Govindaraju @ Govinda vs State By Sriramapuram P.S. & Anr

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 984 OF 2007

Govindaraju @ Govinda ... Appellant

Versus

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

J U D G M E N T

Swatanter Kumar, J.

1. The present appeal is directed against the judgment of

conviction and order of sentence recorded by the High Court of

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

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

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

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

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

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

Sriramapuram Police Station, PW1, was proceeding towards his

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

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

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

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

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

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

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

spot, he saw the accused Govindaraju @ Govinda addressing one

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

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

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

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

Conservancy and disappeared into darkness. After this

unsuccessful attempt, PW1 returned to the spot and saw the

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

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

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

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

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

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

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

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

investigated the case. The Investigating Officer, during the course

of investigation, examined a number of witnesses, collected blood

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soaked earth and got recovered the knives with which the

deceased was assaulted. Having recovered the weapons of crime,

the Investigating Officer had sent these weapons for examination

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

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

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

Commissioner of Police, Malleswaram, Bangalore, that the stains

specimen cuttings/scraping was referred to Serologist at Calcutta

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

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

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

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

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

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

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

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

sheet before the Court of competent jurisdiction. The matter was

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

trial as the third accused was absconding and was not traceable

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

thereto. The learned Sessions Judge had framed the charge

against the accused under Section 302 read with Section 34 IPC

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

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

appellant namely, Govindaraju @ Govinda and Govardhan @

Gunda.

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

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

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

judgment of acquittal in favour of Govardhan @ Gunda and

granted the leave to appeal against Govindaraju @ Govinda vide

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

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

Govindaraju guilty of the offence under Section 302 IPC and

sentenced him to civil imprisonment for life and fine of

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

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

Court, the accused Govindaraju @ Govinda has filed the present

appeal.

Points on which reversal of the judgment of acquittal by the

High Court is challenged:

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

settled principles of criminal jurisprudence governing the

conversion of order of acquittal into one that of conviction.

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

errors of law and appreciation of evidence. All the

witnesses had turned hostile and the conviction of the

appellant could not be based upon the sole testimony of a

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

contended that the appellant Govindaraju @ Govinda has

been falsely implicated in the case.

(iii) No independent or material witnesses were examined by

the prosecution. Recovery of the alleged weapons of crime

have not been proved in accordance with the provisions of

Section 27 of the Indian Evidence Act, 1872 (hereafter

referred to as "the Act").

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

Police Officer cannot by itself be made the basis for

holding that there was lawful recovery, admissible in

evidence, from the appellant.

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

evidence, even in regard to the injuries alleged to have

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

story put forward by PW1 is not only improbable but is

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impossible of being true.

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

scientific evidence.

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

charged with an offence under Section 302 read with

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

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

Govardhan @ Gunda was not granted. Thus, the acquittal

of the said accused attained finality. Once the accused

Govardhan @ Gunda stands acquitted and the role

attributable to the appellant-Govindaraju is lesser

compared to that of Govardhan, the present appellant was

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

thus, suffers from legal infirmities.

4. Contra to the above submissions, the learned counsel

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

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

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

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

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

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

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

Magistrate. This proved the truthfulness of the case of the

prosecution. The weapons of offence were recovered from the

house of the appellant. The panchas have admitted their

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

the collective evidence, both documentary and ocular, the

prosecution has been able to prove its case beyond any reasonable

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

any interference.

5. Keeping in view the submissions made by learned counsel

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

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

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

judgment of acquittal, the State had preferred application for leave

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

Govindaraju was granted by the High Court while it was refused

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

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

examine whether the High Court was justified in over turning the

judgment of acquittal in favour of the appellant passed by the

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

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

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

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

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

that there is presumption of innocence in favour of the accused

and that presumption is reinforced by an order of acquittal

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

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

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

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

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

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

6. Besides the rules regarding appreciation of evidence, the

Court has to keep in mind certain significant principles of law

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

and presumption of innocence, which are the twin essentials of

administration of criminal justice. A person is presumed to be

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

criminal charge, he enjoys the benefits of such presumption

which could be interfered with by the courts only for compelling

reasons and not merely because another view was possible on

appreciation of evidence. The element of perversity should be

9

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

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

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

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

an indication that appeal from acquittal is placed at a somewhat

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

then there is hardly any difference between a normal appeal and

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

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

between the order of acquittal and consideration of the judgment

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

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

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

entertained except with the leave of the High Court. This

legislative intent of attaching a definite value to the judgment of

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

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

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

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

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

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

Court should be fully convinced that the findings returned by the

10

trial court are really erroneous and contrary to the settled

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

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

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

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

appeal against acquittal and an appeal against conviction but the

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

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

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

very case, the Court also examined various judgments of this

Court dealing with the principles which may guide the exercise of

jurisdiction by the Appellate Court in an appeal against a

judgment of acquittal. We may usefully refer to the following

paragraphs of that judgment:

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

certain fundamental procedural values, which are right to

fair trial and presumption of innocence. A person is

presumed to be innocent till proven guilty and once held to

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

such presumption which could be interfered with only for

valid and proper reasons. An appeal against acquittal has

always been differentiated from a normal appeal against

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

appearing in the judgment, the appellate court would be

within its jurisdiction to interfere with the judgment of

acquittal, but otherwise such interference is not called for.

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

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case of State of Rajasthan, Through Secretary, Home

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

this Court discussed the limitation upon the powers of the

appellate court to interfere with the judgment of acquittal

and reverse the same.

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

under:-

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

judgment of conviction was converted to a judgment of

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

question that we need to consider is, in what

circumstances this Court should interfere with the

judgment of acquittal. Against an order of acquittal, an

appeal by the State is maintainable to this Court only with

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

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

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

imprisonment or imprisonment for more than 10 years,

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

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

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

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

it is obvious that an appeal against acquittal is considered

on slightly different parameters compared to an ordinary

appeal preferred to this Court.

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

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

cautious in taking away that right. The presumption of

innocence of the accused is further strengthened by the

fact of acquittal of the accused under our criminal

jurisprudence. The courts have held that if two views are

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

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

However, this principle must be applied keeping in view

the facts and circumstances of a case and the thumb rule

is that whether the prosecution has proved its case beyond

reasonable doubt. If the prosecution has succeeded in

discharging its onus, and the error in appreciation of

evidence is apparent on the face of the record then the

court can interfere in the judgment of acquittal to ensure

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

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around which the administration of criminal justice

revolves.

14. It is a settled principle of criminal jurisprudence

that the burden of proof lies on the prosecution and it

has to prove a charge beyond reasonable doubt. The

presumption of innocence and the right to fair trial are

twin safeguards available to the accused under our

criminal justice system but once the prosecution has

proved its case and the evidence led by the prosecution,

in conjunction with the chain of events as are stated to

have occurred, if, points irresistibly to the conclusion

that the accused is guilty then the court can interfere

even with the judgment of acquittal. The judgment of

acquittal might be based upon misappreciation of

evidence or apparent violation of settled canons of

criminal jurisprudence.

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

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

was concerned with a case where the accused had been

found guilty of an offence punishable under Section 304

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

had been acquitted by the High Court of Madhya

Pradesh. The appeal was dismissed by this Court,

stating that the Supreme Court's interference was

called for only when there were substantial and

compelling reasons for doing so. After referring to

earlier judgments, this Court held as under: (SCC

pp. 138-39, paras 9-10)

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

the evidence upon which an order of acquittal is based.

Generally, the order of acquittal shall not be interfered

with because the presumption of innocence of the

accused is further strengthened by acquittal. The golden

thread which runs through the web of administration of

justice in criminal cases is that if two views are possible

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

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

view which is favourable to the accused should be

adopted. The paramount consideration of the court is to

ensure that miscarriage of justice is prevented. A

miscarriage of justice which may arise from acquittal of

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the guilty is no less than from the conviction of an

innocent. In a case where admissible evidence is

ignored, a duty is cast upon the appellate court to

reappreciate the evidence where the accused has been

acquitted, for the purpose of ascertaining as to whether

any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be

followed by the appellate court considering the appeal

against the judgment of acquittal is to interfere only

when there are compelling and substantial reasons for

doing so. If the impugned judgment is clearly

unreasonable and relevant and convincing materials

have been unjustifiably eliminated in the process, it is a

compelling reason for interference. These aspects were

highlighted by this Court in Shivaji Sahabrao Bobade v.

State of Maharashtra, Ramesh Babulal Doshi v. State of

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

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

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

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

10. When the conclusions of the High Court in the

background of the evidence on record are tested on the

touchstone of the principles set out above, the

inevitable conclusion is that the High Court's judgment

does not suffer from any infirmity to warrant

interference."

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

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

discussed the scope of interference by this Court in an

order of acquittal and while reiterating the view of a

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

State of Rajasthan, the Court held as under:

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

the well-settled principle that when the court has to

exercise its discretion in an appeal arising against an

order of acquittal, the court must remember that the

innocence of the accused is further re-established by

the judgment of acquittal rendered by the High Court.

Against such decision of the High Court, the scope of

interference by this Court in an order of acquittal has

been very succinctly laid down by a three-Judge Bench

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of this Court in Sanwat Singh v. State of Rajasthan

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

then was) culled out the principles as follows:

`9. The foregoing discussion yields the following results:

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

evidence upon which the order of acquittal is founded;

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

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

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

different phraseology used in the judgments of this

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

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

"strong reasons", are not intended to curtail the

undoubted power of an appellate court in an appeal

against acquittal to review the entire evidence and to

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

not only consider every matter on record having a

bearing on the questions of fact and the reasons given

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

its arriving at a conclusion on those facts, but should

also express those reasons in its judgment, which lead

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

17. Reference can also be usefully made to the

judgment of this Court in Suman Sood v. State of

Rajasthan, where this Court reiterated with approval

the principles stated by the Court in earlier cases,

particularly, Chandrappa v. State of Karnataka.

Emphasising that expressions like "substantial and

compelling reasons", "good and sufficient grounds",

"very strong circumstances", "distorted conclusions",

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

extensive powers of an appellate court in an appeal

against acquittal, the Court stated that such

phraseologies are more in the nature of "flourishes of

language" to emphasise the reluctance of an appellate

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

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

evidence points to the guilt of the accused and the

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

may interfere with an order of acquittal."

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

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appeal against conviction on the one hand and acquittal

on the other. The preponderance of judicial opinion of

this Court is that there is no substantial difference

between an appeal against conviction and an appeal

against acquittal except that while dealing with an

appeal against acquittal the Court keeps in view the

position that the presumption of innocence in favour of

the accused has been fortified by his acquittal and if the

view adopted by the High Court is a reasonable one and

the conclusion reached by it had its grounds well set out

on the materials on record, the acquittal may not be

interfered with. Thus, this fine distinction has to be

kept in mind by the Court while exercising its appellate

jurisdiction. The golden rule is that the Court is obliged

and it will not abjure its duty to prevent miscarriage of

justice, where interference is imperative and the ends of

justice so require and it is essential to appease the

judicial conscience.

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

principles which may be taken into consideration by the

appellate court while dealing with an appeal against

acquittal. There is no absolute restriction in law to

review and re-look the entire evidence on which the

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

appellate court finds that the lower court's decision is

based on erroneous views and against the settled

position of law then the said order of acquittal should be

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

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

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

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

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

reference to the present case whether the impugned

judgment of acquittal recorded by the High Court suffers

from any legal infirmity or is based upon erroneous

appreciation of evidence.

13. In our considered view, the impugned judgment does

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

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

we are required not to interfere with a judgment of

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acquittal."

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

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

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

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

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

the witnesses in the witness box and the presumption of

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

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

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

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

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

Maharashtra [(1974) 3 SCC 762].

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

obvious that the golden thread which runs through the web of

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

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

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

favourable to the accused should be adopted. There are no

jurisdictional limitations on the power of the Appellate Court but

it is to be exercised with some circumspection. The paramount

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consideration of the Court should be to avoid miscarriage of

justice. A miscarriage of justice which may arise from the

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

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

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

appeal while correcting the errors of law and in appreciation of

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

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

really called for.

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

judgment, noticed that the prosecution had examined eleven

witnesses, produced fifteen documents and three material objects.

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

examined to establish the fact that the knife was seized vide

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

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

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

Govardhan. Even they did not support the case of the

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

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

Sheshidhar, the third eye-witness who were examined to

corroborate the evidence of PW1 openly stated contrary to the case

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of the prosecution and did not support the version and statement

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

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

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

particularly when there was no evidence to corroborate even his

statement. The Court doubted the recovery and also the manner

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

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

turned hostile and had bluntly denied their presence during the

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

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

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

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

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

as a result of stab injuries sustained and even the medical

evidence did not support the case of the prosecution. The

accused had suffered certain injuries upon his hand and fingers.

Referring to these observations, the trial court had returned the

finding of acquittal of both the accused.

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

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

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

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evidence or whether the trial court's judgment suffered from

certain erroneous approach and was based on conjectures and

surmises in contradistinction to facts proved by evidence on

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

mind while dealing with such appeals against the order of

acquittal is that interference by the Court is justifiable only when

a clear distinction is kept between perversity in appreciation of

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

quite appropriate for the High Court to merely record that the

judgment of the trial court was perverse without specifically

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

and/or appreciation of evidence, as otherwise such observations

of the High Court may not be sustainable in law.

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

the appellant that the material witness has not been examined

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

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

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

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

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

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

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

20

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

into three categories:-

a. Wholly reliable;

b. Wholly unreliable; and

c. Neither wholly reliable nor wholly unreliable.

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

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

either by the other witnesses or by other documentary or expert

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

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

accepted with caution and after testing it on the touchstone of

evidence tendered by other witnesses or evidence otherwise

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

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

been stated by the prosecution. When the prosecution relies upon

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

wholly reliable and trustworthy. Presence of such witness at the

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

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

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

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

consistently and with certainty. Reference in this regard can be

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

and Tika Ram v. State of Madhya Pradesh (2007) 15 SCC 760. Even in the case of Jhapsa Kabari and Others v. State of Bihar

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

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

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

basing the conviction on the testimony of a solitary witness so

long as the said witness is reliable and trustworthy.

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

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

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

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

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

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

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

trustworthy and consistent with the course of events, the

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

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

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

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

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

trustworthiness, reliability or otherwise of the testimony of this

22

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

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

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

officer falsely implicating innocent persons cannot be ruled out.

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

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

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

alone had witnessed the occurrence as per the case of the

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

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

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

witness is reliable, trustworthy, cogent and duly corroborated by

other witnesses or admissible evidences, then the statement of

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

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

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

by overzealousness to an extent of his involving innocent people;

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

such witness.

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

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

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

23

their evidence cannot be accepted unless it is corroborated in

material particulars by other independent evidence. The

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

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

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

even if such evidence is otherwise reliable and trustworthy. The

rule of prudence may require more careful scrutiny of their

evidence. If such a presumption is raised against the police

officers without exception, it will be an attitude which could

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

only bring down the prestige of the police administration.

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

scrutiny, inspires confidence and is found to be trustworthy and

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

some independent witness of the locality does not in any way

affect the creditworthiness of the prosecution case. The courts

have also expressed the view that no infirmity attaches to the

testimony of the police officers merely because they belong to the

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

down that conviction cannot be recorded on the evidence of the

police officials, if found reliable, unless corroborated by some

independent evidence. Such reliable and trustworthy statement

24

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

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

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

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

Saurashtra AIR 1956 SC 217, a judgment pronounced more than

half a century ago noticing the principle that the presumption

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

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

distrust and suspect him without good grounds therefor. This

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

Some of the cases dealing with the aforesaid principle are being

referred hereunder.

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

similar question, the Court held as under:-

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

the testimony of the police officials, merely

because they belong to the police force and

there is no rule of law or evidence which lays

down that conviction cannot be recorded on the

evidence of the police officials, if found reliable,

unless corroborated by some independent

evidence. The Rule of Prudence, however, only

requires a more careful scrutiny of their

evidence, since they can be said to be

interested in the result of the case projected by

them. Where the evidence of the police

officials, after careful scrutiny, inspires

confidence and is found to be trustworthy and

reliable, it can form basis of conviction and the

absence of some independent witness of the

25

locality to lend corroboration to their evidence,

does not in any way affect the creditworthiness

of the prosecution case."

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

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

basis of conviction when it is reliable, trustworthy and preferably

corroborated by other evidence on record.

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

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

the statement of such hostile witnesses that supports the case of

the prosecution can always be taken into consideration.

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

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

precision cogently and if such a statement is corroborated by

other evidence, documentary or otherwise, then such statement in

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

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

to act with greater caution and accept such evidence with greater

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

evidence so considered should unequivocally point towards the

guilt of the accused.

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

the above principles. As already noticed, the prosecution had

26

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

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

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

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

The prosecutor was granted permission to cross-examine him

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

the prosecution, however, strangely he was not confronted with

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

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

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

appears from the record, he was not confronted with his

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

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

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

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

never told the police that the accused had come chasing one

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

incident.

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

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

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

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

27

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

which recoveries were effected, including the knife and clothes of

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

stated that his signatures were obtained in the Police Station.

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

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

complaint in the Police Station, Srirampur in regard to any

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

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

to have been recovered in his presence.

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

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

Investigating Officer.

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

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

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

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

Govindaraju was one of the three persons who were chasing the

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

accused Govindaraju telling one of the other persons Govardhan,

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

and started chasing those assailants who were running away in a

28

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

Thereafter, a Police Constable and a Head Constable came there

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

Hospital. The doctors after examining the victim declared him

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

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

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

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

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

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

investigation to PW-11.

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

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

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

accused persons chasing the victim from about a distance of 75

feet.

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

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

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

yards before the injuries were inflicted on the deceased by the

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

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

29

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

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

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

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

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

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

have been assaulted with knife by some miscreants on 7th

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

hospital.

27. In furtherance to the proceedings taken out under Section

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

deceased Shri Ananda had identified the body of the deceased and

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

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

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

Before this, a man named Govindaraju and the deceased had

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

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

is quite unbelievable that he would indulge in committing such a

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

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

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

30

PW1 had seen three accused chasing and then inflicting injuries

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

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

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

cautiously examines the prosecution evidence, the gaps become

more and more widened and the lacunae become more significant.

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

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

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

and he could have easily displayed his weapon and called upon

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

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

sort was done by him.

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

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

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

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

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

inspire confidence. Another aspect is that all the witnesses who

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

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

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

31

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

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

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

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

Bar and had seen the occurrence.

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

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

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

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

prosecution evidence. Besides this, all other witnesses who,

according to the prosecution, had seen the accused committing

the crime completely turned hostile and in no way supported the

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

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

corroboration by other witnesses or evidences adds to the

statement of PW-1 lacking credence and reliability.

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

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

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

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

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

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

32

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

He had recorded statements of various witnesses. Goverdhan

had made a voluntary statement and got recovered the blood

stained knife alongwith blood stained clothes, which were taken in

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

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

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

were produced before the doctor and his opinion was sought.

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

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

important witnesses were not examined or got examined by this

investigating officer. The doctor who had performed the post

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

produced before the Court. The Head Constable who had come

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

was present immediately after the occurrence was also not

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

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

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

for reasons best known to the Investigating Officer/prosecution.

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

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

33

that the specimen cuttings/scrapings were referred to Serologist

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

report would be received from Bangalore, the same would be

forwarded to the Court, which never happened.

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

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

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

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

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

FSL has been of no help to the prosecution.

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

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

Firstly, these recoveries were made not in conformity with the

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

memos do not bear the signatures of the accused upon their

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

of weapons and secondly, all the recovery witnesses have turned

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

According to PW4 and PW5, nothing was recovered from the

appellant Govindaraju. According to PW6 and PW8, nothing was

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

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

34

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

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

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

from the conservancy at the behest of the accused, Goverdhan

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

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

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

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

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

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

affected during the course of an investigation and in accordance

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

statement of the investigating officer has to be reliable and so

trustworthy that even if the attesting witnesses to the seizure

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

is otherwise corroborated by the prosecution evidence, which is

certainly not there in the present case.

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

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

doctor as follows:-

"(1) Horizontally placed stab wound present over

front and right side of chest situated 9 cms to the

right of midline and lower border of right nipple

35

measuring 3.5cm x 1.5cms x chest cavity deep.

Margins are clear cut, inner end pointed outer end

blunt.

(2) Obliquely placed stab wound present over front of

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

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

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

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

blunt.

(3) Horizontally placed stab wound present over

front and outer aspect of left side of chest, situated

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

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

directed upwards and to the right in the muscle

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

margins are clean cut.

(4) Superficially incised wound present over front of

left side chest, horizontally placed measuring 6 cm

x 1 cms.

(5) Obliquely placed stab wound present over front

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

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

measuring 2 cm X 1 cm X 3 cms, directed

upwards, backwards to the left in the muscle

plane, margins are clean out. Upper inner end is

pointed and lower outer end is blunt.

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

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

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

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

chest.

39. The injuries were piercing injuries between the intercasal

36

space and the stab injuries damaged both the heart and the

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

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

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

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

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

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

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

accused Govindaraju was not stabbing the deceased but, was

watching the police coming towards them and had called upon

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

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

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

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

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

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

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

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

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

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

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

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

37

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

even find corroboration from the medical evidence on record. The

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

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

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

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

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

unfortunately, did not support the case of the prosecution.

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

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

learned trial Court.

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

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

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

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

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

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

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

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

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

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

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

38

accused at the earliest.

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

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

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

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

This observation of the High Court is without any foundation.

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

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

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

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

nothing prevented an effective and efficient police officer from

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

believed then nothing prevented him from stopping the

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

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

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

public place like near VNR Bar.

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

victim was being chased by assailants. This suggests that there

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

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

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

39

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

them but the assailants were chasing him holding the weapons in

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

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

settled canon of appreciation of evidence that a presumption

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

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

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

state whether the victim had suffered any injuries earlier or not

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

PW-1 and the former were chasing the latter.

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

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

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

prosecution. Once, all these witnesses turned hostile and the

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

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

and circumstances of the present case.

44. There is certainly some content in the submissions made

before us that non-production of material witnesses like the

doctor, who performed the post mortem and examined the victim

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

40

the Constable who reached the site immediately upon the

occurrence and the other two witnesses turning hostile, creates a

reasonable doubt in the case of the prosecution and the court

should also draw adverse inference against the prosecution for not

examining the material witnesses. We have already dwelled upon

appreciation of evidence at some length in the facts and

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

of the prosecution as it should have proved its case beyond

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

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

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

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

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

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

the High Court on the prosecution case finding

fault therewith for non-examination of

independent witnesses. It is true that if a material

witness, who would unfold the genesis of the

incident or an essential part of the prosecution

case, not convincingly brought to fore otherwise,

or where there is a gap or infirmity in the

prosecution case which could have been supplied

or made good by examining a witness who though

available is not examined, the prosecution case

can be termed as suffering from a deficiency and

withholding of such a material witness would

oblige the court to draw an adverse inference

against the prosecution by holding that if the

witness would have been examined it would not

have supported the prosecution case. On the other

41

hand if already overwhelming evidence is available

and examination of other witnesses would only be

a repetition or duplication of the evidence already

adduced, non-examination of such other witnesses

may not be material. In such a case the court

ought to scrutinise the worth of the evidence

adduced. The court of facts must ask itself --

whether in the facts and circumstances of the

case, it was necessary to examine such other

witness, and if so, whether such witness was

available to be examined and yet was being

withheld from the court. If the answer be positive

then only a question of drawing an adverse

inference may arise. If the witnesses already

examined are reliable and the testimony coming

from their mouth is unimpeachable the court can

safely act upon it, uninfluenced by the factum of

non-examination of other witnesses. In the present

case we find that there are at least 5 witnesses

whose presence at the place of the incident and

whose having seen the incident cannot be doubted

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

they were not present at the place of the incident

and did not participate therein. The injuries

sustained by these witnesses are not just minor

and certainly not self-inflicted. None of the

witnesses had a previous enmity with any of the

accused persons and there is apparently no reason

why they would tell a lie. The genesis of the

incident is brought out by these witnesses. In fact,

the presence of the prosecution party and the

accused persons in the chowk of the village is not

disputed........"

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

supposes that withholding was of such material witnesses who

could have stated precisely and cogently the events as they

occurred. Without their examination, there would remain a

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

42

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

Constable and the Constable appears in the Police investigation

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

the post mortem report and FSL report were exhibited and could

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

prosecution remains unexplained and the chain of events

unconnected. For instance, the Head Constable could have

described the events that occurred right from the place of

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

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

Head Constable and one Constable to apprehend all the accused

or any of them immediately after the occurrence or even make

enquiry about their names. Similarly, the doctor could have

explained whether inflicting of such injuries with the knife

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

could have explained whether or not the weapons of offence

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

whether the clothes of the deceased contained the same blood

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

crime. The uncertainties and unexplained matters of the FSL

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

justification on record as to why these witnesses were not

43

examined despite their availability. This Court in the case of

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

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

of the prosecution case and by examining such witnesses the gaps

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

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

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

the witnesses who were necessary to unfold the narrative of the

incident and though not examined, but were cited by the

prosecution, certainly raises a suspicion. When the principal

witnesses of the prosecution become hostile, greater is the

requirement of the prosecution to examine all other material

witnesses who could depose in completing the chain by proven

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

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

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

statement of the Police Officer for recovery and other matters

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

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

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

doubt in accordance with law. Mere absence of independent

witnesses when the Investigating Officer recorded the statement of

44

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

a sufficient ground to discard the evidence of the Police Officer

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

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

Similar would be the situation where the attesting witnesses turn

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

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

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

Police should be presumed to be regularly performed and there is

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

such evidence.

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

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

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

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

High Court appears to have interfered with the judgment of

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

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

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

has acted on certain legal and factual presumptions which cannot

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

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

45

from proven improbabilities, infirmities, contradictions and the

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

reliable and worthy of credence.

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

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

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

Govardhan attaining finality, upon the case of the present

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

open.

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

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

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

stand discharged.

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

[A.K. Patnaik]

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

[Swatanter Kumar]

New Delhi;

March 15, 2012

46