HIGH COURT OF ANDHRA PRADESH AT AMARAVATI **** CRIMINAL APPEAL No.1118 of 2017 Naga Bhushanam Gopi, S/o K.Nagabhushanam, Age:45 Yrs, Caste: Yadava, D.No.14-561, Ground Floor, Krishnareddy Nagar, Auto Nagar, Tirupathi, D.No.17, M.R.K.Nagar Vempatty Village, Thiruvallur Taluk & District, Tamilnadu State …Petitioner Versus The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court …Respondent **** DATE OF JUDGMENT PRONOUNCED : 09.05.2025 2 SUBMITTED FOR APPROVAL: THE HONOURABLE SRI JUSTICE K SURESH REDDY AND THE HONOURABLE JUSTICE DR. Y.LAKSHMANA RAO 1. Whether Reporters of Local Newspapers may be allowed to see the Judgment? Yes/No 2. Whether the copy of Judgment may be marked to Law Reporters/Journals? Yes/No 3. Whether His Lordship wish to see the fair copy of the Judgment? Yes/No __________________ K.SURESH REDDY, J _______________________ Dr. Y.LAKSHMANA RAO, J 3 * THE HONOURABLE SRI JUSTICE K SURESH REDDY AND THE HONOURABLE JUSTICE DR. Y.LAKSHMANA RAO + CRIMINAL APPEAL No.1118 of 2017 % 09.05.2025 # Between: Naga Bhushanam Gopi, S/o K.Nagabhushanam, Age:45 Yrs, Caste: Yadava, D.No.14-561, Ground Floor, Krishnareddy Nagar, Auto Nagar, Tirupathi, D.No.17, M.R.K.Nagar Vempatty Village, Thiruvallur Taluk & District, Tamilnadu State …Petitioner Versus The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court …Respondent ! Counsel for the Petitioner : Sri M.Chalapati Rao ^ Counsel for the Respondent : Sri M.Venkata Ramana < Gist: > Head Note: 4 ? Cases referred: 1) 1979 AIR SC 1360 2) 1984 AIR 1622 3) AIR 1956 SC 404 4) AIR 1959 All 598 5) AIR 1961 SC 264 6) (2001) 7 SCC 690 7) (1953) 1 SCC 86 5 THE HONOURABLE SRI JUSTICE K SURESH REDDY AND THE HONOURABLE JUSTICE DR. Y.LAKSHMANA RAO CRIMINAL APPEAL NO: 1118 of 2017 JUDGMENT: (Per Hon’ble Justice Dr.Y.Lakshmana Rao) This Criminal Appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.,’) challenging the judgment dated 27.01.2016 in Sessions Case No.90 of 2015 passed by the learned Special Sessions Judge – cum – IV Additional District &Sessions Judge, Chittoor at Tirupati, whereby and where-under the appellant/ Naga Bhushanam Gopi/Accused No.1 was convicted under Section 235(2) of ‘the Cr.P.C.,’ for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for brevity ‘the I.P.C.,’) and sentenced to life imprisonment under Section 302 of ‘the I.P.C.,’ and three years imprisonment under Section 201 of ‘the I.P.C.’ 2. Provenance of the case of the prosecution, in brief, is that the appellant and Accused No.2 were close friends. P.W.1/Radhakrishna Srinivasulu is the younger brother of deceased/R.Ravi Kumar. Ravi Kumar, his mother Vanaja and his younger brother Srinivasulu @ Seenu were doing photo lamination work. Wife of deceased estranged him about a year prior to 26.07.2014, because of ill-feelings and she had been residing along with her two children at her parents’ house in Chennai. (a) The appellant was residing alone in the neighboring portion of deceased in the same building as tenant. The appellant was doing finance 6 business by lending loans to the people for interest. The appellant and Ravi Kumar became close friends and they used to consume liquor at the portion of the appellant frequently. Now and then Ravi Kumar used to sleep in the portion of the appellant during night whenever they consume liquor. (b) On 26.07.2014 at about 09.30 P.M., the appellant and Ravi Kumar wanted to consume alcohol in the house of appellant. As there was no supper to appellant, Ravi Kumar had gone to his house and requested his mother P.W.2-Vanaja to provide meals in a carrier for appellant. Accordingly, Vanaja had arranged meals, and Ravi Kumar took the meals carrier and went to the appellant. Later the appellant and Ravi Kumar consumed liquor. When Ravi Kumar had spoken badly about the wife of appellant, the appellant bore a grudge against Ravi Kumar and picked up a quarrel with him. They fought with each other. In the scuffle, Ravi Kumar took out a knife and tried to stab the appellant. The appellant grew wild, threatened him with dire consequences as to how he was dare enough to attack, and picked out the same knife from the hands of Ravi Kumar, pushed him down on the ground with an intention to do away him as Ravi Kumar spoke badly about his wife. The appellant stabbed Ravi Kumar twice on his chest and caused severe bleeding injuries, as a result, he died on the spot. (c) The appellant kept the dead body of Ravi Kumar at his house. On the next day i.e., on 27.07.2014 morning, the appellant contacted Accused No.2 over mobile and narrated about doing away of Ravi Kumar. Accused No.2 instead of chastising the appellant encouraged him saying that he would 7 come and pacify the problem. On 27.07.2014 at about 09.30 A.M., Accused No.2 reached the house of Accused No.1 and found the body of the deceased in a pool of blood. Then, the appellant and Accused No.2 decided to conceal the dead body with an intention to disappear the evidence of the offence. The appellant brought a crow bar and spade. The appellant and Accused No.2 tried to dig a pit, but as the floor was constructed with a concrete, it was difficult for them to dig the pit to bury the dead body. The appellant brought a gunny bag and jute thread with the intention of concealing the dead body in a gunny bag and throw it somewhere during nighttime without being noticed by anyone. The appellant and Accused No.2 had kept the dead body in the gunny bag tied it firmly with jute thread. They tried to secure for a vehicle to shift the dead body to somewhere, but no vehicle was available on that night to shift the dead body. As they were unable to take out the dead body, the appellant and Accused No.2 kept the dead body in the gunny bag in the house of the appellant itself. Accused No.2 later went to Srikalahasti. The appellant slept in his portion on the night of 27.07.2014 by keeping the dead body in the gunny bag. (d) As Ravi Kumar/deceased was not being seen since 26.07.2014 night onwards, his relatives P.W.1, P.W.3 and P.W.4 searched for him in Tirupati and surrounding places, but in vain. They also enquired with appellant about the deceased, but the appellant replied that he did not know the whereabouts of the deceased. 8 (e) On 28.07.2014 from morning, foul smell was emitting from the portion of the appellant. On suspicion, P.W.1 and locality people had gone to the house of the appellant at about 10.30 A.M., and found the appellant was going away from his house by locking the doors from outside. P.W.1 questioned the appellant as to why foul smell was emitting from his portion. The appellant informed that as he was going out, he handed over the keys of his house to P.W.1, asking him to verify the house and skulked away from the place. P.W.1, P.W.3, P.W.4, P.W.5, L.W.7/M.Thulasi and others opened the door of the house of the appellant, entered and found the dead body of Ravi Kumar was kept in a gunny bag, from where the head was projected out. It was noticed that the dead body was highly decomposed, and froth was oozing from it. Immediately, they tried to apprehend the appellant, but in vain, as he had already escaped. (f) On the report lodged by P.W.1, a case in Crime No.195 of 2014 for the offences under Sections 302 and 201 of ‘the I.P.C.,’ was registered under Section 154 of ‘the Cr.P.C.,’ on 28.07.2014 at about 11.00 A.M., by P.W.11/G.Rajasekhar, Inspector of Police, Alipiri Police Station. He had taken up the investigation, examined the scene of offence, prepared sketch, and seized bloodstained gauze cloth collected from the pool of blood, Control gauze cloth under the cover of Mahazarnama attested by mediators P.W.8/Soore Sanakara Narayana and P.W.6/S.K.Iqbal Basha on 28.07.2014. The Investigating Officer conducted inquest over the cadaver of the deceased at the scene of offence, examined the witnesses and forwarded the body of 9 the deceased to P.W.9/Dr. K.Mamatha, Professor & Head, Department of Forensic Medicine, S.V. Medical College, Tirupati for Autopsy. P.W.11 seized the blood-stained clothes of the deceased and gunny bag under the cover of police proceedings on 29.07.2014. (g) P.W.12/Ch.Narasimha Rao, Inspector of Police, Tirupati West Police Station, in-charge of Alipiri Police Station, Tirupati, had arrested the appellant and Accused No.2 and recorded their confessional statements under the cover of Mahazarnama attested by the mediators P.W.10/M.Sivanarayana and L.W.14/Thenepalli Chandraiah and seized the knife at thorny bushes near Auto Nagar, Renigunta Road, Tirupati on being led by the appellant under the cover of Mahazarnama dated 05.11.2014 attested by P.W.10 and L.W.14 and sent the appellant and Accused No.2 to the learned Judicial Magistrate for judicial custody. Learned Trial Court framed charges against the appellant and Accused No.2 for the offences punishable under Sections 302 and 201 of ‘the I.P.C.,’ against the appellant and under Section 201 of ‘the I.P.C.,’ against Accused No.2, under Section 228 of ‘the Cr.P.C.,’ read over the charges and explained them to the appellant and Accused No.2 respectively, for which they had denied the charges, pleaded not guilty and claimed to be tried. 3. The prosecution examined PWs 1 to 13 and got marked exhibits P.1 to P13 and M.O.s. 1 to 4. The remaining witnesses cited in the charge sheet viz., Jagadeesh Meghala/L.W.5, M.Thulasi/L.W.7, R.Chandrasekhar/L.W.11, R.Lakshmipathi/L.W.12, Thenepalli Chandraiah/L.W.14, Dr.A.Thulasiramudu, 10 Assistant Director, Regional Forensic Science Laboratory, Tirupati/L.W.16, Dr. V.Nagaraju, Scientific Officer, Regional Forensic Science Laboratory, Tirupati/L.W.17 and V.Syam Sundar/LW.18 were given up by the prosecution. (a) The appellant and Accused No.2 were examined under Section 313 of ‘the Cr.P.C.,’ after closure of the evidence of the prosecution, informing them about the incriminating material available against them. The appellant and Accused No.2 denied it and pleaded no defence. (b) After hearing of the prosecution and the learned counsel for the appellant and accused No.2, the learned Trial Court convicted and sentenced the appellant and Accused No.2 as stated supra. 4. We have heard Sri M.Chalapathi Rao, the learned Legal Aid Counsel who, while reiterating the grounds of appeal, submitted that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt as a false case was foisted against the appellant; the learned Trial Court failed to note that the appellant was 45 years of age and as the deceased, who was relatively younger in age with robust body, himself attacked the appellant.To escape from the fatal blows, the appellant fled away from his house before the deceased was killed; learned Trial Court erred in relying on untrustworthy evidence of witnesses; learned Trial Court wrongly interpreted the presumption under Section 106 of the Indian Evidence Act, 1872 (for short ‘the Act’); there was no corroborative evidence and the medical evidence against the appellant; learned Trial Court convicted the appellant only on 11 suspicion; confession of the appellant was hit by Section 25 of ‘the Act’; there was a delay of three days in lodging the report with the police; as there was no eye witness and the confession was hit by the provisions of ‘the Act’;the chain of circumstances are not properly linked; learned Trial Court ought to have held that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt; and that finally urged to set aside the conviction and sentence. (a) Alternatively, it is submitted that as the appellant had not entertained any guilt intention to do away the life of the deceased, it was the deceased who at the first instance tried to attack with a knife on the appellant, the appellant in order to invoke the right of private defence took away knife from the deceased and stabbed him without any intention to kill him. Therefore, he is not liable for punishment under Section 302 of ‘the I.P.C.,’ and urged to alter the conviction and sentence from Section 302 of ‘the I.P.C.,’ to Section 304 of ‘the I.P.C.’ Further, it is argued that the conviction and sentence for the offence under Section 201 of ‘the I.P.C.,’ cannot be imposed against the appellant being the principal offender. (b) Section 201 of ‘the I.P.C.,’ is only to be invoked against Accused No.2 who allegedly caused disappearance of the evidence.Therefore, it is urged that the conviction under Section 201 of ‘the I.P.C.,’ against the appellant is unwarranted and improper and the same is liable to be interfered and set aside. It is, eventually, submitted that as the appellant has been undergoing imprisonment in Central Prison, YSR Kadapa District for about 12 12 years, 8 months and 17 days as on 16.04.2025 and lenience may be shown towards the appellant as he has been facing mental agony and trauma of protracted litigation for more than one decade as his right to get speedy trial, is being infringed, as per the decision of Hussainara Khatoon v. Home Secretary, State of Bihar 1 ,and as guaranteed under Article 21 of the Constitution of India. It is implored that the appellant may be sentenced to imprisonment, to which he had already undergone by altering conviction and sentence from Section 302 of ‘the I.P.C.,’ to Section 304 of ‘the I.P.C.,’ in the interest of justice. 5. Per contra, Mr.M.VenkataRamana, the learned Additional Public Prosecutor vehemently argued that the prosecution had proved the guilt of the appellant beyond reasonable doubt. The chain of circumstances from the corpus delicti to discovery of the knife at the instance of the appellant are complete and connecting with each other cohesively and as the prosecution proved the guilt of the appellant beyond reasonable doubt, burden lies on the appellant to disprove under Section 106 of ‘the Act’ that he had not committed the murder. The learned Trial Court having appreciated the evidence on correct perspective, found the appellant guilty of the offence under Sections 302 and 201 of ‘the I.P.C.,’ and appropriately sentenced him. There are no grounds let alone valid grounds to interfere with the conviction and sentence and set aside them. Therefore, it is urged that the appeal may be dismissed. 11979 AIR SC 1360 13 6. Thoughtful consideration is bestowed on the arguments advanced by the learned Legal Aid Counsel and the learned Additional Public Prosecutor. 7. We have carefully perused the entire material. 8. Now the point for consideration is: “Whether the judgment dated 27.01.2016 in Sessions Case No.90 of 2015 on the file of the learned Special Sessions Judge-cum- IV Additional District & Sessions Judge, Chittoor at Tirupati, is valid, legal, proper and correct or it is required to be interfered and set aside, if so, on what grounds, to what extent and to what relief?” 9. Point: The evidence of P.W.1, the de facto complainant and brother of the deceased, was that the deceased was not found for about a few days. P.W.1 deposed that on 28.07.2014 at about 7.30 A.M., or 08.00 A.M., some foul smell was emitting from the house of the appellant. Accused No.2 told him that a rat might have died in his house, therefore foul small was emitting. At that time, the appellant was going outside after locking his house. P.W.5/Santhamma, owner of the house of appellant, who was also residing in the same premises, asked PW.1 to bring appellant as she wanted to search the house of the appellant. PW.1 went to the appellant and asked him to come, but the appellant refused to come and threw away the keys of his house. PW.1, P.W.5 and neighbours opened the lock of the house of the appellant and found a gunny bag. They noticed that the head and shirt collar of the deceased came out from the gunny bag to identify that it belonged to his elder brother. PW.1 and P.W.5 made a phone call to the police informing them about the murder. The police came to the house of the appellant and 14 brought out the dead body. P.W.1 testified that, Ex.P1 was the report lodged by him to the police. He was also examined by the police under Section 161 of ‘the Cr.P.C.,’ and recorded his statement. P.W.1 was asked by the police to identify whether the dead body is that of his elder brother. P.W.1 found that his elder brother was stabbed to death on either side of the stomach. In fact, P.W.1 is not an eyewitness to the offence. It is admitting that the deceased used to consume liquor every day with other friends and due to disputes between his elder brother/Ravi Kumar and his wife, his wife left the company of Ravi Kumar along with children. P.W.1 admitted that in the absence of the appellant some of his friends used to come to the house of the appellant. 10. PW.2, who is the mother of PW.1, is also not an eyewitness. However, she stated that Ravi Kumar used to reside with her and P.W.1 in the same portion, after his wife left his company. Ravi Kumar had asked his mother to prepare food, and he took food to the neighbor of his house. PW.2 did not identify the appellant in the Court Hall, and she deposed abysmal ignorance. Therefore, she was declared hostile. In the cross-examination by the prosecution also, she did not support the case. Her statement of Section 161 of ‘theCr.P.C.,’ was marked as Ex.P2. There is a strong circumstance through the evidence of P.W.2 that on 26.07.2014 at about 09.30 P.M., the deceased had taken meals carrier and went to the house of appellant. As per the learned Trial Court, failure on the part of P.W.2 in identifying the appellant in 15 the open Court Hall was because of her being 65 years old and having poor eyesight. 11. PW.3, the elder brother of the deceased, is also not an eyewitness. Yet, he stated that he witnessed the dead body of his brother in the house of the appellant in a gunny bag. 12. PW.4, who is son of P.W.3, testified that on 28.07.2014 at about 09.30 A.M., or 10.00 A.M., his parents and himself went to the house of appellant and enquired about a foul smell coming from the house of the appellant. The appellant replied that there was no foul small emitting and he locked the doors before going away. PW.4 stated that the neighbours and PW.2 were called and informed that there was foul small coming from the house of the appellant. The house owner asked them to bring the appellant back. PW.1 went to the appellant and asked him to return to his house, but the appellant replied that he got urgent work and while going away he gave keys to him. Thereafter, P.W.1 and neighbours opened the doors of the house of the appellant and found a gunny bag with the dead body of Ravi Kumar projecting head towards outside. There is another strong circumstance from the evidence of P.W.4. Though P.W.4 is not an eyewitness to the occurrence, he noticed that foulsmell was emitting from the house of the appellant and he noticed the dead body of Ravi Kumar was found in the house of the appellant on 28.07.2014. 16 13. Further, the evidence of P.W.5, albeit not an eyewitness, but the owner of the appellant’s house, testified that the appellant was residing in one portion of her house for rent and in the back portion of the appellant, the deceased was residing. P.W.5 is residing in the upstairs portion. On 28.07.2014 at about 07.00 A.M., as a foul smell was emitting somewhere, she asked the opposite house inmates as to why the commotion was going on. She was told that it was because of the foul smell emitting from the house of the appellant. She told P.W.1 to ask the appellant about the foul smell. P.W.1 informed P.W.5 that the appellant had gone away without saying anything. P.W.1 informed P.W.5 that the deceased was in the house of the appellant as he did not return home for the last two days. P.W.5 asked P.W.1 to get appellant. P.W.1, his brother and his brother’s son rushed to the appellant and P.W.1 returned with keys. P.W.1 opened the doors of the house of appellant and found the dead body in a gunny bag. P.W.5 also stated that the dead body was found in the house of the appellant. 14. P.W.6, though not an eyewitness to the offence, deposed that he and Sankar Narayana/LW.8 acted as mediators for observing the scene of offence and preparation of scene observation cum seizure Mahazarnama vide Ex.P3. However, he did not identify his signature and also contents of the scene observation cum Seizure Mahazarnama under Ex.P3. Therefore, he was declared hostile. His evidence, about the fact that he was called by Alipiri 17 police to come to Auto Nagar and he found one dead body in a dark room and took out the body from that room, cannot be lightly thrown away. 15. P.W.7, the Inquest mediator, testified that inquest was conducted on 28.07.2014 at about 12.30 P.M. or 1.00 P.M. by the Inspector of Police on the dead body of the deceased vide Ex.P4 Inquest report. P.W.7 deposed that the death of Ravi Kumar was not natural one as his body was found with stab injuries. This evidence of P.W.7 is another strong circumstance that the death of Ravi Kumar was not a natural one, but a homicidal in the house of the appellant. 16. P.W.8 deposed thatEx.P5 Scene Observation Mahazarnama–cum- Seizure Mahazarnama was prepared, and he attested them. Although P.W.8 is not an eyewitness, it is evident that he observed the scene of offence is another strong circumstance. 17. In this case, there is no direct evidence available that the appellant killed Ravi Kumar. The evidence is only circumstantial in nature. One of the strong circumstances is that the dead body was found in the house of the appellant. The appellant, even though he knew it well, he neither informed the surrounding neighbours nor the police let alone to P.W.1 or his mother P.W.2. 18. P.W.9 Doctor testified that on the requisition forwarded by the Inspector of Police, Alipiri Police Station, Tirupati, she commenced the Autopsy over the cadaver of the deceased at about 11.00 A.M. and concluded at 12.30 18 P.M.P.W.9 found two ante mortem injuries. After internal examination for the cadaver, she opined that Ravi Kumar died in between 2 to 3 days prior to her Postmortem examination. She opined that the cause of death was due to following stab injuries: 1. Stab wound of 3 x 1 cm pleural cavity deep elliptical in shape oblique over front of left side of upper chest 1 cm, outer to nipple. 2. Stab wound of 3 x 2 cm pleural cavity deep elliptical in shape oblique over front of middle of chest in midline 10 cm away from wound No.1. 19. P.W.9 further testified that on 23.09.2014, she received report from the Andhra Pradesh Forensic Science Laboratory (R.F.S.L.) stating that there was no poisonous substance in the viscera sent for analysis and Ethyl Alcohol also not found in them. Ex.P6 Postmortem certificate and Ex.P7 R.F.S.L., report were marked through P.W.9. P.W.9 admitted in her cross-examination that in case of stab injuries there will be oozing of blood. The evidence of P.W.9 is crystal clear that the death of Ravi Kumar was an unnatural one, but it was homicide with two stab injuries on upper chest and middle chest. 20. P.W.10 deposed that P.W.12/Ch.Narasimha Rao, the Inspector of Police of West Police Station, who was in-charge of Alipiri Police Station, had called P.W.10 and L.W.14 on 05.11.2014 at about 09.30 P.M. The appellant led P.W.10 and P.W.12 and his staff to the place where the knife used for commission of offence, was thrown and retrieved the same under the cover of Ex.P9 Seizure Mahazarnama. Although P.W.10 admitted that M.O.1 knife is easily available in the open market, there are residential houses along the 19 road from where thorny bushes were there, retrieved M.O.1 and he acted as mediator in four or five criminal cases, the evidence of P.W.10 cannot be lightly brushed aside as nothing concrete was elicited from his cross- examination that Appellant was implicated in a false case. 21. P.W.11 Inspector of Police, Alipiri Police Station, deposed that on 28.07.2014 at about 11.00 A.M., P.W.1 came to Police Station and presented Ex.P1 information report which was registered as case in Cr.No.195/2014 of Alipiri Police Station for the offences under Sections 302 and 201 of ‘the I.P.C.,’ vide Ex.P10 F.I.R. P.W.11 testified that he inspected the scene of offence along with his staff and P.W.1, found dead body of Ravi Kumar in a gunny bag in the north east portion ground floor of the house of the appellant. He secured the presence of the mediators, examined the scene of offence and prepared Ex.P11 sketch, scene observation report, Panchanama, and seized blood-stained gauze cloth collected from the pool of blood and control gauze under the cover of observation Mahazarnama. He secured the presence of P.Ws.1 to 4, L.W.5/J.Meghalaand M.Thulasi/L.W.7, conducted inquest over the dead body of the deceased, seized M.O.2 White cement colour full shirt, M.O.3Cement colour pant, M.O.4 Torn gunny bag, examined PWs 1 to 4, J.Meghala/L.W.5 and M.Thulasi/L.W.7 and recorded their statements. P.W.11 forwarded the dead body of Ravi Kumar to Autopsy, seized M.Os 2 to 4 under Ex.P12 police proceedings. P.W.11 prepared a 20 letter of advice for material objects and sent them to the learned Jurisdictional Magistrate to forward it to R.F.S.L. for forensic analysis. 22. P.W.12, In-charge Inspector of Police, Alipiri Police Station, is another Investigating Officer who conducted part of the investigation. He deposed that on 05.11.2014, he nabbed appellant and Accused No.2 in the presence of mediators and on being led by the appellant, M.O.1 was traced and retrieved by the appellant from thorny bushes at Auto Nagar, Tirupati in the presence of the mediators, and seized M.O.1. P.W.12 forwarded the appellant and Accused No.2 to the jurisdiction Magistrate for judicial custody. 23. Even though P.W.12 admitted that the place from where the appellant and Accused No.2 were apprehended, respectable inhabitants of that locality were not secured as mediators and the signatures of appellant and Accused No.2 were not obtained in confessional statements and seizure Mahazarnama and that M.O.1 was easily available in the open market,these irregularities cannot form basis for throwing away the evidence of P.W.12 lightly. Sometimes, it may not be practically possible to secure the local inhabitants, in the morning hours, who would be instantly available. Therefore, securing the Village Revenue Officer as Panchayatdar was not an irregular procedure. 24. Albeit M.O.1 is available in the open market and the place from where it was traced and retrieved by the appellant, is surrounded by human habitation, recovery of M.O.1 knife pursuant to the discovery by the appellant cannot be 21 disbelieved for the simple reason that it was the appellant who threw away knife after commission of the offence into thorny bushes and it was he alone knew the place where the knife was thrown into bushes. The knife was traced and retrieved by none other than the appellant. This knife was not on any open ground, but it was found and retrieved from thorny bushes. Except the person who threw away the knife, nobody else would know the exact place of the knife, especially in thorny bushes. Therefore, this discovery of the weapon is quite relevant under Section 27 of ‘the Act’. This is another strong circumstance that links the other chain of circumstances. 25. Although neither the Investigating Officer during the investigation nor the prosecutor in the course of trial, had showed M.O.1 knife to P.W.9 and elicited from her that it was the knife with which the injuries were caused on the deceased, it is quite convincing that M.O.1 is a steel knife with 11½” inches length and the knife is 7½” inches size. The width and breath of the stab injuries found on the body of the deceased are 3 x 1 cm at upper chest and 3 x 2 cm over front of middle chest. It can be easily comprehended that using this weapon in all probability caused injuries to the body of Ravi Kumar. 26. The case on the hand solely relying on the circumstantial evidence. In this regard, the Hon’ble Apex Court in Sharad Birdhi Chand Sarda v. State of Maharashtra 2 had laid down five golden principles (pancha sheel) for examining circumstances, it is held as under: 21984 AIR 1622 22 (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. 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. 27. On careful analysis of oral and documentary evidence produced by the prosecution, the strong circumstances adverse to the appellant are thus: a) P.W.1 to 4 testified that when they enquired with appellant about the foul smell emitting from his house, the appellant replied that there was no foul smell, he locked the doors and went away leaving the keys of the room. b) P.W.6 deposed that he was called by police of Alipiri Police Station to the scene of occurrence and he found a dead body in a dark room belonging to Appellant and took the body out from that room. c) P.W.7 inquest mediator testified that death of Ravi Kumar was not a natural one and his body was found with stab injuries in the house of Appellant, and it is homicidal. 23 d) The evidence of P.W.8, a mediator for scene observation and seizure of some material objects is also another strong circumstance that the deceased was subjected to homicide. e) The medical evidence of P.W.9 coupled with Ex.P6 postmortem report certificate and Ex.P7/RFSL report would clearly reveal that the deceased was subjected to homicide by two stab injuries with a knife. f) P.W.10 the Village Revenue Officer-mediator testified that the appellant led him and P.W.12 to the place where he threw the knife used for killing of the Ravi Kumar and himself retrieved it vide Ex.P9 – Seizure Mahazarnama. g) The mother of the deceased stated that the deceased was last seen when he was going to the house of the appellant to share supper with him, in that regard the evidence of his mother is very important. h) The weapon was traced and retrieved by the appellant himself. i) The dead body was found with knife injuries. j) The dead body was found in the house of the appellant emitting a foul smell. k) The appellant had not informed about keeping the dead body in a gunny bag in his house either to the police or to the neighbors. l) The appellant, when asked by the neighbours, did not give any reasonable and plausible reply about foul smell coming in his house. m) Even assuming for a moment for argument sake, if someone else had caused the death of the Ravi Kumar and kept the dead body in gunny 24 bag of the house of the appellant, the appellant ought to have informed the same to the police as a dutiful and law-abiding citizen under Section 37 of ‘the Cr.P.C.’ 28. All these are the strong circumstances that are against the appellant. Although a suggestion was put to P.W.1 that some people used to come to the house of the appellant, the fact that the appellant alone is in exclusive possession of the house as a tenant, and immediately after he left from his house, P.W.1 and other found body of deceased emitting unbearable foul smell in a gunny bag in the house of the appellant, cannot be likely ignored and this fact throws burden on the appellant to prove that he was not responsible for the homicide of the deceased. 29. If some more persons were living in the house of the appellant along with him, then a suspicion would naturally arise that some other persons would have killed the deceased. In the instant case, the appellant is in exclusive possession of the house in which the body of the deceased was found. He knew well that the dead body was in gunny bag emitting foul smell. He had not informed the same to the neighbours or to the police. This is another strong circumstance. In this regard, it is relevant to refer and extract Section 106 of ‘the Act’ which says as under: 106. Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 25 Illustrations (a)When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b)A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 30. Section 106 of ‘the Act’ states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in section 101 of ‘the Act’ namely, that the burden is on the person who asserts a fact. The principle underlying section 106 ‘the Act’ which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the person charged. It cannot apply when the fact is such as to be capable of being known also by a person other than the offender. In this context, the Hon’ble Supreme Court in Shambhunath Mehra v. State of Ajmer3 observed that Section 106 ‘the Act’ is an exception to section 101 ‘the Act’ which lays down the general rule that the burden of proof in a criminal case is on the prosecution and section 106 of ‘the Act’ is not intended to relieve it of the duty. 31. Section 106 of ‘the Act.,’ should be confined to those cases where a fact is specially within the knowledge of any person as per the decision laid down in Sridhar Misra v. Jaichandra4. In Ambalal v. Union of India5, it is held that 3AIR 1956 SC 404 4AIR 1959 All 598 5AIR 1961 SC 264 26 the section cannot be used to undermine the well-established rule-of law that, save in very exceptional class of cases, the burden is on the prosecution and never shifts. 32. The accused failed to give any explanation much less valid, reasonable and convincing one that somebody had killed the Ravi Kumar and kept the dead body in a gunny bag without his knowledge in his house. One can understand, if the foul smell was not emitting from the dead body of the deceased from the house of the appellant, that it would have been a strong circumstance that the appellant was not aware that Ravi Kumar was killed and kept it in a gunny bag in his house. These are all the strong chain of circumstances linking one another without missing any link of chain pointing towards the guilt of the appellant. 33. The appellant neither gave any reliable and genuine reply when he was examined while framing charges under Section 228 of ‘the Cr.P.C.,’ nor in his examination conducted under Section 313 of ‘the Cr.P.C.,’ for the circumstances that witnesses found the body of the deceased in gunny bag in the house of the appellant. 34. Therefore, it is the appellant who had to dispel this suspicion, because keeping of the dead body of the deceased in a gunny bag in the house of the appellant is within the exclusive knowledge of the appellant. The house is in exclusive possession of the appellant from where the body of the deceased was found in a gunny bag emitting foul smell. Even though burden lies on the 27 prosecution to prove the guilt of the appellant and that burden could not shift to prove its case under Section 106 of ‘the Act.,’ the accused is duty bound to prove that he had no role to play in causing the death of the deceased. It is incumbent upon the appellant under Section 106 of ‘the Act’ to prove that he was not aware of keeping dead body in his house. The Court can presume that the appellant is the person who caused culpable homicide of the deceased under Section 106 of ‘the Act.,’ inasmuch as the appellant would only be a person who is in a position to explain what had happened to the deceased, and if the appellant failed to do so, it is only natural and logical that an irresistible inference may be drawn that the appellant had caused the death of Ravi Kumar. Therefore, in this case, Section 106 of ‘the Act.,’ will come to the aid of the prosecution to establish guilt that Ravi Kumar’s death was homicide. 35. Therefore, the burden lies on the appellant to prove that he was no way connected with keeping the dead body in his house and he caused the death of the deceased. The prosecution had discharged his burden by proving that the deceased was subjected to homicide, his body was found in gunny bag emitting foul smell in the house of the appellant; the appellant gave an evasive reply about emitting of foul smell from his house; the appellant had not informed, about emitting of foul smell from the body of the deceased which was kept in his house, either to the neighbours or to the police; hurriedly went away from his house, when PW.1, PW.2 and other persons asked him as to why foul smell was emitting from his house; tracing out and retrieving M.O.1 28 from thorny bushes by himself and handing over the same to the police, are all strong circumstances connecting with one another so intimately and cohesively dispelling any suspicion that someone else had killed the deceased, not the appellant. Silence on the part of the appellant is also a strong circumstance. Therefore, the prosecution has proved that the deceased was subjected to homicide by the appellant. 36. With regard to the conviction and sentence for the offence under Section 302 of ‘the I.P.C.,’ it is clear that even as per the case of the prosecution, the deceased was an aggressor. However, there was no animosity between the deceased and appellant earlier. On the spur of the moment, a scuffle ensued between the deceased and appellant. At the first instance, Ravi Kumar/deceased himself tried to stab the appellant, when the appellant spoke bad about the wife of the deceased. The appellant, in order to evade the fatal blow to be inflicted upon him with knife by Ravi Kumar, had picked up knife from the hands of Ravi Kumar and stabbed Ravi Kumar on his chest twice. 37. Knife is measuring 11½” size, which is ordinarily a vegetable cutting knife and the knife is not intended for killing the people. Of course, the situs of the injuries on the body of the deceased are quite relevant, because of the two fatal blows on the chest region caused instantaneous death of Ravi Kumar. The appellant had intention and knowledge, being a reasonable prudent man, that if a weapon like M.O.1 is stabbed at the vital organ of the body twice, it 29 would certainly cause death. The act of the appellant would fall under first part of Section 304 of ‘the I.P.C.,’ but not under Section 302 of ‘the I.P.C.’ The conviction for the offence under Section 302 of ‘the I.P.C.,’ and also the sentence under Section 302 of ‘the I.P.C.,’ are not legal and sustainable. The appellant is liable for conviction and sentence under first part of Section 304 of ‘the I.P.C.,’ but not under Section 302 of ‘the I.P.C.’ Therefore, the conviction and sentence under Section 302 of ‘the I.P.C.,’ are liable to be interfered and set aside, while convicting the appellant under first part of Section 304 of ‘the I.P.C.’ 38. The appellant had been in incarceration for more than 12 years 8 months and 17 days as on 16.04.2025. The offence was committed on 26.07.2014. Nearly 11 years have passed by. The appellant and deceased used to consume Alcohol often and they were friends. The deceased used to take supper in the house of appellant. The facts and circumstances of the case warrant that the imprisonment to which the appellant had already undergone would be sufficient, proportionate to impose on the appellant for the offence under first part of Section 304 of ‘the I.P.C.’ 39. In regard to the delay in lodging FIR by P.W.1, the Hon’ble Apex Court in Ravinder Kumar v. State of Punjab6 held that delay in lodging FIR is not applicable in a case based on circumstantial evidence, if there is a reasonable explanation for such delay. In the instant case, the dead body was traced after 6(2001) 7 SCC 690 30 two days in the house of the appellant. Hence the delay is not fatal to the case of the prosecution. 40. With regard to the conviction and sentence for the offence under Section 201 of ‘the I.P.C.,’ is concerned, the two indispensable ingredients for all the three tiers in Section 201 of ‘the IPC.,’ are: (1) The accused should have had the knowledge that an offence has been committed or at least that he should have had reasons to believe it; (2) He should then have caused disappearance of evidence of commission of that offence. 41. The law is well settled that in Kalawati v. State of Himachal Pradesh7 the Hon’ble Apex Court held that Section 201 of ‘the I.P.C.,’ cannot be invoked practically to convict the principal offender of the offence. It is further held that Section 201 of ‘the I.P.C.,’ is not restricted to the case of a person who screens the actual offender; it can be applied even to a person guilty of the main offence, though as a matter of practice a Court will not convict a person both of the main offence and under Section 201 of ‘the I.P.C.’ 42. In the result, the Criminal Appeal is partly allowed setting aside the conviction and sentence for the offence under Section 302 of ‘the I.P.C.,’ while finding the appellant guilty for the offence punishable under first para of Section 304 of ‘the I.P.C.,’ and he is sentenced to suffer the imprisonment to which he has already been undergoing. The conviction and sentence of the 7(1953) 1 SCC 86 31 offence under Section 201 of ‘the I.P.C.,’ are unwarranted and the same are liable to be interfered and they are, accordingly, set aside. 43. As the appellant is in jail, the Superintendent, Central Prison, Kadapa is directed to release him forthwith, if he is not otherwise required in any other case. As a sequel, interlocutory applications pending, if any, shall also stand closed. __________________ K.SURESH REDDY, J _______________________ Dr. Y.LAKSHMANA RAO, J Date: 09.05.2025 MVA