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
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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
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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.
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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.
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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
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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
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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,
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(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.
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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
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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.
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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
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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
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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.
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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
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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)
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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
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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
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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
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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
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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
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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.
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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/-
