Tipparam Prabhakar vs State Of A.P

Tipparam Prabhakar ..Appellant

Versus

The State of Andhra Pradesh ..Respondent

JUDGMENT

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

2 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

3 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.

4 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

6 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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