IMPORTANT POINT
Conviction on sole evidence of a witness which is found to be at variance with other witnesses cannot be sustained.

ORDER

1. Fifteen (15) accused were sent for trial for commission of various offences including the offence punishable under Section 302 of the Indian Penal Code, 1860 (“IPC” for short) for the murder of one Umanath (deceased) which had occurred at about 10.45 p.m. on 10th March, 2007. The learned trial Court acquitted six (06) of the accused while convicting the remaining nine (09) accused. In appeal, the High Court set aside the conviction of five (05) of the accused while maintaining the same in respect of four (04) accused, namely, Accused No.1 – Ramanathan s/o Velu, Accused No.2 – Purushothaman s/o Mani Nathan, Accused No.3 – Selvaraj s/o Veerappan and Accused No.4 – Kalaimohan s/o Desingu. Aggrieved, Accused No.3 – Selvaraj s/o Veerappan and Accused No.4 – Kalaimohan s/o Desingu have filed the present appeal by special leave.

2. We have heard the learned counsels for the parties.

3. The prosecution examined a large number of witnesses as eye-witnesses to the occurrence, namely, Pandian (PW-1), Deivanayagam (PW-2), Karunakaran (PW-3), Suresh (PW-4), Punitha (PW-5), Kadal Dhanasekar (PW-6), Sundari (PW-7), Bhuvaneshwari (PW-8), Anandhi (PW-9), Jayalakshmi (PW-10), Tamilvanan (PW-11) and Saravanan (PW-12). All the prosecution witnesses except Kadal Dhanasekar (PW-6) and Tamilvanan (PW-11) were declared hostile.

4. The core of the evidence of Kadal Dhanasekar (PW-6) is to the effect that on the day of the occurrence he saw a mob of people attacking the deceased and he had identified the accused persons to be a part of that mob. Kadal Dhanasekar (PW-6), however, had stated that he did not see as to who had assaulted the deceased on which part of the body and with what weapon. Tamilvanan (PW-11), on the other hand, has specifically named Accused No.1 – Ramanathan s/o Velu, Accused No.2 – Purushothaman s/o Mani Nathan, Accused No.3 – Selvaraj s/o Veerappan and Accused No.4 – Kalaimohan s/o Desingu and has testified that it is the aforesaid persons who had assaulted the deceased. The said witness had also stated that he cannot recollect as to which accused had assaulted the deceased on which part of the body and with what weapon. The evidence of Ramachandran, V.A.O. (PW-14) shows recovery of a knife at the instance of several accused including Accused No.4 – Kalaimohan s/o Desingu. The medical opinion of Dr. Anandakumar (PW 13) indicates injuries on the forehead leading to hemorrhage and also several other injuries including stab injuries.

5. It is in the totality of the above circumstances that we are required to decide on the culpability of the accused appellants (i.e. Accused No.3 – Selvaraj s/o Veerappan and Accused No.4 – Kalaimohan s/o Desingu).

6. There is undoubtedly a glaring inconsistency in the evidence of Kadal Dhanasekar (PW-6) and Tamilvanan (PW-11) inasmuch as Kadal Dhanasekar (PW-6) did not name any of the accused specifically whereas Tamilvanan (PW-11) named four accused persons including the accused appellants as being the perpetrators of the crime. If Kadal Dhanasekar (PW-6) did not name any specific accused which, in fact, is the basis of the acquittal of the other accused persons we do not see how the said lacunae in the evidence of Kadal Dhanasekar (PW-6) should not go to the benefit of the accused appellants.

7. However, we are still left with the evidence of Tamilvanan (PW-11) who has specifically named the accused appellants. While the ratio of the law laid down by this Court in Masalti & Ors. vs. The State of Uttar Pradesh, AIR 1965 SC 202 and Busi Koteswara Rao and others vs. State of Andhra Pradesh, (2012) 12 SCC 711 may not strictly apply to the present case inasmuch as the present is a case where a large number of accused had attacked a single person what we are left with in the present case is the sole testimony of Tamilvanan (PW-11). The question that arises is how safe will it be to convict the accused appellants on the basis of the sole testimony of the said witness.

8. In this regard, we have taken