Bombay High Court
Indraj Chhaguram Harijan vs State Of Maharashtra And Anr. on 26 August, 2025
2025:BHC-AS:36610-DB 1-apeal-844-2023-J-F.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 844 OF 2023
Indraj Chhaguram Harijan,
Age: 59 years, Indian Inhabitant,
Occ.: unknown,
Residing at:
Behind Shiv Mandir, Ambernath 421 501
District : Thane ...Appellant/
(Presently lodged in Kolhapur Central Prison) (Orig. Accused)
SHEPHALI ~ versus ~
SANJAY
MORMARE
Digitally signed by
1. The State of Maharashtra,
SHEPHALI
SANJAY At the instance of Shivajinagar Police
MORMARE
Date: 2025.08.26
17:33:12 +0530
Station, Ambernath (E)
2. XYZ,
(Father of deceased victim ABC)
Age: 45 years: Occ.: Carpenter ...Respondents
A PPEARANCES
For the Appellant/ Mr Ramnik Pawar (appeared
Orig. Accused online).
For Respondent No. 1-State Mr VA Kulkarni, APP.
For Respondent No. 2 Ms Rupali M Shinde, Appointed
Advocate.
CORAM : SUMAN SHYAM &
SHYAM C. CHANDAK, JJ
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RESERVED ON : 13TH AUGUST2025.
PRONOUNCED ON : 26TH AUGUST 2025.
JUDGMENT (Per Suman Shyam, J):-
1. This Criminal Appeal arises out of the Judgment and Order dated 5th May 2012 passed by the learned Additional Sessions Judge, Kalyan in Sessions Case No. 207 of 2009, convicting the sole Appellant (Accused) under Section 363, 376(2)(f), 302 and 201 of the Indian Penal Code, 1860 ("IPC") for kidnapping a minor girl, (victim) and committing her rape and murder. The learned Trial Court had sentenced the Appellant as follows:
(a) to undergo imprisonment for life for the offence punishable under Section 302 of IPC and to also pay fine of Rs. 1,000/- in default further imprisonment for the period of three months;
(b) to undergo rigorous imprisonment for ten years for the offence punishable under Section 376(2)(f) IPC and to pay fine of Rs. 1,000/- in default, further imprisonment for a period of three months; Page 2 of 26
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(c) to undergo rigorous imprisonment for the period of five years for the offence punishable under Section 363 IPC and also pay fine of Rs 1,000/- in default further imprisonment for period of three months;
(d) to undergo rigorous imprisonment for one year for the offence punishable under Section 201 IPC and pay fine of Rs. 500/- in default further imprisonment for the period of one month.
2. The prosecution case, in a nutshell, is that on 9 th June 2009, at around 9.00 pm, the accused (here-in-after referred to as the Appellant) had taken the victim girl along with him for buying chocolates. Thereafter, he took the victim girl to an isolated place located behind a Shiv Mandir and, thereafter, committed her rape and murder. The father of the victim, namely, Mahendra Dudhnath Yadav, who is the informant in the case (PW-1), had initially lodged a missing report in the evening of 9 th June 2009 when he could not find his daughter after carrying out search in the vicinity. The dead-body of the victim was later recovered in the morning hours of 10th June 2009. There was signs of sexual assault being committed upon the victim. Accordingly, the PW-1 had lodged a Page 3 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc complaint with the police, based on which, C.R. No. I-74/2009 was registered with the Shivaji Nagar Police Station under Section 363, 376(2)(f), 302 and 201 of the IPC. The police took up the matter for investigation. Upon completion of the investigation, submitted charge-sheet against the Appellant. The Appellant had pleaded innocence. Therefore, he was made to face trial. On conclusion of trial, the learned Additional Sessions Judge, Kalyan had passed the impugned Judgment dated 5th May 2012 holding that the charges brought against the Appellant had been proved beyond reasonable doubt.
3. The prosecution case is based on circumstantial evidence. In order to establish the charge brought against the Appellant, the prosecution had examined as many as 10 (ten) witness, including the Informant (PW-1), the Doctor, who had conducted the postmortem examination (PW-6) and the Investigating Officer, who had completed the investigation (PW-9). That apart, four witnesses, viz., PW3-, PW-4, PW-5 and PW-7, who had seen the victim in the company of the Appellant just before her dead body was recovered, were also examined as prosecution witnesses so as to establish the last seen together circumstance. Page 4 of 26
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4. The case of the defence was of one of total denial. However, the Appellant did not adduce any evidence before the Trial Court.
5. Upon conclusion of trial, the learned Court below had found the Appellant guilty of committing offences under Section 363, 376(2)(f), 302 and 201 of the IPC and sentenced him in the manner indicated above.
6. Assailing the impugned Judgment and Order dated 5th May 2012, the Appellant has preferred the instant Appeal inter-alia contending that there is no evidence available on record to prove the charge of rape and murder brought against the Appellant. In order to appreciate the aforesaid stand of the Appellant, it would be necessary for us to briefly examine the evidence available on record.
7. Shri Mahendra Dudhnath Yadav, who is the father of the victim and the informant in this case, was examined as Prosecution Witness No. 1. PW-1 has deposed to the effect that the victim was his daughter, who was studying in the 3 rd standard in a school. She was aged about 9 years at the time of the incident. The incident took place on 9th June 2009. PW-1 has stated that, apart from his Page 5 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc wife, he had five daughters and one son. On 9 th June 2009, at around 8:30 p.m., his daughters, Priyanka and the victim were playing in front of the house. Priyanka came home at about 9.00 pm and she was weeping. Priyanka told his wife that one man had caught the hands of the victim and took her away. Coming to know about the said fact, his wife and daughters Priyanka and Priti went in search of the victim. He had also joined the search. But after searching till about 12.30 am in the midnight, they could not find the victim. Then he went to the police station and lodged a missing report.
8. PW-1 has further deposed that on 10 th June 2009, in the morning, the police came and informed him that dead-body of a girl has been found at a distance of 500 feet near the Shiv Mandir. He went to the said place and identified the dead-body of his daughter. There was no underwear on her person and there was also bleeding from her private parts. There were abrasions over her cheeks. He had lodged complaint before the police, which is Exhibit-17.
9. During his cross-examination, the PW-1 has replied that while conducting the search for the victim, one Suresh and Page 6 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc Rambadan were also with him. His house is located at around 600 to 700 feet away from the place where the dead-body of the victim was found. The dead-body was lying at a distance of 500 feet from the "Mandir". The people of the locality had brought the accused to his house and were assaulting him. He has also deposed that no person goes to that place after 7.00 to 8.00 pm.
10. Shri Rambadan Bhikanu Yadav, who had seen the accused taking the victim along with him on the day of of occurrence, was examined as Prosecution Witness No. 3. He has deposed that on 9 th June 2009, at about 9.00 to 9.30 pm, he was sitting on the "Kathada" of the Tahsil office and was chitchatting with one Harihar Yadav. At that time, he saw the accused taking the victim towards the Shiv Mandir. Initially, he thought that the accused was taking the victim for giving her chocolates. As such, he came back home and went off to sleep. On the next morning, he saw that people had gathered in the house of the complainant (PW-1). At that time, he went there and came to know that there was rape and murder of the victim girl. He saw the dead-body of the victim. There were abrasions on the cheek and blood on the frock and on her thighs. The accused was not present there but he was caught Page 7 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc after two-three days. This witness has identified the Appellant in the Court.
11. In his cross-examination, PW-3 has replied that he had told PW-1 that he had seen the Appellant along with the victim on the night of 9th June 2009. The witness has, however, admitted that he had not stated the said fact to the police, when the police came near the dead-body of the victim. PW-3 had further replied that he as well as the Appellant used to sell fruits in a handcart. The dead- body was lying at a distance of 1000 feet from the road. The road, in which the Appellant had taken the victim leads to the place where the dead-body was found lying. This witness has remained firm during his cross-examination.
12. PW-4, Vimal Somnath Gala is another witness examined by the prosecution, who had also seen the victim in the company of the Appellant on the day of the incident. This witness has deposed that the Victim, Priti and Priyanka are the daughters of PW-1, complainant and they used to come to his shop. The Appellant used to come to his shop with those daughters for giving chocolates. On the day of the incident, at about 8.30 pm., the Appellant came to his shop with the victim. At about 10.00 - 10.30 Page 8 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc pm, the mother of the victim came to his shop and enquired about the victim. Then he told her that the victim might be playing there. After sometime, the father of the victim also came to his shop and told him that the victim did not come back home. Then he, along with other people, searched for the victim but could not find her. Later on, he came to know that the victim was raped and murdered. In his cross-examination, this witness has stated that his statement was recorded by the police on the next morning. He had stated before the police that he saw the victim along with the Appellant at around 9.00 pm, sitting near the wall.
13. Kum. Khushbu Pappu Jaiswal is a child witness examined as Prosecution Witness No. 5. She was aged about 6 years when her evidence was recorded. PW-5 has stated that the victim, Priyanka and Sheetal are her friends but the victim is no more. One man took the victim by catching her hand. She could identify the man. The witness has stated that the man was there in the court room by pointing fingers towards the Appellant. She has also stated that she did not see the victim thereafter. In her cross-examination, PW- 5 had stated that she knows the Appellant since he used to sell Page 9 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc bananas. On the same night, she had told the father of the victim that the victim had gone with the uncle who used to sell bananas.
14. PW-7, Harihar Kuber Yadav is a resident of the locality near the Shiv Mandir. He has deposed that the Shiv Mandir is at a distance of five minutes walk from his house. He knows the PW-3, who is his friend and also knows the Appellant. The Appellant used to sell grapes and bananas in a handcart. On 9th June 2009, he and PW-3 were sitting near Tahsil office at about 9.00 pm and were chitchatting. At that time, he saw the Appellant taking the victim towards Shiv Mandir by catching her finger. On the next morning, when he went to the toilet, he could see a crowd in the barren land. Then he went towards the crowd and saw the victim lying dead at that place. There were abrasions on her cheeks and also blood. He could identify the victim. During his cross-examination, this witness has stated that there was a shop of chocolates at a distance of two minutes from the place where he and PW-3 were sitting. The Appellant took the victim but did not come back during the period of half an hour, during which, they were sitting there. The PW-7 has further confirmed that he had stated the said fact to the police after two days. As he did not know Marathi, the police Page 10 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc explained his statement in Hindi. The Appellant was caught by the crowd after the recovery of the dead-body and handed over to the police after two days.
15. PW-6, Dr. Pravin Varjan Rathod, was the doctor, who had conducted the postmortem examination on the dead-body of the victim. PW-6 has deposed that on 10 th June 2009, he was attached to the Central Hospital, Ulhasnagar as a Medical Officer. On that day, dead-body of the victim was brought by one PN Kurkute of Shivaji Nagar Police Station for postmortem. He had carried out the postmortem examination on the dead-body on 10 th June 2009 in between 1.30 pm to 2.35 pm.. The age of the victim girl was nine years. The clothes on her person were stained with blood and were soiled. He had found the following injuries on the dead-body:
(a) External genitals as shown in column no. 15 of the postmortem notes and it was valvular oedema;
(b) contused abrasion over right side of cheek encircling face measuring about 2 x 2 cm;
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(c) contused abrasion over left side of cheek encircling face present. The dental alignment seen on left side of cheek;
(d) Anal injuries- external sphincter tear was present.
Normal rugosity was damaged. The skin over fourchette was absent. Only thin membrane between anus and vagina was present.
16. PW-6 has deposed that after the postmortem examination, he had found the hymen was completely ruptured. The vaginal mucosa was ruptured. Perineal muscle external sphincter ruptured. Neuro genital diaphragm ruptured. There was 2 nd degree perineal tear. Bleeding was present. Posterior fornix was torn. Posterior pouch of peritoneum was open and intestine was hanging in the vagina. On opening the abdomen, haemotoma was seen over introversical fold of peritoneum. Hoemotoma was also seen extending retro-peritoneum into the broad ligament upto S3-S4 level.
17. According to PW-6, the injuries were ante-mortem and the victim died due to the haemorogic shock due to injuries to the Page 12 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc genital organs. He has also confirmed that from the Chemical Analysis, it has come out that there was no poisoning of the victim leading to her death.
18. PW-9, Ramesh Vishnu Bankar was the Investigating Officer, who had partly conducted the investigation in connection with C.R. No. I-74/2009 of Shirvaji Nagar Police Station. He has deposed before the Court that in the year 2009, he was attached to the Shivaji Nagar Police Station, Ulhasnagar as a Senior Police Inspector. C.R. No. I-74/2009 was registered in the police station. Initially, API Dharne was investigating the offence. API Dharne had prepared spot panchanama (Exhibit-22), inquest panchnama (Exhibit-23) but it was he who had arrested the accused under arrest panchnama (Exhibit-25) and had also seized the clothes on the person of the Appellant while arresting him in presence of panch witnesses. The Appellant was referred for medical examination and for taking his blood samples. He had recorded the statements of Dilip Ramchandra Patil and other witnesses. The cloth(s) of the victim, i.e., the frock was seized under panchnama ((Exhibit-24) (admitted by the defence). On 10 th June 2009, he had recorded the statements of six witnesses. On 12 th June 2009, Page 13 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc he had recorded the statements of PW-3 and PW-7. On 18 th June 2009, he had received the postmortem notes and those were collected by him. On 18th June 2009 itself, he had sent the seized articles to Chemical Analyser, Mumbai with the report (Exhibit-
41), which bears his signature. He had also sent the viscera of the deceased to the Histopathology Department of JJ Hospital, Mumbai, with the report. On 20th June 2009, a sample of the semen of the accused was sent to C.A. Mumbai with the report.
19. PW-9 has further deposed that on 17 th July 2009, he had sent a letter to the Executive Magistrate, Ambernath for the Test Identification Parade of the accused, which was accordingly conducted on 12th August 2009 in the Adharwadi Prison. On 2 nd September 2009, PI Patil has submitted the charge-sheet against the accused. He had proved the charge-sheet (Exhibit-44) by identifying the signature of PI Patil.
20. During his cross-examination, PW-9 has stated that the incident took place during the intervening night of 9 th June 2009 and 10th June 2009. A missing report about the deceased was filed in the police station on 9th June 2009. According to the missing report, the victim went missing on 9 th June 2009 in between 7.30 Page 14 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc pm to 9.00 pm. The Appellant was arrested on 11 th June 2009 at about 21.40 hours. PW-9 has admitted that before the arrest of the accused, people had caught and assaulted him. Thereafter, the Appellant was arrested. On 11th June 2009, he had recorded the statement of PW-4.
21. PW-2, Subhashchandra is a panch witness of Exhibit-22 panchnama, by means of which, the police had seized the earth mixed with blood from the place of the incident. PW-8, Dattaram Pundalik Shirsat is the photographer, who had taken photographs of the dead-body on being instructed by the police. PW-10 is Doctor Mrs Kshama Ganesh Mumbaikar, who was the Medical Officer on duty in the Central Hospital, Ulhasnagar on 10th June 2009, when the Appellant was sent there for medical examination. PW-10 has opined that the accused was capable of sexual intercourse. She had collected blood samples. There were abrasions and contusions on the person of the Appellant and he had given history that he was assaulted by public.
22. By referring to the materials available on record, Mr Pawar, learned counsel for the Appellant has argued that there are material inconsistencies in the evidence of PW-3, PW-4, PW-5 and Page 15 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc PW-7 and, therefore, it cannot be said that the last seen together circumstance has been properly established by the prosecution in the present case. According to Mr. Pawar, the testimony of PW-1, i.e., the complainant also does not clearly indicate as to where the victim was playing on the day she went missing.
23. Referring to the decision of the Supreme Court in the case of Prem Thakur vs State of Punjab ,1 as well as Navneethakrishnan vs State by Inspector of Police,2 Mr Pawar has argued that the last seen together circumstance is weak evidence and, therefore, the same cannot form the sole basis of conviction.
24. Referring to the testimony of PW-5, who is a child witness, Mr Pawar has argued that the Trial Court has not exercised due care and caution while relying upon the testimony of a child witness who does not understand the sanctity of oath. By relying upon the decision of the Supreme Court rendered in the cases of Dattu Ramrao Sakhare & Ors vs State of Maharashtra ,3 Suresh vs State of UP,4 and State of UP vs Ashok Dixit & Anr,5 Mr Pawar has 1 (1982) 3 SCC 462.
2 (2018) 16 SCC 161.
3 (1977) 5 SCC 341.
4 (1981) 2 SCC 569.
5 (2000) 3 SCC 70.
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26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc further argued that before relying upon the version of child witness, the Court ought to have first ascertained the competence of the witness to depose and the likelihood of her being tutored, which was not done in this case. It is also his submission that it would be wholly unsafe to base the conviction of the accused on the testimony of a child witness.
25. With regard to the recovery of the blood stained clothes of the victim as well as the accused and the forensic report of Chemical Analyser brought on record by the procession, Mr Pawar has argued that mere presence of human blood on the clothes of the Appellant would not essentially lead to the conclusion that it was he, who has committed the offence of rape and murder. In support of his above arguments, Mr Pawar has relied upon the two decisions of the Supreme Court viz. State of Rajasthan vs Tejaram & Ors,6 and Prakash vs State of Karnataka.7 To some-up his arguments, Mr Pawar has contended that there is no evidence available on record to sustain the conviction of the Appellant under Sections 376(2)(f) and 302 of the IPC.
6 (1999) 3 SCC 507.
7 (2014) 12 SCC 133.
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26. Responding to the above contention, Mr Kulkarni, learned APP appearing for the Respondent No. 1-State has argued that the chain of circumstance necessary to prove the guilt of the Appellant have been established by the prosecution beyond reasonable doubt. According to Mr Kulkarni, this case is not based only on the last seen together circumstance or the testimony of a child witness but there are other evidence forming strong links in the chain of circumstances so as to establish the fact that it was none other than the Appellant (accused), who had committed the gruesome act of rape and murder of a minor girl. According to Mr Kulkarni, the evidence brought on record unfailingly establishes the charge brought against the Appellant. Based of such evidence, the learned Trial Court has rightly convicted the Appellant by furnishing proper reasons. As such, submits Mr Kulkarni, there is no scope for interfering with the impugned Judgment and Order passed by the learned Trial Court. To support his above argument, Mr Kulkarni has placed reliance on State of Rajasthan vs Kashi Ram ,8 Inspector of Pllice, Tamil Nadu vs John David ,9 and Satpal vs State of Haryana.10 8 AIR 2007 SC 144.
9 (2011) 0 AIR (SC)(Cri) 1135.
10 AIR 2018 SC 2142.
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27. Supporting the arguments advanced by the learned APP, Ms Rupali Shinde, learned appointed Advocate representing Respondent No. 2/informant has argued that apart from the fact that the prosecution has led sufficient evidence to establish the charge brought against the Appellant, the failure on the part of the Appellant to offer any explanation as to the circumstances under which, he had parted with the company of the victim and his failure to visit the house of the deceased after the news of her death broke out in the locality, are relevant circumstances pointing toward the guilt of the accused. These circumstances, brought on record by the prosecution, according to Ms Shinde, would act as additional links in the chain of circumstances so as to establish the guilt of the Appellant. In support of her arguments, Ms Shinde has relied upon a decision of the Supreme Court rendered in the case of Amit vs State of Uttar Pradesh,11 to argue that this being a case of kidnapping, rape and murder, the last seen together circumstance would form an important link in the chain of circumstances, which cannot be ignored by the Court. 11 2012 ALL MR (Cri) 1353 (S.C.) Page 19 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc
28. We have considered the submissions made at the bar and have also examined the material available on record. At the very outset, it would be apposite to note herein that the fact that the victim had gone missing on 9 th June, 2009, at around 9.00 p.m., while she was playing with the siblings and other friends in the vicinity of her house has been cogently established from the evidence available on record. PW-3, PW-4, PW-5 and PW-7 have spoken in one voice by deposing before the Court that they had seen the Appellant take the victim along with him around the same time when she went missing.
29. The shop owner (PW-4), where the Appellant had taken the victim to buy chocolates, had also identified the Appellant as the person with whom the victim had gone to his shop. These witnesses have remained firm during their cross-examination. The evidence of PWs 3,4,5 and 7 corroborate the version of each other, in so far as the fact that the Appellant was last seen together in the company of the victim on the date of the incident is concerned. Therefore, we are of the view that from the evidence of PWs 3,4,5 and 7, it has been firmly established that on the date of the incident, at around 8.30 pm. to 9.00 p.m., it was none other than Page 20 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc the Appellant who had taken the victim along with him to a shop to buy chocolates.
30. It is also established from the evidence of PWs-4 and 7 that after buying chocolates, the Appellant did not return back with the victim, but, he had proceeded further towards the Shiv Mandir by catching her fingers. That was, however, not the direction of the house of the victim. Therefore, it is evident that the Appellant did not have any intention to bring the victim back to her home after buying chocolates but had the intention to take along with him.
31. The evidence on record also unequivocally suggests that the Appellant was a resident of an area which was very close to the Shiv Mandir and in the evening time after 7.00 -8.00 pm, no person goes near the Shiv Mandir. The fact that the house of the Appellant is near the Shiv Mandir and, therefore, near to this place whereas dead body was found is also well established from the evidence brought on record. Therefore, the fact that the Appellant had taken the victim towards the Shiv Mandir i.e., his house instead of returning her back to her home during such late hours and committed rape is another important link in the chain of circumstance which goes to show the motive of the Appellant was Page 21 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc nothing but his lust. In our opinion, the motive of the crime has also been cogently established by the prosecution by adducing evidence on record.
32. The dead-body of the victim was found by the police on the next day morning, i.e., 10th June 2009. Therefore, the gap between the time when the Appellant was last seen together with the victim and the recovery of the dead-body in this case is very small. In other words, the dead-body of the deceased was recovered in close proximity of the time, when she was last seen together in the company of the Appellant. The aforesaid fact, coupled with the other evidence brought on record, go to show that the dead-body of the deceased was recovered from an isolated place, behind the Shiv Mandir, which was close to the house of the Appellant. These circumstances form important links in the chain of circumstances pointing towards the guilt of the accused.
33. Besides the above, it is also to be noted herein that although the Appellant was well-known to the victim and her sisters, yet, he did not visit the house of the deceased after the news of her death had broken out. This is even more significant on account of the fact that just the previous evening, at around 8.30 pm, he had taken Page 22 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc the victim along with him to buy chocolates but the victim did not return home. The Appellant has, however, failed to offer any explanation as to what happened thereafter.
34. In his statement recorded under Section 313 Cr. P.C. the Appellant has admitted that his semen and blood samples were collected. Identification parade was also conducted. Therefore, the identity of the Appellant was also established. The C.A. report (Exh.45) of the seized clothes of the victim and the Appellant contains human blood of 'B' group. There is also no explanation from the Appellant regarding presence of human blood in his clothes.
35. Having regard to the evidence brought on record, we are of the unhesitant opinion that the prosecution has succeeded in establishing each link in the chain of circumstances to show that it was none other than the Appellant who had taken the victim, late in the evening at around 8.30 pm on 9 th June 2009, towards on isolated place and committed rape and murder of the victim. From the evidence on record, it is clear that the Appellant first took the victim to a shop to buy chocolates and, thereafter, instead of returning the victim back home, he had taken her towards the Shiv Page 23 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc Mandir to fulfill his lust by committing sexual assault upon her. The Appellant had no business taking the victim towards the Shiv Mandir during that time in the night unless he had an intention of wrong doing. Under such circumstances, the failure on the part of the Appellant to offer any explanation as to the circumstances under which he had parted company with the victim would give rise to a strong adverse presumption against the Appellant thus pointing towards his guilt.
36. Contrary to the submission advanced by Mr. Pawar, we find that the conviction of the Appellant is not based solely on the last seen together theory or the sole testimony of the child witness (PW-5) but there is other corroborative evidence, as noted above, to establish each link in the chain of circumstance. Moreover, the forensic evidence brought on record is also consistent with the other evidence brought on record. Therefore, the authorities relied upon by Mr. Pawar in support of his argument, in our view, would not be of any assistance to him in the facts and circumstances of the present case.
37. In the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in 2006(10) SCC 681, the Supreme Court Page 24 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc has held that when crime is committed in secrecy, under circumstance which are especially with the knowledge of the accused, the prosecution, would no doubt, have to lead evidence to establish the charge brought against the accused. But once evidence is lead by the prosecution to prima facie establish the guilt of the accused, the onus would shift upon the accused under Section 106 of the Evidence act to offer plausible explanation as to the circumstances under which the victim had suffered injury. In such cases, the burden of proof upon the prosecution will be lessened.
38. In the present case, having regard to the evidence brought on record, there was onus upon the accused to explain as to under what circumstances, he had parted with the company of the victim, which explanation he has failed to offer.
39. From a careful analysis of the evidence brought on record establishing the cumulative fact and circumstances of the case, we are left with no manner of doubt that the prosecution has succeeded in establishing the charge brought against the Appellant under Section 363, 376 (2)(f), 377 and 302 of the IPC. Therefore, Page 25 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 ::: 1-apeal-844-2023-J-F.doc the conviction of the Appellant and the sentences imposed by the learned Trial Court upon him are hereby affirmed.
40. The Appeal stands dismissed .
41. Send back the record and proceeding.
42. Fees shall be paid to the respective counsel appointed by the legal aid.
(SHYAM C. CHANDAK, J.) (SUMAN SHYAM, J.) 3 Page 26 of 26 26th August 2025 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 26/08/2025 21:38:49 :::