THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1641 of 2006 Dated:16.02.2010 Between: Chevula Ravi. …Appellant And State of A.P., Rep.by P.P., High Court, Hyderabad. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1641 of 2006 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) Chevula Ravi, a young man of 20 years at the relevant time, and Rupa, a young girl of 18 years, fell in love. They got married sometime in early 2005. They started their matrimonial home in March 2005 at Suryapet by renting out a small portion in a house belonging to Vengala Krishna and Vengala Uma. On 31.07.2005 the dead body of Rupa was unfortunately found in the bushes near Vempadu bus stage at a distance of about 20 Kms from Suryapet, their matrimonial home. The finger of suspicion pointed to Ravi. He was indicted with charge of murder under Section 302 of the Indian Penal Code, 1860 (IPC), and brought before the Court of the V Additional District and Sessions Judge (III Fast Track Court) Nalgonda, at Miryalguda, who having regard to the plea of Ravi “not guilty” tried him and believing “last seen theory” of the prosecution sentenced him with life imprisonment and a fine of Rs.5,000/-, in default of payment of fine, to undergo one year rigorous imprisonment. This appeal is by the accused. After hearing the learned Senior Counsel for appellant and the learned Public Prosecutor and perusing the oral and documentary evidence as well as the medical evidence, we are – for the reasons that follow in the judgment –not able to agree with the learned Sessions Judge. We accordingly acquit Chevula Ravi and direct to set him free forthwith. To avoid repetition of the basic facts and allegations set up by the prosecution we may directly go to the background of the case from 3:00 pm on 31.07.2005. On that day at that time Polepally Ravi – P.W.2, while coming from agricultural fields at Halia saw some people gathering behind the temple near Vempadu bus stage. He went there and found the dead body of Rupa with medical prescription chits by her side. A chunny was around the neck and tongue was protruding. P.W.2 – Ravi, immediately informed the Sarpanch of Vengannagudem Village - P.W.1, who went to P.S.Nidamanoor, and lodged report at 4:00 pm on that day. P.W.16, who received the report, registered the case in Crime No.58 of 2005 under Section 302 IPC and issued Ex.P15 – First Information Report. The Inspector of Police, Halia Circle, P.W.17, investigated the Crime. He conducted panchanama in the presence of P.W.13 and other mediators and prepared Ex.P6 – the scene of offence. He conducted inquest in the presence of P.W.13 at Government Hospital, Miryalaguda, and prepared Ex.P8 – inquest report. The autopsy was conducted on the body of the deceased by the Civil Assistant Surgeon, Government Hospital, Miryalguda – P.W.12, who prepared postmortem report – Ex.P5. During the investigation, P.W.17 arrested the accused on 05.08.2005 and based on his confession statement in the presence of P.W.14, recovered two pieces of belt from the bushes near Vempadu bus stage. The charge sheet was filed before the Court of the Judicial First Class Magistrate at Miryalguda. Learned Judicial Magistrate of First Class by an order dated 30.11.2005 in P.R.C.No.49 of 2005 committed the case to sessions. The prosecution examined seventeen witnesses and marked seventeen documents and seven material objects – M.O.1 to M.O.7. As rightly pointed out by the learned Senior Counsel for the appellant, the case of the prosecution rested on the theory of last seen. It was alleged that on 29.07.2005 the accused and the deceased – husband and wife, were last seen at Vempadu bus stage and thereafter Rupa was found dead in the same place. To prove this, the prosecution mainly relied on the evidence of P.W.10 – a constable at P.S.Nidamanoor, and P.W.11, who is an auto driver of Annaram Village. Reliance was also placed on Ex.P5 – postmortem report, in support of the prosecution. P.W.11 is a resident of Annaram Village. He is a driver of an auto running between Annaram and Nidamanoor. Admittedly, it is a goods vehicle with only one seat meant for driver with a small glass window between the trolley and driver’s portion. On 29.07.2005, as he deposed as P.W.11, he took his sick father to Hyderabad. He returned to Miryalguda by some train at 8:00 pm. At Miryalguda he contacted his brother-in-law to keep his auto at Vempadu bus stage because at that hour it is not possible to get any transport. He and his father came to Vempadu bus stage at 9:15 pm. He states that after coming to Vempadu he saw a male and a female getting down from another auto and approaching his auto. By the time he started his auto the male and female boarded into the trolley to go to Kannekal Village. As he was going to Annaram, he made them to alight from his auto and went on his own. He alleges that he saw both of them going to Vempadu bus stage. On 31.07.2005 in the evening at about 3:00 pm he joined the gathering at the bus stage and found the dead body of the female whom he saw on 29.07.2005. This is the version in his chief examination. In his cross examination he admits that generally he cannot identify all the persons who engaged his auto, but curiously he asserts that he can identify the accused and the deceased because they alone got into his auto at night hours at Vempadu bus stage on 29.07.2005. He also expressed his willingness to the Investigation Officer who recorded his statement on 02.08.2005 to identify the unknown person who boarded his auto. This statement is, however, contradicted by the Investigating Officer – P.W.17, who deposed that P.W.11 did not state that he can identify the male person along with the deceased if he is shown to him. There is no dispute that he could identify the accused in the Court. A suggestion was made to him that when he was standing in the entrance door of the Court hall before coming to witness box, the Police have shown the accused to him. P.W.11 is a stranger. He did not have any acquaintance with the accused or the deceased nor they are from his own place. When P.W.11 came to Vempadu bus stage at 9:15 pm and admittedly at that hour it is very difficult to get any transport at that place, P.W.11 asserts that he saw a male and a female getting down from another auto. When allegedly he saw the dead body on 31.07.2005, P.W.17 examined him on 02.08.2005. With regard to the capacity of P.W.11 to identify the accused if shown to him, P.W.11 and P.W.17 disagree. Therefore, we are convinced that P.W.11 recognizing the accused without there being test identification parade is doubtful. As noticed above, a suggestion was made to him that before coming into the Court he was shown the accused, and therefore, he was able to say that he could identify the accused. In the absence of the test identification parade preceding the recording of evidence, it is not safe to rely on the sole testimony of P.W.11 to connect the accused to the crime. The effect of absence of identification parade on the prosecution case is well settled. We may, however, refer to one recent judgment in Mahabir v State of Delhi[1], which reiterates the settled law as follows. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings… In this case “the safe rule of prudence” of conducting test identification parade is followed in breach rendering the evidence of P.W.11 untrustworthy. This takes us to the evidence of P.W.10, who is a Constable. Indeed, the learned trial Judge discarded his version for the reason that beat duty register was not produced by the prosecution. P.W.10 deposed that he and one Home Guard – P.Mattaiah (L.W.13) (not examined by the prosecution) were on beat duty at 9:00 pm on 29.07.2005 and saw a female wearing Punjabi dress and a male wearing pant and shirt standing in front of Suresh Hotel. Certainly, when P.W.10 and L.W.13 saw the couple in front of Suresh Hotel during their bus stand beat duty, there ought to have been beat duty register. Therefore, presence of P.W.10 at the relevant time is doubtful. In all probability, prosecution roped in P.W.10 only to show that the couple were waiting at 9:00 pm for an auto rickshaw to go to Kannekal Village. But, even in this, the prosecution failed. We may here refer to yet another important aspect. In the charge sheet filed by P.W.17 it is alleged that the accused and the deceased had a quarrel sometime prior to the alleged incident, that accused phoned the deceased to come to Nalgonda to go to Hyderabad, that the deceased left Suryapet around 12 noon on 29.07.2005 to go to Nalgonda when her father P.W.3 saw her, that after reaching Nalgonda she waited at the bus stage for her husband, that the accused reached there at 7:00 pm when he convinced the deceased to go to Suryapet, that he had a preplan to take her to Alinagar by auto, from there to Nidamanoor around 9:00 pm, that they stopped near Vempadu bus stage and they discussed about the alleged illegal intimacy of the deceased and when she denied, the accused picked up his waist belt, tied it around her neck and dragged her for some distance, resulting the belt cut into two pieces. The evidence produced before the Sessions Judge was totally different from the case set up in the charge sheet. Indeed, though the prosecution examined P.W.3 and P.W.5 - natural parents of the deceased, P.Ws.6 and 7 – adoptive parents of the deceased, and P.Ws.8 and 9 – the landlords at Suryapet, the factum of the quarrel between the accused and the deceased is not fully established. P.W.9 in whose house the accused and the deceased rented a portion deposed that the couple had cordial terms. Therefore, the lone and solitary instance of the couple quarrelling sometime prior to the unfortunate incident, in our opinion, cannot link the accused to the gruesome murder of Rupa. The learned Public Prosecutor, however, contends that when the prosecution has proved that the accused and deceased were last seen together and when the accused failed to make enquiries even though his wife was missing for about two days, and silence of accused in not explaining the reasons for the same would strongly probablise the last seen theory and prove the case against the accused. Reliance is placed on Arvind Singh v State of Bihar[2] and Bodh Raj v State of Jammu and Kashmir[3]. Arvind Singh (supra) is a case under Section 304-B of IPC. Therefore, it may not be of any assistance for us. In Bodh Raj (supra) the question before the Supreme Court was whether the factum of the accused and the deceased being in the company for the last time is itself sufficient to prove the guilt of the accused. Referring to the relevant case law, the Supreme Court pointed out five principles which ought to be established when the prosecution relies only on circumstantial evidence. These are as under. (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. Yet again dealing with the last seen theory, it was held. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased, A-1 and A-2 were seen together by witnesses i.e. PWs 14, 15 and 18; in addition to the evidence of PWs 1 and 2. In State of Goa v Sanjay Thakran[4] the Supreme Court referred to Bodh Raj (supra) and held that if the time gap between the accused persons seen in the company of the deceased and detection of the crime is small and the possibility of the deceased being in the company of other persons is nil or remote, the involvement of the accused cannot be ruled out. What should be the duration of time gap again depends on the evidence let in by the prosecution to remove the possibility of any other person meeting the deceased. It was observed. …It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above mentioned general principle with reference to the principle of last seen together in Bodh Raj alias Bodha and Ors. V. State of Jammu and Kashmir (AIR 2002 SC 3164 = (2002) 8 SCC 45) as under… From the principle laid down by this Court, the circumstance of last- seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time tap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led in by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. To say the least, prosecution did not even attempt to lead any evidence on the aspect of removing the lacunae with regard to the second aspect of last seen theory as noticed supra. Therefore, from the absence of test identification parade as a safe rule of prudence to remove any suspicion with regard to the evidence and the failure of the prosecution to comply with the rule of evidence in case of last seen theory, we are not able to accept the reasoning of the learned Sessions Judge in arriving at the conclusion to convict the appellant. We accordingly set aside the judgment, dated 29.08.2006, passed by the learned V Additional District and Sessions Judge (III Fast Track Court), Nalgonda at Miryalguda, in S.C.No.605 of 2005, and acquit the appellant. In the result, the Criminal Appeal is allowed, and the appellant shall be set at liberty forthwith. _______________ (V.V.S.RAO, J) _____________________________ (SAMUDRALA GOVINDARAJULU, J) 16.02.2010 vs [1] 2008 (1) ALD (Crl.) 960 (SC) [2] AIR 2001 SC 2124 = (2001) 6 SCC 407 [3] AIR 2002 SC 3164 = (2002) 8 SCC 45 [4] 2007 (3) SCALE 740