THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1692 of 2006 17.02.2010 Between: Bandi Narayana, S/o.Lingaiah @ Linganna … Appellant/accused AND The State of A.P., represented by Sub-Divisional Police Officer, Nizamabad through the Public Prosecutor, High Court o A.P., Hyderabad … Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1692 of 2006 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) This appeal is filed by the sole accused in Sessions Case No.15 of 2004. He was tried for the offences under Section 302 of Indian Penal Code, 1860 (IPC) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act). Learned Special Sessions Judge for Trial of Cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – cum – VIII Additional Sessions Judge, Nizamabad, found the appellant guilty of offences as charged and sentenced him to life imprisonment as well as fine of Rs.100/-. Learned Judge also sentenced appellant for life imprisonment for the offence under Section 3(2)(v) of the Act. The case of prosecution may be summarised as follows. The deceased Borgaon Pushpa is wife of Borgaon Sailu. They belong to Scheduled Caste and are residents of Sangem Village of Bodhan Mandal. The accused, who is their neighbour, belongs to Backward Caste. Once the accused lent a sum of Rs.2,500/- to Sailu and developed friendship with him. Subsequently, he also gave another Rs.2,500/- to deceased Pushpa for her needs and developed intimacy with her. Borgaon Sayamma and Borgaon Gangaram (P.W.2 and P.W.3) are in-laws of deceased Pushpa and they never intervened in relationship of their daughter-in-law with accused. The accused and deceased Pushpa used to meet either in the house of Pushpa in the absence of her husband or in the field of accused. On 06.5.1999, at about 10.30 pm, knowing that Sailu went to Manchippa Cheruvu, accused went to the house of Pushpa and then two strangers thrown a knife towards him. Suspecting that Pushpa engaged the strangers to attack him, the accused bore grudge against her. On 07.5.1999, at 10.00 am, the accused came to the hotel of P.W.8, Koderla Gangavva, signalled to Pushpa to come to the fields. Then Pushpa followed him, as she was going to attend calls of nature. P.W.4 Borgaon Sravanthi, stepdaughter of Pushpa, followed to some distance and returned home. As her daughter-in-law, Pushpa, did not return home even after the afternoon, P.W.3 went in search and found her dead body near Panadi (old agricultural water canal) in the fields of Narsingpally village. She informed the same to P.W.1, Wadla Laxman, Sarpanch of Narsingpally village. On 08.5.1999, at about 8.00 am, P.W.1 came to P.S. Nizamabad Rural and gave Ex.P1 report. P.W.11, Inspector of Police, arrested the accused and seized M.O.1 knife in the presence of P.W.6 Adarla Gangaram and Doosgaon Sayanna (L.W.13 – not examined) under the cover of Ex.P4 Panchanama. The accused made Ex.P3 confessional statement to P.W.6 and Sayanna. After completion of investigation, Sub-Divisional Police Officer, Nizamabad, filed the charge sheet. During the trial, prosecution examined as many as eleven witnesses and marked ten documents. The weapon – knife used for cutting sugarcane, which was allegedly used by the accused for committing offence; was marked as M.O.1. This Court heard learned Counsel for appellant and learned Public Prosecutor. In view of the prosecution case before the Sessions Judge and submissions made before us, the only point for consideration before us is whether the prosecution let in cogent and convincing evidence to connect the accused with the murder of deceased Pushpa. There cannot be any dispute that the case of prosecution rests on circumstantial evidence. These circumstances are: (i) the motive of the accused to do away the life of Pushpa allegedly for the reason that she attempted to kill him with the help of some unknown persons, (ii) the seizure of M.O.1 knife under Ex.P.4, cover of panchanama, allegedly on Ex.P3 confessional statement of accused to P.W.6 and Sayanna (portion of statement that lead to recovery of M.O.1 knife is marked as Ex.P8), and (iii) the theory of deceased last seen in the company of accused on 07.5.1999 at about 8.00 am and subsequently on a complaint given by P.W.2 mother-in-law of deceased, dead body was recovered from Panadi. We will consider these aspects one after the other. According to the prosecution, accused lent Rs.2,500/- to Sailu, husband of deceased. He also lent a similar amount to deceased. He befriended Sailu and deceased and used to frequently visit their house. Somehow he developed illegal intimacy with deceased and the couple used to meet either in the house of deceased in the absence of Sailu or in the field of accused at the outskirts of Narsingpally village. On 06.5.1999 when the accused allegedly went to meet the deceased at latter’s house, there was an attack on him by two strangers by throwing a knife. This was said to be the reason for the accused developing grudge against the deceased. None of the witnesses speak about these matters and the only basis for this version is Ex.P3, which is the confessional statement of accused to the Investigating Officer – P.W.11. Not only that under Section 25 of Evidence Act, 1872 with exception to Section 27 of Evidence Act but also for the reason that it is highly improbable that accused would have developed spite as accused was his paramour, Ex.P.3 confessional statement is inadmissible in evidence. Therefore, we are of considered opinion that the prosecution failed to establish the motive of the accused to kill the deceased Pushpa. It is no doubt true that under Ex.P8, portion of Ex.P3, the accused agreed to show the Police the knife used for commission of crime. Ex.P4 is seizure panchanama. According to this, accused led P.W.6, Doosgaon Sayanna and P.W.11 in a jeep to Panadi canal bushes where the accused removed knife by putting his hands into the bushes and show the sugarcane cutting knife that was used for commission of crime. Contrary to this version, P.W.6 in his chief examination deposed that when Police questioned the accused before him and other villagers, he produced the weapon that was used in kill the deceased. P.W.6 also deposed that accused lead them to the fields. In the cross-examination, however, his credibility was tested and improved his version by stating that different things, which are not found in Ex.P4. Therefore, it is also not safe to rely on Ex.P4 Panchanama and the evidence P.W.6. Though P.W.6 stated that P.W.3, father-in-law of deceased, and other villagers were present when the accused was questioned and when the accused produced M.O.1 knife, the prosecution did not examine them nor they examined other Pancha, Doosgaon Sayanna, who was allegedly present when the seizure panchanama was conducted by P.W.11. In this context, we may refer to the observations of Supreme Court in Bodh Raj v State of Jammu and Kashmir[1] regarding the nature of “fact discovery” envisages in Section 27 of Evidence Act. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor, AIR 1947 PC 67, is the most-quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde,(2000) 6 SCC 269). No doubt, the information permitted to be admitted in evidence is confined to that portion of the information, which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. The Exs.P3, P4 and P8 and the evidence of P.W.6 do not satisfy the test to conclude and connect the accused with so called recovery of weapon to the crime allegedly committed by him. Another important circumstance relied on by the prosecution to connect the accused to the crime is that on 07.5.1999 in the morning hours, deceased was last seen in the company of accused and thereafter by the evening the body of victim was recovered. It is well settled that prosecution so as to succeed on the theory of last seen has to prove that the accused and the deceased were last seen together and that the time gap between the time of last seen and the body of deceased was found is small and that possibility of any person other than the accused being the author of crime becomes impossible. The question of evaluating effect of time gap is secondary. The primary question is whether the prosecution proved that the accused and deceased were seen together before occurrence of crime. In this case, P.W.4 and P.W.2 are witnesses examined by the prosecution. P.W.4 is stepdaughter and P.W.2 is mother-in-law of deceased Pushpa. P.W.4 at the relevant time was aged about 10 years and was studying 4th class. She deposed that on the day of crime, accused called the deceased from the hotel of P.W.8, who is also their house owner, that the deceased followed the accused, that P.W.4 followed her mother for some distance and came back. She also asserted that when her grandmother, P.W.2, came home, she informed about the deceased going with the accused. Unless this statement is corroborated, P.W.4 may not be speaking gospel truth. P.W.2 except stating that her daughter had illegal relationship with accused, she did not say anything. She does not even whisper that P.W.4 informed her about deceased going with the accused or that the deceased was last seen in the company of accused. P.W.8, hotel owner, also not supported the version of P.W.4. Therefore, on the evidence of P.W.2 and P.W.4, the prosecution cannot claim that they have proved beyond reasonable doubt that the deceased was last seen in the company of deceased before the dead body of deceased was found. The Court below placed reliance on Ex.P4, Panchanama, and the evidence of P.W.6 on the plea of recovery of M.O.1 knife by the Police at the instance of accused, and recorded finding that the prosecution proved the charge against the accused. On re- appreciation of evidence, we are however not able to agree with the finding of guilt. Though the Court below also convicted the accused for the charge under Section 3(2)(v) of the Act, in view of our finding on the charge under Section 302 of IPC, we need not dwell into this aspect. However, we may observe that prosecution did not adduce any evidence to show that deceased Borgaon Pushpa belonged to Scheduled Caste. We leave the matter there. For the above reasons, we hold that the prosecution has failed to lead evidence to connect the appellant/accused with the offence. Therefore, we are not inclined to uphold the conviction and sentence awarded by the learned Sessions Judge. We accordingly set aside the impugned judgment, dated 27.11.2006, passed by the learned Special Sessions Judge for Trial of Cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – cum – VIII Additional Sessions Judge, Nizamabad, in S.C.No.15 of 2004, and acquit the appellant/accused. In the result, the Criminal Appeal is allowed, and accused shall be set at liberty forthwith. _________________ (V.V.S.RAO, J) _________________________________ (SAMUDRALA GOVINDARAJULU, J) February 17, 2010. YS [1] (2002) 8 SCC 45 : AIR 2002 SC 3164