R. SREENIVASAversusSTATE OF KARNATAKA

                  [2023] 12 S.C.R. 55 : 2023 INSC 803



                             CASE DETAILS

                             R. SREENIVASA
                                      v.
                        STATE OF KARNATAKA
                    (Criminal Appeal No. 859 of 2011)
                          SEPTEMBER 06, 2023
   [VIKRAM NATH AND AHSANUDDIN AMANULLAH, JJ.]
                              HEADNOTES
     Issue for consideration: High Court if justified in reversing the
acquittal order passed by the Trial Court qua the appellant-accused acquitting
him of offences u/ss.302 and 201, IPC by which it held that the prosecution
had failed to prove that the deceased was last seen in the company of the
appellant.
    Evidence – Circumstantial evidence – Last seen theory – When
cannot be invoked:
      Held: The ‘last seen’ theory can be invoked only when the same
stands proved beyond reasonable doubt – In the present case, there is no
definitive evidence of last seen and that theory itself is in doubt – Also,
there is a long time-gap between the alleged last seen and the recovery of
the body – Further, there is major discrepancy in the charge framed and
the statement of the witnesses- the specific allegation that co-accused was
the one who had taken away the deceased from his house, whereas during
deposition the deceased’s wife and his brother stated that it was the appellant
who had taken away the deceased is enough to raise doubts with regard to
the veracity and authenticity of such statements – Also, the fact that the
deceased, late at night, agreed to go to the house of the appellant, when seen
in the backdrop of the allegation that there was strong animosity between
the two, appears to be highly improbable – Further, it does not appear that
the deceased’s family took any steps to find out as to where the deceased
had gone despite being missing for more than two days – The deceased’s
wife even testified that relations between the parties were cordial, and did
not hint at animosity – Thus, in the absence of other corroborative pieces
                                       55
56           SUPREME COURT REPORTS                        [2023] 12 S.C.R.


of evidence, it cannot be said that the chain of circumstances is so complete
that the only inference that could be drawn is the guilt of the appellant –
Unsafe to sustain the conviction of the appellant on such evidence, where the
chain is incomplete – Presumption of innocence is in favour of the accused
and when doubts emanate, the benefit accrues to the accused, and not the
prosecution – Impugned judgment set aside. [Paras 13, 15, 16 and 17]
    Practice and Procedure – Acquittal – Interference by appellate
Court:
     Held: An appellate court, in the case of an acquittal, must bear in
mind that there is a double presumption in favour of the accused – When
two views are possible, the one favouring the accused is to be leaned on –
Criminal Law. [Para 18]

       LIST OF CITATIONS AND OTHER REFERENCES

    State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 : [2006] 8 Suppl.
SCR 501 – held not applicable.
      Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 : [2014] 3 SCR
744; Nizam v. State of Rajasthan, (2016) 1 SCC 550 : [2015] 10 SCR 786;
Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742; Laxman Prasad
v. State of Madhya Pradesh, (2023) 6 SCC 399; Chandrappa v. State of
Karnataka, (2007) 4 SCC 415 : [2007] 2 SCR 630; Jafarudheen v. State of
Kerala, (2022) 8 SCC 440 – relied on.
     Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC
116 : [1985] 1 SCR 88; Shailendra Rajdev Pasvan v. State of Gujarat,
(2020) 14 SCC 750 : [2019] 14 SCR 270; Suresh Thipmppa Shetty v. State
of Maharashtra, 2023 INSC 749 – referred to.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.859
of 2011.
    From the Judgment and Order dated 20.10.2010 of the High Court of
Karnataka at Bangalore in Crl. A. No.1952 of 2005.
            R. SREENIVASA v. STATE OF KARNATAKA                           57


     Appearances:
     Ms. Kiran Suri, Sr. Adv., S. J. Amith, Ms. Aishwarya Kumar, Ms.
Vidushi Garg, Krishna Kumar, B. Purushothama Reddy, Dr. (Mrs.) Vipin
Gupta, Advs. for the Appellant.
     Aman Panwar, AAG, V. N. Raghupathy, Manendra Pal Gupta, Shivam
Singh Baghal, Varun Varma, Advs. for the Respondent.

       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT
     AHSANUDDIN AMANULLAH, J.
        Heard learned counsel for the parties.
      2. The present criminal appeal, under The Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970, is directed against the Final
Judgment and Order dated 20.10.2010 in Crl. A. No.1952/2005 (hereinafter
referred to as the “Impugned Judgment”) passed by the High Court of
Karnataka at Bengaluru (hereinafter referred to as the “High Court”),
whereby the High Court was pleased to allow the appeal filed by the State
qua the sole appellant.
     THE FACTUAL PRISM:
     3. The appellant was a co-accused along with one other. Upon trial,
both were acquitted. However, in appeal before the High Court preferred
by the State of Karnataka, the appellant has been convicted under Section
30211 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”)
and sentenced to undergo life imprisonment.
     4. According to the prosecution story, on 03.01.2002 at about 4:30
P.M., an unidentified dead body of a male was found by the Complainant
(PW1) in his field leading to institution of complaint with police. Later,
the body was identified to be that of one Krishnappa. The allegation is that
Accused No.1 (appellant herein) along with Accused No.2 with a common


1   302. Punishment for murder.—Whoever commits murder shall be punished with
    death, or imprisonment for life, and shall also be liable to fine.
58             SUPREME COURT REPORTS                                [2023] 12 S.C.R.


intention killed the deceased. The motive statedly being that the deceased
had developed illicit intimacy with the appellant’s sister. It is alleged that
both accused had further tried to destroy evidence by setting fire to the dead
body by pouring petrol. The prosecution examined 12 witnesses including
the Complain-ant/PW1 and one of the attestors to the inquest.
     5. Upon trial, the Principal Sessions Judge, Bangalore Rural District,
Bangalore by Judgment and Order dated 09.06.2005 acquitted the accused of
offences under Sections 302 and 201 of the IPC, holding that the prosecution
had failed to prove that the deceased was last seen in the company of the
accused and had also failed to prove the extra-judicial confession.
     6. Aggrieved by the Judgment and Order dated 09.06.2005, the State
of Karnataka filed Criminal Appeal No.1952 of 2005 before the High Court.
The High Court vide the Impugned Judgment reversed the order of acquittal
passed by the Trial Court qua the appellant whereas the appeal against the
co-accused-Accused No.2 (hereinafter referred to as “A2”) was dismissed.
The same is under challenge in the present appeal by the appellant.
      SUBMISSIONS OF THE APPELLANT:
      7. Learned counsel for the appellant submitted that the ground for
acquittal by the Trial Court is based on evidence and the reasons given are
cogent for holding that the prosecution had failed to prove its case against
the accused under Sections 302 and 2012 of the IPC. It was further submitted


2     201. Causing disappearance of evidence of offence, or giving false information to
screen offender.—Whoever, knowing or having reason to believe that an offence has been
committed, causes any evidence of the commission of that offence to disappear, with the
intention of screening the offender from legal punishment, or with that intention gives any
information respecting the offence which he knows or believes to be false,
      if a capital offence.—shall, if the offence which he knows or believes to have been
committed is punishable with death, be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to fine;
      if punishable with imprisonment for life.—and if the offence is punishable with
imprisonment for life, or with imprisonment which may extend to ten years, shall be
punished with imprisonment of either description for a term which may extend to three
years, and shall also be liable to fine;
      if punishable with less than ten years’ imprisonment.—and if the offence is
punishable with impris-onment for any term not extending to ten years, shall be punished
with imprisonment of the description provided for the offence, for a term which may extend
              R. SREENIVASA v. STATE OF KARNATAKA                                       59
                   [AHSANUDDIN AMANULLAH, J.]

that the High Court erred in reversing the order of acquittal against the
appellant whereas not interfering with the acquittal of the A2 as, basically,
the role(s) assigned to both is the same.
      8. Learned counsel for the appellant submitted that in the charge framed
by the Trial Court, it was clearly mentioned that the specific allegation was
that A2 was the person who had come to the house of the deceased two
days prior to the fateful incident and taken him away on the pretext that
the appellant’s father wanted to meet him whereas during deposition, PW3
and PW8 have stated that it was the appellant who had come and taken the
deceased with him.
      9. Learned counsel submitted that this very basic aspect which
completely changes the theory of last seen cannot result in conviction of
the appellant as that is the sole ground for reversal of acquittal by the High
Court. It was submitted that the only material to hold that the deceased
was last seen in the company of the appellant, by the High Court, was the
testimony of PW10, that too based on the extra-judicial confession by the
appellant before the police, when PW10 during trial had turned hostile.
Thus, it was contended that such finding and reliance on the testimony of
PW10 is erroneous. It was submitted that even the alleged recovery is not
proved and most importantly there was no forensic examination conducted
to prove that the blood belonged to the deceased. The theory of the appellant
buying petrol from PW10, who has turned hostile, is also, according to
learned counsel for the appellant, enough to entitle the appellant to benefit
of doubt.
      10. It was further submitted that even the deceased’s wife stated in her
evidence that there was cordial relationship between the appellant and family
of the deceased and thus, the theory of strong animosity also stands negated.



to one-fourth part of the longest term of the im-prisonment provided for the offence, or with
fine, or with both.
                                        Illustration
     A, knowing that B has murdered Z, assists B to hide the body with the intention of
screening B from punishment. A is liable to imprisonment of either description for seven
years, and also to fine.
60              SUPREME COURT REPORTS                              [2023] 12 S.C.R.


      11. Learned counsel submitted that had there been such strong enmity
between the two sides, there was no occasion for the deceased to have
accompanied the appellant to his house and that too late in the night. It was
urged that a strong pointer to the falsity of the allegation(s) is the fact that
the deceased’s wife admitted during deposition that even when the deceased
did not return for two-three days, she had not made any complaint and a
very vague reason for such conduct is given say-ing that even in the past
he (the deceased) used to go away for two-three days.
      SUBMISSIONS OF THE RESPONDENT-STATE:
      12. Learned counsel for the State, on the other hand, in support of
the Judgement impugned submitted that there was a strong motive for the
appellant to kill the deceased. Learned counsel for the State relied upon
the decision of this Court in State of Rajasthan v Kashi Ram, (2006) 12
SCC 254, the relevant being at Paragraphs 19-23, for the proposition that
once the accused is found to be the person with whom the deceased was
last seen, the onus is on the accused to explain as to where the victim had
gone or how the incident occurred:
      ‘19. Before adverting to the decisions relied upon by the counsel for
      the State, we may observe that whether an inference ought to be drawn
      under Section 106 Evidence Act is a question which must be determined
      by reference to proved3. It is ultimately a matter of appreciation of
      evidence and, therefore, each case must rest on its own facts.
      20. In Joseph v. State of Kerala [(2000) 5 SCC 197 : 2000 SCC (Cri)
      926] the facts were that the deceased was an employee of a school. The
      appellant representing himself to be the husband of one of the sisters
      of Gracy, the deceased, went to St. Mary’s Convent where she was
      employed and on a false pretext that her mother was ill and had been
      admitted to a hospital took her away with the permission of the sister
      in charge of the Convent, PW 5. The case of the prosecution was that
      later the appellant not only raped her and robbed her of her ornaments,
      but also laid her on the rail track to be run over by a passing train. It
      was also found as a fact that the deceased was last seen alive only in


3    There is a typographical error in the text of the judgment.
      R. SREENIVASA v. STATE OF KARNATAKA                             61
           [AHSANUDDIN AMANULLAH, J.]

his company, and that on information furnished by the appellant in the
course of investigation, the jewels of the deceased, which were sold
to PW 11 by the appellant, were seized. There was clear evidence to
prove that those jewels were worn by the deceased at the time when
she left the Convent with the appellant. When questioned under Section
313 CrPC, the appellant did not even attempt to explain or clarify the
incriminating circumstances inculpating and connecting him with
the crime by his adamant attitude of total denial of everything. In the
background of such facts, the Court held: (SCC p. 205, para 14)
      “Such incriminating links of facts could, if at all, have been only
ex-plained by the appellant, and by nobody else, they being personally
and exclusively within his knowledge. Of late, courts have, from the
falsity of the defence plea and false answers given to court, when
questioned, found the missing links to be supplied by such answers
for completing the chain of incriminating circumstances necessary to
connect the person concerned with the crime committed (see State of
Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263]).
That missing link to connect the accused-appellant, we find in this
case provided by the blunt and outright denial of every one and all
the incriminating circumstances pointed out which, in our view, with
sufficient and reasonable certainty on the facts proved, connect the
accused with the death and the cause for the death of Gracy.”
21. In Ram Gulam Chaudhary v. State of Bihar [(2001) 8 SCC 311
: 2001 SCC (Cri) 1546] the facts proved at the trial were that the
deceased boy was brutally assaulted by the appellants. When one
of them declared that the boy was still alive and he should be killed,
a chhurablow was inflicted on his chest. Thereafter, the appellants
carried away the boy who was not seen alive thereafter. The appellants
gave no explanation as to what they did after they took away the boy.
The question arose whether in such facts Section 106 of the Evidence
Act applied. This Court held: (SCC p. 320, para 24)
“In the absence of an explanation, and considering the fact that the
appellants were suspecting the boy to have kidnapped and killed the
child of the family of the appellants, it was for the appellants to have
explained what they did with him after they took him away. When the
62          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


     abductors withheld that information from the court, there is every
     justification for drawing the inference that they had murdered the boy.
     Even though Section 106 of the Evidence Act may not be in-tended to
     relieve the prosecution of its burden to prove the guilt of the accused
     beyond reasonable doubt, but the section would apply to cases like
     the present, where the prosecution has succeeded in proving facts
     from which a reasonable inference can be drawn regarding death.
     The appellants by virtue of their special knowledge must offer an
     explanation which might lead the Court to draw a different inference.”
     22. In Sahadevan v. State [(2003) 1 SCC 534 : 2003 SCC (Cri) 382]
     the prosecution established the fact that the deceased was seen in the
     company of the appellants from the morning of 5-3-1985 till at least 5
     p.m. on that day when he was brought to his house, and thereafter his
     dead body was found in the morning of 6-3-1985. In the background
     of such facts the Court observed: (SCC p. 543, para 19)
           “Therefore, it has become obligatory on the appellants to satisfy
     the court as to how, where and in what manner Vadivelu parted
     company with them. This is on the principle that a person who is last
     found in the company of another, if later found missing, then the person
     with whom he was last found has to explain the circumstances in which
     they parted company. In the instant case the appellants have failed to
     discharge this onus. In their statement under Section 313 CrPC they
     have not taken any specific stand whatsoever.”
     23. It is not necessary to multiply with authorities. The principle is
     well settled. The provisions of Section 106 of the Evidence Act itself
     are unambiguous and categoric in laying down that when any fact is
     especially within the knowledge of a person, the burden of proving that
     fact is upon him. Thus, if a person is last seen with the deceased, he
     must offer an explanation as to how and when he parted company. He
     must furnish an explanation which appears to the court to be probable
     and satisfactory. If he does so he must be held to have discharged his
     burden. If he fails to offer an explanation on the basis of facts within
     his spe-cial knowledge, he fails to discharge the burden cast upon him
     by Section 106 of the Evidence Act. In a case resting on circumstantial
     evidence if the accused fails to offer a reasonable explanation in
            R. SREENIVASA v. STATE OF KARNATAKA                            63
                 [AHSANUDDIN AMANULLAH, J.]

     discharge of the burden placed on him, that itself provides an additional
     link in the chain of circumstances proved against him. Section 106 does
     not shift the burden of proof in a criminal trial, which is always upon
     the prosecution. It lays down the rule that when the accused does not
     throw any light upon facts which are specially within his knowledge
     and which could not support any theory or hypothesis compatible
     with his innocence, the court can consider his failure to adduce any
     explanation, as an additional link which completes the chain. The
     principle has been succinctly stated in Naina Mohd., Re. [AIR 1960
     Mad 218 : 1960 Cri LJ 620]’
     ANALYSIS, REASONING AND CONCLUSION:
      13. Having bestowed thoughtful consideration to the rival submissions
and taking into account the totality of the circumstances, this Court finds
that the Impugned Judgment cannot be sustained. The fact that there is
major discrepancy in the charge framed by the Court and the statement
of the witnesses - the specific allegation that A2 was the one who had
taken away the deceased from his house, whereas during deposition the
deceased’s wife and his brother have stated that it was the appellant who
had taken away the deceased is enough to raise doubts with regard to the
veracity and authenticity of such statements. Furthermore, the fact that the
deceased, late at night, agreed to go to the house of the appellant, when seen
in the backdrop of the allegation that there was strong animosity between
the two, appears to be highly improbable. These circumstances creating a
doubt as to the appellant’s involvement in the crime attain more credence
when gauged apropos the factum of the deceased being missing for more
than two days, yet neither his wife nor his brother re-ported the deceased as
missing. It does not appear that the deceased’s family took any steps to find
out as to where the deceased had gone. The deceased’s wife has testified that
relations between the parties were cordial, and has not hinted at animosity.
      14. The decision relied upon by learned counsel for the State [Kashi
Ram (supra)] is not relevant in the instant facts and circumstances for
the simple reason that in the said case, the fact of ‘last seen’ had been
established and thus, it was held that the accused therein, in whose company
the victim was last seen had to explain as to what happened. Whereas in the
present case, the very fact whether the deceased had in fact gone with the
64            SUPREME COURT REPORTS                         [2023] 12 S.C.R.


appellant, after which his dead body was found had not been proved, as is
the requirement in law. In Kashi Ram (supra) itself, this is evincible from
the subsequent paragraph:
     ‘24. There is considerable force in the argument of counsel for the
     State that in the facts of this case as well it should be held that the
     respondent having been seen last with the deceased, the burden was
     upon him to prove what happened thereafter, since those facts were
     within his special knowledge. Since, the respondent failed to do so, it
     must be held that he failed to discharge the burden cast upon him by
     Section 106 of the Evidence Act. This circumstance, therefore, provides
     the missing link in the chain of circumstances which prove his guilt
     beyond reasonable doubt.’
                                                          (emphasis supplied)
      15. The burden on the accused would, therefore, kick in, only when the
last seen theory is established. In the instant case, at the cost of repetition,
that itself is in doubt. This is borne out from subsequent decisions of this
Court, which we would advert to:
(a) Kanhaiya Lal v State of Rajasthan, (2014) 4 SCC 715, where it was
noted:
     ‘12. The circumstance of last seen together does not by itself and
     necessarily lead to the inference that it was the accused who committed
     the crime. There must be something more establishing connectivity
     between the accused and the crime. Mere non-explanation on the part
     of the appellant, in our considered opinion, by itself cannot lead to
     proof of guilt against the appellant.’
                                                          (emphasis supplied)
(b) Nizam v State of Rajasthan, (2016) 1 SCC 550, the relevant discussion
contained at Paragraphs 16-18, after noticing Kashi Ram (supra):
     ‘16. In the light of the above, it is to be seen whether in the facts and
     circumstances of this case, the courts below were right in invoking
     the “last seen theory”. From the evidence discussed above, deceased
     Manoj allegedly left in the truck DL 1 GA 5943 on 23-1-2001. The body
     of deceased Manoj was recovered on 26-1-2001. The prosecution has
      R. SREENIVASA v. STATE OF KARNATAKA                          65
           [AHSANUDDIN AMANULLAH, J.]

contended that the accused persons were last seen with the deceased
but the accused have not offered any plausible, cogent explanation
as to what has happened to Manoj. Be it noted, that only if the
prosecution has succeeded in proving the facts by definite evidence
that the deceased was last seen alive in the company of the accused,
a reasonable inference could be drawn against the accused and then
only onus can be shifted on the accused under Sec-tion 106 of the
Evidence Act.
17. During their questioning under Section 313 CrPC, the appellant-
accused denied Manoj having travelled in their Truck No. DL 1 GA
5943. As noticed earlier, the body of Manoj was recovered only on
26-1-2001 after three days. The gap between the time when Manoj is
alleged to have left in Truck No. DL 1 GA 5943 and the recovery of
the body is not so small, to draw an inference against the appellants.
At this juncture, yet another aspect emerging from the evidence needs
to be noted. From the statement made by Shahzad Khan (PW 4) the
internal organ (penis) of the deceased was tied with rope and blood
was oozing out from his nostrils. Maniya Village, the place where
the body of Manoj was recovered is alleged to be a notable place for
prostitution where people from different areas come for enjoyment.
18. In view of the time gap between Manoj being left in the truck and
the recovery of the body and also the place and circumstances in which
the body was recovered, possibility of others intervening cannot be
ruled out. In the absence of definite evidence that the appellants and
the deceased were last seen together and when the time gap is long,
it would be dangerous to come to the conclusion that the appellants
are responsible for the murder of Manoj and are guilty of commit-
ting murder of Manoj. Where time gap is long it would be unsafe
to base the conviction on the “last seen theory”; it is safer to look
for corroboration from other circumstances and evidence adduced
by the prosecution. From the facts and evidence, we find no other
corroborative piece of evidence corroborating the last seen theory.’
                                                 (emphasis supplied)
66            SUPREME COURT REPORTS                         [2023] 12 S.C.R.


       16. The cautionary note sounded in Nizam (supra) is important. The
‘last seen’ theory can be invoked only when the same stands proved beyond
reasonable doubt. A 3-Judge Bench in Chotkau v State of Uttar Pradesh,
(2023) 6 SCC 742 opined as under:
     ‘15. It is needless to point out that for the prosecution to successfully
     invoke Section 106 of the Evidence Act, they must first establish
     that there was “any fact especially within the knowledge of the”
     appellant. …’
                                                          (emphasis supplied)
      17. In the present case, given that there is no definitive evidence
of last seen as also the fact that there is a long time-gap between the
alleged last seen and the recovery of the body, and in the absence of
other corroborative pieces of evidence, it cannot be said that the chain
of circumstances is so complete that the only inference that could
be drawn is the guilt of the appellant. In Laxman Prasad v State of
Madhya Pradesh, (2023) 6 SCC 399, we had, upon considering Sharad
Birdhichand Sarda v State of Maharashtra, (1984) 4 SCC 116 and
Shailendra Rajdev Pasvan v State of Gujarat, (2020) 14 SCC 750,
held that ‘… In a case of circumstantial evidence, the chain has to be
complete in all respects so as to indicate the guilt of the accused and also
exclude any other theory of the crime.’ It would be unsafe to sustain the
conviction of the appellant on such evidence, where the chain is clearly
incomplete. That apart, the presumption of innocence is in favour of the
accused and when doubts emanate, the benefit accrues to the accused,
and not the prosecution. Reference can be made to Suresh Thipmppa
Shetty v State of Maharashtra, 2023 INSC 749 .
      18. That apart, in Chandrappa v State of Karnataka, (2007) 4 SCC
415, it was laid down that an appellate court, in the case of an acquittal, must
bear in mind that there is a double presumption in favour of the accused. It
was also emphasised that when two views are possible, the one favouring
the accused is to be leaned on. The powers of the appellate Court have been
recently summarised in Jafarudheen v State of Kerala, (2022) 8 SCC 440
at Paragraphs 25-27. On these factors as well, the Impugned Judgment is
untenable.
             R. SREENIVASA v. STATE OF KARNATAKA                         67
                  [AHSANUDDIN AMANULLAH, J.]

     19. For the reasons aforesaid, the appeal is allowed. The Impugned
Judgment of conviction and sentence passed by the High Court is set aside.
The appellant is discharged from the liability of his bail bonds.


Headnotes prepared by:                                       Appeal allowed.
Divya Pandey