JUDGMENT : Biren Vaishnav, J. 1. The original accused, charged for an offence under section 302 of the Indian Penal Code, has filed this appeal challenging his conviction and sentence rendered by the learned 6th (Adhoc) Additional Sessions Judge by judgement and order dated 19.06.2012 in Sessions Case No. 207 of 2009. 2. Guddu Yadav was the complainant who filed the First Information Report on 26.05.2009. According to the first informant, he was a resident of Karmayogi chawl where he lived with his cousin Ram Bachchan and his cousin brother's wife Nirmalaben and her three children. Of the three children, Nidhi was aged 9. On 24.05.2009, according to the first informant, Nirmalaben left for job in the morning and Nirmalaben's son Satyendra had returned after his night duty. Her husband Ram Bachchan was away. Nidhi, Nirmalaben's daughter aged 9 was at home. When Nirmalaben returned home in the evening at 6, she found Satyendra sleeping in the room, while Nidhi was missing. When they looked out for her she could not be found. A police complaint was, therefore, lodged in the midnight. According to the complaint, the chawl in which they were staying was owned by one Hajir Ali and was managed by one Dineshbhai who owned a grocery shop in the chawl. On 26.05.2009, one of the sweepers informed them that a foul smell was emanating from room No. 37 and when the said room was opened by Dineshbhai they found the body of Nidhi. Accordingly, a charge was framed at Ex. 4 by the learned Additional Sessions Judge. The accused Shivprakash Gupta was charged for an offence under section 302 of the Indian Penal Code. 3. The complainant Guddu Yadav was examined as P.W. 1 at Ex. 7. According to this witness, on 24.05.2009, he along with Nirmalaben left for work at 08.30 in the morning. Nirmalaben's son Satyendra had returned after his night duty and was sleeping when they left for work. Nidhi was at home that time. When they returned from work at 6 in the evening, Satyendra was still sleeping. When asked about the whereabouts of Nidhi, Satyendra informed the mother that Nidhi was playing outside. Not finding Nidhi in the vicinity, they started looking out for her in the vicinity. A police complaint was lodged in the morning of 26.05.2009. At 8.00 am, Nidhi's body was found from room No. 37. When asked about the whereabouts of Nidhi, Satyendra informed the mother that Nidhi was playing outside. Not finding Nidhi in the vicinity, they started looking out for her in the vicinity. A police complaint was lodged in the morning of 26.05.2009. At 8.00 am, Nidhi's body was found from room No. 37. The room was locked from outside. It was unoccupied. When being informed by the occupant of the room next door of a foul smell emanating, room No. 37 was opened. Blood stains were found on the floor around the body. This witness further stated that he suspected Shivprakash of the offence. Shivprakash's face was marked with abrasions and bruises and when asked he said that he had been injured when he scratched himself with his nails. The police had recorded his further statement. 3.1 Guddu was cross examined. He agreed in the cross examination that Dineshbhai was carrying out the management of letting out and collecting rent of the rooms. He owned a grocery shop in the chawl. Dineshbhai was staying with his wife Roshaniben and nephew Gherilal. When a suggestion was put to him, he admitted that Dineshbhai had first discouraged the involvement of the police on the ground that nobody had seen Nidhi being done to death. 4. P.W. 13 - Nirmaladevi Verma, the victim's mother was examined at Ex. 40. According to this witness, on 24.05.2009, at around 5 in the evening, when she returned home from her job, she found the room's door locked from outside. She went in and found Satyendra still sleeping at home. When asked about Nidhi, he informed his mother that Nidhi would be playing outside; that Shivprakash had locked the room from outside. When Shivprakash met her and was questioned about Nidhi's whereabouts he denied having seen her. While she was looking out for Nidhi, Dineshbhai's wife informed her that she had seen Nidhi at 3 in the afternoon when Nidhi had come to the shop with Munna's book/diary to purchase biscuits. (The book/diary being one in which the customers would enter the details of the groceries that the book/diary holder would purchase). Dineshbhai's wife informed Nirmalaben that Nidhi had come at 3 with the book which belonged to Munna - Shivprakash's brother and purchased biscuits and left. On 26.05.2009, when Shivprakash came to their room in the morning, she found that Shivprakash's face had bruises. Dineshbhai's wife informed Nirmalaben that Nidhi had come at 3 with the book which belonged to Munna - Shivprakash's brother and purchased biscuits and left. On 26.05.2009, when Shivprakash came to their room in the morning, she found that Shivprakash's face had bruises. He explained those injuries to be as a result of he himself scratching with his nails. 4.1 Nirmalaben was cross examined. She admitted that the complaint was lodged on 24.05.2009 at midnight. Dineshbhai's wife had informed her that Nidhi had come to the shop at 3 in the afternoon. When the body was discovered in room No. 37, Dineshbhai and his nephew Gherilal both were present. 5. Satyendra Verma was examined as P.W. 15 at Ex. 43. According to him, on 24.05.2009, when he returned from his night duty, Shivprakash came to his room and asked him as to what he was doing. After a few questions, Shivprakash left. Nidhi and he had lunch and then both went to sleep. He did not realize as to when Nidhi left the room. Shivprakash came in the room while he was sleeping and told him to shut the door from inside. At that time, he told Shivprakash to bolt the door from outside. Shivprakash bolted the door from outside and left. His mother returned from job at about 05.30 in the evening. She asked as to why the door was locked from outside and inquired about Nidhi's whereabouts. He informed his mother that Nidhi could be playing outside and that Shivprakash had come and locked the door from outside. Next morning, on 26.05.2009, they went around looking for Nidhi. When they returned they found a crowd having gathered outside room No. 37. They found Nidhi's body in the room. His sister had been strangulated. When questioned by the police, he informed the police that he suspected Shivprakash. 5.1 Satyendra was cross-examined. In the cross examination, the defence tried to put suggestions on the purchases that Nidhi could have made from Dineshbhai's shop. The suggestions, however, were denied by him. 6. P.W. 8 - Dineshbhai Kalal, the owner of the grocery shop and the person who managed the affairs of the chawl was examined at Ex. 26. In his testimony, this witness stated that he was managing the affairs of the 40 rooms that the chawl had. He owned a shop in the chawl premises. 6. P.W. 8 - Dineshbhai Kalal, the owner of the grocery shop and the person who managed the affairs of the chawl was examined at Ex. 26. In his testimony, this witness stated that he was managing the affairs of the 40 rooms that the chawl had. He owned a shop in the chawl premises. He used to open the shop at 6 in the morning and the shop was closed at 10.30 at night. In the afternoon, from 1 to 4, while he would rest, the shop would be looked after by his wife and his nephew Gherilal. On 24.05.2009, the shop was as usual opened at 6 in the morning. He went for his lunch at 1 with his nephew Gherilal. The shop was left under the care of his wife. He was resting after lunch whereas his nephew left for the shop after his lunch. When he went to the shop in the evening, he came to know that Nirmalaben and others were looking for their daughter Nidhi. Nirmalaben was the occupant of room No. 5. His wife Roshanidevi had informed him that Nidhi had come in the afternoon with Munna's diary. Munna was an occupant of room No. 28. She had come to buy biscuits. Munna's brother Shivprakash had come asking for the keys of room No. 37 under the pretext that he wanted to show the room to someone. The key was returned half an hour later. On 26.05.2009, at 07.30 in the morning, the occupant of room No. 41 Manoj came to his shop and informed him that a foul smell was emanating from room No. 37. Manoj together with Gherilal went with the keys and opened the room. Since the room was not well lit, he fetched a torch. At that time Dineshbhai also reached there. They found Nidhi's body lying on the floor. There were blood stains on her body. The police was informed. Guddu lodged the First Information Report. This witness further stated that he keeps records of the purchases that the occupants make in a separate register. He notes down the name and the date of the purchase made by the occupants. According to this witness, on 24.05.2009, Munna's records showed that there was a purchase of Rs. 20 made on that day. The extract of the register entry was produced at Ex. 27. He notes down the name and the date of the purchase made by the occupants. According to this witness, on 24.05.2009, Munna's records showed that there was a purchase of Rs. 20 made on that day. The extract of the register entry was produced at Ex. 27. He further admitted that the record in the register is maintained from the books/diaries that the customers are given. Such extract of the book is produced at Ex. 28. 6.1 Dinesh was cross examined. He admitted the suggestion made by the defence that Munna had made purchases of Rs. 20/- as per the entry in his book. On being shown the entry of the register he admitted that against the purchase made the word "pin" is written in the register. He further admitted that it was at 6 in the evening that his wife informed him that Nidhi had come in the afternoon with Munna's book and purchased biscuits. He confirmed this from his nephew Gherilal. 7. Gherilal Kalal, P.W. 9 has been examined at Ex. 30. His statement under section 164 of the Code of Criminal Procedure was also recorded on 26.05.2009 at Ex. 24. According to Gherilal, on 24.05.2009, when he was at the shop after his lunch, Nidhi arrived at the shop with the diary of Munna - the occupant of room No. 28. She had come to purchase biscuits. She purchased biscuits for an amount of Rs. 2/-. An entry was made accordingly in Munna's diary. Thereafter, Shivkumar came at 3 in the afternoon asking for keys of room No. 37. He returned the keys at 3.30. Nirmalaben, Nidhi's mother came looking for Nidhi. His aunt informed Nirmalaben that she had seen Nidhi come to the shop with Munna's diary to purchase biscuits. He also reiterated the version as narrated by Dineshbhai regarding finding of Nidhi's body from room No. 37 on 26.05.2009 morning. 7.1 Gherilal was cross examined. He admitted of having entered the purchases made by Munna in the register at Ex. 27. He admitted that the possession of room No. 37 was with Dineshbhai - his uncle and that the key of the room was always with Dineshbhai. 8. Dr. Bhomesh Rajdev, P.W. 6 was examined at Ex. 16. He was the Medical Officer who carried out the postmortem of Nidhi's body. 27. He admitted that the possession of room No. 37 was with Dineshbhai - his uncle and that the key of the room was always with Dineshbhai. 8. Dr. Bhomesh Rajdev, P.W. 6 was examined at Ex. 16. He was the Medical Officer who carried out the postmortem of Nidhi's body. When Nidhi was brought, according to the doctor, her pyjama was removed to the knee. In the postmortem report that this doctor produced at Ex. 17, the injuries which were antemortem were recorded. The same are as under: "17. External Injury (1) Contusion 3 cm x 3 cm, Reddish coloured over Lt. forehead, 3 cm Lt. to midline, 2.5 cm above Lt. eyebrow (2) Abrasion, 2.5 cm x 1.5 cm, reddish coloured on forehead in midline, 1 cm above nasion. (3) Abrasion 1 cm x 1 cm reddish coloured on Lt. forehead 1.5 cm Lt. to midline, just above eyebrow. (4) Lacerated wound, 1 cm x 0.5 cm x tissue deep present outer to Lt. lower lip near Lt. angle of mount margin irregular and contused. (5) Abrasion with underlying contusion of size 2.5 cm x 1 cm over just below Lt. chin, 1 cm Lt. to midline. (6) Abrasion 0.5 cm x 0.5 cm reddish coloured on Rt. side of neck 2 cm Rt. to midline, 2 cm below base of Rt. mandible. (7) Abrasion 0.5 cm x 0.5 cm over Lt. side of neck 5 cm Lt. to midline, 3 cm below base of mandible. (8) Abrasion 0.5 cm x 0.5 cm over Lt. side of neck 1 cm below injury No. 7. (9) contusion 2 cm x 1 cm over Lt. side of neck just above medial end at clavicle 2 cm Lt. to midline Reddish coloured. (10) Contusion 2.5 cm x 1.5 cm over Rt. side of neck, 2 cm Rt. to midline just above medial end of clavicle reddish coloured." 8.1 The doctor recorded that the hymen was ruptured and was bleeding. In the opinion of this doctor, the death was due to strangulation. He further informed that, that rape was committed could not be ruled out. 9. P.W. 11 at Ex. 35 is Dr. Rohit Bhingradiya. He examined the accused Shivprakash. This doctor noticed a few injuries on Shivprakash namely bruises on the left elbow, bruises on the left side of the neck and bruises on the chest. He further informed that, that rape was committed could not be ruled out. 9. P.W. 11 at Ex. 35 is Dr. Rohit Bhingradiya. He examined the accused Shivprakash. This doctor noticed a few injuries on Shivprakash namely bruises on the left elbow, bruises on the left side of the neck and bruises on the chest. He also found marks over his cheeks and over his nose. In the cross examination of this doctor, what comes out is that the injuries that the accused had sustained could be before 24 to 48 hours. The certificate which is produced at Ex. 38 also stated the age of the injury is over 3 days and less than 7 days. 10. The Investigating Officer Sukhdev Bareth was examined as P.W. 19 at Ex. 56. In his examination in chief, he narrated the steps that the prosecution undertook to investigate the offence. The defence has mainly relied on the cross examination of this witness to contend that even according to the testimony of the Investigating Officer enough circumstances were not brought forth to successfully establish the guilt of the accused. Scientific evidence in terms of Serological report is at Ex. 37. 11. It is on the basis of this evidence that the accused has been convicted for the offence under section 302 of the Indian Penal Code. The nature of evidence is circumstantial based on the "last seen together" theory. The two major circumstances against the accused are : "(a) From the testimony of P.W. 8 Dineshbhai and P.W. 9 Gherilal, the fact that Nidhi had come in the afternoon with the diary of the accused's brother to purchase biscuits is established; (b) The mother Nirmalaben's testimony at Ex. 40 when read together with the testimonies of Dinesh and Gherilal are a pointer to the fact that it was Dineshbhai's wife Roshaniben who had seen Nidhi come to the shop and purchase biscuits (c) Entries at Exs. 27 and 28 respectively in the extract of the register and the diary of Munna show that on 24.05.2009 purchases in Munna's name were made (d) The evidence of Gherilal suggests that Shivprakash had come in the afternoon at 3 asking for keys of room No. 37 and returned them at 3.30. Nidhi's body was found the next day from the same room. (e) Injuries were found on Shivprakash's body namely scratch marks and bruises." 12. Nidhi's body was found the next day from the same room. (e) Injuries were found on Shivprakash's body namely scratch marks and bruises." 12. Let us assess the evidence based on these sets of testimonies given by various witnesses. The complainant Guddu in his testimony at Ex. 7 reiterates the version as narrated by him in the complaint at Ex. 8. Nirmalaben was examined as P.W. 13 at Ex. 40. In her evidence, she suggests that when she returned home at around 5 in the evening on 24.05.2009, she found the room locked from outside. She opened the room, questioned her son Satyendra about Nidhi's whereabouts. Satyendra informed her that Nidhi could be playing in the neighbourhood. Shivprakash had come over in the afternoon. He had left informing Satyendra that he was locking the room from outside. When Nirmalaben went looking out for Nidhi, she met Dineshbhai's wife who informed her that she had seen Nidhi in the afternoon come to the shop with Shivprakash's brother's diary. She had purchased biscuits. When Shivprakash was questioned, he admitted to have sent Nidhi with the diary to purchase the biscuits. He, however, subsequently denied Nidhi's whereabouts. 12.1 Satyendra Verma has been examined as P.W. 15 at Ex. 43. The version that Nirmalaben narrates stands corroborated by his testimony. He also in his version states that after lunch both Nidhi and he had slept in the room. While he was asleep, Shivprakash came over and informed him that he should lock the room from inside to which Satyendra asked Shivprakash to bolt the door from outside which Shivprakash did. Thereafter, they had searched Nidhi everywhere but her body was finally found from room No. 37. 12.2 The owner of the shop Dineshbhai who also used to manage the affairs of the chawl was examined as P.W. 8 at Ex. 26. His testimony reveals that he would open the shop at 6 in the morning. In the afternoon, between 1 and 4, while he would rest, the shop would be looked after by his wife and his nephew Gherilal. On 24.05.2009, his wife and his nephew were sitting at the shop in the afternoon. When he went back to the shop in the evening, his wife Roshanidevi informed him that Nidhi had come in the afternoon with Shivprakash's brother Munna's diary and had purchased biscuits. On 24.05.2009, his wife and his nephew were sitting at the shop in the afternoon. When he went back to the shop in the evening, his wife Roshanidevi informed him that Nidhi had come in the afternoon with Shivprakash's brother Munna's diary and had purchased biscuits. Soon thereafter Shivprakash came over at 3 asking for keys of room No. 37. The keys were returned half an hour later. At 7.30 in the morning of 26.05.2009 on being informed by the next room occupant of a foul smell emanating from room No. 37, the room was opened and they found Nidhi's body. He further confirms to be maintaining a register, the extract of which was produced at Ex. 27. The extract of the register would show that purchases were made on 24.05.2009 in Munna's name. The extract of the register at Ex. 27 was, according to this witness, based on the diaries that each customer would have. Ex. 28 is the diary extract of Munna which is produced which too shows that purchases were made on 24.05.2009. 12.3 The defence would, however, contend that on the perusal of the entries of this diary nowhere would the nature of purchases suggest the purchase of "Parle" biscuits. What the register would show was purchases of "pin" and other articles. 12.4 P.W. 9 - Gherilal Kalal's testimony at Ex. 30 would also reveal that on 24.05.2009 while he was at his shop in the afternoon, Nidhi had come with Munna's diary and had purchased biscuits. He had given her a packet of biscuit. Immediately thereafter, Shivprakash followed asking for keys of room No. 37. The keys were returned immediately half an hour later. In the evening, Nirmalaben had come over looking for Nidhi. His aunt had informed her that she had seen Nidhi coming with a diary of Munna and had purchased biscuits. 13. When all these testimonies are appreciated in tandem what emerges from these witnesses' narration is that : "(I) Nidhi had gone to play outside in the afternoon of 24.05.2009. (II) Nidhi had come over to Dineshbhai's grocery shop with Shivprakash's brother Munna's diary, the occupant of room No. 28. Gherilal, Dineshbhai's nephew who was at the shop in the afternoon had given biscuits to Nidhi. (II) Nidhi had come over to Dineshbhai's grocery shop with Shivprakash's brother Munna's diary, the occupant of room No. 28. Gherilal, Dineshbhai's nephew who was at the shop in the afternoon had given biscuits to Nidhi. That Gherilal and his aunt Roshanidevi would manage the shop in the afternoon between 1 and 4 was confirmed through the testimony of Dinesh P.W. 8. (III) Nirmalaben in her testimony has referred to being informed by Roshanidevi - Dineshbhai's wife that she had seen Nidhi come to the shop asking for biscuits with a diary of Munna. (IV) The purchases made on 24.05.2009 in Munna's name is supportive evidence which has come on record from the extract of the diary at Ex. 28 and the register at Ex. 27. (V) Soon after Nidhi came to the shop with the diary to purchase the biscuits, Shivprakash followed asking for keys of room No. 37. The keys of room No. 37 were returned by Shivprakash half an hour later at about 3.30 in the evening." 14. Therefore, from the time when Nidhi went missing on 24.05.2009 to the time in the evening that she was being looked out for, if the chain of events that unfold is appreciated in the context of the testimonies of these witnesses, what comes out is that Nidhi who was playing outside was found with the diary of Munna, Shivprakash's brother. She purchased biscuits in the afternoon. Shivprakash followed asking for keys of room No. 37. The keys were returned half an hour later. Room No. 37, though was in the exclusive possession of Dineshbhai, what comes out from the evidence of his testimony is that soon before Nidhi went missing, Shivprakash had asked for keys of room No. 37. The keys were returned half an hour later. Nidhi's body was found on 26.05.2009 at 07.30 in the morning from room No. 37. 15. These links are complete and establish the fact that Nidhi who had gone missing on 24.05.2009 was "last seen together" with the diary of Munna. The link of the chain stands completed by the testimonies of Dinesh and Gherilal who further add that it was Shivprakash who had soon thereafter taken keys of room No. 37 for half an hour. The body of Nidhi was found from the same room in the morning of 26.05.2009. 16. Dr. Rohit Bhingaradiya, P.W. 11 at Ex. The link of the chain stands completed by the testimonies of Dinesh and Gherilal who further add that it was Shivprakash who had soon thereafter taken keys of room No. 37 for half an hour. The body of Nidhi was found from the same room in the morning of 26.05.2009. 16. Dr. Rohit Bhingaradiya, P.W. 11 at Ex. 35 had examined Shivprakash. The certificate at Ex. 38 reveals that Shivprakash had scratch marks on his cheeks and his nose. He also had bruises on his chest. Even through the evidence of Nirmalaben, what comes out is that when she questioned Shivprakash on the nature of injuries he sustained, he was not in a position to explain such injuries. He only pretended to have sustained the injuries while scratching his body with his nails. Shivprakash has not come forth to explain the nature of injuries that he sustained. 17. Having put these circumstances together, the links in the chain stand complete. Based on these circumstantial evidence, the only conclusion that we can arrive at is that the guilt of the accused for having committed an offence under section 302 of the Indian Penal Code stands established. 18. The appeal is hereby dismissed. The judgement and order passed by the 6th (Adhoc) Additional Sessions Judge, Surat is confirmed. R & P to be transferred to the trial court forthwith.