Anilkumar Chhotelal Yadav And Anr vs The State Of Maharashtra
2025 Latest Caselaw 5051 Bom

Bombay High Court

Anilkumar Chhotelal Yadav And Anr vs The State Of Maharashtra on 29 April, 2025

Author: Revati Mohite Dere

Bench: Revati Mohite Dere

2025:BHC-AS:19309-DB

                                                                      901-apeal-588-2015-J.doc

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPEAL NO. 588 OF 2015


            1.        Anilkumar Chhotelal Yadav,
                      Age 27 years,
                      R/o. Umariya Sangramgad,
                      Lalganjajara, Pratapgad,
                      Uttar Pradesh.

            2.        Nagendrakumar @ Monu
                      Lalkrishor Kanojiya,
                      Age 25 years,
                      R/o.Mauriya Basgaon,
                      Gorakhpur, Uttar Pradesh,
                      Both presently serving sentence
                      at Kholapur Prison, Kholapur.            .....Appellants

                             Versus

                      State of Maharashtra,
                      At the instance of Sr. P. I.,
                      Ghatkopar Police Station.                         .....Respondent

            Mr. Manan Dave, i/b. Mr. Jayvadan Dave & Ms. Kruti Mehta, for the
            Appellants.
            Ms. S. S. Kaushik, APP, for Respondent-State.

                                                 CORAM : REVATI MOHITE DERE &
                                                          DR. NEELA GOKHALE, JJ.
                                           RESERVED ON : 23rd APRIL 2025.
                                    PRONOUNCED ON : 29th APRIL 2025
            JUDGMENT :

- (Per Dr. Neela Gokhale, J.)

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1. The Appellants assail the Judgment and Order dated 30 th

March 2015 passed by the Additional Sessions Judge, Greater Bombay

in Sessions Case No.111 of 2012. By the impugned Judgment and

Order, the Appellants are convicted for the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code ('IPC'),

1860 and are sentenced to suffer imprisonment for life and to pay a

fine of Rs.20,000/- each, in default of which, to undergo

imprisonment for a further period of six months. The Appellants are

also convicted for the offence punishable under Section 392 read with

Section 34 of the IPC for which they are sentenced to suffer rigorous

imprisonment for seven years and to pay a fine of Rs.5,000/- each, in

default of which, to undergo imprisonment for the period of three

months. Both the sentences are to run concurrently. The period

undergone in jail till today is to be set off against the sentence of

imprisonment.

2. The case of the prosecution is as follows:

2.1 The informant, one Kamlesh Dinkarrai Thakkar (PW/1), is

the younger brother of the deceased Shankar Thakkar. The deceased

was engaged in embroidery business in a workshop no.16-A,

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Shivprabha Building, Ghatkopar, Mumbai. The deceased used to

ordinarily leave his house for work at 10:00 am and return at 11:00

pm.

2.2 On the fatal day, i.e. on 5th November 2011, the deceased

left his house at approximately 12:00 noon to go to the workshop.

His wife, Kunjan (PW/2), had gone to her parents' house at

Dombivali. The informant (brother of the deceased) called the

deceased on his phone when he failed to return home at night, but his

mobile phone was switched off. So, he called his wife who informed

him that she had spoken to the deceased at 4:00 pm on his mobile

phone. Thereafter, both the informant and Kunjan tried calling the

deceased but his mobile phone was switched off.

2.3 On the following day, when there was still no sign of the

deceased, the informant went to his workshop only to find it locked.

Once again, the mobile phone of the deceased came as switched off.

On 7th November 2011, the informant once again went to the

workshop at 10:00 am. Again he found it to be locked. He thus,

inquired with one Kamal Thakkar (PW/7), owner of a shop adjacent to

that of his brother's, who informed him that the workshop was closed

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since Saturday, i.e. from 5th November 2011. The informant also

inquired with other neighbours without any success of tracing his

brother. When he went near the shop, again on 7 th November 2011

there was a foul smell emanating from the workshop. The police were

informed, who came to the workshop and broke open the lock. Upon

opening the shutter of the workshop, the deceased was found lying

dead in a pool of blood in his cabin floor with a cable wire tied

around his neck and blood was seen having oozed out from his mouth

and nose. There was a bleeding injury on the back of his head. Pieces

of bricks stained with blood were lying on the floor and one coir rope

was lying on the chest of the deceased. A chair was also seen

overturned at the spot.

2.4 Accordingly, FIR came to be registered on the complaint

of Kamlesh Thakkar, brother of the deceased. Spot Panchnama and

Inquest Panchnama were prepared and the body was sent for post-

mortem examination. The police seized a computer wire, which was

tied around the neck of the dead body, pieces of blood stained bricks

and blood stained clothes of the deceased. Blood samples were

collected. The samples collected were sent to the Forensic Science

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Laboratory ('FSL') for analysis. Photographs of the scene of the

incident were taken. Statements of the witnesses were recorded. Two

persons out of four, working with the deceased were missing. These

were the Appellants. The Police Inspector of the Ghatkopar Police

Station collected the Call Details Record ('CDR') of the Appellants.

The Appellant-Anilkumar was found to be staying at one lodge in a

Lucknow, Uttar Pradesh. He was arrested and an Arrest Panchnama

was prepared. Two mobile phones were seized from him under a

Seizure Panchnama and he was brought to Mumbai. A pair of keys

fitting the lock of the workshop of the deceased was recovered

pursuant to the disclosure statement of the Appellant No.2 under

Panchnama along with one piece of brown colour cloth stained with

blood found at the spot of the incident. A note-book bearing entries of

meals taken on credit by both the Appellants from the hotel owner

was also seized.

2.5 The probe revealed that a gold chain, ring, some amount

in cash and the mobile phone of the deceased were stolen. The CDR

and IMEI Number of the mobile phone of the deceased revealed that

the same was being used by the Appellant No.2. He was traced in

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Gorakhpur, U.P. and was thus, arrested. Thus, both the Appellants

were arrested under a Panchnama prepared by PSI Bansode in the

presence of the police of the Special Task Force, Lucknow and

Gorakhpur, respectively. The deceased's mobile phone was seized

from his possession and the Appellant No.2 was also brought to

Mumbai. Pursuant to his disclosure statement, broken gold chain of

the deceased was seized from a jeweler and blood stained clothes worn

by this Appellant were also seized. They were sent to the FSL.

2.6 On completion of investigation, charge-sheet was filed in

the Court of Metropolitan Magistrate, 49 th Court, Vikhroli, Mumbai,

who committed the case to the Court of Sessions, Mumbai.

2.7 Charges were framed on 25th June 2012 against the

Appellants for the offences punishable under Sections 392, 302 read

with Section 34 of the IPC at Exhibit 7. The charges were altered and

framed afresh by the successor Judge on 26 th March 2015 at Exhibit

83. The Appellants entered the plea of not guilty and claimed to be

tried.

2.8 In support of their case, the prosecution examined as

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many as 14 witnesses. The defence did not lead any evidence. The

statements of the Appellants under Section 313 of the Cr.P.C. were

recorded. The defence of the Appellants was that of total denial,

innocence and false implication. The Additional Sessions Judge,

Mumbai however, vide the impugned Judgment and Order, convicted

the Appellants and sentenced as mentioned in paragraph number 1

above.

3. Mr. Manan Dave, learned counsel appeared for the

Appellants and Ms. Sharmila Kaushik, learned APP represented the

State.

4. The prosecution's case is based on circumstantial evidence

including the last seen theory. According to the prosecution, Kunjan,

the deceased's wife (PW/2) deposed that she received a call from the

deceased at 4:00 pm from his mobile phone and she spoke to him.

Her husband informed her that he had received Rs.50,000 from one

party. Thereafter, she was not able to talk to him. She tried to contact

him on his mobile phone but it was switched off. She also contacted

her father-in-law and brother-in-law but they were also unable to

reach him. Ultimately, on 7 th November 2011, her husband was found

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dead in workshop. The crucial testimony of this witness was that she

spoke to him on the phone on 5 th November at 4:00 pm. Thereafter,

one Mr. Pravin Jadhav, an employee of Hotel Anuradha (PW/8) who

used to serve tea to the employees in the workshop deposed that he

went to the deceased's workshop at 4:00 pm on 5 th November and

saw the deceased in the workshop. He also served tea to the

Appellants in the workshop. The prosecution thus, contends that the

deceased and the Appellants were seen together in the workshop at

4:00 pm on the fateful day. Moreover, the prosecution also places

reliance on the evidence of PW/7, a printing press owner, having his

business opposite to the workshop of the deceased who stated that he

saw the Appellants shut down the shutter of the workshop of the

deceased at 5:00 pm on the said day. Some jewelry and cash was

missing from the shop which was recovered from the jewelry shop of

one Kailas Soni (PW/3). Thus, according to the prosecution, the

deceased and the Appellants were last seen together in the shop at

4:00 pm on 5th November and thereafter the Appellants were seen

closing up the workshop. This establishes that the time gap between

the point of time that the Appellants and the deceased were last seen

together and the deceased going incommunicado is so small that the

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possibility of a person any other than the Appellants having

committed the crime is almost impossible.

5. The law pertaining to the key principles which guide the

Courts to conclude the guilt of an accused in cases solely dependent

on circumstantial evidence is well settled. In Sharad Birdhichand Sarda

v/s State of Maharashtra1, the the Supreme Court laid down the five

golden principles to establish the guilt of an accused based on

circumstantial evidence, which are as follows:-

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved". It is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(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, 1 (1984) 4 SCC 116

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(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. The aforesaid principles in the Sharad Sarda's case (Supra)

have been consistently followed till date. In the present matter, the

prosecution has based its case on the 'last seen theory' as one of the

links in the chain of circumstantial evidence. The legal position on this

aspect is also well settled. In the case of Karakkattu Muhammed.

Basheer v. State of Kerala 2, the Apex Court followed the principles set

out in the case of Ramreddy Rajesh Khanna Reddy and Another v.

State of A.P. 3. Paragraphs 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 2 (2024) 10 SCC 813 3 (2006) 10 SCC 172

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hypothesis. It is also well-settled that suspicion, however, grave it 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."

7. Mr. Dave submitted that the Sessions Judge has not

appreciated the defence of the Appellants and has erred in relying on

the Recovery Panchnama at Exhibits 51 and 67. Further, according to

him, in the facts and circumstances of the case and the sections of the

law applied, the offences cannot fall under Section 302 and 392 of the

IPC at the same time. He also states that the Appellant No.1 was in

judicial custody and was not present during the recovery of articles

and thus, assails the Panchnama prepared by the police. He thus, states

that the prosecution has not proved the case against the Appellants

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beyond all reasonable doubt and thus, prays that the Appeal may be

allowed.

8. Ms. Kaushik, learned APP took us through the testimonies

of all the 14 witnesses. She submits that the prosecution has

established all incriminating evidence against the Appellants by reliable

and cogent evidence. The circumstances so proved by the prosecution

forms a chain of events so complete that there can be no other

hypothesis other than the guilt of the Appellants. She thus, urges the

Court to dismiss the Appeal and confirm the impugned Judgment and

Order.

9. We have heard both the counsels and perused the evidence

with their assistance. The evidence of Kunjan (PW/2) is clear and

establishes that she spoke to her husband on his mobile phone at 4:00

pm on the fatal day. Thereafter, the server in Hotel Anuradha, (PW/8)

deposed regarding serving tea to the Appellants inside the workshop

of the deceased also at 4:00 pm on the said day. He also deposed to

having seen the deceased well and alive and watching TV in the

workshop at that time. PW/8 further states that he also found the

deceased and the Appellants present in the workshop after sometime

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when he went to collect empty tea glasses. Thus, the substantial

evidence of PW/1 and PW/8 establishes that the deceased and the

Appellants were together in the workshop between 4:00 pm and 5:00

pm.

10. Mr. Kamal Thakkar, (PW/7) also deposed as to the

Appellants closing the shutters of the workshop at about 5:00 pm. His

printing press is opposite to the workshop of the deceased. He stated

that he saw the Appellants shutting the shutters of the workshop at

5:00 pm while he was standing outside the press. Thereafter, he

affirmed that the shop of the deceased remained closed the following

two days. Infact, there is no cross-examination on the aspect of PW/8

serving tea and had last seen the Appellants and the deceased together.

Mr. Dave also fairly submitted that even during the trial, the presence

of the Appellants in the shop at the relevant time was not seriously

disputed by the defence. Thus, the prosecution has clearly established

that the deceased and the Appellants were in the workshop from 4:00

pm to 5:00 pm at which point the Appellants were seen shutting the

shop and thereafter the deceased could not be contacted by anybody.

11. Further corroboration establishing the guilt of the

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Appellants is provided by the testimony of Kailas Soni (PW/3) i.e. the

owner of a jewelry shop. He stated that on 5 th November 2011 at

about 5:30 pm, two persons came to his shop to repair a gold chain.

The chain was broken. He did not repair the same as the persons were

in a hurry and the said persons did not return. Thereafter on 23 rd

November 2011, the said persons were brought to his shop by the

police. The police took the chain in their custody under the

Panchnama. PW/3 identified the two persons as the Appellants in the

Court who gave him the gold chain for repairs. This witness also

identified the gold chain. He was cross-examined but nothing material

or contradictory was elicited to disbelieve his testimony.

12. Mr. Abdul Sattar Said Ali Shaikh (PW/10), a panch witness

was declared hostile. Then too, he deposed that he went with another

panch witness and the police to the jewelry shop of PW/3. PW/3

produced one broken gold chain kept in a red paper and told the

police that the Appellants had given that chain to him for repairs and

before he could tell them about the labour charges for the said repair,

the Appellants left the shop. The chain was seized, packed and sealed

under a Panchnama. PW/10 further deposed to the seizure of plastic

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bag containing the blood stained clothes recovered at the behest of the

Appellant No.2. Despite this witness having being declared as hostile

under cross-examination, he testified that the Appellant No.2 gave a

disclosure statement regarding the jewelry and the clothes. He

identified the signatures on the labels affixed to the plastic bags

containing the jewelry and the clothes. He also identified the

Appellant No.2 in the Court.

13. Mr. Dave has tried to argue that at the time of discovering

the gold chain from the jeweler and the clothes pursuant to the

disclosure statement of the Appellant No.2, he was in judicial custody

and hence, the said evidence cannot be believed. However, the remand

order of the Metropolitan Magistrate dated 22 nd November 2011

clearly shows that he was not in Magisterial custody but in police

custody at the relevant time.

14. Dr. Narendra Gangaram Shinde (PW/12) is the Doctor

who conducted the post-mortem of the deceased. He testified as to the

injuries to the deceased and the notes of his post-mortem examination.

The injuries are grievous. The notes of examination clearly indicate

the cause of death to be 'Asphyxia due to strangulation with head

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injury (Unnatural)'.

15. Mr. Subhash Argun Sawanat (PW/13) is the Investigating

Officer (Retired at the time of giving evidence). He testified regarding

investigation of the crime. He found the computer cord around the

neck of the deceased. He also found pieces of blood stained bricks and

coir rope. All the articles were seized under a Panchnama and were

sent to FSL. Cross-examination of this witness does not elicit any

contradictions.

16. Mr. Rajkumar Vishnu Kothmire (PW/14), the other

Investigating Officer, deposed about collecting the CDR and IMEI

Number of the deceased's mobile phone on the basis of which he was

able to trace the location of the Appellants. The Appellant No.2 was

using the mobile phone of the deceased. He also testified regarding

the disclosure statement of the Appellant No.1 pertaining to the keys

to the lock of the workshop. A memorandum of Panchnama was

prepared in the presence of panchas. Pursuant to this disclosure, the

Appellant No.1 took them to the location from where two keys

hooked in one metal ring were recovered. These were also seized

under a Panchnama. A brown colour blood stained cloth was also

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recovered from the spot. This witness was cross-examined at length

but he stood firm on his testimony.

17. An in-depth analysis of the substantive evidence reveals

that the facts established are consistent with the hypothesis of guilt of

the Appellants. The 'last seen' evidence of the witnesses linked with

the testimonies of witnesses regarding recovery of gold chain and

mobile phone of the deceased from the jeweler and the Appellants is

clinching and conclusive in nature. The defence has not been able to

cause any dent in the substantive evidence of the prosecution

witnesses. Similarly, the defence offers no explanation regarding the

events after they left the workshop, to counter the 'last seen' evidence,

that would be within the 'special knowledge' of the Appellants. We

thus, have no hesitation in holding that the chain of circumstantial

evidence is complete and there is no reasonable ground to draw any

conclusion other than the guilt of the Appellants.

18. 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 Appellants beyond all reasonable

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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 Appellants for the offences as stated aforesaid stands

confirmed.

(DR. NEELA GOKHALE, J.) (REVATI MOHITE DERE, J.)

Digitally signed by SHAMBHAVI SHAMBHAVI NILESH NILESH SHIVGAN SHIVGAN Date:

2025.04.29 13:49:56 +0530