2023INSC803 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 859 OF 2011

R. SREENIVASA … APPELLANT

VERSUS

STATE OF KARNATAKA … RESPONDENTS

J U D G M E N T

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

2

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 302

1

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 intention killed

the deceased. The motive statedly being that the

1 302. Punishment for murder.—Whoever commits murder shall be punished with death, or imprisonment for

life, and shall also be liable to fine.

3

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 Complainant/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

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(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 201

2

of the

IPC. It was further submitted that the High Court erred

in reversing the order of acquittal against the

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

imprisonment 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 to one-fourth part of the longest term of the imprisonment

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.

5

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

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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.

11.Learned counsel submitted that had there been such

strong enmity between the two sides, there was no

7

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 saying 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

8

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 proved

3

. 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

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

3 There is a typographical error in the text of the judgment.

9

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 explained 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 chhura-blow 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

10

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 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

intended 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

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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 special 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 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

12

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

13

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 reported 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 appellant, after which his dead body was

found had not been proved, as is the requirement in

14

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

15

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

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 Section 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

16

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 committing

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)

16.The cautionary note sounded in Nizam (supra) is

important. The ‘last seen’ theory can be invoked only

17

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

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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

4

.

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 ,

4 2023 SCC OnLine SC 1038.

19

(2022) 8 SCC 440 at Paragraphs 25-27. On these factors

as well, the Impugned Judgment is untenable.

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.

........................J.

[VIKRAM NATH]

..........................J.

[AHSANUDDIN AMANULLAH]

NEW DELHI

SEPTEMBER 6, 2023