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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)
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
JUDGMENT
1. The Appellant assails the Judgment and Order dated 10th 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 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 11th 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. 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 31st 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. 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, 397 and 201 of the IPC. 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. 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, earrings, 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 23rd 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. 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. 2.[7] Charges were framed against the Appellant on 19th 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 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 State of U.P. v/s Satish[1], the Apex Court in paragraph 22 of the said decision held as thus:-
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
3 2023 INSC 679 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 Kerala[4], 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:-
8. We return to the facts in the present case applying the 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 crossexamination 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 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 31st 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 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. 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 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 2nd 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 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 crossexamination 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 the said jewelry. He stuck to his statements in his deposition and nothing material and contradictory was brought out in the crossexamination.
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.
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 4X[3] cm, round diffuse, irregular edges on the right forehead, 3 cm above the eyebrow. There is also a 4X[2] cm contusion on the forehead, incised like laceration of 2 ½ X 1 X ½ cm on the forehead along with another 4 ½ X 1 X ½ cm injury on the forehead. The scalp injuries comprise of 8X2X[2] 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 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 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 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 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.)