Learned counsel relied on the judgment of the Hon'ble Supreme Court in Gargi v. State of Haryanal, wherein the Court discussed circumstantial evidence, the 'last

Counsel for the Appe[ant :Sri N Naveen Kumar Counsel for the Respondent: Sri Arun KumarDoddla' Additional Public Prosecutor The Court delivered the following: Judgment THE TIONOURABLE SRI JUSTICE K.|SURENI]ER AND THE HCINOURABLE SRI JUSTICE E.V.'T/ENUGOPAL ,3RIM INAL APPEAL No.31O6 oF 20t8 JUDGM_EI!:!'; (per Hon'ble Sri Justice K.Surender.)

1. Thr-- F.p real is filed by the appellant/accusecl, a1;grieved by the judgrren .lated 26.10.2018 in S.C.No.7€, of 20 6, on the file of the [,rr,rcipal Sessions Judge at Adilabad. The appellant was conr.,ict erl rbr the offence punishable und:r Siect on 302 of IPC and rselrto lced to undergo iife imprisonme nt tbr rnurdering his wile, liaihcc Shoba Bai.

2. Hearrl lr: a rned counsei for the appellant anri Sri Arun Kumar Ilo 1l;r, learned Additional Public Proser utor for responden !- 31. a t e.

3. On O+.rl(i 11015, around 3:30 p.m., p.W. 1, who rr the son of the deceal;erl'sr sister, went to the police Station rrncl lodged a complaint alie gi;tg that he came to know the.t the i Lppellant quarreled rrrii h 1he deceased, suspecting her fidr:lit1 an I hit her on the he,ir6 .f i11, an axe. He immediately rus;her to the deceased's h,)us(, and found her in an unconsr;ious st ate in a pool of blor:cl She was immediately shifted to the l_roslrital. At 2 concerned Magistrate ' the time of shifting the d'eceased to the hospital' his mother/P.W.5, cousin brother/P'W '2' and'P'W'6 were present' 4. On the basis of information given by P'W' 1' the crime was and the FIR was dispatched to the registered bY P'W'17 Thereafter, he went to the scene of There, he found a pool of blood' a blood stained shirt' and a towel' The scene of the offence rs the house of the deceased. The incriminating materials were seized from the scene. The deceased died while undergoing treatment on the next day' The investigation was then handed over to P'W'2O' P.W.2O went to the hospital and conducted the inquest of the dead body, and the dead body was then sent for postmortem offence. examination

5. Postmortem examination was found the following injuries: conducted bY P'W'19' who Three laceration measuring 6 x 0'5cm x cavit5r 1. deep, 4 x 0.5 cm x cavity deep ' 2 x0'5 cm x cavity deep pr"="rtt over mid parietal region' Fracture of skull over mid parietat region along line of the injuries above mentioned.Braintissueisprotruded.one.Diffuse sub dural and sub arachnoid haemorrhage present all over the brain. About 5OO gms of blood marks present at the base of the brain' J 2 J

4. Ir:lclure of radius and ulna present. J:l 5Jht eye is blackened. I-r.1t eye is blackened.

6. Acco.-d:rq to p.W. 19, the death was dui: to a h:ad injury, which w,:r,rtd have been cauSed by axe/M.O.S. 7. Thr: appr.llant was apprehended on the same day, i.e., 04.06.2015 lhe appellant was interrogated, antl prrrsuant to his confes,s o;r, M.O.5 was seized. The seizur: wils rtade from the bushr:s b:r;;de the Government college, which is lo:ated at a distance |.om tlre residence. 8 On :.n<' tr;r sis of the confession and setzure a lfecr ed at the rnstance .r 1 5 r appenant, incruding brood s tai ned weartng apparel of _he :lr ceased, the charge sheet was laid. 9. Lear:ne,j sir:ssions Judge, on the basis o:, cl.cur;rstantiar evidence. fbun:l the appellant guilty.

10. Learnect _egal Aid counsel appearing for- the appellant would sutrrnit that there is no direct evid,lnco. z,nd the crcumstant:es reried upon by the prosecution to rnak e out a case agains;1 t hr: :tppellant are doubtfur. Apart from the alleged suspicion en:elt.r,ined by the witnesses, therr: isr nr ) other 4 evidence to connect the appellant with the death of the deceased. No one has seen the appellant near the house when the incident took place. Even according to the prosecution witnesses, the appellant and the deceased quarreled long ago and were living separately. Though P.W.2 stated that the appellant stayed with the deceased, however, in the absence of any witnesses who can confirm the appellant's presence in the house on the date of the incident, the conviction is improper. 1 1. Learned counsel relied on the judgment of the Hon'ble Supreme Court in Gargi v. State of Haryanal, wherein the Court discussed circumstantial evidence, the 'last seen' theory, and the absence of direct evidence to establish motive. In Subramaniam v. State of Tamilnadu2, the Hon'ble Supreme Court held that in the absence of evidence indicating violence, and where the circumstances do not lead to a definite conclusion of guilt, benefit of doubt has to be extended. In Shivaji Chintappa Patil v. State of Maharashtras, the Hon'ble Supreme Court dealt with the principles of circumstantial evidence, the application of Section 106 of Evidence Act, and the relevance of motive. Accordingly, the conviction under 1 2019 9 scc 738 2 zoog r+ scc qts 3 zo2t s scc ozo 5 Section i\C.2 ,tl IpC against the husband for the murder of his wife was st:t a sride

12. Learrre,l ?ublic prosecutor submits that there is no reason why the r'k;s e relatives would speak against the appellant unless it ,,r,.a s the appellant who inflicted in.;urir:s on the deceased anrl caused her. Admittedly, therrr rve re lifferences between the c.t:ceased and the appellant. When the appellant was stayinp; ,;rirh the deceased, it is for the appellant to explain under rvhrrt c rr:umstances, the death occurred.

13. P.W. I is the son of the sister of the decezised, p. tr/.2 is the son of tlLe ,leceased, p.W.3 is the cousin brothr:r of the deceased, F \r1 ,t is the daughter of the deceased, a.r,d p.Ws.S and 6 a.rt: thr: independent witnesses. All of :,herc s1 ated that they susp,<:cte j that the appelrant had beaten the de:eased to death with irr Ixe. The reason to kill her is ttrat r.he appellant suspected t h,. deceased of having an illegal in tim,lcy with someone e.s::. I).Ws.g to 1O are circumstantia rvir.nes ses, who stated theL'- tL c appsflant and the deceased had be,:n living separately :or nearly lO years, and that the appella__rt joined the deceased anr:[ :.tey were living together 2 to 3 morLths prior to the incident, .11 o1 11-r" *r,nesses stated that the altpeJlant was 6 suspecting the character of the deceased and belived she was having intimacy with someone else' 14. P.W'18 is the witness' who was examined by the prosecution to speak about the *""'"1t'11 confession made to him by the appellant' According to p'W'fS' while he was at the bus stand' the appellant met him and informed him that he murdered the deceased' Immediately' P'W'18 informed P'W'8' who is one of the neighbours' P'W'S turned hostile to the prosecr.rtion case' He did not speak anything about P'W'18 informing him about the murder of the deceased According to P.W.18, he went along with P'W'6 to the place where the incident happened' According to P'W'18' he found the body lying in a pool of blood' and immediately' she was shifted to the hospital' P'w'18 further stated that the deceased died while undergoing treatment' 15. The extra-judicial confession made to P'W' 18 is one of the circumstance relied upon by the prosecution' Though P'W'18 stated that after the appellant confessed to him about committing the murder of the deceased' he called P'W'8 and went to the scene where the body was lying in a pool of blood' not find a place in the complaint the name of P.W'18 .d'oes lodged by P.W.1' P'W'l did not state that he' along with 7 7 P.Ws.2 (,, hospital itnd 7, shifted the body of the dsceirsed to the ! h,: name of p.W.g is not menticne,l ei ther in the complairrt lcc[;lecl by p.W. I or in the stateme.ets of I.Ws.1 to 4 The versic n piven by P.W.18 becomes dou ttful fc r the said reasons

16. Tho _r1th the witnesses spoke about their suspicion that the appellarrt lr ac,l killed the deceased, howeve i, strch suspicion is not corr.o trr: r rLted by any substantive evidenr:e. Tht re are no witnesses rvho ;aw the appellant in the house or. at the time when the nr:r,lent happened. A1I the witness_-s, p.\.[s,1 to 4, P.Ws.7 to I 0. rvl o are circumstantial witnesses st:rted that the appellant fLad lt,:en staying along with the deceasecl for two months prior tr the incident. However, none of lhern rv tnessed the inciden:. ,r.ll of them merely suspected that it .vas the appellant whc lli led the deceased. 77 . The co rrol, ru-ative evidence relied upon by the 1;ros :cution was P.W. 18, to r,rhom the extra_judicial confessron u,as made. As already rliscr.rr;sed, the evidence of p.W. 1g cannc,t br: rs1i.6 upon. The orher erridence is the recovery of M.O.S at the instance of tlr.e r.ppellant. M.Os.6 and, 7 ar(: ttle r,,earing apparei of the il,:rp:11ant. Though M.Os.S to 7 were sent :o FSL, I i I l j l I I , I 8 a. <.j. however, the blood found on them was not linked to the deceased.

18. The case is one of circumstantial evidence' The Hon'ble Birdhichand Sarda v' State of Supreme Court in Sharad the PrinciPles regarding the Maharashtra+, laid down acceptance and the basis for recording a conviction on the basis of circumstantial evidence which read as under:- ' " -1. - . establi"shed' The the circumstances from which of guilt is to be drawn should be circumstances' "o..fr-."io.t ;;i;-- ll.'.".n"j" *.,st' or 'srrould' and not 'may be' established; the facts so established should.- be 2. lo.r"i",.nt only with the hypothesis of the guilt of ""*"".a, that is to- say' they shoutd not be explained on any othei hypothesis except that the accused is guiltY; 3. the circumstances should be of a conclusive nature and tendencY; 4. they should exclud'e every possible i*oiiJ3t" except the one to be proved; al,d 5. there must be a chain of evidence so complete as not to leave any reasonable ground fo1 ll" conch:.sion consistent with the innocerlce- of the ;H";";J must show that in all lumy probability, the act must have been done by the accused. " o irse<; + scc rro 9

19. Eiacll e nd every circumstance relir:d up(,n by the proseculicn lras to be proved by the plosecuticn beyond reasonatr.Lr, clrtrbt. As already discussed, (i) there is:ro evidence of the app.:lle.,t being last seen in or near the h:us : when the incident too,!: rlace; (ii| the alleged confessioe made to p.W. 1g rs not br.lir:rr: lrle, (iii) the recovery of axe/I{.O.S. .vhich was found ir.: t ht_ rtpsn place, cannot be relied rrpo -r. There are missing lin..ts; i,r the chain of circumstances o. thr: prcsecution on the basi:; .rf such evidence, the conviction cannot s ustain. 20. Acc,crcli;:r11[y. the Criminat Appeal is allorverl. Since the appellant is i..r iai1, he shall be set at liberty 1brlhwith, if not required ir anv :ther case. //TRUE COPYII Sd/- I. NAGA LAKSHMI J(llN:" REGtST|RAR + SECT ON OFFICER To, The Principra Sessions J1dg9 at Adilabad (With recorcs, if any The Judiciat :ri,st Ctass Malistrate.iUil;r'" '""" The Statior ilor;,-. Officer, lnderveily potilJ Station,naitaO,ro rhe superirt-.rrrent cenrrar p15onj.w{ft;iiti Io,r"o oo" I Iff"r"fi:',lf: l'rtbric Prosecutor, High cou; ro; tf,ett,,te cr il Lnsana at One CC to lsr t\l rlaveen K .umar, Advocate [OpUC] Two CD Cooieq 1 2 J 4 E f) + ADK M- HIGH COIJIIT DATED:24 ilt4l2}21 JUDGMEN-T GRLA.No.31t)6 of 2Afi ii: d -:ii )() ALLOWING TI{E CRLA )