THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.231 of 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant – Thammishetty Uma Mahesh @ Uma R/o.Mallawaripalem, Noojandla Mandal, Guntur District, who faced trial for the offences punishable under Sections 302 and 379 I.P.C in S.C.No.265 of 2007 on the file of II Additional Sessions Judge (FTC) at Adilabad, convicted therefor and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for six months for the offence under Section 302 I.P.C; and further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for two months for the offence under Section 379 I.P.C vi d e judgment dated 31.12.2007. Challenging the said conviction and sentence, the appellant filed the present appeal. The substance of the charges framed against the accused is that on 22.10.2005 at about 18.00 hours at the outskirts of Udumpur Village, Kadam Mandal, he committed murder of Madasu Ramesh (hereinafter referred to as ‘the deceased’) by beating him with an iron road on his head and other parts of the body with a view to steal away his tractor, cultivator and other articles worth Rs.2,86,000/-; and that on the same date, time and place he dishonestly committed theft of tractor and trolley by murdering the deceased and thereby committed an offence punishable under Section 379 I.P.C. The case against the accused as unfolded during the trial is briefly stated as follows: The accused, who is resident of Lingapur, was a Masion. P.W.1 is the father of the deceased. The deceased used to work as tractor driver. P.W.2 is the owner of the tractor, trailer and cultivator. On 22.10.2005, on the instructions of P.W.2, his driver Shankar (who was not examined) took the said tractor, trailor and cultivator to Khanapur to the shop of P.W.4 for repair. At that time, the said Shankar had taken the deceased along with him, as he was also a driver. The accused also went along with them to the mechanic shop on that particular day saying that he had got some work in Khanapur. After the vehicle was repaired, the same was handed over to the driver of P.W.2. P.W.2 had instructed his driver Shankar to take the tractor and trailer to Indervelli as it was engaged by a contractor. The said Shankar informed P.W.2 that he had some work at his house and therefore the deceased could take the tractor to Indervelli. On the said evening, the deceased along with the accused started to go to Indervelli on the tractor. On the way, at Kadam they have purchased a whisky bottle and disposable glasses and when they reached near Udumpur Village, they consumed whisky and during night time the accused had taken an iron rod from the tractor and hit the deceased on his head and killed him. Later, the accused taken away the tractor, trailor and cultivator along with him. On the way, he had offered to sell the said cultivator to P.W.6 at Gajwel but he refused to purchase the same. Later the accused had sold it to P.W.7 at Shamirpet for an amount of Rs.2,000/-. On 24.10.2005, at about 5.30 or 6.00 p.m on receiving telephonic information from the Ex-Sarpanch of Udumpur about the presence of unidentified dead body at Indanapalli Village, P.W.16- the then Sub Inspector of Police rushed to the scene and on searching the pocket of the dead body, identity card was found. Immediately, he informed the relatives of the deceased. On receiving the said information, P.W.1 rushed to the scene and then lodged a report on 25.10.2005 at about 9.00 a.m under Ex.P.1. Based on the said report, P.W.16 registered a case in Crime No.96 of 2005 and issued Ex.P.12-F.I.R. Further investigation was taken over by P.W.17, who visited the scene of offence at Udumpur and recorded the statement of P.Ws.2 to 5, 9 and 10. Thereafter, he held inquest over the dead body of the deceased and further held scene of offence panchanama in the presence of P.W.14 and the same were marked as Exs.P.9 and P.10 respectively. Ex.P.13 is the rough sketch of the scene. On 25.10.2005, on requisition, P.W.12-the then Civil Assistant Surgeon in Government Hospital, Khanapur held autopsy over the dead body of the deceased and opined that the cause of death was due to haemorrhagic shock due to head injury. Ex.P.8 is the post mortem report. On 03.12.2005, P.W.17 arrested the accused and at his instance, cultivator (M.O.3) was seized from P.W.7. Thereafter, again at the instance of the accused, tractor and trailor were seized under M.Os.1 and 2 in the presence of P.W.11, under Ex.P.6- panchanama. Thereafter, the material objects were forwarded to Regional Forensic Science Laboratory. After completion of enquiry and receipt of relevant documents, P.W.17 filed charge sheet. On committal, the learned Sessions Judge framed two charges against the accused for the offences under Sections 302 and 379 I.P.C When the same were read over and explained to the accused in Telugu, he denied the same and claimed to be tried. To substantiate its case, the prosecution examined P.Ws.1 to 17 and got marked Exs.P.1 to P.34 apart from marking M.Os.1 to 12. On behalf of the defence, though none were examined, Exs.D.1 and D.2 were marked. After closure of the prosecution side evidence, the accused was examined under Section 313 Cr.P.C, wherein he denied the incriminating evidence adduced against him. The learned Sessions Judge, after appreciation of the oral and documentary evidence, found the accused guilty of the offences under Sections 302 and 379 I.P.C, and accordingly, convicted and sentenced him as aforementioned. We have heard Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant and also the learned Additional Public Prosecutor, who have taken us through the impugned judgment and entire evidence. The entire case rests upon the circumstantial evidence and there is no direct evidence. When a case rests upon the circumstantial evidence only, all the circumstances must firmly and cogently be established and they should unerringly point out the guilt towards the accused. The Supreme Court in Sharad Birdhichand Sarda v. State of Maharastra[1] laid down certain guidelines for conviction on the basis of circumstantial evidence, which have to be fulfilled before the accused is convicted on the basis of circumstantial evidence, which read as follows. “1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence, and a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.” It is also well settled that 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 the deceased is found dead is so small and that the possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration (AIR 2006 SC 1656). Keeping in view the legal principles in mind as referred to above, we shall now scrutinize the evidence of the prosecution. P.W.1, who is the father of the deceased and who set the criminal law into motion by lodging Ex.P.1-report, is not an eyewitness to the incident. He deposed that about two years prior to his giving evidence, in the morning time one K.Srinivas (P.W.2) came to his house and took his son along with him to take the tractor to Khanapur; that they went to Khanapur on the tractor and got it repaired there and thereafter, P.W.2 went away to Sarangapur Village and instructed the deceased to take the tractor and trailor to Indervelly; that on Saturday morning the deceased went to Khanapur along with the accused and on Tuesday morning he received information from the police of Kadam Police Station that the deceased was killed at Udompur Village, which is 2 kms away from Udumpur; that immediately, he went to that place and saw the dead body of the deceased with bleeding injuries; that he came to know that some culprits murdered the deceased and committed theft of the tractor and that he gave a report to the police under Ex.P.1. In his cross examination, he stated that by the time he went to the scene of offence, the police were there; that P.W.2 had drafted the report under Ex.P.1. But he does not remember at what time he gave the report, whereas in Ex.P.1 he stated that P.W.2 and Gurijala came to their house on 22.10.2005 at about 3.00 p.m and took his younger son (deceased) to drive the tractor of P.W.2. P.W.2, who is the owner of the tractor, deposed that he used to the cultivate land with tractor and some times he used to send his tractor on hire, after completion of his works; that at about two years prior to his giving evidence, he wanted to send his tractor to Indervelli on hire; that his driver Shanker told him that the tractor requires some repairs and therefore, he asked his driver to take the tractor to Khanapur and get it repaired; that his driver had taken the tractor, trailor and cultivator to Khanapur on Saturday at about 10.00 a.m for repairs; that the repairing work was completed on Sunday evening; that on Sunday evening he went to Khanapur to pay the repair charges to the Mechanic and also to see the condition of the tractor; that at the mechanic shop, he saw his driver Shankar and the deceased along with the accused; that his driver informed him that he brought the deceased along with him from Lingapur and the accused informed him that he came to Khanapur to sell some iron goods required for shutters; that he had sold away the articles, but he had to receive the amount and after receiving the amount he will go away; that when he asked his driver to take the tractor to Indervelli, he told that he wanted to stay with his family for about two days and later he will go to Indervelli; that he also told that the deceased can take the tractor to Indervelly and that when he asked the deceased as to whether he could take the tractor, he told that he would drive the tractor to Indervelly . He further deposed that on Tuesday at about 5.30 or 6.00 p.m, a message was received from the Police, Kadam stating that the dead body of the deceased was found near Udumpur and the dead body was identified with the identity card of the deceased; that the police came to their village and informed him about it; that immediately, he went to the place of offence at Udumpur and found the dead body of the deceased, but could not find his tractor; that when the police enquired him as to who was travelling in the tractor, he informed them about the presence of the accused and that 2 or 3 days thereafter, the police had brought the accused to the police station and the accused had confessed to have killed the deceased and stolen away the tractor, trailor and cultivator. In his cross examination, he stated that on the same day for the first time, his tractor was engaged for road work and admitted that the cultivator is not required for road work. He also admitted that the deceased was not his tractor driver; that the police kept him and his driver Shanker in the police station till next day morning; that the accused was brought to the police station five days after the incident and was kept in the police station for about one month and his driver was also kept in the police station for about 20 days. P.W.4, who is running Mechanic shed at Khanapur, where the tractor of P.W.2 was got repaired, did not support the case of the prosecution and turned hostile. P.W.5, who was declared hostile, deposed that one day prior to the death of the deceased, the deceased along with another person came to his wine shop and purchased one Original Choice Whisky bottle at about 4.30 or 5.00 p.m and that on the next day morning, the police came to his shop and enquired whether he sold any whisky bottle on the previous day. P.W.6 was examined to show that the accused offered to sell the cultivator to him. In the cross examination, he stated that the tractor, trailor and cultivator were not brought before him while the cultivator was offered for sale. P.W.7, who is doing business in iron scrap deposed that two years prior to his giving evidence, the accused came to him along with the tractor and trailor and informed him that he is going to Guntur and he has no money to put diesel in the tractor and that he had not taken meals also, and therefore, he offered to keep the cultivator with him as security and pay some amount. Accordingly, he kept the cultivator as security and paid an amount of Rs.2,000/- to the accused. The police seized the cultivator under M.O.3. P.W.8, who is a panch witness, spoke about the accused showing the cultivator and seizure of the same under Ex.P.4- panchanama. P.Ws.9 and 10 did not support the case of the prosecution and turned hostile. P.W.12, who is the doctor, deposed that on 25.10.2005 on receipt of requisition from the Police of Kadam, he conducted post mortem examination over the dead body of the deceased and issued Ex.P.8-post mortem report opining that the cause of death of the deceased was due to haemorrhagic shock due to the head injury. The time of death was three or five days prior to his conducting post mortem examination. He admitted in the cross examination that if a person accidentally falls from the moving vehicle, such injury would be caused. P.W.13, who has last seen the accused in the company of the deceased, deposed that when he enquired the deceased as to where he was going, he informed him that he was taking the tractor to Udumpur Village and that the regular driver Shanker had not come on that day. He also deposed that when he enquired the accused as to where he was going, he informed that he had got some work in Udumpur and therefore, he was going there. Three days thereafter, he came to learn that the deceased died. In his cross examination, he admitted that the police had examined him on the date of inquest over the dead body of the deceased and three days thereafter the police apprehended the accused and detained him in police station. P.W.14 is the panch witness to the inquest report and also to the scene of offence panchanama P.W.15, who is also a panch witness, deposed that 20 days or one month after the death of the deceased, the police brought the accused to their village and in the presence of himself and one Bhooma Reddy, the accused confessed the manner in which he murdered the deceased. P.W.16, who is the Sub Inspector of Police deposed that on the basis of the report given by P.W.1, he registered the crime and issued Ex.P.12-F.I.R, examined P.W.1 and recorded his statement, and assisted P.W.17-Circle Inspector of Police in further investigation. P.W.17-Investigating Officer deposed that he apprehended the accused on 03.12.2005 at Lingapur Village; that on interrogation, the accused confessed about his steeling the tractor, trailor and cultivator and selling the same to P.W.7; that the accused led them along with the panch witnesses to Ranga Reddy District, where the cultivator was seized from P.W.7. In his cross- examination, he admitted that P.Ws.1 and 3 stated before him as stated in Exs.D.1 and D.2 respectively. He stated that P.W.2 did not specifically state before him that he sent the cultivator also along with the tractor and trailor and that the accused told him that he had sold away the tools and he had to receive money. From the above evidence, it is established that the dead body of the deceased was found on 25.10.2005 and on the same day post mortem examination was also conducted. The doctor, who conducted post mortem examination over the dead body of the deceased, opined that the death was 3 to 5 days prior to the post- mortem examination i.e., either on 20th or 22nd of October, 2005, whereas P.W.13 stated that the accused and the deceased were last seen together on 23.10.2005. Much credence cannot be given to the evidence of P.W.13 since his evidence is not in corroboration with the medical evidence under Ex.P.8. Further, the arrest of the accused by P.W.17 on 03.12.2005 falsifies with the evidence of P.Ws.2 and 13, since according to them the accused was arrested 3 to 5 days after the incident and he was lodged in jail for more than one month. Therefore, the alleged recovery of M.Os.1 to 3 on the confession so made by the accused also falsifies to connect the accused with the commission of the offence. Further, according to the evidence of P.Ws.2 and 13, they have last seen the deceased going in the tractor along with the accused. But, mere travelling the accused and the deceased in the tractor would not show that the accused murdered the deceased. Even though the prosecution proved that the death of the deceased was homicidal in nature, it is the duty of the prosecution to connect the accused with the said crime. In the present case such a link is totally missing. In view of the above discussion, we are of the opinion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubts. Therefore, we are unable to concur with the conviction and sentence recorded by the Court below against the accused and we are compelled to give benefit of doubt to him. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed by II Additional Sessions Judge (Fast Track Court) at Adilabad in S.C.No.265 of 2007, vide dated 31.12.2007 are hereby set aside and the appellant- accused is acquitted of the charges with which he stood charged. He shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by the appellant-accused, shall be refunded. A.GOPAL REDDY, J Date: 08.12.2011 R. KANTHA RAO, J va [1] AIR 1984 SC 1622