‘PANCHSHEEL’ OF PROOF OF GUILT

 

 

 

 

I NTHEjudgementofthecase –EknathKrishnaKadam(27) v. The State of Maharashtra pronounced on April 24, 2025,JusticesRavatiMohite Dere andDrNeela Gokhale at the Bombay High Court in Mumbai, have upheld the conviction and sentence imposed on the appellant, upholding and praising the impugned judgement and order as a well-reasoned and legally sound decision. In the HC’s opinion, the evidence on record, when assessed initsentirety,establishestheguilt 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 appellant has challenged the judgement and order of December 10, 2009, passedbythe Ad-hoc Addl. Sessions Judge, Sewree, Mumbai, convicting him fortheoffencesundersections302 and 397 of the IPC, 1860. For the offence under section 302, for committing the murder of Anil Vaswani, he is sentenced to sufferlifeimprisonmentandpayfine of Rs 300/- in default to suffer RI for three months. For the offence under Section 397 of the IPC, RI for seven years and fine of Rs 400, indefaulttosufferRIfor4months have been awarded to him. Both the sentences are to run concurrently.Theappellantisinjailsince August11,2008andhasbeenheld to be entitled to a set-off for the period already undergone. The complainant, Harsha Vaswaniwasresidingwithhertwo younger sisters and father, Anil Vaswani(deceased)atKhojaLane, Versova, Andheri, Mumbai Her mother is pre-deceased.

 

Harsha and her sisters were employed as crowd artists in films. They were in process of changing residence astheyhadfoundaplacewithlesserrent. AnilVaswani had engaged the appellant to help in packing the household items for the purpose of shifting to new house. OnJuly30,2008,Appellantwent to Anil’s house at 11.30 pm. The Complainant, her sisters, father and the appellant were packing household articles till 4 am on July 31, 2008. They went to sleep in the morning; the sisters in one roomandthedeceasedandappellant in another. At 2 pm, the sistersawokeandaftergettingready 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 depositonthefollowingday.

 

While proceedingtoGoregaonforwork, the complainant called her father (the deceased) to convey the assurance of the landlord regarding return of deposit but the deceased neither answered her mobile phone nor the landline. Upon returning home at 8.30 pm, the sisters found the house unlocked and unlit. The Complainant switched on the lights 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 or the appellant. Upon switching the light in the hall, the complainant saw red colour stains in the North-East corner in the hall and a rolled mattressnearthewall.Shemoved the mattress and found her father lying unconscious with a head injury. The Police at Versova Stationrecorded the statement of thecomplainantandregisteredthe FIR for offence under sections 307, 397 and 201 of the IPC. On august11,2008,at12.05pmatrap was setwithpanchas intown.

 

The appellantwasapprehendedwhile travelling toPune in an Asiad bus. Onsearch of the appellant, two handkerchiefs were found in his bag containing gold ornaments and he was arrested. Upon completion of the investigation, chargesheet was filed against the appellant at the Metropolitan Magistrate’s Court and the case was committed to Sessions on November 24, 2008. The HC has noted that the evidence adduced by the prosecution clearly forms a chain of circumstances, each pointing to the complicity of the appellant in commission of the offence. In addition, there is also an explanation offered by the defence as to how and when the appellant parted company with the deceasedduringthosefourhours. The principle of law in this regard is well settled. The provisions of section106oftheIndianEvidence Act, 1872 itself are unambiguous and categoric. Thus, if a person is last seen with the deceased, he must offer an explanation as to howandwhenhepartedcompany.

 

If he does so, he must be held to have discharged his burden.If he failstoofferanexplanationonthe basis of facts within his special knowledge, he fails to discharge burden cast upon him by section 106 of the IE Act. Initsdecisionofthecase–State of Rajasthan v. Kashi Ram-(2006) 12 SCC 254, the Supreme Court has held that in a case,resting on circumstantial evidence, if the accused fails to offer areasonable 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 upontheprosecution.Itlaysdown arule that when the accused does not throw any light upon facts which are specially within his knowledgeandwhichcannotsupport any theory or hypothesis compatiblewithhisinnocence,the Court can consider his failure to adduce any explanation as an additional link which completes the chain. Merely stating that the accused left the house after the sisters left is not sufficient discharge of the burden of proof as there is nothing to explain his whereabouts after he claims to have left.

 

Thus, it must be held thathefailedtodischargetheburden cast upon him. Anin-depthanalysisofthefacts in this case, and the testimony of the witnesses, as substantial evidence, clearly establishes the ‘Panchsheel’ of the proof of guilt oftheappellantbaseduponestablished circumstantial evidence. The five golden principles laid down in the case of Shard Birdhichand Sarda v. State of Maharashtra –(1984) 4 SCC 116, including the legal distinction between ‘may be proved’ and ‘must be proved’ is established.  According to the HC, in all humanprobability,theactofmurderofthedeceasedhasbeendone by the appellant. The appeal againstconvictionandsentences fails and is dismissed.