[2023] 12 S.C.R. 55 : 2023 INSC 803
R. SREENIVASA
v.
STATE OF KARNATAKA
(Criminal Appeal No. 859 of 2011)
SEPTEMBER 06, 2023
[VIKRAM NATH AND AHSANUDDIN AMANULLAH*, JJ.]
Issue for consideration: High Court if justified in reversing the
acquittal order passed by the Trial Court qua the appellant-accused
acquitting him of offences u/ss.302 and 201, IPC by which it held
that the prosecution had failed to prove that the deceased was
last seen in the company of the appellant.
Evidence – Circumstantial evidence – Last seen theory – When
cannot be invoked:
Held: The ‘last seen’ theory can be invoked only when the same
stands proved beyond reasonable doubt – In the present case,
there is no definitive evidence of last seen and that theory itself
is in doubt – Also, there is a long time-gap between the alleged
last seen and the recovery of the body – Further, there is major
discrepancy in the charge framed and the statement of the
witnesses- the specific allegation that co-accused was the one
who had taken away the deceased from his house, whereas during
deposition the deceased’s wife and his brother 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 – Also, 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 – Further, it does not appear
that the deceased’s family took any steps to find out as to where
the deceased had gone despite being missing for more than two
days – The deceased’s wife even testified that relations between
the parties were cordial, and did not hint at animosity – Thus, 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 – Unsafe
* Author
56 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
to sustain the conviction of the appellant on such evidence, where
the chain is incomplete – Presumption of innocence is in favour
of the accused and when doubts emanate, the benefit accrues to
the accused, and not the prosecution – Impugned judgment set
aside. [Paras 13, 15, 16 and 17]
Practice and Procedure – Acquittal – Interference by appellate
Court:
Held: An appellate court, in the case of an acquittal, must bear in
mind that there is a double presumption in favour of the accused
– When two views are possible, the one favouring the accused is
to be leaned on – Criminal Law. [Para 18]
State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254
: [2006] 8 Suppl. SCR 501 – held not applicable.
Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC
715 : [2014] 3 SCR 744; Nizam v. State of Rajasthan,
(2016) 1 SCC 550 : [2015] 10 SCR 786; Chotkau v.
State of Uttar Pradesh, (2023) 6 SCC 742; Laxman
Prasad v. State of Madhya Pradesh, (2023) 6 SCC 399;
Chandrappa v. State of Karnataka, (2007) 4 SCC 415
: [2007] 2 SCR 630; Jafarudheen v. State of Kerala,
(2022) 8 SCC 440 – relied on.
Sharad Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116 : [1985] 1 SCR 88; Shailendra
Rajdev Pasvan v. State of Gujarat, (2020) 14 SCC 750
: [2019] 14 SCR 270; Suresh Thipmppa Shetty v. State
of Maharashtra, 2023 INSC 749 – referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.859
of 2011.
From the Judgment and Order dated 20.10.2010 of the High Court
of Karnataka at Bangalore in Crl. A. No.1952 of 2005.
Ms. Kiran Suri, Sr. Adv., S. J. Amith, Ms. Aishwarya Kumar, Ms.
Vidushi Garg, Krishna Kumar, B. Purushothama Reddy, Dr. (Mrs.)
Vipin Gupta, Advs. for the Appellant.
Aman Panwar, AAG, V. N. Raghupathy, Manendra Pal Gupta, Shivam
Singh Baghal, Varun Varma, Advs. for the Respondent.
[2023] 12 S.C.R. 57
R. SREENIVASA v. STATE OF KARNATAKA
The Judgment of the Court was delivered by
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 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 30211
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 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 Complain-ant/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
1 302. Punishment for murder.—Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
58 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 (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 2012
of the
IPC. It was further submitted that the High Court erred in reversing
the order of acquittal against the 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
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 im-prisonment
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.
[2023] 12 S.C.R. 59
R. SREENIVASA v. STATE OF KARNATAKA
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 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 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 say-ing that even in the past he (the deceased) used to go
away for two-three days.
60 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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
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 proved3
. 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 even attempt to explain or clarify the incriminating
circumstances inculpating and connecting him with the crime by his
3 There is a typographical error in the text of the judgment.
[2023] 12 S.C.R. 61
R. SREENIVASA v. STATE OF KARNATAKA
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 chhurablow 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 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
in-tended 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
62 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 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 spe-cial 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
[2023] 12 S.C.R. 63
R. SREENIVASA v. STATE OF KARNATAKA
any theory or hypothesis compatible with his innocence, the court
can consider his failure 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 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 re-ported 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 law.
In Kashi Ram (supra) itself, this is evincible from the subsequent
paragraph:
64 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
‘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 more establishing
connectivity between the accused and the crime. Mere nonexplanation 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
[2023] 12 S.C.R. 65
R. SREENIVASA v. STATE OF KARNATAKA
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
Sec-tion 106 of the Evidence Act.
17. During their questioning under Section 313 CrPC, the appellantaccused 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 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 commit-ting 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 when the same stands proved
66 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 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 .
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, (2022) 8 SCC 440 at Paragraphs 25-27. On these
factors as well, the Impugned Judgment is untenable.
[2023] 12 S.C.R. 67
R. SREENIVASA v. STATE OF KARNATAKA
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.
Headnotes prepared by: Divya Pandey Result of the case : Appeal allowed.
