N Criminal Appeal No 425 1974
Appeal by Special Leave from the Judgment and order dated the 22nd July 1974 of the Madras High Court at Madras in Criminal Appeal No 24 of 1974 and Referred Trial No 3 of 1974
A N Mulla K Jayaram and P Chandrasekhar for the Appellant  A V Rangam and Miss A Subhasini for the Respondent
The Judgment of the Court was delivered by GOSWAMI J
This appeal by special leave is directed against the 4 judgment and order of the High Court of Madras convicting the appellant hereinafter to be described as the accused under section 302 IPC and sentencing him to death
709 The police had submitted charge sheet under section 30234 IPC against the present accused and accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and Thamizharasan alias Ramaswami who was shown as an absconder
On the prayer of the prosecution the case against the first two accused without the absconding accused was taken up for trial
The two accused were charged under section 120B read with sections 302 and 109 IPC as well as under section 30234 IPC
The case was referred to the High Court as usual and the accused also preferred appeals against their conviction and sentence
The High Court acquitted accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and accepted the reference in respect of the present accused
His appeal was also dismissed
Hence this appeal by special leave
The facts are in a brief compass
The deceased Viswanatham Pillai was the village Munsif Headman
On April 26 1971 at about 1000 PM he was sleeping on a bench outside his cattle shed in the open space which is shown in the site plan exhibit P15 at No 9
The younger brother of the deceased Pandurangam PW 4 who is a leper was also sleeping on the eastern parapet of the sluice of the north Boothagudi channel which is shown at No 5 in the site plan exhibit P15
Pandurangam woke up at about 1115 PM
On hearing the shout of his deceased brother crying younger brother Karunakaran is running after stabbing me with knife Catch him  
He got up and saw the accused Karunakaran running on the eastern bank of the channel with a knife 8 inches long
The electric lights were burning in the vicinity He also saw two persons running ahead of accused Karunakaran
He further saw his two brothers Gnanasakaran PW 1 and Thiru gnanasambandam PW 3 along with Ramasamy PW 2 chasing them
He ran to his elder brother who came from the side of the bench where he was sleeping and who fell down on the southern side of the sluice
When he went near him he was already dead
He had bleeding injuries on several parts of his body
A crowd gathered and Pandurangam was asked to lodge information at the police station which he did
The doctor PW 16 who held the postmortem examination found nine injuries two of which he described as incised and four as punctured incised two more as punctured and the remaining one as a vertical incised wound
These were on the left upper arm left fore arm on the left side of the epigastrium on the left side of the anterior axillary line on the left mid axillary line on the right side of the epigastrium and on the left side of the back
Injuries are very severe and according to the doctor death was due to shock and hemorrhage on account of the injuries
It is clear that whosoever had inflicted these injuries definitely had  the intention to cause the death of the victim
In the first information report which PW 4 lodged at the Thana which is very close to the place of occurrence within about 15 minutes of the occurrence inter alia stated thus 4 L159SCI76 710 At about 1115
PM I woke up on hearing a noise to the effect younger brother Karunakaran is running after stabbing me with knife catch him 
I stood up and saw Karunakaran son of Orathur Ayyathurai Padayachi running eastwards from the place where I lay and my elder brother chasing him from behind
I too came running
It will be seen that at the time of lodging of the first information report only the present accused was implicated
Even so later on four eye witnesses were produced implicating not only the present accused but also two other accused
The High Court after appreciating the entire evidence rejected the evidence of these eye witnesses namely PW 1 2 3 and 5 and described them as a bunch of liars unashamed liars and perjurers
The High Court therefore acquitted the second accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and also observed that necessarily no case would lie on this kind of testimony against even the absconding accused
It was also observed that the High Court can place no reliance on the testimony of PW 4 in so far as he implicated the second accused and Tharnizharasan in the case of murder of Viswanatham
The High Court further observed Poor PW 4 was compelled to speak to a version which ought to accord and harmonise with the version given out by  PWs 1 2 and 3
Even so the High Court thought that it was justified in convicting the present accused on the sole testimony of PW 4 corroborated by the contents of exhibit P1 FIR
The High Court held that PW 4 who was afflicted with the fell disease of leprosy has absolutely no motive to implicate the first accused
The High Court further held that PW 4 gave a candid natural and truthful version at the earliest opportunity
The High Court has taken note of the fact that there has been a history of a bitter feud spanning over nearly a decade between the first accused and his father on the one hand and the deceased Viswanatham t on the other
This is therefore a case where conviction of the accused depends 
on the sole testimony of a single witness
If the witness is absolutely reliable there can be no infirmity in convicting the accused
In that  case even corroboration may not be sought for
ordinarily in an appeal under article 136 of the Constitution we would have hestitated to go into the facts to reappreciate the evidence
It is however not possible to adopt that course in this case where the testimony of the sole witness has been rejected with reference to the 1 second accused who was on the same boat with the appellant
The very fact that this eye witness could be persuaded to substitute PWs 1 2 and 3 for his deceased brother as chasing the assailants degrades him from the status of an absolutely reliable witness
He is definitely an obliging witness and cannot at all be trustworthy
This witness may not have a qualm of conscience in implicating the accused for the 711 mere asking by someone if not by the inimical police officer PW 23 against whom criminal cases were pending at the instance of the accused s father
Apart from that we find that the High Court has not considered the intrinsic quality of the evidence of PW 4
It failed to notice certain broad facts which should definitely weigh with the court while appreciating ocular testimony
From the medical evidence it is clear that there were more than one assailant and yet for the FIR it appears that there was only one assailant
This may not in a given case be considered as a very serious infirmity since the witness may not have seen the other
assailants when he came running to the place of occurrence
But the fact that the witness has stated in the first information report that the deceased was only mentioning the name of accused Karunakaran as his assailant this earlier version appears to be contradicted by the medical evidence
Besides he has deliberately changed his own stand in court when he deposed that he saw two other persons running ahead of Karunakaran being chased by his two brothers and Ramaswamy
Another very serious departure from his earlier version is that while PW 4 had stated in the first information report that my elder brother meaning the deceased was chasing him from behind in court he has completely given a go by to this statement and stated that Karunakaran was being chased by PWs 1 2 and 3
He did not at all refer to the deceased chasing him
If his statement in court that he saw PWs 1 2 and 3 chasing Karunakaran while running away after the assault is true it is difficult to appreciate that he would not mention about this fact in the first information report
He admitted in the course of cross examination that the Sub Inspector asked him whether he had any witnesses and that he did not tell about them due to excitement
It is difficult to accept this explanation of this witness
Assuming that his earlier version in the first information report is true that the deceased chased the accused 
as the latter was running away after the assault we would have expected some evidence of a trail of blood stains from the place where he was sleeping to the place where he fell dead
On the other hand we find that there is a mention about a pool of blood only where the dead body was found at No 1 in the site plan
There were also no blood stains on the bench where he was said to be sleeping
We further find from the evidence of PW 4 in cross examination that when he went near his deceased elder brother about hundred persons were there and none of them asked him as to how it had happened
We do not find in this case a single witness out of that crowd produced in court for the purpose of corroborating PW 4
If the statement of PW 4 is to be believed the crowd had gathered at the place of occurrence already when he arrived
It is also conceivable that those persons who arrived at the place of occurrence a little earlier than PW 4 did not see the assailants who might have already escaped
It also stands to reason that those persons who gathered would not ask PW 4 who arrived at the place a little later for information with regard to the assailants
There is considerable doubt as to this testimony with regard to seeing the accused running away from the place of occurrence
When the accused is 712 going to lose his life in such a serious charge it is only necessary that the court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that he is absolutely reliable
We are unable to say that the High Court in this case has made a correct approach in assessing the quality of the testimony of this solitary eye witness
The High Court is not even right that PW 4 stands wholly corroborated by the contents of the FIR
On the other hand we have 
r shown that his version in the FIR stands contradicted by the testimony in court on a very material point
For the reasons given above we are unable to place such reliance as is requisite on the testimony of this uncorroborated solitary witness for convicting the accused facing a murder charge
The conviction and sentence of death are therefore set aside
The appeal is allowed and the accused shall be released from detention forthwith
SR Appeal allowed


Summary:
The appellant along with J  T was charged for offences us 120B109 302 IPC as well as 30234 IPC The trial which proceeded in the absence of absconding T resulted in the conviction and both the accused were sentenced to death sentence
On a reference and appeals by the accused the High Court acquitted J rejecting four out of five eye witnesses and disbelieving even the only other eye witness who lodged the First Information Report
The High Court however maintained the conviction and confirmed the death sentence on the appellant relying on the testimony of the very same single witness
on appeal by special leave the Court  HELD i Ordinarily in an appeal under article 136 of the Constitution the Court would hesitate to go into the facts to reappreciate the evidence
It is however
not possible to adopt that course where the testimony of the sole witness has been rejected with reference to the second accused was on the same boat with the appellant
When the accused is going to lose his life in such a serious charge us 302 IPC it is only necessary that the Court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that the sole single witness is absolutely reliable
710G H 711H 712A ii In the instant case the High Court was not correct in appreciating the ocular testimony of a sole witness because a the very fact that the eye witness could be persuaded to substitute PWs
1 2 and 3 for his deceased brother as chasing the assailants contrary to the version of the FIR degrades him from the status of an absolutely reliable witness not having a qualm of conscience but an obliging and untrustworthy witness
710H b The version in the FIR stands contradicted by the testimony in court on a very material point and does not corroborate
712 B c  Placing such reliance
therefore
as is requisite on the testimony of the uncorroborated solitary witness for convicting the accused facing a murder charge is not possible in the case 712 B