Bombay High Court
Suresh Suklal Mahajan vs The State Of Maharashtra on 15 January, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:1684-DB
APEAL-734-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 734 OF 2023
Suresh Suklal Mahajan
Age: 53 years, Occu.: Labour,
R/o Saptshrungi Colony, Jalgaon,
Dist. Jalgaon ..APPELLANT
VERSUS
State of Maharashtra
Through MIDC Police Inspector,
Jalgaon, Dist. Jalgaon ..RESPONDENT
....
Mr. B.R. Waramaa, Advocate for appellant
Mr. N.S. Tekale, A.P.P. for respondent - State
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 08th JANUARY, 2025
PRONOUNCED ON : 15th JANUARY, 2025
JUDGMENT ( PER : R.G. AVACHAT ,J. ) :
1. The challenge in this appeal is to the judgment and order of
conviction and consequential sentence passed by the Court of Additional
Sessions Judge, Jalgaon ('trial Court') in Sessions Case, No. 255 of 2021 on
12th July, 2023. Vide the impugned order, the appellant has been convicted
for the offence of murder, and therefore, sentenced to suffer imprisonment
for life and to pay a fine of Rs.5,000/- with default stipulation.
2. The facts in brief giving rise to the present appeal are as follows :-
Vandana (deceased) would reside alongwith her son, Dipak (PW
4) and his wife, Amruta as a tenant in one room premises belonging to PW 1
APEAL-734-23.odt
- Ramesh. Vandana was a vegetable vendor. She was acquainted with the
appellant. The acquaintance developed into emotional relationship. The
appellant would frequently visit the house of Vandana. The son of the
deceased deposed that the appellant and deceased would reside as
husband and wife for many years. There is, however evidence that the
appellant was already married and blessed with children. He has parents as
well. His permanent residence was somewhere else.
In the early morning of 27th August, 2021, Vandana was found
dead in her room. On the previous evening i.e. by little past 07:00 p.m.
Vandana and the appellant were seen together. They had been to the house
of PW 3 - Ramlal to get their money back. It was a sum of Rs.50,000/-.
According to the prosecution, there used to be frequent quarrels between the
appellant and the deceased. The appellant, therefore, committed her
murder.
3. The First Information Report ('F.I.R.') (Exh.17) was lodged by the
landlord, PW 1 - Ramesh. A crime vide C.R. No. 567 was, therefore,
registered. The appellant was arrested. Crime scene panchanama (Exh.64)
was drawn. Mortal remains of Vandana was subjected to inquest and
autopsy as well. Before arrest, the appellant too was subjected to medical
examination. Clothes on the person of both, the appellant and the deceased,
were taken charge of. The articles found at the crime scene were also
seized. All the seized articles were sent to R.F.S.L., Nashik. Statements of
the persons acquainted with the facts and circumstances of the case were
APEAL-734-23.odt
recorded. On completion of investigation, the appellant was proceeded
against by filing the charge-sheet.
4. The trial Court framed the charge (Exh.8). The appellant pleaded
not guilty. His defence was of total denial.
5. To bring home the charge, prosecution examined thirteen
witnesses and produced in evidence certain documents. On appreciation of
the evidence in the case, the trial Court convicted and consequently
sentenced the appellant as stated above.
6. Learned counsel for the appellant would submit that the case is
based on circumstantial evidence. The room in which the deceased would
reside, was located on the ground floor. The three adjoining rooms had also
been occupied by three different tenants. The upstairs premise was also in
occupation of someone else. None of the occupants of those premise had
seen the appellant in the room of the deceased on the fateful night.
According to him, the burden of proof remains static. It is for the prosecution
to bring home the charge beyond reasonable doubt. No motive has been
proved or even alleged. The substantial evidence, in the nature of recovery
of a trouser and knife at the instance of the appellant was from an open
space, which was accessible to one and all. The C.A. report (Exh.44) of
those articles do not conclusively indicate them to have blood stains of blood
group of the deceased. Learned counsel relied on the following two
authorities to ultimately urge for allowing the appeal :-
APEAL-734-23.odt
I) Mulak Raj & Ors. Vs. State of Haryana, 1996 AIR (SC)
II) Harish Shamsundar Chhangani & Ors. Vs. State of
Maharashtra & Ors., 2016 All.M.R.(Cri.) 5290
7. Learned A.P.P. would, on the other hand, submit that there was
voluminous evidence to indicate the appellant did have extra marital
relationship with the deceased. Both of them would reside together for long.
A day before the incident, the appellant and the deceased were last seen
together. According to learned A.P.P., it is therefore for the appellant to
explain when did he part with the company of the deceased. He offered no
explanation. Learned A.P.P. then adverted our attention to the postmortem
report (Exh.85) and opinion of the Medical Officer that time of death was
within twenty-four hours to thirty-six hours, within which the appellant and the
deceased were together. He then brought to our notice the arrest
panchanama of the appellant (Exh.107) to indicate there was blunt trauma on
his chest (injury). Learned A.P.P. meant to say that there must have been
resistance on the part of the deceased. He then adverted our attention to the
Call Data Records (CDRs) of the cell phone of the appellant to indicate that
on the fateful night his location was at Rameshwar Nagar, whereat the
deceased would reside. According to learned A.P.P. it is, therefore, for the
appellant to come clean and explain the incriminating circumstances
appearing against him. He relied on the judgment of the Apex Court in case
of State of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254 and particularly
the following observations made therein :-
APEAL-734-23.odt
"17. We have been taken through the entire evidence on record. The
medical evidence on record clearly proves that the death of Kalawati
and her two minor daughters was homicidal caused by strangulation.
The cause of death was asphyxia. It is also established on record that
the deceased was last seen alive in the company of respondent on 3-2-
1998 at her house. The prosecution has also successfully established the
fact that the house was found locked on the morning of 4-2-1998 and
continued to remain locked till it was opened after removing the door
on 6-2-1998. Throughout this period the respondent was not to be seen
and he was arrested only on 17-2-1998. Neither at the time of his
arrest, nor in the course of investigation, nor before the Court, has the
respondent given any explanation in defence. He has not even furnished
any explanation as to where he was between 4-2-1998 and 17-2-1998.
It has been argued on behalf of the prosecution that this most important
circumstance has been completely ignored by the High Court. The case
of the prosecution substantially rested on this circumstance. The
respondent was obliged to furnish some explanation in defence. He
could have explained where he was during this period, or he could have
furnished any other explanation to prove his innocence. Counsel for the
respondent on the other hand, contends that though the respondent
furnished no explanation whatsoever, there is evidence on record to
prove that he had gone to attend Suratgarh fair with his family
members. A question, therefore, arises whether the presumption under
Section 106 of the Evidence Act may be drawn against the respondent
in the facts of the case, since the facts as to where he was during the
relevant period and when he parted company with the deceased, were
matters within his special knowledge the burden of proving which was
cast upon him by law.
23. It is not necessary to multiply with authorities. The principle is
well settled. The provisions of Section 106 of the Evidence Act itself are
unambiguous and categoric in laying down that when any fact is
especially within the knowledge of a person, the burden of proving that
fact is upon him. Thus, if a person is last seen with the deceased, he
must offer an explanation as to how and when he parted company. He
must furnish an explanation which appears to the Court to be probable
and satisfactory. If he does so he must be held to have discharged his
burden. If he fails to offer an explanation on the basis of facts within his
special knowledge, he fails to discharge the burden cast upon him by
Section 106 of the Evidence Act. In a case resting on circumstantial
evidence if the accused fails to offer a reasonable explanation in
discharge of the burden placed on him, that itself provides an additional
APEAL-734-23.odt
link in the chain of circumstances proved against him. Section 106 does
not shift the burden of proof in a criminal trial, which is always upon
the prosecution. It lays down the rule that when the accused does not
throw any light upon facts which are specially within his knowledge and
which could not support any theory or hypothesis compatible with his
innocence, the Court can consider his failure to adduce any explanation,
as an additional link which completes the chain. The principle has been
succinctly stated in Naina Mohd., AIR 1960 Mad 218.
24. There is considerable force in the argument of counsel for the
State that in the facts of this case as well it should be held that the
respondent having been seen last with the deceased, the burden was
upon him to prove what happened thereafter, since those facts were
within his special knowledge. Since, the respondent failed to do so, it
must be held that he failed to discharge the burden cast upon him by
Section 106 of the Evidence Act. This circumstance, therefore, provides
the missing link in the chain of circumstances which prove his guilt
beyond reasonable doubt."
According to learned A.P.P., the trial Court has rightly convicted
the appellant. The evidence on record warrants no interference with the
impugned order. He, therefore, urged for dismissal of the appeal.
8. Considered the submissions advanced. Perused the judgment
impugned herein and the authorities relied on. Needless to mention, each
criminal case has to be decided on the facts and circumstances appearing
therein. True, principle of law emerged from the judgment of the Apex Court
or the Bench of co-equal strength of the High Court would be binding on this
Court. Learned counsel for the appellant was not right in submitting that the
judgment of this Court relied on by him has no precedential effect of the
Bench of co-equal strength, is incorrect. Be that as it may.
APEAL-734-23.odt
9. Since the case is based on circumstantial evidence, we first need
to have reference to the judgment of the Apex Court in case of Sharad
Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, wherein
it has been observed thus :-
"(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned
'must or should' and not merely "may be" established;
(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;
(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. In the case in hand, the following circumstances are relied on to
bring home the charge :-
(I) Homicidal death;
(II) Extra-marital relationship between the appellant and the
deceased;
(III) Last seen together;
(IV) Recovery of knife and trouser of the appellant, stained with
blood;
(V) Failure of the appellant to explain the incriminating
circumstances appearing in the evidence against him;
APEAL-734-23.odt
(I) Homicidal death :-
11. Vandana (deceased) met with homicidal death is a fact not in
dispute before us. It was PW 10 - Dr. Vaibhav, who conducted autopsy on
the mortal remains of Vandana. He noticed twenty-six antemortem injuries.
In his opinion, the cause of death was head injury. He further opined that
injury nos. 1 to 26, collectively, were sufficient to cause death in the ordinary
course of nature. Six injuries suffered by the deceased were incised injuries.
(II) Extra-marital relationship between the appellant and the deceased :-
12. The motive attributed to the appellant was that his frequent
quarrels with the deceased. There is, however no evidence to indicate over
what issue both fought/quarreled with each other. The F.I.R. (Exh.17) was
lodged by the landlord, PW 1 - Ramesh. After having informed him by PW 3
- Dipak, he went to his premises and peeped into the room. He noticed
Vandana was lying. A rope was tied to her neck and the other end was
tagged to a hook of a rafter. On his reporting, the police arrived. A crime
scene panchanama (Exh.64) was drawn. Some articles including 500 mg.
weighing weight (iron) was seized. The evidence of PW 1- Ramesh would
indicate that the appellant would intermittently visit the deceased.
During his cross-examination, he testified that several persons
used to visit his premise since number of tenants were residing therein
separately. The evidence of PW 1 - Ramesh is relevant only to the extent of
setting the criminal law in motion and the fact that the deceased was residing
in one of his rooms as a tenant.
APEAL-734-23.odt
13. PW 2 - Kunal was a friend of PW 3 - Dipak (son of the
deceased). Kunal was residing in the adjoining room of the deceased. He
testified that the incident took place during the intervening night of 27th and
28th August, 2021. He was asleep in his room. On receiving the phone call
of Dipak, he went to the room of the deceased and knocked on the door of it.
There was, however no response. No door was opened in response to his
knock. He, therefore, peeped in through the window to see Vandana was
lying down in the condition of hanging with a rope. The evidence of this
witness too does not further the prosecution case, except to the extent that
his evidence further tells that one old person would visit Vandana frequently.
He identified the appellant, who was present before the Court through video
conferencing as that person, who used to visit Vandana.
14. Evidence of this witness is, however silent to indicate that on the
intervening night or sometime there before, the appellant was with Vandana
in her room.
15. PW 4 - Dipak, son of the deceased, deposed that on the given
day he was away. He was residing at village Tondar, Tq. Udgir, Dist. Latur
along with his wife - Amruta. His father died in the year 1995. Vandana
(deceased) would reside at Jalgaon alongwith the appellant. They had
intimate relationship. They stayed together for about twenty years. He too
was residing with his mother. He further testified that there used to be
APEAL-734-23.odt
frequent quarrels between his mother and the appellant. He, therefore,
started residing at Tondar, Tq. Udgir.
There is no concrete evidence as to since when Dipak started
residing away from his mother, because PW 1 and 2 had deposed that the
deceased would reside alongwith her son - Dipak and his wife in the room
owned by PW 1 - Ramesh.
(III) Last seen together :-
16. PW 3 - Ramlal would reside in the very vicinity i.e. Rameshwar
Nagar. He testified that deceased - Vandana was acquainted with him. One
ole person used to visit Vandana's residence. He identified the appellant
before the Court as that old person. He further testified that both, the
appellant and Vandana had come to his residence by little past 07:30 p.m. of
the fateful night and took away Rs.50,000/- kept with him by them. He
further testified that thereafter he took the dinner and went to sleep. On the
following morning he learned about the incident.
During his cross-examination, he deposed that he did not know
the occupation of the appellant. He admitted to have no personal
acquaintance with the appellant. He, however denied that Vandana had
alone come to him to get back the money.
17. Based on the evidence of this witness, the prosecution wants to
make out a case of the appellant to have been lastly seen in the company of
the deceased. Admittedly, this witness did not know the appellant. He only
APEAL-734-23.odt
described him as an old person, who used to visit Vandana. According to
him, both of them had been to his residence. In our view, when PW 3 -
Ramlal was not knowing the appellant (suspect of committing murder of
Vandana), the Investigating Officer ought to have arranged for the test
identification parade to have lead in the investigation that the appellant to
have been lastly seen in the company of the deceased.
18. Admittedly, there were four rooms on the ground floor and two on
the upper floor of the said premise. Each room was occupied by a separate
tenant. None of them claimed to have heard a quarrel / noise or even
presence of the appellant at/in the room of Vandana from 07:30 p.m.
onwards or any time thereafter until before Vandana was noticed dead in her
room. In our view, the evidence as regards the last seen theory is very hazy.
True, the appellant to each and every question put to him gave negative
response. He did not offer any explanation.
(IV) Recovery of knife and trouser of the appellant, stained with blood :-
19. On arrest of the appellant, he made a disclosure statement in the
presence of PW 13 - Vijay, Investigating Officer and PW 7 - Satish, panch
witness. The disclosure statement made by the appellant finds place at
Exhibit 72. He then led them to an isolated place in bushes and took out a
knife and his trouser. Now let us see whether this disclosure statement
conclusively lead us to infer the appellant's complicity in the crime in
question. The blood grouping of blood of the deceased was inconclusive.
APEAL-734-23.odt
Meaning thereby, her blood group could not be ascertained. Admittedly, the
blood group of the appellant is 'O'. The trouser, which was recovered
pursuant to his disclosure statement, borne a blood stain of the blood group
'O' (Exh.44). So far as the blood grouping of the blood found on the knife is
concerned, the C.A. report (Exh.44) is inconclusive. True, human blood was
found on the knife. The very C.A. report indicates clothes of the deceased
borne blood stains of blood group 'O'. One may, therefore, infer that the
blood group of the deceased might be 'O'
(V) Failure of the appellant to explain the incriminating circumstances
appearing in the evidence against him :-
20. Then our attention was drawn to the arrest panchanama of the
appellant (Exh.107), which suggests there was injury to his thumb and blunt
trauma on his chest. Admittedly, PW 11 - Dr. Nita had examined the
appellant soon before his arrest. Her evidence indicates that on local
examination, she did not notice any external injury or even swelling on the
person of the appellant. She was examined as a prosecution witness. The
contents of arrest panchanama gets eclipsed by the the evidence of PW 11 -
Dr.Nita.
21. The CDRs of the cell phone of the appellant were relied on.
Those find place at Exhibit 109. The appellant admitted these documents.
True, the cell phone of the appellant was shown at a location falling under
Rameshwar Nagar tower. The very information supplied by the cellular
company indicates that the said SIM card was issued to the appellant on his
APEAL-734-23.odt
address, "15 A, Rameshwar Colony, Kadil Bhag, Rameshwar Colony Parisar,
Mehrun, Jalgaon". It needs no mention that each tower covers at least a
distance of 3-4 kilometers in radius. When the very SIM card was issued to
the appellant on his residential address of Rameshwar Nagar, he has every
reason to contend that he was residing at Rameshwar Nagar at the relevant
time. It is true that PW 4 - Dipak in his cross-examination testified that the
appellant would reside at Saptashrungi Colony. To be specific, whether the
appellant is residing at Saptashrungi Colony, the answer is in present tense.
His cross-examination was conducted in November 2022, i.e. about sixteen
months after the incident. The appellant is charged with an offence of
murder and the punishment therefor is either death or imprisonment for life.
There should have been, therefore, direct or concrete circumstantial
evidence. The circumstances relied on should be conclusive in nature. We
do not reiterate what has been observed by the Apex Court in Sharad
Sarda's case referred to hereinabove.
22. It is true that PW 10 - Dr. Vaibhav has given the time of death
between twenty-four hours to to thirty-six hours before the conduct of
autopsy. The same is very vague. Although the first hour thereof may be
falling or corresponding to the time of 07:00 p.m. by which PW 3 - Ramlal
claimed to have seen the appellant and the deceased together as they had
come to him. We had already observed that the evidence of this witness is
hazy for want of holding T.I. parade. This witness neither known the
appellant nor has he given his description.
APEAL-734-23.odt
23. At the cost of repetition, it is observed that burden of proof in
criminal case remains static. True, the incriminating circumstance appearing
in the evidence needs to be explained by the accused. In our view, the
incriminating circumstances taken together do not form the chain so as to
conclude that it was the appellant and none else, who committed murder of
Vandana. The facts of the case of Kashi Ram (supra) relied on by learned
A.P.P. indicate that the accused - respondent therein was married to
Kalawati (deceased). They were blessed with two children. There was no
cordial relationship. There were incidents of the respondents assaulting
Kalawati and treat her with cruelty. A panchayat had also been convened at
the house of father of the respondent. From the facts of the said case, it
would be crystal clear that the respondent therein (accused) was staying with
his wife (deceased) and two children, and thereafter he disappeared. The
facts of the present case would indicate that the appellant was married and
blessed with children. His parents were alive. He would stay somewhere
else. He would intermittently visit the house of Vandana (deceased).
Nobody had seen him in the room of Vandana on the fateful night. Neither
he was seen entering Vandana's room or exiting the same at the material
time. That makes all the difference.
24. In short, appreciation of the aforesaid entire evidence lead us to
conclude the prosecution to have failed to bring home the charge beyond
reasonable doubt. Based on such quality of evidence, the trial Court ought
not to have convicted the appellant. Interference with the impugned order of
APEAL-734-23.odt
conviction and consequential sentence is, therefore, warranted. In the result,
appeal succeeds. Hence, the following order :-
ORDER
(I) Criminal appeal is allowed.
(II) Impugned judgment and order dated 12th July, 2023 passed
by the Court of Additional Sessions Judge, Jalgaon in
Sessions Case No. 255 of 2021 convicting the appellant for
the offence punishable under Section 302 of the Indian
Penal Code is hereby set aside. He stands acquitted
thereof.
(III) The appellant be released forthwith, if not required in any
other case.
(IV) Fine amount paid, if any, be refunded to him.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
