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 weaponaxe 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.
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 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 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. [Para 10][409-E-H ]
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
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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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