The last seen theory, combined with circumstantial evidence, establishes guilt beyond reasonable doubt in murder and robbery cases.

JUDGMENT :

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 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.

2.2 On 30^th 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.

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. On 11^th 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-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 poli