Telangana High Court

Golla Shekar vs The State Of Ap., on 1 September, 2023

Bench: K.Lakshman, K. Sujana

            THE HON'BLE SRI JUSTICE K.LAKSHMAN
                            AND
             THE HON'BLE SMT. JUSTICE K.SUJANA

               CRIMINAL APPEAL No.830 OF 2013


JUDGMENT: (PER HON'BLE SMT JUSTICE K.SUJANA)


      This appeal is preferred by the appellant being aggrieved by

the judgment dated 10.10.2013 passed by the Additional Sessions

Judge, Vikarabad, Ranga Reddy District, in S.C.No.215 of 2011

wherein, the appellant was convicted for offences punishable under

Sections 302 and 201 of Indian Penal Code (for short 'IPC') and

sentenced to undergo life imprisonment and to pay a fine of

Rs.10,000/-.


2.    The facts of the case are that the appellant/accused lodged a

complaint on 15.12.2010 at about 11:00 A.M., before the SHO,

Shabad Police Station, stating that on 14.12.2010 his wife went

missing when she left the house at about 09:00 A.M., to attend the

calls of nature in the agricultural fields nearer to their house and

did not return since then. The Police registered a case in Cr.No.138

of 2010 under the caption 'woman missing' and took up the

investigation. They also examined PWs.1, 2, 3 and LW.2 and also

issued a look-out notice. While the investigation was in progress,

on 25.12.2010 PW.19 received a phone call from PW.10 at about

08:00 A.M., stating that he found a female dead body in the fields
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                                                Crl.A.No.830 of 2013

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of PW.7 and immediately PW.19 visited the said place and recorded

the statements of PWs.7, 8 and 10 and also conducted an inquest

panchanama on the dead body of deceased. The scene of offence

panchanama was conducted and the dead body was sent for

postmortem examination. The postmortem report discloses that a

packing plastic rope was found around the neck of the deceased.

PWs.1, 2 and 3 suspected the accused for murder of the deceased.

After the investigation, the Section of law was altered from 'women

missing' case, to Section 302 and 201 IPC. The accused was

apprehended from his house and his confessional statement was

recorded. After the recovery of gold chain, gold ear tops and silver

anklets from the accused, his arrest was affected. The charges

framed against the accused were under Sections 302 and 201 IPC

for which the accused has pleaded not guilty.


3.    To prove its case, the prosecution examined PWs.1 to 20 out

of the listed 29 witnesses and marked Exs.P1 to P16 and

Mos.1 to 6.


4.    Basing on the evidence of PWs.1 to 3 and the evidence of

panchas for confession, the trial Court came to the conclusion that

the accused was responsible for the death of the deceased and

therefore, convicted him for the offences punishable under Sections

302 and 201 IPC.
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                                                   Crl.A.No.830 of 2013

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5.    The appellant/accused filed this appeal stating that the trial

Court assessed the evidence contrary to the law and has failed to

see that the entire case rests on the circumstantial evidence and

that the circumstances proved by the prosecution are not

sustainable. It is the case of appellant that the trial Court has

erroneously convicted him by relying on mere suspicion of PW.6

and has also failed to see his confession that was recorded after

four months of the incident. The trial Court failed to see the

recovery of the jewelry from the possession of accused by

investigating Officer which is wrong and has also failed to note that

PWs.14 and 15 who are the panch witnesses for the confession

have not supported the prosecution version and that though they

turned hostile, the trial Court relied on their evidence and that

there is no evidence on record to prove the guilt of the accused.

Therefore, prayed this Court to set aside the conviction and

sentence of the accused by allowing this appeal.


6.    Heard Sri Kuturu Ravinder Reddy Pratap Reddy, learned

counsel for appellant and Sri T.V.Ramana Rao, learned Additional

Public Prosecutor, appearing for respondent - State.

7. Learned counsel for appellant, submits that the trial Court

failed to appreciate the evidence properly and contends that KL, J & SKS, J Crl.A.No.830 of 2013

though there is no evidence on record to prove that the accused

was last seen with the deceased, the trial Court wrongly applied

Section 106 1 of the Evidence Act, 1872 (for short 'Act, 1872') and

surprisingly, the burden was shifted on accused to disprove that

he has not committed the murder of the deceased. He further

contends that the trial Court also relied on the evidence of PWs.6,

15 and 16 who turned hostile and have not supported the

prosecution case. He also contends that though the recovery

basing on the confession statement of the accused was not proved

by the prosecution, the trial Court simply believed the prosecution

version and convicted the accused and asserts that it is the duty of

the prosecution to prove the case beyond reasonable doubt but the

trial Court wrongly shifted the burden to the accused. Therefore,

the conviction of the accused is baseless and prayed this Court to

set aside the judgment of the trial Court by acquitting the accused.

8. On the other hand, the learned Public Prosecutor supported

the judgment of the trial Court. He submits that there is no need to

interfere with the judgment of the trial Court as there are no

infirmities in the said judgment and therefore, prays this Court to

dismiss the appeal.

106. Burden of proving fact especially within knowledge. -- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

KL, J & SKS, J Crl.A.No.830 of 2013

9. Now, the points for determination are :

1. Whether the death of the deceased is homicidal ?

2. Whether the prosecution proved the guilt of the accused for the offences under Sections 302 and 201 IPC beyond reasonable doubt?

3. Whether the judgment of trial Court needs interference?

POINT No.1:

10. To prove that the death of the deceased is a homicidal one,

the prosecution relied on the evidence of PWs.1 to 3. PW.1 is the

father and de facto complainant, PW.2 is the brother of the

deceased and PWs.3 to 5 are the neighbours and circumstantial

witnesses. PW.1 - father, deposed that he performed the marriage

of deceased with accused and they were living happily. Prior to the

incident the deceased came to his house for Dassherra festival and

after the festival, the mother in law of the deceased came to his

house and she took the deceased to their house. Later, the accused

informed that his daughter is missing and later, they came to know

that the dead body of their daughter was found in a heap of mud

and he suspected the accused for the same. PW.2 - brother of the

deceased also deposed on the same lines as that of PW.1.

11. According to the prosecution, PW.8 saw the dead body of

deceased in the fields of PW.7 beside the well in heap of mud and KL, J & SKS, J Crl.A.No.830 of 2013

thereafter, PW.10 saw the dead body and informed the Police. On

receiving the said information, the Police went to the scene where

PW.17 - Deputy Collector, conducted the inquest panchanama

over the dead body of the deceased and sent the dead body to the

hospital for conducting postmortem examination. PW.16 - Tutor,

Department of Forensic Medicine, Osmania Medical College,

deposed that the dead body was found tied with a rope and the

death was due to strangulation. The evidence of PWs.1, 2 and 3,

the postmortem report and the inquest

panchanama - Ex.P10, collectively shows that the death of the

deceased is a homicidal one. Hence, the point is accordingly

answered.

POINT Nos.2 & 3:

12. To prove that the accused is responsible for the murder of

the deceased, the prosecution relied on the evidence of PWs.1 and

2 who are the father and brother of the deceased, respectively.

PWs.1 and 2 suspected that the accused is responsible for the

death of the deceased and alleged that the mother and sister of

accused used to harass the deceased. Both of them have not stated

any particular reason or the type of harassment that was made by

the sister and mother of accused.

KL, J & SKS, J Crl.A.No.830 of 2013

13. PWs. 3 to 5 are the neighbours and circumstantial

witnesses. PW.3's evidence is that she knew the deceased who was

the wife of accused and she also resides in the opposite house of

the same colony as that of accused. She deposed that on the date

of incident when she returned from her work she came to know

that the wife of the accused was missing. PW.4 deposed that at

about two (2) years back when she returned from her work she

came to know that the deceased was missing from her house. PW.5

also deposed on the similar lines as that of PW.4. Therefore, the

evidence of PWs. 3 to 5 is only to the extent that the deceased was

missing from the house of the accused.

14. PW.6 deposed that she knows accused and the deceased and

about two years ago she came to know about the death of the

deceased and she does not know anything other than that. Though

the prosecution relied on the statement of PW.6 that she heard the

hues and cries, she went along with the deceased to attend nature

calls and she saw the accused with the deceased, the said fact was

not brought on record as PW.6 turned hostile.

15. The evidence of PW.7 is that there is a heap of mud beside

his agricultural field and he has not seen any dead body in the said

heap. PW.7 also does not support the case of prosecution. PW.8

deposed that he came to know that the wife of accused died and he KL, J & SKS, J Crl.A.No.830 of 2013

saw the dead body of the deceased in lands of PW.7 in a heap of

mud. He has also not supported the prosecution case. PW.9's

evidence is also not supporting the prosecution case. PW.10 turned

hostile. PWs.11 and 12 have also not supported the prosecution

case.

16. PW.13 - panch for the scene of offence deposed that on

02.05.2011 the Police called him to the agricultural well of PW.7 at

Kakloor Village and they conducted Panchanama at the scene of

offence and seized four bangles and two bone pieces at the place

where a female dead body was lying. The four bangles were marked

as MO.1 and the two bone pieces were marked as MO.2. PWs.14

and 15 have also not supported the prosecution case.

PW.16 is the Doctor who conducted the postmortem examination.

He deposed that deceased Pushpalatha died due to ligature

strangulation. PW.17 - Deputy Collector conducted the inquest

panchanama over the dead body. PWs.18, 19 and 20 were the

investigating Officers.

17. The evidence on record shows that the death of the deceased

is homicidal death and to connect the accused with the death of

deceased, the evidence on record is the suspicion of PWs.1 and 2

who are the father and brother of deceased, respectively. Though

the prosecution tried to connect the accused to the offence with the KL, J & SKS, J Crl.A.No.830 of 2013

help of the confession statement, recovery and evidence of PW.6, it

is seen that PW.6 turned hostile and the panch for confession and

recovery also turned hostile. The prosecution case is that the

accused murdered the deceased and robbed the chain and silver

articles from the dead body but the said fact was not proved, as the

witnesses turned hostile.

18. The trial Court convicted the accused stating that as the

deceased was residing with accused prior to the incident, the

accused, who is the husband of the deceased has to explain what

happened to his wife, when there is no evidence on behalf of the

accused that the deceased committed suicide or somebody else

murdered the deceased, Section 106 of the Evidence Act, applies

and the accused is presumed to have committed the offence.

19. It is noticed that there is no evidence on record to prove that

the accused was last seen with the deceased. Prosecution case is

that when deceased along with PW.6 went to attend nature calls,

PW.6 heard hues and cries of deceased and she saw the accused.

When that is the case, the burden lies on the prosecution to prove

that the accused and deceased were last seen together. The

deceased went missing on 15.12.2010 and the dead body was

recovered on 25.12.2010 i.e., ten days after being reported as

missing. There is no evidence on record to prove that on the date of KL, J & SKS, J Crl.A.No.830 of 2013

incident the accused was with the deceased or was last seen with

the deceased. Therefore, Section 106 of the Evidence Act, has no

role to play in this case.

20. In this connection, learned counsel for the appellant, relied

on the judgment of the Hon'ble Supreme Court in Gargi Vs. State

of Haryana 2. The relevant paragraphs read as under:

"Last seen theory: Proof and effect:

33. The prosecution has relied upon another circumstance that the deceased was lastly in the company of the appellant and she had failed to explain his whereabouts as also the circumstances leading to his death.

33.1. Insofar as the "last seen theory" is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act [ "106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."] directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the

(2019) 9 SCC 738 KL, J & SKS, J Crl.A.No.830 of 2013

Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das [Sawal Das v. State of Bihar, (1974) 4 SCC 193 : 1974 SCC (Cri) 362] in the following: (SCC p. 197, para 10) "10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused."

21. He also relied on the judgment of the Hon'ble Supreme

Court in Surendra Kumar Vs. State of Uttar Pradesh 3. The relevant

paragraphs read as under:

"17. We may now examine the role and conduct of the appellant No. 1 Surendra Kumar who was escorting the deceased from her parental home on his scooter and is the last person seen in the company of the deceased. The Court below however has relied upon Section 106 of the Indian Evidence Act to connect him with the crime. This according to us was the incorrect approach inasmuch as the burden to prove the guilt is always on the prosecution and cannot be shifted to the accused by virtue of Section 106 of the Evidence Act. This

(2021) SCC Online SC 360 KL, J & SKS, J Crl.A.No.830 of 2013

proposition of law on criminal jurisprudence stood the test of time since Emperor v. Santa Singh4 where Din Mohammad J., observed as under:--

"28. ............Section 106 of the Evidence Act, cannot be used to strengthen the evidence for the prosecution. The prosecution must stand or fall on the evidence adduced by it and until a prima facie case is established by such evidence, the onus does not shift on to the accused. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so, they cannot be called upon after such evidence to establish their innocence. They can only be called upon to do that when the evidence has established a prima facie case against any one or more of them or all of them........."

(emphasis supplied...)

22. He also relied on the judgment of the Hon'ble Supreme Court in

Md. Younus Ali Tarafdar Vs. State of West Bengal 4. The relevant

paragraph reads as under:

16. On an overall consideration of the evidence on record, especially the evidence of PWs 11, 12 and 16 would not lead us to believe that the appellant and the deceased were last seen together. The evidence of PWs 11 and 16 only shows that they were informed by the deceased that he was going to visit the appellant. There is no evidence on record to show that the appellant was last seen with the deceased.

(2020) 3 SCC 747 KL, J & SKS, J Crl.A.No.830 of 2013

Section 106 of the Evidence Act, 1872 is not applicable to the facts of the case. It cannot be said that the appellant failed to explain as to what happened after they were last seen together especially when there is no evidence to show that they were last seen together."

23. In view of the above judgments of the Hon'ble Apex Court, it is

clear that Section 106 of the Evidence Act, cannot be used to

strengthen the evidence of the prosecution. The prosecution must stand

and follow the evidence only if a prima facie cause is established by

such evidence. The mere fact that few articles were found in the

premises occupied by the accused, does not itself establishes the prima

facie guilt of any particular person.

24. Section 106 of the Evidence Act, does not absolve the prosecution

of its primary burden that they have to prove the chain of events from

which a reasonable inference is made out against the accused. Further,

this Section does not cast the burden of proving innocence of the

accused. Before the trial Court, the prosecution is spared from proving

the exact event in the instance of last seen together, especially when

there is no evidence to show that they were last seen together.

Suspicion, however grave, cannot take the place of the proof. Basing on

mere suspicion, the appellant/accused cannot be convicted for the

offence under Section 302 IPC.

KL, J & SKS, J Crl.A.No.830 of 2013

25. Further, in the recent case of Jabir Vs. State of Uttarakhand 5

the Hon'ble Apex Court held as under:

29. Recently, in Rambraksh v. State of Chhattisgarh,7 this court after reviewing previous decisions, stated as follows:

"10. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.

11. In a similar fact situation this Court in the case of Krishnan v. State of Tamil (2014) 12 SCC 279, held as follows:

21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar 1994 Supp (2) SCC

372)

"31. Thus the evidence that the Appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that

2023 SCC OnLine SC 32 KL, J & SKS, J Crl.A.No.830 of 2013

they were there it would at best amount to be the evidence of the Appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."

22. This Court in Bodhraj v. State of (2002) 8 SCC 45) held that:

"31. 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."

It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.

23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.

KL, J & SKS, J Crl.A.No.830 of 2013

24. In Jaswant Gir v. State of Punjab (2005) 12 SCC

438), this Court held that in the absence of any other links in the chain of circumstantial evidence, the Appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed."

26. In view thereof, this Court is of the opinion that the trial Court

grossly erred in arriving at the conclusion that the appellant/accused

was last seen together with the deceased and he has to explain what

happened to the deceased. Moreover, this is a case where the evidence

on record is not sufficient to prove the guilt of appellant/accused.

27. In the result, the Appeal is allowed, setting aside the judgment of

the trial Court in S.C.No.215 of 2011 dated 10.10.2013. Accordingly,

the appellant is acquitted of charges under Sections 302 and 201 IPC.

The bail bonds of the accused shall stand cancelled. He is set at liberty,

forthwith, if he is not required in any other crime or case.

As a sequel, the miscellaneous petitions, if any, pending in this

appeal shall stand closed.