last seen circumstance alone is not sufficient to fasten the guilt of the accused= The 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 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 and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.” 13. Except the last seen theory, there is no other incriminating evidence to show that the accused committed the offence punishable under Section 302 r/w 34 IPC. Hence, in the absence of any other corroborative evidence adduced by the prosecution, this Court is of the view that the trial court rightly acquitted the accused and we see absolutely no reasons to interfere with the same.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

 

Monday, the 11^th day of March,

Two Thousand and Thirteen

 

PRESENT

 

HON'BLE SRI JUSTICE

K.C. BHANU

AND

 HON'BLE SRI JUSTICE

M.S. RAMACHANDRA RAO

 

CRIMINAL APPEAL No.291 of 2013

 

 

Between:

The State of A.P., rep. by its Public Prosecutor

… Appellant

And

 

Gaini Narayana and others

… Respondents

 

 

 

 

 

 

 

 

 

 

 

This Court made the following:

HON'BLE SRI JUSTICE

K.C. BHANU

AND

HON'BLE SRI JUSTICE

M.S. RAMACHANDRA RAO

 

CRIMINAL APPEAL No.291 of 2013

JUDGMENT:        (per the Hon’ble Sri Justice K.C.Bhanu)

This Criminal Appeal, under Section 378(1) & (3) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is filed by the
State against the Judgment, dated 05.10.2007, in Sessions Case No.270 of 2005 on the file of the Court of
VII Additional Sessions Judge, (Fast Track Court), Nizamabad at Bodhan, whereunder and whereby the respondents/accused were found not guilty of the offence punishable under Section 302 read with 34 IPC and were acquitted under Section 235(1) Cr.P.C.

2. The prosecution case in brief may be stated as follows:

On 26.01.2005, at about 11:00 AM, the deceased did not return to the house till night.  Then P.Ws.1 to 3 searched for the deceased, but invain.  On 27.01.2005 at 11:00 AM, while they were ready to leave to their fields, P.W.5 found the dead body of the deceased near Pillavagu Check Dam and he informed the same to the family members of the deceased and P.W.1.  The police registered a case in Crime No.16 of 2005 for the offence punishable under Section 302 IPC.  During the course of investigation, the police conducted inquest over the dead body of the deceased; observed the scene of offence; prepared rough sketch of the scene of offence; and sent the dead body for post mortem examination.  After completion of investigation, the police filed charge sheet.

3. On appearance of all the accused, charge under Section 302 r/w 34 IPC was framed against all the accused. When the charge was read over and explained to the accused in telugu, they pleaded not guilty and claimed to be tried.

4. To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.10 besides case properties M.Os.1 to 11.  No oral or documentary evidence was adduced on behalf of the defence.

5. After the prosecution evidence is closed, the accused were examined under Section 313 Cr.P.C. for which they denied the incriminating evidence appearing against them in the evidence of the prosecution witnesses. 

6. The trial court on appreciation of the oral and documentary evidence, found the accused not guilty of the charge framed against them and, accordingly, acquitted them.   Challenging the same, this appeal is filed

7.         Now, the point for determination is whether the prosecution proved its case beyond all reasonable doubt for the charge levelled against them and whether the judgment of the trial court is sustainable?

POINT:-

8.         Learned Additional Public Prosecutor contended that A1 was in the company of the deceased prior to the incident and, therefore, inference can be drawn that he alone committed the murder of the deceased and he prays to admit the appeal.

9. Ordinarily the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.  The Court of appeal is required to take into consideration the reasons given by the trial court in passing the judgment of acquittal very carefully, and if such reasons are consistent with the evidence, as a matter of prudence, this Court should not interfere with the impugned judgment by
re-appreciating the evidence and to take some other view.  The appellant must show compelling or substantial reasons in view of the decision reported in Chandrappa v. State of Karnataka[1], wherein at para 42 it was held as follows:

“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

10. It is fairly well settled that when a case rests upon circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.  On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.,[2]wherein at para 10 it was held as follows:-

“(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.”

11. In the case on hand, the circumstantial witnesses are P.W.1 to 3, who are the close relatives of the deceased. Except stating that the deceased left the house and did not come to the house till night, P.Ws.1 to 3 did not state anything incriminating against the accused  to connect them with the offence, and only on coming to know about the death of the deceased from P.W.4, they lodged a report.  P.W.4, who is running a hotel, only deposed that the deceased alone came to his hotel and purchased some eatables and left the hotel.  P.W.5 deposed that he found the dead body of the deceased in pilla vagu check dam.  The evidence of P.W.6 would go to show that in the month of January, when he went to check dam of pilla vagu, he found the deceased in the company of A1 and both of them were playing cards and at about 04:00 PM they stopped the game and later the deceased and A1 went towards the village on cycle. P.W.7 also deposed in the same lines as stated by P.W.6.  P.W.8 stated that A1 to A3 were found near the light post at the house of one Chakali Narsimloo, i.e., on the way to the village from pillavagu and they were coming into the village.  Similarly, the evidence of P.W.9 would go to show that the deceased and A1 were proceeding towards Pillavagu check dam and on the next day, he came to know about the death of the deceased and found the dead body.  Except one circumstance that the deceased was last seen in the company of the accused, there are no other incriminating circumstances in the evidence of prosecution witnesses to connect the accused with commission of the offence.  The said 

last seen circumstance alone is not sufficient to fasten the guilt of the accused 

in this case.

12. On this aspect it is pertinent to refer to a decision reported in State of U.P. v. Satish[3], wherein at para 22 it was held as follows:

“22. The 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 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 and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.”

13. Except the last seen theory, there is no other incriminating evidence to show that the accused committed the offence punishable under Section 302 r/w 34 IPC.  Hence, in the absence of any other corroborative evidence adduced by the prosecution, this Court is of the view that the trial court rightly acquitted the accused and we see absolutely no reasons to interfere with the same.  The appeal fails and is liable to be dismissed.

14. In the result, the Criminal Appeal is dismissed confirming the judgment of the trial Court.

________________

 K.C. BHANU, J

                                                                          

                                                                       _____________________________            

M.S. RAMACHANDRA RAO, J

11.03.2013

lmv.

HON'BLE SRI JUSTICE

K.C. BHANU

AND

 HON'BLE SRI JUSTICE

M.S. RAMACHANDRA RAO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CRIMINAL APPEAL No.291 of 2013

11.03.2013

lmv

---

[1] 2007(4) SCC 415

[2] AIR 1990 Supreme Court 79

[3] (2005) 3 SCC 114