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2025 Supreme(SC) 1700
SUPREME COURT OF INDIA
PANKAJ MITHAL, PRASANNA B. VARALE, JJ.
Thammineni Bhaskar – Appellant
Versus
The State of Andhra Pradesh – Respondent
Criminal Appeal No. 4623 of 2024
Decided On : 17-09-2025
For the Appellant(s) : Mr. K. K. Mani, AOR Ms. T.Archana, Adv.
For the Respondent(s): Ms. Prerna Singh, Adv. Mr. Guntur Pramod Kumar,AOR Mr. Dhruv Yadav, Adv. Ms. Vanshika Singh, Adv.
IMPORTANT POINT
Kidnapping, murder and disappearance of evidence – Conviction and sentence cannot be based only on the basis of last seen theory.
Headnote:
Indian Penal Code, 1860 – Sections 302, 364 and 201 – Kidnapping, murder and disappearance of evidence – Life imprisonment – Circumstantial evidence – PWs have not uttered a single word so as to prove kidnapping as alleged or even that deceased was with them at any point of time – In absence of such evidence and fact that both PWs have turned hostile, it cannot be held that appellant was involved in the incident and that he was responsible for killing of deceased, on the basis of last seen theory – There is no evidence to either prove kidnapping of deceased or that he was last seen in company of appellant – Prosecution has miserably failed to prove commission of offence at the hands of appellant – Impugned judgments and orders of High Court and Trial Court hereby set aside and accused-appellant acquitted of all charges. (Paras 12, 13, 14, 15 and 16)
Facts of the case:
Appellant who is Accused No.1(‘A-1’) was convicted under Sections 302 and 364 of Indian Penal Code, 1860 and was sentenced to life imprisonment and to pay a fine of Rs.5,000/- and seven years of rigorous imprisonment and fine of Rs.5,000/- under Section 201 of the IPC with direction that both the sentences shall run concurrently. In the event of default in payment of fine, he was directed to undergo further imprisonment of six months.
Findings of Court:
Both Trial Court and High Court erred in convicting appellant-A-1 on complete misreading of evidence.
Result : Appeal allowed.
JUDGMENT
PANKAJ MITHAL, J.
1. The appellant who is Accused No.1(‘A-1’) was convicted under Sections 302 and 364 of the INDIAN PENAL CODE , 1860 (‘IPC’) and was sentenced to life imprisonment and to pay a fine of Rs.5,000/- and seven years of rigorous imprisonment and fine of Rs.5,000/- under Section 201 of the IPC with the direction that both the sentences shall run concurrently. In the event of default in payment of the fine, he was directed to undergo further imprisonment of six months.
2. The aforesaid judgment and order of conviction and sentence have been confirmed by the High Court by the impugned Judgment and order dated 19.06.2024.
3. The prosecution case is that the deceased Bhoominadhan was an auto driver. The family of the deceased consisting of his father Rajagopal Vellimalai @ Peddodu-PW-1 and his mother-PW-2 along with elder brother-PW-3 were living in Chandrababu Nagar, Nellore. The appellant-A-1 was known to them as he was also involved in auto business, but was living in Sramika Nagar, Nellore.
4. It appears that on 22.03.2016, the mother of the deceased-PW-2 reported to the Nellore Rural Police, that A-1 along with his friends while sitting near Vinayaka Temple in Chandrababu Nagar Area was passing obscene remarks against the females and were threatening them. On this report, Crime No.108/2016 under Sections 143 , 290, 354, 323 and 506 read with Section 34 of the IPC was registered. In this connection A-1 also lodged a cross First Information Report (‘FIR’) which was registered as Crime No.109/2016 under Sections 34 1, 323, 379 read with Section 34 of the IPC.
5. A few days thereafter, the father of the deceased/PW-1 lodged an FIR No.118 of 2016 on 27.03.2016 alleging that on 26.03.2016 at about 06:30 p.m. when his son reached near banyan tree in Talpagiri Colony, Nellore City, the accused A-1 and his friends forcibly took him away into their auto and thus, kidnapped him. On the next day, the dead body of the deceased Bhoominadhan was found with multiple injuries near Sarvepalli Reservior of Anikepalli Village in Nellore District. On receiving the information, PW-1 went there and identified the dead body of his son. Accordingly, the alteration memo was filed adding Section 302 of the IPC in the FIR.
6. The case of the prosecution in short is that when the deceased Bhoominadhan was proceeding in his auto at about 06.00 p.m. in the evening of 26.03.2016 and had reached the banyan tree in the Talpagiri Colony, Nellore, the accused forcibly dragged the deceased from his auto into their own auto and kidnapped him, which in fact was witnessed by PW-5, who further informed about the incident to PW-1. The father of the deceased Bhoominadhan, PW-1 searched for his son and submitted an FIR to the police at about midnight alleging that his son was abducted by A-1 and his friends.
7. Both PW-5 and PW-6 gave statements to the Police under Section 161 Cr.P.C. that they have seen the accused persons dragging the deceased Bhoominadhan into an auto on the evening of 26.03.2016. The statements of these two witnesses were also recorded before the Magistrate under Section 164 Cr.P.C., wherein they stated that when they reached the banyan tree at Talpagiri colony, they heard cries and when they turned back, they saw the accused and three other persons beating the deceased Bhoominadhan whereupon information of it was given to the PW-1.
8. The testimony of the aforesaid two witnesses PW-5 and PW-6 was recorded before the Trial Court where they clearly stated that they only observed some ‘galata’ under the banyan tree in Talpagiri Colony but they could not identify the persons involved in the ‘galata’. They nowhere stated that they witnessed the deceased Bhoominadhan being dragged and put into an auto.
9. The submission of Mr. K.K. Mani, learned counsel appearing for the appellant, is that there is no eye- witness in the case who might have seen A-1 committing the offence of killing the deceased. The conviction is entirely based on circum
