Tipparam Prabhakar Vs.
State of A.P.  INSC 856 (29 April 2009)
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
Dr. ARIJIT PASAYAT,
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.
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 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
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 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.
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.
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.
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.
counsel for the respondent-State supported the judgment of the High Court.
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 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.
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.
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.
conviction is set aside. The appellant be set at liberty forthwith unless
required to be in custody in any other case.
appeal is allowed.
(Dr. ARIJIT PASAYAT)