Shreeram Shirsat, J.

1. The present Appeal has been filed challenging the impugned judgment and order dated 08.12.2020 passed by the Sessions Judge, Gr. Bombay in Sessions Case no. 179/2014, whereby the Appellant has been convicted for the offences punishable under Section 302 of the Indian Penal Code (IPC) and has been sentenced to undergo Imprisonment for Life and pay a fine of Rs.1,00,000/- and in default to undergo Imprisonment for 1 year and under Section 201 of the IPC to undergo Rigorous Imprisonment for 2 years and a fine of Rs. 10,000/- and in default to undergo Imprisonment for 3 months.

2. Brief facts of the prosecution case are as under:

                   a) It is the case of the prosecution that on 29th October, 2013, at about 22:40 hours, ASI Hanumant Govind Patil (P.W. 1) while on patrolling duty on Hemu Kalani Marg, found mob of some persons near Charai Lake, Chembur and upon inquiry, it transpired that two unidentified persons had arrived by auto rickshaw and disposed off a black coloured plastic bag in the lake. The bag was retrieved and found to contain the torso of a woman aged approximately 25 to 30 years. An Accidental Death Report (ADR) bearing No. 135/13 was registered under Section 174 of the Code of Criminal Procedure (Cr.P.C). It is further the case that on 30th October, 2013, two human legs along with four blood-stained plastic bags were separately recovered from another location (Trombay Jetty).

                   b) It is further the case of the prosecution, that the investigation led to the tracing of the auto rickshaw driver (P.W. 3), whose statement was recorded and a description of the accused was obtained. A missing complaint report lodged at Saki Naka Police Station by Subhashini Prasad Shetty (P.W. 18), the sister of the deceased, led to the identification of the body parts as those of Smt. Kanti Karunakar Shetty (deceased), confirmed through physical identification.

                   c) It is further the case that the accused was thereafter arrested and two mobile phones were seized from his person. Pursuant to disclosure statements made by the accused, the head of the deceased was recovered from a nala near Sai Baba Nagar, Shell Colony and a further disclosure statement on 7th November, 2013, led to the recovery of a knife from a nala on the western side of Acharya College which was seized under panchanama.

                   d) It is further the case that the Test Identification Parade was conducted on 27th December, 2013, before the Naib Tahasildar (P.W. 12) at Arthur Road Jail, wherein the Appellant was identified by two witnesses.

                   e) Upon completion of investigation, a charge-sheet was filed against the Appellant for offences punishable under Sections 302 and 201 of the Indian Penal Code.

3. To bring home the guilt of the Accused-Appellant, the prosecution in all examined 25 witnesses (P.W. 1 to P.W. 25):

                  

                  

                  

4. On completion of the prosecution evidence, statement of the Appellant under Section 313 Cr.P.C. was recorded, wherein the Appellant denied the case of the prosecution and further stated that he was falsely implicated in the case. The Appellant was also granted an opportunity to lead defence evidence, if so desired. The Appellant neither chose to lead any defence evidence, nor did he examine himself on oath.

5. After hearing the prosecution as well as the defence and upon appreciation of the evidence on record, the Sessions Judge, vide judgment and order dated 08.12.2020, was pleased to convict the Accused/Appellant for the offences punishable under Section 302 of the Indian Penal Code (IPC) and sentenced him to undergo Imprisonment for Life and pay a fine of Rs.1,00,000/- and in default to undergo Imprisonment for 1 year and under Section 201 of the IPC to undergo Rigorous Imprisonment for 2 years and a fine of Rs. 10,000/- and in default to undergo Imprisonment for 3 months.

6. Being aggrieved by the judgment and order of conviction in Sessions Case No. 179/2014, dated 08.12.2020, passed by the Sessions Judge, Gr. Bombay, the Appellant has approached this Court by way of the present appeal.

7. Heard Learned Counsel Adv. Gaurav Bhawnani for the Appellant and Ld. APP Adv. Sangeeta Phad for the Respondent-State.

8. The Learned Counsel for the Appellant submitted that the case rests entirely on circumstantial evidence and the prosecution has failed to establish a complete chain of circumstances, pointing unerringly, to the guilt of the Appellant. On the aspect of motive, it was submitted that the first alleged motive, namely the monetary dispute, has already been disbelieved by the Sessions Court. As regards the second alleged motive of refusal of marriage, it was submitted that the same is wholly speculative and uncorroborated, inasmuch as P.W. 4, the son of the deceased, did not even possess the contact number of the Appellant and P.W. 18, sister of the deceased, was unaware of the existence of any person by the name of Prabhakar in the life of the deceased. He also submitted that the Appellant had agreed to marry the deceased and therefore refusal to marry cannot be considered as a motive. With respect to the theory of last seen together, it was submitted that the statement of P.W. 5 was recorded after a delay of approximately one and a half months and that his explanation of being preoccupied with his courier business does not satisfactorily account for his silence during an ongoing murder investigation, rendering his evidence a clear afterthought. As regards the disposal of the torso, it was submitted that P.W. 2 and P.W. 6 described the person at Charai Lake as approximately 5 feet in height whereas the Appellant stands at 5 feet 7 inches, a material discrepancy of seven inches going to the very root of identification. On the Test Identification Parade, it was submitted that the same stands vitiated on account of unexplained delay, material contradictions as to whether it was the panchas or the police who brought the witnesses, a contradiction hit by Section 162 Cr.P.C and the admission of P.W. 12 that both the Panchas and the dummies were arranged by the police and jail authorities respectively, were contrary to the requirement of independent arrangement by the Tahsildar. On the Call Detail Records (CDRs), the Ld. Counsel submitted that a static tower location does not establish physical presence, particularly when the possibility of the phone having been used by another person cannot be excluded. It was further submitted, that the recoveries under Section 27 of the Indian Evidence Act require scrutiny as to whether they constitute genuine discoveries or merely confirm facts already within the knowledge of the police. It was also submitted that the knife recovered is wholly insufficient to account for the injuries noted in the post-mortem report. He further argued that the delay of six days in lodging the missing complaint by P.W. 18, was also urged as casting further doubt on the prosecution’s timeline. It was submitted that each of the aforesaid circumstances, being individually infirm, cumulatively fall well short of the standard required to sustain a conviction on circumstantial evidence.

9. In support of their contentions, the Ld. Counsel for the Appellant has relied upon a plethora of judgments, which are as under:

                   i. Hanumant v/s State of Madhya Pradesh((1952) 2 SCC 71.)

                   ii. Sharad Birdhichand Sarda v/s State of Maharashtra((1984) 4 SCC 116.)

                   iii. Shankarlal Gyarasilal Dixit v/s State of Maharashtra((1981) 2 SCC 35.)

                   iv. Shahid Khan v/s State of Rajasthan((2016) 4 SCC 96.)

                   v. Ganesh Bhavan Patel v/s State of Maharashtra((1978) 4 SCC 371.)

                   vi. Mohd. Sajjad v/s State of West Bengal((2017) 11 SCC 150.)

                   vii. Chunthuram v/s State of Chhattisgarh((2020) 10 SCC 733.)

                   viii. Vilas Vasantrao Patil v/s State of Maharashtra(1995 SCC OnLine Bom 399.)

                   ix. State of Maharashtra v/s Rajesh(1997 SCC OnLine Bom 399.)

                   x. H.P. Administration v/s Om Prakash((1972) 1 SCC 249.)

                   xi. Gambhir v/s State of Maharashtra((1982) 2 SCC 351.)

                   xii. Kashinath Baban Palkar v/s State of Maharashtra(1995 SCC OnLine Bom 167.)

                   xiii. Sattatiya v/s State of Maharashtra((2008) 3 SCC 210.)

                   xiv. Makhan Singh v/s State of Punjab(1998 Supp. SCC 526.)

                   xv. State of Haryana v/s Jagbir Singh((2003) 11 SCC 261.)

                   xvi. Murli v/s State of Rajasthan(1995 Supp (1) SCC 39.)

                   xvii. Madaiah v/s State(1992 Cri.L.J. 502.)

                   xviii. Rohidas Manik Kasrale v/s State of Maharashtra(2012 Cri.L.J. 917.)

10. Per Contra, the Learned APP submitted that the prosecution has successfully established a complete and unbroken chain of circumstances unerringly pointing to the guilt of the Appellant and that the Sessions Court has rightly convicted the Appellant-Accused. On the aspect of motive, it was submitted that P.W. 4, a natural and credible witness, has established that the deceased was insisting upon marriage which the Appellant was refusing, and that his evidence stands unimpeached. It was submitted that this constitutes a sufficient link in the chain of circumstances. The Ld. APP, on last seen together, submitted that the evidence of P.W. 4 and P.W. 5, corroborated by the Cell tower location evidence of P.W. 15 and P.W. 16, conclusively establishes that the deceased was last seen in the company of the Appellant, immediately prior to her death. It was submitted that the Cell tower location records, demonstrate continuous interaction between the two mobile phones during the relevant evening hours and the progressive movement of the phone of the deceased towards the location of the Appellant. On the aspect of the disposal of the torso, it was submitted that P.W. 2, P.W. 3 and P.W. 6 are consistent, cogent and independent witnesses who had ample opportunity to observe the Appellant, and that any minor discrepancy in physical description is of no consequence. It was submitted that the SIM cards seized from the possession of the Appellant are sufficient to establish their use by him. The Ld. APP further submitted that the Test Identification Parade was conducted by P.W. 12 and that any delay therein is not fatal, particularly when the witnesses had sufficient opportunity to observe the Appellant. On the issue of disclosure and recovery, it was submitted that the recovery of the head of the deceased from a location exclusively within the knowledge of the Appellant, is by itself a powerful, incriminating circumstance and that the recoveries of the legs of the deceased and the weapon of the murder (knife), under Section 27 of the Indian Evidence Act, forms a crucial independent link in the chain. On medical and forensic evidence, it was submitted that the post-mortem reports conclusively establish homicidal death by decapitation of head and that DNA profiling conclusively establishes the identity of the deceased as Kanti Karunakar Shetty. It was submitted that the totality of the evidence right from motive, last seen, eye-witness identification, disclosure and recovery, tower location and forensic evidence forms a complete and unbroken chain admitting of no other reasonable hypothesis, and that the conviction deserves to be maintained.

11. The Ld. APP has relied upon the following authorities to buttress her arguments:

                   i. Balu Sudam Khalde & Anr. v/s State of Maharashtra(AIR OnLine 2023 SC 229.)

                   ii. Neelu @ Nilesh Koshti v/s State of Madhya Pradesh(Cri.A.5357 of 2025.)

                   iii. Chetan Prakash v/s State (GNCT of Delhi)(AIR OnLine 2022 Del. 1715.)

                   iv. Prabhu Dayal v/s State of Rajasthan(Cri. A. 2324 of 2014.)

                   v. Phula Singh v/s State of Himachal Pradesh(AIR 2014 SC 1256.)

                   vi. Munish Mubar v/s State of Haryana(AIR 2013 SC 912.)

                   vii. Pramod Mandal v/s State of Bihar(Cri.A. 174 of 2003.)

                   viii. State of Maharashtra v/s Suresh(AIR OnLine 1999 SC 169.)

                   ix. State of Punjab v/s Karnail Singh((2003) 11 SCC 271.)

                   x. Ganesh Lal v/s State of Maharashtra((1992) 3 SCC 106.)

                   xi. Rohtash Kumar v/s State of Haryana((2013) 14 SCC 434.)

                   xii. Trimukh Maroti Kirkan v/s State of Maharashtra((2006) 10 SCC 681.)

                   xiii. Kishore Bhadke v/s State of Maharashtra((2017) 3 SCC 760.).

12. Before adverting to the individual circumstances, it will be pertinent to refer to the latest judgment of the Hon’ble Apex Court in the case of Anand Jakkappa Pujari @ Gaddadar v/s The State of Karnataka decided on 27th April, 2026 in Criminal Appeal No. 1864 of 2024 wherein it is held as under:

                   “27. The logical process involved in the admission and consideration of circumstantial evidence has been explained by Wigmore on Evidence in paragraph 32 et seq. The test for the admissibility of evidence to prove a circumstantial fact was expressed in the following words:-

                   “The evidentiary fact will be considered when, and only when, the desired conclusion based upon it is a more probable or natural, or at least a probable or natural hypothesis, and when the other hypotheses or explanations of the fact, if any, are either less probable or natural, or at least not exceedingly more probable or natural” (paragraph 32, page 421).

                   “Where even the possibility of a single other hypothesis remains open, Proof fails, though it suffices for Admissibility if the desired conclusion is merely the more probable, or a probable one, even though other hypotheses, less probable or equally probable remain open. It is thus apparent that, by the very nature of this test or process, a specific course is suggested for the opponent. He may now properly show that one or another of these hypotheses, thus left open, is not merely possible and speculative, but is more probable and natural as the true explanation of the originally offered evidentiary fact” (paragraph 34, page 423).”

                   “28. In the aforesaid context, Kenny states that:-

                   “An amount of testimony which is not sufficient to rebut the presumption of innocence entirely (i.e., to shift the burden of proof so completely as to compel the prisoner to call legal evidence of circumstances pointing to his innocence), may yet suffice to throw upon him the necessity of offering, by at least an unsworn statement, some explanation. If he remain silent and leave this hostile testimony unexplained, his silence will corroborate it, and so justify his being convicted” (page 388).

                   “29. The principle that criminal courts should bear in mind is, in the words of C.B. Pollock:-

                   “To make a comparison between convicting the innocent man and acquitting the guilty is perfectly unwarranted. There is no comparison between them. Each of them is a great misfortune to the country and discreditable to the administration of justice. The only rule that can be laid down is that in a criminal trial you should exert your utmost vigilance and take care that if the man be innocent he should be acquitted, and if guilty that he should be convicted.” (quoted in Donough’s Principles of Circumstantial Evidence, 1918, 158).

                   “30. From the above, the following propositions emerge:-

                   1. Circumstantial evidence to justify conviction must be consistent with any reasonable or rational hypothesis of guilt of the accused.

                   2. When the inference of guilt from the proved incriminating facts is a more natural and probable hypothesis than the other, the onus of offering an explanation for the incriminating facts lies upon the accused. If he does not offer any explanation, or falsely denies the very existence of the incriminating facts, it is itself a circumstantial fact against him, even if the court is in a position to imagine an explanation. The guilt is the legitimate inference from the incriminating facts and the added circumstantial fact of failure or refusal to offer an explanation for the incriminating facts because it is not reasonable or rational to say that the accused would fail or refuse to offer an explanation consistent with his innocence if he could. It is immaterial in such a case whether the Court can imagine an explanation or not.

                   3. If the inference of guilt from the proved incriminating facts is a less natural or probable hypothesis than the other, the Court cannot draw it and the accused must be acquitted whether he offers any explanation or not.

                   4. If the inference of guilt from the proved incriminating facts is as much a natural or probable hypothesis as any other, the accused may be called upon to explain and if he fails or refuses, the Court may treat it as an additional circumstantial fact and infer his guilt. Or it may take judicial notice of the other hypothesis even without any explanation by the accused and acquit him.

                   “31. In a catena of decisions, it has been consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the tests laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116. The relevant observations read thus:-

                   “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

                   (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

                   It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 :1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

                   “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

                   (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty

                   (3) the circumstances should be of a conclusive nature and tendency,

                   (4) they should exclude every possible hypothesis except the one to be proved, and

                   (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

                   (Emphasis supplied)

13. A useful reference can also be made to the judgement of the Hon’ble Apex Court in the case of Abdul Nassar v/s State of Kerala and Another(2025 SCC OnLine SC 111.) wherein it has been observed that:-

                   “14. Indisputably, the prosecution case rests on circumstantial evidence. The law with regard to a case based purely on circumstantial evidence has very well been crystallized in the judgment of this Court in the case of Sharad Birdhichand Sarda (supra), wherein this Court held thus:

                   “152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up to date, for instance, the cases of Tufail (Alias)Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]:

                   “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the Accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

14. We also refer to the judgment of Chetan Prakash v/s State (GNCT of Delhi)(33 AIR OnLine 2022 Del 1715.) which has been relied upon by the Ld. APP, inviting the attention of this Court to paragraph 18:

                   “18…..Circumstantial evidence or indirect evidence is an unrelated chain of events which when combined together formulates circumstances leading to the commission of the crime. Conviction based on circumstantial evidence requires an unbreakable link between the criminal and the crime devoid of conjecture or suspicion. The chain of circumstances must rule out reasonable likelihood of the innocence of the accused. If circumstantial evidence establishes the chain of events leading to the guilt of the accused and commission of the crime without other possibilities, can be sole basis for a conviction. The circumstances should indicate towards the guilt of the accused and should be inconsistent with his innocence. The onus is on the prosecution to prove that the chain of circumstantial evidences is complete without gaps to the extent that no other conclusion or inference apart from the guilt of the accused can be drawn.”

15. Therefore, where the evidence is of a circumstantial nature or where the case is based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn, should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as to not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. It will therefore have to be seen from the evidence that has come on record, whether the circumstances from which the conclusion of guilt is to be drawn, are fully established and all the facts so established are consistent only with the hypothesis of the guilt of the accused.

16. As stated above, in this case, there is no direct evidence and the entire case hinges on circumstantial evidence. According to the prosecution and as also considered by the Trial Court, the following circumstances form a chain of evidence excluding every possible hypothesis except the guilt of the Appellant. These circumstances are as follows:

                   1. Identity of the Victim

                   2. Motive

                   3. Last seen together

                   4. Witness seeing the accused dumping the torso in Charai Lake

                   5. Test Identification Parade

                   6. Disclosure/recovery

                   7. Reports of post-mortem and Chemical Analyser .

17. The Trial Court, based on the above circumstances, has come to the conclusion that prosecution has been successful in proving the entire chain of circumstances beyond reasonable doubt, which point towards the guilt of the Appellant and which leave no doubt that the Appellant was the perpetrator of the offence and was also involved in the destruction of the evidence.

18. It will therefore have to be seen, whether from the facts of the case, the chain of evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it is such as to show that within all human probability the act must have been done by the accused.

Let us now analyse each of the circumstances in seriatim:-

A] IDENTITY OF THE VICTIM

19. The first circumstance taken into consideration is about the identity of the victim/deceased. To establish the identity of the deceased, the prosecution has examined P.W. 18, the sister of the deceased who has deposed that her sister was missing since 29.10.2013 and a missing complaint was filed by her and the son of the deceased, at Sakinaka Police station on 04.11.2013. She has further deposed that on 06.11.2013, she was called to the Chembur Police Station to identify the dead body. She has deposed that the body was in different, separated parts and she identified the body which was shown to her. She has deposed, that she identified the body on the basis of her nail paint and the structural arrangement of her teeth. She has deposed that the nail paint was of pink colour and the deceased used to come to her house and she had applied pink coloured nail paint at her house. The said witness was cross-examined by the defence counsel, however, nothing much could be elicited in the cross-examination as regards the identity of the deceased and the defence unable to discredit the witness on the point of identity. Further, the DNA reports at Exhibit 95 Colly., conclusively establish the identity of the deceased. The report proves that Thimmappa K. Shetty was the biological father and that P.W. 4 was the biological son of the deceased. This evidence, therefore establishes beyond reasonable doubt that the dismembered body parts were those of Kanti Karunakar Shetty (deceased). Therefore, we are of the opinion that the prosecution has duly proved the first link in the chain of circumstances and has clearly established the identity of the deceased.

B] MOTIVE

20. The next circumstance is motive. To establish motive, the prosecution examined P.W. 4, the son of the deceased. P.W. 4 deposed that he knew the Appellant and that his mother had introduced him to the Appellant. He deposed that his mother had told him that she was in a relationship with the Appellant and that she wanted to marry him. He further deposed that the Appellant used to visit their house twice a week and used to stay at night whenever he used to visit their house. He further deposed that after some days, quarrels started between his mother and the Appellant. He further deposed that his mother was telling the Appellant to marry her, but he was refusing and therefore his mother was asking back for her money from the Appellant. He further deposed that the Appellant promised to marry his mother by putting his hand on her head and that he had put a mangalsutra on the person of his mother. He further deposed that the Appellant had signed the open day meeting attendance card as a guardian and that the said card also bears the photograph of the Appellant. In the cross-examination, the witness stated that there were frequent quarrels between his mother and the Appellant and these quarrels started after one month of his introduction. This witness categorically admitted that he can tell the issues about the quarrel between his mother and the Appellant and the issues were that his mother had given some money to the Appellant which he did not return. He further admitted that the quarrel was also on account of his mother insisting the Appellant to marry her.

21. No doubt there is nothing on record to show that the money was lent by his mother in his presence or that this witness was taken into confidence before lending the money. There is also nothing on record to establish lending of money by way of any documentary evidence but that is not the only motive. It has categorically come in the evidence that the deceased was insisting the Appellant to marry which he was refusing. Although, it has also been admitted in the cross-examination that on 28th October 2013, the accused promised to marry his mother, we do not find the testimony of this witness to be biased in any manner. The evidence of this witness appears to be natural and cannot be said to be exaggerated or inflated just because the Appellant has been accused of killing his mother. His deposition was consistent even in the cross-examination on the point of his mother asking the Appellant about the money which she had lent him and also about the Appellant refusing to marry his mother. Just because the witness has admitted that on 28.10.2013, the Appellant promised to marry his mother, does not mean that no quarrels had taken place in the past or that all their disputes ceased to exist with the said promise. The reasons narrated for the quarrels which ensued, are sufficient to come to the conclusion that the Appellant was holding some serious grudge which has culminated into the motive. We do not agree with the finding of the trial court that the motive with respect to the money is not believable in the absence of any evidence about how much was the earning of the victim or what amount was lent to the accused or in whose presence it was lent. We are of the opinion that the prosecution has proved the motive on both counts beyond reasonable doubt.

C] LAST SEEN THEORY

22. Before adverting to the circumstance of last seen theory which has been strongly relied upon by the prosecution, a useful reference can be made to the judgment of Anand Jakkappa Pujari @ Gaddadar v/s The State of Karnataka (supra):

                   “41. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case, the courts should look for some corroboration.

                   “42. In The State of U.P. v/s Satish reported in (2005) 3 SCC 114, this Court observed:-

                   “22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.”

                   (Emphasis Supplied)

                   “43. By now, it is a well settled position of law that the circumstance of “last seen together” does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. The Courts should look for some corroboration.

23. The prosecution in order to establish the circumstance of “last seen theory” has examined and relied upon P.W. 4 and P.W. 5. P.W. 4 is the son of the deceased who has deposed that on 29.10.2013, when he had gone to play at Hiranandani Garden, his mother called him home and told him that she was going to meet the Appellant. He has further deposed that after playing, he returned home between 8:30 p.m. to 9 p.m. when his mother was still not home. He has further deposed that since that day, his mother never returned.

24. The prosecution has also examined P.W. 5, who is a resident of the society and resides in Room No. 236. He has deposed that, he knows the owner of that said Room No. 224 and has deposed that Room No. 224 was given on rent by P.W. 14- Gurunath Kulkarni. He stated in the deposition that, “I alongwith my family resides at Subhash Nagar, Chembur. I have a weekly off on Sunday. On 29/10/2013 I was standing in the gallery in front of main door. On that day I was observing the persons who are coming inside and going outside from our building when I was standing, brushing in gallery. The lady who came with one rickshaw at our building was unknown to me. The lady alighted from auto rickshaw and directly entered in the building towards staircase. There are two staircase in our building. In our building the room consists from room No.217 to 252. There are 12 rooms on each floor of said building. The said lady went upstair through the said staircase. The said lady went in room no.224. Room No.217 is situated at the corner side of the building. Room numbers are allotted serially on each floor. I again say that room numbers are allotted not serially on each floor of the said building on two wings. In first wing of the said building the room number starts from 217 to 234 serially and in the second wing of said building the room starts from 235 to 252. I am residing in the second wing in room no. 236 on ground floor. I was knowing the persons who were residing in room no 224. I had not seen who had come and gone in room no.224 prior to the said lady visited the room. After entering the said lady inside room no.224 I had not seen anybody had come and gone from the said room. I was knowing that four male persons were residing in room no.224. I did not inquire as to why the said lady had gone in the said room no.224. I had seen that the said lady knocked the door and after opening the door she went inside and then the door was closed.” He has further deposed that on 30.10.2013, he had gone to Nashik along with his family on a holiday for 3 to 4 days. He has further deposed that, after his return to Mumbai, his mother told him that there has been a murder of one lady in Room No. 224. He has stated in his deposition, that he gave his statement to the police approximately after one and half month from the date of incident. He has further deposed that due to his courier business, he could not approach the police to give a statement and that there is a delay. He has deposed that he narrated the said fact to the police which he had seen on 29.10.2013. He has further deposed that he came to know that the accused residing in Room No. 224 has committed murder of one lady and he identified the accused in the court. He has further admitted, that after returning from Nashik, he did not see any of the occupants of Room No. 224. Further, in the cross-examination, which was conducted on a subsequent date, he has tried to give an explanation that the police came on their own to him for enquiry and recording of the statement. He said that police had come to him after 10 to 15 days from the date of the incident. He has further admitted in the cross-examination that the noise can be heard from the neighbouring flat and that he did not hear any quarrel or noise from Room No. 224. He has also admitted that he did not hear any cutting noise from Room No. 224. He has admitted in the cross-examination that he cannot tell who was present in Room No. 224 when the said lady entered inside the room.

25. What can be deduced from his evidence, is that this witness has seen one lady entering the said room as admitted by him, but the prosecution has not taken any pains to confront this witness with any photograph of the deceased in order to confirm whether the lady who entered the Room No. 224 on 29.10.2013, was the deceased. The lady, whom he claims to have seen, was not a known lady to this witness. This witness is assuming that the lady, who visited Room No. 224, must have been murdered. Confrontation of this witness with the photograph of the deceased would have lent corroboration and strengthened his narration, which in the absence thereof falls short of a conclusive proof. This witness in his examination-in-chief has stated that he did not go to the police station after knowing the incident. But, after one and half to two months of the incident, he went to the police station and narrated the facts to the police. However, in the cross- examination which was on a subsequent date, he has contradicted his own version and stated that police came on their own to him for enquiry and for recording his statement. This appears to be a material contradiction and the improvement is made specifically to overcome the delay in approaching the police. It has been admitted in the cross-examination that police came to him after 10 to 15 days of the incident. If this is accepted to be true, then it is still a mystery as to why the statement came to be recorded after 1 and 1/2 to 2 months. It has come in the evidence of P.W. 7 that the police had also visited the site on 05.11.2013 and therefore nothing prevented this witness from disclosing the events to the police at the first available opportunity which he claims to have witnessed.

26. The Ld. Counsel for the Appellant has relied upon the following judgments in support of his contention on the issue of delay in recording the statement by the police. By citing Shahid Khan v/s The State of Rajasthan((2016) 4 SCC 96.), the Ld. Counsel has invited the attention of the Court to the following paragraph:

                   “20. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced…”

27. Additionally, the Ld. Counsel has also placed reliance on Ganesh Bhavan Patel v/s The State of Maharashtra((1978) 4 SCC 371.)

                   “15. As noted by the trial court, one unusual feature which projects its shadow on the evidence of PWs Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161 of the CrPC were recorded on the following day. Welji (PW 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, be itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to suggest that the decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case.”

28. Further, a useful reference can be made to the case of Ganpat Kondiba Chavan v/s The State of Maharashtra(1997 (2) Crimes 38.). The relevant portion is quoted herein below. It has been held thus:-

                   “11. The Apex Court in number of cases has concluded that the conduct of a witness in not disclosing the incident to persons whom he must have met after the incident, is indicative of the fact that he had not seen the incident. In this connection we would like to refer to the decision of the Apex Court reported in Shivaji Dayanu Patil Vs State of Maharashtra, AIR 1989 Supreme Court 1762; wherein the wife who had seen the murder of her husband did not disclose the incident for two days to anyone and on this score the Apex court did not believe her evidence. In paragraph 11 of the said judgment it has been observed thus:

                   “A wife, who has seen an assailant giving fatal blows with a stick to her husband would name the assailant to all present and to the police at an earliest opportunity.”

                   “12. We would also like to emphasise that the Supreme Court held that the circumstance of inordinate delay in recording the statement of an eye witness under Section 161 Criminal Procedure Code, 1973 is a pointer to the fact that he has not seen the incident. It is a trite that the investigating officer in a murder case immediately after the FIR has been registered seeks to discover as to who are the persons who have seen the incident and thereafter embarks upon the job of interrogating them under Section 161 Criminal Procedure Code.”

29. We, therefore, find that the conduct of P.W. 5, creates a serious doubt about the veracity of his deposition and gives an impression that in all probability, this witness has not seen any such happening, in the manner as stated by him and therefore also taking into consideration the unjustifiable delay, the evidence of P.W. 5 cannot be said to be free from doubt.

30. The Ld. APP has further contended that in cases where the prosecution establishes that the deceased was last seen alive in the company of the accused, the burden shifts upon the accused to explain how the incident had occurred. In support of her contention she has relied upon the judgment of Rohtash Kumar v/s The State of Haryana((2013) 14 SCC 434.). The relevant paragraphs are quoted as below:

                   “Last seen together theory

                   32. In cases where the accused was last seen with the deceased victim (last seen together theory) just before the incident, it becomes the duty of the accused to explain the circumstances under which the death of the victim occurred. (Vide Nika Ram v. State of H.P. and Ganeshlal v. State of Maharashtra.)

                   33. In Trimukh Maroti Kirkan v. State of Maharashtra this Court held as under: (SCC p. 694, para 22)

                   “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

                   (See also Prithipal Singh v. State of Punjab)

                   34. Thus, the doctrine of "last seen together" shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.”

31. There can be no doubt about this proposition of law. However, the reliance on this principle is misplaced in the facts of the present case. In the present case, there is no convincing material that has come on record to establish that the deceased and the accused were ‘last seen together’ prior to the murder of the deceased. We are not inclined to accept the evidence of P.W. 5 on the point of last seen together for what we have discussed above, as P.W. 5 does not inspire confidence and therefore even if the Appellant has not discharged the burden, the same cannot be said to be fatal. We are therefore of the opinion, that the prosecution has not successfully proved this circumstance of last seen.

32. It will also be pertinent to consider the Call Detail Records (CDRs) and the Cell Tower Location in order to find out whether it can be considered as a corroborative material to find out whether the Appellant was in the company of the deceased on the evening of 29.10.2013.

33. In order to establish the CDRs and tower location, the prosecution has examined P.W. 15 and P.W. 16 who have deposed about the phone numbers of the deceased and the Appellant.

34. P.W. 15 the nodal officer in Bharti Airtel Company, in his deposition has stated: “I retrieved the data from the server through the confidential password provided to the Nodal Officer. As per my report, the name of the subscriber of the mobile number 98925223098 is Karunakar Shetty while the name of the subscriber of the mobile number 9967131884 is Karunakar Sanjivan Shetty. Date of activation for No. 98925223098 is 30.09.2006, while date of activation for No. 9967131884 is 31.07.2007.”

35. P.W. 16, the nodal officer with Vodafone India Ltd., has deposed as follows: “By using user I.D. and password, I retrieved data from the server of these mobile numbers of the requisite period. I sent the print out of CDR copies of customer application form of both the numbers along with certificate u/s. 65B and tower location I.D. list to DCP Zone 6. The mobile No. 9167976154 is in the name of Sunita R. Maru, GR 7, Central Railway hutment, Chapsi Marg, Mazgaon, Mumbai was a prepaid number and date of activation of that number was 16/02/2011. The mobile No. 9930783502 is in the name of Karunakar Shetty, B2 Vajrani Colony, Jadari No. 1, Sakinaka, Mohali village, Mumbai- 72. It was prepaid number and the date of activation of said number was 14/10/2011.”

36. The following table would enumerate the Mobile Phone numbers used by the Appellant and the deceased, as culled out from the evidence on record:-