*THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Crl.A.No.1630 of 2006 % 28-01-2010 Between: # Tekulapally Narasimha Reddy S/o Venkat Reddy. …Petitioner And State of A.P. …Respondent ! COUNSEL FOR PETITIONER: Mr.C. Praveen Kumar ^ COUNSEL FOR RESPONDENTS: Public Prosecutor < Gist: > Head Note: ? CITATIONS: [1] (2007) 2 ALD (CRL.) 949 THE HON’BLE SRI JUSTICE D.S.R.VARMA and THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRL.A.No.1630 OF 2006 ORDER: Per the Hon'ble Sri Justice Nooty Ramamohana Rao This Criminal Appeal is preferred by the sole accused in Sessions Case No.224 of 2006, on the file of the IV Additional District & Sessions Judge (Fast Track Court) at Siddipet. The appellant / accused was tried for an offence under Section 302 of the Indian Penal Code. He was found guilty and sentenced to undergo imprisonment for life and was also ordered to pay fine of Rs.1,000/- and in default to suffer simple imprisonment for a further period of one month. The case of the prosecution is that, PW-1, the brother of the deceased, PW-2, the wife of the deceased and PW-3, the mother of the deceased, have interacted with the deceased after he returned from the agricultural fields and while he was having his dinner someone from outside called for him and hence, the deceased has left his house at about the evening time. PW-4, a milk vendor by profession and resident of the village, has seen, on the same day, the accused and the deceased sitting at a culvert at about 9-00 p.m. Thereafter, the deceased has not returned to his house in the night, but the next day morning at about 6-00 a.m., PWs-5 and 6, who were toddy tappers by profession, have reported to have seen the dead body of the deceased lying at a toddy hut. That is how the police machinery swung into action and sent the dead body for postmortem examination by PW-12. PW-12, doctor, noticed the following anti-mortem injuries on the dead body: 1. Abrasion left side of forehead 5 cm x ½ cms, caused to have blunt object, Ante mortem in nature. 2. Multiple abrasions left and right side of the crycoid and thyriod cartilage ¼th cm x ¼ cm each (nails scratches) Ante mortem in nature. 3. Stab wound over the left side of the next below the angle of mandable 2 cms x ½ cms x 3 cms in measurement, caused to weapon is sharp, Ante mortem. 4. Multiple small abrasions ¼ cm x ¼ cm anterior aspect of left shoulder joint, blunt in nature, Ante mortem. These are external injuries and internal injuries are: 1. All under lined neck muscles and fasia are bruised. 2. Hyoid bone fractured at the left of the left horm. 3. Left common charotide artry and veins are bruised. ” PW-12 opined that internal injury No.2, i.e., fracture of hyoid bone at the left horm, was the main cause that resulted in the death of the deceased. The learned Sessions Judge, had handed down conviction, essentially, based on two circumstantial factors; firstly, that PWs.1, 2 and 3 have spoken about the factum of the deceased being called out from out of his house by someone at about the time when he was having dinner and PW-4 has last seen the deceased, on the same day, in the company of the accused at about 9-00 p.m.; and the second aspect or factor which weighed with the Sessions Court was, that portion of the statement, which the accused has made to the police in the course of investigation admitting to the commission of the offence. We have heard Sri C. Praveen Kumar, learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant Sri C. Praveen Kumar contends that except the circumstantial evidence that the deceased was seen in the company of the accused last by PW-4, there is no other factor for a conviction for an offence under Section 302 of the Indian Penal Code, to be handed down to the accused. Insofar as this circumstance is concerned, the learned counsel would draw our attention to the fact that PW-4, during the course of cross-examination, has stated in very clear terms that the distance between the culvert, where he has seen the deceased in the company of the accused and the place, where the dead body of the deceased was found next day morning by PWs-5 and 6, was nearly 1 ½ kilometers. Apart from that he has also deposed that for reaching the toddy hut, where the dead body of the deceased was noticed lying, one has to pass through Wargal village and that there are shops and hotels situate on either side of the road of the village. Therefore, the learned counsel for the appellant would contend that the place where PW-4 had last seen the deceased in the company of the accused, could not have been possibly the last of the events that would have occasioned before his death. The possibility of the deceased going, all on his own, to the toddy hut or in the company of someone else, cannot be ruled out at all. When there is a possibility of another person accompanying the deceased to the toddy hut cannot be ruled out, the circumstance of the deceased being seen at about 9-00 p.m., in the company of the accused, is not such a factor, which could convincingly hold the accused to be the persons, who could have committed the offence. Insofar the second factor, which was taken into consideration by the Sessions Court is concerned, the learned counsel has rightly pointed out that such a portion, which is not admissible in evidence, has been relied upon for handing down the conviction. Therefore, we are not taking into account or consideration that aspect of the matter at all. The entire question, therefore, boils down to whether the theory of the deceased was last seen in the company of the accused would be such as, that can fetch successfully the conviction of the accused or not. Insofar as this aspect of the matter is concerned, the Supreme Court had an occasion to review the entire law on this question in STATE OF GOA v. SANJAY THAKRAN AND ANOTHER[1] and in Paragraph No.29, the principles on the subject have been crisply enunciated in the following manner: “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 gap 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 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.” (Emphasis is broughtout ) Thus, while the time gap between the accused seen in the company of the deceased and the detection of the crime would be a material consideration for the purpose of appreciation of the evidence, and such a circumstance can go against the accused, but at the same time, a cogent approach has got to be adopted by the Courts, inasmuch as, the possibility of the deceased being in the company of the any other third-party, other than the accused, has got to be ruled out. Only in cases where, with a sense of assuredness, if one can say that the possibility of the deceased being seen in the company of any other third-party, other than the accused, is ruled out, perhaps, the theory of last seen in the company of the accused will acquire significance for handing down the conviction. We have perused the evidence of PWs - 5 and 6 and when we compared the same with the deposition of PW-4, particularly, during his cross- examination, it becomes clear that the distance of 1½ kilometers and the time gap between 9-00 p.m. of previous night and 6-00 a.m., the next day morning and the fact that the body of the deceased was found at a toddy hut, which is normally visited by many others at about that time, cannot be ruled out. This apart, one has to pass through the entire village to reach the toddy hut from the place of culvert, where the deceased was last seen in the company of the accused. On either side of the road of the village there are hotels and other shops situate, therefore, if it were really true that it is the accused, who accompanied the deceased to the toddy hut, many others than PW-4 would have noticed the said fact. Further, the possibility of presence of third-parties in the company of the deceased at the toddy hut cannot be completely ruled out. Further, PW-12 - doctor, during the course of his cross-examination, has deposed that external injuries Nos. 2 and 4 are possible as a result of resistance offered. Therefore, it is logical that the deceased might have offered resistance towards the aggressor and that fact could not have gone totally unnoticed by someone or the other, particularly, at a place where the presence of many others cannot be ruled out, like that of a village toddy hut. Apart from the above-narrated circumstances, there was no other evidence that was brought on record. From this chain of circumstances, which we have noticed, the time gap between 9-00 p.m., when PW-4 has seen the deceased in the company of the accused and the retrieval of the dead body of the deceased at 6-00 a.m. on the following day, acquires lot of significance and importance. The chain of events leading to the death of the deceased, in our opinion, has not been completely established. The presence of third-parties at the toddy hut cannot be ruled out and hence, we are of the considered opinion that the benefit of doubt should have been given to the accused, following the principles enunciated by the Supreme Court in SANJAY THAKRAN’s case (cited supra). We, therefore, allow this Appeal and set aside the conviction and sentence handed down to the accused – appellant and he be set forth at liberty, if not required in any other case. The fine amount, if any, paid by accused shall be refunded to him. -------------------- D.S.R.Varma, J --------------------------------- Nooty Ramamohana Rao, J Note: L.R. copy to be marked. (bo) mrk 21st January 2010. [1] (2007) 2 ALD (CRL.) 949