THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.91 of 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant/accused, who was tried for the oﬀence under Section 302 I.P.C in S.C.No.293 of 2005 by the Principal Sessions Judge, Kurnool, was found guilty of the said oﬀence, convicted therefor and sentenced to undergo rigorous imprisonment for life and to pay a ﬁne of Rs.5,000/-, in default of payment of ﬁne, to suﬀer rigorous imprisonment for three months, by judgment dated 22.03.2006. Challenging the conviction and sentence recorded against him, the appellant filed this appeal. The substance of the charge framed against the accused is that on 31.03.2005 at about 2.00 p.m or shortly thereafter, in Hundri River, near Anand Theatre at Kurnool, he committed the murder of his friend-Mura Pedda Manyam (hereinafter referred to as ‘the deceased’) by stabbing him with a dagger on his chest and other parts of the body, and thereby committed an oﬀence punishable under Section 302 I.P.C. The case of the prosecution, in nutshell, is as under: The accused, the deceased, P.W.1, who is the father of the deceased, and the main prosecution witnesses are the residents of Kanderu Street, Kurnool. The accused and the deceased were friends and the accused used to visit the house of the deceased frequently and talk to his sister – Varalakshmi (P.W.5). The deceased warned the accused in the same context and therefore, the accused stopped to visit the house of the deceased. While so, one month prior to the death of the deceased, the deceased beat the accused at their house, as there was no change in his attitude. On that the accused developed grudge against the deceased and decided to kill him. About 20 days thereafter, again the accused visited the house of the deceased, apologized for what had happened and assured that he would not indulge in such activities. Subsequently, the accused used to visit the house of the deceased frequently maintaining good relations with him. On 31.03.2005 at about 2.00 p.m, the accused went to the house of the deceased and took him to Anand Theatre, Kurnool, on a bicycle to see a movie and there both of them quarrelled with each other. Then the accused challenged the deceased to quarrel with him in Hundri River. Both of them went to Hundri River and kept the bicycle near the bunk of one Rajesh. Then the deceased beat on the chest of the accused with a stone and caused injury. In retaliation, the accused picked up a dagger, stabbed the deceased in his stomach and other parts of the body and caused injuries, due to which the deceased died on the spot. Then the accused threw the dagger in a drainage pit and went away. On 03.04.2005 at 6.00 a.m, P.W.1 came to know about the dead body lying under the bridge of Hundri River. Then himself and his wife – P.W.2 went there and identiﬁed the dead body as that of their son. Later, P.W.1 went to II Town Police Station, Kurnool and gave oral report to P.W.11-Sub Inspector of Police, who recorded his statement. Based on the said report, P.W.11 registered a case in Crime No.58 of 2005 for the oﬀence punishable under Section 302 I.P.C and took up investigation. He conducted inquest over the dead body of the deceased on the same day from 8.45 a.m to 11.45 a.m in the presence of the mediators i.e., P.W.8 and others and seized the incriminating material. P.W.10 - the doctor conducted post mortem examination over the dead body of the deceased and issued Ex.P.7-post mortem certiﬁcate opining that the deceased died due to shock and hemorrhage due to stab injury on the heart. P.W.11-Sub Inspector of Police arrested the accused in the presence of witnesses and seized the bicycle. Thereafter, the accused lead them to the scene of oﬀence and produced the dagger and the same was seized by P.W.11. P.W.9-doctor examined the accused and gave his certiﬁcate opining that he sustained simple injury. After completion of investigation, the Inspector of Police filed charge sheet. On committal, the learned Sessions Judge framed charge against the accused for the oﬀence under Section 302 I.P.C. When the said charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. To substantiate its case, the prosecution examined P.Ws.1 to 11 and got marked Exs.P.1 to P.12, besides case properties M.Os.1 to 6. On behalf of the accused, no oral or documentary evidence was adduced. The learned Sessions Judge, on appreciation of the oral and documentary evidence, held that the evidence of P.Ws.1 to 5 discloses that the deceased was last seen in the company of the accused; that though P.Ws.6 and 7 are eyewitnesses to the quarrel that took place between the accused and the deceased on 31.03.2005, their evidence was discarded, since when such a serious incident took place nobody would keep quiet for such a long time without approaching the police concerned for necessary action, and that when the accused was examined under Section 313 Cr.P.C, he admitted that he also sustained injuries, but he failed to explain as to how he received the said injuries, which further strengthens the case of the prosecution, and accordingly convicted and sentenced the accused as aforementioned. We have heard Sri K.Suresh Reddy, learned counsel for the appellant and also the learned Additional Public Prosecutor, who taken us through the entire evidence adduced by the prosecution and the reasoning adopted by the learned Sessions Judge in convicting the accused. Learned counsel for the appellant contends that since the evidence of the eyewitnesses to the quarrel has been disbelieved by the trial Court, there remains only evidence of P.Ws.1 to 5, who have last seen the deceased in the company of the accused on 31.03.2005, but, however, the dead body of the deceased was found three days thereafter and the same is also not suﬃcient to convict the accused. He further submits that since the entire case rests upon the circumstantial evidence and there is no direct evidence, the prosecution has to prove each circumstance by the evidence and not by surmises and therefore, the accused is entitled to acquittal. On the other hand, the learned Additional Public Prosecutor sought to sustain the judgment under appeal. In view of the above rival submissions, the point that arises for consideration in this appeal is as to whether the prosecution could able to bring home the guilt of the accused beyond all reasonable doubts or not? The entire case rests upon the circumstantial 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. The Supreme Court in Padala Veera Reddy v. State of A.P.[2] has enunciated the principles of law at paragraph 10, which reads as under: (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a deﬁnite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 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, deposed that the accused happened to be the friend of the deceased and they were very close; that disputes arose between them on the ground that the accused used to move closely with his daughter – Varalakshmi (P.W.5) and therefore, himself, his wife and the deceased admonished the accused; that inspite of the same, there was no change in the attitude of the accused; that later also the accused used to come to their house and try to talk with P.W.5; that one month prior to the death of the deceased, the deceased beat the accused at their house as there was no change in his attitude and then the accused left the place threatening that he would see the end of the deceased; that 20 days thereafter, again the accused visited their house and apologised for what had happened and assured that he would not indulge in such activities and since then they were maintaining good relationship; that on 31.03.2005 at about 2.00 p.m the accused came to their house and called the deceased for going to Anand Theatre, Kurnool for watching a movie and thereafter the deceased did not return; that though they made searches for the deceased till next day, they could not ﬁnd him; that they also visited the house of the accused and enquired about him; that three days thereafter i.e., on 03.04.2005 at about 6 a.m some people of their street were talking that they found one dead body at the ﬁfth arch of bridge near Anand Theatre, Kurnool; that himself and his wife visited the said place and found the dead body of their son, which was decomposed and they also found a pair of chappals belonging to the accused by the side of the dead body and that himself and his wife went to II Town Police Station, Kurnool and gave statement. In the cross examination, P.W.1 deposed that they did not give any report to the police with regard to missing of the deceased before giving Ex.P.1-report; that they got no relationship with the accused and there were no visiting terms between them and the family members of the accused and that the stomach portion of the deceased appeared to have been eaten away by animals. When he was examined by the Court, he deposed that the accused used to sit near P.W.5 outside the house, where she used to cook food and try to talk to her and ask her to give him water and therefore, they admonished him to behave properly; that P.W.5 used to behave quite normally, even though she did not like the behaviour of the accused and that the deceased used to visit diﬀerent places without informing them and therefore, they waited for three days expecting that he would return. P.W.2, who is the mother of the deceased, also deposed in similar lines of P.W.1 stating that on 31.0.2005, the accused took the deceased for seeing a movie and later the deceased did not return; that on the third day, which happened to be Sunday, she heard from somebody that they found one male dead body underneath 5th arch of KC Canal Bridge; and that herself and her husband went to the said place, found one dead body and identiﬁed the same to be that of their son. P.W.3, who is the owner of cycle shop at Khanderu, deposed that on 31.03.2005 at about 2.30 p.m, the accused and the deceased came to their shop and took one bicycle from him on hire in the name of the accused; that P.W.4, who is the son of senior paternal uncle of the deceased was also there at that time and that subsequently they did not return the bicycle to him. He further deposed that M.O.5 cycle is the same bicycle, which was hired by the accused and the deceased. In his cross examination, he stated that he did not state before the police that P.W.4 was also present when the accused and the deceased taken the cycle from him, whereas P.W.4 deposed that on 31.03.2005 when he was at the shop of P.W.3, the accused and the deceased came there and he asked them as to where they were going and they told him that they were going to Anand Talkies, but they did not return later. In his cross-examination, P.W.4 stated that he used to work under a private painter; that as he was not doing well, he did not go to duty on that day and that he was not aware of the coulour of the chappals wore by the accused and the deceased. P.W.5, who is the daughter of P.Ws.1 and 2 and sister of the deceased deposed that the accused used to come to their house and try to talk with her; that she informed the same to her brother and parents; that even though her parents admonished the accused for his behaviour, the accused was still coming to their house; that one month prior to the death of her brother, when the accused came to their house, then the deceased beat him in view of his previous behaviour against her; that the accused left the place threatening that he would see the end of the deceased, which fact has been stated by P.Ws.1 and 2 in their evidence. In her cross examination, she stated that after giving apology, the accused used to visit their house every day while her brother and parents were present in the house. P.W.6 and 7 were projected as eyewitnesses to the quarrel that took place between the accused and the deceased on 31.03.2005. P.W.6 deposed that on 31.03.2005 at about 2.30 or 3.00 p.m, while he was going to Government General Hospital, Kurnool from his house, he found two persons underneath K.C Canal bridge quarrelling with each other; that one of the two person beat with a stone on the chest of the other person and the second person stabbed on the chest and stomach of the ﬁrst person and that on the morning of 03.04.2005, he found some gathering at the same bridge. P.W.7 deposed that on 31.03.2005 when he was at the bunk of his friend, which is near Anand Talkies, Kurnool, two persons came and kept one bicycle at the said bunk and then went towards Hundri River and that half-an-hour later the accused alone returned to the bunk and collected the bicycle and went away. P.W.8, who is a panchwitness, deposed that the Sub Inspector of Police conducted inquest over the dead body of the deceased and examined blood relatives of the deceased; that the dead body was decomposed; that he signed Ex.P.2-inquest panchanama; that on 08.04.2005, the police again took him and another panchwitness-Ramudu to Rosa Darga, where they found the accused in possession of the bicycle; that on seeing them the accused tried to run away, but the police chased him and caught hold of him and that on interrogation, the accused confessed that he would show one knife at Hundri River; that on the said confession, the accused lead them to Hundri River at 5th archery in the river, picked up knife (M.O.5) and handed over the same to the Sub Inspector of Police. P.W.9 is the doctor, who examined the accused. He deposed that on examining the accused he found a lacerated injury of 2 x 4 cms size below the sternum upto muscle deep and that the said injury might have been caused by a blunt object like stone. He issued Ex.P.6- wound certificate. P.W.10, who is the Professor of Forensic Medicine, Kurnool Medical College, conducted post mortem examination over the dead body of the deceased. He found a stab injury over the front of left side of chest on 3rd and 4th inter costal space, elliptical in shape, 5 c.m away from the inter costal boarder and 10 cm below the mid clavicular point dragging downwards and backwards from right to left stabbing the skin and inter costal muscles. He issued Ex.P.7-post mortem certiﬁcate opining that the deceased would appear to have been died of shock and haemorrhage due to stab injury of heart about 48 to 72 hours prior to the post mortem examination and that the said injury was sufficient to cause death. P.W.11 is the Sub Inspector of Police, who registered the crime, investigated into the same, arrested the accused, recovered the material objects, and after completion of investigation ﬁled the charge sheet. In the cross examination, he deposed that he did not examine any other witnesses with regard to the deceased beating the accused at his house; that he did not examine the neighbours of the deceased with regard to the visit of the house of the deceased by the accused; that he did not secure anybody to act as mediators for the arrest of the accused and on his confession leading to the recovery of the knife and that there was no mud to the knife when it was seized. He also stated that P.W.1 did not state to him that 20 days later the accused visited their house and gave apology and they went to the house of the accused to enquire about the deceased and the accused used to come to their house wearing black chappals. He further stated that P.W.2 did not state to him that herself and her husband went to the house of the accused to enquire about the deceased. Similarly, P.W.3 also did not state to him that P.W.4 was present when the accused and the deceased had taken the cycle from him. From the above evidence, the prosecution could able to establish that the deceased met with homicidal death; and the deceased was last seen in the company of the accused on 31.03.2005 between 2.00 and 2.30 p.m. It is 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 that 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). In the instant case, even though the prosecution witnesses deposed that the deceased and the accused left the house of P.Ws.1 and 2 at 2.30 p.m on 31.03.2005, and they took a bicycle from the shop of P.W.3, the prosecution failed to establish that the accused and the deceased were together at the place where the dead body of the deceased was found. Further, when the accused was examined under Section 313 Cr.P.C, he stated that before the death of the deceased, there was quarrel between them in respect of movie and the deceased beat him with a stone and caused injury, in the Hundri River near Anand Theatre, and later he went to Kakulapuram Village near Gadwal and returned after two days. The same at the most establishes how the accused received injury at the hands of the deceased on the said date, but the same does not establish it is the accused, who murdered the deceased. That apart, the evidence of the Investigation Oﬃcer destroy the case of the prosecution since he deposed that he did not try to secure anybody to act as mediator for the arrest of the accused and his confession leading to the recovery of the knife. Therefore, the evidence of P.W.8 that he acted as a mediator for recovery of knife is improbable. Further, the prosecution failed to establish that M.O.6- knife was used in the commission of the oﬀence, since neither bloodstains were found on it nor it was sent to any Laboratory. Further, the inference drawn by the learned Sessions Judge that the accused accompanied the deceased armed with knife, which must be for the purpose of stabbing and killing the accused, cannot be accepted, since none of the witnesses speak about the same. When the accused took the deceased along with him on 31.03.2005 and the deceased did not return for three days thereafter, the parents of the deceased have not reported the matter to the police, which shows there was no apprehension or harm done to the deceased by the accused and there was no motive for the accused to murder the deceased. Even as per the case of the prosecution, inspite of admonishing the accused by the parents of the deceased for his indecent behaviour towards P.W.5, the accused used to visit their house and converse with P.W.5. This also shows that there is no reason for the accused to develop grouse against the deceased. Further, 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 and the conviction and sentence recorded by the learned Principal Sessions Judge, Kurnool in Sessions Case No.293 of 2005, dated 22.03.2006, against the appellant/accused for the oﬀence punishable under Section 302 IPC are set aside and he is acquitted of the said charge. He shall be set at liberty forthwith, if he is not required in any other crime. The ﬁne amount, if any, paid by the appellant, shall be refunded. A.GOPAL REDDY, J R. KANTHA RAO, J Date: 16.11.2011 va [1] AIR 1984 SC 1622 [2] AIR 1990 SC 79