TMI Blog2012 (3) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in favor of Govardhan attained finality. We have to examine whether the High Court was justified in over turning the judgment of acquittal in favor of the Appellant passed by the Trial court on merits of the case. The law is well-settled that an appeal against an order of acquittal is also an appeal under the Code of Criminal Procedure, 1973 (for short 'Code of Criminal Procedure.') 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 favor 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 L.Rs. 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 Jurisprudenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cence in favor 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 case of State of Rajasthan, Through Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable 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 Indian Penal Code 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and Ors., (1985) 4 SCC 476, Raj Kishore Jha v. State of Bihar and 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Ors. 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as much in favor 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 inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 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 Code of Criminal Procedure. for the reasons best known to the prosecutor. PW-9 was cited as another eye-witness, who completely denied the case of the prosecution. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PW-1 does not 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 Mahaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thickly populated area. Thus, the statement of PW-1 does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as being chased by assailants. This suggests that there must have been something else earlier to that event, some injuries might have been caused to the victim. On the other hand, it indicates that victim was aware of some danger to his life at the hands of the assailants. Therefore, he was running away from them but the assailants were chasing him 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 defense 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses 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 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 and 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 perf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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