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 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) [(2019) 10 SCC 623], 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 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 Haryana [(2018) 6 SCC 610], 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 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 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 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.
PARTY : Ram Gopal s/o Mansharam vs. State of Madhya Pradesh – Special Leave Petition (Crl.) No. 9221 OF 2018 – 17.02.2023.
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