Recently, in Rambraksh v. State of Chhattisgarh

Counsel for the Respondent : SRI ARUN KUMAR DODLA, ADDITIONAL PUBLIC PROSECUTOR The Court made the following: ORDER 1 \ t THE IIONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL N0.311 0F 2017 JUDGMENT: (per Hon'ble Sri Justice K.Swender) 1. The Appeal is hled by the appellant aggrieved by the judgment dated 11.11.20i6, in S.C.No.715 of 2011, on the frle of VI Additional Sessions Judge, at Mahbubabad' The appellant was convicted for the oflfences 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, Iearned Additionat Public Prosecutor for respondent-State.

3. The dead bocly of Boda Dubli (deceased), who was 45 years old, r,r,as found oo 12.07.2009 around 8 a.m., behind the Government .Junior College, Mahbubabad. On the basis of the information given to P.W.l, who is the daughter of the deceased, and P.W.l'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 \'vas protruding. It appeared that she was strangulated to death. According to P.W. 1, she was informed 2 that the accused were responsible for causing the death of her mother. The Investigating Officer/p.W.2l 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, tJre inquest was conducted in the presence of the witnesses, and thereafter, the body was sent for post-mortem examination. Si.r.a there was suspicion of rape, vaginal swabs were also taken along with the clothes and sent to the FSL by the Investigating Oflicer.

4. The post mortem Doctor/P.W.18 found the following lnJrlrles:- "1. Contusion measured 1 x 1 inches below the right side angle of mandible. 2. Crntusion rneasured 7 x Yz 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 posteri.,or vaginal wall is looking rau, with bleeding thr.ough vizier was found." 3 1 According to P.W.18, the cause of deattr was due to mechanical asphyxia. It was alleged that on 3O.O7.2OO9, A-1 went to the house 5. 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 ir,rdependent witnesses, A-1 produced a silver toe ring from his pocket and handed it over to the Investigating Offrcer' 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 btood samples of A- I and A-2 were sent to the FSL for the purpose of DNA testing. The IrSL report stated that semen and spermat ozoa were present in the wearing apparel of the deceased. Howerrer, since the prosecution failed to prove the 4 offence of rape, the 1earned Sessions Judge acquitted A_1 and A-2 for the oflence of rape, arrd convi,cted only A_ I for murder. 7. Learned legal aid counsel, Sri V.Ravi Kumar, appearing on behalf of t].e 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-r 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 lscoysry 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. L,earned counsel further submitted that heavy reliance was placed on the eyiderrce 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 seel, s61net be believed because of the inconsistencies regarding the last seen, projected by the prosecution. ,i. 5

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 Oflicer. In fact, it is for the appellant to explain ttre deatJr 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-l 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 . 1 1. The Extra-judicial conlession is a weak piece of evidence. There were only brief factors that compelled the appellant to l I I i z E ' 6 confess, and such factors are not convincing. Therefore, the extra-judicial confession cannot be taken into consideration.

72. 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 ttre deceased left the railway station together. Further, there is no evidence that the appellant and the deceased were seen while proceeding towards the Governrnent Junior College. lt 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. lcarned counsel relied on the jtrdgment of the the Honble Suprerne Court in Jabir 6r Ors vs. The State of Uttarakhandr, wherein the Hon'lcle Supreme Court held as under:- t crl.A.t{o.1s1 972 of zoL3 7 I "Recently, in , Rambraksh vs. State of Chhattisgarh,(2O16 (12) SCC251) this court after reviewing previous decisions, stated as follows: "1O. It is tnte lotu that a conuiction connot be recorded against tlw arcused merelg on tte ground thot the accused uas last seen with tte deceased. In otler words, a conutction cannot be based on the onlg circumstance of last seen together. Nonnallg, last seen theory ames into plag uhere tLe time gap, betu-teen tLe point of time wtren tle accused and tle deeased uere seen last aliue and uLen the deceased is found dead, is so small that possibititg of any person other tLnn the accused being tle perpetrator of the crime becomes impossibte. To record a conuiction, tle last seen togetler itself uould not be sufftcierut and tlte proseantion has to complete the chain of circumstances to bing twme the guilt of the acansed. 17. In a similar foct situation this Court in the case of Krishnan u. State of Tomil (2014) 12 SCC 279, Leld as follotus: 21. TIE conuiction cannot be based only orl cirqtmstance of last seen tr>gether uith the deeased. In Arjun Mank u. State of Bilnr (1994) Supp (2) SCC s72) "37. Thus the euidence that the Appellant had gone to Sitaram in the euening of 19-7-1985 ond had staged in tte night at ttte house ol deceased Sitoram is uery shakg and inconclusiue. Euen if it is accepted that tLteg utere there it uould at best amount to be tLe euidence of the Appellonts hauing been seen last together uith tle deeased. But it is settled lana that the orulg circumstane of last seen uill not complete the clnin of circum.stances to record the Jinding that it is consi.stent onlg with tLrc hgpothesis of the guilt of the acansed and, tlerefore, no conuiction on that basis alone can be found.ed." 22.'fhis Court in Bodhraj u. State of (2OO2) B SCC 45) leld that: "31. TIE last seen tleory comes into plag wh.ere the time gop betuteen the point of time tuhen ttrc accused and the deceased were lasl seen aliue and uhen tle deceased is found dead is so small that possibilitg of anA person other than the orcused being tle author of the crime becomes impossible. " It uill be hazardous to cone to o conclusion of guilt in cases uthere there is no other positiue euidene to I a\, @nclude that tle acatsed and. tle deeased uere last seen together. 23. There is unexplained delay of six days in lodging the FIR. As per proseantion story the deeosed. Manikandan u)a.s last seen on 4-4-2004 at Vad.aklatmelur Village during pangtni uthiram Festiual at Marigamman Temple. The bodg of the deea.sed raa_s taken from the boreuell bg the Jire seruie personnel after more th.an seuen dags. There i_s no other positiue mateial on record to shou tLnt tfe deeavd uas lalst seen togetLer uith the acntsed and. in the intenrcning period of seuen dngs there uas nobodA in qntaci utith the deceased. 24. In Jaswant Gir u. State of Punjab (2OOS) 12 SCC 438), thi.s Court held that in tle absence of any otler links in tle chnin of ciranmstantial euidene, the Appellant cannot be unuicted solelA on tlre basis of "last seen together" euen if uersian of th.e prosecation wttness in this regard is belieued." Again, Nizam & Ors. v State of Rajasthan .(2O16(1) SCC 50 it was held as follows: "Courts belou conuicted the Appellants on tte euid.ence of PWs 1 and 2 that deceased u-tas last seen aliue with the Appellants on 23.01.2OO1. Undoubtedlg, "last seen tLeory" is an important link in tLe clwin of ciratm.stances that would- point towards tlrc guilt of tle accused with some @rtaintg. The "last *en tleory" lalds tle couris to shift the burden of proof to tle arcused and" tLe aarced to offer a reosonable explanation as to the uuse of death of tle deeased. tt is uell-settled bg this (tourt that it is not prudent to base tlrc anubtion solelg on "last een tLeory". "Last seen theory" slnuld be applid taking into consid?ration the cose of the prosecutbn in its entiretg and keeping in mind the circumstan@s that ptwd.e and- follou tlrc point of being so last seen. " 25. In the present case, save the'last seen" t}rcory, tlrere is no other circumscance 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, arrd the serious inconsistencies in thc dep<lsitions of the witnesses, as well 9 I as the fact that the FIR was lodged almost 6 weeks after t1.e 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 justihed."

15. He also relied on the judgment of the Hon'ble Supreme Court in Sahadevan and Anr vs. State of Tamil Nadu2, 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 veracit5r 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 conviction, it should not suffer from discrepancies and inherent improbabilities. basis of material vi) Such statement essentially has to be proved like any other fact and in accordance with larv. 'z ate zotz sc 2+s5 t0

16. As observed by the Hontle Supreme Court in Sahadevan's case (supral, 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. F\:rther, the dead body being found is not in proximity to the last seen timing. According to P.W.13, the accused and tlle 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 scen on the platform of the railway station. As already stated, none of the witnesses have stated that the deceased and thc appellant left the railway station together. L7. Learned trial Judge has placed reliance on the confession. To drawn any inference of guilt, the admissibility of confessions and its exoeptions are enunciated under Sections 24 to 27 of the Indian Evidence Act. The recovery of the toe ring, which according to the lnvestigating Officer was produced by the appellant, was not subject to identihcation, neither in accordance with Rule 35 of th<: 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 cemcelled. //TRUE COPY'/ SD/-K.SRINIVASA RAO JOINT REGISTRAR ,0' \ 'rtit; ION OFFICER To,

1. The Vl Additional Sessions Judge, at Mahabubabad 2. The Superintendent, Central Prison, Warangal 3. Two CCs to the Public Prosecutor, High Court for the State of Telangana at 4 One CC to SRI RAVI KUMAR VELURI Advocate IOPUC] 5. Two CD Copies Hyderabad (OUT) ADK/PSL \* HIGH COURT DATED:13103t2025 I t JUDGMENT CRLA.No.311 of 2017 1HC. SI4 14: t J c 2 I pl ZnZs 2 C) t D6 SPrrC rrf-O * ALLOWING THE CRLA q ,r<'u V dOas