RAM GOPAL S/O MANSHARAMversusSTATE OF MADHYA PRADESH

402                       [2023]
               SUPREME COURT     2 S.C.R. 402
                              REPORTS                       [2023] 2 S.C.R.


A                     RAM GOPAL S/O MANSHARAM
                                        v.
                       STATE OF MADHYA PRADESH
              (Special Leave Petition (Criminal) No. 9221 of 2018)
B                             FEBRUARY 17, 2023
             [AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]
             Penal Code, 1860 – s.302 – Conviction under – Evidence
      Act 1872 – s. 106 – Prosecution case is that petitioner-accused had
C     taken victim-deceased – Thereafter the very next day, victim was
      found lying dead on road – Petitioner convicted u/s. 302 IPC –
      High Court confirmed the conviction – On appeal, held: The time
      gap between the period when the deceased was last seen with the
      accused and the recovery of the corpse of the deceased being quite
      proximate, the non-explanation of the petitioner with regard to the
D
      circumstance under which and when the petitioner had departed
      the company of the deceased was a very crucial circumstance proved
      against him – Having regard to the oral evidence of the witnesses,
      the enmity between the deceased and the petitioner had also surfaced
      – The corroborative evidence with regard to recovery of the weapon-
E     axe alleged to have been used in the commission of crime from the
      petitioner, also substantiated the case of prosecution.
             Evidence Act, 1872 – s.106 and ‘last seen together’ – Once
      the theory of “last seen together” was established by the prosecution,
      the accused was expected to offer some explanation as to when
F
      and under what circumstances he had parted the company of the
      deceased – It is true that the burden to prove the guilt of the accused
      is always on the prosecution, however in view of Section 106 of the
      Evidence Act, when any fact is within the knowledge of any person,
      the burden of proving that fact is upon him – If the accused does
G     not throw any light upon the facts which are proved to be within his
      special knowledge, in view of Section 106 of the Evidence Act, such
      failure on the part of the accused may be used against the accused
      as it may provide an additional link in the chain of circumstances
      required to be proved against him.
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                                       402
   RAM GOPAL S/O MANSHARAM v. STATE OF MADHYA                            403
                    PRADESH

      Dismissing the appeal, the Court                                   A
       HELD 1.1. Once the theory of “last seen together” was
established by the prosecution, the accused was expected to offer
some explanation as to when and under what circumstances he
had parted the company of the deceased. It is true that the burden
to prove the guilt of the accused is always on the prosecution,          B
however in view of Section 106 of the Evidence Act, when any
fact is within the knowledge of any person, the burden of proving
that fact is upon him. Of course, Section 106 is certainly not
intended to relieve the prosecution of its duty to prove the guilt
of the accused, nonetheless, it is also equally settled legal position
that if the accused does not throw any light upon the facts which        C
are proved to be within his special knowledge, in view of Section
106 of the Evidence Act, such failure on the part of the accused
may be used against the accused as it may provide an additional
link in the chain of circumstances required to be proved against
him. In the case based on circumstantial evidence, furnishing or         D
non-furnishing of the explanation by the accused would be a very
crucial fact, when the theory of “last seen together” as propounded
by the prosecution was proved against him. [Para 6][407-D-G]
      1.2 It is discernible that though the last seen theory as
propounded by the prosecution in a case based on circumstantial          E
evidence may be a weak kind of evidence by itself to base
conviction solely on such theory, when the said theory is proved
coupled with other circumstances such as the time when the
deceased was last seen with the accused, and the recovery of the
corpse being in very close proximity of time, the accused does
owe an explanation under Section 106 of the Evidence Act with            F
regard to the circumstances under which death might have taken
place. If the accused offers no explanation or furnishes a wrong
explanation, absconds, motive is established and some other
corroborative evidence in the form of recovery of weapon etc.
forming a chain of circumstances is established, the conviction          G
could be based on such evidence. [Para 9][409-C-E]
     2. So far as the facts in the instant case are concerned, it
was duly proved that the death of the deceased was homicidal. It

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404           SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A     was not disputed that the petitioner had taken the deceased with
      him on the previous day evening and thereafter he was also seen
      with the deceased by the witness PW-4 and the very next day
      early morning, the dead body of the deceased was found lying in
      the field at village Chachiha. The time gap between the period
      when the deceased was last seen with the accused and the
B
      recovery of the corpse of the deceased being quite proximate,
      the non-explanation of the petitioner with regard to the
      circumstance under which and when the petitioner had departed
      the company of the deceased was a very crucial circumstance
      proved against him. Having regard to the oral evidence of the
C     witnesses, the enmity between the deceased and the petitioner
      had also surfaced. The corroborative evidence with regard to
      recovery of the weapon – axe alleged to have been used in the
      commission of crime from the petitioner, also substantiated the
      case of prosecution. [Para 10][409-E-H ]
D           Rajender v. State (NCT of Delhi), (2019) 10 SCC 623;
            Satpal v. State of Haryana, (2018) 6 SCC 610 - relied
            on.
            Padala Veera Reddy v. State of Andhra Pradesh and
            Others 1989 Supp (2) SCC 706; Shahaja alias
E           Shahajan Ismail Mohd. Shaikh v. State of Maharashtra
            (2022) SCC OnLine SC 883; Nizam and Another v.
            State of Rajasthan (2016) 1 SCC 550; Rajender v. State
            (NCT of Delhi) (2019) 10 SCC 623; Satpal v. State of
            Haryan, (2018) 6 SCC 610 – referred to.

F                           Case Law Reference
      (1989) Supp (2) SCC 706       referred to             Para 3
      (2016) 1 SCC 550              referred to             Para 3
      (2019) 10 SCC 623             relied on               Para 7
G     (2018) 6 SCC 610              relied on               Para 8
             CRIMINAL APPELLATE JURISDICTION : Special Leave
      Petition (Crl.) No.9221 of 2018.
           From the Judgment and Order dated 13.07.2018 of the High Court
      of Madhya Pradesh at Gwalior in CRLA No.70 of 2000.
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   RAM GOPAL S/O MANSHARAM v. STATE OF MADHYA                                405
                    PRADESH

       Salman Khurshid, Sr. Adv., Sanjay K. Agrawal, Yogesh Tiwari,          A
Ms. Neema, Vikrant Singh B., Ms. Amna Darakhshan, Advs. for the
Petitioner.
      D. S. Parmar, AAG, Harmeet Singh Ruprah, Sunny Choudhary,
Advs. for the Respondent.
      The Judgment of the Court was delivered by                             B

      BELA M. TRIVEDI, J.
       1. The impugned judgment and order dated 13.07.2018 passed by
the High Court of Madhya Pradesh, Bench at Gwalior in Criminal Appeal
No. 70/2000 has been sought to be challenged by the petitioner-accused       C
by way of present petition. The said appeal was dismissed by the High
Court confirming the judgment and order dated 17.01.2000 passed by
the First Additional Sessions Judge, Morena (hereinafter referred to as
the “Sessions Court”) in ST No. 205/1996, whereby the petitioner was
convicted for the offence under Section 302 IPC and was sentenced to
undergo life imprisonment with fine of Rs. 5,000/-, in default thereof to    D
suffer further rigorous imprisonment for a period of two years.
       2. The petitioner-accused Ramgopal alias Gopal was the Ex-
Sarpanch of the village Har Gangoli. On 20.12.1995 at about 09:30 AM,
the complainant Upendra Singh (PW-1) reported at the Police Station
Baghchini that on 19.12.1995 at about 5 PM his uncle (Tau) Pratap            E
Singh Sikarwar was taken by the Sarpanch Ram Gopal from Arhela,
and the dead body of his uncle Pratap Singh was lying on the road near
the house of Bharosibaba at village Chachiha. He further alleged in the
complaint that there were injuries found on the head and ear of his uncle
and blood was oozing out from the said parts. The said complaint was         F
registered at the Police Station Baghchini as FIR No. 132/95 on
20.12.1995. The Investigating Officer after carrying out the investigation
submitted the chargesheet against the petitioner- Ramgopal along with
other three accused i.e., Suresh Singh, Chhotalli @ Chhotey Singh and
Mintoo @ Karan Singh. The Sessions Court framed charge against the
accused for the offence under Section 302 and in the alternative Section     G
302 read with 34 IPC. The Sessions Court after appreciating the evidence
on record convicted the petitioner-Ramgopal for the charged offence
under Section 302 IPC, however acquitted the other three accused giving
them benefit of doubt. Being aggrieved by the same, the petitioner had
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406             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A     preferred the appeal before the High Court, which came to be dismissed
      by the impugned order.
             3. The learned Senior Counsel Mr. Salman Khurshid appearing
      for the petitioner submitted that the case of the prosecution rested solely
      on the circumstantial evidence, however the prosecution had miserably
B     failed to prove the entire chain of circumstances leading unerringly to
      the guilt of the petitioner-accused. According to him, the courts below
      have committed an error in convicting the petitioner merely on the theory
      of “last seen together”, however there was a big time gap between the
      time when the petitioner was lastly seen with the deceased and the time
      when the dead body of the deceased was recovered. The alleged recovery
C     of weapon axe from the petitioner also could not be a ground for conviction,
      more particularly when the doctor who had carried out the post-mortem
      of the dead body of the deceased, had not opined that the injuries found
      on the dead body of the deceased were possible with the said weapon.
      According to Mr. Khurshid, there was no animosity between the
D     deceased and the petitioner, and on the contrary as per the evidence of
      PW-1 Upendra Singh and PW-8 Ramshree, their relations were quite
      cordial. In absence of examination of any independent witness, runs the
      submission of Mr. Khurshid, the benefit of doubt deserves to be given to
      the petitioner, when the other three co-accused were given such benefit.
      Mr. Khurshid has placed heavy reliance on the decision of this Court in
E     the case of Padala Veera Reddy vs. State of Andhra Pradesh and
      others1, in case of Shahaja alias Shahajan Ismail Mohd. Shaikh vs.
      State of Maharashtra2, and in case of Nizam and another vs. State of
      Rajasthan3 in support of his submissions.
             4. However, the learned Advocate Mr. D.S. Parmar appearing
F     for the respondent-State submitted that there being concurrent findings
      of the guilt recorded by the courts below against the petitioner, this Court
      should not interfere with the same. He further submitted that the petitioner
      in his further statement under Section 313 had failed to explain as to
      when and how he departed from the company of the deceased, when
G     undisputedly he was with the deceased during the previous evening of
      his death, and therefore both the courts below had rightly held the said
      circumstance as a circumstance adverse to the petitioner.
      1
        1989 Supp (2) SCC 706
      2
        (2022) SCC OnLine SC 883
      3
        (2016) 1 SCC 550
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      RAM GOPAL S/O MANSHARAM v. STATE OF MADHYA                               407
              PRADESH [BELA M. TRIVEDI, J.]

       5. It cannot be gainsaid that when the entire case of the prosecution   A
hinges on the circumstantial evidence, the entire chain of circumstances
has to be completely proved, which unerringly would lead to the guilt of
the accused and none else. So far as the evidence on record in the
present case is concerned, it emerges that it was not disputed that on
19.12.1995 at about 5 PM, the petitioner-accused had taken the deceased
                                                                               B
Pratap Singh from his house. Thereafter, the deceased and the petitioner
were also seen together at the shop of one Shripal at village Arhela by
the witness Vijay Singh (PW-4). It was also not disputed that on the next
day morning the dead body of the deceased was found lying near one
field at village Chachiha. Hence, the death of the deceased Pratap Singh
had taken place during the night hours of 19th and 20th December,1995,         C
and that the petitioner was lastly seen with the deceased on the previous
evening. Thus, it was the petitioner alone, who knew as to what happened
after the evening of 19th December, 1995.
       6. It may be noted that once the theory of “last seen together”
was established by the prosecution, the accused was expected to offer          D
some explanation as to when and under what circumstances he had
parted the company of the deceased. It is true that the burden to prove
the guilt of the accused is always on the prosecution, however in view of
Section 106 of the Evidence Act, when any fact is within the knowledge
of any person, the burden of proving that fact is upon him. Of course,
Section 106 is certainly not intended to relieve the prosecution of its duty   E
to prove the guilt of the accused, nonetheless it is also equally settled
legal position that if the accused does not throw any light upon the facts
which are proved to be within his special knowledge, in view of Section
106 of the Evidence Act, such failure on the part of the accused may be
used against the accused as it may provide an additional link in the chain     F
of circumstances required to be proved against him. In the case based
on circumstantial evidence, furnishing or non- furnishing of the
explanation by the accused would be a very crucial fact, when the theory
of “last seen together” as propounded by the prosecution was proved
against him.
                                                                               G
      7. In case of Rajender vs. State (NCT of Delhi)4, it was observed
as under:
         “12.2.4. Having observed so, it is crucial to note that the
         reasonableness of the explanation offered by the accused as to
4
    (2019) 10 SCC 623                                                          H
408               SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A              how and when he/she parted company with the deceased has a
               bearing on the effect of the last seen in a case. Section 106 of the
               Evidence Act, 1872 provides that the burden of proof for any fact
               that is especially within the knowledge of a person lies upon such
               person. Thus, if a person is last seen with the deceased, he must
               offer an explanation as to how and when he parted company with
B
               the deceased. In other words, he must furnish an explanation that
               appears to the court to be probable and satisfactory, and if he fails
               to offer such an explanation on the basis of facts within his special
               knowledge, the burden cast upon him under Section 106 is not
               discharged. Particularly in cases resting on circumstantial evidence,
C              if the accused fails to offer a reasonable explanation in discharge
               of the burden placed on him, such failure by itself can provide an
               additional link in the chain of circumstances proved against him.
               This, however, does not mean that Section 106 shifts the burden
               of proof of a criminal trial on the accused. Such burden always
               rests on the prosecution. Section 106 only lays down the rule that
D
               when the accused does not throw any light upon facts which are
               specially within his/her knowledge and which cannot support
               any theory or hypothesis compatible with his innocence, the court
               can consider his failure to adduce an explanation as an additional
               link which completes the chain of incriminating circumstances.”
E              8. In Satpal Vs. State of Haryana5, this Court observed as under:-
               “6. We have considered the respective submissions and the
               evidence on record. There is no eyewitness to the occurrence but
               only circumstances coupled with the fact of the deceased having
               been last seen with the appellant. Criminal jurisprudence and the
F              plethora of judicial precedents leave little room for reconsideration
               of the basic principles for invocation of the last seen theory as a
               facet of circumstantial evidence. Succinctly stated, it may be a
               weak kind of evidence by itself to found conviction upon the same
               singularly. But when it is coupled with other circumstances such
G              as the time when the deceased was last seen with the accused,
               and the recovery of the corpse being in very close proximity of
               time, the accused owes an explanation under Section 106 of the
               Evidence Act with regard to the circumstances under which death
               may have taken place. If the accused offers no explanation, or
      5
H         (2018) 6 SCC 610
    RAM GOPAL S/O MANSHARAM v. STATE OF MADHYA                                  409
            PRADESH [BELA M. TRIVEDI, J.]

      furnishes a wrong explanation, absconds, motive is established,           A
      and there is corroborative evidence available inter alia in the form
      of recovery or otherwise forming a chain of circumstances leading
      to the only inference for guilt of the accused, incompatible with
      any possible hypothesis of innocence, conviction can be based on
      the same. If there be any doubt or break in the link of chain of
                                                                                B
      circumstances, the benefit of doubt must go to the accused. Each
      case will therefore have to be examined on its own facts for
      invocation of the doctrine.”
        9. In view of the afore-stated legal position, it is discernible that
though the last seen theory as propounded by the prosecution in a case
based on circumstantial evidence may be a weak kind of evidence by              C
itself to base conviction solely on such theory, when the said theory is
proved coupled with other circumstances such as the time when the
deceased was last seen with the accused, and the recovery of the corpse
being in very close proximity of time, the accused does owe an explanation
under Section 106 of the Evidence Act with regard to the circumstances          D
under which death might have taken place. If the accused offers no
explanation or furnishes a wrong explanation, absconds, motive is
established and some other corroborative evidence in the form of recovery
of weapon etc. forming a chain of circumstances is established, the
conviction could be based on such evidence.
                                                                                E
       10. So far as the facts in the instant case are concerned, it was
duly proved that the death of the deceased was homicidal. It was not
disputed that the petitioner had taken the deceased with him on the
previous day evening and thereafter he was also seen with the deceased
by the witness Vijay Singh (PW-4) and the very next day early morning,
the dead body of the deceased was found lying in the field at village           F
Chachiha. The time gap between the period when the deceased was
last seen with the accused and the recovery of the corpse of the deceased
being quite proximate, the non-explanation of the petitioner with regard
to the circumstance under which and when the petitioner had departed
the company of the deceased was a very crucial circumstance proved              G
against him. Having regard to the oral evidence of the witnesses, the
enmity between the deceased and the petitioner had also surfaced. The
corroborative evidence with regard to recovery of the weapon – axe
alleged to have been used in the commission of crime from the petitioner,
also substantiated the case of prosecution.
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410              SUPREME COURT REPORTS                         [2023] 2 S.C.R.


A            11. The entire oral as well as documentary evidence having been
      threadbare considered by the Sessions Court as also High Court while
      holding the petitioner guilty of the charged offence, this Court need not
      again reappreciate the same in the petition under Article 136 of the
      Constitution of India. Suffice it to say that the learned Senior Advocate
      Mr. Khurshid has failed to point out during the course of his arguments
B
      any perversity or illegality in the impugned orders passed by the courts
      below, which would shake the conscience of this Court warranting
      interference in the impugned judgments.
            12. In that view of the matter, we are not inclined to interfere with
      the impugned judgments and orders passed by the courts below. The
C     Special Leave Petition stands dismissed accordingly.

      Ankit Gyan                                                  Appeal dismissed.
      (Assisted by : Bhavyata Kapoor, LCRA)


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