RAM GOPAL S/O MANSHARAM versus STATE OF MADHYA PRADESH

Citation: [2023] 2 S.C.R. 402 · Decided: 17-02-2023 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Dismissed

Judgment (excerpt)

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[2023] 2 S.C.R.
   [2023] 2 S.C.R. 402
402
RAM GOPAL S/O MANSHARAM
v.
STATE OF MADHYA PRADESH
(Special Leave Petition (Criminal) No. 9221 of 2018)
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
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
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-
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
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
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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Dismissing the appeal, the Court
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,
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
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
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
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
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
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
RAM GOPAL S/O MANSHARAM v. STATE OF MADHYA
PRADESH
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[2023] 2 S.C.R.
was not disputed that the petitioner had taken the deceased with
him on the prev

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