testimonies of PWs 1 to 3 for invoking the last seen theory; and
(ii) invoking Section 106 of the Evidence Act.
15. It is needless to point out that for the prosecution to
successfully invoke Section 106 of the Evidence Act, they must first
establish that there was “any fact especially within the knowledge of
the” appellant. This can be done by the prosecution only by proving
that the victim was last seen in the company of the appellant. To
establish this last seen theory, the prosecution relies upon the
evidence of PWs 1 to 3. PWs 1 and 2 claim to have seen the
appellant taking away the girl at 04:00 p.m on 08.03.2012. PW3
claims to have seen the appellant leaving the sugarcane field after
about halfanhour. Therefore, according to the prosecution, the
burden of showing what happened to the girl was heavily upon the
appellant/accused.
16. Hence we have to see whether the evidence of PWs 1 to 3 was
trustworthy and same proved the last seen theory. Both the
Sessions Court as well as the High Court have found the evidence of
PWs 1 to 3 to be cogent and trustworthy. The contradictions
pointed out by the defence were held by both the Courts to be
9
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