Supreme Court of India
GOVINDARAJU@ GOVINDAversusSTATE BY SRIRAMAPURAM P.S. & ANR.
- Citation
- 2012 INSC 135
- Decided
- 15 March 2012
- Disposal
- Appeal(s) allowed
- Bench
- A K PATNAIK
Holding
The High Court erred in setting aside the trial court's acquittal; the appellant is acquitted of the offence under Section 302 IPC.
Summary
The Supreme Court reviewed an appeal by Govindaraju against a Karnataka High Court conviction for murder under s.302 IPC read with s.34, which had overturned a trial court acquittal. The Court found that the High Court did not show the trial court's judgment to be perverse and that the prosecution's case suffered from unreliability of the sole police‑officer eyewitness, hostile witnesses, defective weapon recoveries under Sec.27 of the Evidence Act, and lack of corroborating medical and forensic evidence. It reiterated that an appeal against acquittal can be entertained only when the lower court's decision is perverse or contrary to law, not merely because another view is possible. The Court emphasized the presumption of innocence and the right to a fair trial, requiring compelling reasons to disturb an acquittal. Accordingly, the conviction was set aside and the appellant was acquitted.
Issues considered
- Whether the High Court was justified in overturning the trial court's acquittal and convicting the appellant.
- Whether the testimony of a sole police officer can form the basis of conviction without corroboration.
- Whether the recovery of weapons complied with Section 27 of the Evidence Act, 1872.
- Whether non‑production of material witnesses warrants adverse inference against the prosecution.
- Whether the appellate court must demonstrate perversity in fact or law to interfere with an order of acquittal.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 378
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 302, s. 34
Subjects
appeal against acquittalpresumption of innocencesole eyewitness testimonypolice officer as witnessadverse inferenceSection 27 Evidence Actperverse judgmentburden of proofmaterial witnessforensic evidence
Judgment
[2012] 5 S.C.R. 67
GOVINDARAJU@ GOVINDA A
V.
STATE BY SRIRAMAPURAM P.S. & ANR.
(Criminal Appeal No. 984 of 2007)
MARCH 15, 2012
B
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Penal Code, 1860 - s. 302134 - Appellant and other
accused charged with offence uls. 302 rlw. 34 - Acquittal by
the trial court - Leave to appeal filed before the High Court, c
granted only against the appellant - Conviction and sentence
of appellant for commission of offence uls. 302 by the High
Court - Justification of - Held: High Court did not bring out as
to how the trial court's judgment was perverse in law or in
appreciation of evidence or whether the trial court's judgment D
suffered from some erroneous approach and was based on
conjectures and surmises in contradistinction to facts proved
by the evidence on record - Testimony of sole eye witness-
police officer not reliable and worthy of credence - Eye-
witnesses, seizure witnesses and the witness to the recovery E
of knife not supporting the prosecution case - Defect in the
recovery - Non-examination of material witnesses as also
persons from the forensic laboratory - Medical Evidence also
not supporting the prosecution case - Thus, the case of the
prosecution suffers from proven improbabilities, infirmities,
F
contradictions - Appellant acquitted u/s. 302.
Evidence - Police officer as sole eye-witness - Evidentiary
value of - Held: Testimony of police officer can be relied upon
and form basis of conviction when such witness is reliable,
trustworthy, cogent and duly corroborated by other witnesses G
or admissible evidences - It cannot be discarded only on the
ground that he is a police officer and may have some interest
in success of the case - When his interest in the success of
67 H
68 SUPREME COURT REPORTS [2012] 5 S.C.R.
A the case is motivated by overzealousness to an extent of his
involving innocent people; no credibility can be attached to
the statement of such witness - Absence of some independent
witness of the locality does not in any way affect the
creditworthiness of the prosecution case - On facts, the police
B officer-sole eye witness was nearly 30 yards away from the
place of incident and was on motor-cycle, equipped with a
weapon - Police officer saw three accused chasing and then
inflicting injuries upon the deceased - However, he was unable
to stop the further stabbing and/or running away of the accused
C - He did not mention the names of the accused in the FIR or
to the Investigating Officer - He could not find the name of the
third accused - The statement of police officer implicating the
accused did not find any corroboration by other witnesses or
evidences - Thus, suffers from improbabilities, not free of
suspicion and lacked credence and reliability - Conviction of
0
the appellant on basis of the statement of the police officer
not sustainable.
Evidence Act, 1872 - Section 27 - Recoveries of weapons
- Whether in conformity with the provisions of Section - Held:
E Memos did not bear the signatures of the accused upon their
disclosure statements - This is a defect in the recovery of
weapons - Recovery witnesses turned hostile - Weapons of
offence, recovered from the appellant did not contain any
blood stain, whereas the knife recovered at the behest of the
F co-accused was blood-stained - However, no steps taken by
prosecution to prove whether it was human blood and of the
same blood group as the deceased.
Witness:
G Witness - Material witness - Non-production - Effect of -
Non-production of doctor (who performed the post mortem and
examined the victim before he was declared dead) as well as
of the Head Constable and the Constable who reached the
site immediately upon the occurrence - Held: Creates a
H
GOVINDARAJU@ GOVINDA v. STATE BY 69
SRIRAMAPURAM P.S.
reasonable doubt in the case of the prosecution - Court should A
also draw adverse inference against the prosecution for not
examining the material witnesses - 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. B
Mat(1rial witness - Effect on prosecution case - Explained.
Hostile witness - Effect on prosecution case -Explained.
Code of Criminal Procedure, 1973 - s. 378 - Appeal C
against acquittal - Scope of - Held: Appellate court has every
power to re-appreciate, review and reconsider the evidence
before it, as a whole - 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 - Court has to o
keep in mind 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 - High Court should not merely record that the judgment
of the trial court was perverse without specifically dealing with E
the facets of perversity relating to the issues of law and/or
appreciation of evidence.
According to the prosecution, on the fateful day,
when Sub-Inspector of Police-PW 1 was going back after
finishing his duty, he saw three persons chasing another F
person. PW 1 was on his motor cycle. Thereafter, the
three persons reached near the Bar, and the person who
was being chased fell on the road. The three persons
stabbed him on his chest. When PW1 was about to reach
the spot, he heard 'GR' telling 'GV' that the police was G
coming and asked them to run away, whereafter they ran
away from the spot. PW-1 chased them but they escaped.
PW1 then came back to the spot and shifted the victim
to the hospital where he was declared dead. PW1
checked the pockets of the victim and found an identity H
70 SUPREME COURT REPORTS [2012] 5 S.C.R.
A card which disclosed the victim as 'S'. Thereafter, PW1
returned to the police station and lodged a complaint. On
the basis thereof, PW11- Police Officer recorded FIR and
conducted an investigation. The Investigating Officer
examined a number of witnesses and recovered
B weapons of crime which were sent for examination to the
Forensic Science Laboratory (FSL). ThereS1fter, PW 11
filed the charge-sheet against the accused under Section
302 r/w. s. 34 IPC. Only two accused faced the1rial as the
third accused was absconding. The trial court acquitted
c both the appellant-'GV' and 'GR' for an offence under
Section 302 read with Section 34 IPC. 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 'GV' and granted the leave to appeal
against 'GR'. 'GR' was convicted under Section 302 fPC
0
and sentenced to imprisonment for life and fine of
Rs.10,000/-. Therefore, the appellant filed the instant
appeal.
Allowing the appeal, the Court
E
HELD: 1.1 An appeal against an order of acquittal is
also an appeal under the Code of Criminal Procedure,
1973 and an appellate court has every power to re-
appreciate, review and reconsider the evidence before it,
F 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
G 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. 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
H
GOVINDARAJU@ GOVINDA v. STATE BY 71
SRIRAMAPURAM P.S.
by the Court is justifiable only when a clear distinction is A
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 B
to the issues of law and/or appreciation of evidence, as
otherwise such observations of the High Court may not
be sustainable in law. [Paras 5 and 10] [89-F-H; 99-G-H;
100-A-B]
Girja Prasad (Dead) By LRs. v. State of MP. (2007) 7 C
SCC 625: 2007 (9) SCR 483 - relied on.
1.2 Besides the rules regarding appreciation of
evidence, the Court has to keep in mind certain significant
principles of law under the Indian Criminal Jurisprudence, D
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 E
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 traceable in the findings recorded
by the court, either of law or of appreciation of evidence. F
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 G
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 H
72 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B 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
C 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 trial court are
really erroneous and contrary to the settled principles of
criminal law. [Para 6) [90-A-H; 91-A]
0
State of Rajasthan v. Shera Ram alias Vishnu Dutta
(2012) 1 SCC 602; C. Antony v. K. G. Raghavan Nair (2003)
1 SCC 1; Bhim Singh Rup Singh v. State of Maharashtra
(197 4) 3 sec 762 - relied on.
E
1.3 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
F 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
consideration of the court should be to avoid miscarriage
G 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
H
GOVINDARAJU@ GOVINDA v. STATE BY 73
SRIRAMAPURAM P.S.
the appellate court may even proceed to record the A
judgment of guilt to meet the ends of justice, if it is really
called for. [Para 8) [98-D-F]
1.4 In the instant case, the trial court noticed a number
of other weaknesses in the case of the prosecution, B
including the evidence of PW1 and had returned the
finding of acquittal of both the accused. The judgment of
the High Court, though to some extent, re-appreciates the
evidence but has not brought out as to how the trial
court's judgment was perverse in law or in appreciation C
of 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. [Paras 9, 10) [99-B; F-G]
2.1 It is a settled proposition of law of evidence that D
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. [Para 11) [100-C-D] E
La/Ju Manjhi and Anr. vs.< State of Jharkhand (2003) 2
SCC 401: 2003 (1) SCR 1; Joseph v. State of Kera/a (2003)
1 SCC 465: 2002 (4) Suppl. SCR 439; Tika Ram v. State of
Madhya Pradesh (2007) 15 SCC 760; Jhapsa Kabari and F
Ors. v. State of Bihar (2001) 10 SCC 94 - referred to.
2.2 In the instant 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 witness. It cannot be stated as a rule G
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 H
74 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B people; in that event, no credibility can be attached to the
statement of such witness. [Paras 14 and 15) [101-G; 102-
A-C]
2.3 Wherever, the evidence of the police officer, after
C careful scrutiny, inspires confidence and is found to be
trustworthy and reliable and preferably corroborated by
other evidence on record, 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. No infirmity is
D attached 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
E independent evidence. [Para 17) [102-G-H; 103-A]
Girja Prasad (Dead) By LRs. v. State of M.P. (2007) 7
SCC 625: 2007 (9) SCR 483; Aher Raja Khima v. State of
Saurashtra AIR 1956 SC 217: 1955 SCR 1285; Tahir v. State
F (Delhi) (1996) 3 SCC 338: 1996 (3) SCR 757 - referred to.
3. 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
G 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
H otherwise, then such statement in face of the hostile
GOVINDARAJU@ GOVINDA v. STATE BY 75
SRIRAMAPURAM P.S.
witness can still be a ground for holding the accused A
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. B
[Para 20) [104-B-D]
4.1 The prosecution cited PW-7, PW-9 and PW-10 as
eye-witnesses to the occurrence but they denied the
entire case of the prosecution case. However, PW-7 and
PW-9 were not confronted with their statement under C
Section 161 Cr.P.C. PW-8 was a witness to the recovery
of the knife. 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-PW-2, PW-4 and PW-6 were D
witnesses to seizure memos vide which recoveries were
effected, including the knife and clothes of the deceased.
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 in regard to E
any incident that had happened in his shop. [Para 21, 22)
[104-E-F; 105-B-D]
4.2 According to the PW-1 (complainant and police
officer), he was nearly 30 yards away from the place
F
where the victim fell on the ground and he saw the
accused persons chasing the victim from about a
distance of 75 feet. 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 coyer the distance of 30 yards G
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 courage of stabbing the victim
(deceased) in front of a police officer who was carrying H
76 SUPREME COURT REPORTS [2012] 5 S.C.R.
A a gun. In the FIR, he did not mention the names of the
accused. He did not even mention to PW-11 (Investigating
Officer) as to who the assailants were. In the post-mortem
report, it was recorded that as per police requisition the
victim was said to have been assaulted with knife by
B some miscreants and he was pronounced dead on
arrival to the hospital. [Paras 25 and .26] [106-C-F]
4.3 In furtherance to the proceedings taken out under
Section 174 Cr.P.C, the brother of the deceased had
C 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. Before this, a man named 'GR' and the deceased
had lodged Police complaint that there was a fight
D between them. This itself shows that 'GR' had
approached the Police. Thus, it is quite unbelievable that
he would indulge in committing such a heinous crime.
Furthermore, the entire record did not reflect the name of
the third accused, who was stated to be absconding. This
E certainly is a circumstance not free of doubt. 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
F critically analyses and cautiously examines the
prosecution evidence, the gaps become more and more
widened and the lacunae become more significant. This
clearly shows that not only PW-1 was unaware of the
names and identity of the assailants, but PW-11 was
G equally ignorant. 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. [Paras 27, 28] [106-
H G-H; 107-A-D]
GOVINDARAJU@ GOVINDA v. STATE BY 77
SRIRAMAPURAM P.S.
4.4 There was no explanation on record as to how A
PW-1 came to know the name of the accused, 'GR' as
also the name of the third accused who had been
absconding and in whose absence the trial proceeded.
The statement of PW-1 implicating the accused does not
inspire confidence. The statement of PW-1 did not find B
any corroboration. According to PW-1, the accused fell
on the ground in front of the Bar. PW-7, 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 the Bar and had seen the occurrence, not only denied c
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 destroyed the evidence of
PW-1 in regard to the most crucial circumstance of the
prosecution evidence. Besides this, all other witnesses- 0
PW-2, PW-3, PW-7, PW-9 and PW-10, 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. E
Its non-corroboration by other witnesses or evidences
adds to the statement of PW-1 lacking credence and
reliability. [Paras 29 and 30] [107-E-H; 108-A-C]
4.5 In relation to PW-11, the Investigating Officer, there
are certain lurking doubts. Certain very important F
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 was
not produced before the court. The Head Constable who
had come to the help of PW-1 for taking the deceased to G
the hospital and was present immediately after the
occurrence was also not examined. The Forensic
Science Laboratory Report was placed on record,
however, no person from the FSL, Bangalore or Calcutta
was examined in the case, again for reasons best known H
78 SUPREME COURT REPORTS [2012] 5 S.C.R.
A to the Investigating Officer/prosecution. It is recorded in
the report of the FSL, Bangalore 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
B forwarded to the Court, which never happened. The items
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 in the FSL
Report though it was stated to be a result of the analysis.
C Thus, the report of the FSL was been of no help to the
prosecution. (Paras 31, 32, 33 and 34] (108-C; F-H; 109-
A-D]
4.6 The recoveries of weapons were made not in
conformity with the provisions of Section 27 of the
D Evidence Act, 1872. The memos did not bear the
signatures of the accuse<;! upon their disclosure
statements. This is a defect ill the recovery of weapons
and all the recovery witnesses have turned hostile, thus,
creating a serious doubt in the said recovery. According
E to the prosecution witnesses, nothing was recovered
from the appellant 'GR' and from or at the behest of 'GV'.
The weapon of offence, recovered from 'GR' did not
contain any blood stain, whereas the knife that was
recovered from the conservancy at the behest of the
F accused, 'GV' was blood-stained. The report of the FSL,
shows that 'one chaku' was blood-stained. However, the
prosecution took 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, it does not mean
G 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, in
such cases, the statement of the investigating officer has
to be reliable and so trustworthy that even if the attesting
H witnesses to the seizure turns hostile, the same can still
GOVINDARAJU@ GOVINDA v. STATE BY 79
SRIRAMAPURAM P.S.
be relied upon, more so, when it is otherwise A
corroborated by the prosecution evidence, which is
certainly not there in the instant case. [Paras 35, 36) [109-
D-H; 110-A-C]
4.7 From a bare reading of the post-mortem report, it
is clear that there were as many as 10 injuries on the B
person of the deceased. The doctor further opined that
death was due to shock and hemorrhage as a result of
stab injuries found on the chest. The High Court noticed
that according to PW-1, the victim was not able to talk.
The post mortem report clearly establishes injuries by C
knife. 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 'GR' was not stabbing the deceased o
but, was watching the police coming towards them and
had called upon one of the other accused, 'GV' 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 E
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 F
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 Bar and also nearby
the conservancy area, which pre-supposes a thickly
populated area. Thus, the statement of PW-1 does not G
even find corroboration from the medical evidence on
record. 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 H
80 SUPREME COURT REPORTS [2012] 5 S.C.R.
A case of the prosecution. Thus, the reasons given by the
High Court to disturb the finding of acquittal recorded by
the trial court cannot be appreciated. [Para 38, 39] [111-
B-H; 112-A-B]
4.8 As per the statement of PW 1, Head Constable and
8
Police Constable had come on the spot. It was with their
help that he had shifted the victim to the 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,
C 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
D the accused at the earliest. [Para 40] [112-C-E]
4.9 The observation of the High Court, while setting
aside the judgment of acquittal in favour of the appellant
that it might not have been possible for the PW-1 to
E notice the details explained in the complaint while riding
a motor bike, is without any foundation. PW-1 himself
could have stated so, either before the Court or in the
complaint. As per his own statement, his distance was
only 75 feet when he noticed the accused chasing the
F 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
G 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 the Bar. [Para 41] [112-F-H; 113-A]
4.10 The observation by the High Court that PW-1
H noticed when victim was being chased by assailants,
GOVINDARAJU@ GOVINDA v. STATE BY 81
SRIRAMAPURAM P.S.
suggests that there must have been something else A
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 hands
of the assailants. Therefore, he was running away from
them but the assailants were chasing him holding the B
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 c
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. This 0
presumption cannot be raised 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,
E
it would be very difficult for any court to return a finding
of conviction in the facts and circumstances of the case.
[Para 42, 43] [113-B-F]
4.11 Non-production of material witnesses like the
doctor, who performed the post mortem and examined F
the victim before he was declared dead as well as of the
Head Constable and 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 G
di:aw adverse inference against the prosecution for not
examining the material witnesses. There is deficiency in
the prosecution case as it should have proved its case
beyond reasonable doubt with the help of these
witnesses, which it chose not to produce before the H
82 SUPREME COURT REPORTS [2012] 5 S.C.R.
A Court, despite their availability. [Para 44] [113-G-H; 114-
A-B]
Takhaji Hiraji v. Thakore Kubersing Chamansing and
Ors. (2001) 6 SCC 145 - relied on.
B 4.12 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
C of the prosecution. The doctor was a cited 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. In their absence the post
mortem report and FSL report were exhibited and could
D 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
E could have well explained as t<;> 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
F 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
G 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 examined
H despite their availability. Material witness is one who
GOVINDARAJU@ GOVINDA v. STATE BY 83
SRIRAMAPURAM P.S.
would unfold the genesis of the incident or an essential A
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 B
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 c
all other material witnesses who could depose in
completing the chain by proven facts. [Para 45] [115-0-
H; 116-A-E]
Takhaji Hiraji v. Thakore Kubersing Chamansing and
Ors. (2001) 6 SCC 145; Yakub lsmai/bhai Patel v. State of D
Gujarat (2004) 12 SCC 229: 2004 (3) Suppl. SCR 978 -
relied on.
4.13 It does not mean that despite all this, the
statement of the Police Officer for recovery and other E
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 F
witnesses when the Investigating Officer recorded the
statement of the accused and the article was recovered
pursuant thereto, is not a sufficient ground to discard the
evidence of the Police Officer r~lating to recovery at the
instance of the accused. Similar would be the situation G
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
H
84 SUPREME COURT REPORTS [2012] 5 S.C.R.
A there is no occasion for the courts to begin with initial
distrust to discard such evidence. [Para 46) [116-E-H; 117-
A-B]
State Government of NCT of Delhi v. Sunil & Anr. (2001)
1 sec 652: 2000 (5) Suppl. SCR 144 - relied on.
8
4.15 On a cumulative reading and appreciation of the
entire evidence on record, the 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
C 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 acted on
certain legal and factual presumptions which cannot be
D sustained on the basis of the record and the principle of
laws. Thus, the case of the prosecution, suffers from
proven improbabilities, infirmities, contradictions and the
statement of the sole witness, PW1, is not reliable and
worthy of credence. The appellant is acquitted of the
E offence under Section 302 IPC. [Para 47, 49) [117-B-E-G]
Case Law Reference:
2007 (9) SCR 483 Referred to Para 5
(2012) 1 sec 602 Referred to Para 6
F
(2003) 1 sec 1 Referred to Para 7
(1974) 3 sec 762 Relied on Para 7
2003 (1) SCR 1 Relied on Para 11
G
2002 (4) Suppl. SCR 439 Referred to Para 12
(2001) 15 sec 760 Referred to Para 13
(2001) 1o sec 94 Referred to Para 17
H 1955 SCR 1285 Referred to Para 17
GOVINDARAJU@ GOVINDA v. STATE BY 85
SRIRAMAPURAM P.S.
1996 (3) SCR 757 Referred to Para 18 A
(2001) 6 sec 145 Referred to Para 44
2004 (3) Suppl. SCR 978 Referred to Para 45
2000 (5) Suppl. SCR 144 Referred to Para 46
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 984 of 2007.
From the Judgment & Order dated 29.11.2006 of the High
Court of Karnataka at Bangalore in Crl. Appeal No. 889 of c
2000.
Rajesh Mahale, Krutin R. Joshi of the Appellant.
Anitha Shenoy, Hetu Arora for the Respondents.
D
The Judgment of the Court was delivered by
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 E
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 F
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 chasing another person and when they reached near
VNR Bar, the person who was being chased fell on the road. G
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 H
86 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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,
8 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
C 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,
D collected blood 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
E 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
F 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
G 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
H accused faced the trial as the third accused was absconding
GOVINDARAJU @ GOVINDA v. STATE BY 87
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
and was not traceable at the time of filing of the charge-sheet A
or even subsequent thereto. The learned Sessions Judge had
framed the charge against the accused under Section 302
read with Section 34 IPC vide its order dated 20th November,
1999. The learned trial Court, vide its judgment dated 9th
March, 2000, acquitted both the appellant namely, Govindaraju B
@ 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 @ C
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 D
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.
E
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 F
one that of conviction.
(ii) The judgment of the High Court suffers from
palpable errors of law and appreciation of
evidence. All the witnesses had turned hostile and G
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. H
88 SUPREME COURT REPORTS [2012] 5 S.C.R.
A (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
B "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
c 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
D body of the deceased. The story put forward by
PW1 is not only improbable but is impossible of
being true.
(vi) The case of the prosecution is not supported by any
scientific evidence.
E
(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
F 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
G 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
H
GOVINDARAJU@ GOVINDA v. STATE BY 89
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
case of false implication. The area fell within the jurisdiction of A
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 "FIR") was registered and at 1.40 a.m., the copy
of the FIR was placed before the Magistrate, which was duly B
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 c
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 D
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 E
Court while it was refused in the case of the other accused,
Govardhan. Thus, the judgrnent 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 F
the case. The law is well-settled that an 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 G
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 H
90 SUPREME COURT REPORTS (2012] 5 S.C.R.
A 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
B 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
C 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 traceable in the findings recorded by the
Court, either of law or of appreciation of evidence. The
D 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
E 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
F 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
G 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.
H Upon examination of the evidence before it, the Appellate
GOVINDARAJU@ GOVINDA v. STATE BY 91
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
Court should be fully convinced that the findings returned by A
the 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 B
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 C
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:
D
"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 E
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 F
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 G
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.
H
92 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B
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
c 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
D 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
E 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
F 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
G
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
H reasonable doubt. If the prosecution has
GOVINDARAJU @ GOVINDA v. STATE BY 93
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
succeeded in discharging its onus, and the error in A
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 around which the
administration of criminal justice revolves. B
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 C
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 D
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. E
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 F
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 G
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 H
94 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B 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
c 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 the guilty
is no less than from the conviction of an innocent.
In a case where admissible evidence is ignored, a
D
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
E 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
F 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 Babula/
G Doshi v. State of Gujarat, Jaswant Singh v. State
of Haryana, Raj Kishore Jha v. State of Bihar,
State of Punjab v. Kamai/ Singh, State of Punjab
v. Pho/a Singh, Suchand Pal v. Phani Pal and
Sachchey Lal Tiwari v. State of U.P.
H
GOVINDARAJU @ GOVINDA v. STATE BY 95
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
10. When the conclusions of the High Court in the A
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." B
16. In a very recent judgment, a Bench of this Court in State
of Kera/a 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, C
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 0
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 E
Court in an order of acquittal has been very
succinctly laid down by a three-Judge Bench 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:
F
'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 G
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 H
96 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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."
G
10. There is a very thin but a fine distinction between an
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
H appeal against conviction and an appeal against acquittal
GOVINDARAJU@ GOVINDA v. STATE BY 97
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
except that while dealing with an appeal against acquittal A
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 B
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 c
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 D
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 de~ision is based on erroneous vlews and against
the settled position of law then the said· order of acquittal E
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]}
F
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.
G
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 acquittal."
H
98 SUPREME COURT REPORTS (2012] 5 S.C.R.
A 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
B 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.
c 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
D 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 ex· -cised with some circumspection. The
E paramount 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
F 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
G 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 PS at the instance of the
H appellant. They also turned hostile. PW6 and PW8 were ·
GOVINDARAJU@ GOVINDA v. STATE BY 99
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
examined to establish the contents of Exhibit P6, another knife A
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 B
PW1 openly stated contrary to the case 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 c
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
0
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 re.suit of stab injuries sustained and even E
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.
F
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 evidence or whether the trial court's judgment suffered from
certain erroneous approach and was based on conjectures and G
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 o·nly when
a clear distinction is kept between perversity in appreciation
H
100 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B 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
C 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
D a limited number of witnesses. In the case of La/lu Manjhi and
Anr. vs. State of Jharkhand (2003) 2 SCC 401, this Court had
classified the oral testimony of the witnesses into three
categories:-
a. Wholly reliable;
E
b. Wholly unreliable; and
c. Neither wholly reliable nor wholly unreliable.
12. In the third category of witnesses, the Court has to be
F 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
G 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
H of a sole eye-witness, then such evidence has to be wholly
GOVINDARAJU@ GOVINDA v. STATE BY 101
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
reliable and trustworthy. Presence of such witness at the A
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 B
can be made to the cases of Joseph v. State of Kera/a (2003)
1 SCC 465 and Tika Ram v. State of Madhya Pradesh (2007)
15 sec 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 c
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 D
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- E
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 F
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 G
this 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.
H
102 SUPREME COURT REPORTS (2012] 5 S.C.R.
A 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
B 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
C 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.
D 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 their evidence cannot be accepted unless it is corroborated
in material particulars by other independent evidence. The
E 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
F 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.
G 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 th~ locality does
not in any way affect the creditworthiness of the prosecution
H case. The courts have also expressed the view that no infirmity
GOVINDARAJU@ GOVINDA v. STATE BY 103
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
attaches to the testimony of the police officers merely because A
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 can form the basis of conviction. B
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 c
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
0
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:-
E
"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 F
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 G
reliable, it can form basis of conviction and the absence
of some independent witness of the locality to lend
corroboration to their evidence, does not in any way affect
the creditworthiness of the prosecution case."
H
104 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
8 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
C 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
D 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.
E 21. Now, let us revert to the facts of the present case in
light of the above principles. As already noticed, the prosecution
had 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
F 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
G 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
H is the third eye-witness who was cited. He denied that he made
GOVINDARAJU @ GOVINDA v. STATE BY 105
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
any statement to the police on 7th December, 1998 and said A
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 B
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. 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 C
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 D
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- E
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. F
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. G
PW-1 stopped his bike and started chasing those assailants
who were running away in a 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 H
106 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B 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
C 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
D 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 courage of stabbing the victim (deceased)
E 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
F 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
G 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
H Govindaraju and the deceased had lodged Police complaint
GOVINDARAJU@ GOVINDA v. STATE BY 107
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
that there was a fight between them. This itself shows that A
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. B
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 C
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 D
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 E
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 F
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 find any corroboration. For
instance, according to PW-1, the accused fell on the ground in G
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.
H
108 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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,
8 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 .
C 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
D 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 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
E 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
F 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
G 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
H "the FSL") Report, Ext. P-15, was placed on record, however,
GOVINDARAJU@ GOVINDA v. STATE BY 109
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
no person from the FSL, Bangalore or Calcutta was examined A
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 B
therein 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, C
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. o
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 E
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 F
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 and Mo3 were the knife and the blood-stained shirt G
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 H
110 SUPREME COURT REPORTS (2012] 5 S.C.R.
A 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
s 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
c 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:-
D "(1) Horizontally placed stab wound present over front and
right side of chest situated 9 ems to the right of midline
and lower border of right nipple measuring 3.5cm x 1.5cms
x chest cavity deep. Margins are clear cut, inner end
pointed outer end blunt.
E (2) Obliquely placed stab wound present over front of left
side chest, situated over the left nipple, it is placed 11 ems
to the left of mid line, measuring 2.5 ems x 1cm x chest
cavity deep, margins are clear cut, upper inner end is
pointed, lower outer end is blunt.
F
(3) Horizontally placed stab wound present over front and
outer aspect of left side of chest, situated 5 ems below the
level of left nipple, 17 ems to the left of mid line measuring
4 cm x 1.5 ems x 5 ems, directed upwards and to the right
in the muscle plane, inner end is pointed, outer end is blunt,
G
margins are clean cut.
(4) Superficially incised wound present over front of left side
chest, horizontally placed measuring 6 cm x 1 ems.
(5) Obliquely placed stab wound present over front and
H
GOVINDARAJU@ GOVINDA v. STATE BY 111
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
right side of chest, situated 1 cm to the right of mid-line A
and 4 cm below the level of right nipple measuring 2 cm
X 1 cm X 3 ems, 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, B
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.
c
39. The injuries were piercing injuries between the
intercasal 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
0
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 E
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, F
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 G
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 thickly populated area. Thus, the statement of PW-
1 does not even find corroboration from the medical evidence H
112 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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,
B 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
C 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
D 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
E would have made it possible to arrest the accused at the
earliest.
41. The High Court, while setting aside the judgment of
acquittal in favour of the appellant Govindaraju, has also noticed
F 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
G 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
H
GOVINDARAJU@ GOVINDA v. STATE BY 113
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
immediately arresting, if not all, at least one of the accused, A
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
8
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 hands of the assailants. Therefore, he was
running away from them but the assailants were chasing him C
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 D
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
~br. E
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
F
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 G
the doctor, who performed the post mortem and examined the
victim before he was declared dead as well as of the Head
Constable and 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 H
114 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B 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
c 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
D 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
E 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 hand
F 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
G
- 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
H
GOVINDARAJU @ GOVINDA v. STATE BY 115
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
inference may arise. If the witnesses already examined are A
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 B
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. c
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
0
of the village is not disputec:t....... ."
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 E
vacuum in the case of the prosecution. The doctor was a cited
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 F
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 G
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 H
116 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B 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
examined despite their availability. This Court in the case of
Takhaji Hiraji (supra) clearly stated that material witness is one
c 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
0
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
E by proven facts. This view was reiterated by this Court in the
case of Yakub lsmailbhai Patel v. State of Gujarat [(2004) 12
sec 229].
46. We are certainly not indicating that despite all this, the
F 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
G witnesses when the Investigating Officer recorded the statement
of 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
H SCC 652)}. Similar would be the situation where the attesting
GOVINDARAJU @ GOVINDA v. STATE BY 117
SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.]
witnesses turn hostile, but where the statement of the Police A
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
in.itial distrust to discard such evidence. B
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 C
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 D
us and the principle of laws afore-noticed. The case of the
prosecution, thus, suffers from proven improbabilities,
infirmities, contradictions and the statement of the sole witness,
the Police Officer, PW1 , is not reliable and worthy of credence.
E
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,
F
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. G
N.J. Appeal allowed.
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