marisaa adinarayana v. the state of a.p

M. Satyanarayana Murthy, J.

1. Aggrieved by the conviction and sentence passed by the Sessions Judge, Mahila Court, Visakhapatnam under the Calendar and Judgment in Sessions Case No. 58 of 2012 dated 30.10.2012, finding the accused guilty for the offence punishable under Section 302 of the Indian Penal Code (for short I.P.C.) and sentencing him to undergo rigorous imprisonment for life and pay fine of Rs. 100/- with default sentence, the present appeal is filed under Section 374 (2) of Criminal Procedure Code (for short Cr.P.C.).

2. The case of the prosecution in brief is that the accused married one Rani during the year 1994, blessed with two children by name Varshitha and Bhavani. Due to physical and mental harassment, caused by the accused to his wife Rani, she lodged a complaint with the police for the offence punishable under Section 498-A of I.P.C. in Kancharapalem Police Station and that the police arrested the accused, remanded him to judicial custody and later filed charge sheet, but the same ended in acquittal. The accused deserted his first wife with two children. Later in the year 2004, the accused married one Padma who is a widow having two daughters. After few years of their conjugal life, the accused started harassing Padma physically and mentally, suspecting her character, decided to kill Padma and the same was proclaimed before the daughters of Padma i.e. M. Jayasri P.W. 3) and M. Divya (L.W. 6).

3. The accused went to Sabarimala on 12.12.2011 and returned on 17.12.2011. By that time M. Jayasri (P.W. 3) and M. Divya (L.W. 6) were not present in the house as they went to Rajahmundry to attend a marriage function. On 18.12.2011 in the early hours at about 3:30 am, while Padma is preparing to go to Rajahmundry, as nobody present in the house, the accused, taking advantage of her loneliness, decided to kill Padma, demanded her not to go to Rajahmundry, but Padma refused to heed the words of the accused. Immediately there was a wordy altercation took place between the accused and Padma. In the said altercation, the accused fisted her with hands on head and also kicked her on the stomach with right knee, fisted with hands on her stomach and on receipt of those injuries, she died on the spot.

4. On coming to know about the offence, one M. Revathi (P.W. 1) who is the elder sister of Padma (deceased) presented a report to S. Kiran Kumar, Inspector of Police, III Town Police Station, MVP Zone, Visakhapatnam city (P.W. 7) and the same is registered as a case in Cr. No. 722 of 2011 for the offence punishable under Section 302 of I.P.C. and took up investigation

5. During the course of investigation, on 18.12.2011, S. Kiran Kumar (P.W. 7) visited the scene of offence, observed the same, prepared rough sketch (Ex. P9), got photographed and also prepared scene observation report (Ex. P3) in the presence of Kagithala Venkata Ramama (L.W. 12) and Chinnipilli Rambabu (P.W. 5), inquest was held in the presence of blood relatives of Padma (deceased) on 18.12.2011 between 4:00 pm to 6:00 pm through Chinnipilli Rambabu (P.W. 5), Kagithala Govinda Reddy, S/o. late Appa Rao (L.W. 14), Maddi Tata Rao (L.W. 15), Kagithala Govinda Reddy, S/o. Rama Rao (L.W. 16) and Chinnipilli Varalakshmi (L.W. 17). Based on the statement of blood relations, the inquest panchayatdars unanimously opined that the apparent cause of death of Padma (deceased) was due to the injuries caused on her body by the accused with hands and legs.

6. S. Kiran Kumar (P.W. 7) forwarded the dead body to King George Hospital, Visakhapatnam for conducting autopsy and Dr. M. Taquiddin Khan (P.W. 8) held autopsy over the dead body, issued postmortem certificate (Ex. P11), opining that the cause of death was due to blunt injury on the abdomen associated with head injury. On 21.12.2011 S. Kiran Kumar (P.W. 7) arrested the accused, recorded his statement in the presence of Kagithala Venkata Ramana (L.W. 12) and Chinnipilli Rambabu (L.W. 13) and sent him for remand. Thus, the accused being the husband of Padma (deceased) suspecting character her since a long time fisted and kicked on various parts of the body brutally, with an intention to kill her and thereby, committed an offence punishable under Section 302 of I.P.C. Consequently S. Kiran Kumar (P.W. 7) filed charge sheet before IV Additional Chief Metropolitan Magistrate, Visakhapatnam.

7. The learned Magistrate in turn registered the same as P.R.C. No. 1 of 2012, as the offence committed by the accused is triable by the Sessions Court, exclusively. The Magistrate after following necessary procedure under Section 207 of Cr.P.C., committed the case to the Sessions Division under Section 209 of Cr.P.C. and in turn the Sessions Judge registered the same as Sessions Case No. 58 of 2012, made over the same to Sessions Judge, Mahila Court, Visakhapatnam for trial and disposal of the case in accordance with law.

8. The Sessions Court upon securing the presence of the accused, on hearing Additional Public Prosecutor and defence counsel, framed a sole charge for the offence punishable under Section 302 of I.P.C., explained the same to the accused in Telugu, he pleaded not guilty and claimed to be tried.

9. During trial, on behalf of prosecution, P.W. 1 to P.W. 8 were examined, marked Exs. P1 to P11, D1 and D2 and M.O. 1 to M.O. 6.

10. After closure of prosecution evidence, accused was examined under Section 313 of Cr.P.C., explaining the incriminating material that appeared against him, he denied the same and reported no defence evidence.

11. Upon hearing argument of both the learned Additional Public Prosecutor and learned defence counsel, considering the evidence on record, the Sessions Court recorded finding that the accused caused injuries on the body of Padma (deceased) which lead to her death, convicted and sentenced him as stated in the earlier para.

12. Aggrieved by the conviction and sentence passed by the Sessions Court, the present appeal is filed on various grounds under Section 374 (2) of Cr.P.C.

13. The first and foremost contention raised before this Court is that the accused had no motive to kill Padma (deceased) and apart from that in the absence of proof of alleged illicit intimacy and developing motive to kill Padma (deceased), the conviction and sentence passed by the Sessions Court is erroneous, since motive is not proved by satisfactory evidence.

14. The other contention urged before this Court is that the prosecution did not examine any independent witnesses like neighbours to prove either motive or actual commission of offence, establishing the circumstances which led to inference that the accused committed murder of his wife. It is also pointed out that when there are no eye witnesses to the occurrence recording conviction on the basis of theory of last seen and motive is unsustainable, more particularly, when there is no evidence that Padma (deceased) was last seen alive in the company of the accused soon before her death. Consequently, the theory of last seen alive soon before death is failed. If that is excluded, there is no evidence on record and requested to set aside the conviction and sentence passed against the accused under the calendar and judgment in Sessions Case No. 58 of 2012 dated 30.10.2012.

15. During hearing, the learned counsel for the appellant Smt. C. Vasundhara Reddy contended that the case of the prosecution is totally based on circumstantial evidence and when the links in the chain of circumstances are not established, recording of conviction against the accused finding him guilty for the grave offence of murder punishable under Section 302 of I.P.C. is an error apparent on the face of the record. The theory of last seen together was not substantiated and when such link is missing in the chain of circumstances, the accused is entitled for acquittal, extending benefit of doubt. She also contended that last seen theory by itself is not sufficient to record conviction against the accused, placed reliance on the judgment of the Apex Court in Gargi v. State of Haryana, (2019) 9 SCC (Criminal) 785 and requested to set aside the conviction and sentence passed against the accused finding him not guilty and acquit the accused for the offence punishable under Section 302 of I.P.C.

16. The learned counsel for the appellant also contended that recover of wrist ring (M.O. 5) from the possession of accused by itself is not a ground, when there is no evidence that the injuries referred in the postmortem certificate (Ex. P11) could have been caused with wrist ring (M.O. 5).

17. Whereas the learned Additional Public Prosecutor supported the judgment, since the evidence of M. Jayasri (P.W. 3) is sufficient to prove both motive and theory of last seen together. The evidence of V. Lova Raju (P.W. 2) corroborates the evidence of M. Revathi (P.W. 1). Hence, last seen alive in the company of the accused soon before death of Padma (deceased) is proved and the Sessions Court rightly convicted the accused, requested to dismiss the appeal affirming the conviction and sentence passed by the Sessions Court under the Calendar and Judgment in Sessions Case No. 58 of 2012 dated 30.10.2012.

18. Considering rival contentions, perusing the material available on record, the point for determination is:

Whether the accused caused injuries on the body of Padma (deceased) with an intention to kill her knowing that those injuries are sufficient to cause death in ordinary course, if so, whether the conviction and sentence imposed against the accused by the Sessions Court be sustained?

19. Section 374 Cr.P.C. conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this Court while exercising power under Section 374(2) Cr.P.C. is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e. accused and the respondent, unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Anr. v. State Of Gujarat, (2013) 15 SCC 263). Keeping the scope of Section 374(2) Cr.P.C. we would like to re-appreciate entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below.

20. POINT:

Admittedly, the case of the prosecution is purely based on circumstantial evidence. When the case of the prosecution is based on circumstantial evidence, each and every circumstance which completes the chain of links is to be established and the proved circumstances must complete every link in the chain. In case of failure to prove one of the links in the chain of circumstances, conviction cannot be sustained. The Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, circumstantial evidence held that, in a case of murder when the prosecution is relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be tested by touch-stone of law relating to circumstantial evidence laid down by Supreme Court (vide Syed Hakkim & another v. State, 2009 Cr. L.J. page 1891).

21. Similarly, in G. Parshwanath v. State Of Karnataka ., AIR 2010 S.C. page 2914, the Supreme Court is of the view that when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be established fully, individual chain of circumstances must be complete pointing out the guilt of accused, all proved facts must lead to inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts. In Rukia Begum Vs. State of Karnataka with Issaq Sait and another v. State of Karnataka with Nasreen v. State of Karnataka, AIR 2011 SC page 1585; Jagroop Singh Vs. State of Punjab, Inspector of Police, Tamil Nadu Vs. Balaprasanna, 2009(1) ALD (Crl.) page 113, P. Khadar Basha v. State Of A.P. 2009(1) ALD (Crl.) page 859 (AP), the same principle was reiterated.

22. The Supreme Court in Trimukh Maloti Kikran v. State of Maharashtra, 2006) 10 SCC 681, wherein the Supreme Court held as follows:

"In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence".

23. The prosecution mainly relied on the following circumstances:

Suspicion on the character of Padma (deceased);

Developing motive to kill Padma (deceased) and proclaimed the same in the presence of M. Jayasri (P.W. 3) and M. Divya (L.W. 6) who are daughters of Padma (deceased);

Padma (deceased) last seen alive in the company of the accused soon before her death;

The medical evidence to establish that the death of Padma (deceased) is unnatural;

Recovery of wrist ring (M.O. 5), on the confession made by the accused leading to discovery.

In view of the law declared by the Apex Court, it is for the prosecution to prove all the circumstances to establish every link in the chain of circumstances to record conviction of the accused.

24. The first and foremost contention raised by the learned counsel for the appellant is that Padma was not married by the appellant, but living together in one house along with M. Jayasri (P.W. 3) and M. Divya (L.W. 6) who are the daughters born through the former husband of Padma (deceased), since long time. But the appellant allegedly suspected Padma (deceased) on the ground that she developed illicit contact with some other person. Therefore, he developed a motive to do away with the life of Padma (deceased) and he openly proclaimed the same before M. Jayasri (P.W. 3) and M. Divya (L.W. 6), but no details of the person with whom Padma (deceased) developed illicit contact including the name of any paramour was stated, except a bald allegation in the evidence. M. Jayasri (P.W. 3) is the material witness to establish the motive attributed to the accused. M. Jayasri (P.W. 3) is the child witness and she was examined before the Sessions Court. She specifically testified that on 18.12.2011 her mother Padma (deceased) died and one Chitti Babu is her natural father and Padma (deceased) blessed with herself and M. Divya (L.W. 5), during the wedlock with Chitti Babu. After death of Chitti Babu, her mother married one Adi Narayana (accused herein). After their marriage, they are residing in one portion of a rented house in the ground floor. The owner of the house is residing in the first floor and the other portion of the first floor was occupied by the brother of the owner and by the side of their portion, one lady with her two children were living and her husband was working elsewhere and she is a vegetable vendor.

25. On 18.12.2011 herself along with her senior maternal aunt by name M. Revathi (P.W. 1), Nagamani (L.W. 2) and Satyavathi went to Rajahmundry to attend marriage of her senior paternal aunt's daughter Chandrakala. The marriage was performed during the evening and while they were all at Rajahmundry, V. Lova Raju (P.W. 2) telephoned Satyavathi informing that her mother Padma (deceased) was murdered by the accused herein. Immediately they returned to the scene of offence and found the dead body. It is specifically testified by M. Jayasri (P.W. 3) that during life time of her mother, her father used to return to the house in drunken state and was beating her mother on the ground that she had talk with neighbouring ladies and he did not allow her to go out from the house and whenever M. Jayasri (P.W. 3) and her sister M. Divya (L.W. 6) intervene to separate them, he beat M. Jayasri (P.W. 3) and her sister M. Divya (L.W. 6) indiscriminately. The accused used to beat Padma (deceased) indiscriminately on suspicion. Except narrating what had happened earlier and more particularly, about beating of her mother by the accused, on suspicion, no specific instance of beating on suspicion and whether suspicion was with reference to any illicit contact or otherwise. But the earlier para of the cross examination indicates that the mother of M. Jayasri (P.W. 3) used to talk to neighbouring ladies for which the accused did not relish and used to beat her. Therefore, on the basis of evidence of M. Jayasri (P.W. 3) with regard to accused developing motive, on account of suspicion cannot be believed.

26. Chinnipilli Lakshmana Reddy (P.W. 4) is working as Junior Assistant in Andhra University, he know the accused as he is the owner of the house, where the accused and Padma (deceased) were staying as tenants. He testified that accused used to return to the house in a drunken state every day, used to abuse and picking up quarrel with his wife regularly. On two or three occasions, he chastised the accused and directed him not to quarrel with his wife and not to commit any nuisance. He also demanded to vacate the house portion repeatedly.

27. Even this piece of evidence of Chinnipilli Lakshmana Reddy (P.W. 4) is also not directly pointing out suspicion on Padma (deceased) and picking up quarrel with her on account of her bad character. Therefore, the evidence of Chinnipilli Lakshmana Reddy (P.W. 4) is of no assistance to establish the motive.

28. Similarly, Chinnipilli Rambabu (P.W. 5) who is another tenant in occupation of the same building stated nothing to establish the motive attributed to the accused.

29. Turning to the evidence of M. Revathi (P.W. 1), she did not spoke anything about the motive developed by the accused to do away with the life of Padma (deceased). Similarly, the evidence of V. Lova Raju (P.W. 2) is also silent on the motive aspect. Therefore, except the ipse dixit of M. Jayasri (P.W. 3), without disclosing any details, there is absolutely nothing on record to establish the motive attributed to the accused to do away with the life of Padma (deceased).

30. One of the circumstances relied by the prosecution is the motive, but, motive is not a substantive piece of evidence, it is only a corroborative piece of evidence to complete the links in the chain of circumstances. Here, in fact, no motive was attributed to the accused to kill Padma (deceased). Even if, the prosecution failed to prove the motive part, it is not a strong circumstance to disbelieve the entire case of the prosecution, since motive is only a corroborative piece of evidence.

In Anil Rai v. State of Bihar, 2001(2) ALD (Cri.) page 446, the Apex Court held that the admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the Courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eyewitnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye-witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing.

From the principle laid down by the Hon'ble Apex Court, enmity by itself is not a ground to conclude that the accused is the person who perpetrated the murder. After developing enmity, the accused must develop motive to commit murder. However, motive by itself is not a ground to convict the accused and proof of motive is not the substitute for proof.

31. In view of the law declared, motive is not a substantive piece of evidence it is only a corroborative piece of evidence. According to Section 8 of the Indian Evidence Act, motive is relevant fact and it is one of the circumstances to complete the chain of circumstances. Motive is double-edged weapon. It may be a ground for committing a crime and it may also be a ground for falsely implicating the accused. Proof of motive may lend additional support to the prosecution, but it cannot make good the deficiency of the prosecution case.

In Suresh Chandra Bahri Vs. State of Bihar, AIR 1994 S.C. page 2420, the Apex Court held that, sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of offence.

32. Proof of motive is only one of the circumstances and it is not substantial evidence and such motive can be taken as additional link in the chain of circumstances. Therefore, proof or failure to prove motive attributed to the accused to kill Padma (deceased) is more or less academic, when the other circumstances are established by cogent and satisfactory evidence. Thus, the prosecution miserably failed to establish the motive attributed to the accused by cogent and satisfactory evidence, since the evidence of child witness is not corroborated by any independent testimony and the same is rejected.

33. The other circumstance relied on by the prosecution is that Padma (deceased) was last seen alive in the company of the accused soon before her death. According to the material on record, Padma (deceased) was brutally murdered by the accused during the early hours of 18.12.2011, when she was preparing to go to Rajahmundry to attend marriage. The incident allegedly occurred at 3:30 am on 18.12.2011 and as per the medical evidence of Dr. M. Taquiddin Khan (P.W. 8) the approximate time of death was within 24 to 36 hours prior to postmortem examination. The postmortem examination was commenced at 9:30 am on 19.12.2011 and concluded at 11:00 am on the same day. The approximate time given by Dr. M. Taquiddin Khan (P.W. 8), if calculated backwards, the death might have occurred at about 11:00 am on 18.12.2011 or 11:00 pm on 17.12.2011 or between 11:00 pm on 17.12.2011 to 11:00 am on 18.12.2011. Therefore, the proximate time of death specified by the witness, if accepted with reference to postmortem certificate (Ex. P11), Padma (deceased) might have died at 3:30 am on 18.12.2011.

34. Chinnipilli Lakshmana Reddy (P.W. 5) and Ch. Rambabu (P.W. 5) are the circumstantial witnesses examined by the prosecution to establish that Padma (deceased) was last seen alive in the company of accused soon before her death. According to the evidence of Chinnipilli Lakshmana Reddy (P.W. 4) on 18.12.2011 at about 7:00 am Padma did not call the neighbours to come to collect water from the tap. When the neighbours suspected, they unbolted the doors, entered into the house and found the dead body of Padma (deceased) on the bed with injuries. However, the evidence of Chinnipilli Lakshmana Reddy (P.W. 4) discloses that the husband of Padma came back to rented house on 17.12.2011 from Sabarimala, distributed Prasadam in the entire street. Chinnipilli Lakshmana Reddy (P.W. 4) saw the accused and Padma (deceased) while distributing Prasadam in the street, but did not find the accused after death of Padma (deceased). Chinnipilli Lakshmana Reddy (P.W. 4) did not speak as to the exact time when Padma (deceased) and the accused distributed Prasadam, except stating that on 17.12.2011 both wife and husband distributed Prasadam. In the cross examination, the learned counsel for the appellant could elicit that on 16.12.2011, M. Jayasri (P.W. 3) and M. Divya (L.W. 6) went to Rajahmundry to attend marriage of relatives, but could elicit nothing as to the exact time when Padma (deceased) was found alive in the company of the accused, except a bald statement.

35. Similarly, in the evidence of Ch. Rambabu (P.W. 5), he did not speak anything to establish the theory of last seen. Therefore, the evidence of Chinnipilli Rambabu (P.W. 5) is of no use to establish the theory of last seen together soon before death.

36. Turning to the evidence of M. Revathi (P.W. 1) and V. Lova Raju (P.W. 2), M. Revathi (P.W. 1) was at Rajahmundry and only on receipt of phone call from V. Lova Raju (P.W. 2), M. Revathi (P.W. 1) came back to the scene of offence at Visakhapatnam. Therefore, her evidence to establish theory of last seen is not believable.

37. Coming to the evidence of V. Lova Raju (P.W. 2), noticing the death of Padma (deceased) at about 7:30 am on 18.12.2011, when she did not call the neighbours to collect water from the tap, they opened the door, found the dead body, telephoned to M. Revathi (P.W. 1). But his evidence is silent to establish the theory of last seen, except stating that they are living together as wife and husband in the house.

38. The evidence at best available on record is the evidence of Chinnipilli Lakshmana Reddy (P.W. 4) who saw Padma (deceased) in the company of the accused while distributing Prasadam in the street on 17.12.2011. His evidence is silent as to the exact time of finding Padma (deceased) alive in the company of accused. Therefore, the theory of last seen together alive is not established. Even assuming for a moment that the circumstance of last seen together alive is established it is only a weak piece of evidence.

39. The circumstance of last seen together does not by itself and necessarily led to the inference that it was the accused who committed the crime. There must be something mere establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide (In Mohibur Rahman and Another v. State of Assam, AIR 2002 SC page 3064)

40. In Ashok v. State Of Maharashtra ., (2015) 4 SCC Page 393 their Lordships of Hon'ble Supreme Court held that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Their Lordships have held as under:-

"12. From the study of above stated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt."

41. The learned counsel for the appellant has drawn the attention of this Court to judgment in Gargi v. State of Haryana (1st referred supra) to contend that it is a weak type of evidence. In the above judgment, the Apex Court held that insofar as the 'last seen theory' is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. The Apex Court has explained the principle in Sawal Das v. State Of Bihar ., (1974) 4 SCC 193 in the following:-

10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused ......"

42. In the given set of circumstances, the last seen theory cannot be operated against the appellant only because she was the wife of the deceased and was living with him. The gap between the point of time when the appellant and deceased were last seen together and when the deceased was found dead had not been that small that possibility of any other person being the author of the crime is rendered totally improbable. In Sk. Yusuf v. State Of West Bengal ., (2011) 11 SCC 754, this Court has said:-

"21. 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."

43. Turning to the present facts of the case, the exact time of Chinnipilli Lakshmana Reddy (P.W. 4) finding Padma (deceased) alive in the company of the accused was on 17.12.2011. Except a bald allegation that they were seen in the street while distributing Prasadam on 17.12.2011 and on the basis such statement, it is difficult to infer that they were last seen before death. Even assuming for a moment that they were seen in the evening hours, the death allegedly took place in the early hours of next day i.e. 3:30 am on 18.12.2011 or even if the opinion of postmortem doctor is accepted, the death might have taken place at 11:00 pm on 17.12.2011. Therefore, there is a long gap of time between the time of Padma (deceased) last seen alive in the company of the accused and the death as per the prosecution case. The long gap of more than 12 hours approximately is sufficient to disbelieve the theory of last seen as there is proximity between Padma (deceased) last seen together alive in the company of the accused and the time of death of Padma (deceased) and commission of such brutal murder by entering into the house by any third party cannot be ruled out. Therefore, the prosecution miserably failed to establish the last seen theory.

44. The third circumstance relied on by the prosecution is medical evidence to establish that the death of Padma (deceased) is unnatural. The accused did not dispute the unnatural death of Padma (deceased) due to injuries found on her body, but denied his culpability. Therefore, it is not necessary to decide the cause of death. But the question is who caused injuries on the body of Padma (deceased) which led to death. Hence, we are not required to decide the exact cause of death of Padma (deceased) based on medical evidence.

45. The last circumstance relied on by the prosecution is recovery of wrist ring (M.O. 5), on the basis of confession made by the accused, after his arrest, leading to discovery. Ex. P4 is the mediators report dated 21.12.2011 drafted at 5:00 pm and Ex. P5 is the mediators report drafted at 6:30 pm on the same day which established recovery of wrist ring (M.O. 5), based on the confession leading to discovery.

46. Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26. The conditions necessary for invoking the aid of the Section are as follows:

a) there must be a discovery of a fact albeit relevant fact in pursuance of an information received from a person in police custody;

b) the discovery of such fact must be deposed to;

c) at the time of giving information the accused must be in police custody;

Then the effect is that so much of the information as relates distinctly to the fact thereby discovered is admissible. What is allowed to be proved is the information or such part thereof as related distinctly to the fact thereby discovered.

47. Discovery evidence is not substantive evidence (vide Dinakar v. State : AIR 1970 Bombay page 438].

Similarly, in Inspector of Police, Tamil Nadu Vs. Balaprasanna, 2009(1) ALD (Crl.)(SC) page 113, the Apex Court held as follows:

"Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of the Supreme Court. However, in almost all such decisions reference is made to the observations of the Privy Council in Pulukuri Kotayya vs. Emperor, : AIR 1947 PC 67. At one time it was held that the expression 'fact discovered' in the second is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kotayya's case. The various requirements of the section can be summed up as follows:-

1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

2) The fact must have been discovered.

3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.

4) The person giving the information must be accused of any offence.

5) He must be in the custody of a police officer.

6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."

In view of the principle laid down in the above decision, when a fact is discovered in pursuance of confession leading to discovery is only relevant piece of evidence, but it is not a substantive piece of evidence.

48. Recovery of wrist ring (M.O. 5) by itself is not substantive evidence. However, it is a corroborative piece of evidence to complete the links in the chain of circumstances. The prosecution examined the mediator as Chinnipilli Rambabu (P.W. 5) to establish the same whose evidence is consistent. Therefore, prosecution was able to establish seizure of wrist ring (M.O. 5) by cogent and satisfactory evidence and the Sessions Court rightly believed recovery of wrist ring (M.O. 5) based on mediators report (Ex. P4) drafted at 5:00 pm under the cover of mediators report (Ex. P5) drafted at 6:30 pm.

49. As discussed above, prosecution was able to establish only two circumstances out of four, but the proved circumstances i.e. unnatural death due to injuries found on the body of Padma (deceased) and recovery of wrist ring (M.O. 5) based on confessional statement, leading to discovery under Ex. P5 drafted at 6:30 pm are not sufficient, since the prosecution failed to establish the main link i.e. last seen theory, thereby, failed to establish the live links in the chain of circumstances so as to draw an inference from the proved circumstances that the accused is the person who caused injuries which led to death of Padma (deceased), as the evidence is compatible with innocence. When the prosecution failed to establish the links in the chain of circumstances unerringly pointing the complicity of the accused, recording conviction of the accused by the Sessions Court is an apparent illegality committed by it and consequently, the conviction and sentence passed against the accused under Calendar and Judgment in Sessions Case No. 58 of 2012 dated 30.10.2012 is liable to be set aside, finding the accused not guilty for the offence punishable under Section 302 of I.P.C., since the prosecution case is totally based on circumstantial evidence and failed to establish the first two circumstances, though established the other two circumstances i.e. unnatural death and recovery evidence and that the recovery evidence is not a substantive piece of evidence as held in pursuance of judgments referred supra.

50. In the result, the Criminal Appeal is allowed setting aside the conviction and sentence recorded by the Sessions Judge, Mahila Court, Visakhapatnam vide judgment, dated 30.10.2012, in Sessions Case No. 58 of 2012 against the appellant/accused for the offence punishable under Section 302 of I.P.C. and accordingly, he is acquitted for the said charge. The appellant/accused is ordered to be released forthwith, if he is not required in any other crime. The fine amount, if any, paid by the appellant/accused shall be refunded to him.

51. Consequently, miscellaneous petitions, pending if any in the appeal, shall stand closed.