JUDGMENT M. G. Giratkar, J. - The appellant/accused has filed the present appeal against the impugned judgment of conviction in Sessions Trial No. 44/2018 passed by the Additional Sessions Judge, Buldana. 2. The case of the prosecution against the appellant in short is as under :- (i) Accused married with Raju Gaikwad prior to 12 years of the incident. She had some love affair and therefore, there was dispute between husband and wife. Accused started residing separately since ten months prior to the incident. Her children i.e. deceased son Roshan and daughter Roshani were residing with her husband. Both children were residing at Village Merkhed with their grandparents. They used to go to school situated at Village Choutha. (ii) On 26-3-2018, accused went to the school in morning. She met with her son and daughter, namely, Roshan and Roshani. She had taken Roshan with her. Since then, Roshan had not returned to the house of his grandparents. Roshani returned home and informed to her grandparent that accused had taken Roshan. On 28-3-2018, complainant P.W. 1 came to know that dead body of Roshan was found in well. Report was lodged by him in the police station. In the report, suspicion was not raised against the accused by the complainant. Simple report was lodged stating that deceased died in the well. (iii) On 20-4-2018, complainant lodged another report stating that he came to know from one relative that accused had thrown the deceased in well and, therefore, he made allegations against the accused. On his complaint, offence punishable under Section 302 of the Indian Penal Code was registered against the accused. Accused was arrested. Accused had also lodged report against her husband and in-laws making counter allegations. (iv) The dead body of deceased Roshan was found on 28-3-2018. Postmortem was conducted by the Medical Officer. As per the opinion of Medical Officer, cause of death was asphyxia due to drowning. As per his opinion, deceased might have died 24 hours before the time of postmortem. After complete investigation, charge-sheet was filed. (v) The trial Court framed charge. Prosecution has examined 11 witnesses. Statement of accused under Section 313 of the Code of Criminal Procedure was recorded. As per his opinion, deceased might have died 24 hours before the time of postmortem. After complete investigation, charge-sheet was filed. (v) The trial Court framed charge. Prosecution has examined 11 witnesses. Statement of accused under Section 313 of the Code of Criminal Procedure was recorded. After hearing the prosecution and defence, leaned Sessions Judge convicted the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced her to suffer imprisonment for life and to pay fine of Rs. 2,000/-, in default to suffer simple imprisonment for two months. 3. Heard learned Advocate Shri Thakkar for the appellant/ accused. He has pointed out that there is no material evidence to connect the accused with the crime. The prosecution has to prove guilt of accused beyond reasonable doubt. Learned Advocate has submitted that deceased was taken on 26-3-2018 by the accused. As per the opinion of Doctor, deceased might have died on 27-3-2018. Nobody was examined by the prosecution to show that before the incident, anybody had seen the accused taking the deceased towards well. Learned Advocate has pointed out evidence of P.W. 1 and submitted that though P.W. 1 has stated that Deepak Laxman Gaikwad saw the accused taking deceased towards well, but Deepak Laxman Gaikwad is not examined by the prosecution. Learned Advocate has submitted that while convicting the accused on the basis of circumstantial evidence, the circumstances must be strong and should be of conclusive nature. The circumstance in this case is only of "last seen" and it is not proved. At last, learned Advocate has submitted that the prosecution has failed to prove guilt of accused, therefore, prayed to acquit the accused. 4. Heard learned Additional Public Prosecutor Mrs. Jachak for the State/respondent. She has submitted that the evidence of P.W. 1 - complainant is supported by P.W. 4 Roshani and teachers of the school. They have stated that on 26-3-2018, accused had taken the deceased with her and since then deceased had not returned. Accused was having love affair with one Surendra More and she stayed separately with Surendra More. Accused had thrown the deceased in well because he was hurdle in their love affair. At last, she submitted that the judgment passed by the Additional Sessions Judge is perfectly legal and correct and therefore, appeal be dismissed. 5. Accused was having love affair with one Surendra More and she stayed separately with Surendra More. Accused had thrown the deceased in well because he was hurdle in their love affair. At last, she submitted that the judgment passed by the Additional Sessions Judge is perfectly legal and correct and therefore, appeal be dismissed. 5. There is no dispute that only on the basis of circumstance of last seen, trial Court has convicted the accused. Circumstance of last seen can be taken into consideration by the Court but it should be proved beyond reasonable doubt. In case of circumstantial evidence, Court should be very cautious while convicting the accused. To convict the accused on the basis of circumstantial evidence, the Hon''ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 has laid down five guiding principles which are known as pachasheel and those are as under : (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established, (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. 6. In the present case, there is only one circumstance in respect of last seen. P. W. 4 Roshani, P.W. 3 Head Master and class teachers have stated in their evidence that on 26-3-2018, accused had taken the deceased with her in the morning. P.W. 1 has stated in his evidence that his granddaughter returned home and informed that her mother had taken the deceased on 26-3-2018. Dead body of deceased was found in well on 28-3-2018. As per the evidence of Medical Officer P.W. 10, cause of death was asphyxia due to drowning and death was caused before 24 hours preceding the postmortem. As per his evidence, postmortem was conducted in the evening of 28-3-2018. Dead body of deceased was found in well on 28-3-2018. As per the evidence of Medical Officer P.W. 10, cause of death was asphyxia due to drowning and death was caused before 24 hours preceding the postmortem. As per his evidence, postmortem was conducted in the evening of 28-3-2018. Therefore, it can be said that death of deceased might be on 27-3-2018 in the evening. There is time gap between the incidence of taking of the deceased by the accused from the school and the death of deceased. 7. In the evidence on the point of "last seen", time plays very important role. The prosecution has to prove the proximity of time. In the present case, prosecution has failed to prove that soon before the death, accused was found with deceased. P.W. 1 has stated in his evidence that Deepak Laxman Gaikwad stated to him that he saw accused and Roshan while going towards the well. Said Deepak Gaikwad is not examined by the prosecution. Admittedly, Deepak Laxman Gaikwad is the relative of P.W. 1. Therefore, there was no reason for not examining said Deepak Laxman Gaikwad. Hence evidence of P.W. 1 that he came to know from Deepak is not reliable. 8. P.W. 1 has raised doubt stating that deceased was hurdle in love affair of accused and therefore, she has committed his murder. It is pertinent to note that both the children were residing with her husband/ father-in-law. She was residing separately since last 10 months from the time of incident in other village. As per the evidence of P.W. 4 Roshani, accused always used to visit their school. She used to give her children sweet and money also. This itself shows that she had love and affection for her children. 9. Roshan was aged about 8/9 years. Except from making wild accusations that the appellant has committed murder of Roshan as he was hurdle in her love affair with Surendra More, the prosecution has not explained as to how Roshan was a hurdle in the love affair. It is undisputed fact on record that Roshan and his elder sister Roshani were living separately with their father and grandparents. Thus we find that the prosecution has failed to prove mens rea. 10. It is undisputed fact on record that Roshan and his elder sister Roshani were living separately with their father and grandparents. Thus we find that the prosecution has failed to prove mens rea. 10. Learned Advocate for accused has submitted that the prosecution has failed to prove the presence of accused before the incident near the well and, therefore, burden cannot shift on the accused to prove her innocence. In support of his submission, he pointed out decisions in the cases of (1) Vikramjit Singh alias Vicky Vs. State of Punjab, (2006) 12 SCC 306 and (2) Sunil s/o Latari Khuje Vs. The State of Maharashtra, (2016) AllMR(Cri) 2212 . 11. Trial Court has recorded its findings, holding that the accused had taken the deceased with her on 26-3-2018 and she has not explained as to where deceased had gone and the fact which is in the special knowledge of the accused show her guilty mind. 12. Except the fact that deceased was taken by the accused on 26-3-2018, there is nothing on record to show that accused is author of crime. The deceased might have died on 27-3-2018 in the evening. As per the opinion of Doctor, deceased died 24 Hours before the time of postmortem. Postmortem was conducted on 28-3-2018 in the evening. Prosecution has miserably failed to prove the presence of accused near the spot of incident. Therefore, burden cannot shift on the accused. First of all, it is the burden of the prosecution to prove the guilt beyond reasonable doubt. Hon''ble Apex Court in the case of Vikramjit Singh alias Vicky Vs. State of Punjab (supra) has held that "burden of proving fact especially within knowledge, does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same subject to certain statutory exceptions." 13. In the case of Sunil s/o Latari Khuje Vs. The State of Maharashtra (supra), the Division Bench of this Court has held in paragraph nos. 11 and 12 as under :- 11. It would not be necessary to consider provisions of Section 106 of the Evidence Act, 1872. In the case of Sunil s/o Latari Khuje Vs. The State of Maharashtra (supra), the Division Bench of this Court has held in paragraph nos. 11 and 12 as under :- 11. It would not be necessary to consider provisions of Section 106 of the Evidence Act, 1872. As per Section 106 of the Evidence Act, 1872, when any fact is especially within the knowledge of any person, then the burden of proving that fact is upon the said person. It is well settled that Section 106 of the Evidence Act, 1872 does not relieve the prosecution of the burden of proving its case beyond all reasonable doubt. It is only when the prosecution case has been proved that the burden with regard to such facts which are within the special knowledge of the accused could be shifted on the accused for explaining the same. Reference in this regard can be made to the judgment of the Hon''ble Supreme Court in Vikramjit Singh Vs. State of Punjab, (2006) 12 SCC 306 : [2007 ALL SCR 2094] . In Sharad Kondiba Walke (supra), the Division Bench while considering aforesaid provisions held that if the initial presence of the accused has not been established by the prosecution, the question of invoking the provisions of Section 106 of the Evidence Act, 1872 would not arise. It is only after initial burden of establishing the presence of the accused at the site of the crime is discharged that the provisions of Section 106 of the Evidence Act, 1872 could be applied. Similar view has been taken by the Division Bench in Subhash Gorakh Khankal (supra). 12. Thus, from the aforesaid, once it is found that the prosecution has failed to show the presence of the appellant at some time proximate to the occurrence of the crime, the provisions of Section 106 of the Evidence Act, 1872 cannot be applied. Moreover, the present case being based on circumstantial evidence, each circumstance leading to the guilt of the appellant is required to be proved independently and beyond reasonable doubt. The presence of the appellant near the scene of the incident having not been satisfactory proved and the same being one of the major links in the chain of circumstances, it will have to be held that the prosecution has failed in proving the guilt of the appellant. The presence of the appellant near the scene of the incident having not been satisfactory proved and the same being one of the major links in the chain of circumstances, it will have to be held that the prosecution has failed in proving the guilt of the appellant. The evidence on record is not sufficient to sustain the conviction of the appellant. He would be entitled for benefit of doubt. 14. In the present case, the prosecution has failed to prove proximity of time when the accused was taken and when death occurred. Except the evidence that accused had taken the deceased on 26-3-2018 from the school in the morning, there is nothing on record to connect the accused for the offence charged against her. Moreover, evidence on record shows that the accused had been meeting Roshan and Roshani in school and had been giving sweets and other eatables to them which leads to inference that accused had love and affection for the children. Roshan going with the accused from school also does not lead to the inference that the accused had taken Roshan along with her with intention of committing his murder. Roshan (son) going with the accused (mother) from school is not unnatural. On the contrary, the conduct of the accused in taking Roshan from school is normal and had it been tented with any malicious intention of committing murder of Roshan, she would not have taken Roshan along with her from school. Nobody has seen the accused near the spot of incident and, therefore, burden cannot shift on the accused to prove her innocence. The prosecution has failed to discharge its burden to prove the guilt beyond reasonable doubt. Prosecution has miserably failed to prove guilt of accused beyond reasonable doubt. Trial Court has wrongly relied on last seen circumstance and convicted the accused. The appellant/accused is entitled for acquittal. Hence, we pass the following order. (i) Criminal Appeal is allowed. (ii) Judgment passed by the Sessions Court, Buldana in Sessions Trial No. 44/2018 on 29-5-2019 convicting the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code is set aside. (iii) Appellant/accused Sau. Shalini w/o Raju Gaikwad is acquitted of the charge of commission of the offence punishable under Section 302 of the Indian Penal Code. She be set at liberty, if not required in any other case or crime. (iii) Appellant/accused Sau. Shalini w/o Raju Gaikwad is acquitted of the charge of commission of the offence punishable under Section 302 of the Indian Penal Code. She be set at liberty, if not required in any other case or crime. (iv) Fine amount paid by the appellant/ accused be refunded to her. (v) Muddemal property, if any, be destroyed after appeal period is over.