Hon'ble Supreme Court in R.Sreenivasa v. State. of Karnatakar. In para Nos

THE HONOURABLE SRJ JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.394 of 2019 JUDGMENT: (Per Hon'ble Sri Justice K. Surender) This Criminal Appeal is hled by the appellant/accused No. 1, aggrieved by the judgment dated 09.O5.2019 in Sessions Case No.3B5 of 2015, on the hle of the learned Principal Sessions Judge, at Khammam, whereby the appellant/ accused No. 1 rvas convicted for the offence punishable under Sections 302 and 397 of the Indian Penal Code (for short 'lPC').

2. Heard Mr.C.Damodar Reddy, learned counsel representing Mr.Ruthwik Reddy, learned counsel for the appellant and Sri Arun Kumar Dodla, learned Additional Public Prosecutor for respondent-State. Perused the record.

3. Accused No.2 was also tried along with the appellant However, accused No.2 was acquitted for the offence under Section 41 1 of l.P.C

5. PWl is the VRO of the Kamepally Village. He went to;the police station and lodged a complaint on O1.01.2O14 stating that he received a phone call regarding the dead body of a :\, 2 woman with a cut injury on the throat and found her lying dead. PWl then went to the scene and found that the dead body was on the land of one Podentla Narayana. The complaint was given to PWl6/Investigating Officer. PW16 then went to the field, where the dead body was lying and conducted the 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 Doctor/PWl5 conducted the post-mortem of the body and found the following injuries:- "1.Cut wound on front of the neck about 3x1x1 inches (To the external vision hyoid bone was normal. Wound extended from left side of neck to front of the neck then to the lateral side of the neck) 2.Abrasion lxl f2 over the right forearm".

6. PW16 then gave a publication in the newspaper. PWs.S, 6, 7, and 8 went to the police station and identifred the dead body with the photograph published in the daily newspaper. On

06.0l .2014 , the appellant/A 1 was apprehended. During the interrogation, he confessed the crime. Money Was seized from him, and the appellant led the police and the independent witnesses to his house and produced MOs.4,5, and 6, which is ., the jewellery of the deceased. During further investigation, the cell phone mrmbers of the deceased and the appellant were 1 \ o J i'r, collected, and the gold ornaments were also obtained froriisthe service providers. A1-appellant led to 42, who was the owndr of ,: the jewellery shop. MO3 /p usthalatadu was seized from A2. Thereafter, they have concluded the investigation, and A1'was charged for the offences under Sections 3O2 an<l 379 of I.P.C., and ,A2 was charged for the offence under Section 411 of I'P.C. for being in possession ofthe stoien property

7. The learned Principal Sessions Judge, at Khammam convicted the appellant on the basis of circumstantial evidence' The following circumstances, according to the learned Sess_ions Judge, formed the basis to convict the appellant:- (i) The appellant and the deceased were tioth handicapped and had a friendship that lead to a sexual relationship between them. (ii) The deceased was having property worth three crores and also gold jewellery . (iii) On 37.72.2013 at about 1O:O0 A.M., A1 went to the house of the deceased, met her father, and at the instance of PWS, he took the deceased to the Agri Cold Ofhce. (iv) PW7 is the Agri Gold Agent, and he saw the deceased in the Agri Gold Offrce. After dropping the deceased in the Agri Gold Office, the appellant went to PW 10 to sharpen his knife/MO8. a.' , t.: tvg, tirsI r,.. ,.r,1 , i-: t:"!,' '';t : r*J4l ".'"' YY-. -*. : I I I I I t I I t t I I : I I + 4 (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, PWg did not find the deceased along with,Al, and the dead body of the deceased was found with an injury to her throat, and her jewellery was mi-ssing. (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.S, 7, and 9 cannot be believed and they were subsequently planted for the pulp'ose of the case. Even according to PWS, 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 ttle appellant. Learned counsel relied upon the judgment of the &il!i c) 5 Hon'ble Supreme Court in R.Sreenivasa Vs. State. of Karnatakar. In para Nos.15 and 16, it was held as follows:-

15. The lrurden on the accused would, therefore, kick in, only when the last seen theory is established. ln r he instant case, at the cost of repetition, that itself is in doubt. This is borne out from subsequent decisions of this Courr, which we would advert to: (a) Kanhzriya Lal v State of Raiasthan , (2O l4l 4 SCC 7 15, where it rras noted: '12. The circumstalce of last seen together does not b1, itsell and necessarily lead to the inference that it was the accused rvho committed the crime. There must l:e something more establishing connectivity between the accused and the crime. Mere non-expianation on [h(, part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant., (cmphasis supplied) (bl Nizaln v State of Raiasthan , (2O t6) l SCC sSO, the relevant <liscussion contained at Paragraphs lb-18,' after nolicing hashi Ram (su pra): '16. In thc light of the above, it is to be seen whether in the facts and circumstarces of this case, the courts below were right in invoking the "last seen theory". From thr: evidence discussed above, deceased Manoj allegedly left in the truck DL 1 GA 5943 on 23-l-2OO1. The body of deceased Manoj was recovered on 26-l-200l. The prosecution has contendecl that the accused persons were last seen with the deceased l;ut the accused have not offered any plausible, cogent explanation as to what has happened to Mrmr1. Be it lloted, thar only if the prosecution has succeeded rn proving the facts lty definite evidence that the deceased was last seen alivc irr the company of the accused, a reasonable inference could be drawn against the accused and then only onu s can be shifted on the accused undcr Sectior.r 106 of the Evidence Act. t 2023 Lr"" t-aw (sc) r-51 I l I l ,. 6 19:,,,1 He also relied upon the judgment passed by the Hon"ble Supreme Court in "Darshan Singh Vs. State of Punjabz", wherein, at para Nos.33 and 37, it was held as follows:- ,)

33. It is trite law that the statement recorde du s.3 13 CrPC cannot form the sole basis of conviction. Therefore, the presence of the appellant cannot be found iolety based on his statement, notwithstanding the lack of independent evidence led by the prosecution. Further, t1lis Court has previously considered the consequences when a particular defence plea was not taken by accused u s 3l 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 sarne can be made out otherwrse 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 tJ.e prosecution since the failu re to prove a single tircumstance 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 circumstantia.l evidence solely, then ttrere should not be any snap in the chain of circumstances. If there is a snap in ihe chain, the accused is entitled to beneht of doubt' If some of the circumstalces in the chain can be explained by . , any other reasonable hypothesis, then also the-accused is - ' to the benefit of doubt. [See: Bhimsingh Vs State of rrr Uttarakhand, (2015) 4 SCC 281.1 ".rfufl"d

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 '? lzoz+1 t s.c.n. zaa t,:,., ) ,,.i t{ .ii* ,;BEX ,7 the death. In the said circumstances and for the said reasons, it clearly indrcates that it was the appellant who had committed the murder of the deceased.

12. The motive projected by the prosecution is that the appellant vi'anted to commit theft of the jewellery. On

31.I2.2O13, the appellant went to the house of the deceased. According to PWS, 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. pWS, his son-in-lau,, and other relatives went in search of the deceased. However, they could not find her. According to pWS, on O2.Ol.2Ol4 ar about O8:0O A.M., they saw the nervs in Sakshi Daily Nervs Paper about his daughter's kidnapping ancl being found dead. He immediately went to the Mortuary of the Government I'lospital, rvhere he identified the dead body of the deceased. PW5 u,ent 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. I .'&ili*iii;,. :.;, !i1,,, -: ,xrl' ' r E o

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 PWS. Thereafter, she ,;1vent to the Agri Gold Ofhce. It is the case of the prosecution that, after leaving the deceased at Agri Gold Office, the appellarrt went to the shop of PW 10, who is a knife sharpener, got the knife, and gave the knife to PW1O 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 PWl

15. Though PWS stated that the deceased left with the appellant, however, no efforts were made either by PWS or any other relatives, who went in search of the deceased, to trace the appellant and question him about the deceased. The said iircrimstance 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. Simitar is the evidence of PW9' Both of them have 9 seen the appellant and the deceased together on 31.12.2013, and the clea<l bod1, u.as found the next day, around O2:30 p.M., ancl the time gap is about twenty (2S) 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, u'hich was located on the 4s floor, on the vehicle of ,A1. According to the Investigating Officer, pwg did not state at the earlier poir-rt of time that he could identify Al arrd 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 thc trackground of the admission by the Investigating Officer that l)Ws.7 ancl 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 Identihcation 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 / l0 o considerabie time, shows that the identifrcation of the appellant by PW9 cannot be believed.

18. PWS stated that he went to the hospital and identified the dead body of the deceased. He stated tha( he informed the police that he had suspicion about the appellant, that he was responsible for the death of the deceased. However, the Investigating Offrcer did not speak about PWS 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 11 required in any other case. The fine amount patd, if any, shall be returned. Misceilaneous Petitions pending, if an1., shall stand closed To, SD/- C.V. MALLIKARJUNA VARMA JOINT REGISTRAR //TRUE COPY// SECTION OFFICER '1 . The Principal Sessions Judge at Khammam(With records, if any) 2. The llAdditional Judicial First Class Magistrate at Khammam(With records, if any)

3. The Superintendent, Central Prison, Chenchalguda , Hyderabad (By Special Messenger)

4. Two CCs to the Public Prosecutor, High Court for the State of Telangana at Hyderabad (OUT)

5. One CC to Sri C Ruthwik Reddy, Advocate [OPUC] 6. Two CD Copies a ADK I HIGH COURT DATED:0310412025 I JUDGMENT CRLA.No.394 of 2019 c ( * 1r{E S 14 (- 2W ). ((' r' !'i t ...)/ / ) O8 APB P, . s PARTLY ALLOWING THE CRLA (- 0