Deyyala Suryanarayana Suribabu vs The State Of A.P.
2021 Latest Caselaw 2979 AP

            THE HON'BLE SRI JUSTICE A.V.SESHA SAI
                                  AND
             THE HON'BLE MS. JUSTICE J.UMA DEVI

              CRIMINAL APPEAL No. 1035 OF 2012

JUDGMENT: (Per Hon'ble Sri Justice A.V.Sesha Sai)

       Sole-accused in Sessions Case No.102 of 2010 on the file

of the Court of the XI Additional District and Sessions Judge

(Fast Track Court), Kakinada, East Godavari District, is the

appellant in the present Criminal Appeal, preferred under sub-

section (2) of Section 374 of the Code of Criminal Procedure,

1973 (hereinafter referred to, as 'Cr.P.C.').       In the present

Criminal Appeal, appellant herein assails the judgment dated

29.12.2011, rendered by the learned Sessions Judge in the

said Sessions Case.       By way of the impugned judgment, the

learned Sessions Judge convicted the accused-appellant herein

for the offences alleged under Sections 302 and 392 I.P.C. and

sentenced him with life imprisonment for the offence under

Section 302 I.P.C. and with rigorous imprisonment for a period

of ten years for the offence under Section 392 I.P.C.


       2.     The case of the prosecution, in nutshell, is as

follows:

       The deceased was a native of Kulla village and his family

owned Acs.5.00 cents of land in the said village and out of the

said extent of land, the deceased and his brothers owned

Acs.2.30 cents of land.       The deceased migrated to Kakinada

and along with his family, he was residing in Island colony,

Turangi, Kakinada Rural Mandal. The deceased was an agent

of Agri Gold Agencies and he was looking after the management
                                2




of the above said Acs.5.00 cents of land. The accused and his

paternal uncle one Mr. Deyyala Ramanjaneyulu (P.W.7), were

cultivating the above said land of Acs.5.00 cents on lease basis.

The deceased and his paternal uncle had the intention to sell

Acs.2.30 cents of land and when they informed the same to the

accused and his paternal uncle (P.W.7), they arranged the

purchasers and one Smt. Namala Anantha Lakshmi of

Rajahmundry, who was examined as P.W.11, agreed to

purchase the land. In furtherance of the said transaction, the

purchaser paid a sum of Rs.10,000/- to the deceased towards

advance and the deceased requested the purchaser to pay an

amount of Rs.2,00,000/- as an advance and on 16.06.2008, at

about 2-00 p.m., P.W.7 and P.W.8 went to the house of

Anantha Lakshmi (P.W.11) at Rajahmundry and P.W.11 had

given Rs.2,00,000/- to hand over the same to the deceased and

P.W.8 kept the said cash bundles in polythene cover and later

they brought the amount to Kulla village in between 5-00 and

6-00 p.m. on the same day and by the time the deceased came

to the village from Kakinada and was waiting to collect the

amount and Bodapati Surya Chandra Rao (L.W.8) handed over

the said amount to the deceased and the deceased counted the

cash and kept it in a small rexine bag.        From there, the

deceased went to his old tiled house along with the accused

and both of them spent some time and thereafter, both of them

left Kulla village on their respective motorcycles separately.

The accused came to Gangavaram village and parked his

motorcycle in the premises of K.Venkata Rao, APSRTC Complex

and he brought one hammer and kept it at his waist secretly
                                   3




and asked the deceased to take him to Kakinada and then, the

accused boarded the motorcycle of the deceased at about 8-00

p.m. The father-in-law of the deceased telephoned to him and

enquired his whereabouts and the deceased informed him that

he was in Gorripudi and he was returned to his house about

half an hour and at about 8-10 p.m., Palepu Rambabu (P.W.12)

also telephoned to the deceased and came to know that the

accused was present along with him and contacted the accused

and the accused informed that both of them were at Kulla

village.      During the night of the same day, on the way to

Kakinada, when the deceased and the accused reached the

fields of one Mr. Atla Venkanna, the accused asked the

deceased to stop the motorcycle and accordingly the deceased

stopped the motorcycle and the accused attacked him with

hammer and killed him by strangulation with the belt of the

bag and escaped from the scene of offence with an amount of

Rs.2,00,000/-.      With the above allegations, the police filed a

charge sheet for the offences punishable under Sections 302 &

392 I.P.C. for alternatively Section 411 I.P.C. and the same was

numbered as P.R.C. No.13 of 2009 and thereafter, the learned

Magistrate committed the P.R.C. to the Court of Sessions. The

learned Sessions Judge framed the charges against the

accused for the alleged offences under Sections 302 & 392

I.P.C.


         3.     In order to substantiate its case, the prosecution

examined P.Ws.1 to 21 and marked Exs.P.1 to P.12 and

Exs.D.1 and D.2, apart from M.Os.1 to 18 and no witnesses

were examined on behalf of the accused nor any documents
                                4




were marked.    Subsequent to the closure of the evidence of

prosecution witnesses, the accused-appellant herein was

examined under Section 313 Cr.P.C. and the accused denied

the commission of offence.


      4.    The learned Sessions Judge framed the following

points for consideration:

    "1. Whether the accused killed the deceased?

     2. Whether the accused robbed the deceased and
    taken away Rs.2 lakhs from him?

     3. Whether the prosecution proved the guilty of the
    accused beyond all reasonable doubt."



      5.    The learned Sessions Judge, by way of the

impugned judgment, convicted the accused-appellant herein

and sentenced him in the manner indicated supra. Hence, the

present Criminal Appeal.


      6.    Sri Ambati Sreekanth Reddy, learned counsel for

the appellant contends that the impugned judgment is highly

erroneous and contrary to law and if the same is allowed to

sustain, it would result in miscarriage of justice. It is further

contended that in the absence of any eyewitnesses, the Court

below grossly erred in convicting the accused on presumptions

and surmises; that no prosecution witness spoke about the

presence of the accused at the time of occurrence of the alleged

offence; the prosecution failed to prove that the Court below,

without any evidence on record, presumed the involvement of

the accused-appellant herein in the alleged offences and the
                                 5




prosecution miserably failed in establishing the continuous

link.    It is further submitted that having regard to the

discrepancies in the evidence of the prosecution witnesses, the

learned Sessions Judge grossly erred in convicting the

accused-appellant herein.

        In support of his submissions, learned counsel for the

appellant/accused places reliance on the following judgments:

    1) Sirima Narasimha Rao Vs. State of Andhra Pradesh1.
    2) Sattatiya Alias Satish Rajanna Kartalla Vs. State of
        Maharashtra2.
    3) Padala Veera Reddy Vs. State of Andhra Pradesh and
        others3.
    4) Sharad Birdhichand Sarda Vs. State of Maharashtra4.


        7.    On the contrary, learned Special Assistant Public

Prosecutor, Sri S.Venkata Sainadh, while supporting the case

of the prosecution and the judgment impugned, strenuously

contends that there is no error nor there exists any infirmities

in the impugned judgment and in the absence of the same, the

interference of this Court under Section 374(2) Cr.P.C. is not

warranted; that there are no contradictions in the evidence of

the prosecution witnesses and the evidence let in on behalf of

the prosecution is consistent, as such, the conviction cannot be

faulted. Learned Public Prosecutor eventually prays this Court

to dismiss the present Criminal Appeal.

        In support of his submissions and contentions, learned

Special Assistant Public Prosecutor, Sri S.Venkata Sainadh,

takes the support of the following judgments:

1
  LAWS (APH) 2009 7 101
2
  (2008) 3 SCC 210
3
  1989 Supp. (2) SCC 706
4
  (1984) 4 SCC 116
                                     6




    (1) State, Government of NCT of Delhi Vs. Sunil and
         another5.
    (2) Rajesh Kumar and another Vs. State Government of
         NCT of Delhi6.
    (3) Kiriti Pal Vs. State of West Bengal7.
    (4) Munish Mubar Vs. State of Haryana8.
    (5) Surajdeo Mahto and another Vs. State of Bihar9.
    (6) Kalu    alias      Laxminarayan   Vs.   State   of   Madhya
         Pradesh10.
    (7) Manoj Suryavanshi Vs. State of Chhattisgarh11.


         8.    In the above background, now the issues that arise

for consideration of this Court in the present Criminal Appeal

are as follows:

    (1) Whether the prosecution proved the guilt of the
         accused beyond reasonable doubt?

    (2) Whether the learned Sessions Judge is correct in
         convicting the accused for the offences under
         Sections 302 and 392 I.P.C.?



    (3) Whether the impugned judgment warrants any
         interference of this Court under Section 374(2) of
         Cr.P.C.?



    9.         It is a settled and well-established position of law

that when there is no eyewitness and the entire case of the

prosecution rests on circumstantial evidence, the Courts are

required to evaluate, assess and examine the evidence on

record in meticulous manner, while arriving at conclusion.

5
  (2001) 1 SCC 652
6
  (2008) 4 SCC 493
7
  (2015) 11 SCC 178
8
  (2012) 10 SCC 464
9
  2021 SCC Online SC 542
10
   (2019) 10 SCC 211
11
   (2020) 4 SCC 451
                                    7




Admittedly, in the instant case, there is no eyewitness for the

alleged offences and the entire prosecution case rests on

circumstantial evidence.


      10.     As mentioned supra, on behalf of the prosecution,

P.Ws.1 to 21 were examined and Exs.P.1 to P.12 were marked,

apart from marking Exs.D.1 and D.2 and M.Os.1 to 18. P.W.1

is no other than the father-in-law of the deceased, P.W.2 is the

wife of the deceased, P.W.3 is the brother-in-law of the

deceased and P.W.4 is the resident of Jagannadhapuram,

Kakinada Town.           P.W.1, who is the father-in-law of the

deceased and who lodged Ex.P.1-complaint, deposed that the

accused     and    one    Mr.   Anjaneyulu   (P.W.7)   were   jointly

cultivating the land on lease basis.          He spoke about the

transaction pertaining to sale and purchase of the property.

During the course of cross-examination, he categorically

deposed that the accused was taken to the police station by the

police in the evening of 17.06.2008 and that on 18.06.2008,

Rs.2,00,000/- cash was recovered.            He also deposed that

P.W.12 told him that he telephoned to the deceased on

17.06.2008.       P.W.2, who is no other than the wife of the

deceased, also spoke in the same lines.         P.W.3, who is the

brother-in-law of the deceased, is also not an eyewitness to the

incident.   According to P.W.4, he saw the dead body of the

deceased which was lying in the fields, situated in between

bridge and Patragadda by the side of the road. P.W.5, who is a

resident of Tanukuwada village of Kajuluru Mandal and

running a medical shop, deposed that on 16.06.2008, while he

was going to his village on a motorcycle from Kakinada after
                                8




purchasing medicines from wholesale dealer, he found one

Hero Honda motorcycle bearing registration No.AP 5BE 5739

lying by the side of the road in between Patragadda and

Penukuduru which belongs to the deceased.           P.W.6, who is

also not an eyewitness to the incident, stated that he asked

P.W.7 and the accused about the deceased and that he was

informed that the deceased was given Rs.2,00,000/- towards

sale consideration and the deceased went away. According to

P.W.6, he along with one Chintha Venkateswarlu (P.W.4) went

to the scene of offence and found the dead body of the deceased

lying in the fields and they also found Agri Gold bag, cell

phone, belt relating to the pant by the side of the dead body.

P.W.7, who is paternal uncle of the deceased, turned hostile.

P.W.8, who is a resident of Kulla village, deposed that he along

with Veerabhatla Nageswara Rao and P.W.6 arranged the

purchase of the land. P.W.9, who is also a resident of Kulla

village and the President of Anjuru Co-operative Agricultural

Society, spoke about the sale transaction. P.W.10 and P.W.11,

who are also the villagers of Kulla village, also spoke about the

sale transaction.


      11.     P.W.15 is a panch witness for Ex.P.7-Mahazar

report. P.W.16 is an inquestdar, P.W.17 is the Head Constable,

P.W.18 is the doctor, who conducted postmortem examination,

P.W.19   is   the   Sub-Inspector   of   Police,   P.W.20   is   the

Investigating Officer and P.W.21 is the Nodal Officer of Airtel

Company.
                                   9




      12.    The prosecution relies upon strongly on the

evidence of P.Ws.1, 12, 13, 15, 20 and 21 to substantiate its

case. Therefore, this Court needs to examine the evidence of

the said witnesses thoroughly.        P.W.12 is a practicing PMP

doctor and the deceased was the son of his father-in-law's

brother. According to his evidence, he spoke to the accused

when he was travelling with the deceased from his cell phone

bearing No.9290769743.


      13.    According to the case of the prosecution, P.W.12

made a call to cell phone No.9908851307 and according to the

prosecution case, the said cell number belongs to the accused,

but the fact remains that the prosecution utterly failed in

adducing evidence to demonstrate that the said cell number

belongs to the accused. In fact, a suggestion was also made to

him during the course of cross-examination that he had grudge

against the deceased for selling the share of his father-in-law

without his consent. It is also significant to note that the cell

phone alleged to have been used by the accused was also not

produced.    In the absence of any evidence to show that the

accused     was   travelling   with   the   deceased   and   P.W.12

telephoned to accused, while he was travelling with the

deceased, it is not safe and advisable to come to a conclusion

against the accused.       In fact, P.W.20-Investigating Officer

categorically admitted that he did not file any document

showing the cell No.9908851307 belongs to the accused.

P.W.21, a Nodal Officer in the Airtel Company, also deposed

that he did not bring the particulars of the users' names.
                                10




      14.   Coming to the evidence of P.W.13 -- According to

his chief-examination, on 16.06.2008 at about 7-00 p.m., the

accused kept his Chetak scooter in his scooter stand and went

away and returned at about 12-00 midnight.      He also deposed

that he does not know the number of the Chetak scooter. He

also categorically deposed that he had no acquaintance with

the accused and was not in the habit of noting down the names

of the persons parking their vehicles in his stand and he did

not obtain any licence from the Panchayat.        It is also very

much clear from his evidence that no identification parade was

also conducted. In view of the same, it is not safe to rely upon

the evidence of P.W.13 also.


      15.   Another discrepancy which is fatal to the case of

the prosecution is that according to P.W.1, the accused was

detained on 17.06.2008 and amount of Rs.2,00,000/- was

recovered on 18.06.2008. Coming to the evidence of P.W.15 --

He deposed that on 28.06.2008, he was summoned by the

Inspector of Police to go to Kulla village and himself and one

Shaik Subhan, Village Servant accompanied the Inspector of

Police (P.W.20) and accused was taken into custody.            He

further deposed that in their presence, M.Os.7 and 18 were

recovered. He further deposed that the accused produced the

hammer and cash of Rs.2,00,000/- from the hay heap.

According to P.W.15, he attested Ex.P.7-Mahazar report.


   16.      In this context, it may be appropriate to refer to the

judgments cited by the learned counsel for the accused-

appellant herein. In Sirima Narasimha Rao's case (1 supra), it
                                      11




is held by the composite High Court at paragraph No.23 as

follows:

            "23. From the principle laid down by the
      Supreme       Court,   the    circumstance     of   last-seen
      together would normally be taken into consideration
      for finding the accused guilty of the offence charged
      with when it is established by the prosecution that
      the time gap between the point of time when the
      accused and the deceased were found together alive
      and when the deceased was found dead is so small
      that possibility of any other person being with the
      deceased could completely be ruled out. The time gap
      between the accused persons seen in the company of
      the deceased and the detection of the crime would be
      a material consideration for appreciation of the
      evidence and placing reliance on it as a circumstance
      against the accused. But, in all cases, it cannot be
      said that the evidence of last seen together is to be
      rejected merely because the time gap between the
      accused persons and the deceased last seen together
      and the crime coming to light is after a considerable
      long duration. There can be no fixed or straight
      jacket formula for the duration of time gap in this
      regard and it would depend upon the evidence led by
      the prosecution to remove the possibility of any other
      person meeting the deceased in the intervening
      period, that is to say, if the prosecution is able to
      lead such an evidence that likelihood of any person
      other than the accused, being the author the crime,
      becomes       impossible,      then     the    evidence    of
      circumstance of last seen together, although there is
      long duration of time, can be considered as one of
      the circumstance in the chain of circumstances to
      prove the guilt against such accused persons. Hence,
      if the prosecution proves that in the light of the facts
      and circumstances of the case, there was no
      possibility    of   any      other    person   meeting    or
      approaching the deceased at the place of incident or
                                    12




     before    the    commission        of        the    crime,    in     the
     intervening period, the proof of last seen together
     would be relevant evidence."



  17.         In Sattatiya Alias Satish Rajanna Kartalla's case (2

supra), it is held by the Hon'ble Supreme Court at paragraph

Nos.10 and 11 as under:

              "10. We have thoughtfully considered the
     entire matter. It is settled law that an offence can be
     proved not only by direct evidence but also by
     circumstantial evidence where there is no direct
     evidence. The Court can draw an inference of guilt
     when all the incriminating facts and circumstances
     are found to be totally incompatible with the
     innocence       of   the    accused.           Of    course,         the
     circumstances from which an inference as to the
     guilt is drawn have to be proved beyond reasonable
     doubt and have to be shown to be closely connected
     with the principal fact sought to be inferred from
     those circumstances.

              11. In Hanumant Govind Nargundkar v. State
     of M.P. [AIR 1952 SC 343], which is one of the
     earliest decisions on the subject, this court observed
     as under:
         "It is well to remember that in cases where
         the evidence is of a circumstantial nature,
         the circumstances from which the conclusion
         of guilt is to be drawn should be in the first
         instance be fully established and all the facts
         so established should be consistent only with
         the hypothesis of the guilt of the accused.
         Again, the circumstances should be of a
         conclusive nature and tendency and they
         should      be   such    as         to     exclude       every
         hypothesis but the one proposed to be
         proved. In other words, there must be a
         chain of evidence so far complete as not to
                                  13




            leave any reasonable ground for a conclusion
            consistent with the innocence of the accused
            and it must be such as to show that within
            all human probability the act must have
            been done by the accused." "



  18.         In Padala Veera Reddy's case (3 supra), the

Hon'ble Supreme Court at paragraph Nos.18 to 22 held as

under:


              "18. No doubt, this murder is diabolical in
     conception and cruel in execution but the real and
     pivotal    issue   is   whether   the   totality   of   the
     circumstances unerringly establish that all the
     accused or any of them are the real culprits. The
     circumstances indicated by the learned Counsel
     undoubtedly create a suspicion against the accused.
     But would these circumstances be sufficient to hold
     that the respondents 2 to 4 (accused 1 to 3) had

committed this heinous crime. In our view, they are not.

19. There are series of decisions holding that no one can be convicted on the basis of mere suspicion, however, strong it may be. Though we feel it is not necessary to re-capitulate a 11 those decisions we will refer to a few on this point.

20. this Court in Palvinder Kaur v. The State of Punjab 1953 SCR 94 has pointed out that in cases dening on circumstantial evidence courts should safeguard themselves against the danger of basing their conclusions on suspicions how so ever strong.

21. In Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra, it has been observed:

"It is well settled that no one can be convicted on the basis of mere suspicion,

though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety."

22. In Sharad Birdhichand Sarda v. State of Maharashtra, this Court has reiterated the above dictum and pointed out that the suspicion, however, great it may be, cannot take the place of legal proof and that "fouler the crime higher the proof". "

19. In Sharad Birdhichand Sarda's case (4 supra), the

Hon'ble Supreme Court at paragraph No.153 held as follows:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra [SCC para 19. P.807 : SCC (Crl) p.1047] where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

20. Coming to the judgments cited by the learned

Public Prosecutor -- In State, Government of NCT of Delhi's case

(5 supra), the Hon'ble Supreme Court held as under:

"19. In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or

document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. vs. S. Sardar Ali & ors. (1983 SC 1225). Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: (SCC p.254, para 8).

"Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself."

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-

independent years but it is time now to start placing at

least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

21. In Rajesh Kumar's case (6 supra), the Hon'ble

Supreme Court at paragraph No.9 held as follows:

"9. A bare reading of sub-sections (1) and (2) of Section 293 shows that it is not obligatory that an expert who furnishes his opinion on the scientific issue of the chemical examination of substance, should be of necessity made to depose in proceedings before the Court. This aspect has been highlighted by this Court in Ukha Kolhe v. State of Maharashtra [AIR 1963 SC 1531] and Bhupinder Singh v. State of Punjab [(1988) 3 SCC 513]. Therefore, there is no substance in the revision petition so far as the conviction is concerned."

22. In Kiriti Pal's case (7 supra), the Hon'ble Supreme

Court held at paragraph No.18 as follows:

"In State of U.P. vs. Satish (2005) 3 SCC 114, this Court had stated the last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, in paragraph 23, this Court has held as under:- (SCC p.

265).

23. "It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when

the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., In Re."

23. In Munish Mubar's case (8 supra), the Hon'ble

Supreme Court at paragraph Nos.31 and 32 held as follows:

"23. The issue of non-examination of independent witnesses and reliance upon the deposition of police officials as "Panch witnesses" was considered at length by this Court in State, Govt. of NCT of Delhi v. Sunil & Anr., (2001) 1 SCC 652, wherein this Court held as under:

"20. ....But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust......... At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was

recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross- examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

It is obligatory on the part of the accused, while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation, even in a case of circumstantial evidence, so to decide, whether or not, the chain of circumstances is complete. The aforesaid judgment has been approved and followed in Musheer Khan v. State of Madhya Pradesh, (2010) 2 SCC. (See also Transport Commr. V. S.Sardar Ali (1983) 4 SCC 245: AIR 1983 SC 1225.

32. In view of the aforesaid discussion, it is evident that in spite of the fact that in case there is no independent witness of recoveries and panch witnesses are only police personnel, it may not affect the merits of the case. In the instant case, the defence did not ask this issue in the cross-examination to Inspector Shamsher Singh (PW.21) as why the independent

person was not made the panch witness. More so, it was the duty of the appellant to furnish some explanation in his statement under Section 313 Cr.PC., as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, the call records of his telephone make it evident that he was present in the vicinity of the place of occurrence and under what circumstances recovery of incriminating material had been made on his voluntary disclosure statement. Merely making a bald statement that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allegations made by the appellant could be established."

24. In Surajdeo Mahto's case (9 supra), the Hon'ble

Supreme Court at paragraph Nos.26, 28, 29, 30, 31 and 39,

held as follows:

"26. Regardless of such self-imposed restrain, and in the interest of justice, we have given thoughtful consideration to the rival submissions and have endeavored to peruse and discussed the entire evidence on record to ascertain whether or not the concurrent finding of conviction suffers from any perversity and/or whether the conviction of the appellants is legally and factually sustainable.

A. Whether the guilt of the accused has been proved beyond reasonable doubt?

28. These five cardinal principles have been reiterated on numerous occasions, including in the recent decisions in Mohd. Younus Ali Tarafdar v. State of W.B9 & R. Damodaran v. State Represented by the Inspector of Police (1984) 4 SCC 116 and 153 (2020) 3 SCC 747. Keeping these conditions in mind, we shall now examine the case at hand.

29. It appears to us that the following circumstances need to be considered to arrive at the guilt of the appellants: (i) Last seen theory; (ii) Motive &

(iii) false information provided and subsequent conduct of the appellants.

(i) Last seen theory.

30. The case of the prosecution in the present case heavily banks upon the principle of 'Last seen theory'. Briefly put, the last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Elaborating on the principle of "last seen alive", a 3-- judge bench of this Court in the case of Satpal v. State of Haryana [(2018) 6 SCC 610] has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence. The Court further held:

".................Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of

circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."

31. We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused.

39. If motive in a case is attributed to an accused(s) and thereafter proved, the probability of the crime being committed by the said accused is intensified. It is for this reason, that in cases of overwhelming circumstantial evidence, proof of motive will be an important piece of corroborative evidence, as well as, form a vital link in the chain of evidence."

25. In Kalu alias Laxminarayan's case (10 supra), the

Hon'ble Supreme Court held at paragraph No.11 as follows:

"10. The aforesaid factors leave us satisfied that the prosecution has been able to successfully establish a case for a homicidal death inside the house where the deceased resided with the appellant alone. The conduct of the appellant, in the aforesaid background, now becomes important. If the deceased had committed suicide, we find it strange that the appellant laid her body on the floor after bringing her

down but did not bother to inform anyone living near him much less the parents of the deceased. There is no evidence that the information was conveyed to the family members of the deceased by the appellant or at the behest of the appellant. The appellant was also not found to be at home when her family members came the next morning. The appellant offered no defence whatsoever with regard to his absence the whole night and on the contrary PW 3 attempted to build up a case of alibi on behalf of the appellant, when he himself had taken no such defence under Section 313, Cr.P.C."

26. In Manoj Suryavanshi's case (11 supra), the

Hon'ble Supreme Court held at paragraph No.18 as follows:

"16. Before considering the submissions made on behalf of the accused, few findings recorded by the learned Trial Court and confirmed by the High Court, are required to be first referred to. The prosecution has been successful in establishing and proving that the accused was having enmity with Shivlal father of the three deceased minor children. The same has been established and proved by the prosecution by examining ShivlalP.W.18, Manisha P.W.20 and Rameshwar P.W.11. The prosecution has been successful in proving that on 11.02.2011 all the minors deceased Ajay, Vijay and Kumari Sakshi went to the school from their house. The prosecution has also been successful in establishing and proving that on 11.02.2011 at about 11.30 hours the deceased minors left for home on foot; that the minors did not return to their home. On 11.02.2011 at about 12.00 noon - 1.00 pm, the deceased were seen going with the accused in school uniform with their school bags. Therefore, the accused was last seen together with the deceased minors. That, after the incident, the accused was not found at his house and was missing even from the village. During the search by ShivlalP.W.18 and others

and after the accused was not found in the village, there were phone calls on the mobile of the accused. That, thereafter, the accused was found from the house of his relative Ashok Kumar MadhukarP.W.13. Immediately after his arrest, the dead bodies were recovered/found along with the school bags etc. from the place shown by the accused himself. The aforesaid are the chain of events which led to the conclusion that the accused first kidnapped the three minor children and thereafter killed all of them. The phone calls made to the accused has been established and proved by the prosecution by examining the Investigating Officer and by producing the call details from the mobile company as Ex.P.30."

27. It is significant to note that no witness examined

on behalf of the prosecution deposed that he/she saw the

accused accompanying the deceased from Kulla village to

Kakinada. Though P.W.13 deposed that the accused parked

his vehicle in his parking area at about 7-00 p.m. and he came

back at about midnight at 12-00 a.m., from the said version of

P.W.13, it can neither be presumed not it can be inferred that

the accused accompanied the deceased from Kulla village to

Kakinada and no credence can be given to his evidence to link

the accused with the commission of the offence and it is not

safe to convict the accused on the basis of the said evidence of

P.W.13.

28. Coming to the last scene theory sought to be

pressed into service by the prosecution, it needs to be noted

that the prosecution neither produced the cell phone said to

have been used by the accused nor the prosecution was

successful in establishing that cell phone No.9908851307

belongs to the accused. The attempt of the prosecution to

connect the accused with the commission of the offence on the

basis of the phone call said to have been made by P.W.12 also

cannot stand in view of the same. The reason for not

furnishing the name of the owner of the SIM number is not

forthcoming and it is undoubtedly fatal to the case of the

prosecution and the said failure on the part of the prosecution

in connecting the link undoubtedly enures to the benefit of the

accused. Absence of any suggestion to the said effect during

the cross-examination of P.W.12, in the considered opinion of

this Court, cannot be the basis to connect the accused with the

commission of offence and it is the duty of the prosecution to

demonstrate the existence of the continuous chain of links to

prove the guilt of the accused. In the considered opinion of

this Court, the judgments cited by the learned counsel for the

appellant-accused would squarely apply to the facts and

circumstances of this case and the judgments sought to be

pressed into service by the learned Assistant Public Prosecutor,

having regard to the facts and circumstances of the case,

would not render any assistance to the case of the prosecution.

29. In the absence of examining Sri Shaik Subhan who

also accompanied P.W.15 on the date of Ex.P.7, it is also not

safe to place reliance on the evidence of P.W.8 to come to a

conclusion against the accused-appellant herein. In view of the

reasons mentioned supra, this Court has absolutely no scintilla

of hesitation to arrive at a conclusion that the prosecution

utterly failed to prove the guilt of the accused/appellant herein

beyond reasonable doubt.

30. For the aforesaid reasons, the Criminal Appeal is

allowed and the conviction and sentence recorded against the

appellant herein-accused, vide judgment dated 29.12.2011, by

the XI Additional District and Sessions Judge (Fast Track

Court), Kakinada, East Godavari District, in Sessions Case

No.102 of 2010, are hereby set aside. The appellant herein-

accused is found not guilty of the offences with which he is

charged and is accordingly, acquitted of the same. The

appellant herein-accused shall be set at liberty and he shall be

released forthwith, if he is not required in any other case. Fine

amount, if any paid by the appellant herein-accused, shall be

refunded to him.

As a sequel, miscellaneous petitions, if any pending in

this appeal, shall stand closed.

____________________ A.V.SESHA SAI, J

_________________ J. UMA DEVI, J Date: 11.08.2021

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THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE MS. JUSTICE J.UMA DEVI

CRIMINAL APPEAL No. 1035 OF 2012

Date: 11.08.2021

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