Supreme Court: Under which circumstances S 106 of Evidence Act will operate against either a husband or wife staying under the same roof and were last seen together?

 It will also be relevant to refer to the following observations of this Court in the case of Gargi (supra):

33.1. Insofar as the "last seen theory" is concerned, there is no doubt that the Appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the Appellant, by itself, does not mean that a presumption of guilt of the Appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the Appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das v. State of Bihar,   MANU/SC/0201/1974 : (1974) 4 SCC 193 in the following: (SCC p. 197, para 10)

10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the Accused. {Para 21}

22. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased.

Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the Accused.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1348 of 2013 +

Decided On: 02.03.2021

Shivaji Chintappa Patil Vs. State of Maharashtra

Hon'ble Judges/Coram:

Rohinton Fali Nariman and B.R. Gavai, JJ.

Author: B.R. Gavai, J.

Citation: MANU / SC / 0136 / 2021,AIR 2021 SC 1249,( 2021 ) 5 SCC 626,[ 2021 ] 2 SCR 617

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When the Body Speaks Louder Than the Defence: Supreme Court on Circumstantial Evidence in Matrimonial Murder

 The Supreme Court’s decision of Chetan Dashrath Gade Vs. The State of Maharashtra delivered on 21 May 2026,2026 INSC 522, is an important reminder that a conviction for murder can rest safely on circumstantial evidence when the chain is complete, coherent, and inconsistent with innocence. The case arose out of the death of a young married woman, Rupali, inside her matrimonial home, where the defence attempted to project a theory of suicide supported by a purported suicide note, yet the medical and surrounding circumstances pointed to homicide by strangulation.

Why this judgment matters to session judges

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Supreme Court: What will be effect of husband failing to give reasonable explanation for death of his wife in his statement under S 313 of CRPC?

The learned Trial Court also considered the statement of the Accused Under Section 313 of Code of Criminal Procedure which needless to state provides an opportunity to the Accused to explain his stand qua the accusations made against him. In the statement Under Section 313 Code of Criminal Procedure, there is no explanation leave aside any satisfactory explanation in respect of the material evidence against the Appellant. In defence, though an attempt was made to submit that Rupali committed suicide with the help of one chit, the Trial Court on appreciation of the evidence particularly, the handwriting expert's opinion found that the so-called chit had got written by the Accused forcibly prior to the strangulation. The Trial Court also found that the material evidence brought before the Court clearly indicated that the Appellant have caused distraction of the evidence of the offence and provided a false information that Rupali committed suicide. It may not be out of place to state that Rupali after her marriage was residing at her in-laws place. Death of Rupali was in suspicious circumstances and this fact was within the special knowledge of the Appellant being her husband and the Appellant utterly failed to provide a justifiable explanation so as to discharge the burden and this was an additional factor for the Trial Court for holding the Appellant guilty and recording the order of conviction. {Para 20}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1063/2021

Decided On: 21.05.2026

Chetan Dashrath Gade Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Pankaj Mithal and P.B. Varale, JJ.

Author: P.B. Varale, J.

Citation: MANU/SC/0507/2026,2026 INSC 522

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Criminal Intimidation, Digital Sexual Threats and Evolving Notions of Chastity: A Critical Analysis of the Supreme Court’s 2026 Decision on Section 506 IPC

 I. Introduction

The Supreme Court’s judgment VIJAYAKUMAR Vs STATE OF TAMIL NADU 2026 INSC 525 dated 22 May 2026, affirming the conviction of a police constable under Part II of Section 506 of the Indian Penal Code (IPC), marks a significant doctrinal development in the law of criminal intimidation, reputation‑based harm, and the constitutional understanding of women’s sexual autonomy. The Court upheld the conviction for threatening to upload a secretly recorded bathing video of the prosecutrix on social media, while the same accused stood acquitted of rape, deceitful inducement of marriage and voyeurism under Sections 376, 493 and 354C IPC respectively. This separation of liability—acquittal on sexual offences but conviction on aggravated criminal intimidation—invites critical analysis for trial courts, appellate courts and scholars.

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Supreme Court Expands Meaning Of 'Unchastity', Says Threat To Leak Woman's Bathing Video Punishable Under S.506 IPC

The Court made the observation while upholding the conviction of a man under Part II of Section 506 of the Indian Penal Code for threatening to upload a woman's private bathing video on Facebook, holding that such conduct amounts to “imputing unchastity” to a woman within the meaning of the provision which penalises criminal intimidation.

…the act of video-recording the victim in a naked state while she was taking a bath and the threat to upload it on digital social media can be construed to be an act amounting to a threat to impute unchastity within the meaning of Part II of Section 506 IPC.”, observed a bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2859 OF 2025

VIJAYAKUMAR Vs STATE OF TAMIL NADU, REPRESENTED

BY THE INSPECTOR OF POLICE 

Author: NONGMEIKAPAM KOTISWAR SINGH, J.

Citation: 2026 INSC 525

Dated: May 22, 2026.

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Supreme Court explains the law relating to last seen theory

 Circumstance Two: Last Seen Theory

15. The next circumstance that is to consider is the last seen theory. It is well established that this is a weak piece of evidence and cannot be the sole basis of conviction.7 We may further refer to certain judgments that expand upon the application of this theory.

15.1 In Ravasaheb v. State of Karnataka   MANU/SC/0248/2023 : 2023:INSC:238 : (2023) 5 SCC 391, a three Judge Bench (which included two of us, Nath and Karol JJ.) observed thus:

29. On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the Accused, proximity of time to the recovery of the body of the deceased, etc. The Accused is bound to give an explanation Under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established - pleading securely to the conviction of the Accused closing out the possibility of any other hypothesis, then a conviction can be based thereon. [Satpal v. State of Haryana [Satpal v. State of Haryana,   MANU/SC/0492/2018 : 2018:INSC:436 : (2018) 6 SCC 610] and Ram Gopal v. State of M.P. [Ram Gopal v. State of M.P.,   MANU/SC/0139/2023 : 2023:INSC:133 : (2023) 5 SCC 534]]

[See also: Sanjay v. State of U.P.   MANU/SC/0312/2025 : 2025:INSC:317]

15.2 The application of Section 106 of the Indian Evidence Act, 1872, doesn't absolve the prosecution of its duty to establish its case against the Accused, beyond reasonable doubt. [See: Sawal Das v. State of Bihar   MANU/SC/0201/1974 : 1974:INSC:4 : (1974) 4 SCC 193 and Shivaji Chintappa Patil v. State of Maharashtra   MANU/SC/0136/2021 : 2021:INSC:136 : (2021) 5 SCC 626]

15.3 In applying the last-seen theory, Courts should keep in mind the totality of the circumstances, or the case put forward by the prosecution. In other words, also to be seen is, what preceded and followed the Accused person being last seen with the deceased. [See: Surajdeo Mahto v. State of Bihar   MANU/SC/0505/2021 : 2021:INSC:379 : (2022) 11 SCC 800]

15.4 In Veerendra v. State of M.P.   MANU/SC/0641/2022 : 2022:INSC:565 : (2022) 8 SCC 668, referring to Nizam (supra) it was observed that when the time between the 'last seen' and the 'time of occurrence' is significant, conviction thereon would not be advisable or sustainable.

15.5 The converse of the above is that the theory comes into play "where the time gap between the point of time when the Accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of the crime becomes impossible." [See: Bodhraj v. State of J&K MANU/SC/1463/2002 : (2002) 8 SCC 45, State of U.P. v. Shyam Behari   MANU/SC/1093/2009 : 2009:INSC:432 : (2009) 15 SCC 548 and Sambhubhai Raisangbhai Padhiyar v. State of Gujarat MANU/SC/1349/2024 : 2024:INSC:987 : (2025) 2 SCC 399]

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1672 of 2019 

Decided On: 15.07.2025

Kattavellai Vs. State of Tamilnadu

Hon'ble Judges/Coram:

Vikram Nath, Sanjay Karol and Sandeep Mehta, JJ.

Author: Sanjay Karol, J.

Citation: 2025 INSC 845, MANU/SC/0917/2025.

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Bombay HC: Non-Examination Of Sexual Assault Victim Or Officer Who Recorded Her Statement Amounts To Denial Of Fair Trial To Accused

In the above context, it would be pertinent to note herein that the prosecution has placed heavy reliance on the version of the victim as brought on record through her mother (PW 1) so as to bring home the charge brought against the Accused/Appellant under Sections 376(2)(f) and 377 of the IPC. Notwithstanding the same, as has been noted above, the victim/prosecutrix has not been examined as a witness. Sections 25 and 26 of the POCSO Act, 2012 lays down specific provisions for recording the statement of a child. As per Section 26(2) the Magistrate/police can even take the assistance of a Translator or an Interpreter while recording the statement of the child. Notwithstanding the same, neither the child has been examined as a witness nor has the PSI Ghodke, who had recorded the victim's statement called as a witness by the prosecution. The failure on the part of the prosecution to examine the victim or the PSI, without any just explanation, in our considered opinion would amount to denial of an opportunity to the accused to prove his innocence and therefore, in the facts of the case, would constitute denial of fair trial to the accused. {Para 41}

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 188 of 2023

Decided On: 14.08.2025

Deepak Babasaheb Gaikwad Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Suman Shyam and Shyam C. Chandak, JJ.

Author: Suman Shyam, J.

Citation: 2025:BHC-AS:35291-DB,MANU/MH/5049/2025

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Supreme Court: Basic concept of last seen theory in criminal case

 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 compatiable 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 Re. Naina Mohd. AIR 1960 Madras, 218.

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.

Supreme Court of India

State Of Rajasthan vs Kashi Ram on 7 November, 2006

Bench: B.P. Singh, Tarun Chatterjee

Citation;(2006)12 SCC 254 : AIR 2007 SC 144.

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Supreme Court: Even if disclosure statement made by Accused is not admissible U/S 27 of Evidence Act but it is relevant U/S 8 of evidence Act as his conduct

 e) The conduct of the Appellant in leading the Investigating Officer and others to a drain nearby his house and the discovery of the knife from the drain is a relevant fact Under Section 8 of the Evidence Act. In other words, the evidence of the circumstance simpliciter that the Appellant pointed out to the Investigating Officer the place where he threw away the weapon of offence i.e., knife would be admissible as 'conduct' Under Section 8 irrespective of the fact whether the statement made by the Accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.

59. Even while discarding the evidence in the form of discovery panchnama, the conduct of the Appellant herein would be relevant Under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct Under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement Under Section 27 of the Evidence Act, as this Court observed in A.N. Venkatesh and Anr. v. State of Karnataka,   MANU/SC/0468/2005 : (2005) 7 SCC 714:

9. By virtue of Section 8 of the Evidence Act, the conduct of the Accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the Accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct Under Section 8 irrespective of the fact whether the statement made by the Accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [  MANU/SC/0147/1978 : 1978:INSC:234 : (1979) 3 SCC 90: 1979 SCC (Cri) 656: AIR 1979 SC 400]. Even if we hold that the disclosure statement made by the Accused-Appellants (Ex. P-15 and P-16) is not admissible Under Section 27 of the Evidence Act, still it is relevant Under Section 8. ...

The conduct, in order to be admissible, must be such that it has close nexus with a fact in issue or relevant fact. Explanation 1 makes it clear that the mere statements as distinguished from acts do not constitute "conduct" unless those statements "accompany and explain acts other than statements". Such statements accompanying the acts are considered to be evidence of res gestae. 

206. We have already noticed the distinction highlighted in Prakash Chand case (supra) between the conduct of an Accused which is admissible Under Section 8 and the statement made to a police officer in the course of an investigation which is hit by Section 162 Code of Criminal Procedure The evidence of the circumstance, simpliciter, that the Accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as "conduct" Under Section 8 irrespective of the fact whether the statement made by the Accused contemporaneously with or antecedent to such conduct, falls within the purview of Section 27, as pointed out in Prakash Chand case. In Om Prakash case (supra) this Court held that: (SCC p.262, para 14)

Even apart from the admissibility of the information Under Section 27, the evidence of the investigating officer and the panchas that the Accused had taken them to PW 11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW 11 himself would be admissible Under Section 8 of the Evidence Act as conduct of the Accused.

(Emphasis supplied)

61. However, in the aforesaid context, we would like to sound a note of caution. Although the conduct of an Accused may be a relevant fact Under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an Accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the Accused alone, though may be relevant Under Section 8 of the Evidence Act, cannot form the basis of conviction.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 437 of 2015

Decided On: 03.05.2024

Anees Vs. The State Govt. of NCT

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, C.J.I., J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0379/2024,2024 INSC 368.

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What are exceptions to the rule that burden of proof is on the prosecution to prove the guilt of the Accused ?

i. Principles of law governing the applicability of Section 106 of the Evidence Act

35. Section 106 of the Evidence Act reads as follows:

106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustration

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

36. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the Accused. The ordinary Rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the Accused is not in any way modified by the Rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish the facts which are, "especially within the knowledge of the Accused and which, he can prove without difficulty or inconvenience".

37. In Shambhu Nath Mehra v. The State of Ajmer   MANU/SC/0023/1956 : 1956:INSC:15 : AIR 1956 SC 404, this Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:

11. ... The word "especially" stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the Section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the Accused to prove that he did not commit the murder because who could know better than he whether he did or did not.

22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the Accused. When the Accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the Accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the Accused to discharge the burden Under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the Accused.

(Emphasis supplied)

39. In Tulshiram Sahadu Suryawanshi and Anr. v. State of Maharashtra,   MANU/SC/0748/2012 : 2012:INSC:401 : (2012) 10 SCC 373, this Court observed as under:

23. It is settled law that presumption of fact is a Rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this Section is not intended to relieve the prosecution of its burden to prove the guilt of the Accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the Accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar and Ors. [  MANU/SC/0535/2000 : 2000:INSC:422 : (2000) 8 SCC 382: 2000 SCC (Cri) 1516]: (SCC p. 393, para 38)

38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the Accused. In Shambhu Nath Mehra v. The State of Ajmer [  MANU/SC/0023/1956 : 1956:INSC:15 : AIR 1956 SC 404: 1956 Cri LJ 794] the learned Judge has stated the legal principle thus:

11. This lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the Accused and which he could prove without difficulty or inconvenience.

The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.

(Emphasis supplied)

The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this Section throws some light on the content and scope of this provision and it reads:

(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an Accused to offer any explanation.

22. Where an Accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the Accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. ...

31. The pristine Rule that the burden of proof is on the prosecution to prove the guilt of the Accused should not be taken as a recognized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional Rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this.

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a Rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the Accused and they took him out of that area, the Accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the Accused have murdered him. Such inference can be disrupted if the Accused would tell the Court what else happened to Mahesh at least until he was in their custody.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 437 of 2015

Decided On: 03.05.2024

Anees Vs. The State Govt. of NCT

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, C.J.I., J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0379/2024,2024 INSC 368

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How to appreciate evidence if suicide letter written by accused was recovered from body of deceased?

  The underlying principle deducible from the observations extracted above is that though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a Rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion.{Para 65}

66. In the instant case, with regard to authorship of the suicide letter, the Trial Court though returned a finding in favour of the prosecution by relying solely on the expert report but did not record its satisfaction having regard to its own observations with respect to the admitted and disputed writings. It also did not examine whether in the proven facts and circumstances of the case it would be safe to rely on the expert report. It be noted that Section 73 of the IEA, 1872 enables a Court to compare the words or figures written by a person present in Court with any words or figures alleged to have been written by such person. The Trial Court therefore could have undertaken such an exercise. But, in the instant case, there appears no such exercise undertaken by the Trial Court. What is important is that in the instant case there is no witness statement identifying the handwriting of Neeraj or disclosing that Neeraj wrote the suicide letter in his presence. There is also no evidence to explain the relevance of the contents of the suicide letter. Interestingly, the suicide letter indicts one Chhote Porwal. As to why such indictment was made; whether it was with reference to some other event contemplated, the prosecution evidence is silent. Besides that, there is no evidence to show that the investigating officer queried person(s) conversant with the handwriting of the deceased to Rule out possibility of the suicide letter being in the writing of the deceased himself. In our view, such an exercise was necessary to lend assurance to the prosecution story of the suicide letter being written by Neeraj to mask the murder, because, firstly, the death on its face was not suicidal, and, secondly, it could have ruled out possibility of it being written in contemplation of some other event. Seen in that light, barring the expert report, there exists no internal or external evidence to lend assurance to the prosecution story that the suicide letter was written by Neeraj.

67. In addition to the above, we find it quite difficult to accept as to why Neeraj would leave a suicide letter written by him in a pocket of the trouser worn by the deceased, particularly, when the injuries even to a layman were homicidal. Notably, there were eight ante-mortem injuries found on the body of the deceased. 

68. A glance at those injuries would reflect that five of them were perforating or penetrating wounds cavity deep. Out of those, two were on chest and three on abdomen.  Such injuries are clearly homicidal therefore, masking this homicidal event as a suicide does not appeal to logic. Further, the injuries are not of same dimension. In these circumstances, a question would arise as to why would Neeraj who has no proven connection with the deceased or the co-Accused Santosh, or for that matter the apartment where the dead body was found, make a futile effort to mask the event of murder and thereby leave a trace of his own culpability. To answer that, the prosecution has led no admissible evidence. Thus, even if we assume that a suicide letter was found, at what stage it was written - prior to, or post the murder, or in connection with some other event which the deceased contemplated - is anybody's guess.

69. In light of the discussion above, taking into account that Neeraj has denied the incriminating circumstance of writing the suicide letter and no internal or external evidence, save the expert report, supports the writing of suicide letter by Neeraj, we are of the considered view that though the expert evidence was admissible as an opinion on the writing in the suicide letter but, on overall assessment of the evidence led by the prosecution, solely on its basis, it would be extremely unsafe to hold that the suicide letter retrieved from the trouser of the deceased was written by Neeraj.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 575 and 576 of 2011

Decided On: 28.04.2023

 Santosh  Vs.   State (G.N.C.T.) of Delhi

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, Manoj Misra and Aravind Kumar, JJ.

Author: Manoj Misra, J.

Citation: MANU/SC/0499/2023.

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Under which circumstances the court should not rely on recovery of knife recovered as per S 27 of Evidence Act?

 Circumstances (f), (g) (h) and (i) - Re: Disclosure statements, consequential discoveries and their connect with crime.

71. With regard to the making of disclosure and the consequential discoveries/recoveries, according to the prosecution on 23.09.2000 the two Accused made disclosures assuring recovery of weapon of assault and blood-stained clothes worn by them at the time of commission of murder. But, admittedly, no discovery could be effected pursuant thereto. Consequently, both the courts below discarded the disclosure statement made on 23.09.2000. However, according to the prosecution, another set of disclosure statements were made on 25.09.2000. In pursuance thereof, a knife kept in the bushes behind a hospital was recovered at the instance of Neeraj and blood-stained clothes, kept at the rooftop of the same building, were recovered at the instance of Santosh @ Bhure. Importantly, both the Accused have denied such disclosures and recovery at their instance.

81. As regards recovery of knife at the instance of Neeraj, the same has been denied by Neeraj and there appears no independent witness to support it, inasmuch as PW13, touted as a public witness, turned out to be a special police officer and insofar as the other police witnesses are concerned, we have already doubted their conduct in setting up disclosure statements. Moreover, the place from where recovery is made is accessible to all and sundry. Otherwise also, its incriminating value is extremely limited because, firstly, there is no forensic evidence connecting the knife with the crime; secondly, the knife is a common knife which could easily be available; thirdly, the wounds found on the body of the deceased were of different dimensions giving rise to possibility of use of more weapon than one; and, fourthly, the entire exercise of recovery does not inspire our confidence, particularly, because the first attempt to recover had failed.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 575 and 576 of 2011

Decided On: 28.04.2023

 Santosh  Vs.   State (G.N.C.T.) of Delhi

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, Manoj Misra and Aravind Kumar, JJ.

Author: Manoj Misra, J.

Citation: MANU/SC/0499/2023.

Read full Judgment here: Click here

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Whether landlord should prove as per S 106 of the Evidence Act that who has murdered his tenant if he owned premises where the murder was committed?

 Circumstance (a) - Re: Apartment from where the dead body was found stood in the tenancy and possession of Santosh.

29. Insofar as tenancy of the apartment being with Santosh is concerned, the same has been proved by the testimonies of PW3 and PW4. Nothing material could come out from their cross-examination, nor any such suggestion has been given to them, as may cast a doubt on their deposition in respect thereof. No doubt Santosh denied tenancy and claimed that there exists no documentary proof in respect thereof but as there could be an oral tenancy also, in our view, the finding returned by the courts below in respect thereof calls for no interference. However, mere tenancy of the apartment being with Santosh by itself is not sufficient to hold him guilty as there is no general presumption against the owner/tenant of a property with regard to his/her guilt if a dead body with homicidal injuries is found in his/her property. No doubt, if the prosecution succeeds in proving a chain of circumstances from which a reasonable inference can be drawn regarding one's guilt then, in absence of proper explanation, the Court can always draw an appropriate conclusion with respect to his/her guilt with the aid of Section 106 of the IEA, 1872. But, if the chain of circumstances is not established, mere failure of the Accused to offer an explanation is not sufficient to hold him guilty.

30. Expounding the law on the scope and applicability of Section 106 of the IEA, 1872, in Shambu Nath Mehra v. State of Ajmer MANU/SC/0023/1956 : AIR 1956 SC 404, this Court observed:

9. This lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the Accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the Section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the Accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an Accused person to show that he did not commit the crime for which he is tried.

In short, the prosecution has failed to demonstrate (a) that the apartment was locked or in exclusive control of Santosh @ Bhure and (b) that the deceased was in the company of Santosh or Neeraj on 11.09.2000 or any time thereafter, till recovery of the body of the deceased.

In light of the discussion above and in the facts of the case, in our considered view, the mere presence of the dead body in the apartment let out to Santosh is not such a clinching circumstance which, on its own, could sustain Santosh's conviction with the aid of Section 106 of the IEA, 1872 by shifting the onus on him to explain as to under what circumstances the dead body with multiple injuries was found there.

b) Mere presence of a dead body in an apartment is not enough to convict a tenant or owner of that apartment for murder, particularly when there is no admissible evidence to prove that around the plausible time of murder the Accused was present there, or was last seen with the deceased, and had motive to finish off the deceased;

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 575 and 576 of 2011

Decided On: 28.04.2023

 Santosh  Vs.   State (G.N.C.T.) of Delhi

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, Manoj Misra and Aravind Kumar, JJ.

Author: Manoj Misra, J.

Citation: MANU/SC/0499/2023.

Read full Judgment here: Click here

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Determining the Court's Perspective in a Case Involving Circumstantial Evidence with Two Possible Views: One Pointing to the Guilt and the Other to the Innocence of the Accused

Adding on to the aforesaid legal principles, in Devi Lal v. State of Rajasthan MANU/SC/0034/2019 : (2019) 19 SCC 447, a three-judge Bench of this Court held that in a case based on circumstantial evidence where two views are possible, one pointing to the guilt and the other to his innocence, the Accused is entitled to the benefit of one which is favourable to him. The relevant portion of the judgment is extracted below:

18. ... Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.

19. ... in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the Accused and the other his innocence. The Accused is indeed entitled to have the benefit of one which is favourable to him.

{Para 25}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 575 and 576 of 2011

Decided On: 28.04.2023

 Santosh  Vs.   State (G.N.C.T.) of Delhi

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, Manoj Misra and Aravind Kumar, JJ.

Author: Manoj Misra, J.

Citation: MANU/SC/0499/2023.

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Bombay HC: Husband Can't Be Asked To Explain Wife's Death In his House Unless Prosecution Establishes Prima Facie Case

Per contra, the learned APP has submitted that it is incumbent upon the accused to offer an explanation as contemplated under section 106 of the Indian Evidence Act and the very fact that the dead body is found in the house of the accused and he has not put forth any plausible explanation is sufficient to convict the accused for an offence punishable under section 302 of Indian Penal Code. The learned APP has further submitted that there is an extra-judicial confession before P.W.1 which goes to the root of the matter and points towards the culpability of the accused.

17. Section 106 of the Indian Evidence Act reads as follows:

"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

18. However, Section 106 of the Indian Evidence Act does not discharge the initial burden on the prosecution to prove its case beyond reasonable doubt. Unless the prosecution is able to stand on its own legs and give a conclusive proof of the fact that the accused is the author of the injuries sustained by his wife the onus would not shift upon the accused to explain the circumstances in which his wife has died, and her dead body is found in the house occupied by the accused and the deceased. It is a settled principle of criminal jurisprudence that an accused has a right to maintain silence and it is for the prosecution to prove its case beyond reasonable doubt. In the present case, the defence has given suggestions that the deceased was addicted to alcohol and that on her way home she had fallen in the nullah and had sustained the said injuries.

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 9 of 2014

Decided On: 19.04.2022

Suresh Ladak Bhagat  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

Sadhana S. Jadhav and Milind Narendra Jadhav, JJ.

Author: Sadhana S. Jadhav, J.

Citation: MANU/MH/2096/2022

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Can the court convict the accused based on the falsity of his defense if the prosecution does not prove its case based on circumstantial evidence?

  Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.{para 20}

21. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity

of the defence is no ground to convict the accused.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1903 OF 2019

NAGENDRA SAH  Vs  THE STATE OF BIHAR 

AUTHOR: ABHAY S. OKA, J.

Dated: September 14, 2021.

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Can the court hold the husband guilty of the murder of his wife if he fails to explain how she received the injury in his statement U/S 313 of CRPC?

  It is evident from the record and even not disputed by the

accused that incident took place in his house. Even though the

accused has attempted to show that he was not present at the time of the incident, it is found to be after thought and false story. The prosecution has established from the testimony of PW-1 Navnath and PW-2 Shivaji that the accused and deceased Kalpana/wife were alone present in the house when the incident took place. Both of them have stated that soon after the incident of setting Kalpana on fire, accused ran away from his house. That piece of evidence is found trustworthy and reliable. It is not the case of defence that Kalpana had committed suicide by setting herself ablaze after pouring kerosene on her person.

We have no manner of doubt that accused and his wife late Kalpana were alone in their house when the incident took place. The prosecution has travelled the journey successfully in establishing that it is none else, but accused had set his wife/Kalpana ablaze after pouring kerosene from a can on her person after picking up quarrel and thereafter ran away from the house. Kalpana raised hue and cry for help and in response, her brother PW-1 Navnath rushed there as well as PW-2 Shivaji and they extinguished the fire and brought her to the Ghati Hospital for treatment. Admittedly, Kalpana died due to 100% burn injuries and incident took place in her house. Here it is necessary to keep in mind Section 106 of the Evidence Act, which says that, “when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”. {Para 38}

39. In case of Trimukh Maroti Kirkan (supra), it is held by the

Hon’ble Supreme Court that, “where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime”. In this case, the accused has not offered any kind of explanation, even while his examination under Section 313 (1)(b)of the Code of Criminal Procedure. Certainly, it must be treated as an important incriminating circumstance against him in view of absence of any explanation as contemplated under Section 106 of the Evidence Act in view of citation in case of Trimukh Maroti Kirkan (supra).

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 295 OF 2014

Sanjay Maruti Doule Vs  The State of Maharashtra

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How to appreciate evidence if there are Oral and written multiple dying declarations?

Following are the principles laid down by the Hon’ble Supreme Court in case of Purushottam Chopra and another Vs. State (Government of NCT of Delhi) (supra), which are summed up as under :

“(1) A dying declaration could be the sole basis of

conviction even without corroboration, if it inspires

confidence of the Court.

(2) The Court should be satisfied that the declarant was

in a fit state of mind at the time of making the

statement; and that it was a voluntary statement,

which was not the result of tutoring, prompting or

imagination.

(3) Where a dying declaration is suspicious or is

suffering from any infirmity such as want of fit state

of mind of the declarant or of like nature, it should

not be acted upon without corroborative evidence.

(4) When the eyewitnesses affirm that the deceased

was not in a fit and conscious state to make the

statement, the medical opinion cannot prevail.

(5) The law does not provide as to who could record

dying declaration nor there is any prescribed format

or procedure for the same but the person recording

dying declaration must be satisfied that the maker is

in a fit state of mind and is capable of making the

statement

(6) Although presence of a Magistrate is not absolutely

necessary for recording of a dying declaration but to

ensure authenticity and credibility, it is expected

that a Magistrate be requested to record such dying

declaration and/or attestation be obtained from

other persons present at the time of recording the

dying declaration.

(7) As regards a burns case, the percentage and degree

of burns would not, by itself, be decisive of the

credibility of dying declaration; and the decisive

factor would be the quality of evidence about the fit

and conscious state of the declarant to make the

statement.

(8) If after careful scrutiny, the Court finds the

statement placed as dying declaration to be

voluntary and also finds it coherent and consistent,

there is no legal impediment in recording conviction

on its basis even without corroboration”.

19. Having regard to the parameters laid down by the Hon’ble

Supreme Court in case of Laxman (supra) and in case of Purushottam Copra (supra), it is absolutely necessary to examine dying declarations in the form of written as well as oral. In case of Laxman (supra), the Hon’ble Supreme Court has made it clear that oral dying declaration is admissible in evidence and there is no legal bar. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate with certification of doctor about the mental fitness of the patient. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

33. In case of Suresh Arjun Dodorkar (Sonar) Vs. State of

Maharashtra (supra), the Division Bench of this Court, bench at

Aurangabad has observed that, “where there are multiple dying

declarations and acceptance of one dying declaration falsifies the

other, the dying declarations have to be necessarily rejected. The

dying declaration has to pass all the tests of reliability as the declarant is not available for cross examination”.

In the case in hand, there are three oral dying declarations and two written dying declarations. All of them are found to be consistent about the role of the accused in setting his wife ablaze after pouring kerosene from a can in the house when both of them were alone. We are unable to accept the argument advanced by Mr. Chatterji, learned counsel for the appellant/accused in this regard.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 295 OF 2014

Sanjay Maruti Doule Vs  The State of Maharashtra

CORAM : V. K. JADHAV AND

SHRIKANT D. KULKARNI, JJ.

Pronounced on : 08.09.2021

JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-

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Whether society can challenge lease deed signed by its president?

If it is the plaintiff's case that the President in fact did not have such authority because the subject was one which was prescribed in the internal statute of the society, it was indeed for the plaintiff to produce and prove such internal statute. Neither in the Trial Court nor in this Court is there any attempt made by the plaintiff to produce or prove any such internal statute. In the premises, it must assumed that such internal statue entailing restrictions on the President to act or take initiative in the matter does not exist.

11. Learned Counsel for the respondent-plaintiff is not right in submitting that the onus in such a case is upon the defendants, who assert the existence of such authority in the President. The lease is an executed act here; it has been a registered Lease Deed. If it is the case of the plaintiff that this Lease Deed was executed on its behalf by someone who did not have the authority to do so, it is for the plaintiff to prove such a case at the trial. The question of burden of proof really goes by this primary consideration: If no evidence were to be led before the Court at the trial, who would lose? It is a foregone conclusion that in our case, if there were no evidence before the Court, it is the plaintiff who would fail. The onus to show lack of authority and vitiation of the subject Lease Deed on that account was, in that case, clearly on the plaintiff as someone who questioned the execution of that deed.

12. There is one more reason why the onus was on the plaintiff in the present case. Under Section 106 of the Evidence Act, the burden of proving any fact which is especially within the knowledge of any person is upon that person. Its own internal statute was a matter which was clearly within the special knowledge of the plaintiff. If it was its case that having regard to this internal statute, the executant of the deed could be said to be lacking in authority to do so, it was indeed for it to prove such fact. The plaintiff, as we have noted above, has made no such attempt. The internal statute has, in fact, till date, not seen the light of the day.

 IN THE HIGH COURT OF BOMBAY AT GOA

First Appeal Nos. 6 and 8 of 2010

Decided On: 20.06.2019

 Kantu Shankar Dessai  Vs. Sociedade Agricola Dos Gauncares De Cuncolim E Veroda and Ors.

Hon'ble Judges/Coram:

S.C. Gupte and Prithviraj K. Chavan, JJ.

Citation: 2019(6) MHLJ 910

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Supreme Court: Statement of accused U/S 313 of CRPC can be used to lend credence to evidence led by prosecution

 A statement made by an accused under Section 313, Cr.P.C. can be used as an aid to lend credence to the evidence led by the

prosecution. Therefore, in light of the testimonies of PW-18,

PW-17, and PW-11, as well as the statement of Sharda Jain, we

find that the prosecution has proved that the deceased was

present with Sharda Jain (A-1) in the afternoon of 24.08.2002

and was not seen alive by anyone after such time.

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 Indian 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.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1889 OF 2010

Rajender @ Rajesh @ Raju  Vs State (NCT of Delhi) 

MOHAN M. SHANTANAGOUDAR, J.

Dated:October 24, 2019.

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