Telangana High Court
Ulcha Gajjaram, Adilabad Dt. vs State Of Telangana, Rep. By P.P., Hyd on 26 September, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL No.28 OF 2015
JUDGMENT:(per The Hon'ble Sri Justice K.SURENDER) The appellant was convicted for the offence under Section 302 of the Indian Penal Code and sentenced to life imprisonment.
2. The case of the prosecution is that the appellant was involved in several theft cases pertaining to Police Station I Town, Nizamabad. He was acquainted with the deceased namely Chandrakala, mother of PW.5. Both started living together. Chandrakala was involved in prostitution and the appellant used to allegedly take money from the deceased. The deceased and her sisters were arrested by Police at Railway Station, Nizamabad and were sent to jail. The appellant was not having money, as such, he went to Basara and committed theft of an Auto. He was arrested and after release on bail he came back and found that the deceased was physically involved with a person named Sai. The appellant warned the deceased not to move around with Sai.
3. On 26.01.2012 around 5:00 p.m., the appellant along with the deceased and her son PW.5 went to Nizamabad and watched a 2 movie. While watching the movie, according to PW.5, a quarrel took place between the deceased and the appellant and he left the theatre and went to the railway station. Thirty minutes later, the deceased and PW.5 met the appellant near the bus-stand where they slept. The next day on 27.01.2012 at 9:00 a.m., the deceased and her son went to Government Hospital, Nizamabad and the appellant followed them. The deceased asked the appellant to accompany her to Kamareddy to get money for PW.5. Around 11:00 a.m., while going towards bus-stand, deceased and appellant met PWs.4 and 6. PWs.4, 6, appellant, and the deceased all of them went to Toddy shop consumed Toddy. About 1:00 p.m., PWs.4 and 6 left. Thereafter on 28.01.2012, the dead body of the deceased was found on the outskirts of Manikbhandar village beside RTC colony.
4. PW.1 who is the Revenue Inspector of Makloor Mandal lodged complaint with the Police that some one must have killed the deceased after having sexual intercourse with her. Case was registered by PW.10 and PW.11-Inspector of Police took up investigation. In the presence of PW.7 and another he conducted scene of offence-panchanama. M.O.1-chappal, M.O.6-condom, M.O.7-unused condoms were seized at the scene along with M.Os.8 to 11. The body was sent for post-mortem examination. 3 PW.9 who conducted post-mortem examination held that the deceased died due to strangulation and the deceased was subjected to intercourse.
5. The appellant was arrested on 05.02.2012. Pursuant to his confession in the presence of PW.8, M.O.5-towel allegedly used to strangulate the deceased was seized which was concealed in the bushes.
6. On the basis of the evidence during the course of investigation, charge sheet was filed for the offence under Section 302 of the Indian Penal Code.
7. The learned Sessions Judge examined PWs.1 to 11 and marked Exs.P1 to P12. M.Os.1 to 14 were also brought on record.
8. PWs.4, 5 and 6 witnesses speak about seeing the deceased and appellant together prior to finding the body of the deceased. The entire case rests on the evidence of "last seen theory". The alleged motive is that the deceased was having intimacy with one person named Sai and also that the appellant was demanding money from the deceased. Only PW.4 speaks about the relation between the said 'Sai' and the deceased.
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9. The learned Sessions Judge found that PW.5 deposed regarding the events that transpired on 26.01.2012 and PWs.4 and 6 were the persons who consumed Alcohol with the deceased around 1:00 p.m. on 27.01.2012. Thereafter, the deceased was found dead. According to the learned Sessions Judge, under Section 106 of the Indian Evidence Act, the appellant was having exclusive knowledge of what transpired in between the appellant and the deceased. Further there was no defence that was let in by the appellant to prove his whereabouts on the night of 27.01.2012 which according to the prosecution was the time of death of the deceased. On the basis of said finding the learned Sessions Judge convicted the appellant.
10. Learned Counsel appearing for the appellant would submit that there are several discrepancies in the evidence of PWs.4, 5 and 6. It is a case of circumstantial evidence and the prosecution should prove all the circumstances relied on by the prosecution beyond reasonable doubt. Any suspicion, benefit should go to the accused. Counsel submitted that apart from the last scene theory, there is no other evidence to connect the appellant to the murder. It is for the prosecution to prove that the accused was in the company of the deceased on the night of 27.0102012 and it is not for the appellant to prove that he did not commit the offence. 5 Learned Sessions Judge committed an error in finding that the burden was shifted on to the appellant to explain regarding what transpired after they left the Toddy shop on 27.01.2012 in the afternoon since the deceased was found dead later. The alleged time of death was in the night of 27.01.2012. It is for the prosecution to explain what happened in between the afternoon and night.
11. Counsel relied on the Judgment of Honourable Supreme Court in Shankar v. State of Maharashtra 1 wherein it is held as follows;
"In the decision of Prakash v. State of Rajasthan (2013) 4 SCC 668, this Court took note of the following principles laid down regarding the law relating circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116:-
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is 1 2023 SCC OnLine SC 268 6 not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:
19. ......"certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions"
(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.7
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
12. Further in the Judgment cited, the Honourable Supreme Court was dealing with a case where last seen theory was applied by the Courts below to record conviction. However, the Honourable Supreme Court held that when there is variation in the evidence of witnesses regarding the last seen theory, benefit of doubt was extended.
13. Counsel submitted that the prosecution ought to have sent the Condom that was available at the scene to expert for DNA test, it would have clinched the issue. However, no such test was done. On the basis of suspicion there cannot be any conviction and the conviction in the present case has to be set aside.
14. On the other hand, learned Additional Public Prosecutor submits that the prosecution has clearly laid down foundation for the Court to draw presumption available under Section 106 of the Evidence Act. PWs.4, 5 and 6 speak about the relationship between the deceased and the appellant and also that the appellant was harassing the deceased for money. PWs.4 and 6 have in fact stated that they had Toddy with both the appellant 8 and the deceased in Nizamabad and thereafter the deceased and the appellant left. Accordingly the findings of the trial Court are proper.
15. The fact remains that the appellant was last seen with the deceased by PWs.4 and 6 in the afternoon of 27.01.2012 at 1:00 p.m. and they left the Toddy shop. Thereafter, the dead body was found on the next day. As rightly pointed out by the learned Sessions Judge, the burden shifted on to the accused to explain as to what transpired after the appellant and the deceased left the Toddy shop. Failure to explain his whereabouts or what transpired after they left from the Toddy shop, whether they have parted ways, the accused ought to have stated the same. Even in the examination under Section 313 Cr.P.C., when questioned by the trial Court whether the appellant had to say anything, he did not state anything and stated that 'he has nothing to say'.
16. The Honourable Supreme Court in Surajdeo Mahto and another v. The State of Bihar 2 wherein it is held as follows;
"30. The case of the prosecution in the present case heavily banks upon the principle of "last seen theory". Briefly put, the last seen theory is applied where the time interval between the point of when the accused and the deceased 2 (2022) 11 SCC 800 9 were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Elaborating on the principle of "last seen alive", a three-Judge Bench of this Court in Satpal v. State of Haryana [Satpal v. State of Haryana, (2018) 6 SCC 610, para 6] has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence. The Court further held : (SCC pp. 612-13, para 6) "6. ... Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each 10 case will therefore have to be examined on its own facts for invocation of the doctrine."
17. The last seen theory is not the only circumstance that would form basis to convict the appellant. In fact, the entire version of the prosecution when looked into, the appellant was staying along with the deceased. He was quarrelling with the deceased for money and also suspecting that she was having an affair with a person named Sai. Though the said person was not identified during the course of investigation, however, PW.4 narrated that the deceased used to move along with one person named Sai and the appellant picked up quarrel with the deceased and the said Sai. The appellant objected the deceased to move along with Sai.
18. PW.5 stated that the appellant used to quarrel with the deceased when she refused to give money. In fact, he has narrated what all transpired a day prior i.e. on 26.01.2012 when they went to movie and both the appellant and the deceased left to go to the bus-stand as insisted by the appellant on 27.01.2012. Thereafter, the sequence of events are that PWs.4 and 6 met the deceased and the appellant. All of them had Toddy till 1:00 p.m. on 27.01.2012. Thereafter deceased and appellant left together. 11
19. Further, the accused had absconded from the day of the offence and was arrested on 15.02.2012, nearly 18 days after the incident. The accused has not explained during the course of trial as to why he has absconded and not seen from the date of offence, though, he was living along with the deceased. The recoveries also support the case of the prosecution and major link in the sequence of events.
20. The prosecution is able to prove the case against the appellant by reliable evidence. There are no reasons to interfere with the finding of the learned Sessions Judge.
21. Accordingly, the appeal is dismissed. Since the appellant is on bail, in view of her confirmation of the conviction, the bail stands cancelled. The trial Court is directed to send the appellant to prison to serve out the remaining part of the sentence.
___________________ K.SURENDER, J __________________________ ANIL KUMAR JUKANTI, J Date: 26.09.2024 tk