Bombay High Court
Eknath Krishna Kadam vs The State Of Maharashtra on 24 April, 2025
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2025:BHC-AS:18471-DB
901-APEAL-1007-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1007 OF 2018
Eknath Krishna Kadam
Age: 27 years, Occ.:
Residing at Room No.3, Nidhi Niwas,
Siddharath Nagar, Gaondevi Road,
Bhandup (W), Mumbai
(At present accused lodged in Nashik ....Appellant/Applicant
Road Central Prison, Nashik) (Orig. Accused)
Versus
The State of Maharashtra
Through Police Inspector Versova Police ...Respondent
Station, Mumbai C.R. No.221/2008. (Orig. Complainant)
Mr. Pawan Mali, (Appointed through Legal Aid Services), for the
Appellant/Applicant.
Mr. K. V. Saste, Additional Public Prosecutor, for Respondent-State
CORAM : REVATI MOHITE DERE &
DR. NEELA GOKHALE, JJ.
RESERVED ON : 9th APRIL 2025
PRONOUNCED ON : 24th APRIL 2025
JUDGMENT (Per Dr. Neela Gokhale, J.) :
–
1. The Appellant assails the Judgment and Order dated 10 th
December 2009 passed by the Ad-hoc Additional Sessions Judge,
Sewree, Mumbai in Sessions Case No. 778 of 2008. By the impugned
Judgment and Order, the Appellant stands convicted for the offences
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punishable under Sections 302 and 397 of the Indian Penal Code
(‘IPC‘), 1860. For the offence punishable under Section 302 of the
IPC, for committing the murder of Anil Vaswani, he is sentenced to
suffer imprisonment for life and pay fine of Rs. 300/- in default to
suffer rigorous imprisonment (‘RI’) for three months. For the offence
punishable under Section 397 of the IPC, he is sentenced to suffer RI
for seven years and pay fine of Rs. 400/-, in default to suffer RI for
four months. Both the sentences are to run concurrently. The
Appellant is in jail from 11 th August 2008 and is held to be entitled to
a set off for the said period already undergone.
2. The facts leading to the present Appeal are as follows:
2.1 The Complainant, one Harsha Vaswani (PW/1) was
residing with her two younger sisters and father, Anil Vaswani
(deceased) at Khoja Lane, Versova, Andheri, Mumbai. Her mother is
pre-deceased. Harsha and her sisters were employed as crowd artists
in films. They were in the process of changing residence as they had
found a place with lesser rent. Anil Vaswani had engaged the
Appellant to help in packing the household items for the purpose of
shifting to the new house.
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2.2 On 30th July 2008, Appellant came to Anil’s House at
11:30 pm. The Complainant, her sisters, father and the Appellant
were packing household articles till 4:00 a.m. on 31 st July 2008. They
went to sleep in the morning; the sisters in one room and the deceased
and Appellant in another. At 2:00 pm., the sisters awoke and after
getting ready went out of the house at 4:30 pm. At that time, the
Appellant and the deceased were alone in the house, busy packing.
While leaving the house, the Complainant met the landlord who
informed her that he would return the deposit on the following day.
While proceeding to Goregaon for work, the Complainant called her
father i.e., the deceased to convey the assurance of the landlord
regarding return of deposit but the deceased neither answered his
mobile phone nor the landline.
2.3 Upon returning home at 8:30 pm., the sisters found the
house unlocked and unlit. The Complainant switched on the light in
the bedroom. She found almirah doors open and articles scattered.
The ornament boxes were empty and a mobile phone was missing.
There was no sign of their father nor the Appellant.
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2.4 Upon switching the light in the hall, the Complainant saw
red colour stains in the north-east corner in the hall and a rolled
mattress near the wall. She moved the mattress and found her father
lying unconscious with a head injury. The sisters were frightened and
the Complainant, accompanied by one of the sisters, Jimmy went to
the Versova Police Station and lodged a complaint. The police
recorded the statement of the Complainant and registered the FIR
bearing C.R No.221/2008 for offences punishable under Sections 307,
2.5 The police went to the spot, conducted spot panchnama in
the presence of the Panchas. Inquest Panchnama was prepared and the
body was sent for post-mortem examination. Chemical Analysts
visited the spot and prepared panchnama in the presence of Panchas.
On 11th August 2008, police received information that the Appellant
was travelling to Pune in an Asiad bus. A trap was set with Panchas in
tow. At 12:05 pm., the Appellant was apprehended by the police in
the presence of Panchas. Upon searching the Appellant, two
handkerchiefs were found in his bag containing gold ornaments
namely two gold chains, eight gold rings, necklace, six pendants, ear-
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rings, ear tops, gold metal Ganapati frame and paduka. One mobile
phone of Nokia company was also found. One State Transport bus
ticket was found in his wallet. The articles were seized by the police in
presence of Panchas. The Appellant was arrested.
2.6 On 12th August 2008, at the behest of the Appellant,
various gold ornaments were recovered from several goldsmith shops.
Memorandum panchnamas were prepared in the presence of Panchas
of the said seizure. Thereafter, at the behest of the Appellant, on 23 rd
August 2008 his clothes were also recovered. A panchnama was
prepared of seizure of the said clothes in presence of the Panchas. On
2nd September 2008, identification parade of the Appellant was
conducted at the Arthur Road Jail. He was identified by the witnesses.
On 3rd September 2008, the Complainant identified the seized gold
ornaments in presence of Panchas and panchnama was prepared.
Thus, upon completion of the investigation, charge-sheet was filed
against the Appellant before the Metropolitan Magistrate, Railway
Mobile Court, Andheri, Mumbai, who committed the case to the
Court of Sessions on 24th November 2008.
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2.7 Charges were framed against the Appellant on 19 th January
2009 for offences punishable under Sections 302 and 397 of the IPC.
The Appellant entered his plea of ‘not guilty’ and claimed to be tried.
2.8 In support of their case, the prosecution examined 17
witnesses. The defence did not lead any evidence. The statement of
the Appellant under Section 313 of the Code of Criminal Procedure
(‘Cr.PC‘), 1973 was recorded. The defence of the Appellant was of
total denial, innocence and false implication. However, vide Judgment
and Order dated 10th December 2009, the learned Ad-hoc Additional
Sessions Judge, Sewree, convicted the Appellant and sentenced him as
noted in paragraph No.1 above.
3. Mr. Pawan Mali, learned counsel appointed from the
Legal Aid Services Panel appeared for the Appellant and Mr. K. V.
Saste, learned Additional Public Prosecutor represents the State.
4. The prosecution’s case is based on circumstantial evidence,
essentially with regard to the last seen theory. According to the
prosecution the testimony of PW/1 clearly establishes that the
deceased and the Appellant were the only two people, last seen in the
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house of the deceased. When PW/1 and her sisters left the house at
4:30 pm. on 31st July 2008, the Appellant and the deceased were
present in the house, packing the household articles. Upon their return
at 8:30 pm. they found their father unconscious in the house and
there was no sign of the Appellant. The house was found to be
ransacked and the ornaments and jewelry were missing. Eventually,
the same were found on the person of the Appellant when he was
apprehended within the next 10 days. It is thus the prosecution’s case
that the time gap between the point of time when the Appellant and
the deceased were last seen together and alive and the discovery of
death of the deceased is so small that the possibility of any person
other than the Appellant having committed the said crime is almost
impossible.
5. The law in respect of the last seen theory as part of the
circumstantial evidence is well settled. ‘Last seen’ as a link in the
chain of circumstantial evidence, would suggest existence of oral
testimony of at least one witness to establish that the deceased was last
seen in the company of the Appellant/Accused. In this context, it is
relevant to refer to the following decisions of the Apex Court. In
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State of U.P. v/s Satish1, the Apex Court in paragraph 22 of the said
decision held as thus:-
“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….” .
(emphasis supplied)
6. This position was reiterated by the Apex Court in Hatti
Singh v/s State of Haryana 2, and also in the recent decision of the
Apex Court in Krishan Kumar and Another v/s The State of Haryana 3.
Although, in Krishan Kumar (Supra) the accused was acquitted on the
facts of that case, the legal position relating to the last seen theory is
followed consistently.
7. The Apex Court has also summarized key principles which
act as a guide for Courts to come to a conclusion with regard to the
1 (2005) 3 SCC 114,
2 (2007) 12 SCC 471
3 2023 INSC 679
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guilt of an accused in cases which are solely dependent on
circumstantial evidence. The said principles are referred to as
‘Panchsheel Principles’. In the case of Karakkattu Muhammed Basheer
v/s State of Kerala4, the Apex Court followed the principles set out in
the case of Ramreddy Rajesh Khanna Reddy and Another v/s State of
A.P.5. Paras 26 and 27 of the said decision read thus:-
“26. It is now well-settled that with a view to base a
conviction on circumstantial evidence, the prosecution
must establish all the pieces of incriminating
circumstances by reliable and clinching evidence and
the circumstances so proved must form such a chain of
events as would permit no conclusion other than one
of guilt of the accused. The circumstances cannot be on
any other hypothesis. It is also well-settled that
suspicion, however, grave may be, cannot be a
substitute for a proof and the courts shall take utmost
precaution in finding an accused guilty only on the
basis of the circumstantial evidence. [See Anil Kumar
Singh v. State of Bihar (2003) 9 SCC 67 and Reddy
Sampath Kumar v. State of A.P. (2005) 7 SCC 603].
27. The last-seen theory, furthermore, 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
courts should look for some corroboration.”
8. We return to the facts in the present case applying the
4 (2024) 10 SCC 813
5 (2006) 10 SCC 172
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settled law pertaining to a case of circumstantial evidence and more
particularly based on the last seen theory. Mr. Mali, took us through
the testimonies of all the witnesses. He submits that considering the
statements of the witnesses, no offence against the Appellant is proved
beyond all reasonable doubt. According to him, the identification
parade was not conducted in consonance with the prescribed rules.
He submits that the first and the foremost question that ought to have
been asked by the Special Executive Officer (PW/9) conducting the
Test Identification Parade (TIP) is whether the witnesses knew the
Appellant prior to the date of the incident. He also submits that the
dummies that were called for the parade were not similar in nature as
to the height, age and complexion of the Appellant. He, thus, objects
to the conduct of the TIP. Secondly, he submits that since PW/1 had
emotional attachment to the ornaments, she claimed to identify the
same even without being mixed with similar type of ornaments at the
time of their identification. He also argued that the Panch to the
recovery of clothes of the Appellant (PW/2) stated in his cross-
examination that the police showed him the clothes kept in the plastic
bag. Thus, Mr. Mali, submits that the evidence to the recovery of the
clothes is not of sterile quality. He, thus, submits that the trial Judge
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erroneously held the Appellant guilty of the offence of murder though
mens rea of the Appellant was not proved. The guilt of the Appellant
is not established beyond all reasonable doubt and thus Mr. Mali,
urges this Court to allow the Appeal.
9. Mr. Saste, learned Additional Public Prosecutor (Addl.P.P.)
also took us through the testimonies of all 17 witnesses. He submits
that the prosecution has established all the pieces of incriminating
circumstances by reliable and cogent evidence and the circumstances
so proved by the prosecution form a chain of events, which do not
permit any other conclusion than that which points to the guilt of the
Appellant. He, thus, urges the Court to dismiss the Appeal and
confirm the impugned Judgment and Order.
10. We have heard both the counsels and perused the evidence
with their assistance. The evidence of the Complainant (PW/1) is clear
and clinching. She specifically stated that on 31 st July 2008, when she
along with her sisters left the house at about 4:30 p.m., her father
(deceased) and the Appellant were in the house. Immediately
thereafter when she called her father to inform him regarding return
of deposit by the landlord, her father failed to respond either on his
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mobile or the landline. Thereafter, when they returned at about 8:30
pm, they found the front door of the house unlocked, lights switched
off, almirahs open, articles scattered around the house and ornament
boxes empty. She categorically stated that when she removed the
mattress from the corner, she saw her father with a bleeding injury on
his head. PW/1 also gave a detailed description of the missing jewelry
in her statement. When the jewelry was recovered from the Appellant
she identified the same clearly. She also identified the Appellant in
Court, by pointing to him. In her cross-examination, nothing material
could be elicited from her. There were no suggestions regarding the
statements of PW/1 regarding identification of the jewelry nor the
time gap between the period when she and her sisters left their house
and when they returned to find their father dead.
11. PW/1 has thus established that her father i.e. the deceased
and the Appellant were last seen together and alive in their house
when she and her sisters left for work. This was at about 4 pm and
they returned to find him dead at 8.30 pm. The time gap in the said
duration is minimal. There is neither any explanation or suggestion
put forth by the defence to assail the testimony of PW/1 on this point.
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Thus, the circumstance relating to last seen stands proved. The said
evidence has been duly corroborated with other evidence by leading
legal, cogent and admissible evidence. The said evidence is discussed
hereunder.
12. PW/2, the Panch to the recovery of the clothes stated
clearly that he along with police and the Appellant went to a public
toilet, at the behest of the Appellant, near Masandevi temple. The
Appellant took out a plastic bag from a kachcha hut adjacent to the
public toilet. The bag contained half white t-shirt and black full pant.
There were blood stains on left knee portion of the full pant and on
the abdomen as well as chest portion of the t-shirt. He has
categorically stated that the police seized these clothes belonging to
the Appellant in his presence. He signed the seizure memo and
identified the same. Mr. Saste, drew our attention to the C.A. Report.
The C.A. Report at Exhibit 58 is that of the articles found at the spot
including pillow covers, mattress, bed sheet, metallic pipe of ‘L’ shape,
etc. which are blood stained. The result of analysis by the FSL reveals
the blood group to be ‘B Positive’. Exhibit 59 is the C.A. Report
pertaining to the blood stained clothes of the Appellant. The blood
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group of the blood found on these clothes is also found to be ‘B
positive’. The defence has not assailed the FSL report.
13. Mr. Mali raised some hue and cry regarding the statement
of PW/2 in the cross-examination where he says that the police
showed him the clothes kept in the plastic bag. However, Mr. Mali
conveniently bowdlerizes the sentence, which says that the clothes
showed to the witness by the police were taken out by the Appellant
himself. Hence, nothing turns on the purported lapse as claimed by
Mr. Mali and the testimony of PW/2 also proves the seizure of clothes.
14. PW/3 is the owner of the jewellery shop ‘Vandana
Jewellers’. According to him, the police brought the Appellant to his
shop and asked him whether the Appellant had sold one gold chain
and one gold ring to him. This witness identified the gold chain and
the gold ring sold by the Appellant to him and the receipt which was
given in lieu thereof. He stated that on 2 nd August 2008, the Appellant
had gone to his shop to sell jewelry. This witness’s father told him to
bring his mother. His mother came and the jewelry changed hands.
This jewelry was identified by PW/1 to be that belonging to her
family. Thus, the jewelry recovered from the goldsmith’s shop was the
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same, which was sold by the Appellant after stealing the same from the
Vaswani house.
15. PW/4 is the owner of a jewelry shop called ‘Sadhan
Jewellers’. He also identified the Appellant and said that he
mortgaged one gold chain for Rs.20,000/-. He handed over the gold
chain to the police. This chain was also identified by PW/1. There
was no suggestion to contradict the statement of this witness in the
cross-examination. Nothing contradictory was elicited from his
testimony in the cross.
16. PW/5 is a Panch to the statement of the Appellant
regarding recovery of the jewelry from the goldsmiths’ shop. He has
testified to accompanying the police and the Appellant to Uttam
Departmental Stores, Shivajinagar, Pune where some of the jewelry
was mortgaged. The same was seized and sealed by the police in his
presence. He has proved the panchnama. Once again, there was no
suggestion to contradict the statements of PW/5 in the cross-
examination and have gone unrebutted. PW/6 is the owner of the
Departmental Store from where the pledged/mortgaged jewelry was
recovered. He identified the Appellant as the person who mortgaged
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the said jewelry. He stuck to his statements in his deposition and
nothing material and contradictory was brought out in the cross-
examination.
17. PW/7 is the Panch to the spot panchnama. He identified
the Appellant. However, this witness turned hostile and was thus
cross-examined by the prosecution. Even then this witness deposed to
the Appellant taking the police to the goldsmiths’ shop where he sold
the jewelry and which jewelry was accordingly recovered. The said
jewelry and the Ganesh idol were identified by PW/1.
18. PW/9 is the Special Executive Officer who conducted the
identification parade. The identification parade panchnama was
proved and exhibited as Exhibit – 39. In his cross-examination, he
narrated the sequence of the TIP. However, he did say that he did not
ask the witnesses as to whether they knew the Appellant/Accused prior
to the date of the incident. There is strong corroboration in the
statements of all the other witnesses identifying the Appellant and the
mere fact that this witness did not ask the witnesses participating in
the TIP, whether they knew the Appellant prior to the date of the
incident, fails to make any dent in the evidence against the Appellant.
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19. The statements of PW/12 i.e. the Police Officer on duty at
the Versova Police Station during the night of the incident and PW/13,
another Police Inspector who recorded the statements of PW/1 and
her sisters have also gone unrebutted. PW/14 is the officer who
apprehended the Appellant at the Asiad Bus Stand in the presence of
two Panchas. He has narrated the entire incident in graphic detail
including the recovery of gold ornaments from the handkerchief of
the Appellant from his bag. Once again, nothing was elicited from his
cross-examination. PW/15, is the Police Officer who sent the seized
articles for Chemical Analysis. He also deposed as to the discovery of
the place where the clothes of the Appellant were kept and recovered
at the behest of the Appellant. His cross-examination was also without
any rebuttal.
20. Another important piece of evidence is the post-mortem
report, which is at Exhibit-43. A plain reading of the post-mortem
report shows as many as 19 injuries. There is a contusion 4X3 cm,
round diffuse, irregular edges on the right forehead, 3 cm above the
eyebrow. There is also a 4X2 cm contusion on the forehead, incised
like laceration of 2 ½ X 1 X ½ cm on the forehead along with another
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4 ½ X 1 X ½ cm injury on the forehead. The scalp injuries comprise
of 8X2X2 cm laceration of avulsion type on the frontal region of the
forehead indicating extensive abrasion crushing the hair bulb and
depressing the frontal bone. There is also seen a star shaped laceration
of 3 ½ X 1 ½ X ½ cm on the vertex region. There is again a localized
depression of the bone. There are also skull and vault injuries. All the
injuries mentioned in the postmortem report are of grievous nature
and it is clear that they were intended and directed at the deceased.
The nature of injuries also indicate a brutal assault. In this context,
the intention of the assaulter to cause death is quite clear.
21. Thus, the aforesaid evidence adduced by the prosecution
clearly forms a chain of circumstances, each pointing to the complicity
of the Appellant in the commission of the offence. In addition, there
is also no explanation offered by the defence as to how and when the
Appellant parted company with the deceased during those four hours.
The principle of law in this regard is well settled. The provisions of
Section 106 of the Indian Evidence Act, 1872 (IE Act) itself are
unambiguous and categoric. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and when he parted
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company. If he does so, he must be held to have discharged his
burden. If he fails to offer an explanation on the basis of facts within
his special knowledge, he fails to discharge the burden cast upon him
by Section 106 of the IE Act. In its decision in the case of State of
Rajasthan v. Kashi Ram 6, the Supreme Court held that in a case resting
on circumstantial evidence, if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him, that itself
provides an additional link in the chain of circumstances proved
against him. Section 106 of the IE Act does not shift the burden of
proof in a criminal trial, which is always upon the prosecution. It lays
down a rule that when the accused does not throw any light upon
facts which are specially within his knowledge and which could not
support any theory or hypothesis compatible with his innocence, the
Court can consider his failure to adduce any explanation as an
additional link which completes the chain. In the present case, there is
considerable force in the argument of the learned Addl. P.P. that the
Appellant having been last seen with the deceased, the burden of proof
was upon him to prove what happened after PW/1 and her sisters left
the house, since those facts were within his special knowledge. The
6 2006(12) SCC 254
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defence has neither suggested existence of any such information to
PW/1 in her cross-examination nor has the Appellant offered any
explanation in this regard in his statement under Section 313 of the
Cr.P.C. Merely stating that he left the house after the sisters left is not
a sufficient discharge of the burden of proof as there is nothing to
explain his whereabouts after he claims to have left, which
information would only be within his special knowledge. Thus, it
must be held that he failed to discharge the burden cast upon him by
Section 106 of the IE Act. The chain of circumstances commencing
from the Appellant and the deceased last being together, being totally
unrebutted, leading to the seizure of jewelry from the Appellant, and
identified by PW/1 to be the stolen jewelry, establishes a complete link
in the chain of circumstances, which prove his guilt beyond reasonable
doubt.
22. The present case, thus, primarily hinges on circumstantial
evidence including the Appellant and the deceased being alone
together in the house and last seen alive; the recovery of the jewelry
and ornaments from the person of the Appellant when he was
apprehended; blood stained clothes recovered at his behest and some
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portion of the jewelry recovered from the goldsmiths’ shop at the
behest of the Appellant. An in-depth analysis of the facts in the
present case and the testimony of the witnesses, as substantial
evidence, clearly establishes the ‘ Panchsheel’ of the proof of the guilt
of the Appellant based on established circumstantial evidence. The five
golden principles laid down in the landmark case of Sharad
Birdhichand Sarda v/s State of Maharashtra 7, including the legal
distinction between ‘may be proved’ and ‘must be proved’ is
established. The established facts are consistent with the guilt of the
Appellant and the chain of evidence is so complete as there is no any
reasonable ground for a conclusion consistent with the innocence of
the Appellant. In all human probability, the act of murder of the
deceased has been done by the Appellant.
23. In view of the aforesaid discussion, we are of the opinion
that the Judgment and Order impugned herein is a well reasoned and
legally sound decision. The evidence on record, when assessed in its
entirety, establishes the guilt of the Appellant beyond all reasonable
doubt. The observations of the trial Court pertaining to the last seen
theory and reliability of the statements of the witnesses examined, the
7 (1984) 4 SCC 116
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corroborated evidence etc. are compelling and do not warrant any
interference. The prosecution has established its case beyond all
reasonable doubts based on legal, admissible and cogent evidence. The
Appeal thus fails and is accordingly dismissed. The conviction and
sentence of the Appellant for the offence as stated aforesaid stands
confirmed.
(DR. NEELA GOKHALE, J.) (REVATI MOHITE DERE, J.)
SHAMBHAVI
NILESH
SHIVGAN
Digitally signed by
SHAMBHAVI NILESH
SHIVGAN
Date: 2025.04.24
14:51:17 +0530
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