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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

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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

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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

16

acquittal.”

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

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

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

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

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

the  witnesses  in  the  witness  box  and  the  presumption  of  

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

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

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

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

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

Maharashtra [(1974) 3 SCC 762].

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

obvious that the golden thread which runs through the web of  

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

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

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

favourable  to  the  accused  should  be  adopted.   There  are  no  

jurisdictional limitations on the power of the Appellate Court but  

it is to be exercised with some circumspection.  The paramount

17

consideration  of  the  Court  should  be  to  avoid  miscarriage  of  

justice.   A  miscarriage  of  justice  which  may  arise  from  the  

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

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

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

appeal while correcting the errors of law and in appreciation of  

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

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

really called for.

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

judgment,  noticed  that  the  prosecution  had  examined  eleven  

witnesses, produced fifteen documents and three material objects.  

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

examined  to  establish  the  fact  that  the  knife  was  seized  vide  

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

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

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

Govardhan.   Even  they  did  not  support  the  case  of  the  

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

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

Sheshidhar,  the  third  eye-witness  who  were  examined  to  

corroborate the evidence of PW1 openly stated contrary to the case

18

of the prosecution and did not support the version and statement  

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

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

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

particularly when there was no evidence to corroborate even his  

statement.  The Court doubted the recovery and also the manner  

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

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

turned hostile and had bluntly denied their presence during the  

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

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

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

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

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

as  a  result  of  stab  injuries  sustained  and  even  the  medical  

evidence  did  not  support  the  case  of  the  prosecution.   The  

accused had suffered certain injuries upon his hand and fingers.  

Referring to these observations, the trial court had returned the  

finding of acquittal of both the accused.  

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

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

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

19

evidence  or  whether  the  trial  court’s  judgment  suffered  from  

certain erroneous approach and was based on conjectures and  

surmises  in  contradistinction  to  facts  proved  by  evidence  on  

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

mind  while  dealing  with  such  appeals  against  the  order  of  

acquittal is that interference by the Court is justifiable only when  

a clear distinction is kept between perversity in appreciation of  

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

quite appropriate for the High Court to  merely record that the  

judgment  of  the  trial  court  was  perverse  without  specifically  

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

and/or appreciation of evidence, as otherwise such observations  

of the High Court may not be sustainable in law.

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

the appellant  that the material  witness has not been examined  

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

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

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

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

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

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

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

20

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

into three categories:-

a. Wholly reliable;

b. Wholly unreliable;   and

c. Neither wholly reliable nor wholly unreliable.

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

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

either by the other witnesses or by other documentary or expert  

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

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

accepted with caution and after testing it  on the touchstone of  

evidence  tendered  by  other  witnesses  or  evidence  otherwise  

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

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

been stated by the prosecution.  When the prosecution relies upon  

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

wholly reliable and trustworthy.  Presence of such witness at the  

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

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

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

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

consistently and with certainty.  Reference in this regard can be

21

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

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

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

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

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

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

basing the conviction on the testimony of a solitary witness so  

long as the said witness is reliable and trustworthy.  

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

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

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

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

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

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

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

trustworthy  and  consistent  with  the  course  of  events,  the  

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

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

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

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

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

trustworthiness,  reliability or otherwise of the testimony of this

22

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

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

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

officer falsely implicating innocent persons cannot be ruled out.

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

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

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

alone  had  witnessed  the  occurrence  as  per  the  case  of  the  

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

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

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

witness is reliable, trustworthy, cogent and duly corroborated by  

other  witnesses  or  admissible  evidences,  then the  statement  of  

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

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

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

by overzealousness to an extent of his involving innocent people;  

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

such witness.  

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

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

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

23

their  evidence  cannot  be  accepted  unless  it  is  corroborated  in  

material  particulars  by  other  independent  evidence.  The  

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

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

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

even if such evidence is otherwise reliable and trustworthy.   The  

rule  of  prudence  may  require  more  careful  scrutiny  of  their  

evidence.    If  such a  presumption  is  raised  against  the  police  

officers  without  exception,  it  will  be  an  attitude  which  could  

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

only bring down the prestige of the police administration.

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

scrutiny, inspires confidence and is found to be trustworthy and  

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

some independent  witness  of  the  locality  does  not  in  any  way  

affect the creditworthiness of the prosecution case.   The courts  

have  also  expressed the  view that  no  infirmity  attaches  to  the  

testimony of the police officers merely because they belong to the  

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

down that conviction cannot be recorded on the evidence of the  

police  officials,  if  found  reliable,  unless  corroborated  by  some  

independent evidence.    Such reliable and trustworthy statement

24

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

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

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

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

Saurashtra AIR 1956 SC 217, a judgment pronounced more than  

half  a  century  ago noticing  the  principle  that  the  presumption  

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

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

distrust  and suspect  him without good grounds therefor.   This  

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

Some of the cases dealing with the aforesaid principle are being  

referred hereunder.

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

similar question, the Court held as under:-

“6.  … .In our opinion no infirmity attaches to  the  testimony  of  the  police  officials,  merely  because  they  belong  to  the  police  force  and  there is no rule of law or evidence which lays  down that conviction cannot be recorded on the  evidence of the police officials, if found reliable,  unless  corroborated  by  some  independent  evidence.   The Rule of Prudence, however, only  requires  a  more  careful  scrutiny  of  their  evidence,  since  they  can  be  said  to  be  interested in the result of the case projected by  them.    Where  the  evidence  of  the  police  officials,  after  careful  scrutiny,  inspires  confidence and is found to be trustworthy and  reliable, it can form basis of conviction and the  absence  of  some  independent  witness  of  the

25

locality to lend corroboration to their evidence,  does not in any way affect the creditworthiness  of the prosecution case.”

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

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

basis of conviction when it is reliable, trustworthy and preferably  

corroborated by other evidence on record.

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

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

the statement of such hostile witnesses that supports the case of  

the  prosecution  can  always  be  taken  into  consideration.  

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

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

precision  cogently  and  if  such  a  statement  is  corroborated  by  

other evidence, documentary or otherwise, then such statement in  

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

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

to act with greater caution and accept such evidence with greater  

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

evidence  so  considered should unequivocally  point  towards  the  

guilt of the accused.

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

the  above  principles.   As  already  noticed,  the  prosecution  had

26

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

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

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

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

The  prosecutor  was  granted  permission  to  cross-examine  him  

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

the prosecution, however, strangely he was not confronted with  

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

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

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

appears  from  the  record,  he  was  not  confronted  with  his  

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

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

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

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

never  told  the  police  that  the  accused  had  come  chasing  one  

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

incident.

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

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

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

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

27

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

which recoveries were effected, including the knife and clothes of  

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

stated  that  his  signatures  were  obtained in  the  Police  Station.  

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

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

complaint  in  the  Police  Station,  Srirampur  in  regard  to  any  

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

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

to have been recovered in his presence.

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

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

Investigating Officer.

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

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

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

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

Govindaraju was one of the three persons who were chasing the  

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

accused Govindaraju telling one of the other persons Govardhan,  

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

and started chasing those assailants who were running away in a

28

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

Thereafter, a Police Constable and a Head Constable came there  

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

Hospital.   The doctors after  examining the victim declared him  

‘brought  dead’.   PW-1,  on  checking  the  pockets  of  the  victim,  

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

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

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

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

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

investigation to PW-11.   

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

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

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

accused persons chasing the victim from about a distance of 75  

feet.

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

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

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

yards before  the injuries  were inflicted on the deceased by the  

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

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

29

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

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

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

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

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

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

have  been  assaulted  with  knife  by  some  miscreants  on  7th  

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

hospital.

27. In furtherance to the proceedings taken out under Section  

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

deceased Shri Ananda had identified the body of the deceased and  

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

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

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

Before  this,  a  man  named  Govindaraju  and  the  deceased  had  

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

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

is quite unbelievable that he would indulge in committing such a  

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

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

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

30

PW1 had seen three accused chasing and then inflicting injuries  

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

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

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

cautiously examines the prosecution evidence, the gaps become  

more and more widened and the lacunae become more significant.

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

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

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

and he could have easily displayed his weapon and called upon  

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

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

sort was done by him.

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

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

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

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

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

inspire confidence. Another aspect is that all the witnesses who  

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

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

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

31

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

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

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

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

Bar and had seen the occurrence.

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

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

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

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

prosecution  evidence.    Besides  this,  all  other  witnesses  who,  

according to the prosecution, had seen the accused committing  

the crime completely turned hostile and in no way supported the  

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

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

corroboration  by  other  witnesses  or  evidences  adds  to  the  

statement of PW-1 lacking credence and reliability.

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

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

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

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

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

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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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