Andhra Pradesh High Court - Amravati
Shaik Khasim 9A2, Nellore Ruralm Anr., vs State Of Ap., Rep Pp., on 4 March, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
IN THE HIGH COURT OF ANDHRA PRADESH:
AT AMARAVATI
***
Criminal Appeal No.310 of 2015
and
Criminal Appeal No.326 of 2015
Criminal Appeal No.310 of 2015
Between:
1) Shaik Khasim, S/o. Masthan, aged 29 years,
Dedekula by caste, Narukuru Centre,
Nellore Rural Mandal.
2) Pujari Sobhan Babu, S/o. Subrahmanyam,
Aged 26 years, Pallikapu by Caste, Narukuru centre,
Nellore Rural Mandal.
.... Appellants/Accused Nos.2 & 3
And
The State of Andhra Pradesh, rep. by its
Public Prosecutor, High Court of Judicature at Hyderabad.
....Respondent/Complainant
Criminal Appeal No.326 of 2015
Between:
Kovur Suneel, S/o. Penchalaiah, aged 24 years,
SC-Mala, Narukuru SC Colony, T.P. Gudur Mandal,
Nellore District.
.... Appellant/Accused No.1
And
The State of Andhra Pradesh, rep. by its
Public Prosecutor, High Court of Judicature at Hyderabad.
....Respondent/Complainant
Date of Judgment pronounced on : 04.03.2022.
CPK, J & Dr. KMR, J
2 Crl.A.Nos.310 & 326 of 2015
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers : Yes/No
may be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether the Lordship wishes to see the fair copy : Yes/No
of the Judgment?
________________________________
JUSTICE C. PRAVEEN KUMAR
CPK, J & Dr. KMR, J
3 Crl.A.Nos.310 & 326 of 2015
* THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
+ Criminal Appeal No.310 of 2015
and
Criminal Appeal No.326 of 2015
% 04.03.2022
Criminal Appeal No.310 of 2015
Between:
#1) Shaik Khasim, S/o. Masthan, aged 29 years,
Dedekula by caste, Narukuru Centre,
Nellore Rural Mandal.
2) Pujari Sobhan Babu, S/o. Subrahmanyam,
Aged 26 years, Pallikapu by Caste, Narukuru centre,
Nellore Rural Mandal.
.... Appellants/Accused Nos.2 & 3
And
$ The State of Andhra Pradesh, rep. by its
Public Prosecutor, High Court of Judicature at Hyderabad.
....Respondent/Complainant
Criminal Appeal No.326 of 2015
Between:
# Kovur Suneel, S/o. Penchalaiah, aged 24 years,
SC-Mala, Narukuru SC Colony, T.P. Gudur Mandal,
Nellore District.
.... Appellant/Accused No.1
And
$ The State of Andhra Pradesh, rep. by its
Public Prosecutor, High Court of Judicature at Hyderabad.
....Respondent/Complainant
CPK, J & Dr. KMR, J
4 Crl.A.Nos.310 & 326 of 2015
! Counsel for the Appellants : Sri T. Pradyumnakumar Reddy,
Learned Senior Counsel for
A.2 & A.3.
Sri G. Vijaya Saradhi, learned
counsel for A.1
Counsel for the Respondents: Sri S. Dushyanth Reddy
Addl. Public Prosecutor.
<Gist :
>Head Note:
? Cases referred:
1) (1984) 4 SCC 116
2) 1992 SCC (Cri) 331
3) (2008) 3 SCC (Cri) 546
4) (2019) 13 SCC 802
5) (2012) 6 SCC 403
CPK, J & Dr. KMR, J
5 Crl.A.Nos.310 & 326 of 2015
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
CRIMINAL APPEAL NO.310 OF 2015
AND
CRIMINAL APPEAL NO.326 OF 2015
COMMON JUDGMENT:(Per the Hon‟ble Sri Justice C. Praveen Kumar) A.1 to A.3 in Sessions Case No.352 of 2010 on the file of learned IV Additional District and Sessions Judge, Nellore, are the appellants herein. They were tried for offences punishable under Section 302 r/w. Section 34, 379 and 201 r/w. Section 34 Indian Penal Code, 1860 [for short, "I.P.C."].
2. Vide its judgment dated 24.02.2015, the learned Sessions Judge found A.1 to A.3 guilty of all the charges and sentenced them to undergo Life Imprisonment for the offence punishable under Section 302 r/w. Section 34 I.P.C and also to pay a fine of Rs.1000/- each, in default, to suffer Simple Imprisonment for one year each. Further, A.1 to A.3 also sentenced to undergo Simple Imprisonment for three years and also to pay a fine of Rs.1000/- each, in default, to suffer Simple Imprisonment for one year each for the offence punishable under Section 201 r/w. Section 34 I.P.C. Further, A.1 to A.3 also sentenced to undergo Rigorous Imprisonment for three years and also to pay a fine of Rs.1000/- each, in default, to suffer Simple Imprisonment for six months each for the offence punishable under Section 379 r/w. Section 34 CPK, J & Dr. KMR, J 6 Crl.A.Nos.310 & 326 of 2015 I.P.C. The substantive sentences were directed to run concurrently.
3. The gravamen of the charge against the accused is that on 04.09.2009 at 9.00 P.M., at Janath Hussain Nagar, Nellore, the accused caused the death of the deceased. A.1 is said to have beat Nellore Lakshmaiah [hereinafter referred as "deceased"] with a stick on the head while A.2 and A.3 tried a rope around the neck of the deceased.
4. The facts in issue, as culled out from the evidence of prosecution witnesses, are as under:-
(i) P.W.1 is the brother of the deceased. A.1 to A.3 are friends of the deceased, who are known to P.W.1 as well. The deceased, who was physically handicapped, used to reside along with P.W.1. He was not doing any work, but he used to take alcohol along with the accused during evening time. On 04.05.2009 at about 9.00 P.M., P.W.1 was standing near the bunk of P.W.7 along with the deceased. Meanwhile, A.1 to A.3 came there and called the deceased. P.W.1 questioned his brother stating as he wants to go with the accused at late night and asked him to bring some noodles. After bringing noodles, the deceased along with the accused boarded an auto and proceeded towards Paderu this was after 9.00 P.M. P.W.1 went home and waited till night for his brother. As he did not come, he called his brother on phone at 11.00 or 11.30 P.M, but it was switched off. P.W.1 went to bed and at 4.30 A.M., again called his brother, but it was switched off.
CPK, J & Dr. KMR, J 7 Crl.A.Nos.310 & 326 of 2015 P.W.1 contacted P.W.2 and others about his brother not returning home, pursuant to which, they came to the house of P.W.1 and thereafter all of them went to the houses of A.1 to A.3 and enquired about the accused and the deceased. The inmates of the house informed that even the accused did not return home. P.W.1 took the phone numbers of the accused and attempted to contact them, but they did not lift their phones. Efforts to trace the deceased proved futile.
(ii) On 04.05.2009 at about 1.30 P.M., P.W.1 found A.2 and A.3 at the bunk of P.W.7, when he enquired about the deceased they replied that they don't know to whereabouts of his brother. When questioned again, A.2 and A.3 disclosed about the commission of the offence namely killing him near Koduru Canal after consumption of alcohol when the deceased refused to give the gold ornaments owned by him. According to them, A.1 beat the deceased on the head while A.2 and A.3 tied a rope around the neck of the deceased and pulled him. Thereafter, the body was shifted to Manusamudram and threw it in water sluice. It is said that thereafter all three returned in the auto. A.1 is said to have got down at Buja Buja, Nellore while A.2 and A.3 came to Narukuru centre where P.W.1 met them. Pursuant to the said statement, P.W.1 along with P.W.2 and A.2 and A.3 went to Koduru where they found chappals of the deceased, scrambling of sand and also noticed the dead body in a sluice tied in a gunny bag. On seeing the same, P.W.1 went to the Police Station on 06.05.2009 at 5.30 A.M. and lodged a report CPK, J & Dr. KMR, J 8 Crl.A.Nos.310 & 326 of 2015 with P.W.8 which led to registration of a case in Crime No.179 of 2009 under Section 302, 379 and 201 r/w. Sec.34 I.P.C. Ex.P11 is the F.I.R. P.W.1 also produced A.2 and A.3 along with Ex.P1 report.
(iii) Immediately thereafter, P.W.8 intimated the same to P.W.12-Sub Inspector of Police, who on receipt of the information, took up investigation. He kept A.2 and A.3 in the Police Station under surveillance and then proceeded to the scene. At the scene, he recorded the statement of P.W.1 and also prepared a panchanama of the scene in the presence of P.W.6. Ex.P3 is the observation report. At the scene he seized a pair of chappals. He then proceeded to Manasamudram Village tank and found a dead body in a gunny bag. He took photograph of the same, which are marked as Ex.P15 to Ex.P28. He then conducted inquest over the dead body in the presence of P.W.6. Ex.P4 is the Inquest Report. Thereafter, the body was sent for Post Mortem Examination. P.W.10-Civil Assistant Surgeon, Area Hospital, Srikalahasti, conducted autopsy over the dead body of the deceased and issued Ex.P12-Post Mortem Certificate. According to him, the cause of death was due to Cardio Respiratory arrest in asphyxia [suffocation with sub-dural haemotoma. Possibly homicidal.
(iv) P.W.12 after sending the body for Post Mortem Examination, returned to Police Station and recorded the statements of A.2 and A.3 in the presence of P.W.5. Ex.P5 is the admissible portion in the statement of A.2 and A.3. They CPK, J & Dr. KMR, J 9 Crl.A.Nos.310 & 326 of 2015 lead them to the house of A.3 from where they recovered the auto used in the commission of the offence. A.3 also picked up a rope from the above auto, used in the commission of the offence, which was seized under Ex.P8. He recorded the statement of P.W.7 and got A.2 and A.3 remanded to custody. On 24.05.2009, P.W.11 the Inspector of Police, Nellore, arrested A.1 and recorded his statement in the presence of mediators. M.Os.1 and 2, two gold rings were seized under Ex.P7. Pursuant to the confessional statement of A.1, he led the Police party to Z.P.High School, from where M.Os.3 to 6 were recovered from a polythene cover on the Eastern side wall of the school, the same were seized under Ex.P8. A.1 further led them to Koduru Canal Bunk and brought a stick M.O.9 from a shrub which was seized under Ex.P9. Later, A.1 was sent to Judicial Custody. After collecting all the necessary documents, a Charge Sheet came to be filed.
5. After collecting all the necessary documents, a Charge Sheet came to be filed, which was taken on file as P.R.C.No.33 of 2009 on the file of learned IV Additional Judicial Magistrate of First Class, Nellore, for the offences punishable under Section 302, 379, 201 r/w. Section 34 I.P.C.
6. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences are triable by Court of Sessions, the case was committed to the Court of the Sessions under CPK, J & Dr. KMR, J 10 Crl.A.Nos.310 & 326 of 2015 Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned IV Additional District and Sessions Judge, Nellore, for disposal in accordance with law.
7. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried.
8. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to P.29 and M.Os.1 to 11. After the closure of Prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. No oral evidence has been adduced, however got marked Exs.D1 and D2 on behalf of the accused. Since the circumstances relied upon by the prosecution are proved and formed a chain of events connecting the accused with the crime, the learned Sessions Judge convicted the accused. Challenging the same, the present appeals came to be filed.
9. Sri T. Pradyumnakumar Reddy, learned Senior Counsel for the appellants/A.2 and A.3 mainly submits that there are no eye witnesses to the incident and the case rests on circumstantial evidence. Since the circumstances relied upon by the prosecution namely motive, last seen, recovery of the dead body at the instance of A.2 and A.3 and the discovery of CPK, J & Dr. KMR, J 11 Crl.A.Nos.310 & 326 of 2015 articles belonging to deceased from A.1 are not proved beyond reasonable doubt, the chain is incomplete and the accused are entitled for benefit of doubt. He took us through the evidence of witnesses and also authorities in support of his plea.
10. Sri G. Vijaya Saradhi, learned counsel appearing for the appellant/A.1 submits that except last seen and the recovery of articles belonging to deceased, there is no material to connect the accused with the crime. In so far as recoveries are concerned, he would submit that the evidence of I.O. would show that the slips of the mediators containing signatures were not affixed on the seized objects and as such, the same cannot be believed. He further submits that Rule 35 of Criminal Rules of Practice, which is held to be mandatory, was not followed as it was not done in the Court premises.
11. On the other hand, Sri S. Dushyanth Reddy, learned Addl. Public Prosecutor would submit that the circumstance of accused being last seen in the company of the deceased coupled with A.2 and A.3 showing the dead body voluntarily without any threat or coercion, is sufficient to connect the accused with the crime.
12. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?
CPK, J & Dr. KMR, J 12 Crl.A.Nos.310 & 326 of 2015
13. As seen from the record, there are no eye witnesses to the incident and the case rests on circumstantial evidence. In a case arising circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and circumstances so proved should form a chain of event connecting the accused with the crime. In other words, all links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In Sharad Birdhichand Sarda Vs. State of Maharashtra1, the Hon'ble Supreme Court laid down certain conditions to be fulfilled before a case against the accused can be said to be fully established on circumstantial evidence.
"The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:
(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely „may be‟ fully 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 1 (1984) 4 SCC 116 CPK, J & Dr. KMR, J 13 Crl.A.Nos.310 & 326 of 2015 all human probability the act must have been done by the accused."
14. In S.D. Soni vs. State of Gujarat2 and Venkatesan vs. State of Tamil Nadu3, the Court held as under:-
"6. It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established:
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
(iii) 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."
The same principles were reiterated in Uppala Bixam @ Bixmaiah vs. State of A.P.4
15. Keeping in view the principles laid down by the Hon'ble apex Court in the judgements referred to above, we shall now deal with the case on hand. As seen from the record, three circumstances are relied upon by the prosecution to connect the accused with the crime. (1) The accused being last seen in the company of the deceased, which was at 9.00 P.M on 04.05.2009. (2) The confession made before P.W.1 and 2 by A.2 and A.3 disclosing commission of offence and then taking them to the place of offence where the dead body was seized in water sluice. (3) Recovery of ornaments belonging to the deceased at the instance of A.1 and (4) Motive to commit the offence namely for gain.
2 1992 SCC (Cri) 331 3 (2008) 3 SCC (Cri) 546 4 (2019) 13 SCC 802 CPK, J & Dr. KMR, J 14 Crl.A.Nos.310 & 326 of 2015
16. It is to be noted here that the deceased was a physically handicapped person affected due to polio. He was not doing any work except going around with his friends and having alcohol with them, more particularly, with A.1 to A.3. It has also come on record that the deceased was wearing gold rings, gold bracelet, gold chain and also a gold watch with black dial every day.
Last seen:
17. In the F.I.R. given by P.W.1, he categorically stated that on 04.05.2009 while he was standing infront of the bunk of P.W.7, his brother (deceased) along with A.1 to A.3 came to him. His brother went to a nearby shop, brought noodles and gave them to P.W.1. Later on, his brother along with A.1 to A.3 boarded an auto bearing no. A.P.26 Y 8542 and went towards Paderu side. P.W.1 went to his house and as the deceased did not return back, he called him on phone, which was switched off. Again, on 05.05.2009 at about 5.00 A.M., he called him on phone, but it was switched off.
18. But, while giving evidence in the Court, a different version to what that he has been mentioned in Ex.P.1 is given. While giving evidence, P.W.1 in his evidence deposed that on 04.05.2009 at 9 PM, he along with the deceased were standing infront of the shop of P.W.7, at which point of time, A.1 to A.3 came there and asked the deceased come along with them. Then, P.W.1 questioned his brother as to why he is going with the accused late in the night. But, however, CPK, J & Dr. KMR, J 15 Crl.A.Nos.310 & 326 of 2015 asked him to get noodles. After getting noodles, the deceased left along with the accused in the auto. Though, the version in Ex.P1 and in Court indicate that deceased went along with accused in the auto but the variation is to the sequence of events, which happened prior to accused meeting the deceased or deceased meeting P.W.1.
19. However, the evidence of Investigating Officer would show that P.W.1 did not state any of the crucial fact in his earlier statement. It would be appropriate to extract the same, which is as under:
"P.W.1 did not state before me on 04.09.2009 that while he was standing with his brother at the shop of Vana Kumar, Narukuru centre, meanwhile, all the accused came there and called his brother and then he questioned his brother as to why he was following with the accused and that he asked his brother to bring noodles. P.W.1 did not state before me that he waited for his brother till 11.30 P.M. and then he contracted his brother over phone and received message as switched of and again at 4.00 A.M., he woke up and contacted his brother‟s phone and received message as switched off.
P.W.1 further did not depose before me and not mentioned in Ex.P1 report that he contacted the mobile phones of present accused and the accused did not respond to his call. I did not make any attempt to collect the call details of the Mobile phones of accused and deceased."
Similarly, the omissions in the F.I.R., which we have referred to earlier, were elicited through the I.O. who recorded the F.I.R. Even assuming for the sake of argument that the accused and the deceased were seen together on the previous day night, whether the same is sufficient to convict the accused, if other circumstances are not proved.
CPK, J & Dr. KMR, J 16 Crl.A.Nos.310 & 326 of 2015
20. The second circumstance relied upon by the prosecution is the extra-judicial confession made before P.Ws.1 to 4 and the recoveries pursuant thereto. While the evidence of P.Ws.1 and 2 is to the effect that on 05.05.2009 at about 1.30 P.M., they found A.2 and A.3 at the bunk of P.W.7 and when enquired, they confessed about the commission of the offence and then P.Ws.1 and 2 were taken near the place where the body was thrown i.e., in a water sluice. The said version of P.W.1 is also spoken to by P.W.2. Infact, the evidence of these two witnesses show that when the deceased refused to give the gold ornaments, which were worn by him, they killed him. Coming to the evidence of P.W.3, he gives a totally different picture. According to him, on 05.05.2009 at 8 A.M., he reached Narukuru centre searched for deceased at about 11 A.M., A.1 and A.3 were present at Narukuru centre, he being the brother of the deceased, caughthold of A.1 and A.3 and enquired about the deceased along with P.Ws.1 and
2. Thereafter A.1 and A.3 are alleged to have taken them to Manusamudram near Kalahasthi where they noticed the body in a water sluice. Similar is the version of P.W.4, who is a resident of Brahmadevam and who is a relative of P.W.1. Though, P.W.3 in his earlier statement do not refer to these facts namely A.1 and A.2 leaving them to Manusamudram from Naruku Centre etc., but his version in Court along with that of P.W.4 runs totally contra to the evidence of P.W.1 and P.W.2. In other words, while P.W.1 and P.W.2 speaks about A.2 and A.3 making an extra-judicial confession leading to CPK, J & Dr. KMR, J 17 Crl.A.Nos.310 & 326 of 2015 discovery of dead body, (of course not a discovery under Section 27). The evidence of P.Ws.3 and 4 is to the effect that it was A.1 and A.3, who made the extra-judicial confession leading to tracing of the dead body near Srikalahasti. Therefore, this extra-judicial confession leading to recovery of dead body of the deceased being inconsistent, which was made the sheet anchor of prosecution case, falls to ground.
21. The third circumstance relied upon by the prosecution is the recovery of gold ornaments at the instance of A.1. Firstly, the Test Identification Parade of these properties was not conducted in terms of Rule 35 of Criminal Rules of Practice, which was held to be mandatory. Apart from that the evidence of the Investigating Officers, who effected recovery of these ornaments throw some doubt for the reason that the Panchanama prepared at the time of seizure does not refer to affixation of slips on M.Os.1 to 6 containing the signatures of the mediators. It would be appropriate to extract the same which is as under:-
"I did not affix any slips on M.Os.1 and 2 containing the signatures of mediators. There is no such reference in Ex.P7 Mahazar.
....There is no mention in Ex.P9 that I fixed slips on M.O.9 containing the signatures of mediators and the A.1."
22. Even, the Investigating Officer, in his evidence admits that though he claims to have taken the signatures of the accused and mediators on the property seized by him, he did not mention the same in the mediators report and affixing slips on the properties. As the mandatory requirement as CPK, J & Dr. KMR, J 18 Crl.A.Nos.310 & 326 of 2015 contemplated in Criminal Rules of Practice is not followed and as there is a doubt with regard to the seizure of gold ornaments, the same cannot be accepted as proved.
23. When the two circumstances namely extra-judicial confession leading to discovery of body and the recovery of articles from A.1 are not proved beyond doubt, the only circumstance namely the accused being last seen with the company of the deceased may not be sufficient to convict the accused.
24. In Sahadevan and another vs. State of Tamil Nadu5, the Hon'ble Supreme Court in Paragraphs 27 to 32 of the said judgment, observed as under:-
27. The courts below, the trial court in particular, have laid some emphasis on the theory of last seen, while finding the accused guilty of the offence. As far as PW 5 is concerned, he says that he only saw three persons going on the moped and he could not identify these persons. PW 4 stated that he had seen the deceased going on a moped with Chandran at about 2 o'clock in the afternoon. The time-lag between the time at which this witness saw the accused and the deceased together and when the body of the deceased was found on the next day is considerably long. According to PW 4, he could identify Loganathan while, according to PW 5, the face of the deceased was burnt and, therefore, he could not identify him. Moreover, according to the doctor, PW 7, the deceased had died about 27 to 28 hours before the autopsy. The autopsy was admittedly performed upon the deceased on 10th of July at about 2 o'clock.
That implies that the deceased would have died sometime during the morning of 9th July, while according to PW 4, he had seen the deceased along with Chandran after 2 p.m. on 9-7- 2002.
5 (2012) 6 SCC 403 CPK, J & Dr. KMR, J 19 Crl.A.Nos.310 & 326 of 2015
28. With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and the deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt.
29. In Arjun Marik v. State of Bihar [1994 Supp (2) SCC 372 :
1994 SCC (Cri) 1551] this Court took the view that where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that: (SCC p. 385, para 31) "31. ... it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record [a] finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction, on that basis alone, can be founded."
30. Even in State of Karnataka v. M.V. Mahesh [(2003) 3 SCC 353 : 2003 SCC (Cri) 795] this Court held that: (SCC p. 354, para 3) "3. ... Merely being seen last together is not enough. What has to be established in a case of this nature is definite evidence to indicate that [the deceased] had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court."
31. In State of U.P. v. Satish [(2005) 3 SCC 114 : 2005 SCC (Cri) 642] this Court had stated that (SCC p. 123, para 22) the principle of last seen comes into play CPK, J & Dr. KMR, J 20 Crl.A.Nos.310 & 326 of 2015 "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."
32. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."
25. A reading of the above would clearly indicate that the circumstance of last seen by itself cannot inculpate the accused, unless the case is seen in its entirety. When the other two circumstances namely discovery of body at the instance of the accused is found to be doubtful having regard to the inconsistent evidence of P.W.1 and P.W.2 in implicating A.2 and A.3 while P.W.3 and P.W.4 implicating A.1 and A.3, we feel that it may not be safe to convict the accused basing on the theory of last seen, more so, when the accused and the deceased are friends who used to consume alcohol everyday evening.
26. Accordingly, the Criminal Appeal Nos.310 & 326 of 2015, are allowed. The conviction and sentence recorded against the appellants/A.1 to A.3 in the Judgment dated 24.02.2015 in Sessions Case No.352 of 2010 on the file IV Additional District and Sessions Judge, Nellore, for the offences punishable under Section 302 r/w. Section 34, 379 and 201 r/w. Section 34 I.P.C. are set aside and the A.1 to CPK, J & Dr. KMR, J 21 Crl.A.Nos.310 & 326 of 2015 A.3 are acquitted for the said offences. Consequently, the appellants/A.1 to A.3 shall be set at liberty forthwith, if they are not required in any other case or crime. The fine amount, if any, paid by the appellants/A.1 to A.3 shall be refunded to them.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ___________________________________ DR. JUSTICE K. MANMADHA RAO Date: 04.03.2022 Note: LR copy to be marked.
B/o.MS CPK, J & Dr. KMR, J 22 Crl.A.Nos.310 & 326 of 2015 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE DR. JUSTICE K. MANMADHA RAO Note: LR copy to be marked B/o.MS CRIMINAL APPEAL NO.310 OF 2015 AND CRIMINAL APPEAL NO.326 OF 2015 (per the Hon‟ble Sri Justice C. Praveen Kumar) DATE: 04.03.2022 MS