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