RAM GOPAL S/O MANSHARAM versus STATE OF MADHYA PRADESH on 17 February 2023

1. The impugned judgment and order dated 13.07.2018 passed bythe High Court of Madhya Pradesh, Bench at Gwalior in Criminal AppealNo. 70/2000 has been sought to be challenged by the petitioner-accusedby way of present petition. The said appeal was dismissed by the HighCourt confirming the judgment and order dated 17.01.2000 passed bythe First Additional Sessions Judge, Morena (hereinafter referred to asthe “Sessions Court”) in ST No. 205/1996, whereby the petitioner wasconvicted for the offence under Section 302 IPC and was sentenced toundergo life imprisonment with fine of Rs. 5,000/-, in default thereof tosuffer 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 StationBaghchini that on 19.12.1995 at about 5 PM his uncle (Tau) PratapSingh Sikarwar was taken by the Sarpanch Ram Gopal from Arhela,and the dead body of his uncle Pratap Singh was lying on the road nearthe house of Bharosibaba at village Chachiha. He further alleged in thecomplaint that there were injuries found on the head and ear of his uncleand blood was oozing out from the said parts. The said complaint wasregistered at the Police Station Baghchini as FIR No. 132/95 on20.12.1995. The Investigating Officer after carrying out the investigationsubmitted the chargesheet against the petitioner- Ramgopal along withother three accused i.e., Suresh Singh, Chhotalli @ Chhotey Singh andMintoo @ Karan Singh. The Sessions Court framed charge against theaccused for the offence under Section 302 and in the alternative Section302 read with 34 IPC. The Sessions Court after appreciating the evidenceon record convicted the petitioner-Ramgopal for the charged offenceunder Section 302 IPC, however acquitted the other three accused givingthem benefit of doubt. Being aggrieved by the same, the petitioner had A

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Apreferred the appeal before the High Court, which came to be dismissedby the impugned order.

3. The learned Senior Counsel Mr. Salman Khurshid appearingfor the petitioner submitted that the case of the prosecution rested solelyon the circumstantial evidence, however the prosecution had miserablyBfailed to prove the entire chain of circumstances leading unerringly tothe guilt of the petitioner-accused. According to him, the courts belowhave committed an error in convicting the petitioner merely on the theoryof “last seen together”, however there was a big time gap between thetime when the petitioner was lastly seen with the deceased and the timewhen the dead body of the deceased was recovered. The alleged recoveryCof weapon axe from the petitioner also could not be a ground for conviction,more particularly when the doctor who had carried out the post-mortemof the dead body of the deceased, had not opined that the injuries foundon the dead body of the deceased were possible with the said weapon.According to Mr. Khurshid, there was no animosity between theDdeceased and the petitioner, and on the contrary as per the evidence ofPW-1 Upendra Singh and PW-8 Ramshree, their relations were quitecordial. In absence of examination of any independent witness, runs thesubmission of Mr. Khurshid, the benefit of doubt deserves to be given tothe petitioner, when the other three co-accused were given such benefit.Mr. Khurshid has placed heavy reliance on the decision of this Court in Ethe case of Padala Veera Reddy vs. State of Andhra Pradesh andothers[1], in case of Shahaja alias Shahajan Ismail Mohd. Shaikh vs.State of Maharashtra[2], and in case of Nizam and another vs. State ofRajasthan[3]in support of his submissions.

4. However, the learned Advocate Mr. D.S. Parmar appearingFfor the respondent-State submitted that there being concurrent findingsof the guilt recorded by the courts below against the petitioner, this Courtshould not interfere with the same. He further submitted that the petitionerin his further statement under Section 313 had failed to explain as towhen and how he departed from the company of the deceased, whenGundisputedly he was with the deceased during the previous evening ofhis death, and therefore both the courts below had rightly held the saidcircumstance as a circumstance adverse to the petitioner.

1 1989 Supp (2) SCC 706

2 (2022) SCC OnLine SC 8833 (2016) 1 SCC 550H

1 1989 Supp (2) SCC 706

2 (2022) SCC OnLine SC 8833 (2016) 1 SCC 550H

5. It cannot be gainsaid that when the entire case of the prosecutionhinges on the circumstantial evidence, the entire chain of circumstanceshas to be completely proved, which unerringly would lead to the guilt ofthe accused and none else. So far as the evidence on record in thepresent case is concerned, it emerges that it was not disputed that on19.12.1995 at about 5 PM, the petitioner-accused had taken the deceasedPratap Singh from his house. Thereafter, the deceased and the petitionerwere also seen together at the shop of one Shripal at village Arhela bythe witness Vijay Singh (PW-4). It was also not disputed that on the nextday morning the dead body of the deceased was found lying near onefield at village Chachiha. Hence, the death of the deceased Pratap Singhhad taken place during the night hours of 19[th] and 20[th] December,1995,and that the petitioner was lastly seen with the deceased on the previousevening. Thus, it was the petitioner alone, who knew as to what happenedafter the evening of 19[th] 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 offersome explanation as to when and under what circumstances he hadparted the company of the deceased. It is true that the burden to provethe guilt of the accused is always on the prosecution, however in view ofSection 106 of the Evidence Act, when any fact is within the knowledgeof 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 dutyto prove the guilt of the accused, nonetheless it is also equally settledlegal position that if the accused does not throw any light upon the factswhich are proved to be within his special knowledge, in view of Section106 of the Evidence Act, such failure on the part of the accused may beused against the accused as it may provide an additional link in the chainof circumstances required to be proved against him. In the case basedon circumstantial evidence, furnishing or non- furnishing of theexplanation by the accused would be a very crucial fact, when the theoryof “last seen together” as propounded by the prosecution was provedagainst him.

7. In case of Rajender vs. State (NCT of Delhi)[4], it was observedas under:

“12.2.4. Having observed so, it is crucial to note that thereasonableness of the explanation offered by the accused as to4 (2019) 10 SCC 623

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how and when he/she parted company with the deceased has abearing on the effect of the last seen in a case. Section 106 of theEvidence Act, 1872 provides that the burden of proof for any factthat is especially within the knowledge of a person lies upon suchperson. Thus, if a person is last seen with the deceased, he mustoffer an explanation as to how and when he parted company withthe deceased. In other words, he must furnish an explanation thatappears to the court to be probable and satisfactory, and if he failsto offer such an explanation on the basis of facts within his specialknowledge, the burden cast upon him under Section 106 is notdischarged. Particularly in cases resting on circumstantial evidence,if the accused fails to offer a reasonable explanation in dischargeof the burden placed on him, such failure by itself can provide anadditional link in the chain of circumstances proved against him.This, however, does not mean that Section 106 shifts the burdenof proof of a criminal trial on the accused. Such burden alwaysrests on the prosecution. Section 106 only lays down the rule thatwhen the accused does not throw any light upon facts which arespecially within his/her knowledge and which cannot supportany theory or hypothesis compatible with his innocence, the courtcan consider his failure to adduce an explanation as an additionallink which completes the chain of incriminating circumstances.”

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E8. In Satpal Vs. State of Haryana[5], this Court observed as under:-

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E8. In Satpal Vs. State of Haryana[5], this Court observed as under:- “6. We have considered the respective submissions and theevidence on record. There is no eyewitness to the occurrence butonly circumstances coupled with the fact of the deceased havingbeen last seen with the appellant. Criminal jurisprudence and theFplethora of judicial precedents leave little room for reconsiderationof the basic principles for invocation of the last seen theory as afacet of circumstantial evidence. Succinctly stated, it may be aweak kind of evidence by itself to found conviction upon the samesingularly. But when it is coupled with other circumstances suchGas the time when the deceased was last seen with the accused,and the recovery of the corpse being in very close proximity oftime, the accused owes an explanation under Section 106 of theEvidence Act with regard to the circumstances under which deathmay have taken place. If the accused offers no explanation, or H5 (2018) 6 SCC 610

RAM GOPAL S/O MANSHARAM v. STATE OF MADHYAPRADESH [BELA M. TRIVEDI, J.]

furnishes a wrong explanation, absconds, motive is established,and there is corroborative evidence available inter alia in the formof recovery or otherwise forming a chain of circumstances leadingto the only inference for guilt of the accused, incompatible withany possible hypothesis of innocence, conviction can be based onthe same. If there be any doubt or break in the link of chain ofcircumstances, the benefit of doubt must go to the accused. Eachcase will therefore have to be examined on its own facts forinvocation of the doctrine.”

9. In view of the afore-stated legal position, it is discernible thatthough the last seen theory as propounded by the prosecution in a casebased on circumstantial evidence may be a weak kind of evidence byitself to base conviction solely on such theory, when the said theory isproved coupled with other circumstances such as the time when thedeceased was last seen with the accused, and the recovery of the corpsebeing in very close proximity of time, the accused does owe an explanationunder Section 106 of the Evidence Act with regard to the circumstancesunder which death might have taken place. If the accused offers noexplanation or furnishes a wrong explanation, absconds, motive isestablished and some other corroborative evidence in the form of recoveryof weapon etc. forming a chain of circumstances is established, theconviction could be based on such evidence.

10. So far as the facts in the instant case are concerned, it wasduly proved that the death of the deceased was homicidal. It was notdisputed that the petitioner had taken the deceased with him on theprevious day evening and thereafter he was also seen with the deceasedby 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 villageChachiha. The time gap between the period when the deceased waslast seen with the accused and the recovery of the corpse of the deceasedbeing quite proximate, the non-explanation of the petitioner with regardto the circumstance under which and when the petitioner had departedthe company of the deceased was a very crucial circumstance provedagainst him. Having regard to the oral evidence of the witnesses, theenmity between the deceased and the petitioner had also surfaced. Thecorroborative evidence with regard to recovery of the weapon – axealleged to have been used in the commission of crime from the petitioner,also substantiated the case of prosecution.

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A11. The entire oral as well as documentary evidence having beenthreadbare considered by the Sessions Court as also High Court whileholding the petitioner guilty of the charged offence, this Court need notagain reappreciate the same in the petition under Article 136 of theConstitution of India. Suffice it to say that the learned Senior AdvocateMr. Khurshid has failed to point out during the course of his argumentsBany perversity or illegality in the impugned orders passed by the courtsbelow, which would shake the conscience of this Court warrantinginterference in the impugned judgments.

12. In that view of the matter, we are not inclined to interfere withthe impugned judgments and orders passed by the courts below. TheCSpecial Leave Petition stands dismissed accordingly.

Ankit Gyan

(Assisted by : Bhavyata Kapoor, LCRA)

Appeal dismissed.

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