JOSEPHversusSTATE OF KERALA

                                   JOSEPH                                         A
                           STATE OF KERALA

                           DECEMBER 3, 2002

           [S. RAJENDRA BABU AND ARUN KUMAR, JJ.]                                 B


      Penal Code, 1860: Ss. 34, 302, 307 & 341:

      Murder-Acquittal of one of the accused by Trial Court-High Court
convicting that accused-Correctness of-Held, since Trial Court had given          C
cogent reasons while acquitting the accused, High Court ought not to have
interfered with the same merely because another opinion is possibl~.

      Evidence Act, 1872; Section 134:

      Testimony of Sole eye-witness-Reliance thereupon-Held, evidence of D
such witness could be accepted if it corroborates with the evidence of other
witnesses/other evidence on record-Conviction could be recorded on the
evidence of solitary eye witness provided such evidence is cogen.t, reliable
and inspires confidence.

      According to the prosecution, PWl and the deceased were proceeding          E
to their houses when they were wrongfully restrained by three accused
persons resulting in some altercations. Accused stabbed the deceased on the
chest and PWl on the neck. PWs.2 to 4 had taken both the injured to the
hospital where the deceased succumbed to his injuries. Police recorded
statement of the injured witness, PWl, in the hospital. The case of the           F
prosecution rested solely on the evidence of PWl. Trial Court found the
charges against the accused including appellant were not established and
acquitted them. On appeal by the State, High Court convicted one of the accused
(appellant) as evidence against him was clear and convincing and confirmed
the acquittal of other two accused. Hence this appeal by the convicted accused.
                                                                                  G
     Allowing the appeal, the Court

      HELD: 1.1. 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.
                                                                     (446-D-E]    H
                                     439
    440                    SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A          1.2. 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
B   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
C   unreasonable. High Court ought not to have interfered with the same merely
    because an;:>ther opinion is possible and not that the finding concluded by the
    trial Court was impossible. [446-H; 447-A-C]

          CRIMINAL APPELLATE JURlSDICTION : Criminal Appeal No. 620
    of 1995.
D
          From the Judgment and Order dated 2.3.1995 of the Kerala High Court
    in Cr!. A. No. 324of1991.

          E.M.S. Anam, for the Appellants.

E        Ramesh Babu M.R., Sushil K. Terkriwal and K.R. Sasiprabhu, for the
    Respondent.

          The Judgment of the Court was delivered by

           RAJEND~~.A BABU, J. The appellant and two others were prosecuted
F   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 Pappachan
    at Konipadu junction, they restrained from moving on the road, murdered
    Simon and caused hurt to Benny [PW. I] and ran away. The Trial Court found
    that the charges against the appellant and the other accused were not
G   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.

H         The prosecution case as unfolded in the Trial Court is that the injured
              JOSEPH v. STATE OF KERALA [S. RA.IENDRA BABU . .I.]                   441

..   witness, Benny [PW. I] an.d the deceased Simon were proceeding to their
     houses from west to east along Konipadu-Moonnilavu Road after purchasing
                                                                                           A

     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. I] from proceeding on the road by
     asking them as to "why they were pretending to be big". It appears that the           B
     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 right
     part of his chest. Having sustained this injury, he ran towards the west. Then
     A-3 is stated to have asked A-I to do away with Benny [PW.I] also. So the
     appellant stabbed Benny [PW. I] on his left palm with the same knife and he           C
     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
     he 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. I] and the
     deceased, Simon were taken to the Government Hospital, Palai in a jeep
     owned and driven by PW.5. However Simon succumbed to the injuries at 7.45             D
     p.m. on way to the hospital.

           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. I] had sustained injuries on 9.7.1989 and           E
     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.

            The case of the prosecution rested solely on the evidence of Benny
      [PW. I], the injured witness. In the course of his evidence, Benny [PW. I]
     'disclosed the facts to which we have already adverted to and he also stated          F
      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 i to 4 also reached there. He stated that
     they reached the hospital within one hour and Doctor PW. l l examined the
      deceased and declared him dead. Benny [PW.I] was admitted there and
     treated as an in-patient. He stated that at about 5 a.m. on 10.7.1989 the police      G
      came to the hospital and recorded his statement. Ex. P- l is his first information
      statement recorded by the police in the case and he also claimed to have
      identified MO-l as the weapon of offence when shown to him by the police.

           Before the Trial Court, four contentions were advanced on behalf of the         H
    442                     SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A defence:
            I.   Ex.P-1 first information statement is a spurious document created
                 by the prosecution,

           2.    The uncorroborated testimony of PW .1 is unwo1thy of credence
B                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.
c
    Inasmuch as both the Trial Court and the High Court have not relied upon
    the recoveries effected, it is not necessary to advert to the last contention
    raised before the Trial Court.

           The evidence adduced before the court disclosed that the deceased,
D    Simon and Benny [PW.I] were brought to the Government Hospital, Palai by
     about 8 p.m. on 9.7. I989. Doctor PW. I I, after examining the deceased, Simon
     declared him dead. He admitted Benny [PW. I] in the hospital and sent two
     intimations to the police. PW.15 is the Head Constable attached to the Palai
    Police Station and Ex.C- I is the Police Intimation Book maintained in the
E   hospital. PW.15 had admittedly put his initials on Exbs.C-l(a) and C-I(b) and
     he also admitted that he had received intimation at about IO PM on 9.7.1989.
     The place of occurrence is within the jurisdiction of Melukavu Police Station.
     PW.15 states that he had tried several times to contact Melukavu Police
     Station on telephone but could not get connection. According to him at about
    4 a.m. he got the connection and came to know that the ASI of Police [PW.13)
F    had already gone to the hospital to record the first information statement of
     PW. I. PW.13 states that at about 4 a.m. on 10.7.1989, he received a telephonic
     information from one Jojo that there had been a stab incident at Konipadu.
    According to him it was on the basis of this information that he rushed· to
    the hospital and recorded Ex.P. l statement and registered the case. PWs. 3
     and 5, who had been examined before the court, suggested another version
G   of the matter. PW. 5, who is stated to be the owner-cum-driver of the jeep in
    which the deceased Simon and injured Benny were taken to the Government
    Hospital, Palai. He has admitted that he had taken them to the hospital in his
    jeep. PW.3 had also accompanied them to the hospital. They reached the
    hospital at about 8 PM on 9.7.1989. PW.5 further stated that after taking them
H   to the hospital he had taken PW.2 Jose and one or two others to Palai Police
         JOSEPH v. STATE OF KERALA [S. RAJENDRA BABU. J.]                     443

Station after 8.10 PM to give information about the incident. The fact that the
police came to the hospital alter some time is spoken to by PW.3. This witness
categorically stated that they reached the hospital at about 9.30 PM when
they saw the police questioned the injured Benny [PW. I] and recorded his
state111ent which was read over to the injured and he subscribed his signature
to the same. PWs.3 and 5 were not declared hostile by the prosecution. Based
on this evidence, the Trial Court drew an inference that on.e of the officers         B
of the Palai Police Station got information about the incident, proceeded to
the Government Hospital, Palai, recorded the first information statement of
PW. l and registered the case and that version was probable. The Trial Court
therefore, observed that it is clear that the prosecution had two first information
statements, one recorded at 9.30 p.m. on 9.7.1989 and the other recorded at           C
5 a.m. on 10.7.1989. The first one is suppressed and the other is produced.
The Trial Court, therefore, did not find it safe to rely upon the subsequent
statement. The Trial Court also had reservations as to the evidence tendered
by PW.15 inasmuch as he after receipt of the information as per Exs.C. l(a) and
C. l (b) did not proceed to the hospital and record the first information statement
of PW. l and, therefore, concluded that no reliance could be placed on his            D
evidence, particularly in a case of this nature. The Trial Court found it difficult
to rely upon the first information statement said to have been recorded at 5
a.m. on 10.7.1989 by Melukavu Police Station. Therefore, in view of the two
versions put forth before the court grave suspicion would arise as to what
had happened in the matter. Further the Trial Court noticed that there is             E
dissimilarity in the signature of PW. l on Ex.P.1 PW. I admitted to have signed
Ex.P. l but the Trial Court observed that a bare perusal of the signatures in
the above document would clearly show that there is no similarity between
the signature on that document and the signature of PW. l. On summons in
acknowledgement of having received it PW. l had also admitted that there are
marked dissimilarities between- his signature on Ex.P. l and Ex.D. l. The             F
explanation offered was that he had pain all over the body while signing and
therefore, he might not have signed properly. The Trial Court, therefore, held
that in this background Ex.P.1 is not a reliable document.

      The evidence of PW.14, the Circle Inspector of Police supported by
Ex.P.4 scene mahazar would show that there was a pool of blood at the scene           G
of occurrence. PW. l stated that the deceased, Simon after having sustained
the injuries ran towards west from the scene of occurrence covering the
injuries with hand and his categorical statement in the cross-examination that
deceased, Simon had not fallen down on the spot on sustaining the injuries.
PW. I, who sustained injuries on his leti palm and left side of the neck also,        H
    444                     SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A ran towards Konipadu junction from the scene of occurrence. The presence
    of pool of blood in the circumstances would indicate that the occurrence
    might not have taken place in the manner alleged by the prosecution. On this
    basis, the Trial Court found that the evidence of PW. I to be highly suspicious.
    Further the Trial Court analysed his evidence with reference to the fact that
    the incident to. had taken place at about 7 p.m. on a cloudy day and when
B   sunset would take place in the place of occurrence between 6.45 p.m. and 6.47
    p.m. and that again threw a lot of suspicion on the evidence tendered by him.

           The trial court also took into account whether the injuries sustained by
    the appellant could have been caused in the manner deposed to by PW. I. He
C   stated that the 1st accused stabbed him with MOI knife and injury No. I in
    Exhibit 7, which is the Wound Certificate, is a cut injury on the left palm. The
    evidence of the doctor indicated that if the said injury was caused due to a
    stab, there must have been tailing at one end of the injury; that, in the present
    case, there was no tailing for that injury; that would clearly indicate that he
    had not sustained any stab injury. On his neck there is a linear horizontal
D   abrasion 4 ems x 2mm in size. According to the witness, he was profusely
    bleeding from the said injury. However, the medical expert said that this injury
    was not a bleeding injury and that injury could be caused by contact with
    human nail during the course of a scuffle. PW. I further stated that at the time
    of stabbing, the I st accused and the deceased were standing face to face,
E   whereas PW.12 who conducted the autopsy had noted an incised penetrating
    wound on the front side of the chest and stated during the cross examination
    that if the assailant and the victim are standing face to face it is unlikely to
    cause the above injury. The trial court was of the view that the medical
    evidence did not support the prosecution case and did not believe the
    recovery of MOI knife and further held that no motive was established. In
F   these circumstances, the trial court acquitted the accused because the evidence
    adduced by the prosecution did not bring about the truth and the matter was
    shrouded in mystery.

          On appeal by the State, the Division Bench of the High Court re-
   examined the matter and analysed the evidence from various angles. Firstly,
G it noticed that PW.13 had recorded the statement of PW. I at 5 a.m. on
   10.9.1989 on infonnation having been received from the hospital over telephone
  .that there was a stabbing incident at Monnlpadbhagom in which two persons
   sustained injuries and who had been removed to the Palai Government Hospital;
   that the informant did not have any details of information and thus without
H wasting any time he rushed to the hospital; that he located PW. I who was
         JOSEPH v. STATE OF KERALA [S. RAJENDRA BABU. J.]                    445

 undergoing treatment and his statement was recorded and his signature              A
 obtained on the same; that inasmuch as Simon had succumbed to the injuries
sustained by him, question of recording his signature could not arise. On the
same day, the FIR was registered at 10.30 a.m .. In Exhibit P I the essential
details of the incident and the names of the accused had been given. In
evidence tendered before the Court by PW. I, he corroborated his version in
Exhibit P I in all materials aspects. He stated that there was sufficient light     B
probably twilight to identify the· accused. Though he has not specifically
stated in Exhibit P I that after the incident he met PWs 2 to 4 at Konnipad
junction, told them as to what had happened and they rushed to the scene.
PWs 2 to 4 reached the place of incident a little after the incident. The
statement of PW 5 not containing the details as to who had caused the               C
injuries to the deceased and PW. I was not significant. The High Court also
rejected the theory of two FIRs had come into existence and noticed that
PW.I admitted the difference in his signature in Exhibit P.I and Exhibit D.2,
which he had done on the acknowledgement of the summons having received
by him; that. when PW. I himself had no case about the forgery and had
owned not merely the authorship of the complaint but his signature as well,         D
the trial court need not to embark upon a comparison of the signature in
Exhibit P.1 and Exhibit D.2. Though agreeing that PW. 15 had not discharged
his duties properly as GD charge of the Police Station after receiving intimation
as per Exts. Cl(a) and (b) from the Government Hospital, Palai, the High Court
brushed aside the same as being unfortunate. :fhe High Court discarded the          E
theory that some police officers had recorded the statement of PW. I on the
night of the incident and on that basis, held that there was no case at all made
out in that regard and PWs 3 and 5 denied having given any complaint prior
to Exhibit P I. The High Court also did not place any reliance upon the
recoveries effected. On the discrepancies between the medical evidence and
the oral evidence adduced before the Court, the High Court stated that the          F
 learned Sessions Judge had strained to stress minor discrepancies and had
made a sweeping statement in regard to the effect of a discrepancy between
the medical opinion and oral testimony. The High Court did not also attach
importance to the spot Mahazar, Exhibit P 3 which had noticed that there was
blood at the scene of the incident. Therefore, the High Court held that the         G
evidence is clear and convincing that the appellant stabbed the deceased to
death and proceeded to reverse the judgment of the trial court and convicted
the appellant.

      This is a case in which there is a solitary eye witness who has given
evidence before the court. His evidence is attacked on various grounds: that        H
    446                     SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A the Exhibit P I (FIR) is not correct; that Exhibit P 5 is an intimation that had
    been sent by the police station; that his statement had been recorded at 9.30
    p.m. in the night by the police; that no motive was set out in the evidence
    tendered before the Court thou~h there was an attempt to do so in Exhibit
    P I; that no statement of going to junction is forthcoming in the evidence of
    PWs 2 to 4 which is contradictory to the statement made by PW. I and
B   Doctor's (PW. I I) evidence which is clearly to the effect that the injury on the
    neck of PW. I could not have been caused by any weapon and was not a
    bleeding injury; that the appellant's clothes stated to be blood stained but
    the same had not been seized; that neither in the Wound Certificate nor in
    any other place the names of the accused had been mentioned; that when the
C   Trial Court had disbelieved the evidence tendered by PW. I, the High Court
    could not have given a contrary finding, when the former view is possible.

          The learned counsel for the respondent, on the other hand, urged that
    the High Court has properly analysed the evidence on record and has correctly
    come to the conclusion and thus calls for no interference.
D
          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 I contained
    signature of a doubtful character which PW. I himself admitted as having been
E   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. I 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 profosely
F   bleeding and he 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. I could have been caused by a nail scratch
    and not by a weapon and was not a bleeding injury will clearly belie the
    statement made by him that he was profusely bleeding. If really the witness
    (PW. I) was wearing blood stained clothes the same would have been certainly
G   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.

H         To our mind, it appears that the High Court did not follow the aforesaid
             JOSEPHv. STATEOFKERALA [S. R.'\JENDRA BABU. J.]                    447

    standard but went on to analyse evidence as if the material before them was        A
    given for the first time and not in appeal. Section 134 of the Indian Evidence
    Act provides that no particular nu111ber of \Vitnesses shall in any case be
    required for the proof of any fact and, therefore, it is pennissible 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           B
    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           C
    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.



-
                                                                                       D
    S.K.S.                                                        Appeal allowed.