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PETITIONER: VADIVELU THEVAR

       Vs.

RESPONDENT: THE STATE OF MADRAS(with connected appeal)

DATE OF JUDGMENT: 12/04/1957

BENCH: SINHA, BHUVNESHWAR P. BENCH: 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.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  24 and 25 of 1957.   Appeals by special leave from the judgment and order dated

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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

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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 therecord), who inflicted cutting injuries  with the aruval.  The second appellant, the  first accused (A-1 inthe 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 SubInspector 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 cinemahouse, 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

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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 crossexamination.  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

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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

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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

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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

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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,

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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 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

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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.