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;
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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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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.)
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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
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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
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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
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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
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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
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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,
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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.)
26th August 2025
