The High Court appears to have interfered with the judgment of acquittal only on the basis that `there was a possibility of another view'. The prosecution must prove its case beyond any reasonable doubt. Such is not the burden on the accused. The High Court has acted on certain legal and factual presumptions which cannot be sustained on the basis of the record before us and the principle of laws afore-noticed. The case of the prosecution, thus, suffers 45 from proven improbabilities, infirmities, contradictions and the statement of the sole witness, the Police Officer, PW1, is not reliable and worthy of credence.

                                               1

                                                          REPORTABLE

                  IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION


                  CRIMINAL APPEAL NO. 984 OF 2007




Govindaraju @ Govinda                                         ... Appellant


                                     Versus


State by Sriramapuram P.S. & Anr.                             ... Respondents





                              J U D G M E N T




Swatanter Kumar, J.




1.    The   present   appeal   is   directed   against   the   judgment   of


conviction   and   order   of   sentence   recorded   by   the   High   Court   of


Karnataka at Bangalore dated 29th  November, 2006, setting aside


the   judgment   of   the   trial   court   dated   9th  March,   2000   acquitting


all the accused for an offence under Section 302 read with Section


34  of  the  Indian  Penal  Code,  1860  (for  short  `IPC').   In  short the


case   of   the   prosecution   is   that   on   7th  December,   1998,   Sub-


Inspector   of   Police   (Law   &   Order)   Shri   Veerabadhraiah   of   the


Sriramapuram   Police   Station,   PW1,   was   proceeding   towards   his


house from duty on his motor  cycle  at  about  10.45 p.m.  When


he     reached   the   6th  Cross   Road,   7th  Main,   he   saw   three   persons


                                               2



chasing another person and when they reached near VNR Bar, the


person who was being chased fell on the road.   One of the three


person   who   were   chasing   the   victim,   stabbed   him   on   his   chest


thrice   with   knife.   Thereafter,   the   other   two   persons  also   stabbed


him   on   the   chest.     When   the   said   PW1   was   about   to   reach   the


spot, he saw the accused Govindaraju @ Govinda addressing one


of the other two persons as Govardhan and telling them that the


Police was coming and asked  them  to  run away, whereafter they


ran away from the spot.   An attempt was made by PW-1 to follow


them but the same proved to be in vain because they went into a


Conservancy   and   disappeared   into   darkness.                     After   this


unsuccessful   attempt,   PW1   returned   to   the   spot   and   saw   the


victim   bleeding   with   injuries.     With   the   help   of   a   Constable,   he


shifted   the   victim   to   K.C.General   Hospital,   Malleswaram,   where


the victim was declared dead by the doctors.   Upon search of the


body   of   the   deceased,   his   identity   card   was   found   on   which   his


name and address had been given.  The name of the deceased was


found to be Santhanam.  Thereafter, PW1 went back to the Police


Station and lodged a complaint, Ex.P1, on the basis of which FIR


Ex.P2   was   recorded   by   PW11,   another   Police   Officer,   who   then


investigated the case.  The Investigating Officer, during the course


of investigation, examined a number of witnesses, collected blood


                                              3



soaked   earth   and   got   recovered   the   knives   with   which   the


deceased was assaulted.   Having recovered the weapons of crime,


the Investigating Officer had sent these weapons for examination


to   the   Forensic   Science   Laboratory   (FSL)   at  Bangalore.   However,


that   Laboratory   had,   without   giving   any   detailed   report,   vide   its


letter   dated   28th       October,   1999,   Ex.P15,   informed   the


Commissioner of Police, Malleswaram, Bangalore, that the stains


specimen cuttings/scraping was referred to Serologist at Calcutta


for   its   origin   and   grouping   results,   which   on   receipt   would   be


dispatched from that office.   In all, eight articles were sent to the


FSL   including   the   blood   clots,   one   pant,   one  kacha,   one   pair   of


socks and one chaku.  No efforts were made to produce and prove


the final report from the FSL, Calcutta and also no witness  even


examined   from   the   FSL.     It   appears   from   the   record   that   the


weapons of offence were not sent to the FSL, Bangalore at all.



2.    After   completing   the   investigation,   PW11   filed   the   charge-


sheet before the Court of competent jurisdiction.   The matter was


committed   to   the   Court   of   Sessions.   The   two   accused   faced   the


trial as the third accused was absconding and was not traceable


at   the   time   of   filing   of   the   charge-sheet   or   even   subsequent


thereto.     The   learned   Sessions   Judge   had   framed   the   charge


against the accused under Section 302 read with Section 34 IPC


                                                   4



vide its order dated 20th November, 1999. The learned trial Court,


vide   its   judgment   dated   9th  March,   2000,   acquitted   both   the


appellant   namely,   Govindaraju   @   Govinda   and   Govardhan   @


Gunda.


3.           Against the said judgment of acquittal passed by the learned


trial   court,   the   State   preferred   a   leave   to   appeal   before   the   High


Court.     The   High   Court   declined   the   leave   to   appeal   against   the


judgment   of   acquittal   in   favour   of   Govardhan   @   Gunda   and


granted   the   leave   to   appeal   against   Govindaraju   @   Govinda   vide


its order dated 3rd November, 2000.  Finally, as noticed above, the


High   Court   vide   its   judgment   dated   29th  November,   2006   found


Govindaraju   guilty   of   the   offence   under   Section   302   IPC   and


sentenced   him   to   civil   imprisonment   for   life   and   fine   of


Rs.10,000/-   in   default   to   undergo   rigorous   imprisonment   for   a


period of one year. Aggrieved from the said judgment of the High


Court,   the   accused  Govindaraju   @  Govinda   has  filed  the   present


appeal.


Points on which reversal of the judgment of acquittal by the

High Court is challenged:


      (i)            The   judgment   of   the   High   Court   is   contrary   to   the


               settled  principles   of  criminal   jurisprudence governing  the


               conversion of order of acquittal into one that of conviction.


                                              5





(ii)            The judgment of the High Court suffers from palpable


         errors   of   law   and   appreciation   of   evidence.     All   the


         witnesses   had   turned   hostile   and   the   conviction   of   the


         appellant could not be based upon the sole testimony of a


         Police Officer, who himself was an interested witness.  It is


         contended that the appellant Govindaraju @ Govinda has


         been falsely implicated in the case.




(iii)    No   independent   or   material   witnesses   were   examined   by


         the prosecution.  Recovery of the alleged weapons of crime


         have not been proved in accordance with the provisions of


         Section   27   of   the   Indian   Evidence   Act,   1872   (hereafter


         referred to as "the Act").




(iv)     No seizure witness was examined and the statement of the


         Police   Officer   cannot   by   itself   be   made   the   basis   for


         holding   that   there   was   lawful   recovery,   admissible   in


         evidence, from the appellant.




(v)              The   ocular   evidence   is   not   supported   by   the   medical


         evidence,   even   in   regard   to   the   injuries   alleged   to   have


         been caused and found on the body of the deceased.  The


         story   put   forward   by   PW1   is   not   only   improbable   but   is


                                                   6



               impossible of being true.




      (vi)     The   case   of   the   prosecution   is   not   supported   by   any


               scientific evidence.




      (vii)    Lastly, it is the contention of the appellant that they were


               charged   with   an   offence   under   Section   302   read   with


               Section 34 IPC.   The trial court acquitted them.   Leave to


               appeal preferred by the State  qua  one of the accused, i.e.


               Govardhan @ Gunda was not granted.  Thus, the acquittal


               of   the   said   accused   attained   finality.     Once   the   accused


               Govardhan   @   Gunda   stands   acquitted   and   the   role


               attributable   to   the   appellant-Govindaraju   is   lesser


               compared to that of Govardhan, the present appellant was


               also entitled to acquittal.  The judgment of the High Court,


               thus, suffers from legal infirmities.




4.        Contra   to   the   above   submissions,   the   learned   counsel


appearing for the State contended that, as argued, it is not a case


of false implication.   The area fell within the jurisdiction of PW1,


who   was   the   eye-witness   to   the   occurrence.     As  per   the   records,


the events took place as - At 10.55 p.m. the incident took place,


11.45 p.m. the First Information Report (hereinafter referred to as


                                                7



"FIR")   was   registered   and   at   1.40   a.m.,   the   copy   of   the   FIR   was


placed before the Magistrate, which was duly initialed by the Duty


Magistrate.     This   proved   the   truthfulness   of   the   case   of   the


prosecution.     The   weapons   of   offence   were   recovered   from   the


house   of   the   appellant.     The  panchas  have   admitted   their


signatures, even though they have turned hostile.  On the basis of


the   collective   evidence,   both   documentary   and   ocular,   the


prosecution has been able to prove its case beyond any reasonable


doubt and thus, the judgment of the High Court does not call for


any interference.


5.    Keeping   in   view   the   submissions   made   by   learned   counsel


appearing for the appellant and the State, now we may proceed to


examine the first contention.   In the present case, the trial Court


had acquitted  both the accused.   As already noticed, against the


judgment of acquittal, the State had preferred application for leave


to   appeal.     The   leave   in   the   case   of   the   present   appellant,


Govindaraju was granted by the High Court  while it  was refused


in the case of the other accused, Govardhan.  Thus, the judgment


of   acquittal   in   favour   of   Govardhan   attained   finality.   We   have   to


examine whether the High Court was justified in over turning the


judgment   of   acquittal   in   favour   of   the   appellant   passed   by   the


Trial court on merits of the case.   The law is well-settled that an


                                                8



appeal   against   an   order   of   acquittal   is   also   an   appeal   under   the


Code   of   Criminal   Procedure,   1973   (for   short   `Cr.P.C.')   and   an


appellate   Court   has   every   power   to   re-appreciate,   review   and


reconsider the evidence before it, as a whole.   It is no doubt true


that   there   is   presumption   of   innocence   in   favour   of   the   accused


and   that   presumption   is   reinforced   by   an   order   of   acquittal


recorded by the trial Court.   But that is the end of the matter.   It


is for the Appellate Court to keep in view the relevant principles of


law  to  re-appreciate  and  reweigh the  evidence  as  a whole   and to


come to its own conclusion on such evidence, in consonance with


the principles of criminal jurisprudence.  {Ref. Girja Prasad (Dead)


By LRs. v. State of M.P. [(2007) 7 SCC 625]}.




6.    Besides   the   rules   regarding   appreciation   of   evidence,   the


Court   has   to   keep   in   mind   certain   significant   principles   of   law


under   the   Indian   Criminal   Jurisprudence,  i.e.  right   to   fair   trial


and   presumption   of   innocence,   which   are   the   twin   essentials   of


administration   of   criminal   justice.     A   person   is   presumed   to   be


innocent   till   proven   guilty   and   once   held   to   be   not   guilty   of   a


criminal   charge,   he   enjoys   the   benefits   of   such   presumption


which  could  be  interfered  with  by   the  courts  only for  compelling


reasons   and   not   merely   because   another   view   was   possible   on


appreciation   of   evidence.     The   element   of   perversity   should   be


                                               9



traceable in the findings recorded by the Court, either of law or of


appreciation of evidence.  The Legislature in its wisdom, unlike an


appeal   by   an   accused   in   the   case   of   conviction,   introduced   the


concept of leave to appeal in terms of Section 378 Cr.P.C.  This is


an indication that appeal from acquittal is placed at a somewhat


different footing than a normal appeal.  But once leave is granted,


then there is hardly any difference between a normal appeal and


an appeal against acquittal.  The concept of leave to appeal under


Section   378   Cr.P.C.   has   been   introduced   as   an   additional   stage


between the order of acquittal and consideration of the judgment


by   the   appellate   Court   on   merits   as   in   the   case   of   a   regular


appeal.     Sub-section   (3)   of   Section   378   clearly   provides   that   no


appeal   to   the   High   Court   under   sub-sections   (1)   or   (2)   shall   be


entertained   except   with   the   leave   of   the   High   Court.     This


legislative   intent   of  attaching   a  definite   value   to  the   judgment   of


acquittal cannot be ignored by the Courts.   Under the scheme of


the Cr.P.C., acquittal confers rights on an accused that of a free


citizen. A benefit that has accrued to an accused by the judgment


of acquittal can be taken away and he can be convicted on appeal,


only when the judgment of the trial court is perverse on facts or


law.     Upon   examination   of   the   evidence   before   it,   the   Appellate


Court should be fully convinced that the findings returned by the


                                               10



trial   court   are   really   erroneous   and   contrary   to   the   settled


principles   of   criminal   law.     In   the   case   of  State   of   Rajasthan  v.


Shera Ram alias Vishnu Dutta [(2012) 1 SCC 602], a Bench of this


Court, of  which one  of us (Swatanter Kumar, J.) was a member,


took the view that there may be no grave distinction between an


appeal against acquittal and an appeal against conviction but the


Court   has   to   keep   in   mind   the   value   of   the   presumption   of


innocence in favour of the accused duly endorsed by order of the


Court, while the Court exercises its appellate jurisdiction.  In this


very   case,   the   Court   also   examined   various   judgments   of   this


Court dealing with the principles which may guide the exercise of


jurisdiction   by   the   Appellate   Court   in   an   appeal   against   a


judgment   of   acquittal.     We   may   usefully   refer   to   the   following


paragraphs of that judgment:




      "8.    The   penal   laws   in   India   are   primarily   based   upon

      certain   fundamental   procedural   values,   which   are   right   to

      fair   trial   and   presumption   of   innocence.     A   person   is

      presumed to be innocent till proven guilty and once held to

      be   not  guilty   of  a  criminal   charge,   he   enjoys   the   benefit   of

      such   presumption   which   could   be   interfered   with   only   for

      valid and proper reasons.     An appeal against acquittal has

      always   been   differentiated   from   a   normal   appeal   against

      conviction.   Wherever there is perversity of facts and/or law

      appearing   in   the   judgment,   the   appellate   court   would   be

      within   its   jurisdiction   to   interfere   with   the   judgment   of

      acquittal, but otherwise such interference is not called for.



       9.   We may refer to a recent judgment of this Court in the


                                       11



case   of  State   of   Rajasthan,   Through   Secretary,   Home

Department   v.   Abdul   Mannan  [(2011)   8   SCC   65],   wherein

this Court discussed the limitation upon the powers of the

appellate court to interfere with the judgment of acquittal

and reverse the same.


11.    This   Court   referred   to   its   various   judgments   and   held   as

under:-


"12.   As   is   evident   from   the   above   recorded   findings,   the

judgment   of   conviction   was   converted   to   a   judgment   of

acquittal by the High Court.   Thus, the first and foremost

question   that   we   need   to   consider   is,   in   what

circumstances   this   Court   should   interfere   with   the

judgment   of  acquittal.       Against   an   order   of   acquittal,   an

appeal by the State is maintainable to this Court only with

the leave of the Court.   On the contrary, if the judgment of

acquittal passed by the trial court is set aside by the High

Court,   and   the   accused   is   sentenced   to   death,   or   life

imprisonment   or   imprisonment   for   more   than   10   years,

then   the   right   of   appeal   of   the   accused   is   treated   as   an

absolute right subject to the provisions of Articles 134(1)(a)

and 134(1)(b) of the Constitution of India and Section 379

of the Code of Criminal Procedure, 1973.    In light of this,

it is obvious that an appeal against acquittal is considered

on   slightly   different   parameters   compared   to   an   ordinary

appeal preferred to this Court.



13. When an accused is acquitted of a criminal charge, a

right vests in him to be a free citizen and this Court is very

cautious   in   taking   away   that   right.   The   presumption   of

innocence   of   the   accused   is   further   strengthened   by   the

fact   of   acquittal   of   the   accused   under   our   criminal

jurisprudence.  The  courts  have  held  that if  two views  are

possible on the evidence adduced in the case, then the one

favourable   to   the   accused,   may   be   adopted   by   the   court.

However,   this   principle   must   be   applied   keeping   in   view

the facts and circumstances of a case and the thumb rule

is that whether the prosecution has proved its case beyond

reasonable   doubt.   If   the   prosecution   has   succeeded   in

discharging   its   onus,   and   the   error   in   appreciation   of

evidence   is   apparent   on   the   face   of   the   record   then   the

court can interfere in the judgment of acquittal to ensure

that   the   ends   of   justice   are   met.   This   is   the   linchpin


                                      12



around   which   the   administration   of   criminal   justice

revolves.


14.   It   is   a   settled   principle   of   criminal   jurisprudence

that   the   burden   of  proof   lies   on  the   prosecution   and   it

has   to   prove   a   charge   beyond   reasonable   doubt.   The

presumption of innocence and the right to fair trial are

twin   safeguards   available   to   the   accused   under   our

criminal   justice   system   but   once   the   prosecution   has

proved its case and the evidence led by the prosecution,

in conjunction with the chain of events as are stated to

have   occurred,   if,   points   irresistibly   to   the   conclusion

that   the   accused   is   guilty   then   the   court   can   interfere

even   with   the   judgment   of   acquittal.   The   judgment   of

acquittal   might   be   based   upon   misappreciation   of

evidence   or   apparent   violation   of   settled   canons   of

criminal jurisprudence.


15. We may now refer to some judgments of this Court

on this issue. In State of M.P. v. Bacchudas, the Court

was concerned with a case where the accused had been

found guilty of an offence punishable under Section 304

Part II read with Section 34 IPC by the trial court; but

had   been   acquitted   by   the   High   Court   of   Madhya

Pradesh.   The   appeal   was   dismissed   by   this   Court,

stating   that   the   Supreme   Court's   interference   was

called   for   only   when   there   were   substantial   and

compelling   reasons   for   doing   so.   After   referring   to

earlier   judgments,   this   Court   held   as   under:   (SCC

pp. 138-39, paras 9-10)


"9. There is no embargo on the appellate court reviewing

the evidence upon which an order of acquittal is based.

Generally,  the  order  of  acquittal  shall   not be   interfered

with   because   the   presumption   of   innocence   of   the

accused is further strengthened by acquittal. The golden

thread which runs through the web of administration of

justice in criminal cases is that if two views are possible

on the evidence adduced  in the case, one pointing to the

guilt of the accused and the other to his innocence, the

view   which   is   favourable   to   the   accused   should   be

adopted. The paramount consideration of the court is to

ensure   that   miscarriage   of   justice   is   prevented.   A

miscarriage of justice which may arise from acquittal of


                                      13



the   guilty   is   no   less   than   from   the   conviction   of   an

innocent.   In   a   case   where   admissible   evidence   is

ignored,   a   duty   is   cast   upon   the   appellate   court   to

reappreciate   the   evidence   where   the   accused   has   been

acquitted, for the purpose of ascertaining as to whether

any of the accused really committed any offence or not.

(See Bhagwan Singh v. State of M.P.) The principle to be

followed   by   the   appellate   court   considering   the   appeal

against   the   judgment   of   acquittal   is   to   interfere   only

when   there   are   compelling   and   substantial   reasons   for

doing   so.   If   the   impugned   judgment   is   clearly

unreasonable   and   relevant   and   convincing   materials

have been unjustifiably eliminated in the process, it is a

compelling   reason   for   interference.   These   aspects   were

highlighted by this Court in Shivaji Sahabrao Bobade v.

State of Maharashtra, Ramesh Babulal Doshi v. State of

Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore

Jha v. State of Bihar, State of Punjab v. Karnail Singh,

State   of   Punjab   v.   Phola   Singh,   Suchand   Pal   v.   Phani

Pal and Sachchey Lal Tiwari v. State of U.P.


10.   When   the   conclusions   of   the   High   Court   in   the

background of the evidence on record are tested on the

touchstone   of   the   principles   set   out   above,   the

inevitable conclusion is that the High Court's judgment

does   not   suffer   from   any   infirmity   to   warrant

interference."


16. In a very recent judgment, a Bench of this Court in

State   of   Kerala   v.   C.P.   Rao   decided   on   16-5-2011,

discussed the scope of interference by this Court in an

order   of   acquittal   and   while   reiterating   the   view   of   a

three-Judge   Bench   of   this   Court   in   Sanwat   Singh   v.

State of Rajasthan, the Court held as under:


"13.   In  coming   to   this   conclusion,   we   are   reminded   of

the   well-settled   principle   that   when   the   court   has   to

exercise   its   discretion   in   an   appeal   arising   against   an

order   of   acquittal,   the   court   must   remember   that   the

innocence   of   the   accused   is   further   re-established   by

the judgment of acquittal rendered by the High Court.

Against   such   decision   of   the   High   Court,   the   scope   of

interference  by  this  Court  in  an  order  of  acquittal  has

been very succinctly laid down by a three-Judge Bench


                                       14



of   this   Court   in   Sanwat   Singh   v.   State   of   Rajasthan

212. At SCR p. 129,   Subba   Rao,   J.   (as   His   Lordship

then was) culled out the principles as follows:


`9. The foregoing discussion yields the following results:

(1)   an   appellate   court   has   full   power   to   review   the

evidence upon which the order of acquittal is founded;

(2) the principles laid down in Sheo Swarup case afford

a   correct   guide   for   the   appellate   court's   approach   to   a

case   in   disposing   of   such   an   appeal;   and   (3)   the

different   phraseology   used   in   the   judgments   of   this

Court, such as (i) "substantial and compelling reasons",

(ii)   "good   and   sufficiently   cogent   reasons",   and   (iii)

"strong   reasons",   are   not   intended   to   curtail   the

undoubted   power   of   an   appellate   court   in   an   appeal

against   acquittal   to   review   the   entire   evidence   and   to

come   to   its   own   conclusion;   but   in   doing   so   it   should

not   only   consider   every   matter   on   record   having   a

bearing on the questions of fact and the reasons given

by the court below in support of its order of acquittal in

its   arriving   at   a   conclusion   on   those   facts,   but   should

also express those reasons in its judgment, which lead

it to hold that the acquittal was not justified'."


17.   Reference   can   also   be   usefully   made   to   the

judgment   of   this   Court   in   Suman   Sood   v.   State   of

Rajasthan,   where   this   Court   reiterated   with   approval

the   principles   stated   by   the   Court   in   earlier   cases,

particularly,   Chandrappa   v.   State   of   Karnataka.

Emphasising   that   expressions   like   "substantial   and

compelling   reasons",   "good   and   sufficient   grounds",

"very   strong   circumstances",   "distorted   conclusions",

"glaring   mistakes",   etc.   are   not   intended   to   curtail   the

extensive   powers   of   an   appellate   court   in   an   appeal

against   acquittal,   the   Court   stated   that   such

phraseologies   are   more   in   the   nature   of   "flourishes   of

language"   to   emphasise   the   reluctance   of   an   appellate

court   to   interfere   with   the   acquittal.   Thus,   where   it   is

possible   to   take   only   one   view   i.e.   the   prosecution

evidence   points   to   the   guilt   of   the   accused   and   the

judgment   is   on   the   face   of   it   perverse,   then   the   Court

may interfere with an order of acquittal."



10. There is a very thin but a fine distinction between an


                                       15



appeal against conviction on the one hand and acquittal

on the other.     The preponderance of judicial opinion of

this   Court   is   that   there   is   no   substantial   difference

between   an   appeal   against   conviction   and   an   appeal

against   acquittal   except   that   while   dealing   with   an

appeal   against   acquittal   the   Court   keeps   in   view   the

position that the presumption of innocence in favour of

the accused has been fortified by his acquittal and if the

view adopted by the High Court is a reasonable one and

the conclusion reached by it had its grounds well set out

on   the   materials   on   record,   the   acquittal   may   not   be

interfered   with.       Thus,   this   fine   distinction   has   to   be

kept in mind by the Court while exercising its appellate

jurisdiction.   The golden rule is that the Court is obliged

and it will  not abjure its duty to prevent miscarriage of

justice, where interference is imperative and the ends of

justice   so   require   and   it   is   essential   to   appease   the

judicial conscience.



11.   Also,   this   Court   had   the   occasion   to   state   the

principles which may be taken into consideration by the

appellate   court   while   dealing   with   an   appeal   against

acquittal.       There   is   no   absolute   restriction   in   law   to

review   and   re-look   the   entire   evidence   on   which   the

order   of   acquittal   is   founded.     If,   upon   scrutiny,   the

appellate   court   finds   that   the   lower   court's   decision   is

based   on   erroneous   views   and   against   the   settled

position of law then the said order of acquittal should be

set   aside.   {See   State   (Delhi   Administration)   v.   Laxman

Kumar   &   Ors.   [(1985)   4   SCC   476],   Raj   Kishore   Jha   v.

State   of   Bihar   &   Ors.   [AIR   2003   SC   4664],   Inspector   of

Police, Tamil Nadu v. John David [JT 2011 (5) SC 1] }



12.   To   put   it   appropriately,   we   have   to   examine,   with

reference   to   the   present   case   whether   the   impugned

judgment of acquittal recorded by the High Court suffers

from   any   legal   infirmity   or   is   based   upon   erroneous

appreciation of evidence.



13. In our considered view, the impugned judgment does

not suffer from any legal infirmity and, therefore, does not

call for any interference.   In the normal course of events,

we   are   required   not   to   interfere   with   a   judgment   of


                                                 16



        acquittal."




7.     The Court also took the view that the Appellate Court cannot


lose   sight   of   the   fact   that   it   must   express   its   reason   in   the


judgment,   which   led   it   to   hold   that   acquittal   is   not   justified.     It


was   also   held   by   this   Court   that   the   Appellate   Court   must   also


bear in mind the fact that the trial court had the benefit of seeing


the   witnesses   in   the   witness   box   and   the   presumption   of


innocence is not weakened by the order of acquittal  and in such


cases if two reasonable conclusions can be reached on the basis of


the evidence on record, the Appellate Court should not disturb the


findings of the trial court.   [See  C. Antony  v.  K.G. Raghavan  nair


[(2003)   1   SCC   1];   and  Bhim   Singh   Rup   Singh  v.  State   of


Maharashtra [(1974) 3 SCC 762].




8.     If   we   analyze   the   above   principle   somewhat   concisely,   it   is


obvious   that   the   golden   thread   which   runs   through   the   web   of


administration of justice in criminal cases is that if two views are


possible   on   the   evidence   adduced   in   a   case,   one   pointing   to   the


guilt of the accused and other to his innocence, the view which is


favourable   to   the   accused   should   be   adopted.     There   are   no


jurisdictional limitations on the power of the Appellate Court but


it   is   to   be   exercised   with   some   circumspection.     The   paramount


                                                  17



consideration   of   the   Court   should   be   to   avoid   miscarriage   of


justice.     A   miscarriage   of   justice   which   may   arise   from   the


acquittal   of   guilty   is   no   less   than   that   from   the   conviction   of   an


innocent.   If there is miscarriage of justice from the acquittal, the


higher   Court   would   examine   the   matter   as   a   Court   of   fact   and


appeal   while   correcting   the   errors   of   law   and   in   appreciation   of


evidence as well.   Then the Appellate Court may even proceed to


record   the   judgment   of   guilt   to   meet   the   ends   of   justice,   if   it   is


really called for.




9.     In the present case, the High Court, in the very opening of its


judgment,   noticed   that   the   prosecution   had   examined   eleven


witnesses, produced fifteen documents and three material objects.


The witnesses of seizure had turned hostile.   PW4 and PW5 were


examined   to   establish   the   fact   that   the   knife   was   seized   vide


Exhibit   P5   at   the   instance   of   the   appellant.     They   also   turned


hostile.  PW6 and PW8 were examined to establish the contents of


Exhibit P6, another knife that was seized from the other accused,


Govardhan.     Even   they   did   not   support   the   case   of   the


prosecution.     PW7,   the   supplier   at  VNR  Bar  and   an  eye-witness,


PW9, Mr. Thiruvengadam, the second eye-witness and PW10, Mr.


Sheshidhar,   the   third   eye-witness   who   were   examined   to


corroborate the evidence of PW1 openly stated contrary to the case


                                                18



of the prosecution and did not support the version and statement


of PW1.  The trial Court noticed a number of other weaknesses in


the   case   of   the   prosecution,   including   the   evidence   of   PW1.     It


found   that   the   statement   of   PW1   was   not   free   of   suspicion,


particularly   when   there   was   no   evidence   to   corroborate   even   his


statement.   The Court doubted the recovery and also the manner


in   which   the   recovery   was   made   and   sought   to   be   proved   before


the   Court   in   face   of   the   fact   that   all   the   recovery   witnesses   had


turned   hostile   and   had   bluntly   denied   their   presence   during   the


recovery   of   knives.     The   trial   court   also,   while   examining   the


statement   of   the   doctor   and   the   post-mortem   report,   Ex.P9,


returned the finding that there were as many as ten injuries found


on   the   body   of   the   deceased   and   the   opinion   of   the   doctor   was


that the death of the deceased was due to shock and hemorrhage


as   a   result   of   stab   injuries   sustained   and   even   the   medical


evidence   did   not   support   the   case   of   the   prosecution.     The


accused had suffered certain injuries upon his hand and fingers.


Referring   to   these   observations,   the   trial   court   had   returned   the


finding of acquittal of both the accused.




10.    The   judgment   of   the   High   Court,   though   to   some   extent,


reappreciates the evidence but has not brought out as to how the


trial   court's   judgment   was   perverse   in   law   or   in   appreciation   of


                                                19



evidence   or   whether   the   trial   court's   judgment   suffered   from


certain   erroneous   approach   and   was   based   on   conjectures   and


surmises   in   contradistinction   to   facts   proved   by   evidence   on


record.     A   very   vital   distinction   which   the   Court   has   to   keep   in


mind   while   dealing   with   such   appeals   against   the   order   of


acquittal is that interference by the Court is justifiable only when


a   clear   distinction   is   kept   between   perversity   in   appreciation   of


evidence and merely the possibility of another view.  It may not be


quite   appropriate   for   the   High   Court   to     merely   record   that   the


judgment   of   the   trial   court   was   perverse   without   specifically


dealing   with   the   facets   of   perversity   relating   to   the   issues  of   law


and/or   appreciation   of   evidence,   as   otherwise   such   observations


of the High Court may not be sustainable in law.




11.    Now, we come to the second submission raised on behalf of


the   appellant   that   the   material   witness   has   not   been   examined


and the reliance cannot be placed upon the sole testimony of the


police   witness   (eye-witness).     It   is   a   settled   proposition   of   law   of


evidence that it is not the number of witnesses that matters but it


is   the   substance.     It   is   also   not   necessary   to   examine   a   large


number of witnesses if the prosecution can bring home the guilt of


the accused even with a limited number of witnesses.  In the case


of  Lallu   Manjhi     and   Anr.   vs.     State   of   Jharkhand  (2003)   2   SCC


                                               20



401, this Court had classified the oral testimony of the witnesses


into three categories:-


   a. Wholly reliable;


   b. Wholly unreliable;   and


   c. Neither wholly reliable nor wholly unreliable.


12.    In   the   third   category   of   witnesses,   the   Court   has   to   be


cautious and see if the statement of such witness is corroborated,


either   by   the   other   witnesses   or  by   other   documentary  or   expert


evidence.  Equally well settled is the proposition of law that where


there   is   a   sole   witness   to   the   incident,   his   evidence   has   to   be


accepted   with   caution   and   after   testing   it   on   the   touchstone   of


evidence   tendered   by   other   witnesses   or   evidence   otherwise


recorded.     The   evidence   of   a   sole   witness   should   be   cogent,


reliable and must essentially fit into the chain of events that have


been stated by the prosecution.  When the prosecution relies upon


the testimony of a sole eye-witness, then such evidence has to be


wholly reliable and trustworthy.   Presence of such witness at the


occurrence   should   not   be   doubtful.   If   the   evidence   of   the   sole


witness is in conflict with the other witnesses, it may not be safe


to make such a statement as a foundation of the conviction of the


accused.  These are the few principles which the Court has stated


consistently   and   with   certainty.    Reference   in  this  regard   can   be


                                                21



made to the cases of Joseph  v.  State of Kerala (2003) 1 SCC 465


and  Tika Ram    v.   State  of  Madhya Pradesh  (2007)   15  SCC  760.


Even in the case of  Jhapsa Kabari    and  Others v.   State  of Bihar


(2001) 10 SCC 94, this Court took the view that if the presence of


a witness is doubtful, it becomes a case of conviction based on the


testimony   of   a   solitary   witness.     There   is,   however,   no   bar   in


basing   the   conviction   on   the   testimony   of   a   solitary   witness   so


long as the said witness is reliable and trustworthy.


13.    In   the   case   of  Jhapsa   Kabari  (supra),   this   Court   noted   the


fact that simply because one of the witnesses (a 14 years old boy)


did not name the wife of the deceased in the  fardbayan, it would


not in any way affect the testimony of the eye-witness i.e. the wife


of the deceased, who had given graphic account of the attack on


her   husband   and   her   brother-in-law   by   the   accused   persons.


Where   the   statement   of   an   eye-witness   is   found   to   be   reliable,


trustworthy   and   consistent   with   the   course   of   events,   the


conviction can be based on her sole testimony.  There is no bar in


basing the conviction of an accused on the testimony of a solitary


witness as long as the said witness is reliable and trustworthy.


14.    In   the   present   case,   the   sole   eye-witness   is   stated   to   be   a


police   officer   i.e.   P.W.-1.   The   entire   case   hinges   upon   the


trustworthiness,   reliability   or   otherwise   of   the   testimony   of   this


                                                 22



witness.   The contention raised on behalf of the appellant is that


the   police   officer,   being   the   sole   eye-witness,   would   be   an


interested witness, and in that situation, the possibility of a police


officer falsely implicating innocent persons cannot be ruled out.


15.    Therefore,   the   first   question   that   arises   for   consideration   is


whether   a   police   officer   can   be   a   sole   witness.     If   so,   then   with


particular   reference   to   the   facts   of   the   present   case,   where   he


alone   had   witnessed   the   occurrence   as   per   the   case   of   the


prosecution.  It cannot be stated as a rule that a police officer can


or cannot be a sole eye-witness in a criminal case.   It will always


depend upon the facts of a given case.   If the testimony of such a


witness  is  reliable,  trustworthy,   cogent  and  duly   corroborated  by


other   witnesses   or   admissible   evidences,   then   the   statement   of


such witness cannot be discarded only on the ground that he is a


police officer and may have some interest in success of the case.


It is only when his interest in the success of the case is motivated


by overzealousness to an extent of his involving innocent people;


in   that   event,   no   credibility   can   be   attached   to   the   statement   of


such witness.


16.    This   Court   in   the   case   of  Girja   Prasad  (supra)  while


particularly referring to the evidence of a police officer, said that it


is not the law that Police witnesses should not be relied upon and


                                               23



their   evidence   cannot   be   accepted   unless   it   is   corroborated   in


material   particulars   by   other   independent   evidence.   The


presumption applies as much in favour of a  police officer as  any


other person.   There is also  no rule  of law which lays down that


no conviction can be recorded on the testimony of a police officer


even if such evidence is otherwise reliable and trustworthy.     The


rule   of   prudence   may   require   more   careful   scrutiny   of   their


evidence.       If   such   a   presumption   is   raised   against   the   police


officers   without   exception,   it   will   be   an   attitude   which   could


neither do credit to the magistracy nor good to the public, it can


only bring down the prestige of the police administration.


17.    Wherever,   the   evidence   of   the   police   officer,   after   careful


scrutiny, inspires  confidence and  is found  to  be trustworthy  and


reliable,   it   can   form   the   basis   of   conviction   and   the   absence   of


some   independent   witness   of   the   locality   does   not   in   any   way


affect   the   creditworthiness   of   the   prosecution   case.       The   courts


have   also   expressed   the   view   that   no   infirmity   attaches   to   the


testimony of the police officers merely because they belong to the


police   force   and   there   is   no   rule   of   law   or   evidence   which   lays


down   that   conviction   cannot   be   recorded   on   the   evidence   of   the


police   officials,   if   found   reliable,   unless   corroborated   by   some


independent evidence.     Such reliable and trustworthy statement


                                                24



can form the basis of conviction.  Rather than referring to various


judgments of this Court on this issue, suffices it to note that even


in   the   case   of  Girja   Prasad  (supra),   this   Court   noticed   the


judgment of the Court in the case of  Aher Raja Khima v. State  of


Saurashtra  AIR 1956 SC 217, a judgment pronounced more than


half   a   century   ago   noticing   the   principle   that   the   presumption


that a person acts honestly applies as much in favour of a police


officer   as   of   other   persons   and   it   is   not   a   judicial   approach   to


distrust   and   suspect   him   without   good   grounds   therefor.     This


principle has been referred to in a plethora of other cases as well.


Some   of   the   cases   dealing   with   the   aforesaid   principle   are   being


referred hereunder.


18.    In  Tahir   v.   State   (Delhi)  [(1996)   3   SCC   338],   dealing   with   a


similar question, the Court held as under:-


              "6.   ... .In  our  opinion no infirmity  attaches  to

              the   testimony   of   the   police   officials,   merely

              because   they   belong   to   the   police   force   and

              there   is   no   rule   of   law   or   evidence   which   lays

              down that conviction cannot be recorded on the

              evidence of the police officials, if found reliable,

              unless   corroborated   by   some   independent

              evidence.   The Rule of Prudence, however, only

              requires   a   more   careful   scrutiny   of   their

              evidence,   since   they   can   be   said   to   be

              interested in the result of the case projected by

              them.       Where   the   evidence   of   the   police

              officials,   after   careful   scrutiny,   inspires

              confidence and is found to be trustworthy  and

              reliable, it can form basis of conviction and the

              absence   of   some   independent   witness   of   the


                                                25



              locality to lend corroboration to their evidence,

              does not in any way affect the creditworthiness

              of the prosecution case."


19.    The   obvious   result   of   the   above   discussion   is   that   the


statement of a police officer can be relied upon and even form the


basis of conviction when it is reliable, trustworthy and preferably


corroborated by other evidence on record.


20.    It   is   also   not   always   necessary   that   wherever   the   witness


turned hostile, the prosecution case must fail.   Firstly, the part of


the statement of such hostile witnesses that supports the case of


the   prosecution   can   always   be   taken   into   consideration.


Secondly, where the sole witness is an eye-witness who can give a


graphic account of the events which he had witnessed, with some


precision   cogently   and   if   such   a   statement   is   corroborated   by


other evidence, documentary or otherwise, then such statement in


face   of   the   hostile   witness   can   still   be   a   ground   for   holding   the


accused guilty of the crime that was committed.     The Court has


to act with greater caution and accept such evidence with greater


degree of care in order to ensure that justice alone is done.   The


evidence   so   considered   should   unequivocally   point   towards   the


guilt of the accused.


21.    Now, let us revert to the facts of the present case in light of


the   above   principles.     As   already   noticed,   the   prosecution   had


                                               26



examined   as   many   as   11   witnesses,   out   of   which   six   witnesses


were   the   material   witnesses.       The   prosecution   had   cited   PW-7,


PW-9   and   PW-10   as   eye-witnesses   to   the   occurrence.       PW-7,


Ganesh   denied   that   he   had   made   any   statement   to   the   Police.


The   prosecutor   was   granted   permission   to   cross-examine   him


after having been declared hostile.     He denied the entire case of


the   prosecution,   however,   strangely   he   was   not   confronted   with


his   statement   under   Section   161   Cr.P.C.   for   the   reasons   best


known to the prosecutor. PW-9 was cited as another eye-witness,


who   completely   denied   the   case   of   the   prosecution.   Again,   as   it


appears   from   the   record,   he   was   not   confronted   with   his


statement under Section  161 Cr.P.C., though a vague suggestion


to   that   effect   was   made   by   the   prosecutor.       PW-10   is   the   third


eye-witness   who   was   cited.       He   denied   that   he   made   any


statement   to   the   police   on   7th  December,   1998   and   said   that   he


never   told   the   police   that   the   accused   had   come   chasing   one


person   near   the   VNR   Bar.     He   denied   any   knowledge   of   the


incident.


22.    PW-8,   Ganesha,   was   a   witness   to   the   recovery   of   the   knife


vide Ext. P-6.   He, in his statement, admitted his signature on the


recovery   memo,   but   stated   that   he   did   not   know   why   the   Police


had obtained his signatures.    Even the other three witnesses i.e.


                                              27



PW-2   -   PW-4   and   PW-6   were   witnesses   to   seizure   memos   vide


which recoveries were effected, including the knife and clothes of


the   deceased.       PW-3,   who   admitted   his   signatures   on   Ex.   P4,


stated   that   his   signatures   were   obtained   in   the   Police   Station.


PW-2 was a material witness of the prosecution.     He denied that


he   had   ever   seen   the   accused   and   had   gone   to   make   any


complaint   in   the   Police   Station,   Srirampur   in   regard   to   any


incident that had happened in his shop.   He denied that anything


was seized in his presence.   Ext. P4, blood stained pant, is stated


to have been recovered in his presence.


23.    Now, we are left with two witnesses PW-1 and PW-11.  PW-1


is   the   complainant   and   is   a   police   officer.     PW-11   is   the


Investigating Officer.


24.    PW-1 had stated that while he was going back after finishing


his duty on 7th December, 1998 at about 10.45 p.m.  at 5th Cross,


he   saw  three  persons  chasing   another  person.    The   person,  who


was   being   chased   fell   in   front   of   the   VNR   Bar   and   the   accused


Govindaraju   was   one   of   the   three   persons   who   were   chasing   the


victim.       When   he   was   about   to   reach   the   spot,   he   heard   the


accused Govindaraju telling one of the other persons Govardhan,


to   run   away  as the   Police  were  coming.      PW-1  stopped  his  bike


and started chasing those assailants who were running away in a


                                                28



Conservancy,   but   they   escaped.       PW-1   came   back   to   the   spot.


Thereafter,   a   Police   Constable  and  a   Head   Constable  came   there


and   with   their   assistance,   he   shifted   the   victim   to   the   K.C.G.


Hospital.     The   doctors   after   examining   the   victim   declared   him


`brought   dead'.     PW-1,   on   checking   the   pockets   of   the   victim,


found   his   identity   card   from   which   he   got   his   details.       He


returned   to   the   police   station,   rang   up   the   higher   officers   and


registered   a   case  suo-moto  in   Criminal   Appeal   No.   358   of   1998


whereafter an FIR was registered.   Ext. P-1, bore his signature at


Ext.   P-1(a)   and   the   same   was   later   handed   over   for   further


investigation to PW-11.


25.      The first and foremost point that invites the attention of this


Court is that according to the PW-1, he was nearly 30 yards away


from the place where the victim fell on the ground and he saw the


accused   persons   chasing   the   victim   from   about   a   distance   of   75


feet.


26.      As   per   his   statement   in   cross-examination,   he   was   on   a


motor   cycle.   It   is   not   understandable   why   he   could   not   increase


the   speed   of   his   motor   cycle   so   as   to   cover   the   distance   of   30


yards   before   the   injuries   were   inflicted   on   the   deceased   by   the


accused.   Surely,   seeing   the   police   at   such   a   short   distance,   the


accused,   if   they   were   involved   in   the   crime,   would   not   have   the


                                               29



courage of stabbing the victim (deceased) in front of a police officer


who   was   carrying   a   gun.       In   the   FIR   (Ex.   P-2)   he   had   not


mentioned the names of the accused.   He did not even mention to


PW-11   as   to   who   the   assailants   were.       On   the   contrary,   in   the


post-mortem   report,   Ex.   P-9,   it   has   been   recorded   that   as   per


police   requisition   in   Forms   14(i)   and   (ii)   the   victim   was   said   to


have   been   assaulted   with   knife   by   some   miscreants   on   7th


December,   1998   and   he   was   pronounced   dead   on   arrival   to   the


hospital.


27.    In   furtherance   to   the   proceedings   taken   out   under   Section


174   of   the   Cr.P.C,   it   may   be   noticed   that   the   brother   of   the


deceased Shri Ananda had identified the body of the deceased and


made a statement before the Police saying that at the midnight of


7th  December, 1998, wife of the deceased had come and informed


him   that   her   husband   was   killed   by   some   goons   at   Srirampur.


Before   this,   a   man   named   Govindaraju   and   the   deceased   had


lodged Police complaint that there was a fight between them.  This


itself shows that Govindaraju had approached the Police.  Thus, it


is quite unbelievable that he would indulge in committing such a


heinous crime.  Furthermore, the entire record before us does not


reflect   the   name   of   the   third   accused,   who   is   stated   to   be


absconding.     This   certainly   is   a   circumstance   not   free   of   doubt.


                                              30



PW1 had seen three  accused  chasing and then  inflicting  injuries


upon the deceased.   It is quite strange to note that PW11 as well


as   PW1   could   not   even   find   the   name   of   the   third   accused   who


was involved in the crime.  Once the Court critically analyses and


cautiously   examines   the   prosecution   evidence,   the   gaps   become


more and more widened and the lacunae become more significant.


28.    This   clearly   shows   that   not   only   PW-1   was   unaware   of   the


names   and   identity   of   the   assailants,   but   PW-11   was   equally


ignorant.       It   is   not   disputed   that   PW-1   was   carrying   a   weapon


and   he   could   have   easily   displayed   his   weapon   and   called   upon


the accused to stop inflicting injuries upon the deceased or to not


run away.     But for reasons best known to PW-1, nothing of this


sort was done by him.


29.    There   is   no  explanation   on   record   as   to   how   PW-1  came   to


know   the   name   of   the   accused,   Govindaraju.     Similar   is   the


situation   with   regard   to   the   name   of   the   third   accused   who   had


been absconding and in whose absence the trial proceeded.  As it


appears, the statement of PW-1 implicating the accused does not


inspire   confidence.   Another   aspect   is   that   all   the   witnesses   who


were stated to be eye-witnesses like PW-2, PW-3, PW-7, PW-9 and


PW-10   turned   hostile   and   have   not   even   partially   supported   the


case   of  the   prosecution.      Thus,  the  statement  of  PW-1  does  not


                                                31



find   any   corroboration.   For   instance,   according   to   PW-1,   the


accused fell on the ground in front of the VNR Bar.     PW-7 is the


crucial eye-witness who, as per the version of the prosecution, is


stated to have been claimed that he was standing in front of VNR


Bar and had seen the occurrence.


30.    He   not   only   denied   that   he   knew   the   deceased   and   the


accused, but also that he had made any statement to the police.


Thus,   the   evidence   of   PW-7   completely   destroys   the   evidence   of


PW-1   in   regard   to   the   most   crucial   circumstance   of   the


prosecution   evidence.       Besides   this,   all   other   witnesses   who,


according   to   the   prosecution,   had   seen   the   accused   committing


the crime completely turned hostile and in no way supported the


case of the prosecution.   The statement of PW-1 therefore, suffers


from   improbabilities   and   is   not   free   of   suspicion.   Its   non-


corroboration   by   other   witnesses   or   evidences   adds   to   the


statement of PW-1 lacking credence and reliability.


31.    PW-11 is the Investigating Officer.   He verified the FIR, went


to the hospital and after deputing a Constable to take care of the


dead   body,   he   left   for   the   scene   of   occurrence.     Upon   reaching


there,  he  prepared  a Spot  Mahazar in presence  of the  witnesses,


collected   blood   stains   in   plastic   and   sealed   it.     At   about   15   feet


away from the place of occurrence, he found a pair of chappal and


                                               32



a   car   belonging   to   the   deceased   which   was   also   seized   by   him.


He   had   recorded   statements   of   various   witnesses.       Goverdhan


had   made   a   voluntary   statement   and   got   recovered   the   blood


stained knife alongwith blood stained clothes, which were taken in


to custody.   The post mortem report Ext. P-9 was also received by


him.     The blood stained clothes were sent to the FSL for opinion


and   the   report   thereof   was   received   as   Ext.   P-15.     The   weapons


were produced before the doctor and his opinion was sought.  


32.    Even   in   relation   to   this   witness   (PW-11),   there   are   certain


lurking   doubts.       Firstly,   it   may   be   noticed   that   certain   very


important   witnesses   were   not   examined   or   got   examined   by   this


investigating   officer.       The   doctor   who   had   performed   the   post


mortem and prepared the Post Mortem Report, Ext. P-9, was not


produced  before the Court.     The Head Constable who had come


to   the   help   of   PW-1   for   taking   the   deceased   to   the   hospital   and


was   present   immediately   after   the   occurrence   was   also   not


examined.   The   Forensic   Science   Laboratory   (for   short   "the   FSL")


Report, Ext. P-15, was placed on record, however, no person from


the FSL, Bangalore or Calcutta was examined in this case, again


for reasons best known to the Investigating Officer/prosecution.


33.    At   the   cost   of   repetition,   we   may   refer   to   the   contents   of


Ex.P15,   the   report   of   the   FSL,   Bangalore.     It   is   recorded   therein


                                                33



that   the   specimen   cuttings/scrapings   were   referred   to   Serologist


Calcutta   for   its   origin   and   grouping   results.     As   and   when   the


report   would   be   received   from   Bangalore,   the   same   would   be


forwarded to the Court, which never happened.


34.    The   items   at   Sr.   no.   1   to   8,   which   included   clothes,   blood


clots, one chaku were found to be blood stained here and there on


the   blade   etc.       No   other   finding   in   this   regard   was   recorded   on


Ext.   P-15,   though   it   was   stated   to   be   a   result   of   the   analysis.


None   was   even   examined   from   the   FSL.   Thus,   the   report   of   the


FSL has been of no help to the prosecution.


35.    Now, we will come to the recoveries which are stated to have


been made in the present case, particularly the weapon of crime.


Firstly,   these   recoveries   were   made   not   in   conformity   with   the


provisions   of   Section   27   of   the   Indian   Evidence   Act,   1872.     The


memos   do   not   bear   the   signatures   of   the   accused   upon   their


disclosure statements.  First of all, this is a defect in the recovery


of weapons  and secondly,  all the recovery  witnesses  have turned


hostile,   thus   creating   a   serious   doubt   in   the   said   recovery.


According   to   PW4   and   PW5,   nothing   was   recovered   from   the


appellant Govindaraju.   According to PW6 and PW8, nothing was


recovered from or at the behest of the accused, Goverdhan.


36.    Ex.Mo1 was the knife recovered from Govindaraju while Mo2


                                                 34



and   Mo3   were   the   knife   and   the   blood-stained   shirt   recovered


from the accused, Goverdhan.  Ex.Mo1, the weapon of offence, did


not contain any blood stain. Ex.Mo2, the knife that was recovered


from   the   conservancy   at   the   behest   of   the   accused,   Goverdhan


was blood-stained.  Ex.P15, the report of the FSL, shows that item


no.7 `one chaku' was blood-stained.  However, the prosecution has


taken   no  steps   to   prove   whether   it   was   human   blood,   and   if   so,


then   was   it   of   the   same   blood   group   as   the   deceased   or   not.


Certainly,   we   should   not   be   understood   to   have   stated   that   a


police   officer   by   himself   cannot   prove   a   recovery,   which   he   has


affected   during   the   course   of   an   investigation   and   in   accordance


with   law.       However,   it   is   to   be   noted   that   in   such   cases,   the


statement   of   the   investigating   officer   has   to   be   reliable   and   so


trustworthy   that   even   if   the   attesting   witnesses   to   the   seizure


turns hostile, the same can still be relied upon, more so, when it


is   otherwise   corroborated   by   the   prosecution   evidence,   which   is


certainly not there in the present case.


37.    Ext.   P-9   is   the   post   mortem   report   of   the   deceased.       The


injuries   on   the   body   of   the   deceased   have   been   noticed   by   the


doctor as follows:-




             "(1)   Horizontally   placed   stab   wound   present   over

             front   and   right   side   of   chest   situated   9   cms   to   the

             right   of   midline   and   lower   border   of   right   nipple


                                                35



             measuring   3.5cm   x   1.5cms   x   chest   cavity   deep.

             Margins  are  clear  cut, inner  end  pointed  outer  end

             blunt.


            (2) Obliquely placed stab wound present over front of

            left   side   chest,   situated   over   the   left   nipple,   it   is

            placed 11 cms to the left of mid line, measuring 2.5

            cms   x   1cm   x   chest   cavity   deep,   margins   are   clear

            cut,   upper   inner   end   is   pointed,   lower   outer   end   is

            blunt.


             (3)   Horizontally   placed   stab   wound   present   over

             front and outer aspect of left side of chest, situated

             5   cms   below   the   level  of   left  nipple,   17   cms   to   the

             left of mid line measuring 4 cm x 1.5 cms x 5 cms,

             directed   upwards   and   to   the   right   in   the   muscle

             plane,   inner   end   is   pointed,   outer   end   is   blunt,

             margins are clean cut.


             (4) Superficially incised wound present over front of

             left side chest, horizontally placed measuring 6 cm

             x 1 cms.


             (5) Obliquely placed stab wound present over front

             and right side of chest, situated 1 cm to the right of

             mid-line   and   4   cm   below   the   level   of   right   nipple

             measuring   2   cm   X   1   cm   X   3   cms,   directed

             upwards,   backwards   to   the   left   in   the   muscle

             plane, margins are clean out.     Upper inner end is

             pointed and lower outer end is blunt.




38.    From   a   bare   reading   of   the   above   post-mortem   report,   it   is


clear that there were as many as 10 injuries on the person of the


deceased.     The doctor had further opined that death was due to


shock   and   hemorrhage   as   a   result   of   stab  injuries   found   on   the


chest.



39.    The   injuries   were   piercing  injuries   between   the   intercasal


                                              36



space   and   the   stab   injuries   damaged   both   the   heart   and   the


lungs.      It  has been noticed  by the High Court  that  according  to


PW-1,   the   victim   was   not   able   to   talk.     The   post   mortem   report


clearly establishes injuries by knife.   But the vital question is who


caused   these   injuries.   It   takes   some   time   to   cause   so   many


injuries, that too, on the one portion of the body i.e. the chest.   If


the statement of PW1 is to be taken to its logical conclusion, then


it   must   follow   that   when   the   said   witness   saw   the   incident,   the


accused   Govindaraju   was   not   stabbing   the   deceased   but,   was


watching   the   police   coming   towards   them   and   had   called   upon


one   of   the   other   accused,   Goverdhan,   to   run   away   as   the   police


was   coming.       Obviously,   it   must   have   also   taken   some   time   for


the   accused   to   inflict   so   many   injuries   upon   the   chest   of   the


deceased.   Thus, this would have provided sufficient time to PW1


to reach the spot, particularly when, according to the said witness


he was only at a distance of 30 yards and was on a motorcycle.  At


this   point   of   time,   stabbing   had   not   commenced   as   the   accused


were alleged  to be chasing the  victims.    Despite of all  this, PW-1


was not able to stop the further stabbing and/or running away of


the   accused,   though   he   was   on   a   motor   cycle,   equipped   with   a


weapon and in a place where there were shops such as the VNR


Bar and also nearby the conservancy area, which pre-supposes a


                                                37



thickly   populated   area.       Thus,   the   statement   of   PW-1   does   not


even find corroboration from the medical evidence on record.  The


High Court in its judgment has correctly noticed that the place of


incident   in   front   of   VNR   Bar   of  Sriramapuram   was   not   really   in


dispute   and   having   regard   to   the   time   and   place,   it   was   quite


possible, at least for the persons working in the Bar, to know what


exactly had happened.  With this object, PW-7 was produced who,


unfortunately,   did   not   support   the   case   of   the   prosecution.


Having   noticed   this,   we   are   unable   to   appreciate   the   reasons   for


the High Court to disturb the finding of acquittal recorded by the


learned trial Court.  


40.    There is still another facet of this case which remains totally


unexplained by PW-1.   As per his statement Head Constable 345


and   Police   Constable   5857   had   come   on   the   spot.       It   was   with


their help that he had shifted the victim to the KCG Hospital.  It is


not understandable as to why he could not send the body of the


victim to the hospital with one of them and trace the accused  in


the   conservancy   where   they   had   got   lost,   along   with   the   help   of


the   Constable/Head   Constable,   as   the   case   may   be.     This   is   an


important link which is missing in the case of the prosecution, as


it   would   have   given   definite   evidence   in   regard   to   the   identity   of


the accused as well as would have made it possible to arrest the


                                                38



accused at the earliest.


41.    The High Court, while setting aside the judgment of acquittal


in   favour   of   the   appellant   Govindaraju,   has   also   noticed   that   it


may   not   have   been   possible   for   the   PW-1   to   notice   the   details


explained   in   the   complaint   Ext.   P-1,   while   riding   a   motor   bike.


This   observation   of   the   High   Court   is   without   any   foundation.


Firstly, PW-1 himself could have stated so, either before the Court


or in Ext. P-1.   Secondly, as per his own statement, his distance


was only 75 feet when he noticed the accused chasing the victim


and   only   30   feet   when   the   victim   fell   on   the   ground.     Thus,


nothing   prevented   an   effective   and   efficient   police   officer   from


precluding   the   stabbing.     If   this   version   of   the   PW-1   is   to   be


believed   then   nothing   prevented   him   from   stopping   the


commission   of   the   crime  or  at  least   immediately   arresting,   if   not


all,   at   least   one   of   the   accused,   since   he   himself   was   carrying   a


weapon and admittedly the accused were unarmed, that too, in a


public place like near VNR Bar.


42.    The High Court  has also observed that  "PW-1 noticed  when


victim   was   being   chased   by   assailants.   This   suggests   that   there


must have been something else earlier to that event, some injuries


might   have   been   caused   to   the   victim.   On   the   other   hand,   it


indicates that victim  was aware of some danger  to his life at the


                                              39



hands   of   the   assailants.   Therefore,   he   was   running   away   from


them but the assailants were chasing him holding the weapons in


their hands".     The High Court, therefore, convicted the appellant


on   the   presumption   that   he   must   have   stabbed   him.       It   is   a


settled   canon   of   appreciation   of   evidence   that   a   presumption


cannot be raised against the accused either of fact or in evidence.


Equally   true   is   the   rule   that   evidence   must   be   read   as   it   is


available on record.    It was for PW-1 to explain and categorically


state   whether   the   victim   had   suffered   any   injuries   earlier   or   not


because both, the accused and the victim, were within the sight of


PW-1 and the former were chasing the latter.


43.    We   are   unable   to   contribute   to   this   presumption   as   it   is


based on no evidence.   The case would have been totally different,


if   PW-2,   PW-7,   PW-9   and   PW-10   had   supported   the   case   of   the


prosecution.   Once,   all   these   witnesses   turned   hostile   and   the


statement of PW-1 is  found to be  not  trustworthy,  it will  be  very


difficult for any court to return a finding of conviction in the facts


and circumstances of the present case.


44.    There   is   certainly   some   content   in   the   submissions   made


before   us   that   non-production   of   material   witnesses   like   the


doctor, who performed the post mortem and examined the victim


before he was declared dead as well as of the Head Constable and


                                                      40



the   Constable   who   reached   the   site   immediately   upon   the


occurrence and the other two witnesses turning hostile, creates a


reasonable   doubt   in   the   case   of   the   prosecution   and   the   court


should also draw adverse inference against the prosecution for not


examining the material witnesses.  We have already dwelled upon


appreciation   of   evidence   at   some   length   in   the   facts   and


circumstances of the present case.   There is deficiency in the case


of   the   prosecution   as   it   should   have   proved   its   case   beyond


reasonable doubt with the help of these witnesses, which it chose


not to produce before the Court, despite their availability.   In this


regard, we may refer to the judgment of this Court in the case of


Takhaji  Hiraji  v. Thakore Kubersing Chamansing  and  Ors.  [(2001)


6 SCC 145] wherein this Court held as under:-




          "19.   So   is   the   case   with   the   criticism   levelled   by

          the   High   Court   on   the   prosecution   case   finding

          fault         therewith         for         non-examination         of

          independent witnesses. It is true that if a material

          witness,   who   would   unfold   the   genesis   of   the

          incident   or   an   essential   part   of   the   prosecution

          case,   not   convincingly   brought   to   fore   otherwise,

          or   where   there   is   a   gap   or   infirmity   in   the

          prosecution   case   which   could   have   been  supplied

          or made good by examining a witness who though

          available   is   not   examined,   the   prosecution   case

          can   be   termed   as   suffering   from   a   deficiency   and

          withholding   of   such   a   material   witness   would

          oblige   the   court   to   draw   an   adverse   inference

          against   the   prosecution   by   holding   that   if   the

          witness   would   have   been   examined   it   would   not

          have supported the prosecution case. On the other


                                               41



           hand if already overwhelming evidence is available

           and examination of other witnesses would only be

           a repetition or duplication of the evidence already

           adduced, non-examination of such other witnesses

           may   not   be   material.   In   such   a   case   the   court

           ought   to   scrutinise   the   worth   of   the   evidence

           adduced.   The   court   of   facts   must   ask   itself   --

           whether   in   the   facts   and   circumstances   of   the

           case,   it   was   necessary   to   examine   such   other

           witness,   and   if   so,   whether   such   witness   was

           available   to   be   examined   and   yet   was   being

           withheld from the  court. If the answer be positive

           then   only   a   question   of   drawing   an   adverse

           inference   may   arise.   If   the   witnesses   already

           examined   are   reliable   and   the   testimony   coming

           from their mouth is unimpeachable the court can

           safely   act   upon   it,   uninfluenced   by   the   factum   of

           non-examination of other witnesses. In the present

           case   we   find   that   there   are   at   least   5   witnesses

           whose   presence   at   the   place   of   the   incident   and

           whose having seen the incident cannot be doubted

           at all. It is not even suggested by the defence that

           they  were not present at the  place  of the  incident

           and   did   not   participate   therein.   The   injuries

           sustained   by   these   witnesses   are   not   just   minor

           and   certainly   not   self-inflicted.   None   of   the

           witnesses   had   a   previous   enmity   with   any   of   the

           accused persons and there is apparently no reason

           why   they   would   tell   a   lie.   The   genesis   of   the

           incident is brought out by these witnesses. In fact,

           the   presence   of   the   prosecution   party   and   the

           accused persons in the chowk of the village is not

           disputed........"




45.    The   applicability   of   the   principle   of   `adverse   inference'   pre-


supposes   that   withholding   was   of   such   material   witnesses   who


could   have   stated   precisely   and   cogently   the   events   as   they


occurred.     Without   their   examination,   there   would   remain   a


vacuum   in   the   case   of   the   prosecution.     The   doctor   was   a   cited


                                               42



witness   but   was   still   not   examined.     The   name   of   the   Head


Constable   and   the   Constable   appears   in   the   Police   investigation


but still they were not examined.   It is true that in their absence


the post mortem report and FSL report were exhibited and could


be   read   in   evidence.     But   still   the   lacuna   in   the   case   of   the


prosecution   remains   unexplained   and   the   chain   of   events


unconnected.     For   instance,   the   Head   Constable   could   have


described   the   events   that   occurred   right   from   the   place   of


occurrence   to   the   death   of   the   deceased.     They   could   have   well


explained as to why it was not possible for one Police Officer, one


Head Constable and one Constable to apprehend all the accused


or   any   of   them   immediately   after   the   occurrence   or   even   make


enquiry   about   their   names.     Similarly,   the   doctor   could   have


explained   whether   inflicting   of   such   injuries   with   the   knife


recovered   was   even   possible   or   not.     The   expert   from   the   FSL


could   have   explained   whether   or   not   the   weapons   of   offence


contained   human   blood   and,   if   so,   of   what   blood   group   and


whether   the   clothes   of   the   deceased   contained   the   same   blood


group   as   was   on   the   weapons   used   in   the   commission   of   the


crime.     The   uncertainties   and   unexplained   matters   of   the   FSL


report   could   have   been   explained   by   the   expert.     There   is   no


justification   on   record   as   to   why   these   witnesses   were   not


                                              43



examined   despite   their   availability.     This   Court   in   the   case   of


Takhaji   Hiraji  (supra)   clearly   stated   that   material   witness   is   one


who would unfold the genesis of the incident or an essential part


of the prosecution case and by examining such witnesses the gaps


or infirmities in the case of the prosecution could be supplied.   If


such   a   witness,   without   justification,   is   not   examined,   inference


against the prosecution can be drawn by the Court.  The fact that


the   witnesses   who   were   necessary   to   unfold   the   narrative   of   the


incident   and   though   not   examined,   but   were   cited   by   the


prosecution,   certainly   raises   a   suspicion.     When   the   principal


witnesses   of   the   prosecution   become   hostile,   greater   is   the


requirement   of   the   prosecution   to   examine   all   other   material


witnesses   who   could   depose   in   completing   the   chain   by   proven


facts.  This view was reiterated by this Court in the case of Yakub


Ismailbhai Patel v. State of Gujarat [(2004) 12 SCC 229].




46.    We   are   certainly   not   indicating   that   despite   all   this,   the


statement   of   the   Police   Officer   for   recovery   and   other   matters


could not be believed and form the basis of conviction but where


the statement of such witness is not reliable and does not aspire


confidence,   then   the   accused   would   be   entitled   to   the   benefit   of


doubt   in   accordance   with   law.     Mere   absence   of   independent


witnesses when the Investigating Officer recorded the statement of


                                              44



the accused and the article was recovered pursuant thereto, is not


a   sufficient   ground   to   discard   the   evidence   of   the   Police   Officer


relating   to   recovery   at   the   instance   of   the   accused.   {See  State


Government   of   NCT   of   Delhi  v.  Sunil   &   Anr.  [(2001)   1   SCC   652]}.


Similar would be the situation where the attesting witnesses turn


hostile,   but   where   the   statement   of   the   Police   Officer   itself   is


unreliable   then   it   may   be   difficult   for   the   Court   to   accept   the


recovery as lawful and legally admissible.   The official acts of the


Police should be presumed to be regularly performed and there is


no occasion for the courts to begin with initial distrust to discard


such evidence.




47.    In   the   present   case,   on   a   cumulative   reading   and


appreciation   of   the   entire   evidence   on   record,   we   are   of   the


considered view that the learned trial Court had not fallen in error


of   law   or   appreciation   of   evidence   in   accordance   with   law.     The


High   Court   appears   to   have   interfered   with   the   judgment   of


acquittal only on the basis that `there was a possibility of another


view'.  The prosecution must prove its case beyond any reasonable


doubt.   Such is not the burden on the accused.   The High Court


has acted on certain legal and factual presumptions which cannot


be sustained on the basis of the record before us and the principle


of  laws  afore-noticed.     The   case   of  the   prosecution,   thus,  suffers


                                                45



from   proven   improbabilities,   infirmities,   contradictions   and   the


statement   of   the   sole   witness,   the   Police   Officer,   PW1,   is   not


reliable and worthy of credence.




48.    For   the   reasons   afore-recorded   and   the   view   that   we   have


taken,   it   is   not   necessary   for   us   to   deal   with   the   legal   question


before us as to what would be the effect in law of the acquittal of


Govardhan   attaining   finality,   upon   the   case   of   the   present


appellant Govindaraju.    We  leave  the question of law,  Point  No.7


open.





49.    For   the   reasons   afore-stated,   we   allow   the   present   appeal


acquitting the appellant of the offence under Section 302 IPC.  He


be   set   at   liberty   forthwith   and   his   bail   and   surety   bonds   shall


stand discharged.





                                                      ...................................,J.

                                                      [A.K. Patnaik]




                                                      ...................................,J.

                                                      [Swatanter Kumar]

New Delhi;

March 15, 2012


           46




                 

a) Whether the Memorandum of Understanding dated 15th May, 2002, continues to subsist in favour of the Appellants? b) Whether the State Government is obliged to make recommendations for the grant of iron ore mines in

                                           REPORTABLE

                    IN THE SUPREME COURT OF INDIA



                    CIVIL APPELLATE JURISDICTION



                    CIVIL APPEAL NO.2790 OF 2012

              (Arising out of SLP(C)No.8567 of 2008)





BHUSHAN POWER & STEEL LTD. & ORS.                     ... APPELLANTS



             Vs.



STATE OF ORISSA & ANR.                                ... RESPONDENTS





                          J U D G M E N T





ALTAMAS KABIR, J.




1.    Leave granted.





2.    With   the   intention   of   setting   up   an   integrated   steel



plant   in   the   State   of   Orissa,   Bhushan   Limited,   entered   into



discussions   with   the   State   Government   in   2001   in   that


regard.        Pursuant   to   such   discussions,   Bhushan   Limited



applied   to   the   Industrial   Development   Corporation   of   India



(IDCO)   for   acquisition   of   land   measuring   1250   acres,   for



setting   up   the   proposed   plant   in   the   identified   villages   of



Thelkoloi,   Dhubenchhabrar   and   Khariapalli   (Lapanga)   in   the



District   of   Sambalpur.     On   13th  November,   2001,   Bhushan



Limited   applied   to   the   Industrial   Promotion   and   Investment



Corporation   of   Orissa   Ltd.   (IPICOL)   for   appraisal   and



recommendation   for   acquisition   of   land   for   the   aforesaid



purpose to IDCO.   Bhushan Limited also addressed two letters



to   the   Collector,   Sundergarh   and   Collector,   Keonjhar   on   28th



November,   2001,   applying   for   grant   of   lease   for   mining   of



iron   ore   for   use   in   the   proposed   plant.     The   applications



were   received   in   the   Collector's   office   on   3rd  December,



2001, 4th December, 2001 and 1st March, 2002.  On the basis of



such   applications   filed   by   Bhushan   Limited,   a   meeting   was



held   on   27th     March,   2002,   between   the   Chief   Secretary,



Government   of   Orissa   and   Bhushan   Limited,   in   which   the


Government   agreed   to   accord   due   priority   to   Bhushan   Limited



for   grant   of   suitable   iron   ore   areas   and   also   agreed   to



recommend   the   proposal   of   Bhushan   Limited   to   the   Government



of India for grant of a Coal Block.





3.    Thereafter,   meetings   were   held   between   Bhushan   Limited



and the representatives of the State Government and one such



meeting   was  held   on  24th  April,   2002,  under   the  Chairmanship



of   the   Chief   Minister,   relating   to   the   setting   up   of   the



steel   plant   at   Lapanga.     The   said   meeting   was   confirmed   by



IDCO   and   the   Water   Resources   Department   and   it   was   decided



to   prepare   a   Memorandum   of   Understanding   (MOU)   to   be   signed



by the parties for setting up of a 1.2 million tonnes steel



plant   under  Phase-I   and  a   2.8  million   tonnes  steel   plant  in



Phase-II   in  Lapanga,   in  the   District  of   Sambalpur.    The  MOU



contained   the   commitment   of   the   State   Government   to



recommend   to   the   Central   Government   grant   of   iron   ore   mines



to   the   Appellant   for   its   use   in   the   plant   to   be   set   up   at



Lapanga.     As   far   as   the   grant   of   the   iron   ore   mines   is


concerned, the State Government agreed to make the following



recommendations to the Central Government:





     a)    For   grant   of   96   million   tonnes   iron   ore



           reserves   in   Joda   Barbil   Sector   of   Keonjhar



           (Thakurani   area)   for   50   years   requirement   of



           the plant.





     b)    For   additional   128   million   tonnes   of   iron   ore



           reserves in Keora, District Sundergarh, to meet



           a   requirement   of   1.6   million   tonnes   for   50



           years.





     The total requirement of 200 million tonnes was split up



into   two   parts,   i.e.,   96   million   tonnes   and   128   million



tonnes   respectively,   and   the   same   were   to   be   met   from   the



Thakurani   mines   situated   in   the   Joda   Barbil   sector   and   from



the Keora area of Sundergarh District.


4.    Pursuant   to   the   aforesaid   understanding,   on   16th  May,



2002,   the   Government   of   Orissa   addressed   two   letters   to   the



Government   of   India,   in   its   Ministry   of   Steel   and   Ministry



of   Coal,   for   allotment   of   Jamkhani   and   Bijahan   Coal   Blocks



to   Bhushan   Limited.     In   aid   of   the   decision   to   set   up   the



steel   plant,   the   Department   of   Energy   issued   a   No   Objection



Certificate   (NOC)   for   setting   up   of   a   power   plant   at



Thelkoloi   in   the   name   of   Bhushan   Limited   and,   on   5th  July,



2002,   the   State   Government   conveyed   its   approval   for



acquisition of 632.28 acres of private land and 634.94 acres



of   Government   land   in   identified   villages   under   Rengali



Tehsil of Sambalpur District, for establishment of the steel



plant.     Several   meetings   took   place   between   the   Principal



Secretary   and   the   representatives   of   Bhushan   Limited,   where



even the Joint Secretary of Mines was present and assurances



were given to Bhushan Limited to send the proposal for grant



of   mining   lease   in   favour   of   Bhushan   Limited   to   the   State



Government   by   the   first   week   of   September,   2002.     On   22nd


October,   2002,   even   the   State   Pollution   Control   Board   gave



its   approval   in   principle   for   setting   up   the   plant   in   the



selected sites.





5.    On 8th November, 2002, the Director, Mines, furnished his



report   on   the   application   made   by   the   Appellant   on   4th



December, 2001, for grant of mining lease over the Thakurani



Block   area.     In   the   said   report   it   was   recorded   that



Thakurani   Block   A   and   Block   B   mines   had   been   leased   in



favour   of  the   Sharda's  in   1934,  by   the  Ex-Ruler   of  Keonjhar



and   that   the   Thakurani   Block   A   mines   had   been   extensively



mined   by  the   original  lessee   from  1934   onwards.    The  report



also   disclosed  that   in  1998,   the  matter   was  settled   in  this



Court   between   the   State,   the   Sharda's   and   the   Centre.     It



was   agreed   that   Thakurani   Block   A   would   be   relinquished   in



favour of the State and the mining lease of Block B would be



renewed in favour of the Sharda's.  Accordingly, in terms of



the   settlement,   the   Thakurani   Block   A   became   available   with



the State.   It is on the aforesaid basis that the Appellant


had   been   advised   to   apply   to   the   State   Government   for   this



area,   and   the   same   was   done   in   December,   2001.     The   report



also   indicated   that   a   mining   licence   could   be   granted   to



Bhushan   Limited   in   relaxation   of   Rule   59(2)   of   the   Mineral



Concession   Rules,   1960,   hereinafter   referred   to   as   the   "MC



Rules",   in   view   of   the   fact   that   the   Thakurani   Block   A   had



been   mined   by   the   original   lessee   from   1934   onwards.     The



State   Government   was   advised   to   recommend   to   the   Centre   for



grant of relaxation under Rule 59(2) of the MC Rules.





6.    On 19th February, 2003, the Orissa Electricity Regulatory



Commission   (OERC)   passed   an   order   granting   permission   for



installation of a Captive Power Plant by Bhushan Limited.





7.    It   is   at   this   stage   that   trouble   began   to   brew.   A



decision   had  been   taken  to   merge  Bhushan     Ltd.   with  Bhushan



Steel   and   Strips   Limited   (BSSL)   which   had   an   identity   which



was separate from that of Bhushan Limited, though treated to



be   a   family   concern   under   the   Bhushan   family   umbrella.   On


21st February, 2003, the Government of Orissa was informed by



Shri   Brij   Bhushan   Singhal,   Chairman   of   the   Bhushan   Group,



that   Bhushan   Limited,   the   Appellant   herein,   would   not   be



merging   with   BSSL,   but   that   the   papers   were   being   processed



in the name of Bhushan Limited, as a group. Accordingly, the



State Government was requested not to process the papers for



2-3   months.   On   17th  March,   2003,   BSSL   wrote   to   the   Chief



Minister,   informing   him   of   the   developments   which   had   taken



place   and  that   two  companies   had  decided   not  to   merge,  with



retrospective   effect   from   1st        April,   2002,   as   had   been



decided earlier.    





8.    Thereafter,   on   5th  May,   2003,   Shri   Neeraj   Singhal   wrote



to   the   Chief   Minister   on   behalf   of   BSSL   informing   him   that



BSSL was unable to process the setting up of the steel plant



at Lapanga and in order to minimize the friction between the



two   groups   within   the   family,   BSSL   had   decided   to   set   up   a



separate steel plant at a different location in Mehramandali



in   the   District   of   Dhankanal   in   respect   whereof   1500   acres


of   land   had   been   identified.     On   17th  June,   2003,   the   Water



Resources Department, Government of Orissa, wrote to Bhushan



Power   &   Steel   Ltd.   giving   its   approval   of   the   layout   for



intake well for drawal of 100 cusec water for the integrated



steel plant of the Company.  This was followed by grant of a



certificate   by   IDCO   on   19th  July,   2003,   confirming   sanction



of   land   for   lease   measuring   488.08   acres   in   favour   of



Bhushan   Limited   comprising   Thelkoloi,   Dhubenchhapar   and



Khadiapalli,   which   had   been   identified   in   the   MOU   for



establishment of the steel plant by Bhushan Limited.





9.    The said sanctions were followed up by a meeting chaired



by   the   Chief   Minister   of   Orissa   on   25h   July,   2003,   wherein



the   progress   of   the   project   was   discussed   and   it   was



resolved   that   the   application   of   Bhushan   Limited   for   iron



ore deposits would be recommended to the Government of India



and   that   no   fresh   MOU   was   required   to   be   filed.     It   was



decided   that   the   MOU   executed   earlier   between   the   Bhushan



Group   and   the   State   Government   on   15th  July,   2002,   would


remain   undisturbed,   since,   the   same   had   already   been   acted



upon   by   both   sides.        It   was   also   decided   that   the



application   of   Bhushan   Limited   for   iron   ore   deposits   would



be   recommended   to   the   Government   of   India   in   terms   of   the



MOU,   after   the   same   was   placed   before   the   Screening



Committee which was chaired by the Chief Secretary.





10.    Further   to   the   permission   being   granted   to   Bhushan



Limited on 21st February, 2003, for installation of a Captive



Power   Plant,   OERC   granted   a   "No   Objection   Certificate"   to



Bhushan   Limited  for   setting  up   of  a   Captive  Power   Plant  for



increased capacity.





11.    Subsequently,   various   other   steps   were   taken   for



establishment of the power plant at Lapanga by Bhushan Power



&   Steel   Ltd.     On   10th  February,   2004,   the   State   Government



wrote   to   Shri   Sanjay   Singhal,   representing   Bhushan   Limited,



that   in   view   of   the   reorganization   and   restructuring   of   the



Bhushan   Group,  the   earlier  MOU   ceased  to   exist  and   had  lost


its   force.     Accordingly,   a   fresh   MOU   was   required   to   be



entered into between the Appellants and the State Government



for   speedy   implementation   of   the   project   which   was   on   the



anvil. It is the case of the Appellants that this letter was



never   acted   upon   by   either   party,   since,   thereafter,   the



State   allotted   and   granted   possession   of   large   tracts   of



land   to   the   Appellants   and   other   agreements,   such   as   drawal



of   water   were   entered   into,   permission   was     given   for



connectivity   with   the   Grid   and   other   various   other



administrative   sanctions,   as   also   approval   for   acquisition



of land, were made in favour of Bhushan Power & Steel Ltd.,



without   any   insistence   for   the   execution   of   a   fresh   MOU.



Simultaneously,   Shri   Neeraj   Singhal   of   BSSL   was   also



informed   by   the   State   that   since   they   wanted   to   set   up   a



separate   steel   plant   at   Mehramandali,   a   fresh   MOU   to   this



effect could be entered into between the State and BSSL.





12.    Responding  to the  letter of  10th  February,  2004, Bhushan



Limited   wrote   back   on   21st  February,   2004,   stating   that   no


fresh   MOU   was   required   to   be   signed,   since   the   earlier   MOU



was   quite   valid.     On   11th  March,   2004,   the   Government   of



Orissa,   in   its   Department   of   Industries,   informed   IDCO   that



the   Government   had   been   pleased   to   advise   for   immediate



transfer   of   acquired   land,   both   Government   and   private,   to



Bhushan         Limited,         after         observing         all         the         necessary



formalities.     However,   on   17th  March,   2004,   Shri   Neeraj



Singhal,   Managing   Director   of   BSSL,   wrote   to   the   Principal



Secretary,   Department   of   Steel   and   Mines,   contending   that



Bhushan Limited, as also BSSL, were entitled to the benefits



of the MOU, which had been signed on 15th May, 2002.





13.    Within   a   week   thereafter,   on   24th  March,   2004,   IDCO



transferred   the   land   for   the   project   at   Lapanga   to   Bhushan



Limited and possession thereof was also made over on several



dates.     On   12th  May,   2004,   the   Ministry   of   Environment   and



Forest,   Government   of   India,   gave   clearance   to   the   project



at   Rengali   in   the   name   of   Bhushan   Limited.     The   Chief



Inspector   of   Factories   and   Boiler,   gave   approval   to   the


Steam   and   Feed   Water   pipe   line   drawing   for   Bhushan   Limited



on   2nd  July,   2004.   On   3rd  September,   2004,   the   Government   of



Orissa,   in   its   Ministry   of   Environment   and   Forest,   granted



approval   to   Bhushan   Limited   for   diversion   of   59.16   hectares



of   forest   land   for   establishment   of   the   integrated   steel



plant   and   an   agreement   was   also   drawn   up   between   the



Government   and   Bhushan   Limited   on   17th  September,   2004,   for



drawal   of   water   from   the   Hirakud   Reservoir   for   use   in   the



proposed   integrated   steel   plant   at   Lapanga.   On   2nd  February,



2005, the State Government wrote to Bhushan Limited, seeking



the   status   report   of   the   steel   plant   project   and   on   16th



March,   2005,   permission   was   granted   for   provisional



energisation   of   220   KV   line   issued   by   the   Chief   Electrical



Inspector   in   favour   of   Bhushan   Limited.   Several   other



approvals   were  granted   upto  9th  August,   2005,  and   finally  in



March,   2005,   Bhushan   Limited   (BPSL)   commenced   production   at



its   steel   plant.     On   6th  September,   2005,   administrative



approval   was   given   for   acquisition   of   additional   private


land   for   Lapanga   plant,   granted   by   the   Steel   and   Mines



Department to Bhushan Limited. Similar approval was given in



respect   of   other   lands   on   28th     September,   2005   and   6th



February, 2006.





14.    Simultaneously, with administrative approval being given



for acquisition of private land for the Lapanga plant on 3rd



November,   2005,   an   agreement   was   entered   into   between   BSSL



and   the  Government   of  Orissa   for  putting   up  the   steel  plant



at   Mehramandli.     There   was   no   mention   of   the   MOU   dated



15th  May, 2002, in the said agreement. Within a matter of 10



days,   the   Directorate   of   Factories   and   Boilers   wrote   to



Bhushan Limited granting permission under the Factories Act,



1948, to construct the steel plant at Lapanga.





15.    Surprisingly,   on   31st  December,   2005,   the   Government   of



Orissa issued a letter to Bhushan Limited indicating that it



had   decided   not   to   treat   the   MOU   signed   earlier   with   M/s



Bhushan   Group   of   Companies   as   place   specific   after   the


company had been divided into Bhushan Limited (BPSL) and M/s



Bhushan Steel and Strips Ltd. (BSSL).  The Bhushan Group was



informed   that   the   State   Government   had   decided   to   deal   with



both   the   Companies   separately   and   to   sign   two   separate



agreements   for   the   purpose   of   acquiring   land,   allotting



mines   and   providing   other   facilities   for   establishment   and



growth of steel plants in Orissa.





16.     On   9th  January,   2006,   a   letter   was   addressed   by   the



Directorate   of   Factories   and   Boilers   to   Bhushan   Steel   Ltd.



approving   the   draft   of   the   steam   pipe   line   and   on   13th



January,   2006,   on   the   recommendation   of   the   Government   of



Orissa,   the   Central   Government   allotted   Bijahan   Coal   Block



in   the  District   of  Sundergarh   to  Bhushan   Limited  as   per  the



MOU.





17.     Even   more   surprisingly,   on   18th     January,   2006,   the



Government   of   Orissa   issued   a   Show-Cause   Notice   to   Bhushan



Limited   to   appear   before   the   Joint   Secretary   on   17th


February, 2006, for a personal hearing. Several deficiencies



in   the   application   for   mining   lease   of   iron   ore   dated   4th



December,   2001,   in   respect   of   the   Thakurani   Block   A,   were



also pointed out.   Thereafter, the State Government informed



the   Appellants   that   their   application   dated   4th  December,



2001,   for  mining   lease  over   the  Thakurani   area  could   not  be



allowed   on   various   grounds.   However,   the   most   significant



ground   was   that   the   area   in   question   came   within   the



relinquished   area   of   the   mining   lease   of   M/s   Sharda   which



was   not   thereafter   thrown   open   for   re-allotment   under   Rule



59   of   the   aforesaid   Rules.         It   was   alleged   that   the



application   made   by   Bhushan   Limited   was,   therefore,



premature.   Having rejected the Appellants' prayer for grant



of   mining   lease,   on   9th  February,   2006,   the   Government   of



Orissa   made   a   recommendation   to   the   Central   Government   to



grant   mining   lease   in   favour   of   M/s   Neepaz   Metallicks   (P)



Ltd. in relaxation of Rule 59(1) of the aforesaid Rules, for



a period of 30 years.


18.    On  28th  February,  2006, Bhushan  Limited altered  its name



to Bhushan Power & Steel Ltd. (BPSL).





19.    On   8th  May,   2006,   Bhushan   Limited   filed   Writ   Petition



No.6646   of   2006   before   the   Orissa   High   Court.   On   the   next



day,   the   State   Government   issued   a   reminder   to   Bhushan



Limited in regard to its letter dated 31st December, 2005, by



which the State Government had asked for a separate MOU from



Bhushan Limited, inspite of the MOU already existing between



the parties, which had also been acted upon till as late as



26th  April, 2006. On 15th  May, 2006, the High Court passed an



interim   order   granting   status-quo   with   regard   to   the



applications   for   mining   lease.   On   5th  September,   2006,   an



intervention   application   was   filed   by   BSSL,   which   was



allowed on 6th December, 2006.





20.    During   the   course   of   hearing   of   the   Writ   Petition,   the



High   Court   passed   an   interim   order   and   directed   that   the



problems   relating   to   the   Show-Cause   Notice   dated   18th


January,   2006,   should   be   resolved,   keeping   in   view   the



commitments of the State.  On 26th June, 2007, the High Court



directed   circulation  of   the  order   dated  18th  June,   2007,  and



liberty   was   given   to   Bhushan   Limited   to   challenge   the   same



by filing an affidavit in the writ proceedings.





21.      Such affidavit was duly filed on 10th July, 2007, and the



order   impugned   in   the   present   appeal   came   to   be   passed   by



the   High   Court   on   14th      December,   2007,   dismissing   the



aforesaid   Writ   Petition   No.6646   of   2006.   The   substance   of



the   order   of   the   High   Court   while   dismissing   the   Writ



Petition is :-





  (a)      The   Court   cannot   set   aside   the   communication   of   the



           State Government asking the Appellants to sign a fresh



           MOU with the Government as early as possible.





  (b)      The   Appellants'   application   for   grant   of   mining   lease



           dated   4th  December,   2001,   should   be   considered   afresh



           by the appropriate authorities of the State Government


           in   accordance   with   law,   along   with   other   similarly



           placed applicants.





  (c)      The   Appellants   would   be   at   liberty   to   challenge   the



           subsequent   report   of   the   Director   of   Mines   dated   31st



           May,   2007,   in   the   hearing   which   would   be   afforded   to



           the   Appellants   by   the   appropriate   authority   of   the



           State.





  (d)      The   Appellants   would   be   at   liberty   to   challenge   the



           order dated 18th June, 2007, on merits, but it was also



           submitted that the application for mining lease of the



           Appellants   would   be   considered   after   it   executed   a



           fresh MOU with the State Government.





22.      As   indicated   hereinbefore,   on   21st  April,   2008,   this



Court   passed   an   interim   order   in   the   Special   Leave   Petition



filed   by   Bhushan   Limited   directing   the   parties   to   maintain



status-quo   with   regard   to   the   lands   indicated   in   the



application   filed   by   the   Appellants   for   grant   of   mining


lease.   However,   one   of   the   most   significant   developments



that subsequently took place was that on 15th November, 2011,



Shri B.B. Singhal and Shri Neeraj Singhal, Vice-Chairman and



Managing   Director   of   Bhushan   Steel   and   Strips   Ltd.   filed



affidavits   withdrawing   all   their   claims   and   rights   in   the



MOU   dated   15th     May,   2002,   executed   between   the   State



Government   and   Bhushan   Limited   and   declaring   that   the   said



MOU   was   and   had   always   been   in   favour   of   Bhushan   Power   &



Steel   Ltd.   The   above-named   persons   also   prayed   for   deletion



of their names from the array of parties.





23.    Appearing for the Appellants, Mr. Mukul Rohatgi, learned



Senior   Advocate,   pointed   out   that   only   two   issues   arise   for



the   consideration   of   this   Court   in   the   present   case,   namely



-





       a)    Whether   the   Memorandum   of   Understanding   dated

       15th May, 2002, continues to subsist in favour of the

       Appellants?



       b)    Whether the State Government is obliged to make

       recommendations   for   the   grant   of   iron   ore   mines   in


       terms of the stipulations contained in the aforesaid

       MOU   dated   15th  May,   2002,   and   whether   in   respect   of

       the   areas   which   had   not   been   notified   under   Rule

       59(1),         the         State         Government         can         make         a

       recommendation   for   relaxation   of   Rule   59(1)   under

       Rule 59(2)?





24.    Mr.   Rohatgi   submitted   that   having   entered   into   a



Memorandum   of   Understanding   with   the   Appellant   Company   and



having acted thereupon and having also caused the Appellants



to   change   their   position   to     their   detriment,   it   was   not



open   to  the   State  Government   to  call   upon  the   Appellants  to



execute a fresh MOU, during the subsistence of the MOU dated



15th May, 2002.





25.    Mr.   Rohatgi   also   submitted   that   notwithstanding   the



State   Government's   requirement   that   the   Appellants   should



enter   into   a   fresh   MOU,   the   State   Government   continued   to



act   under   the   MOU   dated   15th                May,   2002.   Despite   the



communications   dated   10th  February,   2004,   and   31st  December,



2005,   above   recorded,   the   State   Government   went   on   further



to   hold   that   all   the   steps   required   to   be   taken   for


installation   of   the   steel   plant   at   Lapanga,   had   been   taken,



except that it did not comply with the obligations of making



recommendations   to   the   Central   Government   for   grant   of   iron



ore   mines.     Mr.   Rohatgi   urged   that   during   the   pendency   of



the   proceedings,   the   dispute   between   the   members   of   the



Bhushan   Group   had   been   settled   and   the   parties   had   mutually



agreed   to   withdraw   all   the   allegations   and   claims   relating



to   the   MOU   dated   15th  May,   2002.     Incidentally,   by   filing



I.A.No.13,   BSSL   confirmed   that   Bhushan   Power   &   Steel   Ltd.



was the sole beneficiary under the MOU dated 15th  May, 2002,



and   withdrew   all   its   claims   under   the   MOU   dated   15th  May,



2002.





26.    Mr. L. Nageshwar Rao, learned Senior Advocate, appearing



for the State of Orissa, has also very fairly stated that in



view   of   the   settlement   of   disputes   between   the   members   of



the   Bhushan   Group,   the   issue   relating   to   the   MOU   did   not



survive   and,   since,   the   State   Government   had   already



performed   its   obligation   under   the   MOU,   the   only   thing


remaining to be done by the State is to make recommendations



to the Central Government for grant of iron ore mines to the



Bhushan Power & Steel Ltd.





27.    Mr. Rohatgi submitted that in the changed circumstances,



the question of execution of a fresh MOU loses its relevance



and   the   letter   dated   31st  December,   2005,   calling   upon   the



Appellants   to   execute   a   fresh   MOU,   is   not   required   to   be



given   effect   to.   Consequently,   it   may   be   held   that   the   MOU



dated   15th  May,   2002,   continues   to   be   valid   and   subsisting



between the State of Orissa and Bhushan Power & Steel Ltd.





28.    On the question of Rule 59 of the MC Rules, which formed



the   basis   of   the   State   Government's   decision   to   reject   the



Appellants' application for being recommended to the Central



Government   for   grant   of   a   mining   lease,   Mr.   Rohatgi



submitted   that   such   recommendations   had   been   made   by   the



State Government in favour of other applicants as well, such



as   M/s.   S.M.C.   Power   Generation   Ltd.,   M/s.   Neepaz   Metalics,


M/s. Sree Metaliks and M/s. Deepak Steel & Power. Therefore,



there   was   no   reason   to   deny   the   same   benefits   to   the



Appellants as well.





29.    Appearing   for   the   Intervener,   M/s.   Jindal   Steels   Ltd.,



Mr.   K.V.   Vishwanathan,   learned   Senior   Advocate,   submitted



that   so   long   as   any   allotment   made   in   favour   of   the



Appellants   did   not   impinge   on   the   allotment   made   in   favour



of   M/s.   Jindal   Steels   Ltd.,   it   could   have   no   grievance



against   a   separate   allotment   being   made   in   favour   of   the



Appellants.





30.    The   mutual   settlement   of   the   disputes   between   the



members   of   the   Bhushan   Group   has   altered   the   situation



considerably,   since   BSSL   has   withdrawn   its   claim   under   the



MOU dated 15th  May, 2002, and has declared that the said MOU



was   and  had   always  been   executed  by   the  State   Government  in



favour   of   Bhushan   Power   &   Steel   Ltd.,   which   had   set   up   its



steel   plant   at   Lapanga.            As   indicated   hereinbefore,


although,   the   MOU   was   entered   into   by   the   State   Government



with   the   Bhushan   Group   for   setting   up   a   steel   plant   at



Lapanga,   at   a   later   stage,   BSSL   also   laid   claim   under   the



MOU   for   setting   up   a   separate   steel   plant   at   Mehramandali



and a suggestion was also made for execution of a fresh MOU



between the State Government and BSSL to this effect.





31.    Pursuant   to   the   MOU   with   Bhushan   Limited,   the   State



Government   had  not   only  allotted   land  for   the  setting   up  of



the   steel   plant   at   Lapanga,   it   had   even   extended   all   help



for   the   commissioning   of   the   plant,   which,   in   fact,   had



already   started   functioning.     However,   it   is   the   claim   made



by   BSSL   under   the   MOU   executed   on   15th  May,   2002,   that   had



created obstructions in the setting up of the steel plant at



Lapanga.     Despite   having   allotted   land   and   granted   sanction



to   Bhushan   Limited   to   take   steps   for   construction   of   the



said   plant,   it   was   subsequently   contended   that   the



application filed by Bhushan Limited was premature and could



not, therefore, be acted upon.   Specific instances have been


mentioned   hereinabove   of   the   steps   taken   by   the   various



departments   in   extending   cooperation   to   Bhushan   Limited   to



set   up   its   steel   plant   at   Lapanga.     To   now   turn   around   and



take   a   stand   that   the   application   made   by   Bhushan   Limited



was   premature,   is   not   only   unreasonable,   but   completely



unfair   to   Bhushan   Limited,   who   have   already   invested   large



sums   of  money   in  setting   up  the   plant.  The   State  Government



had,   on  its   own  volition,   entered  into   the  MOU   with  Bhushan



Limited on 15th May, 2002, and had even agreed to request the



Central Government to allot mining areas and coal blocks for



operating   the   steel   plant.     Whatever   differences   that   may



have   resulted   on   account   of   the   dispute   within   the   Bhushan



Group, which could have led to the rethinking on the part of



the   State   Government,   have   now   been   laid   to   rest   by   virtue



of   the   settlement   arrived   at   between   the   Bhushan   Limited



(now BPSL) and BSSL.  The State Government has also accepted



the   said   position.     In   addition   to   the   above,   the   action



taken   by   the   State   Government   appears   to   us   to   be   highly


unreasonable and arbitrary and also attracts the doctrine of



legitimate   expectation.     There   is   no   denying   the   fact   that



the   Appellants   have   altered   their   position   to   their



detriment   in   accordance   with   the   MOU   dated   15th  May,   2002.



Whatever   may   have   been   the   arrangement   subsequently   arrived



at   between   the   State   Government   and   BSSL,   the   original   MOU



dated   15th  May,   2002,   continued   to   be   in   existence   and



remained operative.





32.    The   State   Government   appears   to   have   acted   arbitrarily



in   requiring   Bhushan   Limited   to   enter   into   a   separate   MOU,



notwithstanding   the   existence   of   the   MOU   dated   15th  May,



2002,   which,   as   mentioned   hereinabove,   had   been   acted   upon



by the parties.





33.    In   the   light   of   the   above,   the   High   Court   erred   in



holding that it could not interfere with the decision of the



State Government calling upon the Appellants to sign a fresh



MOU   with   the   Government,   during   subsistence   of   the   earlier


MOU.   Since the State Government has already made allotments



in   favour   of   others   in   relaxation   of   the   Mineral   Concession



Rules,   1960,   under   Rule   59(2)   thereof,   no   cogent   ground   had



been   made   out   on   behalf   of   the   State   to   deny   the   said



privilege to the Appellants as well.





34.    Accordingly,   we   allow   the   appeal   and   set   aside   the



judgment and order of the High Court of Orissa and also the



decision   of   the   State   Government   dated   9th  February,   2006,



rejecting   the   Appellant's   claim   for   grant   of   mining   lease.



During   the   course   of   hearing,   we   have   been   informed   that



Thakurani   Block   A   has   large   reserves   of   iron   ore,   in   which



the   Appellants   can   also   be   accommodated.   We,   accordingly,



direct   the  State   of  Orissa   to  take   appropriate  steps   to  act



in terms of the MOU dated 15th May, 2002, as also its earlier



commitments   to   recommend   the   case   of   the   Appellants   to   the



Central   Government   for   grant   of   adequate   iron   ore   reserves



to   meet   the   requirements   of   the   Appellants   in   their   steel



plant at Lapanga.


35.    There will be no order as to costs.





                                        ...............................................................J.

                                        (ALTAMAS KABIR)





                                        ...............................................................J.

                                        (SURINDER SINGH NIJJAR)

New Delhi

Dated:14.03.2012