Ajmeera Shivala , Shiva, Mahabubabad., vs The State Of Telangana, Rep Pp.,
2025 Latest Caselaw 3058 Tel

Telangana High Court

Ajmeera Shivala , Shiva, Mahabubabad., vs The State Of Telangana, Rep Pp., on 13 March, 2025

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      THE HONOURABLE SRI JUSTICE K.SURENDER
                      AND
     THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL

             CRIMINAL APPEAL No.311 OF 2017
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. The Appeal is filed by the appellant aggrieved by the

judgment dated 11.11.2016, in S.C.No.715 of 2011, on the file

of VI Additional Sessions Judge, at Mahbubabad. The

appellant was convicted for the offences punishable under

Sections 302 and 379 of IPC and sentenced to undergo life

imprisonment.

2. Heard learned counsel for the appellant and Sri Arun

Kumar Dodla, learned Additional Public Prosecutor for

respondent-State.

3. The dead body of Boda Dubli (deceased), who was 45

years old, was found on 12.07.2009 around 8 a.m., behind the

Government Junior College, Mahbubabad. On the basis of the

information given to P.W.1, who is the daughter of the

deceased, and P.W.1's father, who was the complainant (died

during the pendency of the trial), they went there and found the

dead body. There were injuries on the deceased's breasts, and

her tongue was protruding. It appeared that she was

strangulated to death. According to P.W.1, she was informed

that the accused were responsible for causing the death of her

mother. The Investigating Officer/P.W.21 took up the

investigation of the case, and went to the scene, and conducted

the scene of offence panchnama. Having concluded the scene

of offence panchnama, the inquest was conducted in the

presence of the witnesses, and thereafter, the body was sent for

post-mortem examination. Since there was suspicion of rape,

vaginal swabs were also taken along with the clothes and sent

to the FSL by the Investigating Officer.

4. The post mortem Doctor/P.W.18 found the following

injuries:-

"1. Contusion measured 1 x 1 inches below the right side angle of mandible.

2. Contusion measured 1 x ½ inch below the left side of the mandible.

3. Abrasion 2 x 2 inches over the right elbow extensor part, caused by blunt surface.

4. Multiple teeth bite marks over the both breasts and left side face.

5. The anterior part of the chest and abdominal wall are looking bluish discoloration.

6. The posterior vaginal wall is looking raw with bleeding through vizier was found."

According to P.W.18, the cause of death was due to mechanical

asphyxia.

5. It was alleged that on 30.07.2009, A-1 went to the house

of P.W.9, and informed him that he, along with A-2, killed the

deceased by strangulating her with her own saree behind the

Government Junior College. Since A-1 expressed fear that the

Police would arrest him, he requested P.W.9 to surrender him

to the Police. Then P.W.9 took A-1 to the Police Station and

surrendered A-1 before P.W.22/Inspector of Police, WPS,

Warangal. During the interrogation, in the presence of

independent witnesses, A-1 produced a silver toe ring from his

pocket and handed it over to the Investigating Officer.

According to the prosecution case, the toe ring belongs to the

deceased. Pursuant to the confession of A-1, A-2 was also

apprehended. Even from the possession of A-2, one silver toe

ring was recovered, which according to the prosecution, belongs

to the deceased.

6. The blood samples of A-1 and A-2 were sent to the FSL for

the purpose of DNA testing. The FSL report stated that semen

and spermatozoa were present in the wearing apparel of the

deceased. However, since the prosecution failed to prove the

offence of rape, the learned Sessions Judge acquitted A-1 and

A-2 for the offence of rape, and convicted only A-1 for murder.

7. Learned legal aid counsel, Sri V.Ravi Kumar, appearing on

behalf of the appellant, would submit that the entire foundation

laid by the prosecution is on the basis of the confession of A-1.

The prosecution failed to prove that there was rape, and in fact,

the learned trial Judge has liberally extracted the version given

in the confession to arrive at conclusion of guilt. No reasons

are given as to why A-2 was acquitted and A-1 was convicted

despite the allegation being against both of them for strangling

the deceased. Further, one toe ring each was seized from the

possession of A-1 and A-2. The said recovery cannot be relied

upon because it was not a fact discovered pursuant to a

confession. As such, it does not fall within the admissibility

under Section 27 of the Indian Evidence Act.

8. Learned counsel further submitted that heavy reliance

was placed on the evidence of P.W.9 to whom the extra-judicial

confession was made by A-1. P.W.13 stated that the deceased

was last seen in the company of the appellant and A-2. The

said version of 'last seen' cannot be believed because of the

inconsistencies regarding the 'last seen' projected by the

prosecution.

9. On the other hand, the learned Public Prosecutor submits

that in cases of circumstantial evidence, the prosecution can

rely only on the evidence collected by the Investigating Officer.

In fact, it is for the appellant to explain the death of the

deceased since he was last seen in the company of the deceased

on the previous day around 5 p.m. The findings of the learned

Sessions Judge are based on the convincing evidence that was

adduced by the prosecution.

10. A-1 was mainly convicted on the basis of the recovery of

toe ring, which allegedly belongs to the deceased, and his

confession before P.W.9. The other circumstance is the

evidence of P.W.13, who stated that he has seen A-1 and A-2 in

the company of the deceased in the evening around 5 p.m. A-1

allegedly confessed to P.W.9, nearly 18 days of the incident, i.e.,

on 30.07.2009. What compelled A-1 to go and confess before

P.W.9 is not stated, and what apprehension A-1 entertained in

his mind to go and confess to P.W.9 was also not stated. It is

not the case of the Investigating Officer that A-1 was suspected

in the commission of the murder or that there was any look out

by the Police to arrest A-1.

11. The Extra-judicial confession is a weak piece of evidence.

There were only brief factors that compelled the appellant to

confess, and such factors are not convincing. Therefore, the

extra-judicial confession cannot be taken into consideration.

12. P.W.13 is the witness who spoke that he had seen A-1,

A-2, and the deceased on the previous day around 4:30p.m.

The dead body was found at 8 a.m. According to P.W.13, they

were last seen on the platform. There would be hundreds of

persons at the railway station or moving on the platform.

13. The deceased used to sell peanuts in the train and also on

the platform. There is no evidence to show that the appellant

and the deceased left the railway station together. Further,

there is no evidence that the appellant and the deceased were

seen while proceeding towards the Government Junior College.

It cannot be assumed solely on the basis of P.W.13's evidence

that the appellant had taken the deceased to the Government

Junior College area, raped, and strangulated her, resulting in

her death.

14. Learned counsel relied on the judgment of the the Hon'ble

Supreme Court in Jabir & Ors vs. The State of Uttarakhand 1,

wherein the Hon'ble Supreme Court held as under:-

Crl.A.No.(S) 972 of 2013

"Recently, in , Rambraksh vs. State of Chhattisgarh,(2016 (12) SCC251) 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 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.

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."

Again, Nizam & Ors. v State of Rajasthan, (2016(1) SCC 50 it was held as follows:

"Courts below convicted the Appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the Appellants on 23.01.2001. Undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."

25. In the present case, save the "last seen" theory, there is no other circumstance or evidence. Importantly, the time gap between when the deceased was seen in the company of the accused on 09-10-1999 and the probable time of his death, based on the post mortem report, which was conducted two days later, but was silent about the probable time of death, though it stated that death occurred approximately two days before the post mortem, is not narrow. Given this fact, and the serious inconsistencies in the depositions of the witnesses, as well

as the fact that the FIR was lodged almost 6 weeks after the incident, the sole reliance on the "last seen"

circumstance (even if it were to be assumed to have been proved) to convict the accused-appellants is not justified."

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

Court in Sahadevan and Anr vs. State of Tamil Nadu 2,

wherein the Hon'ble Supreme Court held as follows:-

"22. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused.

The Principles

i) The extra-judicial confession is a weak evidence by itself.

It has to be examined by the court with greater care and caution.

ii) It should be made voluntarily and should be truthful.

iii) It should inspire confidence.

iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

vi) Such statement essentially has to be proved like any other fact and in accordance with law.

AIR 2012 SC 2435

16. As observed by the Hon'ble Supreme Court in

Sahadevan's case (supra), the extra-judicial confession should

not suffer from any material discrepancies or doubts. Further,

there should be corroboration from other evidence. Apart from

the evidence of P.W.13 that the accused and the deceased were

seen together, there is no other evidence to remotely suggest

that the appellant was in the company of the deceased.

Further, the dead body being found is not in proximity to the

last seen timing. According to P.W.13, the accused and the

deceased were seen together around 4:30 to 5 p.m., whereas

the dead body was found on the next day at 8 a.m., i.e., nearly

15 hours after they were seen on the platform of the railway

station. As already stated, none of the witnesses have stated

that the deceased and the appellant left the railway station

together.

17. Learned trial Judge has placed reliance on the confession.

To drawn any inference of guilt, the admissibility of confessions

and its exceptions are enunciated under Sections 24 to 27 of

the Indian Evidence Act. The recovery of the toe ring, which

according to the Investigating Officer was produced by the

appellant, was not subject to identification, neither in

accordance with Rule 35 of the Criminal Rules of Practice, nor

was it shown to P.W.1, who is the daughter of the deceased. In

the said circumstances, it cannot be said that the toe ring,

which was seized from the appellant, belongs to the deceased.

18. The evidence is totally discrepant. The circumstances

relied upon by the prosecution, when put together, do not form

a complete chain to come to the conclusion that it was the

appellant who had committed the murder of the deceased.

Accordingly, the appellant succeeds.

19. In the result, the Criminal Appeal is allowed. Since the

appellant is on bail, his bail bonds shall stand cancelled.

_________________ K.SURENDER, J

_____________________ E.V.VENUGOPAL, J

Date: 13.03.2025 dv