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Synopsis

A division bench of the Bombay High Court comprising Justice Revati Mohite Dere and Justice Gauri Godse has acquitted a man who had previously been convicted by the Sessions Court for the killing of a 2 ½-year-old child.

The high court was considering an appeal filed by the man challenging the Sessions Court's order, which had sentenced him to six months of rigorous imprisonment and imposed a fine of Rs. 5000.

The case originated from an FIR filed after the child disappeared while playing in the courtyard. The child's body was discovered in a well with a depth of 45 feet, filled with water up to 21 feet. The child's parents filed the FIR.

During the trial court proceedings, the complainants, who were the child's parents, turned hostile. The prosecution had primarily relied on the statement of a witness who had seen the child with the appellant.

However, due to the unavailability of the appellant's advocate, the witness was not cross-examined. 
Consequently, based solely on the witness's examination-in-chief, the sessions court convicted the appellant using the "last seen theory."

The high court, through an order, remitted the case back to the sessions court and directed that a cross-examination of the witness be conducted. 

During the cross-examination, the witness stated that he had neither seen the child with the appellant nor had any reason to visit the well where the child's body was discovered.
The high court in its order said that reliance could not be placed on the evidence and the last seen together theory.

"As noted earlier, P.W-5- Nilesh Baban Sawant and P.W-6- Nutan Nilesh Sawant, witnesses were cross-examined by the prosecution, after they were declared hostile. However, despite the same, the prosecution has not adduced any other evidence to prove motive. Thus, the only evidence is that of last seen, as against the appellant i.e. the evidence of P.W-8-Suraj Baban Nikam. Considering what is stated by P.W-8-Suraj Nikam, in his cross examination, we cannot place implicit reliance on his evidence, that the appellant was last seen in the company of Prajwal(deceased0,” the court said.

The bench therefore proceeded to set aside the order of the sessions court convicting the appellant. 
“As noted above, the prosecution case rest entirely on circumstantial evidence. Since the circumstances as stated aforesaid, have not been proved by the prosecution, the impugned judgment and order cannot be sustained,” the bench said.

Case title: Shri Nitin Aganda Lade vs State of Maharashtra