Case: Sunil S/O Shyamlal Kewat (In Jail) Vs. The State of Maharashtra, Thr. P.S.O. P.S. Yashodhara Nagar, Nagpur

2. 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 PW-7 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 PW-2 Iqbal Ahamad Khan, Security Supervisor who, therefore, gave information vide his Report (Exh.31) which was recorded by PW-12 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 PW-13 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 PW-8 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 PW-10 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 PW-14 Vinodkumar Vishwanath Pande, who was working in the Company where the appellant was working. On completion of investigation, charge-sheet is filed before the learned Judicial Magistrate, First Class, Nagpur. In the course of time, the case was committed to the Sessions Court for trial3. 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 PW-1 Sidhartha Chunnilal Gedam, PW-7 Roshan Parveen, PW-9 Sonu Punjabrao Dongre on the theory of last seen, PW-2 Iqbal Ahamad Khan who gave information to police, upon which Marg was registered, PW-3 Shahanaz Salim Ansari, Complainant/sister of deceased, PW-4 Rambahadur Ratansingh Thakur on Spot Panchanama (Exh.39) and Seizure of articles from spot (Articles A, B and C), PW-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), PW-6 Sheikh Afroz Mohd. Mustaq Sheikh on circumstance, PW-8 Sushila Ramprasad Bhalavi from whom mobile of deceased came to be seized at the instance of appellant, PW-10 Dr. Sachin Giri who had examined the appellant and issued Certificate (Exh.55), PW-11 Alka Mohan Gaikwad who has received report (Exh.35) of PW-3 Shahnaz/sister of deceased, upon which, she registered crime at Exh.36, PW-12 P.S.I. Suchita Mandware, who had, on receiving information from PW-2 Iqbal Ahamad Khan, registered A.D. No.19 of 2015, PW-13 A.P.I. Vikrant Sarne Investigating Officer, PW-14 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 PW-15 Dr.Harshwardhan Khushalrao Khartade, who has performed autopsy and proved Post Mortem note at Exh.814. 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.

Reasoning:
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 cross-examination. He has denied suggestion put to him that, in the night of incident, he had not seen appellant talking to deceased Ruksana in her hutThis 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 PW-1 Sidhartha has been fully corroborated by PW-7 Roshan Parveen on all material aspectsFrom his evidence, it has further come on record that PW-9 Sonu is also working in the same Company where PW-1 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 crossexamination of PW-9 Sonu that PW-1 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 PW-1 Sidhartha and PW-9 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 PW-9 Sonu12. 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 remote13. 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, non-explanation 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 ActThus, 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 chain15. Apart from the above evidence, appellants involvement in this Crime is further established from the evidence of PW-5 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 PW-8 Sushila, which is seized under Seizure Panchanama Exh.44. Exh Nos.43 and Exh.44 are proved by him16. 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 crossexamination of PW-5 Sheikh Riyaz. In fact, evidence of PW-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/- saying that he was in need of money, which mobile was purchased by PWSushila and three days thereafter, was seized by police from her house which she identified as Article-8 produced before the trial Court. In fact, it has come in her cross-examination 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 appellants selling mobile phone of deceased to PW-8 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 PW-10 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 appellantThere 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.PW-15 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 coir18. 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 accused19. 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.