Accused's explanation is a very crucial fact, when theory of “last seen together” is proved against him by prosecution, holds Supreme Court

Noting that although Section 106 of the Evidence Act does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, the top court on Tuesday said that,

"....nonetheless furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the victim".

Section 106 states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

A bench of Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi further relied on Rajender vs. State (NCT of Delhi), wherein the top court had succinctly dealt with the doctrine of “last seen together” in the light of Section 106 of the Evidence Act.

An appeal was filed by one Mohd Firoz challenging the judgment of Madhya Pradesh High Court confirming the death sentence awarded to him.

Firoz had deceitfully taken away the victim aged about four years and had raped and killed her.

The three-judge bench noted that the entire case of the prosecution rested on the circumstantial evidence, inasmuch as though certain facts were admitted by Firoz in his further statement under section 313 of Cr.P.C., like his visit to the house of the victim on the previous evening of the alleged incident.

It was further found that it was duly proved that Firoz had taken the victim with him, neither any explanation was offered by him in his further statement under Section 313 of Cr.P.C. nor any concrete defence was taken during the course of the cross-examination of the witnesses.

Noting that the time gap between the victim being lastly seen with the accused and the time when she was found injured and unconscious in the field was hardly 12 hours, the court further found that,

"...coupled with the other evidence, the prosecution had proved the close proximity of time when the victim was last seen with the appellant and when the victim was found unconscious and in injured condition, which ultimately resulted into her death. The DNA profile obtained from the hair found from the place of incident and the DNA profile obtained from the source of blood sample of the appellant was identical, and confirmed that the hair strands were of the appellant only."

Fair Trial:

Dealing with the issue raised by the accused with regard to the trial having not been conducted in fair manner, the court said,

"Right to get speedy justice applies to the victim as well. Hence considering the gravity and seriousness of the crime, if the trial is expedited by the Court, it could not to be said that such trial was not fair to the accused."

The Court further found that the trial court did provide legal assistance to both the accused by appointing a lawyer at the expense of the State, who had thoroughly cross-examined all the witnesses examined by the prosecution, and had also examined two witnesses on behalf of co-accused.

It was further held that since no such contention was raised during the course of trial or even before the High Court in the two separate appeals filed by the accused represented by two separate lawyers, no such contention had been raised by the appellant-accused even in the memorandum of the present appeal.

"The oral submission made by the learned Senior Advocate appearing on behalf of the accused at the fag end of his arguments that there was no fair trial conducted, without substantiating the said submission, cannot be entertained", held the top court.

Concept of fair trial entails triangulation of interest of the accused, the victim and the society at large, held the court. It added that in the overzealous approach to protect the rights of the accused, the rights of the victim who is the most aggrieved should not be either undermined or neglected.

Similarly, it said, the cases involving heinous crimes, the society at large would also be an important stake-holder. Interest of the society, which acts through the State and prosecuting agencies, should also not be treated with disdain.

"...the court conducting the trial/appeal is not only obliged to protect the rights of the accused but also the rights of the victim, and the interest of the society at large. The Judge presiding over the criminal trial has not only to see that innocent man is not punished but has also to see that guilty man does not escape. Both are his public duties required to be discharged very diligently to maintain the public confidence and uphold the majesty of the law", remarked the top court.

With this view the court affirmed the conviction and sentence recorded by the courts below for the offences under IPC and POCSO Act.

Case Tittle: MOHD. FIROZ vs. STATE OF MADHYA PRADESH