Sunil vs State Of Maharashtra

P. N. Deshmukh, J

Challenge in this appeal is to the Judgment of learned Sessions Judge, Nagpur, dt.26.7.2016 passed in Sessions Case No.304 of 2015 whereby the

appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer life imprisonment and to pay a

fine of Rs.1,000/Â​ in default to suffer rigorous imprisonment for six months.

The case of prosecution can briefly be stated as follows :

Deceased Ruksana Bano was working as a Security Guard in day time on the Construction site of one Mohd. Ashraf Mohd. Aziz situated at

Yashodhara Nagar, Nagpur. While appellant was working in Oxygen Cylinder Company situated near the Construction site. On 19.4.2015, deceased

had dinner with PWÂ7 Roshan Parveen Mohd. Ayub Sheikh. The deceased informed her that, as wife of appellant was not in his house, she had also

brought meals for him and that the appellant was to come to have night meals in her house. Thereafter, on the following day, dead body of deceased

was found at the site which was noticed by PWÂ2 Iqbal Ahamad Khan, Security Supervisor who, therefore, gave information vide his Report

(Exh.31) which was recorded by PWÂ12 P.S.I. Suchita Uday Mandare, who was attached to Yashodhara Nagar Police Station and accordingly, she

registered Marg No.19 of 2015 and investigated the same, during the course of which she visited the spot, drew Spot Panchanama and also seized

bangle pieces under Panchanama (Exh.39). Further investigation was carried out by PWÂ13 A.P.I. Vikrant Ashokrao Sarne, who, on 21st April,

2015, recorded statements of five witnesses and effected arrest of appellant on the same day under Arrest Panchanama (Exh.63) and seized clothes

on his person under Seizure Panchanama (Exh.42). On 23rd April, 2015, Memorandum Statement of appellant is recorded vide Exh.43 and in

pursuance to same, appellant discovered one coconut string in two pieces from the terrace of his house and seized mobile phone of deceased under

Panchanama (Exh.44) from PWÂ8 Sushila Bhalavi. Thereafter, the appellant was referred for his medical examination to verify if he was potent and

for collection of his blood sample under Requisition memos (Exh.54 and 55 respectively). Query was made to PWÂ10 Dr. Sachin Giri by forwarding

Coconut string under requisition memo (Exh.67), which query was duly replied by the said Medical Officer. Seized muddemal articles were forwarded

to Chemical Analyser under requisition memo (Exh.68). During the course of investigation, Attendance Register Sheet of appellant came to be seized

under Seizure memo (Exh.72) from PWÂ14 Vinodkumar Vishwanath Pande, who was working in the Company where the appellant was working.

On completion of investigation, chargeÂsheet is filed before the learned Judicial Magistrate, First Class, Nagpur. In the course of time, the case was

committed to the Sessions Court for trial.

Charge (Exh.6) is framed against the appellant for the offence under Section 302 of the Indian Penal Code, which he denied and claimed to be

tried. To establish the charge levelled against the appellant, prosecution in all examined 15 witnesses and had commenced its evidence by examining

PWÂ1 Sidhartha Chunnilal Gedam, PWÂ7 Roshan Parveen, PWÂ9 Sonu Punjabrao Dongre on the theory of last seen, PWÂ2 Iqbal Ahamad Khan

who gave information to police, upon which Marg was registered, PWÂ3 Shahanaz Salim Ansari, Complainant/sister of deceased, PWÂ4

Rambahadur Ratansingh Thakur on Spot Panchanama (Exh.39) and Seizure of articles from spot (Articles A, B and C), PWÂ​5 Sheikh Riyaz Ahamad

Maifuz Ahamad who has proved Seizure panchanama of clothes of appellant (Exh.42), prepared Memorandum Statement (Exh.43) and effected

seizure of mobile under Discovery Panchanama (Exh.44), PWÂ6 Sheikh Afroz Mohd. Mustaq Sheikh on circumstance, PWÂ8 Sushila Ramprasad

Bhalavi from whom mobile of deceased came to be seized at the instance of appellant, PWÂ10 Dr. Sachin Giri who had examined the appellant and

issued Certificate (Exh.55), PWÂ11 Alka Mohan Gaikwad who has received report (Exh.35) of PWÂ3 Shahnaz/sister of deceased, upon which, she

registered crime at Exh.36, PWÂ12 P.S.I. Suchita Mandware, who had, on receiving information from PWÂ2 Iqbal Ahamad Khan, registered A.D.

No.19 of 2015, PWÂ13 A.P.I. Vikrant Sarne Investigating Officer, PWÂ14 Vinodkumar Pande who was working in the Company where deceased

was working and has proved the Attendance Register Sheet and concluded the evidence on examining PWÂ15 Dr.Harshwardhan Khushalrao

Khartade, who has performed autopsy and proved Post Mortem note at Exh.81.

Statement of accused under Section 313 of the Code of Criminal Code is recorded. The accused did not examine any witness in support of his

defence. On considering the evidence and documents on record, learned trial Judge convicted the appellant as aforesaid. Hence, this appeal.

Heard Mr.L.B.Khargade, learned Counsel for the appellant and Ms Mayuri Deshmukh, learned Additional Public Prosecutor for the State. It is

submitted that the case of prosecution is based on circumstantial evidence and on the theory of last seen. However, prosecution has failed to establish

circumstance which can lead to the only conclusion that the appellant alone is the author of crime. With regard to theory of last seen, it is submitted

that the evidence of witnesses relied on by prosecution on the theory of last seen cannot be accepted since the same is not at all convincing and it is

contended that, in view of evidence as aforesaid, no charge levelled against the appellant can said to be established as presence of appellant near the

spot is natural since he, according to the case of prosecution itself, was working in the Company situated adjoining to the Construction site where the

deceased was found dead. It is also contended that, in fact, according to further case of prosecution, on the fateful night, deceased had brought meals

for the appellant since his wife was not in his house and as such, their relations were cordial and therefore, no motive can be attributed to the appellant

to commit murder of deceased. In the circumstances, it is submitted that as there is no evidence establishing guilt of the appellant, the appeal be

allowed.

Learned Additional Public Prosecutor, on the other hand, submitted that, from the evidence of witnesses relied on by prosecution on the theory of

last seen, it is clearly established that, in the night intervening 19.4.2015 and 20.4.2015, appellant was in the company of deceased after 10.30 p.m.,

while the dead body was noticed by PWÂ2 Iqbal Ahamad Khan in the morning on the following day and thus, prosecution, in that event, has

established fact of appellant being in the company of deceased on the night of incident. It is thus submitted that, in view of provisions of Section 106 of

the Indian Evidence Act, burden lies upon the appellant to explain under what circumstances death of Ruksana occurred, which burden has not been

satisfactorily rebutted by the appellant. It is, therefore, submitted that, from the evidence of witnesses on the theory of last seen and other evidence as

appellant's involvement in the crime is established, the appeal is prayed to be dismissed.

In the background of submissions advanced as aforesaid, we have perused the evidence of PWÂ1 Sidhartha Gedam, which would reveal that he is

working as a driver in the Oxygen Cylinder Company where the appellant was working and on 19.4.2015, at 11.00 p.m., after having dinner, when he

was having walk with his friend PWÂ9 Sonu Dongre, he saw the appellant in the house of deceased. His evidence is very specific of his identifying

the appellant to whom he was already knowing as working in the same Company and had seen them together in the source of light of a bulb, which

was lit in the hut. He further states that, in the morning, when he was proceeding out on work, he saw crowd in front of house of deceased where she

was found dead.

In the crossÂexamination of PWÂ1 Sidhartha Gedam, it has come on record that his working hours starts at 7.00 a.m. As such, from his evidence

it is to be noted that dead body of deceased was found in the morning on 20.4.2015, at 7.00 a.m. Nothing is brought on record to doubt his evidence in

his crossÂexamination. He has denied suggestion put to him that, in the night of incident, he had not seen appellant talking to deceased Ruksana in her

hut.

Evidence of PWÂ1 Sidhartha establishing appellant's presence with the deceased on the fateful night is further corroborated by evidence of PWÂ7

Roshan Parveen when she deposed that she was also working as a Security Guard on the same site and in the night of incident at 8.30 p.m. was

relieved by deceased who took charge of Security Guard at that time. However, since deceased had brought dinner for her, both of them had meals

and deceased had informed her that she had also brought food for the appellant and he was to visit her hut to have meals as his wife was not in his

house. She further states that, while she was to leave the hut, the appellant arrived and started talking to deceased and she left the place. She

thereafter states that, on the next day, when she attended duty in the morning, she noticed that deceased was lying dead on the backside of her room,

and therefore, went to PWÂ2 Iqbal Ahamad Khan, Supervisor and gave information to him. In her crossÂexamination, though she claims to have

stated to police in her statement that Ruksana, the deceased had brought tiffin consisting of four boxes, she is unable to assign any reason as to why

said fact is not mentioned in her statement. This omission, however, does not find to be material at all since, in her further evidence, she admits that

the deceased had brought sufficient meals consisting of vegetable, rice, dal and roti sufficient for 3 to 4 persons. As such, said omission is of no

consequence. In fact, she also admits that, in the night of 19.4.2015, she and deceased took dinner together and the appellant did not have dinner in her

presence. In fact, it has come in her evidence that, after she had her dinner, appellant arrived in the house of deceased, upon which she left. This

witness has denied suggestion put to her that, in her presence, appellant had not come to the house of deceased. In view of above discussed evidence,

presence of appellant in the house of deceased on the fateful night as stated by PWÂ1 Sidhartha has been fully corroborated by PWÂ7 Roshan

Parveen on all material aspects.

Evidence of PWÂ1 Sidhartha and PWÂ7 Roshan Parveen is further found corroborated by PWÂ9 Sonu Dongare, when he had deposed that, in

the night of 19.4.2015, at 11.00 p.m., he along with PWÂ​1 Sidhartha were walking by the road while proceeding to pan shop, from about 40 to 50 ft. in

the source of light, he saw appellant in the hut of deceased talking to her, and further deposed that, on the following day in the morning, when he was

proceeding on his duty, he found deceased lying dead outside her hut. From his evidence, it has further come on record that PWÂ9 Sonu is also

working in the same Company where PWÂ1 Sidhartha is working as a driver and knows appellant since he was working in the same Company as a

helper. In that view of the matter, there is nothing to doubt evidence of any of these witnesses on the point of identification of appellant as all of these

witnesses were knowing appellant since prior to incident, who was seen in the house of deceased on the fateful night. In fact, it has also come in the

cross examination of PWÂ9 Sonu that PWÂ1 Sidhartha is residing in his neighbourhood and there is a pan shop situated in their locality. In view of

said fact, there is nothing to disbelieve that PWÂ1 Sidhartha and PWÂ9 Sonu were not proceeding together, towards the pan shop and as such, have

not witnessed appellant in the house of deceased. In fact, such suggestion put to this witness is denied by PWÂ​9 Sonu.

On the above discussed evidence led by prosecution on its case of appellant having been seen in the company of deceased, we find it useful to rely

upon the decision of the Apex Court in the case of Rishi Pal vs. State of Uttarakhan (2013 Cri.L.J. 1534 )wherein reference is made to the case of

Bodh Raj alias Bodha and Others vs. State of Jammu and Kashmir [(2002) 8 SCC 45], wherein the Apex Court held as under :

“The last seen theory comes into play where the timeÂgap between the point of time when the accused and the deceased were seen last 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. It

would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of

other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen

together, it would be hazardous to come to a conclusion of guilt in those cases. â€​

In the appeal in hand, from the above evidence, it is established that the deceased was in the company of appellant at 11.00 p.m. while her dead

body was found lying on the same spot at 7.00 a.m. As such, it can definitely be held that the theory of last seen comes into play in the present case

as there is absolutely no long gap between the period when the appellant and deceased Ruksana were last seen alive and when the deceased was

found dead. In the absence of any other positive evidence, as such, possibility of some one else committing murder of deceased is totally remote.

We are conscious of the fact that the theory of last seen together itself is not conclusive proof establishing involvement of accused, but other

circumstances surrounding the incident like relations between the accused and the deceased, enmity between them, recovery of weapon from the

accused, nonÂexplanation of death of deceased by the accused etc. may lead to presumption of guilt. As such, according to the said principles of law,

the circumstances of last seen together does not by itself and necessarily lead to inference that it was the accused who committed the crime as there

has to be something more establishing connectivity between the accused and the crime. Admittedly, in criminal prosecution initial burden of proof is on

the prosecution to bring sufficient evidence pointing towards the guilt of accused. However, in the cases based on theory of last seen together,

prosecution is exempted from proving exact happening of the incident as the accused himself would have special knowledge of incident and thus,

would have to discharge burden of proof contemplated under Section 106 of the Indian Evidence Act.

In the evidence of PWÂ1 Sidhartha and PWÂ9 Sonu, presence of appellant in the hut of deceased in the fateful night on 19.4.2015, at 11.00 a.m.

is established. In fact, their evidence establish that there was source of light in the hut due to which they could identify the appellant who was present

in the house of deceased. There is no question of mistaken identity of appellant either by PWÂ1 Sidhartha or PWÂ9 Sonu as both of them were

working in the same Oxygen Cyclinder Company as driver and helper respectively where the appellant had initially worked for a period of two months

as helper. In that view of the matter, both these witnesses were knowing the appellant. In fact, it has also come in the evidence of PWÂSonu that

distance from where they had seen the appellant was 40 to 50 ft. and has further deposed that both these witnesses on the next day morning found

Ruksana lying dead. Evidence of PWÂ2 Iqbal Ahamad Khan established deceased having noted by him after informed by PWÂ7 Roshan Parveen

lying in dead condition of which he immediately gave information to police. According to evidence of PWÂ7 Roshan Parveen, when she was to attend

her duty, her duty hours being from 8.00 a.m. to 8.00 p.m., she did not find Ruksana in her room, though Radio was on and thereafter noticed her lying

dead in the back side of the room. Identification of appellant in the Company of deceased on the previous night at 11.00 p.m., as has come in the

evidence of PWÂ1 Siddhartha and PWÂ9 Sonu, is substantiated when, in the evidence of PWÂ7 Roshan Parveen, it has come on record that, during

her presence in the house of deceased, appellant came to her house and after his arrival she left for her house. Thus, from the evidence referred as

above, it is seen that the appellant and deceased were together in the room of deceased. In this view of the matter, Section 106 of the Evidence Act

would come into play. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of

proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underline Section 106 of the Evidence

Act can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan vs. Kashi Ram

reported in (2006) 12 SCC 254 : AIR 2007 SC 144, the Supreme Court has observed that if the accused 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 compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional

link which completes the chain.

Apart from the above evidence, appellant's involvement in this Crime is further established from the evidence of PWÂ5 Sheikh Riyaz Ahamad

Maifuz Ahamad, an independent panch witness, in whose evidence it has come on record that, in his presence, Memorandum Statement of appellant

(Exh.43) is recorded on 23.4.2015 wherein he stated to disclose rope concealed on the roof of his house and mobile phone of deceased sold by him to

PWÂ​8 Sushila, which is seized under Seizure Panchanama Exh.44. Exh Nos.43 and Exh.44 are proved by him.

Thus, from above evidence, recovery of above articles at the instance of appellant is established. Said piece of evidence is worthy to be relied as

nothing could be elicited in the crossÂ​ examination of PWÂ​5 Sheikh Riyaz. In fact, evidence of PWÂ​8 Sushila corroborates recovery of mobile phone

of deceased sold to her by appellant when she has deposed that, on 20.4.2015 i.e. on the following day of incident, which date is very much significant

in view of fact that appellant on the following day visited her house at 11.00 a.m. and sold mobile phone of deceased to her for Rs.750/Â saying that

he was in need of money, which mobile was purchased by PWÂ Sushila and three days thereafter, was seized by police from her house which she

identified as 'ArticleÂ8' produced before the trial Court. In fact, it has come in her crossÂexamination that she was knowing appellant even prior to

purchase of mobile phone from him as they both belong to same State and used to meet in the market. In the background of above evidence, there is

substance in the case of prosecution of appellant's selling mobile phone of deceased to PWÂ8 Sushila and has further established that one Coconut

String is discovered at the instance of appellant from the terrace of his house which is seized under Panchanama. In the light of above stated recovery

of coconut string, evidence of PWÂ10 Dr.Sachin Giri would reveal that, on his examining appellant on 27.4.2015, he was informed of strangulation of

deceased as she refused to perform sexual act with him and on examining the appellant, he issued Medical Certificate (Exh.55) certifying the

appellant to be potent capable of performing sexual intercourse. Said document also refers to rope by which victim is strangulated in the column of

history of assault stated to him by the appellant.

PWÂ15 Dr.Harshawardhan Kharate has deposed that he noted 16 external injuries over the body of deceased as mentioned in column 17 of the

Post Mortem report which were ante mortem injuries. His evidence would reveal that injuries nos. 1 to 5 mentioned in column no.17 together with

corresponding internal injuries mentioned in column no.20 were sufficient to cause death in ordinary course of nature. The cause of death is stated to

be “due to strangulationâ€. Medical Officer has accordingly proved Post Mortem Report at Exh.81. There is no much dispute about unnatural

death of deceased by strangulation as the defence of appellant is of total denial. While in Viscera report of deceased no poison is detected. Evidence

of Dr.PWÂ15 Harshawardhan is material with reference to recovery of coconut rope at the instance of appellant when said article was forwarded to

the Medical Officer who, on verifying the same, has opined that the injuries mentioned in Column No.17 are possible by such rope and accordingly,

issued Query Report (Exh.82). The above circumstance also points towards involvement of appellant in the present crime. According to C.A. report

(Exh.23), rope is of coconut coir.

As already stated earlier, case of prosecution is based on circumstantial evidence and on the theory of last seen. There are no eye witnesses to

the crime. In a case which rests on circumstantial evidence, the law postulates a twofold requirement. First, every link in the chain of circumstances

necessary to establish the guilt of the accused must be established by prosecution beyond reasonable doubt. Second, all the circumstances must be

consistent only with the guilt of the accused. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, it has

been observed thus :

“the normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn

must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human

probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the

accused and inconsistent with his innocence. â€​

Considering the evidence, thus, prosecution since is found to have established that the appellant was last seen in the company of deceased and

since this assumes significance as the time period in between when the accused and deceased were seen together and when the deceased is found

dead is minimum thus to exclude the possibility of involvement of any other person responsible to cause death of deceased which leads to the only

conclusion that it is the appellant alone who is involved in the present crime. Having considering the aforesaid evidence, prosecution is found to have

established its case beyond reasonable doubt. We, therefore, find no merits in the appeal and the same is, thus, dismissed.