GOVINDARAJU@ GOVINDA versus STATE BY SRIRAMAPURAM P.S. & ANR.

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 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 A examining the victim declared him 'brought dead'. PW-1, on checking the pockets of the victim, found his identity card from which he got his details. He returned to the police station, rang up the higher officers and registered a case suo-moto in Criminal Appeal No. 358 of 1998 whereafter an FIR was B registered. Ext. P-1, bore his signature at Ext. P-1 (a) and the same was later handed over for further investigation to PW-11.

25. The first and foremost point that invites the attention of this Court is that according to the PW-1, he was nearly 30 yards away from the place where the victim fell on the ground C and he saw the accused persons chasing the victim from about a distance of 75 feet.

26. As per his statement in cross-examination, he was on a motor cycle. It is not understandable why he could not D increase the speed of his motor cycle so as to cover the distance of 30 yards before the injuries were inflicted on the deceased by the accused. Surely, seeing the police at such a short distance, the accused, if they were involved in the crime, would not have the courage of stabbing the victim (deceased) E in front of a police officer who was carrying a gun. In the FIR (Ex. P-2) he had not mentioned the names of the accused. He did not even mention to PW-11 as to who the assailants were. On the contrary, in the post-mortem report, Ex. P-9, it has been recorded that as per police requisition in Forms 14(i) and (ii) the victim was said to have been assaulted with knife by some F miscreants on 7th December, 1998 and he was pronounced dead on arrival to the hospital.

27. In furtherance to the proceedings taken out under Section 174 of the Cr.P.C, it may be noticed that the brother G of the deceased Shri Ananda had identified the body of the deceased and made a statement before the Police saying that at the midnight of 7th December, 1998, wife of the deceased had come and informed him that her husband was killed by some goons at Srirampur. Before this, a man named H Govindaraju and the deceased had lodged Police complaint GOVINDARAJU@ GOVINDA v. STATE BY SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.] 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. 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 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, 8 according to the prosecution, had seen the accused committing the crime completely turned hostile and in no way supported the case of the prosecution. The statement of PW-1 therefore, suffers from improbabilities and is not free of suspicion. Its non- corroboration by other witnesses or evidences adds to the . C statement of PW-1 lacking credence and reliability.

31. PW-11 is the Investigating Officer. He verified the FIR, went to the hospital and after deputing a Constable to take care of the dead body, he left for the scene of occurrence. Upon reaching there, he prepared a Spot Mahazar in presence of the D witnesses, collected blood stains in plastic and sealed it. At about 15 feet away from the place of occurrence, he found a pair of chappal and a car belonging to the deceased which was also seized by him. He had recorded statements of various witnesses. Goverdhan had made a voluntary statement and got E recovered the blood stained knife alongwith blood stained clothes, which were taken in to custody. The post mortem report Ext. P-9 was also received by him. The blood stained clothes were sent to the FSL for opinion and the report thereof was received as Ext. P-15. The weapons were produced before the F doctor and his opinion was sought.

32. Even in relation to this witness (PW-11), there are certain lurking doubts. Firstly, it may be noticed that certain very important witnesses were not examined or got examined by this investigating officer. The doctor who had performed the post G mortem and prepared the Post Mortem Report, Ext. P-9, was not produced before the Court. The Head Constable who had come to the help of PW-1 for taking the deceased to the hospital and was present immediately after the occurrence was also not examined. The Forensic Science Laboratory (for short H "the FSL") Report, Ext. P-15, was placed on record, however, GOVINDARAJU@ GOVINDA v. STATE BY SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.] 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 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. o

35. Now, we will come to the recoveries which are stated to have been made in the present case, particularly the weapon of crime. Firstly, these recoveries were made not in conformity with the provisions of Section 27 of the Indian Evidence Act, 1872. The memos do not bear the signatures of the accused 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 (2012] 5 S.C.R. A it was human blood, and if so, then was it of the same blood group as the deceased or not. Certainly, we should not be understood to have stated that a police officer by himself cannot prove a recovery, which he has affected during the course of an investigation and in accordance with law. However, it is to s be noted that in such cases, the statement of the investigating officer has to be reliable and so trustworthy that even if the attesting witnesses to the seizure turns hostile, the same can still be relied upon, more so, when it is otherwise corroborated by the prosecution evidence, which is certainly not there in the c present case.

37. Ext. P-9 is the post mortem report of the deceased. The injuries on the body of the deceased have been noticed by the doctor as follows:- "(1) Horizontally placed stab wound present over front and right side of chest situated 9 ems to the right of midline and lower border of right nipple measuring 3.5cm x 1.5cms x chest cavity deep. Margins are clear cut, inner end pointed outer end blunt. (2) Obliquely placed stab wound present over front of left side chest, situated over the left nipple, it is placed 11 ems to the left of mid line, measuring 2.5 ems x 1cm x chest cavity deep, margins are clear cut, upper inner end is pointed, lower outer end is blunt. (3) Horizontally placed stab wound present over front and outer aspect of left side of chest, situated 5 ems below the level of left nipple, 17 ems to the left of mid line measuring 4 cm x 1.5 ems x 5 ems, directed upwards and to the right in the muscle plane, inner end is pointed, outer end is blunt, margins are clean cut. (4) Superficially incised wound present over front of left side chest, horizontally placed measuring 6 cm x 1 ems. (5) Obliquely placed stab wound present over front and GOVINDARAJU@ GOVINDA v. STATE BY SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.] 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 ems, directed upwards, backwards to the left in the muscle plane, margins are clean out. Upper inner end is pointed and lower outer end is blunt.

38. From a bare reading of the above post-mortem report, it is clear that there were as many as 10 injuries on the person of the deceased. The doctor had further opined that death was due to shock and hemorrhage as a result of stab injuries found on the chest. c

39. The injuries were piercing injuries between the intercasal space and the stab injuries damaged both the heart and the lungs. It has been noticed by the High Court that according to PW-1, the victim was not able to talk. The post mortem report clearly establishes injuries by knife. But the vital 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 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 D trace the accused in the conservancy where they had got lost, along with the help of the Constable/Head Constable, as the case may be. This is an important link which is missing in the case of the prosecution, as it would· have given definite evidence in regard to the identity of the accused as well as E would have made it possible to arrest the accused at the earliest.

41. The High Court, while setting aside the judgment of acquittal in favour of the appellant Govindaraju, has also noticed that it may not have been possible for the PW-1 to notice the details explained in the complaint Ext. P-1, while riding a motor bike. This observation of the High Court is without any foundation. Firstly, PW-1 himself could have stated so, either before the Court or in Ext. P-1. Secondly, as per his own statement, his distance was only 75 feet when he noticed the G accused chasing the victim and only 30 feet when the victim fell on the ground. Thus, nothing prevented an effective and efficient police officer from precluding the stabbing. If this version of the PW-1 is to be believed then nothing prevented him from stopping the commission of the crime or at least GOVINDARAJU@ GOVINDA v. STATE BY SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.] 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 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 ~br.

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 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 c 145] wherein this Court held as under:- "19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the 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 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 GOVINDARAJU @ GOVINDA v. STATE BY SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.] 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. c None of the witnesses had a previous enmity with any of the accused persons and there is apparently no reason why they would tell a lie. The genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputec:t ……. ."

45. The applicability of the principle of 'adverse inference' pre-supposes that withholding was of such material witnesses who could have stated precisely and cogently the events as they occurred. Without their examination, there would remain a vacuum in the case of the prosecution. The doctor was a cited witness but was still not examined. The name of the Head Constable and the Constable appears in the Police investigation but still they were not examined. It is true that in their absence the post mortem report and FSL report were 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 A knife recovered was even possible or not. The expert from the FSL could have explained whether or not the weapons of offence contained human blood and, if so, of what blood group and whether the clothes of the deceased contained the same blood group as was on the weapons used in the commission B of the crime. The uncertainties and unexplained matters of the FSL report could have been explained by the expert. There is no justification on record as to why these witnesses were not examined despite their availability. This Court in the case of Takhaji Hiraji (supra) clearly stated that material witness is one c who would unfold the genesis of the incident or an essential part of the prosecution case and by examining such witnesses the gaps or infirmities in the case of the prosecution could be supplied. If such a witness, without justification, is not examined, inference against the prosecution can be drawn by the Court. 0 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 E by proven facts. This view was reiterated by this Court in the case of Yakub lsmailbhai Patel v. State of Gujarat [(2004) 12 sec 229].

46. We are certainly not indicating that despite all this, the F statement of the Police Officer for recovery and other matters could not be believed and form the basis of conviction but where the statement of such witness is not reliable and does not aspire confidence, then the accused would be entitled to the benefit of doubt in accordance with law. Mere absence of independent G witnesses when the Investigating Officer recorded the statement of the accused and the article was recovered pursuant thereto, is not a sufficient ground to discard the evidence of the Police Officer relating to recovery at the instance of the accused. {See State Government of NCT of Delhi v. Sunil & Anr. [(2001) 1 H SCC 652)}. Similar would be the situation where the attesting GOVINDARAJU @ GOVINDA v. STATE BY SRIRAMAPURAM P.S. [SWATANTER KUMAR, J.] 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 in.itial 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 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. N.J. Appeal allowed.