TIPPARAM PRABHAKAR versus THE STATE OF ANDHRA PRADESH

Citation: [2009] 7 S.C.R. 142 · Decided: 29-04-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

(2009) 7 S.C.R. 142 
A 
TIPPARAM PRABHAKAR 
v 
THE STATE OF ANDHRA PRADESH 
Criminal Appeal No. 868 of 2009 
B 
APRIL 29, 2009 
(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 
D body, that cannot be a determinative factor to find him guilty-
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 
F house of PW.1 and told her that one motor cycle and a 
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] 
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 
D 
. 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] 
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 
G 
in Criminal Appeal No. 1555 of 2004. 
H 
A 
B 
144 
SUPREME COURT REPORTS 
[2009] 7 S.C.R 
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 
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.
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