SUNIL KUMARversusTHE STATE GOVT. OF NCT OF DELHI

                           SUNIL KUMAR                                    A
                                   v.
              THE ST ATE GOVT. OF NCT OF DELHI

                          OCTOBER 15, '2003
                                                                           B
        [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

     Penal Code, 1860-Sections 302 and 34-Indian Evidence Act,
1872-Section 134-Murder-Conviction based on testimony of sole eye-
witness-Validity of-Held, is valid if it is wholly reliable and not
doubtful-On facts, the testimony is wholly reliable and truthful-Conviction C
and sentence upheld-Section 27-Arms Act, 1959.

      The 'deceased was on visiting terms with an eunuch who lived
nearby. On his father's advise, the deceased stopped going to the
eunuch and this annoyed the eunuch. Appellant No. 2, who has also D
been visiting the eunuch, had threatened the deceased to resume his
relationship with the eunuch and wanted to take the deceased along
with him. However, on the advise of his brother PWS, the deceased did
not accompany the appellant. Next day, PWS found the deceased in the
house of the eunuch. The deceased was engaged in some arguments E
with the appellants. When PWS asked his deceased brother to return
home, the eunuch told PWS that he would be sent back soon. When
PW5 started coming back towards his house, he heard the V<?ice of the
deceased and saw the deceased running from the house of the eunuch
being chased by the appellants. Appellant No. 1 caught hold of the
deceased and appellant No. 2 inflicted knife blows on.the deceased. On F
raising the alarm by PW5, PW3 and some other persons reached the
spot. Both the appellants ran away. PW3 and PW5 took the deceased
to the hospital where he was declared to have been brought dead. P.W.
3 later turned hostile. The trial court held both the appellants guilty
of offence punishable under section 302 read with section 34 IPC and G
sentenced them to life imprisonment and a fine of Rs. 2000 with default
stipulation. Appellant No. 2 was further found guilty of offence
punishable under section 27 of the Arms Act, 1959 and was sentenced
to undergo RI for three years and a fine of Rs. 1000 with default
stipulation. The High Court dismissed the appeals of the appellants. H
                                   767
    768               SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A        ·In appeal to this Court, the appellants contended that conviction
    of the appellants based on the sole eye witness PW5 is not wholly
    reliable; and that lot of improvements were made to introduce the
    element of enmity of the appellants with the deceased.

B         Dismissing the appeals, the Court

          HELD : 1.1. There is no legal impediment in convicting a person
    on the sole testimony of a single witness. But, if there are doubts about
    the testimony, the courts will insist for corroboration. It is for the
    Court to act upon the testimony of witnesses. It is not the number, the
C   quantity, but the quality that is material. The time honoured principle
    is that evidence has to be weighed and not counted. On this principle
    stands the edifice of section 134 of the Indian Evidence A~t, 1872. The
    test is whether the evidence has a ring of truth, is cogent, credible and
    trus~worthy, or otherwise. [773-C-D]
D
         Vadivelu Thevar v. The State ofMadras, AIR (1957) SC 614; Jagdish
    Prasad & Ors. v. State of MP., AIR (1994) SC 1251, relied on.

          1.2. Evidence of PW5 has been analysed with great care and
E caution by the Trial Court and the High Court. Tht: so-called
  improvements do not, in any way, introduce a new facet of the case.
  Every omission is not a contradiction. Minor details, which are not
  indicated in the first information report, are later on elaborated in
  court. This do not justify a criticism that the case originally presented
F has been abandoned to be substituted by another one. P.W.5s evidence
  appears to be clear, cogent and trustworthy. Nothing substantial has
  been brought on record to disregard tlie testimony of this witness.
  Though PW3 changed his version, yet his evidence does not get totally
  wiped out. The part of it, which is reliable, can be taken note of. The
  evidence of this witness notwithstanding his making a different version
G provides some corroboration, though the evidence of P. W.5 alone was
  sufficient to fix the guilt of the accused persons. Merely because of the
  fact that there were some minor omissions, which are but natural,
  considering the fact that the examination in court took place years
  after the occurrence, the evidence does not become suspect. Necessarily
H there cannot be exact and precise reproduction in any mathematical
       SUNIL KUMAR v. STATE GOVT. OF NCT [PASAYAT, J.]             769

manner. What needs to be seen is whether the version presented in the A
court was substantially similar to what was stated during investigation.
It is only when exaggerations fundamentally change the nature of the
case, the court has to consider whether the witness was telling the truth
or not. As has been held by the Trial Court and the High Court, the
evidence of P.W.5 was truthful evidence. He has graphically described B
the assaults on the deceased. Appellant No. 2 gave several blows on the
person of the deceased while appellant No. 1 caught hold of him to
facilitate the assailant. Section 34 IPC is clearly attra.cted. This is not
a case where anything substantial has been brought on record to
disregard the evidence of P.W.5. [773-E-H, 774-A-B)
                                                                         c
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
263 of 2003.

     From the Judgment and Order dated 15.5.2002 of the Delhi High
Court in Cr!. A. No. 222 of 2000.                                  D
                                WITH

     Cr!. A. No. 266 of 2003.

     U.R. Lalit, Ambhoj Kumar Sinha for the Appellant in Crl.A. No. 266/ E
2003.

     Sudama Ojha for Dr. Maya Rao for the Appellant in Crl.A. No. 263/
2003.
                                                                         F
     T.A. Khan for D.S. Mahra for the Respondent.

     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J. : These two appeals are directed against a
Division Bench judgment of the Delhi High Court which dismissed the G
appeal filed by the appellants jointly. Appellants-Dharamvir and Sunil
Kumar were held guilty of offence punishable under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). Accused-
appellant Dharamvir was further found guilty of offence punishable under
Section 27 of the Anns Act, 1959 (in short 'the Anns Act'). Each was H
    770                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A sentenced to imprisonment of life and a fine of Rs. 2000 with default
    stipulation. Dharamvir was separately sentenced to undergo RI for three·
    years for the offence punishable under Section 27 of the Arms Act and a
    fine of Rs. 1000 with default stipulation.

          Prosecution version delineated in its essentials is as follows :
B
          Jai Kishan (hereinafter referred to as 'the deceased') was the brother   ,.
    of Rajesh (PW5). They were living at Sultanpuri. Deceased used to sell
    eggs in a Kokha and was on visiting terms with an eunuch named Mumtaz,
    who lived in E-Block Sultanpuri. The father of Rajesh had advised
c   deceased to severe his relationship with Mumtaz and he had stopped going
    to Mumtaz. This had annoyed Mumtaz. Accused-appellant Dharamvir was
    also visiting Mumtaz, who had instigated Dharamvir against the deceased.
    On 22.5.1996 at about 7.00 p.m. Dharamvir had come to the house of
    Rajesh and told deceased in a threatening tone as to why he was not visiting
D   Mumtaz. He wanted to take deceased along with him but at the advise of         -1

    Rajesh he did not accompany him.

          On 23.5.1996 when Rajesh (PW5) got up in the morning he found
    that his brother Jai Kishan was not present in his room and his room was
E   locked. He was suspicious and started searching for his brother. He went
    to the house ofMumtaz. It was about 1.00 a.m. when he found his brother
    there. Both the accused-appellants Dharamvir and Sunil were also there.
    They were engaged in some arguments. He told his deceased brother to
    come back home. Mumtaz told Rajesh that his brother would be sent back
    soon. Rajesh (PW5) started coming back towards his home. When he
F   reached the park of 'A' Block he heard the voice of his brother and saw
    his brother running from the house of Mumtaz. Accused-appellants
    Dharamvir and Sunil were chasing him. Dharamvir had an open knife in
    his hand. When deceased reached near 'A' Block, appellant-Sunil caught
    hold of him and appellant-Dharamvir gave him knife blows. Rajesh had
G   raised the alarm "Bachao-Bachao" (save-save). In the meantime Vinod, son
    of Piary Lal (PW3) and some other persons reached there. Accused-
    appellants Sunil and Dharamvir ran away. Rajesh along with Vinod took
    his brother to the hospital where his brother was declared to have been
    brought dead. In his complaining statement he pointed that Mumtaz.
H   Dharamvir and Sunil in furtherance of their common intention had attacked           ~
       SUNJL KUMAR v. STATE GOVT. OF NCT [PASAYAT, J.]                771

his brother-deceased. On the basis of said complaining statement, first A
information report was logded and investigation was undertaken. After
completion of investigation charge sheet was placed and the accused
persons were tried.

      To further the prosecution version 17 witnesses were examined. Two B
witnesses, namely, Vinod and Rajesh (PWs 3 and 5 respectively) were
stated to be eyewitnesses. However, Vinod made a departure from the
statements purported to have been given during investigation when he
deposed in Court. But Rajesh reiterated the statements while tendering
evidence. Accused persons claimed false implication. It is to be noted that C
another person, namely, Parveen @ Monty was arrayed as an accused.
Placing reliance on the evidence of Rajesh (PW5) the Trial Court found
the present appellants guilty while it was held that evidence were not
sufficient to fasten guilt on Parveen. The High Court dismissed the appeals
filed by the convicted accused persons by the impugned judgment.
                                                                            D
      In support of the appeals learned counsel for the appellants submitted
that this being a case where ultimate result depends upon the acceptability
of a single witness, namely, Rajesh (PW5), it was imperative that his
evidence sliould be taintless. It should be totally reliable. On the contrary
a lot of improvements have been made. As prosecution version goes to E
show, there was no heated exchange when Rajesh (PW5) left the house of
Mumtaz. The situation cannot become so uncontrollable that it would result
in deceased being chased by the two accused persons. This is highly
improbable. Further, the evidence of PW5 does not inspire confidence. If
there was no enmity between the accused and the deceased, there is no F
motive to spur two persons to take the life of another. The antecedent
motive was not even stated when statements were being recorded during
investigation. The improvement has been sought to be made to introduce
the element of enmity. In any event, the injury stated to have been inflicted
was not intended to be fatal and, therefore, case under Section 302 IPC G
has not been made out. The improvement made by the witness is not trivial
and, in fact, a person whose name was not in the first information report ·
was subsequently introduced. The Trial Court did not find the material
against him to be reliable and same was the situation vis-a-vis other accused
persons also.                                                                 H
    772                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A         Per contra, learned counsel for the re$pondem-State submitted that the
    Trial Court as well as the High Court have analysed the evidence in detail
    and have found the accused persons guilty and no exception can be taken
    to the conclusions to warrant any interference.

B        It is necessary to refer to the pivotal argument of the appellants'
    learned counsel that Rajesh (PW5) is the sole eye witness in the present
    case and no conviction should be based on the testimony of such an
    eyewitness who cannot be described as wholly reliable.

          In Vadivelu Thavar v. The State of Madras, AIR (1957) SC 614 this
C Court had gone into this controversy and divided the nature of witnesses
    in three categories, namely, wholly reliable, wholly unreliable and lastly
    neither wholly reliable nor wholly unreliable. In the case of first two
    categories this Court said that they pose little difficulty but in the case of
    third category of witness corroboration would be required. The relevant
D   portion is quoted as under :-

                  " ..... 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
E            context may be classified into three categories, namely :

             (1) Wholly reliable.

             (2) Wholly unreliable.
F
             (3) Neither wholly reliable nor wholly unreliable.

                   In the first category of proof, the court should have no
             difficulty in coming to its conclusion either way - it may convict
             or may acquit on the t~stimony of a single witness, if it is found
G            to be above reproach or suspicion of interestedness, incompetence
             or subornation. In the second category, the Court equally has no
             difficulty in coming to its conclusion. It is in the third category
             of cases, that the court has to be circumspect and has to look for
             corroboration in material particulars by reliable testimony, direct
H            or circumstantial. There is another danger in insisting on plurality
       SUNILKUMARv. STATEGOVT.OFNCT[PASAYAT,J.)                       '773

         of witnesses. Irrespective of the quality of the oral evidence of a A
         single witness, if courts were to insist on plurality of witnesses
         in proof of any fact, they will be indirectly encouraging subornation
         of witnesses .... "

      Vadivelu Thevar's case (supra) was referred to with approval in the B
case of Jagdish Prasad and Ors. v. State ofM.P., AIR (1994) SC 1251. This
Court held that as a general rule the court can and may act on the testimony
of a single witness provided he is wholly reliable. There is no legal
impediment in convicting a person on the sole testimony of a single
witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 C
(in short the 'Evidence Act'). But, ifthere are doubts about the testimony
the courts will insist for corroboration. It is for the Court to act upon the
testimony of witnesses. It is not the number, the quantity, but the quality
that is material. The time honoured principle is that evidence has to be
weighed and not counted. On this principle stands the edifice of section
134 of the Evidence Act. The test is whether the evidence has a ring of D
truth, is cogent, credible and trustworthy, or otherwise.

      Evidence of PW5 has been analysed with great care and caution by
the Trial Court as well as the High Court. The so-called improvements do
not, in any way, introduce a new facet of the case. Every omission is not E
a contradiction. Minor details which are not indicated in the first information
report are later on elaborated in court do not justify a criticism that the case
originally presented has been abandoned to be substituted by another one.
PW's 5 evidence appears to be clear, cogent and trustworthy. Nothing
substantial has been brought on record to disregard the testimony of this F
witness. Though PW3 changed his version, yet his evidence does not get'
totally wiped out. A part of it which is reliable can be taken note of by
the court and has, in fact, been taken note of. The evidence of this witness
notwithstanding his making a different version provides some corroboration,
though as noted above, the evidence of PW5 alone was sufficient to fix
the guilt of the accused persons. Merely because of the fact that there were G
some minor omissions, which are but natural, considering the fact that the
examination in court took place years after the occurrence the evidence
does not become suspect. Necessarily there cannot be exact and precise
reproduction in any mathematical manner. What needs to be seen is
whether the version presented in the court was substantially similar to what H
    774                SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.

A was stated during investigation. It is only when exaggerations fundamentally
    change the nature of the case, the court has to consider whether the witness
    was telling the truth or not. As has been held by the Trial Court as well
    as the High .Court, the evidence of PW5 was truthful evidence. He has
    graphically described the assaults on the deceased. Accused-Dharamvir
B   gave several blows on the person of decease while accused-Sunil caught
    hold of him to facilitate the assailants. Section 34 of the Act is clearly
    attracted. This is not a case where anything substantial has been brought
    on record to disregard the evidence of PW5.

         That being the position the conviction and sentence imposed do not
C   warrant any variation or interference.

           Appeals are without merit and are dismissed.

    B.S.                                                    Appeals dismissed.




             '-. ~.