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2002(8) Supreme 589
SUPREME COURT OF INDIA
(From Kerala High Court)
S. Rajendra Babu & Arun Kumar, JJ.
Joseph -Appellant
versus
State of Kerala -Respondent
Criminal Appeal No. 620 of 1995
Decidedon 3-12-2002
Counsel for the Parties :
For the Appellant : E.M.S. Anam, Advocate.
For the Respondent : Ramesh Babu M.R., Sushil K. Terkriwal and K.R. Sasiprabhu, Advocates.
Held : In a case of this nature when there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. What is urged before the Court is that FIR - Exhibit P 1 contained signature of a doubtful character which PW.1 himself admitted as having been different from the one given by him on the acknowledgement of having received the summons. How far reliance can be placed upon his evidence when PW.1 stated that he had rushed to the junction to inform PWs 2 to 4 and thereafter rushed back to the place of the incident, while the deceased also run on the western side of the place of incident though he was profusely bleeding and ho got hold of his wound by his hand and ran. If that is so, there would have been blood all over the place and not at one particular point. The abrasion on the neck of PW.1 could have been caused by a nail scratch and not by a weapon and was not a bleeding injury will clearly believe the statement made by him that he was profusely bleeding. If really the witness (PW.1) was wearing blood stained clothes the same would have been certainly seized by the police for appropriate investigation of the same. Particularly, when the trial court had given cogent reasons to acquit the accused, the High Court ought not to have interfered with the same merely because another opinion is possible and not that the finding concluded by the trial court was impossible. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eye witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when prosecution case rests mainly on the sole testimony of an eye-witness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable. In that view of the matter, we allow this appeal, set aside the order of conviction passed by the High Court and restore the order of acquittal passed by the learned Sessions Judge. The appeal is allowed accordingly. (Paras 13, 14 and 15)
JUDGMENT
Rajendra Babu. J.-The appellant and two others were prosecuted for offences under Sections 341, 307 and 302 read with Section 34 IPC on the allegation that on 9.7.1989 near the bunk shop of one Kolasseri Pappsachan at Konipadu junction, they restrained from moving on the road, murdered Simon and caused hurt to Benny [PW.1] and ran away. The Trial Court found that the charges against the appellant and the other accused were not established and acquitted them. The State preferred an appeal in the High Court. A Division Bench of the High Court set aside the order of acquittal and recorded the conviction against the appellant but did not disturb the order of acquittal made by the Trial Court with respect to the other two accused.
2. The prosecution case as unfolded in the Trial Court is that the injured witness. Benny [PW.1] and the deceased Simon were proceeding to their houses from west to east along Konipadu -Moonnilavu Road after purchasing beedi from the shop of one Mathachan at Konipadu junction. All the three accused who were moving ahead from Konipadu junction wrongfully restrained the deceased and Benny [PW.1] from proceeding on the road by asking them as to "why they were pretending to be big". It appears that the deceased asked the accused as to whether they would not permit others to walk along the road peacefully. Thereupon A-2 exhorted "Do away with him". On hearing this, A-1 took out a knife and stabbed the deceased on the fight part of his chest. Having sustained this injury, he ran towards the west. Then A-3 is stated to have asked A-1 to do away with Benny [PW.1] also. So the appellant stabbed Benny [PW.1] on his left palm with the same knife and he again stabbed him on the left side of his neck. Benny [PW.1], however, could ward off and ran towards west and reached Konipadu junction. On the way ho found deceased. Simon to have fallen down. He then narrated the incident to PWs 2 to 4, who rushed to the scene of occurrence. Benny [PW.1] and the deceased, Simon were taken to the Government Hospital., Palal in a jeep owned and driven by PW 5 However Simon succumbed to the injuries at 7.45 p m. on way to the hospital.
3. The Trial Court observed that on the basis of the material on record through the evidence of the doctors supported by Exhibits P-7 and P-8 that the deceased Simon and Benny [PW.1] had sustained injuries on 9.7.1989 and Simon died as a result of the injuries sustained by him in the said incident. This part of the case is not in serious dispute.
4. The case of the prosecution rested solely on the evidence of Benny [PW.1], the injured Witness. In the course of his evidence, Benny [PW 1] disclosed the facts to which we have already adverted to and he also stated that he rushed to Konipadu Junction at once and informed of the incident to PWs 2 to 4 who were present there and then returned to the place where Simon had fallen, Thereafter PWs 2 to 4 also reached there. He stated that they reached the hospital within one hour and Doctor PW.11 examined the deceased and declared him dead. Benny [PW.1] was admitted there and treated as an in-patient. He stated that at about 5 a.m. on 10.7.1989 the police came to the hospital and recorded his statement. Ex. P-1 is his first information statement recorded by the police in the case and he also claimed to have identified MO-1 as the weapon of offence when shown to him by the police
5. Before the Trial Court, four contentions were advanced on behalf of the defence:
1. Ex.P-1 first Information statement is a spurious document created by the prosecution,
2. The uncorroborated testimony of PW.1 is unworthy of credence being tainted with falsehood.
3. The medical evidence is inconsistent with the prosecution version, and
4. There is no valid recovery as contemplated under Section 27 of the Evidence Act of the weapon of offence used in the case
6. Inasmuch as both the Trial Court and the High C
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