was  also dismissed. Hence this appeal by special leave.      The  facts  are  in  a  brief  compass.  The  deceased, Viswanatham Pillai,  was the  village Munsif  (Headman).  On April 26,  1971, at  about 10.00  P.M. he  was sleeping on a bench outside  his cattle-shed  in the  open space, which is shown in  the site  plan (Ex.  P15) at  No. 9.   The younger brother of the deceased, Pandurangam (PW 4), who is a leper, was also  sleeping on  the eastern  parapet of the sluice of the north Boothagudi channel, which is shown at No. 5 in the site plan (Ex. P15). Pandurangam woke up at about 11.15 P.M. On hearing the shout of his deceased brother crying "younger brother: Karunakaran  is  running  after  stabbing  me  with knife. ’Catch  him’  ".  He  got  up  and  saw  the  accused Karunakaran running  on the eastern bank of the channel with a knife  8 inches  long. The electric lights were burning in the vicinity  He also  saw  two  persons  running  ahead  of accused  Karunakaran.  He  further  saw  his  two  brothers, Gnanasakaran (PW  1) and  Thiru-gnanasambandam (PW  3) along with Ramasamy  (PW 2)  chasing them.  He ran  to  his  elder brother who  came from  the side  of the  bench where he was sleeping and  who fell  down on  the southern  side  of  the sluice. When  he went  near him  he was already dead. He had bleeding injuries  on several  parts of  his body.  A  crowd gathered and  Pandurangam was  asked to lodge information at the police station which he did. The doctor (PW 16) who held

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

the postmortem  examination found nine injuries two of which he described  as incised  and four as punctured incised, two more as  punctured and  the  remaining  one  as  a  vertical incised wound.  These were on the left upper arm, left fore- arm, on  the left  side of the epigastrium, on the left side of the  anterior axillary  line, on  the  left  mid-axillary line, on  the right  side of the epigastrium and on the left side of  the back. Injuries are very severe and according to the doctor  death was due to shock and hemorrhage on account of the injuries.      It is clear that whosoever had inflicted these injuries definitely had  ? the  intention to  cause the  death of the victim.      In the  first information  report which  PW 4 lodged at the Thana,  which is  very close to the place of occurrence, within about  15 minutes  of  the  occurrence,  inter  alia, stated thus: 4-L159SCI/76 710           At about  11.15. P.M. I woke up on hearing a noise      to the  effect ’younger brother, Karunakaran is running      after stabbing  me with  knife, ’catch him’. I stood up      and  saw   Karunakaran,  son   of  Orathur   Ayyathurai      Padayachi running  eastwards from the place where I lay      and my  elder brother  chasing him  from behind.  I too      came running".      It will  be seen  that at  the time  of lodging  of the first  information  report  only  the  present  accused  was implicated. Even  so,  later  on  four  eye  witnesses  were produced implicating  not only  the present accused but also two other  accused. The  High Court  after appreciating  the entire  evidence   rejected  the   evidence  of   these  eye witnesses, namely, PW 1, 2, 3 and 5 and described them as "a bunch of  liars", "unashamed  liars and perjurers". The High Court, therefore,  acquitted the  second  accused,  Jabamani Nadar alias Kanyakumari Comrade alias Ramu and also observed that necessarily no case would lie on this kind of testimony against even  the absconding  accused. It  was also observed that the  High Court "can place no reliance on the testimony of PW  4 in  so far  as he implicated the second accused and Tharnizharasan in  the case  of murder  of Viswanatham". The High Court further observed:           "Poor PW  4 was  compelled to  speak to  a version      which ought  to accord  and harmonise  with the version      given out by , PWs 1, 2 and 3". Even so  the High  Court thought  that it  was justified  in convicting the present accused on the sole testimony of PW 4 "corroborated by  the contents  of Ex.  P1 (FIR)".  The High Court held  that "PW  4 who  was  afflicted  with  the  fell disease of-leprosy..  has absolutely  no motive to implicate the first  accused". The  High Court  further held that PW 4 gave a  "candid,  natural  and  truthful  version..  at  the earliest opportunity".      The High  Court has  taken note of the fact that "there has been  a history  of a bitter feud spanning over nearly a decade between  the first  accused and his father on the one hand and the deceased Viswanatham - t on the other".      This is,  therefore, a  case where  conviction  of  the accused depends . on the sole testimony of a single witness. If the  witness is  absolutely  reliable  there  can  be  no infirmity in  convicting the  accused. In  that ’  case even corroboration may not be sought for.      ordinarily in  an  appeal  under  article  136  of  the Constitution we   would have hestitated to go into the facts to reappreciate  the evidence.  It is, however, not possible

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

to adopt that course in this case where the testimony of the sole witness  has been  rejected with  reference  to  the  1 second accused  who was on the same boat with the appellant. The very  fact that  this eye  witness could be persuaded to substitute PWs  1, 2  and 3  for  his  deceased  brother  as chasing the  assailants, degrades  him from the status of an absolutely reliable  witness. He  is definitely  an obliging witness and  cannot at  all be trustworthy. This witness may not have  a qualm  of conscience  in implicating the accused for the 711 mere asking  by someone,  if  not  by  the  inimical  police officer (PW  23) against whom criminal cases were pending at the instance of the accused’s father.      Apart from  that we  find that  the High  Court has not considered the intrinsic quality of the evidence of PW 4. It failed to notice certain broad facts which should definitely weigh with  the court  while appreciating  ocular testimony. From the  medical evidence  it is clear that there were more than one assailant and yet for the FIR it appears that there was only  one assailant.  This may  not, in a given case, be considered as a very serious infirmity since the witness may not have  seen the other. assailants when he came running to the place  of occurrence.  But the fact that the witness has stated in the first information report that the deceased was only mentioning  the name  of  accused  Karunakaran  as  his assailant, this  earlier version  appears to be contradicted by  the  medical  evidence.  Besides,  he  has  deliberately changed his  own stand  in court when he deposed that he saw two other  persons running ahead of Karunakaran being chased by his two brothers and Ramaswamy.      Another very serious departure from his earlier version is that  while PW  4 had  stated in  the  first  information report that  "my elder  brother" (meaning  the deceased) was "chasing him from behind" in court he has completely given a go-by to  this statement  and stated  that  Karunakaran  was being chased  by PWs 1, 2, and 3. He did not at all refer to the deceased  chasing him. If his statement in court that he saw PWs  1, 2  and 3  chasing Karunakaran while running away after the  assault is  true, it  is difficult  to appreciate that he  would not  mention about  this fact  in  the  first information report.  He admitted  in the  course  of  cross- examination that  the Sub-Inspector asked him whether he had any witnesses  and that  he "did  not tell about them due to excitement". It  is difficult  to accept this explanation of this witness. Assuming that his earlier version in the first information report  is true  that the  deceased  chased  the accused .  as the  latter was running away after the assault we would  have expected  some evidence  of a  trail of blood stains from  the place  where he  was sleeping  to the place where he  fell dead. On the other hand we find that there is a mention about a pool of blood only where the dead body was found at  No. 1  in the  site plan. There were also no blood stains on  the bench  where he  was said  to be sleeping. We further find  from the evidence of PW 4 in cross-examination that when  he went  near his  deceased elder  brother  about hundred persons were there and "none of them asked him as to how it  had happened".  We do not find in this case a single witness out  of that crowd produced in court for the purpose of corroborating  PW 4.  If the  statement of  PW 4 is to be believed, the  crowd had gathered at the place of occurrence already when  he arrived.  It is also conceivable that those persons, who  arrived at  the place  of occurrence  a little earlier than PW 4, did not see the assailants who might have already escaped. It also stands to reason that those persons

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

who gathered  would not ask PW 4, who arrived at the place a little later, for information with regard to the assailants. There is considerable doubt as to this testimony with regard to seeing  the  accused  running  away  from  the  place  of occurrence. When the accused is 712 going to  lose his  life in such a serious charge it is only necessary that  the court  should be circumspect and closely scrutinise  the   evidence  to   come  to   an  unhesitating conclusion that  he is absolutely reliable. We are unable to say that  the High  Court in  this case  has made  a correct approach in  assessing the  quality of the testimony of this solitary eye  witness. The High Court is not even right that PW 4  stands wholly corroborated by the contents of the FIR. On the  other hand we have . r shown that his version in the FIR stands  contradicted by the testimony in court on a very material point.      For the reasons given above we are unable to place such reliance  as   is  requisite   on  the   testimony  of  this uncorroborated solitary  witness for  convicting the accused facing a murder charge. The conviction and sentence of death are, therefore,  set aside.  The appeal  is allowed  and the accused shall be released from detention forthwith. S.R.                                         Appeal allowed. 713