* THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO + CRIMINAL APPEAL No.840 of 2007. %28.12.2010. # State of A.P.rep.by its Public Prosecutor ….Appellant Vs. $ Thuraka Dasaiah and another ….Respondents !Counsel for the Appellant: Public Prosecutor, High Court of Andhra Pradesh. ^Counsel for the Respondent No.1: Sri M.Venkata Narayana <Gist : >Head Note: ? Cases referred: 1. (2010) 6 SCC 1 2. AIR 1984 SC 1622 3. AIR 2003 SC 3131 4. AIR 1971 SC 1898 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY EIGHTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.840 of 2007 Between: State of A.P.Rep.by its Public Prosecutor ..... APPELLANT AND Thuraka Dasaiah and another ....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.840 of 2007 JUDGMENT: (Per Hon'ble Sri Justice K.C.Bhanu) This Criminal Appeal by the State under section 378(3)(1) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 24.11.2004, in Sessions Case No.58 of 2001 on the file of IV Additional Sessions Judge, Nellore, whereunder and whereby, the first respondent/accused No.1 was found not guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”) and was acquitted under Section 235 Cr.P.C. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: The deceased, K.Subba Rao, is the husband of P.W.7. On 12.08.1999, in the evening at about 6:30 PM, the deceased took bath and went towards Inamadugu Centre and thereafter, the deceased did not return back on that night. On the next day morning, some of the villagers came and informed P.W.7 that they found her husband in the water canal near Leguntapadu Madigawada. She went there and saw the dead body of her husband, and found a cut injury on the neck. P.W.8, who is the Village Assistant of Leguntapadu Madigawada, also went to the scene and found the dead body of the deceased. Thereafter, he along with G.Gopalaiah, who is the Village Assistant of another Village, who was also present at the scene of occurrence, went and informed about the identity of the dead body, to P.W.1, Village Administrative Officer. P.W.1 went to the Police Station and lodged a report to P.W.10 Sub-Inspector of Police, Tekemitta, who was present in the Police Station, on 13.08.1999 at about 11:00 AM. Basing on the report, P.W.10 registered a case in Crime No.133 of 1999 for the offence punishable under Section 302 I.P.C., and informed about registering of the case to P.W.11, the Inspector of Police, who took up the investigation. P.W.11 rushed to the scene of occurrence situated at Utukaluva, near Arundhatiyawada, Inamadugu Village along with his staff, and observed the scene of occurrence and held inquest on the dead body of the deceased in the presence of mediators and thereafter, the dead body was sent to post mortem examination. P.W.9-Doctor, who conducted autopsy over the dead body of the deceased, found a cut injury on the neck and opined that due to the neck injury the deceased died. Thereafter, P.W.10 examined the witnesses i.e., P.Ws.3 to 6, and later arrested the accused. In pursuance of the confessional statement given by A.1, M.O.8, which is the weapon used in the commission of offence, was seized in the presence of P.W.1 and others. After completion of investigation, P.W.11 Inspecor of Police filed the charge sheet. 3. The trial Court framed the following charge against the accused: “That on 13.08.1999 at about 2.00 A.M. (Early Hours) at Utukaluva bridge near Harijanawada of Leguntapadu Village A.1 of you did commit murder of Korathalur Subba Rao, son of Penchalaiah by cutting his throat with the help of battle leave knife as the deceased became a hurdle to have his (A- 1’s) contracts with Korathaluru Narayanamma and that A1 of you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance. That during the course of the same transaction and at the same time and place as mentioned in the proceeding charge A.2 of you aided the first accused in killing the deceased Korathalur Subba Rao and the said offence took place in furtherance of the common intention of A-2 and A-1 and that you A-2 thereby committed an offence punishable under Section 302 read with 34 I.P.C. and within my cognizance.” When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined PWs.1 to 11 and got marked Exs.P1 to P12 besides case properties M.Os.1 to 9. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and did not adduce any defence evidence, except marking Ex.D-1 in the statement of P.W.5. 6. During the pendency of the Sessions Case, A.2 died, therefore, the case against A.2 was abated. The learned Sessions Judge has not accepted the evidence adduced by the prosecution and, therefore, acquitted the appellant/A.1. Challenging the same, the State has filed the present appeal. 7. Learned Public Prosecutor appearing for the State contended that the homicidal death is established as per the evidence of P.W.9; that there are certain incriminating circumstances in the evidence of prosecution witnesses which reveal that the accused might have committed the murder of the deceased; that the evidence of P.W.3, would go to show that the deceased was last seen in the company of A.1 and A.2 on the fateful day of the incident and that there is no possibility for any person to commit the murder of the deceased except the accused and therefore, he prays to set aside the acquittal order, and convict the respondent No.1/A.1 8. On the other hand, learned counsel appearing for the respondent / A.1 contended that no reliance can be placed on the evidence of P.Ws.3 to 6 in view of the fact that they were examined four or five days after the incident, though they are present in the Village; that the dead body was found on the next day morning, that if really the deceased was last seen in the company of the accused on the fateful night of the incident, certainly they would have revealed about the fact of seeing the deceased in the company of the accused either to police or relatives of the deceased; that on their own saying that they did not inform any villagers about witnessing the deceased in the company of A.1 and A.2; that the evidence is not sufficient to show that the accused are perpetrators of the crime and, therefore, after an elaborate consideration of evidence on record, the trial Court has rightly found the accused not guilty of the offence and there are no grounds to interfere with the impugned judgment. 9. Now the point that arises for consideration is whether the prosecution is able to bring home the guilt of the appellant/A.1 for the charge levelled against him beyond reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? 10. Ordinarily the order of acquittal shall not be inferred with, because the presumption of innocence of the accused is further strengthened by acquittal. The Court of appeal is required to take into consideration the reasons given by the trial Court basing on the judgment of acquittal, very carefully and if such reasons are consistent with the evidence, as a matter of prudence the Court of appeal should not interfere with the order of acquittal, by re appreciating the evidence and taking some other view. If the reasons given by the trial Court are contrary to the weight of evidence – the Court of appeal would be justified in discarding the same in exercise of its appellate jurisdiction. The paramount consideration of the Court is to prevent miscarriage of justice. A miscarriage of justice which may arise from acquittal of the guilty person is no less than from the conviction of an innocent person. Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons to interfere with the order of acquittal. On this aspect it is apposite to refer to a decision in Manu Sharma V. State[1], wherein it is held thus: “The following principles have to be kept in mind by the appellate Court while dealing with appeals, particularly, against the order of acquittal: (i) There is no limitation on the part of the Appellate court to review the evidence upon which the order of acquittal is found. (ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions. (iii) The Appellate Court can also review the Trial court's conclusion with respect to both facts and law. (iv) While dealing with the appeal preferred by the state, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal. (v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. (vi) While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether finding of the trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion. (vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc. , the Appellate Court is competent to reverse the decision of the Trial court depending on the materials placed. The entire case rests upon circumstantial evidence and as there is no direct witness. It is something from which facts in issue are to be inferred. There is no direct evidence to prove the charge beyond all reasonable doubt.” 11. When the case rests on the circumstantial evidence, the law is well settled with regard to the principles to be followed in such cases in Sharad Birdhichand Sarda Vs. State of Maharashtra[2] wherein it is held thus: A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. " (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. 12. P.W.1 was present when P.W.11 conducted inquest on the dead body of the deceased on 13.08.1999 at Utukaluva bridge, Harijanawada Village. The inquest mediators found the cut injury on the throat of the deceased. The inquest mediators opined that the deceased died as a result of cut injury on the throat. 13. P.W.9 is the Doctor, who conducted post mortem examination and found the following injuries: “1. There is a deep transverse cut injury of the neck on the anterior aspect, the trachea is cut transversely at the level of thyroid cartilage, the carotid vessels are cut on both sides. The muscles of the neck are also cut. The margins of the cut tissues show sides of inflammation. The subcutanes tissue over the neck regions also shows congestion and staining of the blood is seen over the neck and chest. 2. There is an abrasion of the right side of the neck of 2” x 1” just above the cut throat injury mentioned above. 3. There is abrasion of the left knee of 2” x 2”.” He opined that the cause of death was due to cut of carotid of neck, while the individual was under the influence of alcohol. He stated that The injury can be possible with a weapon life M.O.8. The opinion as to the cause of death as spoken to by P.W.9 as recited in Ex.P.6 remained unchallenged. From the above evidence, homicidal nature of death of the deceased is established beyond all reasonable doubt. 14. Now the point to be decided is whether the appellant.A.1 is the assailant of the deceased or not? The prosecution examined P.Ws.3 to 6 to show that the deceased was last seen in the company of A.1 and A.2. P.W.3 simply stated that while he was returning to his house after second show movie, he found the deceased in the company of the accused while they were proceeding towards Leguntapadu; and that he came to know about the death of the deceased next day morning. That aspect of the case has not been stated to police, when he was examined under Section 161 (3) Cr.P.C. On the other hand, he admitted that he saw the deceased along with two others while they were going towards Laguntapadu Village. Therefore, at the earliest point of time, he did not specifically state to the police the names of the accused or the descriptive particulars of the accused. The said omission cannot be ignored. A material omission merits acceptance. Further more, he was not immediately examined by the police. Though he went to the spot to see the dead body, he did not reveal to anybody that he saw the deceased in the company of Accused Nos.1 and 2 during the mid night of day of incident. Therefore, the evidence of P.W.3 witnessing the deceased in the company of the accused cannot be accepted. 15. Coming to the evidence of P.W.4, she stated that she was returning to home on foot and found three persons coming in the opposite direction and they were all in drunken state and on seeing them, she returned to the bus stand; and that the deceased who was one among the three, came to her and enquired as to why she came there, then she informed him that she came to Leguntapalem to witness a movie; that when she enquired as to where he was going, the deceased said that he has got some work. Admittedly, P.W.4 was examined five days after the incident. She was a married woman, aged about 45 years, as on the date of her examination and she has got five children and husband. She knows that after 10:00 PM, there will not be any buses from Laguntapadu to Inamadugu Harijanawada Village. According to her, she went to watch a second show movie, which will commence at 10:30 P.M., at Laguntapadu Village, and there will not be any buses fly after 1:00 P.M., to her Village. It is highly improbable for a person like P.W.4 who is having husband and children, alone went to far off place to witness the picture. Further more, though she had seen the accused in the company of the deceased, she did not inform to anybody in the Village though she came to know about the death of the deceased on the next day morning. Four or five days thereafter she was examined by the police under Section 161(3) Cr.P.C. Not revealing an important fact to anybody in the Village gives rise to doubt the presence of P.W.4 on the fateful date of incident. 16. P.W.5 is also the resident of Leguntapadu Village. He used to run cool drink shop. According to him, at about 12’0 Clock when he was at his shop, the deceased along with A.1 and A.2 came to his shop and purchased Soda bottles and three glasses and they consumed alcohol and thereafter A.1 and A.2 left the Village; and on the next day, he came to know about the death of the deceased. This witness also did not reveal the fact of noticing the deceased in the company of appellant / A.1 to anybody till he was examined by the police after four or five days of the incident. On 13.08.1999 the police came to the Village and apprehended both the accused. When the conduct of witnesses in not informing to any Villager or police about their seeing the deceased in the company of A.1 and A.2, it is not desirable to place an implicit reliance on their evidence. 17. Coming to the evidence of P.W.6, who is a resident of Leguntapadu Village, he says that at about 2.00 A.M. on 13.08.1999 he was returning home from the fields on his bicycle. The evidence given by him is that he went to the fields to switch on the pump set and after attending the work in the fields, and while he was returning, he found A.1 and A.2 at the bunds of Utukaluva and found the deceased Subba Rao lying on the ground at that time; that when he enquired A.1 and A.2, they informed that the deceased Subba Rao was in a fully drunken state and they were taking him to home, and later he left that place. P.W.6 is no other than the son of P.W.1. If really he had seen the deceased in the company of the accused, he would have definitely informed to his father who is no other than the Village Assistant of Leguntapadu Village. The silence of this witness not informing to his father or to the police about an important fact in issue, would throw any amount of doubt in passing threw the place where he found the deceased in the company of the accused. Admittedly, four or five days after the incident, he was examined by the police. The Investigating Officer also did not explain anything for not examining these witnesses immediately after the incident, especially when they were present in the Village. After apprehending the accused, he examined P.Ws.3 to 6. The evidence of these witnesses should be free from doubts and infirmities. That would clearly indicate that these witnesses were projected as a circumstantial witnesses to strengthen the prosecution case. The last seen theory must be so proximate to the time of offence. There is no other evidence to show that the accused were in the company of the deceased immediately before the incident or at the time of incident or after the accident. So, if these witnesses are to be eschewed from consideration, there are no other circumstances to indicate that the accused are the assailants of the deceased. Except the fact that the death of the deceased is shown to have been proved as homicidal death, there are no other incriminating circumstances to connect the accused with the crime. Even assuming for a moment that the evidence of P.Ws.3 to P.W.6 is to be accepted as true and correct; that the accused and deceased were together during mid night on the bund of Utukaluva, does not by itself lead to irresistible conclusion that the accused must have murdered the deceased on this aspect it is apt to refer to a decision of Apex Court in Amit @ Ammu V State of Maharashtra[3], wherein it is held thus: “Learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh kumar) was a member in Mohibur Rahman and anr. vs. State of Assam [ (2002) 6 SCC 715] for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts, of each case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational rnind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what cir curnstances the victim suffered the death or should own the liability for the homicide. The present is a case to which observation as afore said and principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed. In which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p. m. . It is just about that much time that the appellant and deceased were last seen by PW1 and pw11. No explanation has been offered in statement by the appellant recorded under section 313, Cr. P. C. His defence is of com plete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by Court of Sessions and affirmed by the High Court." The circumstantial evidence, even if it is taken as true, at best, it gives raise to a suspicion that the accused might have committed the murder of the deceased. Suspicion, however strong, cannot take the place of the legal proof. On this aspect it is apt to refer to the decision of Apex Court in Giant Mahtani V. State of Maharashtra[4], wherein it is held thus: “But according to the system of jurisprudence which we follow, conviction cannot be based on suspicion nor on the conscience of the Court being normally satisfied about the complicity of the accused person”. In the absence of any legal evidence, the learned Sessions Judge has rightly acquitted the accused and there are no grounds to interfere with the same. 18. Accordingly, the Criminal Appeal is dismissed confirming the judgment in Sessions Case No.58 of 2001 dated 24.11.2004 on the file of IV Additional Sessions Judge, Nellore. _______________ K.C. BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J DECEMBER 28, 2010. YVL L.R.Copy to be marked. (B/o) YVL [1] (2010) 6 SCC 1 [2] AIR 1984 SC 1622 [3] AIR 2003 SC 3131 [4] AIR 1971 SC 1898