# GOVINDARAJU@ GOVINDA v. STATE BY SRIRAMAPURAM P.S. & ANR

- **Citation:** [2012] 5 S.C.R. 67
- **Court:** Supreme Court of India
- **Decided:** 2012-03-15
- **Case number:** Criminal Appeal No. 984 of 2007
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/govindaraju-govinda-v-state-by-sriramapuram-p-s-anr-28333
- **Pages:** 51

## Headnote

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,
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
A
B
c
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 witnesspolice officer not reliable and worthy of credence - Eyewitnesses, 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,
contradictions - Appellant acquitted u/s. 302.
F
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
0 suspicion and lacked credence and reliability - Conviction of
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 -
H
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
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

## Text

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[2012] 5 S.C.R. 67
GOVINDARAJU@ GOVINDA
V.
STATE BY SRIRAMAPURAM P.S. & ANR.
(Criminal Appeal No. 984 of 2007)
MARCH 15, 2012
[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,
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
A
B
c
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 witnesspolice officer not reliable and worthy of credence - Eyewitnesses, 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,
contradictions - Appellant acquitted u/s. 302.
F
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
0 suspicion and lacked credence and reliability - Conviction of
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 -
H
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
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
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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
0 against 'GR'. 'GR' was convicted under Section 302 fPC
and sentenced to imprisonment for life and fine of
Rs.10,000/-. Therefore, the appellant filed the instant
appeal.
E
Allowing the appeal, the Court
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 reappreciate, 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
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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
0 criminal law. [Para 6) [90-A-H; 91-A]
E
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.
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
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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
B
of other weaknesses in the case of the prosecution,
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; 102A-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]
F
4.2 According to the PW-1 (complainant and police
officer), 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. As per his statement in crossexamination, 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
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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] [106H 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 eyewitness 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 witnesses0
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; 109A-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) [109D-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, PW7 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] [111B-H; 112-A-B]
8
4.8 As per the statement of PW 1, Head Constable and
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,
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]
E
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; 114A-B]
B
Takhaji Hiraji v. Thakore Kubersing Chamansing and
Ors. (2001) 6 SCC 145 - relied on.
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] [115-0H; 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
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
F
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; 117A-B]
State Government of NCT of Delhi v. Sunil & Anr. (2001)
8 1 sec 652: 2000 (5) Suppl. SCR 144 - relied on.
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
F
(2012) 1 sec 602
Referred to
Para 6
(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) 1 o 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.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The present appeal is
D
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.