last seen theory

7/23/2019 Last Seen Theory

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Section 302 - Last seen together theory - Recovery of the dead body of the

deceased - Recovery of the electric wire at the instance of the accused - Motive.

IN !" !I#! $%&R %' (&)I$*&R" * +%M+*,

$RIMIN*L *"LL*" (&RIS)I$I%N

$%R*M SM /.. *!ILR*M*NI 1 S!RI +.. $%L*+**LL* ((.

ronounced on May 4 2056

$RIMIN*L *"*L N%.5036 %' 2007

!arish Ra8esh ule9ar *ge 30 years4 R:o Sainath Nagar4 +hiwandi4 )istrict hane

*t ;resent in Nashi9 (ail < *;;ellant =%ri. *ccused>

v:s

he State of Maharashtra < Res;ondent

Mr. *bhay9u8ar *;te i:b Mr. /. /. urwant4 advocate4 for the *;;ellant.

Mr. *. S. Shitole4 * for the Res;ondent ? State.

(&)#M"N -

@ er +. . $olabawalla4 ( A

5. +y this *;;eal4 ;referred by the *;;ellant ? %riginal *ccused ? !arish R. ule9ar4

eBce;tion is ta9en to the Cudg8ent and order dated 2Dth )ece8ber4 200D ;assed

by the I:c *dhoc )istrict (udge-I4 hane in Sessions $ase No.372 of 200. +y the said Cudg8ent and order4 the learned I:c *dhoc )istrict (udge convicted the *;;ellant

under Section 236 =2> of the $ode of $ri8inal rocedure4 5ED3 for the oFence

;unishable under Section 302 of I$ and sentenced hi8 to life i8;rison8ent and to

;ay a Gne of Rs.54000:-. In default thereof4 the *;;ellant is to suFer a further R. I.

for one 8onth.

2. he ;rosecution case stated brieHy4 is thus-

=a> he *;;ellant was 8arried to the deceased ? ,ogini. )ue to their diFerences and

8arital dis;utes4 they could not stay together and they had Gled for a divorce.

)uring ;endency of the divorce ;etition4 on 2th (uly 2004 the *;;ellant too9 thedeceased ? ,ogini to *8i ar9 Lodge at *8badi Na9a. he *;;ellant too9 a roo8 in

the said Lodge and ;aid roo8 charges of Rs.500:-. he *;;ellant was also

acco8;anied by his wife4 the deceased ? ,ogini.

=b> *t the said Lodge4 ? /i9as $havan was wor9ing as a Manager and

8aintained a register of the custo8ers who were staying in the roo8s at the said

Lodge. *t the ti8e of ta9ing the roo8 in the said Lodge4 the *;;ellant did not



disclose his real na8e but stated that his na8e was SanCay atil and his wifeJs

na8e was Sa8idha atil and they were residents of )ha8an9ar Na9a +hiwandi.

*ccordingly4 ? /i9as $havan 8ade an entry to the aforesaid eFect in the

register 8aintained at the said Lodge and allotted roo8 No.E to the *;;ellant and

the deceased ? ,ogini.

=c> *fter the *;;ellant and the deceased ? ,ogini chec9ed into the said Lodge4 at

about 2.00 ;.8.4 the deceased ? ,ogini as9ed ? /i9as $havan for certain

articles and accordingly ? /i9as $havan gave to the deceased ? ,ogini a co8b4

a buc9et and water. hereafter4 at around D.00 ;.8.4 the *;;ellant as9ed ?

/i9as $havan the whereabouts of a 8edical store4 to which he re;lied that the

8edical store was at the distance of about 5K 8s. hereafter4 at around E00

;.8.4 the *;;ellant again ca8e to ? /i9as $havan and ;laced his order for a

non-vegetarian 8eal. *t that ti8e4 ? /i9as $havan enuired about the

whereabouts of the *;;ellantJs wife to which the *;;ellant re;lied that she was ill4

and therefore slee;ing.

=d> %n 2th (uly 2004 2 ? !ead $onstable #ovind +hangare4 and ? SI

$handra9ant &tte9ar4 along with olice $onstables /iCay atil and . $. +aber were

on late night atrolling duty near *8badi Na9a. Late in the night of 2th (uly 2004

at about 5.00 a.8.4 =i.e. on 26.0D.200> they saw one ;erson =the *;;ellant> co8ing

fro8 Shirshat *a8badi Road in a sus;icious condition. In view thereof4 he was

sto;;ed and interrogated and since he could not give any satisfactory answer4 he

was further interrogated. %n further interrogation the *;;ellant disclosed his correct

na8e and also narrated that he had co88itted the 8urder of his wife4 as his wife

was having illicit relations with a third ;erson. he *;;ellant was having a roo8 9ey

of *8i ar9 Lodge and the *;;ellant led the olice to *8i ar9 Lodge4 where he

o;ened the roo8 with his 9ey. hen the olice entered inside the roo84 they saw

one lady found on a bed in a dead condition. he *;;ellant disclosed that the said

lady was his wife. hereafter4 the *;;ellant was ta9en to the olice Station and

? SI &tte9ar lodged a co8;laint against the *;;ellant. %n the basis of the said

co8;laint4 D ? *I More4 and who was on duty of Station %cer4 registered the

oFence vide $. R. No. I- 20:200. hereafter4 investigation co88enced. )uring

investigation4 the register 8aintained by ? /i9as $havan at *8i ar9 Lodge

was seied by the olice. he *;;ellant was arrested on 26th (uly4 200 at about

3.30 ;.8.4 and arrest ;anchna8a was ;re;ared ="Bh.23>. *fter co8;letion of

investigation4 the charge sheet ca8e to be Gled and in due course4 the case was

co88itted to the $ourt of Sessions.

3. $harge ca8e to be fra8ed against the *;;ellant under section 302 of I$. he

*;;ellant ;leaded not guilty to the said charge and clai8ed to be tried. !is defence

was that of total denial and false i8;lication. *fter going through the evidence

adduced in this case4 the learned I:c *dhoc )istrict (udge convicted and sentenced

the *;;ellant as stated earlier in ;aragra;h 5 above. !ence the ;resent *;;eal.



. e have heard the learned *dvocate for the *;;ellant and the learned * for

the State. *fter carefully considering the facts and circu8stances of the case4

hearing the argu8ents advanced by the learned *dvocates for the ;arties4 and

8inutely ;erusing the evidence on record and the Cudg8ent delivered by the

learned I:c *dhoc )istrict (udge4 for the reasons 8entioned hereinafter4 we are of

the o;inion that the *;;ellant co88itted the 8urder of his wife4 the deceased ? ,ogini4 by strangulating her with an electric wire and caused her death.

6. here are no eye witnesses in the ;resent case. he entire case of the

;rosecution is based on circu8stantial evidence. he circu8stances against the

*;;ellant are as under-

=i> Last seen together theoryO

=ii> Recovery of the dead body of the deceased ? ,ogini at the instance of the

*;;ellantO

=iii> Recovery of the electric wire at the instance of the *;;ellantO

=iv> Motive.

. +efore we deal with each of the circu8stances individually4 it would be

a;;ro;riate to refer to a decision of the Su;re8e $ourt in the case of adala /eera

Reddy v. the State of *ndhra radesh and %thers4 5E7E Su;; =2> S$$ D0 *IR 5EE0

S$ DE which deals with the tests to be satisGed before a ;erson can be convicted on

the basis of circu8stantial evidence. he tests as laid down by the Su;re8e $ourt

are set out in ;aragra;h 50 =of the S$$ re;ort> and read thus

P50. +efore adverting to the argu8ents advanced by the learned $ounsel4 we shallat the threshold ;oint out that in the ;resent case there is no direct evidence to

connect the accused with the oFence in uestion and the ;rosecution rests its case

solely on circu8stantial evidence. his $ourt in a series of decisions has

consistently held that when a case rests u;on circu8stantial evidence such

evidence 8ust satisfy the following tests

P=5> the circu8stances fro8 which an inference of guilt is sought to be drawn4 8ust

be cogently and Gr8ly establishedO

=2> those circu8stances should be of a deGnite tendency unerringly ;ointing

towards guilt of the accusedO

=3> the circu8stances4 ta9en cu8ulatively4 should for8 a chain so co8;lete that

there is no esca;e fro8 the conclusion that within all hu8an ;robability the cri8e

was co88itted by the accused and none elseO and

=> the circu8stantial evidence in order to sustain conviction 8ust be co8;lete and

inca;able of eB;lanation of any other hy;othesis than that of the guilt of the



accused and such evidence should not only be consistent with the guilt of the

accused but should be inconsistent with his innocence.

=See #a8bhir v. State of Maharashtra @=5E72> 2 S$$ 365 5E72 S$$ =$ri> 35A .>Q

D. +earing in 8ind the above ;rinci;al of law enunciated by the Su;re8e $ourt4 we

shall now scru;ulously and carefully eBa8ine the evidence in this case with

reference to each of the circu8stances against the *;;ellant set out earlier.

=i> L*S S""N %#"!"R !"%R,-

7. *s far as the Grst circu8stance i.e. Plast seen together theoryQ is concerned4

? /i9as $havan has de;osed about it. )uring his de;osition4 ? /i9as $havan

has stated that he was wor9ing as a Manager at the said *8i ar9 Lodge. %ne isa

RaghoCi Raut is the owner of the said Lodge. here are about 50 roo8s in the said

Lodge and it was started around siB years before the incident. ? /i9as $havan

has de;osed that on 2th (uly 2004 the *;;ellant and the deceased ? ,ogini ca8e

to the said Lodge for the ;ur;oses of ta9ing a roo8. *t that ti8e4 ? /i9as

$havan enuired with the *;;ellant about his address and also about the lady

acco8;anying hi8. *ccordingly4 the *;;ellant told ? /i9as $havan that the

lady was his wife and that his na8e was SanCay atil and the na8e of his wife was

Sa8idha atil and they were residents of )ha8an9ar Na9a +hiwandi. *ccordingly4

he 8ade an entry to that eFect in the register and allotted roo8 No.E to the

*;;ellant. 'or the said roo84 the *;;ellant ;aid the roo8 charge of Rs.500:-. !e has

de;osed that the entry 8ade in the register is in his handwriting and the signature

of the *;;ellant also a;;ears against the said entry. )uring his de;osition4 he has

identiGed the said entry and has stated that he was on duty for the entire day on

2th (uly4 200. ? /i9as $havan has further stated in his de;osition that atabout 2.00 ;.8. on 2th (uly 2004 the deceased ? ,ogini had as9ed hi8 for so8e

articles and accordingly4 he had given her a co8b4 a buc9et and water4 after which

she went towards the roo8. %n the sa8e evening4 at around D.00 ;.8.4 the

*;;ellant ca8e to ? /i9as $havan and as9ed hi8 the location of a 8edical

store to which he re;lied that it was at the distance of about 5K 8s. hereafter4

the *;;ellant went towards the 8edical store. ? /i9as $havan has further

de;osed that the *;;ellant again ca8e to hi8 at about E.00 ;.8.4 and ;laced an

order for one non-vegetarian 8eal. *t that ti8e4 when ? /i9as $havan

enuired with the *;;ellant about his wife =the deceased ? ,ogini>4 the *;;ellant

re;lied that since she was ill4 she was slee;ing. hereafter4 ? /i9as $havan

too9 his 8eal in the said Lodge and went towards his house. %n the neBt day =i.e.

26th (uly4 200>4 while ? /i9as $havan was at his residence4 at about .00

a.8.4 the olice ca8e there and disclosed to hi8 that a 8urder was co88itted in

roo8 No.E of *8i ar9 Lodge. *ccordingly4 he ca8e to *8i ar9 Lodge with the

olice. In roo8 no.E4 he saw a lady who had acco8;anied the *;;ellant and who

was found dead. he olice too9 the ins;ection of the roo8 and drew a s;ot

;anchna8a and also seied the register of *8i ar9 Lodge. ? /i9as $havan4



during his de;osition4 has categorically identiGed the *;;ellant as the ;erson who

chec9ed into roo8 no.E on 2th (uly4 200 and ;aid the roo8 charge of Rs.500:-. !e

has also identiGed the deceased ? ,ogini as being the lady who had acco8;anied

the *;;ellant and was staying with hi8 in roo8 no.E.

E. It is clear fro8 the evidence of ? /i9as $havan that the *;;ellant was lastseen with the deceased ? ,ogini shortly before her dead body was discovered by the

olice in roo8 no.E4 at the instance of the *;;ellant. In addition to this4 there is the

testi8ony 6 ? )r. *vinash9u8ar !. Nalawade who conducted the ;ost 8orte8

on the dead body of the deceased ? ,ogini. hilst conducting the ;ost 8orte84 on

eBternal eBa8ination4 6 ? )r. Nalawade found the following inCuries on the body

of the deceased ? ,ogini- PLigature 8ar9 seen below thyroid cartilage encircling the

nec9 co8;letely. Sie about 50KQ B KQ. %n $:s ? ecchy8osis seen. arch8ent li9e

liga8ent seenQ *ccordingly4 6 ? )r. Nalawade ca8e to the conclusion that the

cause of death was cardio res;iratory failure due to strangulation. here is nothing

that is elicited in the cross eBa8ination of either of these two witnesses to discredit

their testi8ony. e Gnd their testi8ony to be truthful and reliable. !ence we have

no hesitation is relying u;on the sa8e.

50. In relation to the Plast seen together theoryQ the Su;re8e $ourt in the case of

Rohtash u8ar /s. State of !aryana2 has observed as under

PLast seen together theory

32. In cases where the accused was last seen with the deceased victi8 =last seen

together theory> Cust before the incident4 it beco8es the duty of the accused to

eB;lain the circu8stances under which the death of the victi8 occurred. =/ide Ni9a

Ra8 v.State of !.. @=5ED2> 2 S$$ 70 5ED2 S$$ =$ri> 36 *IR 5ED2 S$ 20DDA and#aneshlal v. State of Maharashtra @=5EE2> 3 S$$ 50 5EE3 S$$ =$ri> 36A .>

33. In ri8u9h Maroti ir9an v. State of Maharashtra @=200> 50 S$$ 75 =200D> 5

S$$ =$ri> 70A this $ourt held as under =S$$ ;. E4 ;ara 22> P22. here an accused

is alleged to have co88itted the 2 =2053> 5 S$$ 3 8urder of his wife and the

;rosecution succeeds in leading evidence to show that shortly before the

co88ission of cri8e they were seen together or the oFence ta9es ;lace in the

dwelling ho8e where the husband also nor8ally resided4 it has been consistently

held that if the accused does not oFer any eB;lanation how the wife received

inCuries or oFers an eB;lanation which is found to be false4 it is a strong

circu8stance which indicates that he is res;onsible for co88ission of the cri8e.Q

=See also rithi;al Singh v. State of unCab @=2052> 5 S$$ 50 =2052> 5 S$$ =$ri>

5A .>

3. hus4 the doctrine of Plast seen togetherQ shifts the burden of ;roof on the

accused4 reuiring hi8 to eB;lain how the incident had occurred. 'ailure on the ;art



of the accused to furnish any eB;lanation in this regard4 would give rise to a very

strong ;resu8;tion against hi8.Q

=e8;hasis su;;lied>

55. In another decision of the Su;re8e $ourt in the case of Ravirala LaB8aiah v.

State of *..3 it has been observed thus-

P20. It is a settled legal ;ro;osition that in a case based on circu8stantial evidence4

where no eyewitness account is available4 the ;rinci;le is that

P. < when an incri8inating circu8stance is ;ut to the accused and the said

accused either oFers no eB;lanation @for the sa8e4A or oFers an eB;lanation which

is found to be untrue4 then the sa8e beco8es an additional lin9 in the chain of

circu8stances to 8a9e it co8;lete.Q

@/ide State of &.. v. Ravindra ra9ash Mittal @=5EE2> 3 S$$ 300 5EE2 S$$ =$ri> 2

*IR 5EE2 S$ 206A 4 #ulab $hand v. State of M.. @=5EE6> 3 S$$ 6D 5EE6 S$$=$ri> 662 *IR 5EE6 S$ 56E7A 4 State of .N. v. RaCendran @=5EEE> 7 S$$ DE 2000

S$$ =$ri> 0 *IR 5EEE S$ 3636A =S$$ ;;. 76-74 ;ara >4 State of Maharashtra v.

Suresh @=2000> 5 S$$ D5 2000 S$$ =$ri> 23A and #anesh Lal v. State of

RaCasthan @=2002> 5 S$$ D35 2002 3 =2053> E S$$ 273 S$$ =$ri> 2DA .

25. In Neel u8ar v. State of !aryana @=2052> 6 S$$ D =2052> 3 S$$ =$ri> 2D5A

this $ourt observed =S$$ ;. DD4 ;ara 30> P30. It is the duty of the accused to

eB;lain the incri8inating circu8stance ;roved against hi8 while 8a9ing a

state8ent under Section 353 $r$. ee;ing silent and not furnishing any

eB;lanation for such circu8stance is an additional lin9 in the chain of circu8stances

to sustain the charges against hi8. Recovery of incri8inating 8aterial at his

disclosure state8ent duly ;roved is a very ;ositive circu8stance against hi8. =See

also *ftab *h8ad *nasari v. State of &ttaranchal@=2050> 2 S$$ 673 =2050> 2 S$$

=$ri> 506 *IR 2050 S$ DD3A .>Q

22. In cases where the accused has been seen with the deceased victi8 =last seen

theory>4 it beco8es the duty of the accused to eB;lain the circu8stances under

which the death of the victi8 has occurred. =/ide Ni9a Ra8 v. State of !.. @=5ED2> 2

S$$ 70 5ED2 S$$ =$ri> 36 *IR 5ED2 S$ 20DDA 4 #aneshlal v. State of

Maharashtra @=5EE2> 3 S$$ 50 5EE3 S$$ =$ri> 36A and onnusa8y @onnusa8y.

v. State of .N.4 =2007> 6 S$$ 67D =2007> 2 S$$ =$ri> 6 *IR 2007 S$ 2550A .>

23. In ri8u9h Maroti ir9an v. State of Maharashtra @=200> 50 S$$ 75 =200D> 5

S$$ =$ri> 70A this $ourt held as under =S$$ ;. E4 ;ara 22>

P22. here an accused is alleged to have co88itted the 8urder of his wife and the






held that if the accused does not oFer any eB;lanation how the wife received

inCuries or oFers an eB;lanation which is found to be false4 it is a strong



5A .>Q

=e8;hasis su;;lied>

52. In the evidence of ? /i9as $havan it is clearly brought out by the

;rosecution that the *;;ellant was last seen with the deceased ? ,ogini. he

evidence of 6 ? )r. Nalawade further sets out the inCuries on the body of the

deceased ? ,ogini and states that the cause of death was cardio res;iratory failure

due to strangulation. Since the *;;ellant was last seen with deceased ? ,ogini

shortly before her dead body was discovered4 it was the duty of the *;;ellant to

eB;lain the inCuries found on the dead body of the deceased ? ,ogini. If the

*;;ellant does not oFer any eB;lanation how the deceased ? ,ogini received the

inCuries4 and which was the cause of her death4 it is a strong circu8stance whichindicates that he is res;onsible for co88ission of the cri8e.

53. In the facts of the ;resent case we Gnd that the *;;ellant has not oFered any

eB;lanation whatsoever for the inCuries found on the dead body of the deceased ?

,ogini4 and which4 according to the testi8ony of 6 ? )r. Nalawade4 caused her

death. In fact4 this non-eB;lanation by the *;;ellant would itself be an additional

lin9 in the chain of circu8stances to sustain the charge against hi8. hus4 in view of

the evidence of ? /i9as $havan cou;led with the fact that the *;;ellant has

not oFered any eB;lanation about the circu8stances under which the death of his

wife =the deceased ? ,ogini> occurred4 we are clearly of the view the ;rosecution has

;roved this circu8stance =i.e. the Plast seen together theoryQ> against the *;;ellantbeyond reasonable doubt.

=ii> R"$%/"R, %' !" )"*) +%), %' !" )"$"*S") ? ,%#INI * !" INS*N$" %'

!" *"LL*N-

5. he neBt circu8stance against the *;;ellant is the recovery of the dead body of

the deceased ? ,ogini at the instance of the *;;ellant. ith reference to this

circu8stance4 2 ? !ead $onstable #ovind +hangare and ? SI &tte9ar have

de;osed about the sa8e. 2 ? !$ +hangare has de;osed that he was a !ead

$onstable at #anesh;uri olice Station since the last four years before the incident.

%n 2th (uly 2004 he was on night ;atrolling duty near *a8badi Na9a along withhis other colleagues na8ely ? SI &tte9ar4 olice $onstable /iCay ail and

olice $onstable . $. +aber. )uring their atrolling duty4 they saw one ;erson

co8ing towards *a8badi Na9a at around 5. 00 a.8. =i.e. on 26.0D.200> and the

said ;erson was found sus;icious4 and therefore4 interrogated. hat ;erson

disclosed his na8e as !arish Ra8esh ule9ar =the *;;ellant>. 2 ? !$ +hangare

identiGed the *;;ellant in $ourt as the sa8e ;erson who8 they had sto;;ed and



interrogated at 5.00 a.8. on 2th (uly4 200. In his de;osition4 2 ? !$ +hangare

further stated that during interrogation4 the *;;ellant disclosed that he co88itted

the 8urder of his wife at *8i ar9 Lodge. *ccordingly4 2 ? !$ +hangare4 ?

SI &tte9ar4 olice $onstable /iCay atil and olice $onstable . $. +aber4 along with

the *;;ellant4 went to *8i ar9 Lodge. he *;;ellant showed the way. he 9ey of

the said roo8 was with the *;;ellant4 with which he o;ened the roo8. %nce theroo8 was o;ened4 2 ? !$ +hangare saw one lady lying on the cot and was found

dead. !e saw a 8ar9 of a wire on the nec9 of the lady.

56. Si8ilarly4 ? SI &tte9ar has de;osed that since the last two years4 he has

been serving as a SI at #anesh uri olice Station. %n 2th (uly 2004 he was on

night duty at *a8badi Na9abandi along with the other ;olice staF. )uring the said

night duty4 he along with the other olice ocials saw one sus;icious loo9ing ;erson

co8ing fro8 Shirshat *a8badi Road. herefore4 they sto;;ed hi8 and interrogated

hi8. Since he could not give any satisfactory answer4 they conducted further

interrogation4 during which the *;;ellant disclosed his correct na8e =!arish

Ra8esh ule9ar> and also narrated that he had co88itted the 8urder of his wife as

she was having illicit relations with so8eone else. he *;;ellant further disclosed

that he was having a 9ey of a roo8 of *8i ar9 Lodge. herefore4 ? SI &tte9ar

and other ;olice ocials =including 2 ? !$ +hangare> went towards *8i ar9

Lodge where the *;;ellant o;ened the loc9 on the roo8 with his 9ey. hen they

entered roo84 they saw that one lady was found on the bed in a dead condition and

the *;;ellant disclosed that the said lady was his wife =the deceased ? ,ogini>.

hereafter4 they too9 survey of the roo8 and also the survey of the dead body of

the deceased ? ,ogini4 and found that she was having 8ar9s on her nec9.

hereafter4 they too9 the *;;ellant to the olice Station4 where ? SI &tte9ar

lodged a co8;laint against the *;;ellant ="Bh.27>. %n the basis of this co8;laint4 D ? *I Ra8a9ant More4 and who was on duty of station ocer4 registered the

oFence vide $. R. No. I-0:200.

5. %n4 ;erusing the evidence of 2 ? !$ +hangare as well as ? SI &tte9ar4

it is clear that the dead body of the deceased ? ,ogini was recovered at the instance

of the *;;ellant. his is a highly incri8inating circu8stance against the *;;ellant

which has not been eB;lained by hi8 in his state8ent under Section 353 of the

$ode of $ri8inal rocedure. 'urther4 there is nothing that is elicited in the cross

eBa8ination of these two witnesses to discredit their testi8ony. e Gnd their

testi8ony to be truthful and reliable. !ence we have no hesitation in relying u;on

the sa8e.

5D. Mr *;te4 the learned counsel a;;earing for the *;;ellant4 ;ointed out that there

were o8issions in the evidence of 2 ? !$ +hangare and ? SI &tte9ar

which 8ade their testi8ony unreliable and not free fro8 doubt. !e sub8itted that

the fact that the *;;ellant o;ened the roo8 =in which the dead body of the

deceased ? ,ogini was found>4 as de;osed by 2 ? !$ +hangare and ? SI

&tte9ar is an o8ission as ad8itted by the8 in their res;ective cross eBa8inations.



!e4 therefore4 sub8itted that the de;ositions of 2 ? !$ +hangare and ? SI

&tte9ar are highly untrustworthy and ought not to be relied u;on by us.

57. e cannot agree with the aforesaid sub8ission. It is true that in the evidence of

2 ? !$ +hangare there is an o8ission regarding the fact that the *;;ellant had

o;ened the roo8. In cross eBa8ination4 2 ? !$ +hangare has stated that he had8entioned this fact to the olice4 but it does not Gnd ;lace in his state8ent.

herefore4 clearly there was an o8ission. !owever4 we do not Gnd that this o8ission

is in any way fatal to the case of the ;rosecution. It is hardly relevant whether the

roo8 was o;ened by the *;;ellant4 or whether the 9ey was ta9en fro8 the

*;;ellant and thereafter the roo8 was o;ened by the olice. he fact of the 8atter

is that the 9ey of the roo84 in which the deceased ? ,ogini was found dead4 was in

the ;ossession of the *;;ellant. his fact has been categorically brought out in the

evidence of 2 ? !$ +hangare and there is nothing in the cross eBa8ination to

contradict this fact. e4 therefore4 thin9 that the o8ission ;ointed out by Mr. *;te4

can be of no assistance to the *;;ellant. Si8ilarly4 even in the de;osition of ?

SI &tte9ar4 there is an o8ission regarding the fact that the *;;ellant had o;ened

the roo8. his has been brought out by the defence in the cross eBa8ination.

!owever4 ? SI &tte9ar4 in his de;osition4 has categorically stated that the

*;;ellant was having a 9ey of the roo8 of *8i ar9 Lodge. It is further stated that

with the said 9ey4 loc9 of the roo8 was o;ened and inside the said roo84 they found

dead body of the deceased ? ,ogini and the *;;ellant disclosed that the said

deceased ? ,ogini was his wife. hese facts are ad8ittedly not o8issions. here is

nothing in the cross eBa8ination that has been brought out to contradict these

facts. e4 therefore4 Gnd that the said o8ission in the evidence of ? SI

&tte9ar regarding the fact that the accused o;ened the roo8 would not be fatal to

the case of the ;rosecution. *s stated earlier4 the fact of the 8atter is that the 9eyto the said roo8 was in the ;ossession of the *;;ellant and with which 9ey the

roo8 was o;ened4 in which the dead body of the deceased ? ,ogini was found. e

are4 therefore4 clearly of the view that the second circu8stance =i.e. the recovery of

the dead body of the deceased ? ,ogini at the instance of the *;;ellant>4 is duly

;roved by the ;rosecution against the *;;ellant beyond reasonable doubt.

=iii> !" R"$%/"R, %' !" "L"$RI$ IR" =*RI$L" 5E> * !" INS*N$" %' !"

*"LL*N-

5E. he third circu8stance against the *;;ellant is the recovery of the electric wire

=*rticle 5E> at the instance of the *;;ellant. ith regard to this circu8stance4 theevidence of 3 ? andhari +en9e as well as the evidence of D ? *I More is

relevant. 3 ? +en9e4 who is the ;anch witness4 has de;osed that on 26th (uly4

200 he was called at #anesh uri olice Station to act as a ;anch. *nother ;anch

was also ;resent at that ti8e. he *;;ellant was arrested in ;resence of the ;anch

3 ? +en9e4 and arrest ;anchna8a ="Bh.23> was accordingly ;re;ared. !e has

de;osed that he has signed the said arrest ;anchna8a and the contents are

correct. !e has further identiGed the *;;ellant as the ;erson who was arrested in



his ;resence on 26th (uly4 200. 3 ? +en9e has further stated that thereafter4 the

olice again called hi8 at #anesh uri olice Station on 27th (uly4 200. *t that ti8e

also another ;anch was ;resent. *t that ti8e4 the *;;ellant 8ade a state8ent

="Bh.2> that he was willing to ;oint out the ;lace where he had thrown the electric

wire with which he had strangulated his wife =the deceased ? ,ogini>. *s ;er the

aforesaid state8ent4 the olice4 the *;;ellant and the ;anchas =including 3 ?+en9e> started fro8 #anesh uri olice Station by olice (ee; bearing No. M! 0: *N

:30E and as ;er the directions given by the *;;ellant4 the said Cee; ;roceeded and

thereafter sto;;ed near *8i ar9 Lodge. hereafter4 the *;;ellant too9 the olice

and anchas to the bac9 side of roo8 no.E =the roo8 in which the dead body of the

deceased ? ,ogini was found> of *8i ar9 Lodge. here the *;;ellant traced one

;iece of electric wire fro8 the grass and shrubs and ;roduced it to the olice before

the anchas. he aforesaid electric wire =*rticle 5E> was ;roduced by the *;;ellant

to the olice before the anchas and the sa8e was seied by the olice for

investigation. he aforesaid recovery has been duly recorded in the ;anchna8a

dated 27th (uly4 200 ="Bh.2:*> and which is on record. 3 ? +en9e has de;osed

that the contents of "Bh.2 and 2:* were recorded in his ;resence. It bears his

signature and that they are correct.

20. 3 ? +en9e has also de;osed that on 27th (uly 2004 another ;iece of electric

wire =*rticle 20-a> was seied by the olice fro8 the house of the *;;ellant. *

anchana8a to that eFect was also drawn ="Bh.26>. 3 ? +en9e has further

de;osed that the contents of the said ;anchna8a are correct and that it bears his

signature as well as the signature of the *;;ellant. here has been nothing elicited

in the cross eBa8ination of 3 ? +en9e to discredit his testi8ony.

25. Si8ilarly4 on the as;ect of recovery of the electric wire =*rticle 5E>4 in his

de;osition4 D ? *I More has stated that on 27th (uly4 200 the *;;ellant was

willing to 8a9e a state8ent and therefore he called the ;anchas. In the ;resence of

the ;anchas =including 3 ? +en9e>4 the *;;ellant 8ade a state8ent that he is

willing to show a ;lace where he 9e;t the electric wire. o that eFect4 D ? *I

More recorded his state8ent ="Bh.2>. D ? *I More has stated in his de;osition

that thereafter4 the *;;ellant too9 the8 to *8i ar9 Lodge and shown a ;lace

outside the window of roo8 no.E4 fro8 where he ;roduced one electric wire =*rticle

5E>. *ccordingly4 it was seied by -D *I More in the ;resence of the anchas and

he ;re;ared a recovery ;anchna8a to that eFect ="Bh.2:*>. D ? *I More has

de;osed that the said ;anchna8as ="Bh.2 and 2:*> bear his signature and the

signature of the ;anchas. D ? *I More4 during his de;osition4 has furtheridentiGed the electric wire =*rticle 5E> as the sa8e electric wire that was recovered

at the instance of the *;;ellant under the ;anchna8as ="Bh.2 and "Bh.2:*>. In

addition thereto4 D ? *I More has further stated that on the sa8e day4 as ;er

the state8ent of the *;;ellant4 one ;iece of electric wire which was si8ilar to the

electric wire recovered at the instance of the *;;ellant under ;anchna8a ?

"Bh.2:*4 was seied fro8 the house of the *;;ellant in the ;resence of the



;anchas and accordingly4 the seiure ;anchna8a was ;re;ared ="Bh.26>. he

electric wire seied fro8 the house of the *;;ellant has also been identiGed by

D ? *I More during his de;osition. here is nothing elicited in the cross eBa8ination

of D ? *I More to discredit his testi8ony.

22. %n carefully going through the testi8ony of 3 ? +en9e =;anch witness> aswell as D ? *I More4 it is clear that the electric wire =*rticle 5E> was recovered

at the instance of the *;;ellant fro8 a ;lace outside the window of roo8 no.E. *

si8ilar electric wire =*rticle 20-a> was also seied fro8 the house of the *;;ellant.

e have ;ersonally eBa8ined both the electric wires =i.e. *rticle 5E and *rticle 20-

a>. hey are of the sa8e colour =Red> and thic9ness which is also evidenced fro8

the ;anchna8as ="Bh.2:* and "Bh.26>. he only diFerence is that4 the length of

the wire ? *rticle 5E is 8entioned as 0 whereas the length of the wire ? *rticle 20-

a4 and which was seied fro8 the house of the *;;ellant4 is 6. %therwise4 the two

wires a;;ear to be identical. %n carefully eBa8ining the testi8ony of 3 ? +en9e

as well as D ? *I More we Gnd their evidence to be truthful4 consistent and

reliable. e therefore have no hesitation in relying u;on the sa8e. he recovery of

the electric wire =*rticle 5E> fro8 the bac9 side of roo8 no.E of *8i ar9 Lodge =in

which roo8 the dead body of the deceased ? ,ogini was found>4 being al8ost

identical to the wire =*rticle 20-a> being seied fro8 the house of the *;;ellant4 is a

very strong circu8stance against the *;;ellant which has not been eB;lained by

hi8 in his state8ent under Section 353 of the $ode of $ri8inal rocedure4 5ED3. e

therefore have no hesitation in holding that this circu8stance =i.e. the recovery of

the electric wire =*rticle 5E> at the instance of the *;;ellant> has been duly ;roved

by the ;rosecution beyond reasonable doubt.

23. he last circu8stance against the *;;ellant is P8otiveQ. *s far as 8otive is

concerned4 it is an ad8itted fact that the relations between the *;;ellant and the

deceased ? ,ogini =his wife> were strained and in fact a )ivorce etition between two

was ;ending in $ourt. D ? *I More4 in his cross eBa8ination4 has de;osed that

on uestioning the ;arents of the deceased ? ,ogini4 he ca8e to 9now that there

was a 8atri8onial dis;ute going on between the *;;ellant and the deceased ?

,ogini in $ourt and they ;roduced docu8ents to that eFect which were ;laced on

record. It has also co8e on record that the *;;ellant use to sus;ect his wife4 the

deceased ? ,ogini for having illicit relations with so8e third ;erson. he fact that

there was a 8atri8onial dis;ute going on between the *;;ellant and the deceased

? ,ogini and which fact has fairly not been dis;uted by Mr. *;te4 cou;led with the

fact that the *;;ellant use to sus;ect his wife =deceased ,ogini> of having illicitrelations with so8e third ;erson4 we are clearly of the view that 8otive has been

established against the *;;ellant. herefore this circu8stance is also duly ;roved

by the ;rosecution beyond reasonable doubt.

2. e 8ust also 8a9e note of the evidence of 6 ? )r. Nalawade4 the 8edical

ocer who conducted the ;ost 8orte8 on the dead body of the deceased ? ,ogini.

6 ? )r. Nalawade has de;osed that on 26th (uly4 200 the dead body of the



deceased ? ,ogini was brought for ;ost 8orte8 to I. #. M. hos;ital4 +hiwandi4 where

he was a Medical %cer. )uring the ;ost 8orte84 6 ? )r. Nalawade observed

the following eBternal inCuries-

PLigature 8ar9 seen below thyroid cartilage encircling the nec9 co8;letely. Sie

about 50KQ B KQ. %n $:s ? ecchy8osis seen. arch8ent li9e liga8ent seenQ

26. 6 ? )r. Nalawade has stated that on the basis of the eBa8ination of the dead

body4 in his o;inion4 the cause of death was due to cardiores;iratory failure due to

strangulation. %n being shown the electric wire =*rticle 20-a> 6 ? )r. Nalawade

has de;osed that strangulation is ;ossible with the electric wire =*rticle 20-a>.

2. *fter carefully and scru;ulously eBa8ining the evidence in this case4 we are of

the view that the circu8stances set out earlier4 and fro8 which an inference of guilt

of the *;;ellant is sought to be drawn4 are cogently and Gr8ly established by the

;rosecution. hese circu8stances unerringly ;oint towards guilt of the accused and

when ta9en cu8ulatively4 for8 a chain so co8;lete that there is no esca;e fro8 the

conclusion that within all hu8an ;robability the cri8e was co88itted by the

*;;ellant.

2D. 'or all the aforesaid reasons4 we Gnd no 8erit in the *;;eal and the sa8e is

hereby dis8issed.

he ;resence of the accused at the ;lace of the oFence or his being seen last with

the deceased are also relevant. his is so8eti8es referred to as the test of Plast

seen togetherQ as a ;iece of circu8stantial evidence. In S9. ,usuf v. est +engal

=2055> the Su;re8e $ourt said that the last seen theory co8es into ;lay where the

ti8e ga; between the ;oint of ti8e when the accused and deceased were last seen

alive and when the deceased is found dead is so s8all that ;ossibility of any ;erson

other than the accused being the author of the cri8e beco8es i8;ossible. It was

held that where there is a long ti8e-ga; between Plast seen togetherQ and the

cri8e4 and there is the ;ossibility of other ;ersons intervening4 it is haardous to

rely on the theory of Plast seen togetherQ+odhraC v. (a88u 1 ash8ir4 2003 S.$.$.

=$ri8> 20 2002 $r.L.(. . "ven if ti8e ga; is less and there is no ;ossibility of

others intervening4 it is safer to loo9 for corroboration Ra8 Reddy RaCesh hanna

Reddy v. *ndhra radesh4 *.I.R. 200 S.$. 564 followed in Siri8a Narasi8ha Rao



v.*ndhra radesh42050 $r.L.(. DEO in the absence of other lin9s4 it is not safe to

convict solely on Plast seenQ theory (aswant #ir v. unCab4 2006 52 S.$.$. 237.

Last seen theory frustrates in absence of corroboration. o Gnd out defence in such

a case one 8ust consider Sec.55 and 533 of the "vidence *ct and u;on

concideration of the following na8ely4- 5.hat the circu8stances fro8 which the

inference of guilt is to be drawn4 have been fully established by uni8;eachable

evidence beyond a shadow of doubt 2. hat the circu8stances are of a

deter8inative tendency unerringly ;ointed towards the guilt of the accused and

3.hat the circu8stances4 ta9en collectively4 are inca;able of eB;lanation on anyreasonable hy;othesis save that of the guilt sought to be ;roved against hi8.

In Ra8reddy RaCesh9hanna Reddy v. State of *.. @200 =50> S$$ 5D2A it was noted

as follows he last-seen theory4 further8ore4 co8es into ;lay where the ti8e ga;

between the ;oint of ti8e when the accused and the deceased were last seen alive

and the deceased is found dead is so s8all that ;ossibility of any ;erson other than

the accused being the author of the cri8e beco8es i8;ossible. "ven in such a case

the courts should loo9 for so8e corroboration.

So the defence 8ay be to enlarge the ti8e ga; to create a circu8stance and

;ossibility that there is a ;robability of a third ;erson to co8e in between to co88it

the cri8e.

In cases where the accused was last seen with the deceased victi8 =last seen

together theory> Cust before the incident4 it beco8es the duty of the accused to

eB;lain the circu8stances under which the death of the victi8 occurred.



=/ide Ni9a Ra8 v.State of !.. @=5ED2> 2 S$$ 70 5ED2 S$$ =$ri> 36 *IR 5ED2 S$

20DDA and #aneshlal v. State of Maharashtra @=5EE2> 3 S$$ 50 5EE3 S$$ =$ri>

36A

In ri8u9h Maroti ir9an v. State of Maharashtra @=200> 50 S$$ 75 =200D> 5 S$$

=$ri> 70A Su;re8e $ourt held as under =S$$ ;. E4 ;ara 22>

P22. here an accused is alleged to have co88itted the 8urder of his wife and the




held that if the accused does not oFer any eB;lanation how the wife receivedinCuries or oFers an eB;lanation which is found to be false4 it is a strong



5A .>

hus4 the doctrine of Plast seen togetherQ shifts the burden of ;roof on the accused4

reuiring hi8 to eB;lain how the incident had occurred. 'ailure on the ;art of the

accused to furnish any eB;lanation in this regard4 would give rise to a very strong

;resu8;tion against hi8.

In another decision of the Su;re8e $ourt in the case of Ravirala LaB8aiah v. State

of *..4 =2053> E S$$ 273 it has been observed thus-

It is a settled legal ;ro;osition that in a case based on circu8stantial evidence4where no eyewitness account is available4 the ;rinci;le is that

P. < when an incri8inating circu8stance is ;ut to the accused and the said

accused either oFers no eB;lanation @for the sa8e4A or oFers an eB;lanation which

is found to be untrue4 then the sa8e beco8es an additional lin9 in the chain of

circu8stances to 8a9e it co8;lete.Q



@/ide State of &.. v. Ravindra ra9ash Mittal @=5EE2> 3 S$$ 300 5EE2 S$$ =$ri> 2

*IR 5EE2 S$ 206A 4 #ulab $hand v. State of M.. @=5EE6> 3 S$$ 6D 5EE6 S$$

=$ri> 662 *IR 5EE6 S$ 56E7A 4 State of .N. v. RaCendran @=5EEE> 7 S$$ DE 2000

S$$ =$ri> 0 *IR 5EEE S$ 3636A =S$$ ;;. 76-74 ;ara >4 State of Maharashtra v.Suresh @=2000> 5 S$$ D5 2000 S$$ =$ri> 23A and #anesh Lal v. State of

RaCasthan @=2002> 5 S$$ D35 2002 S$$ =$ri> 2DA .

In Neel u8ar v. State of !aryana @=2052> 6 S$$ D =2052> 3 S$$ =$ri> 2D5A

Su;re8e $ourt observed =S$$ ;. DD4 ;ara 30>

P30. It is the duty of the accused to eB;lain the incri8inating circu8stance ;roved

against hi8 while 8a9ing a state8ent under Section 353 $r$. ee;ing silent andnot furnishing any eB;lanation for such circu8stance is an additional lin9 in the

chain of circu8stances to sustain the charges against hi8. Recovery of

incri8inating 8aterial at his disclosure state8ent duly ;roved is a very ;ositive

circu8stance against hi8.

=See also *ftab *h8ad *nasari v. State of &ttaranchal@=2050> 2 S$$ 673 =2050> 2

S$$ =$ri> 506 *IR 2050 S$ DD3A

*ll the above cases are referred in the latest Cudge8ent of the +o8bay !igh $ourt

in !arish Ra8esh ule9ar /s. he State of Maharashtra dated May 2056 and in the

facts of that case the $ourt Gnd that the *ccused has not oFered any eB;lanation

whatsoever for the inCuries found on the dead body of the deceased ? ,ogini4 and

which4 according to the testi8ony of 6 ? )r. Nalawade4 caused her death.

In fact4 this non-eB;lanation by the accused would itself be an additional lin9 in the

chain of circu8stances to sustain the charge against hi8.

hus4 in view of the evidence of ? /i9as $havan cou;led with the fact that the

*;;ellant has not oFered any eB;lanation about the circu8stances under which the

death of his wife =the deceased ? ,ogini> occurred4 the $ourt viewed that the

;rosecution has ;roved this circu8stance =i.e. the Plast seen together theoryQ>

against the *;;ellant beyond reasonable doubt.

last seen theory

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