302 and 397 of the Indian Penal Code (for short 'IPC').
2. Heard Mr.C.Damodar Reddy, learned counsel
Prosecutor for respondent-State. Perused the record.
3. Accused No.2 was also tried along with the appellant.
5. PW1 is the VRO of the Kamepally Village. He went to the
dead. PW1 then went to the scene and found that the dead
body was on the land of one Podentla Narayana. The complaint
was given to PW16/Investigating Officer. PW16 then went to
scene of offence panchanama. The scene was photographed,
and thereafter, the inquest proceedings were concluded. The
body was sent for post-mortem examination. The post mortem
6. PW16 then gave a publication in the newspaper. PWs.5,
body with the photograph published in the daily newspaper. On
06.01.2014, the appellant/A1 was apprehended. During the
interrogation, he confessed the crime. Money was seized from
the jewellery of the deceased. During further investigation, the
service providers. A1-appellant led to A2, who was the owner of
the jewellery shop. MO3/pusthalatadu was seized from A2.
and A2 was charged for the offence under Section 411 of I.P.C.
for being in possession of the stolen property.
7. The learned Principal Sessions Judge, at Khammam
convicted the appellant on the basis of circumstantial evidence.
(iv) PW7 is the Agri Gold Agent, and he saw the deceased
in the Agri Gold Office. After dropping the deceased in the Agri
Gold Office, the appellant went to PW10 to sharpen his
knife/MO8.
(v) The deceased was taken on his bike as he was seen by
PW9, who is the owner of the Tea stall situated near Electricity
Office.
(vi) After one hour, PW9 did not find the deceased along
with A1, and the dead body of the deceased was found with an
injury to her throat, and her jewellery was missing.
(vii) A1 was arrested on 06.11.2014, and at his instance,
gold jewellery/MOs.4, 5, and 6, belonging to the deceased, were
recovered from the go-down of the house of the appellant.
(viii) MO3/Pustalatadu was recovered from A2 based on
the information provided by the appellant.
(ix) The telephone records were collected, which show
that the deceased and the appellant were acquainted with each
other and were talking to one another.
8. The learned senior counsel appearing on behalf of the
appellant would submit that, evidence of PWs.5, 7, and 9
cannot be believed and they were subsequently planted for the
purpose of the case. Even according to PW5, he asked the
appellant to take the deceased to the Agri Gold Office. It clearly
reflects that there was no plan to take the deceased or to
commit the murder of the deceased.
9. Learned senior counsel submits that only the evidence of
the last seen theory cannot form the basis to convict the
appellant. Learned counsel relied upon the judgment of the
Hon'ble Supreme Court in R.Sreenivasa Vs. State of
Karnataka 1. In para Nos.15 and 16, it was held as follows:-
15. The burden on the accused would, therefore, kick in,
only when the last seen theory is established. In the instant
case, at the cost of repetition, that itself is in doubt. This is
borne out from subsequent decisions of this Court, which
we would advert to:
(a) Kanhaiya Lal v State of Rajasthan, (2014) 4 SCC 715,
where it was noted:
'12. The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was the
accused who committed the crime. There must be
something more establishing connectivity between the
accused and the crime. Mere non-explanation on the part of
the appellant, in our considered opinion, by itself cannot
lead to proof of guilt against the appellant.' (emphasis
supplied)
(b) Nizam v State of Rajasthan, (2016) 1 SCC 550, the
relevant discussion contained at Paragraphs 16-18, after
noticing Kashi Ram (supra):
'16. In the light of the above, it is to be seen whether in the
facts and circumstances of this case, the courts below were
right in invoking the "last seen theory". From the evidence
discussed above, deceased Manoj allegedly left in the truck
DL 1 GA 5943 on 23-1-2001. The body of deceased Manoj
was recovered on 26-1-2001. The prosecution has
contended that the accused persons were last seen with the
deceased but the accused have not offered any plausible,
cogent explanation as to what has happened to Manoj. Be it
noted, that only if the prosecution has succeeded in proving
the facts by definite evidence that the deceased was last
seen alive in the company of the accused, a reasonable
inference could be drawn against the accused and then
only onus can be shifted on the accused under Section
106 of the Evidence Act.
2023 Live Law (SC) 751
10. He also relied upon the judgment passed by the Hon'ble
Supreme Court in "Darshan Singh Vs. State of Punjab 2",
wherein, at para Nos.33 and 37, it was held as follows:-
33. It is trite law that the statement recorded u/s.313 CrPC
cannot form the sole basis of conviction. Therefore, the
presence of the appellant cannot be found solely based on
his statement, notwithstanding the lack of independent
evidence led by the prosecution. Further, this Court has
previously considered the consequences when a particular
defence plea was not taken by accused u/s 313 CrPC and
held that mere omission to take a specific plea by accused
when examined u/s 313 CrPC, is not enough to denude
him of his right if the same can be made out otherwise.
See: Periasami Vs. State of Tamil Nadu, (1996) 6 SCC 457
37. Seen in this background, we need not go further and
consider the evidence qua other circumstances sought to be
proved by the prosecution since the failure to prove a single
circumstance cogently can cause a snap in the chain of
circumstances. There cannot be a gap in the chain of
circumstances. When the conviction is to be based on
circumstantial evidence solely, then there should not be
any snap in the chain of circumstances. If there is a snap
in the chain, the accused is entitled to benefit of doubt. If
some of the circumstances in the chain can be explained by
any other reasonable hypothesis, then also the accused is
entitled to the benefit of doubt. [See: Bhimsingh Vs. State of
Uttarakhand, (2015) 4 SCC 281.]
11. Learned Additional Public Prosecutor, on the other hand,
would submit that the jewellery of the deceased was identified
by the father. The said jewellery was seized at the instance of
the appellant. Three witnesses have seen the appellant and the
deceased going together, and thereafter, the dead body was
found. The post mortem report also corroborates the timing of
[2024] 1 S.C.R. 248
the death. In the said circumstances and for the said reasons,
it clearly indicates that it was the appellant who had committed
the murder of the deceased.
12. The motive projected by the prosecution is that the
appellant wanted to commit theft of the jewellery. On
31.12.2013, the appellant went to the house of the deceased.
According to PW5, who is the father of the deceased, he
requested the appellant to take the deceased to the Agri Gold
Office. Thereafter, the deceased did not return. Though he
made calls to the deceased, he could not reach her. PW5, his
son-in-law, and other relatives went in search of the deceased.
However, they could not find her. According to PW5, on
02.01.2014 at about 08:00 A.M., they saw the news in Sakshi
Daily News Paper about his daughter's kidnapping and being
found dead. He immediately went to the Mortuary of the
Government Hospital, where he identified the dead body of the
deceased. PW5 went to the Inspector and informed about the
missing of the gold ornaments of the deceased. He also
expressed a suspicion that the appellant must have committed
the murder of the deceased to commit theft of the gold
ornaments.
13. The sequence of events, as narrated by the prosecution,
is that on 31.12.2013 at around 10:00 A.M., the deceased was
picked up from her house at the instance of PW5. Thereafter,
she went to the Agri Gold Office. It is the case of the
prosecution that, after leaving the deceased at Agri Gold Office,
the appellant went to the shop of PW10, who is a knife
sharpener, got the knife, and gave the knife to PW10 for
sharpening. He then came back to the Office, picked her up,
and drove her on his motor cycle.
14. The dead body was found on 01.01.2014 around 02:30
P.M., by PW1.
15. Though PW5 stated that the deceased left with the
appellant, however, no efforts were made either by PW5 or any
other relatives, who went in search of the deceased, to trace the
appellant and question him about the deceased. The said
circumstance creates doubt regarding the correctness of the
statement of PW5 that the deceased was picked up by the
appellant from his house on the said day.
16. PW7, who worked as an agent in the Agri Gold Office,
speaks about the presence of the appellant and the deceased in
the Office. Similar is the evidence of PW9. Both of them have
seen the appellant and the deceased together on 31.12.2013,
and the dead body was found the next day, around 02:30 P.M.,
and the time gap is about twenty (25) hours. The Investigating
Officer, in his evidence, stated that PW7 did not state before
him that he can identify the appellant. Further, PW7 stated
that the deceased told him that she was going to the Agri Gold
Office, which was located on the 4th floor, on the vehicle of A1.
According to the Investigating Officer, PW9 did not state at the
earlier point of time that he could identify A1 and that he was
waiting for the customer of the house plots. PW9 is the owner
of the Tea stall and he was also doing the Real Estate business.
17. In the background of the admission by the Investigating
Officer that PWs.7 and 9 did not state that they could identify
the appellant and that he was going together with the deceased,
the said version cannot be believed. If it is the case of the
prosecution that PWs.7 and 9 are strangers to the appellant,
the Investigating Officer ought to have undertaken the Test
Identification Parade during the course of the investigation.
However, no such Test Identification Parade was conducted.
PW9, having only a slight glance at the appellant, who is a
stranger, and thereafter deposing before the trial Court after
considerable time, shows that the identification of the appellant
by PW9 cannot be believed.
18. PW5 stated that he went to the hospital and identified the
dead body of the deceased. He stated that he informed the
police that he had suspicion about the appellant, that he was
responsible for the death of the deceased. However, the
Investigating Officer did not speak about PW5 expressing
suspicion against the appellant.
19. The evidence of 'the last seen', that too, twenty (25) hours
prior to the dead body being found, cannot form the basis to
conclude that it was the appellant who had committed the
murder of the deceased. The jewellery, i.e., MOs.4, 5, and 6
were recovered from the appellant. Since the prosecution failed
to prove that the appellant had committed the murder of the
deceased, the appellant, being found in possession of the theft
property, is convicted for the offence under Section 411 of
I.P.C., and a sentence of two (2) years of imprisonment is
hereby imposed on the appellant.
20. Accordingly, this Criminal Appeal is partly allowed. Since,
the appellant is in jail, he shall be released forthwith if he is not
required in any other case. The fine amount paid, if any, shall
be returned.
Miscellaneous Petitions pending, if any, shall stand
closed.
____________________
K.SURENDER, J
_____________________
E.V.VENUGOPAL, J
Date: 03.04.2025
ESP
