PARASA KOTESWARARAOversusEEDE SREE HARI & ORS.

                        [2017] 2 S.C.R. 89



                  PARASA KOTESWARARAO                                  A
                                v.
                   EEDE SREE HARI & ORS.
                 (Criminal Appeal No. 337 of2006)
                       FEBRUARY 28, 2017                               B

                [R. F. NARIMAN AND
           MOHAN M. SHANTANAGOUDA~, JJ.]
      Pena/Code, 1860:
       s. 302 - Murder - Circumstantial evidence - Conviction by       c
trial court on the motive, last seen theory, recovery, absconding of
accused and false information given by accused No. 2 about the
whereabouts of the deceased - Acquittal by High Court - On
appeal - Acquittal order upheld on the ground that chain of
circumstances not complete.
                                                                       D
      Dismissing the appeal, the Court
       HELD: The High Court judgment cannot be characterized
as perverse. Being an appeal against acquittal, it is difficult to
say that the view of the High Court is not a possible view. In the
present case, the motive for the crime has not been sufficiently       E
made out. Indeed, the Sessions Court itself disbelieved a number
of witnesses. PW-1, who alone is relied upon by the Sessions
Court for last seen theory only states that he has heard PW-3
telling him about the accused being last seen with the deceased.
This also would be in the realm of hearsay, and "last seen" also
cannot be said to be made out. Though recovery may have taken          F   \
place, the extra judicial confessions to PWs 6 and 7, in any case
being weak evidence, cannot be relied upon in the facts and
circumstances of the case. It seems that PW-6 was a stock witness
and the fact that the confession was made at the Police Station
renders it inadmissible in evidence. PW-7 also cannot be               G
believed. The cycle which was stated to have been ridden by the
accused, by which they carried the dead body, has not been
recovered. All these factors clearly go to show that ultimately,
despite recovery, it is very difficult to pin-point recovery to the
accused having committed the crime. Also the FSL Report has
                                                                       H
                                 89
90            SUPREME COURT REPORTS                          [2017]2 S.C.R.


A    disclosed that no blood was found on any of the recovered
     materials, whereas blood was slated to have been both on the
     knife as well as on mud, grass etc. The mere fact that the two
     accused may have absconded immediately and the fact that false
     information may have been given about the whereabouts of the
     deceased are not enough to complete the chain of circumstances,
B
     in a case like the present one. [Paras 10, 11, 12, 13, 14, 15) (92·
     D-H; 93-A-E)
           P Eknath vs. Amaranatha Reddy@ Babu & Anr. 2017
           AIR 1160; Ashok v. State of Maharashtra [2015) 6 SCR
           375 : (2015) 4 SCC 393; Mohibur Rahman and Anr. v.
c          State of Assam (2002) 6 SCC 715 - distinguished.
                               Case Law Reference
     2017 AIR 1160                      distinguished           Para6
     (2015) 6 SCR 375                   distinguished           Para 17
D
     (2002) 6 sec 715                   distinguished           Para 18
           CRIMINAL APPELLATE JURISDICTION : Cri.minal Appeal
     No. 337 of2006
           From the Judgment arid Order dated 08.11.2005 of the High Court
E    of Judicature of Andhra Pradesh at Hyderabad in"Criminal Appeal No.
     890of2003.                                                      ·
          D. Bharat Kumar, T. Baskar Gowtham, R. P. Bansal, Abhijit
\
     Sengupta, Ad vs. for the Appellant.                   '
         Guntur Prabhakar, Ms. Prerna Singh, Tushar G. Rao, Ms. Promila,
F · Azhagesan, Advs. for the Respondents.
           The Judgment of the Court was delivered by
            R. F. NARIMAN, J. I. The present case involves a gruesome
     murder. The head was actually decapitated from the body, was put into
G    a gunny sack, and thrown into a canal roughly 10 kms. away from the
     place of the murder. All this is supposed to have taken place on
     15.12.2000, and suffice it to say that the Court of S_essions outlined a
     large number of points, all of which can be placed under five heads,
     )lamely, i) the motive for killing the deceased; ii) last seen theory; iii)
     recovery of the dead body in a gunny sack together with clothes and a
H    knife; iv) the fact that the two accused persons, who were stated to be
    PARASA KOTESWARARAO v. EEDE SREE HARi & ORS.                              91
                 [R. F. NARIMAN, J.]

 brothers, were absconding after the incident and v) the fact that Accused    A
 No.2 gave false information to PW-I, who is the father of the deceased,
 as to the whereabouts of the deceased.
        2. The Sessions Court, on a combination of the aforesaid five
 factors, ultimately held the two accused guilty of murder and sentenced ·
.them to imprisonment for life.                                            B
         3. In appeal to the High Court of Judicature, Andhra Pradesh at
  Hyderabad, the Division Bench of the High Court found that the case
  being one of circumstantial evidence, the chain is not complete; all that
  remains is suspicion which cannot take the place of proof beyond
. reasonable doubt. Accordingly, the High Court acquitted the two accused.    c
  Being aggrieved, the Complainant preferred this appeal, by way of special
  leave.
         4. We have heard Mr. D. Bharat Kumar, the learned c.ounsel
   appearing for the appellant-Complainant and Mr. Tushar G Rao, learned
   counsel appearing for the accused/Respondent Nos. I and 2 at               D
· ·considerable length.
        5. It is the case of the Complainant that motive has clearly been
 made out by atleast three witiiesses, the last seen theory has been made
 out, recovery has been effected, the two accused persons have been
 found absconding and the false information given cumulatively would          E
 complete the chain of circumstances inevitably pointing to the two accused
 having committed the crime.
        6. Learned counsel appearing for the appellanhComplainant also
 cited before us three judgments of this Court, two of which deal with the
 last seen theory and the third a recent concurringjudgment by one of us,  F
 namely, R.F. Nariman, J., in C_rl. Appeal No. 1792/2013 (P. Eknath vs. •
 YAmaranathaR,eddy@ B;bu & Anr.), in which it has been found that
 iheHigh Court has ignored vital pieces of evidence.
         7. The learned counsel appearing for the respondents, on the
 other hand, took us through the evidence and, according to him, no motive
                                                                              G
 can be made out for the reason that PW-5, who is the only witness
 competent to speak of motive has been declared hostile and, in fact
 states that there were no illicit relations between the lady concerned and
 the deceased.
        8. He also states that the last seen theory cannot be said to be
                                                                              H
    92                SUPREME COURT REPORTS                        (2017] 2 S.C.R.


    A    established in the present case inasmuch as PW-I, who is the only witness
         relied upon by the Sessions Court, has not, in fact, seen the accused
         together with the deceased but was told this by his brother who is PW-
         3, who, in turn, has not been a credible witness. Thirdly, according to the
         learned counsel, the extra judicial confession made to PWs 6 and 7 must
         be discarded against the accused as PW-6 is a stock witness who has
    B
         dealt with 25 cases on his own admission, and the so-called extra judicial
         confession was made in the Police Station itself.
•
                9. Equally, so far as PW-7 is concerned, he also appears to be a
         stock witness and cannot be believed. This being the case, even though
         recovecy may have taken place, there is nothing whatsoever connecting
    c    the recovery to the two accused who were said to have committed the
         offence. Also, according to him, the mere fact that the two accused
         may have been absconding cannot by itself take the matter very far,__
         Neither can the fact that false information was given as to the
         whereabouts of the deceased by accused No.2 to PW-I.
    D           I 0. Having heard the learned counsel appearing for the parties,
         we are of the view that it is very difficult for us to characterize the High
         Court judgment as perverse. Also, being an appeal against acquittal, it is
         equally difficult for us to say that this is not a possible view.
                11. In our opinion, it seems that the motive for the crime has not
    E    been sufficiently made out. Indeed, the Sessions Court itself disbelieved
         a number of witnesses, and the very fact that PWs 1,2 and 4 were told
     ·-·about the so-called illicit relationship either immediately after the crime
         was committed or at that time would lend credence to what is stated by
         learned counsel for the respondents. Further, it cannot be forgotten that
    F PW-5, who was a witness, being a person who lived 80 ft. away from
         tl1e house of the deceased, turned hostile and maintained his view that
         there was, in fact, nothing illicit between the deceased and the lady
         concerned. Motive, therefore, has not been proved beyond reasonable
         doubt.
                12. The same goes for the last seen theory. PW-I, who alone is
    G
         relied upon by the Sessions Court for this again only states that he has
         heard PW-3 telling him about the accused being last seen with the
         deceased. This also would be in the realm of hearsay, and "last seen"
         also cannot be said to be made out.
                 .~

                13. Learned counsel appearing forthe respondents is also correct
    H
   PARASA KOTESWARARAO v. EEDE SREE HARi & ORS.                              93
                [R. F. NARIMAN, J.]

in stating that.though recovery may have take~ place, the extra judicial     A
confessions to PWs 6 and 7, in any case being weak evidence, cannot
be relied upon in the facts and circumstances of the case.
        14. According to us, it does seem that PW-6 is a stock witness
and the fact thatthe confession was made at the Police Station renders
it inadmissible in evidence. PW-7 also cannot be believed for the reason     B
that it is very difficult to subscribe to the fact that the dead body was
dragged for 10 kms. to a canal, when it has been stated, in cross-
examination, that another canal exists very close to the scene of the
occurrence of the incident. Also, we must not forget that the cycle
which was stated to have been ridden by the accused, by which they
carried the dead body, has not been recovered. All these factors clearly
                                                                             c
go to show that ultimately, despite recovery, it is very difficult to pin-
point recovery to the accused having committed the crime. It also cannot
be forgotten that the FSL Report has disclosed before us that no blood
 was found on any of the recovered materials, whereas blood was stated
 to have been both .on the knife as well as on mud, grass etc.               D
      15. This, being the case, the mere fact that the two accused may
have absconded immediately and the fact that false information may
have been given about the whereabouts of the deceased are not enough
to complete the chain of circumstances, in a case like the present one.
        16. It only remains for us to deal with the three judgments cited     E
,by the learned counsel appearing for the appellant.
       17. In Ashok vs. State o(Maharashtra, (2015) 4 SCC 393, in
the case of last seen, the prosecution is exempted from proving the
exact happening of the incident as the accused himself would have special
kn6wledge of such incident. The said judgment obviously does not apply        F
to the present case inasmuch as last seen itself has not been proved.
       18. Another judgment in Mohibur Rahman and Another vs. State
of Assam, (2002) 6 SCC 715, was cited for the proposition that three
circumstances taken together, including last seen, would inevitably point
to the accused having committed the crime. This case also does not            G
apply on facts as we have pointed out that neither motive nor last seen
nor the extra judicial confessions pursuant to which recovery has taken
place have been proved beyond reasonable doubt on the facts of the
present case.
       19. A recent concurringjudgment by one ofus (R.F. Nariman, J.)         H
94              SUPREME COURT REPORTS                         [2017] 2 S.C.R.



A    was also referred to. That case also dealt with a completely different
     fact-situation in which it was found that there were at least eight factors
     whieh led this Court to set aside the judgment passed by the Division
     Bench oftheAndhra Pradesh High Court, on the ground that cumulatively
     all eight factors would lead to the conclusion that the High Courtj udgment
     was perverse.
B
            20. We have already stated that it is impossible for us on the .fact
     situation in the present case to characterize the present judgment as
     such.
            21. Accordingly, the appeal is dismissed.
c
     Kalpana K. Tripathy                                         Appeal dismissed.