Bombay High Court
Shailesh @ Sunny Ajay Benjamin vs The State Of Maharashtra on 1 April, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:11235-DB
Cri.Appeal No.121/2023
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.121 OF 2023 WITH
CRIMINAL APPLICATION NO.1814 OF 2024
Shailesh @ Sunny Ajay Benjamin
Age 25 years, Occ. Labour,
R/o N-6, CIDCO, Aurangabad ...APPELLANT
VERSUS
1) The State of Maharashtra
(At the instance of MIDC CIDCO
Police Station, Aurangabad)
2) Roshani d/o Anil Ambhore,
under guardianship of grand mother
Durgabai w/o Ambu Shivarkar,
R/o Chandanzira, Lahuji Nagar,
Jalna ...RESPONDENTS
.......
Mr. A.K. Bhosle, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent
Mr. R.B. Narwade Patil, Advocate for R.No.2 (appointed)
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 6th February, 2025
Date of pronouncing judgment : 1st April, 2025
J U D G M E N T (PER : R.G. AVACHAT, J.) :
The challenge in this appeal is to the order of conviction and consequential sentence passed by the Court of Cri.Appeal No.121/2023 :: 2 ::
Adhoc Additional Sessions Judge, Aurangabad (Trial Court) on 2/9/2021 in Sessions Case, No.263/2016. The appellant, an accused therein, was convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code and, therefore, directed to undergo sentence of life imprisonment and to pay a fine of Rs.20,000/- with default stipulation and rigorous imprisonment for three years and fine of Rs.5000/- with default stipulation respectively. The substantive sentences were directed to run concurrently.
2. The facts in brief, giving rising to the present appeal, are as follows :-
Smt. Chandabai (deceased) was married to one Anil. The couple was blessed with a girl child- Roshani (P.W.10). Anil, after three years of marriage, deserted Chanda (deceased). He was permanent resident of Buldhana. Chandabai came in contact with the appellant and emotional relationship developed between the two. She along with her daughter started residing with the appellant at Aurangabad. Chanda would insist the appellant to marry her. However, he Cri.Appeal No.121/2023 :: 3 ::
did not wish to marry. There, therefore, used to be frequent quarrels between the two.
On 15/6/2016, the appellant strangulated Chandabai. Dropped her daughter Roshani at her grandmother's house at Jalna and in the night time, dropped Chanda's body in a Nala at a place where weekly bazaar was held at Chikalthana, Aurangabad. He then set her dead body on fire after dousing it with petrol.
3. A report as to having noticed a dead body of a lady in burnt condition was made to CIDCO MIDC Police Station, Aurangabad. The police officials rushed to the place. An inquest panchanama (Exh.39) was drawn. Some articles were seized under the panchanama. It was found that the deceased was gagged with a cloth ball. During the course of enquiry of an unnatural death, the identity of the deceased was established. Her brother Tatya (P.W.4) lodged F.I.R. (Exh.77), based on which a crime vide C.R. No.227/2016 under Sections 302 and 201 of the Indian Penal Code was registered against the appellant on suspicion.
Cri.Appeal No.121/2023
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4. The appellant was arrested. Pursuant to the disclosure statement made by him, an Indica Car and petrol can were seized. Clothes on his person were seized. C.D.R. and S.D.R. of the cell phones of the appellant and the deceased were obtained. Statements of persons acquainted with the facts and circumstances of the case were recorded.
Upon completion of the investigation, the appellant was proceeded against by filing a charge sheet.
5. The Trial Court framed the Charge (Exh.11). The appellant pleaded not guilty. His defence was of false implication.
6. The prosecution, to bring home the charge, examined 17 witnesses and produced in evidence certain documents. The Trial Court, on appreciation of the evidence in the case, convicted and sentenced the appellants stated above.
7. Heard. Learned Advocate for the appellant would submit that, the case was based on circumstantial evidence. The F.I.R. was lodged 8 days after the dead body was found. Cri.Appeal No.121/2023
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The evidence of the landlady Uma (P.W.2), in whose premises the appellant and the deceased were said to have been residing, was that of a planted witness. Evidence of Roshani was not reliable since during investigation, her statement under Section 161 of the Cr.P.C. had not been recorded. She was a child witness. As such, there was no evidence to indicate the appellant and the deceased were together some time before the deceased met with homicidal death. Learned Advocate, therefore, urged for allowing the appeal.
8. Learned A.P.P. would, on the other hand, submit that, the C.D.R. and S.D.R. indicate both the deceased and the appellant were in contact with each other. Evidence of landlady (P.W.2 Uma), brother and mother of the deceased besides her sister Nanda (P.W.7) go a long way to indicate the appellant to have been residing with Chanda and her daughter. The appellant had a strong motive to eliminate her since Chanda was asking him to marry her. The clothes on the person of the appellant were found to have residues of petrol. The car in which the dead body was taken to the place for dumping and set ablaze, was seized pursuant to the disclosure Cri.Appeal No.121/2023 :: 6 ::
statement made by the appellant. An employee of a petrol pump has testified and even identified the appellant who had bought petrol worth Rs.250/- on the fateful day. He identified the appellant in the test identification parade. The learned A.P.P. took us through the entire evidence on record and ultimately submitted that the Trial Court rightly convicted the appellant and consequently sentenced him. According to her, no interference with the impugned order is warranted. She, therefore, urged for dismissal of the appeal.
9. The case is based on circumstantial evidence. We, therefore, first need to advert to the observations of the Apex Court in case of Sharad Birdichand Sarda Vs. State of Maharashtra (1984 CJ (SC) 262), in which the Apex Court observed :
"152. A close analysis of the decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully 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 Cri.Appeal No.121/2023 :: 7 ::
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 Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, where the following observations were made :
"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 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 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."
10. The circumstances relied on are :-
(1) Homicidal Death, (2) Motive, Cri.Appeal No.121/2023 :: 8 ::
(3) The appellant to have been living together with the deceased and her daughter, (4) The appellant was last seen in the company of the deceased, (5) C.D.R. and S.D.R. indicate them to have been closely associated.
11. Let us now advert to the evidence on record and appreciate the same. Admittedly, the dead body of a lady in a burnt condition was found in the early morning on 16/6/2016 at a place of weekly bazaar near Hanuman Temple at Chikalthana, Aurangabad. An inquest was drawn to that effect vide Exh.39. The mortal remains were subjected to autopsy. The Medical Officer Dr. Sachin (P.W.3) conducted the post mortem. The post mortem report indicates injuries on the person of the deceased. The Medical Officer had, however, reserved his opinion. In his evidence before the Trial Court, he opined the deceased to have died of strangulation. The fact that the deceased met with homicidal death is not in dispute before us.
Cri.Appeal No.121/2023
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12. The question is, whether the appellant is the author of the crime. The F.I.R. was lodged by brother of the deceased on suspicion on 24/6/2016. The brother (P.W.4 Tatya) testified that, his sister Chandabai (deceased) had married one Anil Ambhore. The couple was blessed with a girl child Roshani (P.W.10). He further testified that, on 15/6/2016, Roshani came to his house at Jalna and informed that it was the appellant who dropped her just outside his residence some time before. He further testified that, on 24/6/2016, M.I.D.C. Police had been to his residence with a photograph of dead body of his sister. He identified the same.
13. During his cross-examination, he stated that, as police told him the appellant to have killed his sister, so he say the appellant to be the culprit.
14. P.W.6 Durgabai was the mother of the deceased. She testified on the lines of evidence of her son P.W.4 Tatya. She further testified that, her son-in-law Anil deserted Chandabai. Thereafter Chandabai and Roshani started residing with her. Two years before the incident, the appellant took them (Chandabai and Roshani) to Aurangabad and Cri.Appeal No.121/2023 :: 10 ::
started residing at Ambedkarnagar. She further testified that, when she had visited their residence at Ambedkarnagar, she told her that the appellant was not marrying her and even started ill-treating on that count. She further testified that, the trio (Sunny, Chandabai and Roshani) thereafter started residing in a premises taken on rent at Hanumannagar. She had been to Aurangabad 2/3 times, but could not locate her daughter's residence at Hanumannagar. She had again been to Aurangabad and could find out the room wherein Chandabai was residing. She further testified that, the landlady, P.W.2 Uma told her that, Chandabai had not been there for last 8 days and her cell phone was switched off. She further testified that, she went back to her house at Jalna and again returned to Aurangabad with Roshani (P.W.10) and her son Tatya (P.W.4). Then they went to the Police Station whereat her statement was recorded.
During her cross-examination, she stated to have been illiterate. She denied the suggestion to have never seen the appellant.Cri.Appeal No.121/2023
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15. P.W.2 Uma testified that, she had let out her room to the appellant and Chandabai since 14/4/2016. She claimed to have obtained xerox copies of Aadhar Card, PAN Card and cell phone numbers of both of them. She further testified that, on 15/6/2016, she asked the couple to pay the rent. On the same day the couple went out of the room. The appellant returned to the room by 8.00 p.m. Chandabai was not with him. On her enquiry, the appellant told her that Chandabai went to house with her mother as she (mother) was not keeping well. She further testified that, she noticed the appellant in feared condition. She asked him to contact Chandabai on phone and let her talk to her. He thereupon told that Chandabai could not be contacted on cell phone. She, therefore, suspected something amiss.
16. P.W.2 Uma further testified that, mother of Chandabai had met her 8 days before the incident. When she returned to the room, she did not allow him to open the same. She put her lock to the room after the appellant took away a dress of his sister and on the following day he took away drum for marriage of his sister. She further testified that, on the Cri.Appeal No.121/2023 :: 12 ::
following day i.e. on 17/6/2016, she read in newspaper about finding of dead body of a woman in burnt condition. It was reported that, names "Anil" and "Chandabai" were tattooed on the body of the dead person. She then realised that it was none other than Chandabai. She further testified that, Chandabai's friend Nanda had been to her residence. She showed her the newspaper report and asked her to go to MIDC CIDCO Police Station.
17. During her cross-examination, she gave some vital admission. She testified that, she was in the business of catering and, therefore, was in contact with police officials. She further admitted that, police used to call her to act as panch in connection with cases registered with three Police Stations, namely Jawaharnagar, Pundliknagar and Mukundwadi. It was suggested to her that Anil Ambhore was first husband of Chandabai.
18. P.W.5 Ajay was the cousin of deceased Chandabai. He testified to have had visited Chandabai's residence at Ambedkarnagar, Aurangabad. Chandabai that time told him that the appellant was ill-treating her. He, therefore, made a Cri.Appeal No.121/2023 :: 13 ::
phone call to the appellant. He denied that there was no relationship between the appellant and the deceased.
19. P.W.7 Nanda was the friend of the deceased. She testified that, she developed acquaintance with Chandabai as both of them were from Jalna. She further testified that, the appellant would reside along with Chandabai at Ambedkarnagar. Chandabai and her daughter had been to her residence and made a demand of Rs.20,000/- for purchasing a vehicle. She expressed her inability. She further testified that, thereafter Chandabai and the appellant shifted their residence to Hanumannagar. When she visited her Hanumannagar residence on 15 June, it was locked. She, therefore, met the landlady P.W.2 Uma. P.W.2 Uma showed her newspaper report. She, therefore, went to the MIDC Police Station and then accompanied police official Rathod. She further testified that, name of one Rahul was cropped up in the enquiry. When police approached Rahul, he informed the police whereabouts of his uncle, the appellant.
Cri.Appeal No.121/2023
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20. In her cross-examination, she stated that, the police recorded her statement 8 days after her visit to MIDC Police Station.
21. P.W.10 Roshani, daughter of Chandabai testified that, on the fateful day, the appellant came to the house. Sent her out. Then there was quarrel between the appellant and Chandabai. She knocked on the door. The appellant scolded her. She heard noise of cries of her mother. The appellant then came out of the house and told her mother went to Jalna. She further testified that, the appellant then took her with him to take a round in the city and then he reached her at the place- Chandanzira, Jalna at night. She further testified that the appellant threatened her if she disclosed to have dropped by him at Jalna. He also asked her to tell that her mother's cell phone has been lost due to shifting of household articles from one premise to other. She further testified that, she went to the house of her grandmother (P.W.6 Durgabai).
22. During her cross-examination, she testified that, she did not attend the school for primary education. She was in 5th Standard when she appeared before the Court to give Cri.Appeal No.121/2023 :: 15 ::
evidence. She testified that, she was directly admitted to 5 th Standard. She came to the Court along with her grandmother to give evidence.
23. Aforesaid is the evidence in relation to the appellant and the deceased to have been residing together and the appellant to have been in the company of the deceased some time before Chandabai breathed her last. OTHER EVIDENCE :
24. P.W.11 Kishor was serving with Balaji Petrol Pump, Chikalthana. He testified that, the appellant had been to the petrol pump by 9.00 p.m. on 15/6/2016. The appellant that time purchased petrol worth Rs.250/-. He took the petrol in a white can. The appellant had come to the petrol pump in an Indica car.
25. He further testified that, he identified the appellant in test identification parade held on 23/9/2016 at Harsool Jail. He referred to the panchanama in that regard (Exh.108).
26. P.W.8 Shaikh Farooq was the panch witness to the test identification parade. He testified that, one Ashok (P.W.11) Cri.Appeal No.121/2023 :: 16 ::
identified the appellant in test identification parade held by the Executive Magistrate on 26/9/2016.
27. On arrest of the appellant, he made a disclosure statement that he would point out the car and kerosene can. The investigating officer P.W.12 Shripad Paropkari and P.W.1 Pundalik testified in proof of the disclosure statement made by the appellant. The disclosure statement is at Exh.34. Both of them further testified that the appellant then took to one place and pointed out the Indica car bearing No.MH-04-DE-3689. The appellant opened the door of the car with a key and took out a can from beneath the back seat. The police seized the same under panchanama (Exh.35).
28. The other witnesses are on the point of lodging of A.D. report and obtaining CDR and SDR of cell phones of the appellant and the deceased. While P.W.14 Kiran testified that, the appellant had purchased an Indica Car No.MH-04-DE- 3689 from one Kamalkishor Thakur for Rs.65,000/-.
29. P.W.17 Amit was the Nodal Officer serving with Uninor Cellular Company. He produced in evidence the CDR Cri.Appeal No.121/2023 :: 17 ::
and SDR of cell phones and even tower locations for certain period. The information supplied by him was supported by Section 65-B Certificate issued under his signature. The same has been admitted in evidence. The defence too did not dispute the said document. The CDR indicate that both the appellant and the deceased were in contact with each other until 14 June i.e. two days before the dead body of the deceased was found. The tower location also indicate the same was shifting. On one day it was at Chandanzira as well. The document relating to tower location is, however, silent to indicate time and day of the said location.
30. The C.A. reports (Exh.143) indicate the articles, seized from the place whereat the dead body was found, borne particles of petrol. The C.A. report pertaining to clothes of the appellant was adverted to, to indicate the same to have petrol particles thereon.
31. The aforesaid is the evidence in the case. It is reiterated that, the case is based on circumstantial evidence. The oral evidence of the relations of the deceased and the CDR although indicate the appellant and the deceased to have Cri.Appeal No.121/2023 :: 18 ::
been in relationship, all the police papers suggest that the appellant was residing at Sambhaji Colony, N-1 area, Aurangabad. The case of the prosecution was that after strangulating Chandabai to death, the appellant carried her dead body in his Indica car and dropped it at the place mentioned hereinabove. Although pursuant to the disclosure statement the Indica car was seized, there is nothing to indicate the dead body to have been carried therein. Finding of a can in a car is nothing unusual and the same cannot be connected with the crime in question. Although P.W.11 Kishor had testified the appellant to have purchased petrol on the given day from him and even identified the appellant in test identification parade, the test identification parade was held on 26 September i.e. 94 days after the appellant's arrest.
Admittedly, the dead body was found on 16 June 2016. The F.I.R. was lodged by the brother of the deceased on 24 June i.e. 8 days thereafter. The appellant was named as a suspect.
32. As regards the evidence about the appellant and the deceased to have been residing at Hanumannagar, the evidence of the landlady P.W.2 Uma does not inspire Cri.Appeal No.121/2023 :: 19 ::
confidence since the police appear to have not seized the documents which she had collected allegedly from the appellant while letting out of the room. Moreover, she admitted in cross-examination that the aforesaid three Police Stations would avail her services to act as a panch whenever required. The investigating officer did not conduct any panchanama of the room wherein the appellant and the deceased were allegedly residing. Had he conducted such a panchanama and collected evidence, the case would have been on somewhat better footing. What the landlady P.W.2 Uma testified was that, on 15 June before 2.30 p.m., the appellant and the deceased left her room. She did not speak of presence of Roshani. According to her, the appellant alone returned to the room by 8.30 p.m. While evidence of Roshani (P.W.10) a 8 year old girl child at the material time, indicate that, she was at the room and the appellant took her in the city and then dropped her at Jalna.
33. When as per the case of the prosecution Roshani had been to her grandmother (P.W.6 Durgabai), she must have related the appellant to have dropped her and threatened as Cri.Appeal No.121/2023 :: 20 ::
well if disclosed anything. The statements of grandmother (P.W.6 Durgabai), the landlady P.W.2 Uma and others have been recorded in the month of July i.e. 21 days after the incident. Learned Advocate for the appellant has, therefore, every reason to contend the landlady to have been a planted witness. It was submitted that, Roshani's statement was not recorded by the investigating officer during investigation. Meaning thereby, she was examined in relation to the incident for the first time she deposed as a witness three and half years after the incident. Her cross-examination indicates that she was directly admitted to 5th Standard. She claimed to have not attended primary school. This lead us to take her evidence which a pinch of salt. Moreover, she was a child witness. Her statement was not recorded by the investigating officer. Although the prosecution can examined witness whose statement under Section 161 of Cr.P.C. was not recorded, the veracity of the evidence of such witness would be very weak.
34. As regards finding of petrol residues on the clothes of the appellant, there is nothing to indicate as to when those were seized. Where those clothes were kept. In what Cri.Appeal No.121/2023 :: 21 ::
condition those were until submitted to the office of Chemical analyst. Admittedly, the appellant was arrested necessarily 8 days after the incident since the F.I.R. was lodged 8 days after the dead body was found.
35. In our view, therefore, even the evidence may suggest or indicate the appellant to have been in relationship with the deceased, there is no evidence, worth relying, to conclude that both were residing together, and on the fateful day the appellant was in the company of the deceased. Based on such quality of evidence, the Trial Court ought not to have convicted the appellant. We find merit in the Appeal. The Appeal, therefore, succeeds. Hence the order :
ORDER
(i) The Criminal Appeal is allowed.
(ii) The order of conviction and consequential sentence passed by the Court of Adhoc District Judge-1 & Additional Sessions Judge, Aurangabad on 2/9/2021 in Sessions Case, No.263/2016 is hereby set aside.Cri.Appeal No.121/2023
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(iii) The appellant is acquitted of the offences punishable under Sections 302 and 201 of the Indian Penal Code. The appellant be set at liberty forthwith if not required in any other case. Fine amount, if paid, be refunded to him.
(iv) Criminal Application No.1814/2024 stands disposed of.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-