THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Appeal No.722 of 2007 Date: 21.01.2011 Between: Chanda Venkateswarlu … Appellant AND The State of A.P., rep.by Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Appeal No.722 of 2007 JUDGMENT (per Hon’ble Sri Justice K.G. Shankar): The sole accused, who allegedly kidnapped, raped and murdered Naga Pushpa, was tried by the X Additional Sessions Judge, Krishna District, Machilipatnam for the offences under Sections 364, 376, 302, 404, 201 and 75 of the Indian Penal Code (IPC). The learned Sessions Judge found the accused guilty of the offences u/s.302, 364, 376, 201 and 404 IPC. He was sentenced to imprisonment for life and Rs.100/- with appropriate default sentence for the offence u/s.302 IPC. He was sentenced to Rigorous Imprisonment (RI) for a period of 5 years for the offence u/s.364 IPC and RI for a period of 10 years for the offence u/s.376 IPC. He was also sentenced to RI for a period of 3 years for the offence u/s.201 IPC and for a period of 2 years for the offence u/s.404 IPC. The sentences awarded against the accused were directed to run concurrently. Aggrieved by the same, the present appeal is laid. Before the trial Court as well as before us, the accused is defended by counsel provided by the State. 2. The case of the prosecution in brief is: a) The deceased was a resident of Munnaluru. She was the wife of PW.2. On 02.02.2006, the deceased went to Hyderabad from Munnaluru to attend the house warming ceremony of a cousin of PW.2 by name S. Venkateshwar Rao. After attending the house warming ceremony, the deceased left in a bus run by private travelers from Hyderabad on 03.02.2006 to return to Munnaluru. b) PWs.3, 5, 6 and 8 also attended the same house warming ceremony. PWs.5, 6 and 8 boarded the bus along with the deceased at about 10.30 p.m. The bus was proceeding to Vijayawada. While PW.5 alighted the bus at Nandigama, PWs.6, 8 and the deceased got down from the bus at Kanchikacherla. PW.6 offered to take the deceased in a scooter to her village. The deceased, however, declined the offer. She also declined the earlier offer of PW.5 to get down at Nandigama and to go to the house of the daughter of PW.5 along with PW.5. The deceased informed PW.6 that she would catch an auto and to go to her village. c) PW.7, who has been running Coffee Hotel at Chevitikallu Road Centre at Kanchikacherla noticed the deceased boarding the auto of the accused at the auto stand between 4.30 a.m. and 5 a.m. on 04.02.2006. PW.8, who was a resident of Munnaluru, noticed the deceased travelling the auto of the accused and made an in vain attempt to get the attention of the driver of the auto to stop the accused, who was driving the auto so that he could also board the auto to go to the village of Munnaluru. PW.9, who is an auto driver by calling, noticed at about 4.45 a.m. on the same day i.e., 04.02.2006 the accused and the deceased proceeding in the auto of the accused near Kanchikacherla byepass road. 3. This is the evidence on the prosecution side to show that the deceased boarded the auto of the accused and was seen alive for the last time in the company of the accused. The further story of the prosecution may be stated now: a) PW.1 is a Panchayat Secretary of Kanchikacherla Gram Panchayat. At about 1 p.m. he was informed that a dead body of a female was found on the road between Kanchikacherla and Cherukupalli, near Nakkalampet Metal Road. He immediately rushed to the scene where the dead body of the deceased was lying. He noticed burn injuries on her right hand, chest, and half of the head. He also found that the legs of the dead body were widely open. PW.1 concluded that the deceased was molested and later was murdered. PWs.3, 4 (a resident of Munnaluru) and 5 to 7 also rushed to the scene where the dead body of the deceased was lying, on hearing about the dead body of a female. All of them identified the dead body of the deceased. b) Subsequently, complaint was lodged under Ex.P.1 to police by PW.1. An FIR under Ex.P.16 was issued. Later the dead body was identified as the dead body of the deceased. Police conducted inquest and also observed the scene where the dead body was found. c) On 05.02.2006, PW.14, the then Inspector of Police, Nandigama Circle, arrested the accused at about 4 p.m. in the presence of PW.1 and other mediators. The accused confessed that he murdered the deceased and snatched away the gold ornaments of the deceased. The Inspector of Police seized MO.8 gold bangles of the deceased from the possession of the accused. The accused later took the police party to the house of the accused at Chendralapadu and produced jewelry of the deceased concealed in a white handkerchief. PW.14 seized Mos.1 to 5 and 9, which are gold ornaments of the deceased and MO.7, which is a pair of silver anklets of the deceased from the house of the accused. The blood samples of the accused were drawn and were subjected to DNA finger printing with the semen found on the petty coat of the deceased lying by the side of the dead body of the deceased. They matched each other. Considering that the accused raped the accused and later murdered her, the prosecution laid charge sheet against the sole accused for kidnapping, criminal misappropriation, rape and murder of the deceased as well as for concealing the evidence. 4. The learned trial Judge framed charges u/s.364, 376, 302 and 201 IPC as well as u/s.404 r/w 75 IPC. As already pointed out, the accused was found guilty of all the charges. 5. The accused, who is aggrieved by the judgment of conviction and sentence recorded by the trial Court, preferred the present appeal. Sri E. Venkat Reddy, learned counsel was appointed by the State to represent the case of the accused. 6. The learned counsel for the accused contended that the evidence of PWs.3 to 6 is not the evidence of eye witnesses for the alleged offences, that the evidence of PWs.7 to 9 cannot be believed, that there is inconsistency in the medical evidence and that the prosecution failed to bring home the guilt of the accused beyond reasonable doubt. The learned Public Prosecutor on the other hand submitted that the prosecution has established that the circumstantial evidence conclusively proved the guilt of the accused beyond reasonable doubt and in the absence of any explanation from the accused, the case of the prosecution stands established beyond reasonable doubt without any element of doubt. 7. The learned Public Prosecutor contended that the accused, who had an opportunity to explain the circumstantial evidence which was against him in the evidence of prosecution, did not explain the circumstances to establish his innocence either offering an explanation at the time of examination of the accused u/s.313 (1)(b) Cr.P.C. or by deposing or examining someone as defence witnesses. 8. The learned Public Prosecutor placed reliance upon Thirakala Sreekanth v. State of A.P.[1]. It was a case where a child was allegedly kidnapped and was later murdered. The trial Court convicted the sole accused for both the offences of murder and kidnap. In that case, the sole accused went to the school and took away the deceased boy in a car on the pretext that his father was unwell. He took the boy into a room in a lodge. Subsequently, the accused left the room locking the same and took away the key with him leaving the kidnapped boy behind. The body of the kidnapped boy was subsequently found in the room. The manager and ward boy of the lodge testified that nobody else entered the room where the body of the boy was found. The Division Bench of this Court distinguished the judgment of the Supreme Court in State of West Bengal v. Mir Mohammad Omar[2] and found the accused guilty of the conviction recorded by the trial Court for both the offences levelled against him. 9. The learned Public Prosecutor also placed reliance upon Usman Mian v. State of Bihar[3]. In that case, the Supreme Court referred to Hanumant Govind Nargundkar v. State of M.P.[4] and Sharad Birdhichand Sarda v. State of Maharashtra[5] with approval. In Hanumant Govind Nargundkar’s case (supra) the Supreme Court observed that in cases where the evidence is circumstantial in nature, the circumstances from which the conclusion of the guilt of the accused is to be drawn should be fully established and that the facts so established should be consistent with the hypothesis of the guilt of the accused only and that the circumstances should be such as to exclude every hypothesis but the one proposed to be proved. The Supreme Court clarified that there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and that it must be such as to show that within all human probability, the overt act must have been done by the accused. Similar view was expressed in Sharad Birdhichand Sarda’s case (supra) by the Supreme Court. The views in both the cases were referred with approval in Usman Mian’s case (supra). On the strength of these two decisions it is contended by the learned Public Prosecutor that circumstantial evidence would be sufficient to bring home the guilt of the accused beyond reasonable doubt and that the circumstantial evidence in this case is enough to bring home the guilt of the accused beyond reasonable doubt. 10. We may also refer to the view of our own High Court in another case. I n Kurra Seetharamaiah v. State of A.P.[6] a Division Bench of this Court inter alia pointed out that suspicion could be substituted for legal proof, however, strong it might be. On the strength of this decision, the learned counsel for the accused contended that the prosecution at best established the possibility of the accused being guilty of the offences, that the prosecution however failed to establish the guilt of the accused beyond reasonable doubt and that the accused are liable to be acquitted of the charges levelled against him, as mere suspicion that the accused might have committed the offences is not sufficient to convict the accused. 11. The learned Public Prosecutor contended that the chain of evidence is consistent with the guilt of the accused. He placed several circumstances in support of his contention as various links in the chain. Admittedly, the deceased went to Hyderabad on 02.02.2006 to attend the house warming ceremony of S. Venkateshwar Rao, who is a relative of the deceased and her husband PW.2. Again, the case of the prosecution that the deceased boarded a private bus going to Vijayawada on 04.02.2006 at Hyderabad and that PWs.5, 6 and 8 were travelling in the same bus is established by the evidence of PWs.5 and 6. The defence did not seriously question the evidence of these witnesses regarding their claim that they travelled with the deceased in the same bus. Thus, evidently it is established that the deceased went to Hyderabad to attend the house warming ceremony of her relative and more important, she boarded a bus on 04.02.2006 at Hyderabad and got down the bus at Kanchikacherla. We may stop at this stage and consider whether these facts established the guilt of the accused in any manner. The obvious answer to this question is that these admitted facts cannot establish the guilt of the accused by any stretch of imagination. 12. It is the further case of prosecution that the accused boarded the auto of the deceased and that she was last seen in the auto of the deceased. This is what is spoken to by PW.7 to PW.9. The learned counsel for the accused contended that the last seen philosophy and last seen evidence is a very weak piece of evidence and that at any rate the evidence of PWs.7 to 9 is not trustworthy to accept that the deceased was last seen in the company of the accused. 13. PW.7 has been running a Coffee Hotel at Chevitikallu Road Centre at Kanchikacherla. He claimed that the deceased asked him as to where the auto stand was and that she saw the deceased waking up the accused, who was sleeping in the auto, boarding the auto and proceeding to Munnaluru village. PW.8, a resident of Munnaluru, same village to which the deceased belonged to, also travelled in the same bus along with PWs.5, 6 and the deceased and noticed the deceased boarding the auto driven by the accused. 14. PW.9, a resident of Munnaluru village, is an auto driver. He was at Kanchikacherla at about 4.45 a.m. on 04.02.2006 and found the deceased travelling in the auto of the accused. The evidence of PWs.7 to 9 is questioned by the learned counsel for the accused. 15. PW.9, who is an auto driver, claimed that his vocation as an auto driver is to take school children from their residences at Munnaluru to Kanchikacherla and back to their residences from the school at Kanchkicherla. His evidence is that on the date of incident, he was proceeding with children at about 4.45 a.m. The learned counsel for the accused ridiculed the contention of PW.9 that he was taking the school children from a very small village like Munnaluru to a small town like Kanchikacherla starting at about 4.45 a.m. pointing out that even in a city like Hyderabad autos start picking up the children at about 7.30 a.m. and that in a village like Munnaluru, starting with the children at 4.45 a.m. is quite absurd. It is true that Munnalur is a small village and is near Kanchikacherla town. We do not fathom why PW.9 started at about 4.45 a.m. to take the school children. Even otherwise, PW.9 himself admitted that daylight has not set in and that it was still dark by 5.15 a.m. on 04.02.2006, before which time he found the deceased in the auto driven by the accused. It, therefore, is evident that PW.9 could not have noticed the persons travelling in the auto or even the driver of the auto during night time. It may be noticed that PW.9 did not state that he could see the accused and the deceased in the lights of the vehicular traffic. He also admitted that darkness was still prevailing at that time. Nevertheless no explanation is offered as to how PW.9 could identify the accused and the deceased. The contention of the learned counsel for the accused that the evidence of PW.9 is not reasonable and deserves to be rejected, therefore, is justified. We propose to place no reliance upon the evidence of PW.9. 16. PW.8 claimed that he saw the deceased boarding the auto driven by the accused and proceeding towards the village. The deceased is the niece of PW.8. The house of PW.8 is at a distance of ½ k.m. from the house of the deceased. However, PW.8 was silent why he did not talk to the deceased while they were travelling till Kanchikacherla and why he did not alight the bus along with the deceased and proceed with her to the auto stand. More curious, although PW.8 tried to corroborate the stand of PW.7, which shall be examined presently, PW.8 did not whisper in his evidence about PWs.5 and 6 travelling in the same bus along with him and the deceased. On the other hand, he referred the names of Chandra Rao and Krishnaiah (LWs.9 and 12) as the persons with whom he got down the bus. He conspicuously failed to refer the name of PW.5 as getting down the bus at Nandigama or PW.6 getting down the bus with the deceased and PW.8. Indeed, more conspicuous is the fact that he did not refer to PWs.5 and 6 as travelling in the bus along with him and the deceased. It is not as though PW.8 is a stranger to PWs.5 and 6 PW.8 deposed that PWs.3 to 6 also attended the house warming ceremony. Thus, he knew or has facial acquaintance with PWs.5 and 6. No explanation is offered by the prosecution why PW.8 did not refer to PWs.5 and 6 as travelling in the same bus along with him and the deceased. It is not safe to rely upon the evidence of such a witness, merely because he referred to the name of PW.7 in his evidence. 17. As already referred to, PW.7 has been running a coffee hotel. As the hotel is situate on the national highway, there is no surprise if the coffee hotel is opened at 4.30 a.m. PW.7 deposed that the deceased stood at a distance of 10 feet from his hotel and asked him about the auto stand and that he identified the accused as the driver of the auto, which the deceased boarded, in the light of the auto. When a passenger boards an auto, the driver puts on the headlights of the auto but not light inside the auto. It is rather difficult for PW.7 to identify either the accused or the deceased as the driver of the auto and as a passenger. This is evident from the fact that PW.7 deposed that he could identify the accused only in view of the light in the auto. I therefore consider that the evidence of PW.7 cannot be accepted regarding the identification of either the accused or the deceased by PW.7. Thus, the evidence of PWs.7 to 9 who spoke about the deceased being seen alive for the last time in the auto of the accused has not been established clinchingly and beyond reasonable doubt by the prosecution. The question of the accused being considered guilty on the last seen theory, therefore, failed. 18. For the sake of argument, for a moment, it may be assumed that the prosecution established through the evidence of PWs.7 to 9 that the deceased was last seen alive in the company of the accused. Can it be said that the prosecution established the guilt of the accused beyond reasonable doubt in such circumstances? 19. PWs.7 to 9 saw the deceased going in the auto of the accused. Later, half burnt dead body of the deceased was found beside the road from Kanchikacherla to Munnaluru. The learned Public Prosecutor draws an inference from these facts that the accused was guilty. Indeed, it is the case of the prosecution that MO.8 pair of gold bangles of the deceased was seized from the accused when he was arrested. It is also the case of the prosecution that MOs.1 to 5, 7 & 9 jewelry of the deceased was subsequently seized from the house of the accused. A conjoint effort of the evidence of PWs.7 to 9 and seizure of jewelry of the deceased from the house of the accused is sought to be shown as clinching evidence and prove beyond reasonable doubt that the accused was guilty of the offences levelled against him. To the extent of seizure of MO.8 and MOs.1 to 5, 7 & 9 are concerned, they are primarily hit by Section 24 to 27 of the Indian Evidence Act. We shall deal with this aspect a little later. Where the prosecution failed to show that the material objects referred to above were seized from the possession of the accused, would the evidence of PWs.7 to 9 be sufficient to hold that the accused was guilty of the offence allegedly committed by him? After the deceased boarded the auto of the accused, she never got down the auto anywhere between the auto stand at Kanchikacherla and her residence at Munnaluru. She could have been robbed, raped and murdered by miscreants after she got down the auto. Why the deceased alighted the auto in between Kanchikacherla and Munnaluru is for the prosecution to explain. At any rate, merely because the dead body was found, we are afraid that it cannot be concluded that the accused was guilty of robbery, rape and murder as well as guilty of the criminal misappropriation and resorting to overt acts to conceal the evidence and the crimes committed by him. As already pointed out by the learned counsel for the accused, the last seen alive theory is a weak piece of evidence. It can strongly corroborate the other circumstances. At the same time, the last seen alive in the company of the accused by itself cannot establish the guilt of the accused beyond reasonable doubt. 20. The learned Public Prosecutor put forth the last seen together theory as a corroborative or corollary piece of evidence to the evidence of the prosecution that the accused was found in possession of MO.8 as well as MOs.1 to 5, 7 & 9. PW.14 who is the Investigating Officer in this case deposed that when the accused was arrested on 05.02.2006 in the presence of PW.7, the accused confessed about the commission of offence and that MO.8 was also seized at that time. The seizure of MO.8 thus was after the arrest of the accused. Consequently, the alleged confession of the accused under Ex.P.5 and alleged seizure of MO.8 are not admissible in evidence. PW.1 is an omnibus witness. He lodged Ex.P.1 complaint. He was an inquest mediator. He was also a mediator for the observation of the scene where the dead body of the deceased was lying when it was found. He was one of the mediators for the arrest of the accused as well as for the test identification parade in which PW.2 identified the gold ornaments belonging to his deceased wife. While so, PW.14 did not refer the name of PW.1 as one of the mediators before whom the accused was arrested. PW.14 referred to the name of PW.7. PW.7, however, did not subscribe to the evidence of PW.14 that he was present at the time of arrest of the accused. 21. There are some typographical mistakes in this case. We shall refer to the typographical mistake in the post-mortem report under Ex.P.15 letter. It may be assumed that PW.14 referred to the name of PW.1 as the person before whom the accused was arrested and that the court typist inadvertently typed it as though PW.7 was present with PW.14 at the time of arrest of the accused. In any event, when the accused made this statement to PW.14 after his arrest, the alleged confession of the accused under Ex.P.14 stood hit by Section 26 of the Indian Evidence Act and became inadmissible. 22. PW.1 deposed that the police seized various gold ornaments and silver anklets from the possession of the accused at his house which are MOs.1 to 5 and 7 & 9 and that the seizure was under Ex.P.6 cover of mahazar. It may be noticed that while PW.1 stated that the accused took out a cloth bag from the bushes in front of his house wherefrom he produced the gold and silver jewelry, it is the specific case of PW.14 that the accused produced the above mentioned jewelry which were concealed in a white handkerchief at his house. PW.14 did not speak about the recovery of concealed items from the bushes by the accused, while PW.1 did not speak about a white handkerchief in which the material objects were packed and concealed. Evidently, PW.1, a Panchayat Secretary of Kanchikacherla is an accommodative witness which can be seen from the very fact that he is an omnibus witness and was ready to act as mediator for any purpose on behalf of police. When the evidence of PW.1 cannot at once be accepted on account of his close association