'Child Last Seen With Accused, Found Dead Within 10 Hours': Patna High Court Upholds Rape-Murder Conviction

The Patna High Court has upheld the conviction of two accused in a rape and murder case of an eight-year-old girl, holding that where the prosecution establishes the “last seen” circumstance with a narrow time gap (in this case about 10 hours) the burden shifts on the accused under Section 106 of the Evidence Act to explain the death.A Division Bench of Justice Bibek Chaudhuri and Justice Ansul was hearing a criminal appeal filed against the judgment of conviction and order of sentence dated 09.04.2018 and 10.04.2018 passed by the 1st Additional Sessions Judge-cum-Special Judge (POCSO), Muzaffarpur. The appellants had been convicted under Sections 376(A)/34 and 302/34 of the IPC and Section 3(1)(w) of the SC/ST (Prevention of Atrocities) Act and sentenced to life imprisonment.According to the prosecution, as stated in the fardbeyan of the informant (father of the deceased), on the night of 14.02.2017 at around 10:00 PM, the accused persons came to his house, entered forcibly, and took away his minor daughter by pressing her mouth and carrying her on their shoulders. The parents raised alarm and searched for the child through the night, but could not locate her. Later, they were informed that the dead body of a girl had been found in a nearby field, which they identified as their daughter. The FIR was lodged on 15.02.2017.The trial court, upon appreciation of evidence, found the accused guilty and convicted them. Before the High Court, the appellants argued that the prosecution story was inherently improbable and that the version in the FIR could not be relied upon. It was contended that the claim that the child was taken away from the house without resistance was doubtful and that there were inconsistencies in the testimony of witnesses.The Court, however, noted that the defence had failed to effectively cross-examine the prosecution witnesses on the crucial aspect of the child being taken away by the accused, nor were any suggestions put to discredit their version.The Court observed that the prosecution case, in essence, established that the deceased was last seen in the company of the accused, and that the time gap between her being taken away and recovery of her dead body was about 10 hours. Significantly, during examination under Section 313 CrPC, the accused were specifically questioned regarding the allegation of taking away the child, but they failed to offer any explanation and did not lead any defence evidence.Emphasising the legal position, the Court held that once the “last seen” circumstance is established, Section 106 of the Evidence Act comes into play, casting a burden on the accused to explain facts especially within their knowledge. The Court observed:The duty imposed on the appellants to prove their innocence when standing trial in an offence of murder arising from the doctrine of last seen has been judicially emphasized in a plethora of cases, few of which have been discussed above. Considering the judgments relied upon and the foregoing discussions, this court is of the view that it is the duty of the accused persons in such damnifying circumstances to give an explanation relating to how the deceased met her death and in the absence of such explanation, a trial court and even an appellate court will be perfectly justified in drawing the necessary inference that the accused persons must have killed the deceased.The Court further noted that no substantial cross-examination was conducted to challenge the last seen theory, and the prosecution version remained unshaken. While also observing that the trial court has a duty under Section 165 of the Evidence Act to actively participate in eliciting the truth, the High Court found that the evidence on record sufficiently pointed towards the guilt of the accused.Importantly, the Court held that the 10-hour gap between the point of last seen and the recovery of the dead body was sufficiently narrow to rule out the possibility of intervention by any third person, thereby strengthening the prosecution case. In the absence of any explanation from the accused and considering the overall circumstances, the Court held that the prosecution had proved its case beyond reasonable doubt.Accordingly, finding no infirmity in the judgment of conviction and sentence, the appeal was dismissed.Case Title: Sanjay Bhagat v. State of Bihar.Case No.: Criminal Appeal (DB) No. 639 of 2018Appearance: Senior Advocate Mr. Ramakant Sharma, assisted by Mr. Abhay Kumar appeared for the Appellant. Mr. Binay Krishna and Mr. Sri Sadanand Paswan appeared for the State. Md. Anisur Rahman appeared for the Informant.Click Here To Read/Download Order

'Child Last Seen With Accused, Found Dead Within 10 Hours': Patna High Court Upholds Rape-Murder Conviction

Rushil Batra

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