Ram Gopal vs The State Of Madhya Pradesh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (Crl.) No. 9221 OF 2018

RAM GOPAL S/O MANSHARAM .....PETITIONER

VERSUS

STATE OF MADHYA PRADESH .....RESPONDENT

JUDGMENT

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 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. Signature Not Verified Digitally signed by Ashwani Kumar 205/1996, whereby the petitioner was convicted for the offence Date: 2023.02.17 17:06:16 IST Reason:

under Section 302 IPC and was sentenced to undergo life

1 imprisonment with fine of Rs. 5,000/-, in default thereof to 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 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

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 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

2 them benefit of doubt. Being aggrieved by the same, the petitioner

had 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 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 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 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

3 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 the case of

Padala Veera Reddy vs. State of Andhra Pradesh and others 1,

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 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 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.

5. It cannot be gainsaid that when the entire case of the prosecution

hinges on the circumstantial evidence, the entire chain of

circumstances has to be completely proved, which unerringly

1 1989 Supp (2) SCC 706 2 (2022) SCC OnLine SC 883 3 (2016) 1 SCC 550

4 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 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 19 th and

20th December,1995, 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 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 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

5 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.

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 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 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 4 (2019) 10 SCC 623

6 within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, 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 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.”

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 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 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 5 (2018) 6 SCC 610

7 under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, 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 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 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

8 weapon etc. forming a chain of circumstances is established, the

conviction could be based on such evidence.

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 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.

11. The entire oral as well as documentary evidence having been

threadbare considered by the Sessions Court as also High Court

9 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 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

Special Leave Petition stands dismissed accordingly.

..………………………. J.

[AJAY RASTOGI]

…..................................J. [BELA M. TRIVEDI] NEW DELHI 17.02.2023

10