THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1831 of 2009 ORAL JUDGMENT: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Though the matter is listed under the caption “interlocutory”, with consent of both parties, the main appeal itself is heard and being disposed of by this judgment. 2. Heard learned Public Prosecutor, appearing for the appellant-State as well as learned counsel appearing for the respondents-accused. 3. The respondents 1 and 2 are accused Nos.1 and 2, respectively, in Sessions Case No.89 of 2006. 4. This Criminal Appeal is preferred by the State, aggrieved by the judgment, dated 29.10.2008, passed by the Sessions Judge, Vizianagaram, in S.C.No.89 of 2006, acquitting the accused of the offences punishable under Sections 302 and 201 of the Indian Penal Code (for brevity “I.P.C.,”). 5. The case of the prosecution, in brief, is that one Kotiyada Demudu (hereinafter referred to as “the deceased”) was more affectionate to A-1 (his adopted son) and performed his marriage with his grand daughter; that A-1 developed illicit intimacy with one Serakapu Lakshmi and good acquaintance with A-2; that later, some differences arose between A-1 and the deceased; that A- 1 used to ill-treat and harass his wife (P.W-1); that aggrieved by the illegal attitude of A-1, the deceased lodged a complaint before the Sub-Inspector of Police, S.Kota Police Station against A-1; that subsequently, P.W- 1-wife of A-1 filed maintenance case against A-1 and the same is pending; that while so, on 24.12.2005, at about 4.30 pm., the deceased and one Swamy Naidu-P.W-6, went for an evening walk and the same was noticed by P.W-5; that, at about 5.15 pm., the deceased and P.W-6 were returning to their house; that when they reached the State Bank of India, on the way, A-1 and A-2 came on a motorcycle, picked up the deceased on their motorcycle; that the deceased, while leaving with the accused, informed P.W-6 that he was going to attend some urgent work with his son; that later, at a mango thope, A-1 and A- 2 killed the deceased and dragged the dead body to the nearby forest; that on 25.12.2005, upon hearing the rumours about the presence of dead body, P.W-11 rushed to the said place, confirmed about the presence of the dead body and made a complaint to the Police and that after completing all the formalities, police laid the charge sheet. 6. When the charges framed against the accused for the offences under Sections 302 and 201 I.P.C., were read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 7. In order to substantiate its case, the prosecution examined P.Ws.1 to 17 and got marked Exs.P-1 to P-14, besides M.Os.1 to 12, on its behalf. On behalf of defence, neither oral nor documentary evidence was adduced. 8. The Court below, having appreciated the entire evidence, both oral and documentary, available on record, held that the prosecution could not make out a case against the accused for the offences punishable under Sections 302 and 201 I.P.C. and accordingly, acquitted them. 9. The only question that arises for consideration, in this Criminal Appeal, is -- as to whether the Court below had properly appreciated the evidence on record in order to arrive at the conclusion that the accused had not committed the offences punishable under Sections 302 and 201 I.P.C? 10. The entire case of the prosecution rests upon the circumstantial evidence. 11. The evidence of P.W-6, which is relevant in this case, is meant for the purpose of proving the ‘theory of last seen together’. The evidence of P.W-6 is to the effect that when they reached the State Bank of India after completing the evening walk, both the accused came on a motorcycle and picked up the deceased. It is his further evidence that the deceased while going along with the accused informed him that he was going along with them to attend some urgent work with his son. 12. Therefore, it is only the evidence of P.W-6 that is relevant insofar as the case of the prosecution basing on the theory of last seen together. 13. P.W-5, the gateman, only stated that the deceased and P.W-6 came to the railway gate for walking and returned back and that he had not seen the deceased in the company of the accused. Therefore, he is only an incidental witness and nothing more. 14. The Court below had referred to various judgments rendered by the Apex Court, with regard to the theory of last seen together, in the impugned judgment and one among the same is Latika Koteswara Rao @ Kotaiah V. State of Andhra Pradesh[1], wherein it was held as hereunder: - “The theory of phenomenon of “last seen together” is no doubt recognised as a circumstance, on the basis of which a conclusion can be rested as to the involvement of an accused. This, however, would become relevant, only when there is certainty about the point of time at which, the accused and the deceased were last seen together, and the one at which crime was said to have been committed. In such an event, Courts do not find any difficulty in drawing inference, as to the involvement of the accused in the crime, though no direct evidence exists. One of the settled principles to be observed in this regard is that the gap between the two events must be such that there is no possibility for the intervention of an external factor that may result in the commission of the very offence. If such a possibility is shown to exist, the reliability of the theory of last seen together suffers a dent. In other words, to push the theory of last seen together, to its logical conclusion and to convict the Court to treat it as an independent circumstance, to convict the accused, the prosecution must prove to the level of certainty, the point at which the offence has taken place, apart from the time at which, the accused and the deceased were seen together.” 15. From the above, it is obvious that in order to convict the accused, based upon the case of the prosecution, it should be established that there is no possibility for the intervention of any other person in commission of the said offence and “the theory of last seen together” would become relevant only when there is certainty about the point of time at which the accused and the deceased are seen last together and the one at which the crime was said to have been committed; meaning thereby, that the theory of last seen together can be relied upon, only when the prosecution establishes to the level of certainty the point at which the offence has taken place, apart from the time at which, the deceased and the accused were found together and in such a case, the actual commission of the offence can be inferred, at the hands of the person who was seen last along with the accused, even in the absence of any direct evidence. 16. In other words, when there is no possibility of intervention of any other person, except the accused, in the commission of the said offence, an inference can be drawn against him that he committed the offence. 17. In the instant case, as per the evidence of P.W- 6, the deceased was seen in the company of the accused at about 5.30 pm., and the dead body was found on the next day morning. The exact place as well as the time of commission of offence is not clear. Even if one goes by the medical evidence, it would only be a proximate time of the incident. Notwithstanding the fixation of time, the place of occurrence cannot be established in these types of cases. 18. It is the case of the prosecution that the deceased was killed in a mango thope and was dragged into the forest. The circumstantial evidence, particularly when the theory of last seen together was introduced, and relied upon, the same should be established by the prosecution beyond all reasonable doubt. 19. As already pointed out, it is only P.W-6 who stated that the accused came together on a motorcycle and picked up the deceased. 20. Further more, it is interesting to note that it is the evidence of P.W-6 that the deceased, while going along with the accused, informed him that he was going along with the accused on some urgent work with his son. This shows that the deceased had accompanied the accused, if really, voluntarily. This kind of evidence, which is very obscure in nature, cannot be treated as a substantial piece of evidence, that too in a case of circumstantial evidence. 21. Already there were cases pending against A-1 at the instance of the deceased. In such circumstances, the reason for the deceased to accompany the accused on the motorcycle is rather indiscernible. The said circumstance evokes further doubt in the mind of the Court. 22. Except the piece of evidence in the shape of ‘last seen together’, there is no other corroborating piece of evidence to support the case of the prosecution. In such circumstances, the evidence on record cannot be treated as a substantive piece of evidence in order to establish the guilt of the accused. The chain of circumstances cannot be held to be strong enough to bring home the guilt of the accused. 23. For the foregoing reasons, we are of the considered view that the Court below had rightly appreciated the entire material, available on record, and we do not find any irregularity or irrationality in the reasoning assigned by the Court below in acquitting the accused and accordingly, the Criminal Appeal is liable to be dismissed. 24. In the result, the Criminal Appeal is dismissed. _____________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE R.KANTHA RAO 17th December 2009 dr [1] 2008(1) ALD 758