Case: Amit @ Ammu Vs. State Of Maharashtra

for burning the school bag, bycycle etc. Out of the deposition of the witnesses, the prosecution case was primarily based on the testimony of PW1 and PW11 and on the circumstance of last seen as deposed by these two witnesses.7. As already noticed body of deceased was recovered on 29th March, 2001. It stands established that the same was recovered from a dilapidated building in the remote area of the forest as deposed to by PW1 and PW11. As per the post-mortem report the case of death is strangulation. It also shows the commission of the sexual assault on the deceased prior to her death. It may be noted that the defence admitted the post-mortem report. An argument was sought to be urged that the post-mortem report could not be relied upon in view of contradictions therein. The contradiction pointed out by learned counsel is that on one hand, the report states that the body had early signs of decomposition and on the other, all the injuries have been stated to be fresh. There was no requirement to note whether the injuries were fresh or not. Further, the post-mortem report having been admitted it is not open to the appellant to criticize the recitals therein about giving an opportunity to the doctor to explain it. 8. The main submission of learned counsel for the appellant is that unless time of death is established it is not permissible to rely upon circumstance of last seen so as to convict the appellant. The main circumstance against the appellant is of last seen with the deceased as deposed by PW1 and PW11. We have carefully examined the testimony of PW1 and PW11. Their evidence is trustworthy and reliable. It has ring of truth. It stands fully established that they had seen the deceased and the appellant on 28th March as noticed hereinbefore. Apparently, both left as deposed by PW1 but as the circumstances show that, in fact, they did not leave. When the next day PW1 again came to the same area for grazing of buffaloes, he found the body of the deceased whereupon the matter was reported to the police and FIR recorded and investigation conducted as noticed earlier. It has also come in evidence that usually PW1 used to go to the same area for grazing of the animals which was a secluded area and also had a dilapidated building. It is apparent from the site plan as well. Regarding the contention that the time of the incident had not been established and therefore the circumstance of last seen is not sufficient to convict the appellant, the High Court on examination of the evidence has reached the following conclusion:- "In the instant case, the region being temperate, rigor mortis lasts for about two to three days. If we apply this analogy, then at the time of post-mortem examination, which has conducted on 30.3.2001 and begun at 11.40 a.m., the doctor did not find rigor mortis. That means the time of death must have been on 28.3.2001 between 3.00 p.m. and 4.00 p.m., since the rigor mortis in a temperate region lasts for two days. This is not the case, therefore, where time of death cannot be ascertained on the basis of these recognised guidelines, merely because the same is not given in the post-mortem report. In our considered view, this is not the circumstance which affects the material particulars of the prosecution case in the crime in question." We are in complete agreement with the conclusion of the High Court on the aspect of time of the death. 9. Learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman and Another vs. State of Assam (2002) 6 SCC 715 , for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of such case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which observation as aforesaid and principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed. In which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and deceased were last seen by PW1 and PW11. No explanation has been offered in statement by the appellant recorded under Section 313, Cr.P.C. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by Court of Sessions and affirmed by the High Court.10. The next question is of the sentence. Considering that the appellant is a young man, at the time of incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The present is a case to which observation as aforesaid and principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed. In which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and deceased were last seen by PW1 and PW11. No explanation has been offered in statement by the appellant recorded under Section 313, Cr.P.C. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by Court of Sessions and affirmed by the High Court.Considering that the appellant is a young man, at the time of incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare case.