TMI Blog1957 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 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. 1 - who 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. 3. 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 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 Kannus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 4 - Ganapathi who kept another tea stall near the cinema-house, in support of the prosecution case. P.W. 2 - Singaram - 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 concerned 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 6. Exhibit D-2 is in these terms : Even while he was asking not to cut, accused 1 was cutting. Soon after, accused 1 stopped cutting and went away. 7. 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 1 was only aiding and abetting him and lending him strength by his presence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst witness, by the committal court, has not been challenged at any stage in the court below. 9. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 A.I.R. (1946) P.C. 3. 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. 11. That was a case from Somaliland to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .....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. 13. 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 uncor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 15. In the first category of proof, the court sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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