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Supreme Court explained “Appreciation of Evidence” in last seen theory, criminal conspiracy and 65-B

CRIMINAL APPEAL NO. 1889 OF 2010 Rajender @ Rajesh @ Raju vs State (NCT of Delhi) – Justice Mohan M. Shantanagoudar & Justice Ajay Rastogi – 24.10.2019.

Hon’ble Supreme Court of India while passing order for offences under Section 302 r/w 120-B and Section 364 r/w 120-B of the Indian Penal Code (hereinafter ‘IPC’) has unequivocally teaches how to appreciate circumstantial evidence and conspiracy in the following words:

It is well-settled that in cases where the prosecution relies on circumstantial evidence to establish its case, such circumstances should be duly proved and the chain of circumstances so proved should be complete. This means that the chain formed must unerringly point towards the guilt of the accused and not leave any missing links for the accused to escape from the clutches of law.
As mentioned supra, three essential elements must be shown – a criminal object, a plan or scheme embodying means to accomplish that object, and an agreement between two or more persons to cooperate for the accomplishment of such object. Admittedly, the incorporation of Section 10 to the Indian Evidence Act, 1872, suggests that proof of a criminal conspiracy by direct evidence is not easy to get. While we acknowledge this constraint, we do not find any discussion by the High Court on what circumstances indicate the existence of the essential elements of a criminal conspiracy in the instant case.
Further Hon’ble Supreme court explaining section 106 in connection with last-seen theory held as follows:

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. Notably, a circumstance of last seen does not, by itself, necessarily lead to an inference that the accused committed the crime. There must be something more that establishes a connection between the accused and the crime. For instance, there may be cases where close proximity between the event of last seen and the factum of death may persuade a rational mind to reach the irresistible conclusion that the last seen of the deceased is material and merits an explanation from the accused.

In this case a specific objection has been raised with regard to certificate based on section 65-B Evidence Act. Rejecting such objection Hon’ble Supreme Court held that such an objection for the first time at this appellate court cannot be sustained and further Hon’ble Supreme Court relied on such electronic records to decide the case.



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