REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL     868       OF 2009 (Arising out of SLP (Crl.) No.8554 of 2008)

Tipparam Prabhakar      ..Appellant

Versus

The State of Andhra Pradesh ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the  

Andhra Pradesh High Court upholding the conviction of the appellant for  

offence punishable under Section 302 of the Indian Penal Code, 1860 (in  

short the ‘IPC’).   Three persons faced trial for alleged commission of death

of one Damera Shiva Kumar (hereinafter referred to as the ‘deceased’) on  

20.3.2003.  Trial court directed acquittal of Telukrishna (A3).  High Court  

by  the  impugned dismissed  the  appeal  filed  by  the  present  appellant  A2  

while directing acquittal of A1.  

3. Prosecution version as unfolded during trial is as follows:

A1 is the maternal uncle's son of Damera Shiva Kumar (hereinafter  

referred to as ‘deceased’). A2 and A3 are the friends of Al. On 20.03.2003 at  

about 5:00 p.m., the mother of the deceased Smt. Damera Lingamma (PW-1)  

and her daughter went to her younger sister's house at Malkajrigi to attend a  

betrothal  ceremony.  While  leaving  the  house  she  gave  Rs.10/-  to  the  

deceased Shiva Kumar. The sister in law of the deceased Smt. Lalitha (PW-

2) and the deceased were alone in the house. At about 7:00 p.m., A2 and A3  

came to the house of the deceased. A3 was standing outside the house. A2  

came inside the house. A2 and A3 took the deceased Shiva Kumar on his  

motorcycle. PW1 and her daughter returned home at about 10:00 p.m., and  

enquired with PW2 about the deceased Shiva Kumar. PW2 informed PW1  

that A2 and A3 took the deceased Shiva Kumar on his motorcycle. At about  

10:30 p.m., A2 and A3 again came to the house of the deceased, alongwith  

the deceased. On hearing the sound of the motorcycle of the deceased, PW2  

came out of the house and asked the deceased to come inside the house, as  

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PW1 was calling him. Thereupon A2 stated to PW2 that he will send back  

the  deceased  within  10  minutes.  At  about  11:00  p.m.,  one  Mallesh,  

Councilor of the Malkajgiri came to the house of the deceased and informed  

PW1 that  one  motorcycle  with  the  inscription  of  Yadav  was  lying  near  

Anandbagh Cross Road and that one dead body was also lying near the spot.  

Thereupon, PW1 and others went to the scene of offence. PW1 found her  

son lying dead in a pool of blood with bleeding injuries at Anandbagh Cross  

Roads. PW1 gave Ex.P1 complaint to PW11, the Sub Inspector of Police of  

Malkajgiri Police Station. PW11 registered Ex.P1 as Crime No.90 of 2003,  

under Section 302 IPC and submitted a copy of the FIR to all concerned.  

After  registration  of  the  case,  PW15  took  up  investigation  from PW11.  

PW15 rushed to the scene of offence, got the scene of offence photographed,  

prepared rough sketch under Ex.P5 for the scene of offence, conducted scene  

observation panchanama on 21.03.2003 at about 1:50 hours under Ex.P4 in  

the presence of PW7 and Panduri Ravi. He found MO4 knife in the stomach  

of the deceased and MO5 lying beside the deceased. He also found MOs 1 to  

3 and 6 to 11 at the scene of offence. He seized MOs I to 13 under Ex.P4 in  

the presence of PW7 and Panduri Ravi. He held inquest over the dead body  

of the deceased in Gandhi Hospital Mortuary on 21.03.2003 from 10:00 a.m.  

to 12:30 noon. After the inquest,  the dead body was sentt to Postmortem  

examination.  On the requisition given by PW11 under  Ex.P9,  the Finger  

Prints Expert Shri Md. Khursheed (PW13) visited Malkajgiri Police Station  

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and  examined  the  material  objects  seized  by  PW15  in  this  case  for  

developing the chance prints. He found one Finger Print on MO6 and he  

lifted the chance print and got photographed the chance print. He compared  

the Finger Print, sent by the police with the chance print marked as "A", and  

found  it  as  identical  with  the  left  finger  prints  marked  as  "S1",  which  

belongs to Suresh Kumar Yadav (Al).  The Finger  Prints  expert  gave his  

opinion under Ex.P11. On 22.03.2003 at 9:00 a.m. Al to A3 were arrested by  

I.D.  party  and  were  produced  before  PW15,  who  interrogated  Al  to  A3  

separately  and  individually  in  the  presence  of  PWs9  and  10.  Al  to  A3  

confessed the  offence  leading to  recovery.  The admissible  portion of  the  

confessional  statements  of  Al  to  A3  is  marked  as  Exs.P23  to  P25  

respectively.  In  pursuance  of  his  confession,  Al  led  the  police  and  

panchayatdars to the house of A2, went inside the house of A2 and produced  

MO14. He also produced his bloodstained clothes MOs 15 and 16. MOs 17  

and 18 were seized at the instance of A2 from his house. MOs 19 and 20  

were seized at the instance of A3 from the house of A2. PW12, the doctor  

who conducted  autopsy  over  the  dead  body  of  the  deceased  opined  that  

injuries 4 to 6, 11 and 12 are fatal injuries and they are sufficient to cause  

death in the ordinary course of nature either cumulatively or individually.  

After the receipt of the postmortem certificate and F.S.L. Chargesheet was  

filed  and  the  accused  persons  faced  trial  for  commission  of  offence  

punishable under Section 302 read with Section 34 IPC.

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As the accused persons pleaded innocence trial was held. To substantiate  

the accusations, 15 witnesses were examined. The case rested on circumstantial  

evidence.   It  was the prosecution version that the accused and the deceased  

were last seen together and dead body of the deceased was identified.  MOI was  

found at the scene of occurrence.  The trial Court as noted above, found the  

evidence to be inadequate and acquitted A3. But convicted A1 and A2. The  

appeal  was  filed  by  A1  and  A2.  The  conviction  was  confirmed  so  far  as  

appellant is concerned.         

5. Learned counsel for the appellant submitted that the prosecution version  

is clearly unsupportable.  PWs 1, 2 and 6 are stated to have highlighted the last  

scene aspect.  The evidence of PWs. 1 and 2 i.e. mother and sister-in-law are at  

great variance.  Merely because the identity card of the accused was found near  

the  dead  body  that  cannot  be  a  ground  to  hold  the  appellant  guilty.  

Additionally, fingerprint of the accused-appellant was not found on the articles  

seized.  Only the fingerprints of A1 were collected.  As noted above A1 has  

been acquitted by the High Court.       

6. Learned counsel for the respondent-State supported the judgment of the  

High Court.

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7. As per the version of PW1 she was told by PW2 that A2 and A3 came to  

the house at about 7.30 p.m. and took the deceased on the motorcycle at 11.00  

p.m.  Thereafter  councilor Mallesh came to his house and informed that the  

deceased was lying at Anand Bagh X-roads and his motorcycle was lying near  

the dead body. Contrary to what she stated, PW2 stated that the appellant and  

PW1 and her daughter have gone to attend the function.  She and the deceased  

were alone in the house.  A2 and A3 came into the house.  A3 was outside the  

house  and  A2 was  inside  the  house.  A2  and  A3  took  the  deceased  on  his  

motorcycle.   PW1 and her  sister-in-law returned at  about  10.00 p.m.  PW1  

enquired about deceased.   She was informed that A2 and A3 had taken the  

deceased  on his  motorcycle.  After  a  few minutes  she  left.    They took the  

deceased at about 10.30 p.m.  After hearing the sound of the motorcycle she  

came out of the house and noticed A2 and the deceased on the motorcycle.  She  

asked the deceased to come inside the house stating that PW1 was calling him.  

Thereupon A2 stated that he will send back the deceased within a short time.  

The deceased also stated that he will come within a short time.  She claimed to  

have seen A2 entering into the toddy shop which is located near their house.  At  

about  11.00 p.m. the  councilor  came and informed that  the motorcycle  was  

lying near Anandh Bagh Cross-roads and that the deceased was lying there.  On  

hearing  PW1 went  out.   PW2 went  to  the  scene of  offence.   In  her  cross-

examination she accepted that she had not stated during investigation that A2  

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and A3 had come to their house and had taken the deceased.  Interestingly, in  

the first information report the name of the accused was stated unknown person  

and PW1 had not stated after she came back again, the deceased and A2 went  

together.                  

8. The last-seen theory comes into play where the time-gap between the  

point of time when the accused and the deceased were seen last 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. It  

would be difficult in some cases to positively establish that the deceased was  

last seen with the accused when there is a long gap and possibility of other  

persons  coming  in  between  exists.  In  the  absence  of  any  other  positive  

evidence  to  conclude  that  the  accused  and  the  deceased  were  last  seen  

together, it would be hazardous to come to a conclusion of guilt in those  

cases.

9. Above being the position, the evidence of PWs. 1 and 2 did not establish  

the accusations so far as appellant is concerned.  Merely because his identity  

card  was  found  near  the  dead  body  of  the  deceased,  that  cannot  be  a  

determinative factor to find the accused guilty.   

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10. The  conviction  is  set  aside.  The  appellant  be  set  at  liberty  forthwith  

unless required to be in custody in any other case.

11. The appeal is allowed.   

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, April 29, 2009

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