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

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 2 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 3 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 4 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.

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 7 "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.

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.

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."

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.

33. At the cost of repetition, we may refer to the contents of Ex.P15, the report of the FSL, Bangalore. It is recorded therein 33 that the specimen cuttings/scrapings were referred to Serologist Calcutta for its origin and grouping results. As and when the report would be received from Bangalore, the same would be forwarded to the Court, which never happened.

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.

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.

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.

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.

[Swatanter Kumar] New Delhi;

March 15, 2012 46