Point of Law: There are no witnesses who have seen deceased and appellant prior together prior to his death, it cannot be inferred that appellant in any manner is responsible for death of deceased only on basis of blood stains being found on wearing apparel of accused.

JUDGMENT :

K. SURENDER, J.

1. The appellant is convicted for the offence under Section 304 Part-II of IPC and sentenced to undergo rigorous imprisonment for a period of four years vide judgment in S.C. No. 591 of 2008 dated 17.03.2008 passed by the I Additional Sessions Judge, Karimnagar. Aggrieved by the same, present appeal is filed.

2. The case of the prosecution is that the deceased is the son of PW-1. The deceased and the appellant went to Punjab for doing labour work and they came back. There were disputes between the appellant and the deceased at Punjab regarding lifting of cotton bags. The son of PWs. 1 and 2 was found dead on 15.02.2008 at a club and the Manakundur, Karimnagar District registered a case under Section 302 of IPC suspecting that it was the appellant who had killed the deceased by beating him on his head with stone keeping previous enmity in mind. The police having concluded investigation filed charge sheet for the offence under Section 302 of IPC against the appellant.

3. The learned Sessions Judge examined PWs. 1 to 17 on behalf of the prosecution and marked Exs.P1 to P14 and also M.Os.1 to 9 during the course of trial.

4. The learned Sessions Judge found that the appellant is liable to be convicted under Section 304-II IPC on the basis of the circumstantial evidence.

5. The learned counsel for the appellant submits that this is a case of circumstantial evidence and the prosecution failed to prove that any kind of disputes that were in between the appellant and the deceased. He submits that the prosecution witnesses never saw the deceased and the appellant together prior to his death. There are no eye witnesses to the incident and only on the basis of the alleged recovery of stone and clothing, the learned Sessions Judge came to a conclusion that the appellant was guilty for the offence under Section 304 Part-II IPC.

6. Learned counsel for the appellant relied upon the judgment of the Division Bench of this Court in the case of State vs. Junugari Devender, 2018 (1) ALD (Crl.) 74 wherein it is held as follows:

“51. On the aforestated facts, the case of the prosecution, resting solely on circumstantial evidence, cannot be accepted. The prosecution failed to establish an unbroken chain of events unerringly pointing to the guilt of A1 and A2 obviating any scope for inferring their innocence On the other hand, the investigation seems to have been engineered and manipulated from the start as is evident from the delay in registration of the FIR and the ambiguity as to when A1 and A2 were apprehended.

52. Further, this is not a case attracting the ‘last seen’ theory as the evidence of PW-2, which purports to bring in the said theory, cannot be treated as creditworthy. As pointed out by the Supreme Court in Nizam vs. State of Rajasthan, 2015 (2) ALD (Crl.) 898 (SC) : (2016 ) 1 SCC 550, the ‘last seen’ theory should be applied 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 last seen. In the present case, the evidence of PW-2 fails to inspire confidence and the circumstances in which he claims to have been at the scene of the offence are not believable. The question of applying the ‘last seen’ theory to the present case therefore does not arise.”

7. The present case is of one of circumstantial evidence. In the case of circumstantial evidence, the circumstances have to be proved beyond reasonable doubt to infer the guilt of accused. The Hon’ble Supreme Court in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra, 1984 AIR 1622 : 1985 (1) SCR 88 held as follows:

“The following conditions must be fulfilled before a case against an accused can be said to be fully established by circumstantial evidence:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to sa