TIPPARAM PRABHAKARversusTHE STATE OF ANDHRA PRADESH

                         (2009) 7 S.C.R. 142


A                    TIPPARAM PRABHAKAR
                                 v
              THE STATE OF ANDHRA PRADESH
                Criminal Appeal No. 868 of 2009
                          APRIL 29, 2009
B
           (DR. ARIJIT PASAYAT AND ASOK KUMAR
                       GANGULY, JJ.)
                                                                    r
        PENAL CODE, 1860:

c      s.302 - Murder - Conviction based on circumstantial
  evidence of accused last seen with deceased - Held: There
  being discrepancies is evidence of witnesses, and their
  evidence having not established accusations against accused,
  merely because his identity card was found near the dead
  body, that cannot be a determinative factor to find him guilty-
D
  Accused acquitted - Circumstantial evidence.
        The appellant and two others were prosecuted for
  commission of the offence punishable uls 302 rlw s.34                     ,
  IPC. The prosecution case was that on 20.3.2003 at about                  '~
E 7.00 p,m. the appellant (A.2) and A.3 came to the house of
  P+W.1 and took her son on a motor cycle. At about 10.30                   "'""
  p.m. A.2 and A.3 again came to the house of PW.1 along
  with her son and A.2 told that he would send back her
  son within 10 minutes. At about 11.00 p.m. 'M' came to the
  house of PW.1 and told her that one motor cycle and a
F dead body was lying at a particular place. PW.1 alongwith
  others went to the scene and found her son dead in a
  pool of blood. From the finger prints on a material object
  A.2, the friend of A.2 and A.3 and maternal uncle's son of
  the deceased was also found involved. A.1 to A.3 wee said
G to have confessed the offence. The trial court convicted
  A.1 and A.2 and acquitted A.3. On appeal, the High Court
  further acquitted A.1.                                                "
         In the appeal filed by A.2, it was contended for the
H                               142
                 TIPPARAM PRABHAKAR V.                    143
              THE STATE OF ANDHRA PRADESH ·

 appellant that Pws. 1,2 and 6 were stated to have A
 highlighted the last seen aspect, but the testimonies of
 Pws. 1 and 2 were at great variance, and the prosecution
 case remained unsupported ..
      Allowing the appeal, the Court
                                                                 B
         HELD: 1.1 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. In the absence of any C
  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.
  (Para 8) [148-A-B]
                                                              D
         1.2 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 .. PW2
  in her cross-examination accepted that she had not stated
. during investigation that A2 and A3 had come to their
  house and had taken the deceased. Interestingly, in the· E
  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. (Para 7)
  [147-A-B, F-G]
       1.3. The evidence of PWs. 1 and 2 did not establish       F
 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. (Para 9) [148-8-C]
                                                                 G
      CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
 868 of 2009
       From the Ju'dgement and Order dated 13.12.2007 of the
 Hon'ble High Court of Judicature, Andhra Pradesh at Hyderabad
 in Criminal Appeal No. 1555 of 2004.                            H
    144        SUPREME COURT REPORTS                    [2009] 7 S.C.R


A         Gaurav Agrawal, SCI.SC, for the Appellant.
          I. Venkatanarayana, D. Bharathi Reddy, V. Prabhakar Rao,
    with him for the Respondent.

          The Judgement of the Court was delivered by
B         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
C 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).
D High Court by the impugned dismissed the appeal filed by the
  present appellant A2 while directing acquittal of A 1.
          3. Prosecution version as unfolded during trial is as follows:
        A 1 is the maternal uncle's son of Damera Shiva Kumar
E (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/-
F 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
G 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
H deceased. On hearing the sound of the motorcycle of the
                TIPPARAM PRABHAKAR V. THE STATE OF              145
               ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]

     . deceased, PW2 came out of the house and asked the deceased A
       to come inside the house, as 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 ofYadav was lying B
       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   c
       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
                                                                       0
       sketch underEx.PS 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
       M04 knife in the stomach of the deceased and MOS 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 E
       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 F
       Shri Md. Khursheed (PW13) visited Malkajgiri Police Station
       and examined the material objects seized by PW15 in this case
       for developing the chance prints. He found one Finger Print on
       M06 and he lifted the chance print and got photographed the
       chance print. He compared the Finger Print, sent by the police G
..     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 toA3 were
       arrested by l.D. party and were produced before PW15, who H
    146       SUPREME COURT REPORTS                    [2009] 7 S.C.R.


A 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
B to the house of A2, went inside the house of A2 and produced
  M014. 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
c 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
D Section 34 IPC.
        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
E 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 A 1 and A2. The appeal was                  .
  filed by A1 and A2. The conviction was confirmed so far as
F 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
G 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
H acquitted by the High Court.
                    TIPPARAM PRABHAKAR V. THE STATE OF                 147
                   ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]

      )        6. Learned counsel for the respondent-State supported the A
          judgment of the High Court .
               . 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       B

...       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         c
          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         D
          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            E
          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          F
          out. PW2 went to the scene of offence. In her cross-examination
          she accepted that she had not stated during investigation that
          A2 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
                                                                              G
          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        H
     148        SUPREME COURT REPORTS                 [2009] 7 S.C.R.


.A   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.
s    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
C    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.
           10. The conviction is set aside. The appellant be set at
     liberty forthwith unless required to be in custody in any other
0
     case.
            11. The appeal is allowed.

     R.P.                                           Appeal allowed.




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