http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (crl.)  112 of 2008

PETITIONER: Kunju @ Balachandran

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 16/01/2008

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No.3221 of 2006)

DR. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      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 \021IPC\022)  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.

3.      Factual background in a nutshell is as follows:            The accused Kunju @ Balachandran is the resident of  Ceylon Refugee Camp at Bhavanisagar. Sudhakaran  (hereinafter referred to as the \021deceased\022) 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 her.  PW-5 refused to receive the flower and told him that already  her betrothal was held with the accused. This incident was  informed to the accused.            On the 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.            On witnessing 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

          Thereafter, PW-3 arranged for taking the injured to the  Bhavanisagar Government Hospital, where first aid was given.  Then, 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.           4.      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  \021FIR\022) resiled from his statement recorded during investigation.   The 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 bare.   Before 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.       5.      In 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 been recorded.       6.      Learned counsel for the respondent supported the  impugned judgment.        7.      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 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.   7.      It is necessary to refer to the pivotal argument of the  appellant\022s 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)  \023Hence, 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

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

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 \027 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.\024  

9.      Vadivelu 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.  That is the logic of Section 134 of the Indian Evidence Act,  1872 (in short \023the Evidence Act\024). 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.  10.     The above position was highlighted in Sunil Kumar v.  State Govt. of NCT of Delhi [(2003) 11 SCC 367]. 11.     On 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.