[Cites 11, Cited by 0]
Bombay High Court
Kalu Hiraman Dudhawade vs The State Of Maharashtra on 20 January, 2026
Author: Rn Laddha
Bench: Bharati Dangre, Rn Laddha
2026:BHC-AS:2683-DB Digitally
signed by
CHITRA
CHITRA SANJAY
SANJAY SONAWANE
SONAWANE Date:
2026.01.20
18:39:05
+0530
Chitra Sonawane 48-apeal-959-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.959 of 2018
Kalu Hiraman Dudhawade
Age: 26 yrs, Occ: Labourer
R/at Waranwadi, Pardara
Tal.Parner, Dist. Ahmednagar
(at present Yerwada Jail) ... Appellant.
Vs.
The State of Maharashtra
through Otur Police Station ... Respondent.
---
Mr Amit Mane, Advocate for the Appellant.
Mr Tanveer Khan, APP for the respondent / State.
---
Coram : Bharati Dangre &
RN Laddha, JJ.
Reserved on : 6 January 2026.
Pronounced on : 20 January 2026.
Judgment (Per RN Laddha, J.) :
This appeal is preferred against the judgment and
order dated 17 June 2016, passed by the learned Additional
Sessions Judge, Khed-Rajgurunagar, Pune, in Session Case
No.155 of 2014 (Old Session Case No.543 of 2012),
whereby the appellant herein, original accused No.3, came
to be convicted for the offence punishable under Section
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302 of the Indian Penal Code, 1860 (IPC) and sentenced to
suffer imprisonment for life and to pay a fine of Rs.5,000/-,
in default whereof, to undergo rigorous imprisonment for a
further period of four months. The appellant was further
convicted for offence punishable under Section 364 IPC and
sentenced to undergo rigorous imprisonment for ten years
and to pay a fine of Rs.3,000/-, in default whereof, to
undergo rigorous imprisonment for three months; and for
the offence punishable under Section 201 of the IPC, to
suffer rigorous imprisonment for three years and to pay a
fine of Rs.2,000/-, in default whereof, to undergo rigorous
imprisonment for two months, respectively. By the same
judgment and order, original accused Nos.1 and 2 were
acquitted of all charges.
2. The prosecution case, succinctly stated, is that the
deceased, Vikas alias Akshay Balu Dudhavade, aged about
13 years, was a student of Vasantrao Naik Ashram School
situated at village Taleran. On 10 January 2012 at
approximately 2:30 p.m., the deceased allegedly left the
school premises in the company of an unknown person who
represented himself to be the boy's uncle. Thereafter, on 12
January 2012, the dead body of the deceased was
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discovered in an agricultural field at village Pimpalgaon
Rotha. It is the prosecution's case that the appellant
kidnapped the deceased from the school, committed his
murder and subsequently caused the disappearance of
evidence in order to screen himself from legal punishment.
Admittedly, the prosecution's case rests entirely on
circumstantial evidence.
3. On 18 October 2012, the learned Additional Sessions
Judge framed a charge against the appellant, alleging therein
that from 10 January 2012 at approximately 2:30 p.m. to
12 January 2012 at approximately 3:00 p.m., the appellant,
along with the co-accused, intentionally and knowingly
murdered one Vikas alias Akshay Balu Dudhawade thereby
committing an offence under Sections 302 read with 34 of
IPC. The charge also states that the appellant caused certain
evidence concerning the said offence to disappear to screen
himself from legal punishment and thereby committed a
crime punishable under Sections 201 read with 34 of the
IPC. The appellant refused to plead guilty and claimed to be
tried.
4. At the trial, to bring home the charge against the
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accused, the prosecution examined ten witnesses, namely
Balu Kondiba Dudhavade (PW-1), Ajit Rohidas Kavate (PW-
2), Bausaheb Pandurang Ainor (PW-3), Ganesh Bhima
Ghode (PW-4), Raju Sonaji Bhangare (PW-5), Vitthal Sattu
Parande (PW-6), Laxman Nana Zanjare (PW-7), Dr Bhaskar
Nanasaheb Rananavare (PW-8), API Rohidas Harichandra
Chikate (PW-9), and PHC Abasaheb Yashwant Dhore (PW-
10).
5. After the closure of the evidence from the
prosecution's side, the statement of the accused came to be
recorded under Section 313 of the Code of Criminal
Procedure, 1973 (CrPC). The accused chose not to adduce
any evidence in defence. The learned trial Court, upon
appreciation of evidence on record, accepted and relied
upon the testimony of the witnesses and considering the
nature of injuries sustained by the deceased, proceeded to
convict the appellant for the offences punishable under
Section 302, 364 and 201 of the IPC. Being aggrieved by
and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned trial Court,
the appellant has preferred the present appeal.
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6. We have heard Mr Amit Mane, the learned Counsel
appearing on behalf of the appellant, and Mr Tanveer Khan,
the learned Additional Public Prosecutor representing the
respondent/ State. With their able assistance, we have
carefully examined the entire record and proceedings and
have given our anxious consideration to the rival
submissions advanced across the Bar.
7. Admittedly, there is no eyewitness to the incident, and
the prosecution relies on circumstantial evidence. The
learned trial Court has not listed each of the circumstances
that it has referred to or relied on, but from the evaluation
of the impugned judgment and order, it is apparent that the
learned trial Court has relied upon the following
circumstances to convict the appellant:
(a) That the death of Vikas alias Akshay Balu
Dudhawade (victim) was homicidal;
(b) That the appellant and the victim were last
seen together on 10 January 2012 before the
incident; and
(c) The previous quarrel between the accused
and the complainant, who is the father of the
deceased, that afford a motive for the crime.
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8. Mr Amit Mane, the learned Counsel appearing on
behalf of the appellant, submitted that the tests prescribed
in a case based upon circumstantial evidence in Sharad
Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC
116 were not fulfilled in this case and, therefore, the
appellant should not have been convicted. It is further
submitted that the relevant circumstances had not been
proved by the prosecution and, in any case, the proved
circumstances are not sufficient to sustain the conviction.
The learned Counsel pointed out that the circumstances of
the last seen have not been proved by the prosecution. The
witnesses Ajit Kavate (PW-2), Ganesh Ghode (PW-4), and
Raju Bhangare (PW-5), in their testimonies, failed to give a
description of the person who purportedly took the
deceased with him. The evidence of PW-5 demonstrates that
PW-5 gave the description of accused No.1 to the police as
the perpetrator and identified accused No.1, and not the
appellant, in the dock.
9. Mr Mane further submitted that there are lacunas in
the investigation and the evidence of the prosecution
witnesses suffers from material discrepancies, contradictions
and infirmities. There is no direct evidence connecting the
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appellant to the commission of the alleged crime. It is
submitted that the learned trial Court has not even adverted
to and, in any case, not considered the appellant's statement
under Section 313 of CrPC. For these reasons, the learned
Counsel asserted that the impugned judgment and order
warrant interference.
10. Mr Tanveer Khan, the learned Additional Public
Prosecutor representing the respondent/ State, defended the
impugned conviction and sentence based, among other
things, on the reasoning reflected in the impugned judgment
and order. He submitted that the circumstances proved by
the prosecution are sufficient to sustain the conviction and,
therefore, the appeal is liable to be dismissed.
11. Since this is a case based entirely on circumstantial
evidence, we must remind ourselves of the principles set out
in paragraphs 153 and 154 of Sharad Sarda (supra), which
read as follows:
"153. A close analysis of this decision
would show that the following conditions
must be fulfilled before a case against an
accused can be said to be fully
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established:
(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court
indicated that the circumstances
concerned "must or should" and not
"may be" established. There is not only a
grammatical but a legal distinction
between "may be proved" and "must be
or should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State
of Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033 : 1973 Crl LJ
1783] where the observations were made:
[SCC para 19, p. 807: SCC (Cri) p. 1047]
"Certainly, 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
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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,
(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.
154. These five golden principles, if we
may say so, constitute the panchsheel of
the proof of a case based on
circumstantial evidence."
12. So far as the first circumstance relied upon by the
learned Additional Sessions Judge is concerned, we agree
with Mr Khan that there is overwhelming evidence that the
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victim's death was homicidal. This is clear from the
deposition of Dr. Bhaskar Nanasaheb Rananavare (PW-8),
who conducted the post-mortem of the deceased and
certified the cause of the death was due to an impact from a
hard and blunt object, which resulted in fractures of the
frontal, parietal, and occipital skull bones, along with
bleeding inside the brain.
13. The prosecution relies on the testimony of Ajit
Rohidas Kavate (PW-2), Ganesh Bhima Ghode (PW-4), and
Raju Sonaji Bhangare (PW-5) to support the last seen theory.
Ajit Kavate (PW-2) deposed that an unknown person came
to the school and asked him to call the deceased Vikas from
the classroom, pursuant to which the deceased went with
that person. Significantly, this witness did not accompany
them outside the school premises and did not witness them
leaving the school together. His testimony, therefore, falls
short of establishing continuous proximity or
companionship between the appellant and the deceased till
the point of time when the death could have occurred.
14. Ganesh Ghode (PW-4) stated that he had seen a boy
wearing a school uniform and an unknown person
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enquiring about directions near his house. The witness had
no prior acquaintance with either the boy or the alleged
companion. The identification of the appellant by this
witness is based upon a test identification parade conducted
after a substantial lapse of time. Such a fleeting and
momentary observation, without prior familiarity, renders
the identification inherently weak and unsafe to rely upon.
15. The testimony of Raju Bhangare (PW-5) reveals that he
had given a lift to a boy and another person in the pick-up
vehicle. He admitted that he did not know the boy earlier.
More importantly, he identified accused No.1 in the dock
instead of the appellant, which casts doubt on his ability to
correctly identify the accused persons. This inconsistency
between test identification and dock identification
materially erodes the credibility and evidentiary value of his
testimony.
16. Even if the evidence of the aforesaid witnesses is
considered cumulatively, it does not establish that the
deceased was last seen with the appellant in such close
proximity of time that the possibility of the intervention of
a third person can be completely ruled out. The gap
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between the alleged last seen circumstance and the recovery
of the dead body is such that the "last seen" theory cannot
be safely pressed into service.
17. Furthermore, the testimony of API Rohidas
Harichandra Chikate (PW-9), who served as the
investigating officer, indicates that the test identification
parade was conducted on 23 July 2012, significantly
delayed from the date of the incident and obtaining
permission for the procedure on 7 May 2012. The
prosecution has failed to offer a satisfactory explanation for
this considerable delay, which raises question regarding the
integrity of the identification process. Notably, after
conducting the test identification parade, the prosecution
neglected to document the specific roles played by the
identified accused as recounted by the witnesses.
Additionally, PW-9 admitted during cross-examination that
he did not seize the clothing described by the witnesses
from the accused following their arrest, adding to the
inconsistencies in the prosecution's case.
18. The prosecution asserted that an unknown individual,
clad in a chocolate-coloured shirt and blue pants, abducted
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the victim from his school premises and, in conspiracy with
accomplices, ultimately murdered the victim. In paragraphs
29 to 39, the learned trial Court relied upon the testimonies
of PW-2, PW-4, PW-5, PW-7, and PW-9, along with the test
identification parade, to substantiate the claim that the
appellant was last seen in the company of the deceased.
However, upon a close examination of the evidence
presented, we are not inclined to agree that the prosecution
has successfully established the circumstance of last seen,
and the onus in terms of Section 106 of the Indian Evidence
Act had shifted upon the appellant.
19. In Reena Hazarika vs. The State of Assam, (2019) 13
SCC 289, the Hon'ble Supreme Court has held that the
mere invocation of the last seen theory, sans the facts and
evidence, will not suffice to shift the onus upon the accused
under Section 106 of the Evidence Act unless the
prosecution first establishes a prima facie case. In Bodh Raj
@ Bodha & Ors. vs. State of Jammu & Kashmir, (2002) 8
SCC 45, the Hon'ble Supreme Court has explained that this
theory comes into play where the time gap between the
point of time when the accused and the deceased were seen
alive and the time when the deceased is found dead is so
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small that the possibility of any person other than the
accused being the author of the crime becomes impossible.
The prosecution's case here fails to exclude the intervention
of any person other than the appellant.
20. The prosecution also does not satisfactorily prove that
the third and last circumstance about the previous quarrel
affording some motive for the crime. In cross-examination,
API Rohidas Harichandra Chikate (PW-9) categorically
states that no investigation was conducted into quarrels
between the co-accused and the complainant. The
prosecution has not brought on record any material to show
that on the date of the incident or any earlier day, there was
any such altercation or fight between the appellant and the
complainant, who is the father of the deceased. But, the
learned trial Court reasoned, in paragraphs 26 to 28 and 39
of the impugned judgment and order, that since the material
brought on record suggests that the complainant and the co-
accused engaged in a quarrel earlier, the motive could be
established from such circumstances, and it cannot be said
that the prosecution has failed to bring on record any
motive for the accused to commit such an offence. Again,
we cannot align with this line of reasoning in a matter of
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such nature. Therefore, even this circumstance has not been
conclusively proved by the prosecution.
21. Applying the principles in Sharad Sarda (supra), the
prosecution, in this case, has not fully proved the
circumstances from which the conclusion of guilt can be
said to be fully established. The test is that the guilt 'must or
should' and not merely 'may be' established by the
prosecution beyond a reasonable doubt. Even the
circumstances, in this case, are not conclusive enough to
exclude every possible hypothesis except the one to be
proved. The chain, in this case, is far from complete, and
this is not a matter where there is no reasonable ground for
the conclusion consistent with the innocence of the
appellant. Since the prosecution has failed to prove the
foundational facts, no adverse inference could have been
drawn against the appellant.
22. Though not necessary, we must advert to the material
discrepancies in the prosecution's evidence. Ajit Kavate
(PW-2) deposed that an unidentified person, attired in a
chocolate-coloured shirt and blue trousers, with a blackish
complexion, approached him and requested that the
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deceased be called, stating that the deceased's uncle had
arrived. Although the witness observed the deceased
interacting with the said individual, he did not witness
either of them leaving the school premises. Ganesh Ghode
(PW-4) also described the individual accompanying the
victim as wearing a chocolate-coloured shirt and blue pants.
Raju Bhangare (PW-5), who gave a lift to the deceased and
the purported abductor, also deposed that the individual
accompanying the deceased wore a chocolate-coloured shirt
and blue pants. It is significant that the garments allegedly
worn by this individual were neither recovered nor seized
during the course of the investigation, nor were any such
articles shown to these witnesses for the purpose of
identification, as evident from the testimony of API Rohidas
Harichandra Chikate (PW-9). Save and except the bare
identification of the appellant as the person who had come
to the school by PW-2 and PW-4, there exists no
independent or corroborative material on record to
substantiate the prosecution's claim identifying the
appellant as the alleged abductor or the assailant. In
addition, PW-5 pointed out to accused No.1 as the person
accompanying the deceased child and not the appellant. No
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incriminating articles linking the appellant to the crime have
been placed on record and proved. All these aspects have
not been adequately considered, and they, at least, create a
reasonable doubt about the prosecution's version.
23. On an overall re-appreciation of the evidence, it is
evident that the prosecution has failed to establish a
complete and unbroken chain of circumstances pointing
only to the guilt of the appellant. The evidence relied upon
raises suspicion, but suspicion, however strong, cannot take
the place of proof.
24. In light of the above, upon cumulative consideration
of all the circumstances above and the law applicable to
such matters, we are satisfied that the impugned judgment
and order convicting the appellant must be set aside by
granting the appellant the benefit of a reasonable doubt that
arises in the matter. Accordingly, we set aside the impugned
judgment and order dated 17 June 2016 passed by the
learned Additional Sessions Judge, Khed-Rajgurunagar,
Pune, in Session Case No.155 of 2014 (Old Session Case
No.543 of 2012), convicting and sentencing the appellant,
Kalu Hiraman Dudhawade, and direct that the appellant be
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set at liberty, if not required in any other case.
25. The present appeal is accordingly allowed in the terms
above. The muddemal property shall be disposed of in
accordance with the law and established procedures.
(R.N.Laddha, J.) (Bharati Dangre, J.)
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