Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 507 OF 2008

Tulshiram Sahadu Suryawanshi & Anr. .... Appellant(s)

Versus

State of Maharashtra .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1)This appeal has been preferred against the final judgment

and order dated 09.04.2007 passed by the High Court of

Judicature at Bombay, Bench at Aurangabad, in Criminal

Appeal No. 238 of 2005 whereby the Division Bench of the

High Court dismissed the appeal filed by the appellants herein.

2)Brief facts:

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Page 2 (a)The present appeal pertains to the death of one Ashabai,

resident of Chanda Taluk, Karjat District, Ahmednagar. She

was married to one Nitin Tulshiram Suryawanshi-Accused No.

3 herein (special leave petition with respect to this accused has

already been dismissed on 02.11.2007). Tulshiram Sahadu

Suryawanshi (A-1) and Sindhubai Suryawanshi (A-2) are the

parents of A-3. At the relevant time, A-3 was working as a

driver.

(b)Sampat Madhavrao Suryawanshi (PW-2) is the relative of

Kisan Bhanudas Sule (PW-1)-the father of the deceased and

was the mediator of the said marriage. On 28.02.2003, the

dead body of Ashabai was found to be floating in the well of

one Sarjerao Suryawanshi with both the legs and hands tied

by means of the border of a Saree. PW-2 lodged a complaint

against the appellants herein with regard to the above incident

with the Karjat P.S., Ahmednagar, alleging the ill-treatment

meted out to the deceased in order to fulfill the demand of Rs.

50,000/- for the purchase of a Jeep.

(c)On 28.02.2003, on the basis of the said complaint,

Accidental Death No. 3 of 2003 and, after investigation, Crime

No. 24 of 2003 was registered at the said police station.

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Page 3 (d)After filing of the charge sheet, the case was committed to

the Court of Sessions and numbered as Sessions Case No. 102

of 2004. On 03.08.2004, the 5

th

Adhoc Additional Sessions

Judge, Ahmednagar, framed charges against the appellants

under Sections 302, 498-A read with Section 34 of the Indian

Penal Code, 1860 (in short ‘the IPC’). Again, on 28.09.2004,

an additional charge of Section 304-B read with Section 34 of

the IPC was also framed against the appellants.

(e)By order dated 10.01.2005, the 5

th

Adhoc Additional

Sessions Judge, convicted all the accused persons and

sentenced them to undergo rigorous imprisonment under

various heads mentioned above including life sentence and all

the sentences were to run concurrently.

(f)Being aggrieved, the appellants preferred an appeal being

Criminal Appeal No. 238 of 2005 before the High Court of

Bombay. By impugned order dated 09.04.2007, the Division

Bench of the High Court while confirming the order of

conviction and sentence passed by the Sessions Court,

dismissed the appeal filed by the appellants herein.

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Page 4 (g)Aggrieved by the decision of the High Court, the

appellants herein have filed this appeal by way of special leave

before this Court.

3)Heard Mr. Harinder Mohan Singh, learned amicus curiae

for the appellants-accused and Mr. Shankar Chillarge, learned

counsel on behalf of the Respondent-State.

4)It is not in dispute that the conviction of the appellants A-

1 and A-2 is based on circumstantial evidence, hence, we have

to see how far the prosecution has established the chain and

able to prove its case beyond reasonable doubt.

Circumstantial Evidence:

5)In Sharad Birdhichand Sarda vs. State of

Maharashtra, (1984) 4 SCC 116, this Court after referring to

various earlier decisions, formulated the following conditions to

be fulfilled before a case against an accused can be said to be

fully established based on circumstantial evidence:-

(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

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Page 5 be proved” as was held by this Court in Shivaji Sahabrao

Bobade v. State of Maharashtra 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 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.”

6)Keeping these principles in mind, let us analyze the

circumstances relied on by the prosecution.

7)As mentioned earlier, the case of the prosecution is that

A3-husband of the deceased and A-1 and A-2 – parents of A3

killed the deceased by throwing her into the well by tying her

hands and legs with the border of a Saree because of the non-

fulfillment of the demand of Rs.50,000/- made by the accused

5

Page 6 persons for the purchase of a Jeep as A3 was a driver. The

father of the deceased was examined as PW-1. PW-2 acted as

a mediator in the settlement of marriage of the deceased with

A3. The doctor, who performed the post mortem on the

deceased, was examined as PW-6.

8)The circumstances relied on by the prosecution are:-

i) all the accused ill-treated the deceased;

ii) the well in which the body of the deceased was recovered is

situated at a distance of 400 ft. from the house;

iii) legs and hands of the deceased were tied using a border of a

saree; and

iv) recovery of the said border of the saree.

9) Kisan Bhanudas Sule (PW-1) – the father of the deceased, in

his evidence, has stated that the deceased-Ashabai was his

only daughter and she was married to A3. A-1 and A-2 are

parents of A3. According to him, after marriage, Ashabai went

to reside with the accused and she was treated decently for a

period of 5 months but, thereafter, they started ill-treating her

by beating and by not providing sufficient food. He also stated

that A-3, on the instigation of A-1 and A-2, was demanding

Rs.50,000/- for the purchase of a jeep. According to him, at

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Page 7 the relevant time, A3 was employed as a driver and Ashabai

had disclosed the demand as well as the ill-treatment to PW-1

whenever he had gone to her house to meet her. When PW-1

brought her daughter to his home on the occasion of Sakrant,

she informed him that she would not go back to her

matrimonial home as her husband had threatened her not to

come back without Rs. 50,000/-. A perusal of the evidence of

PW-1 shows that her daughter Ashabai was treated well only

for a period of 5 months from the date of her marriage and

after the said period, all of them started ill-treating her by way

of beating and by not providing sufficient food. In his Chief-

examination, he has implicated all the three accused by stating

that “they started ill-treatment……..”

10)PW-2, who acted as the mediator in the marriage of the

deceased with A3, lodged a complaint (Exh. 26) and explained

about the ill-treatment meted out to the deceased at her

matrimonial home. It was he who intimated the police that the

dead body of the deceased-Ashabai was seen floating in a well

belonging to one Sarjerao Suryawanshi. On the basis of the

said information, on 28.02.2003 at 4.15 p.m., Accidental

Death No. 3 of 2003 was registered. After investigation and on

7

Page 8 the basis of the Post Mortem Report (Exh. 35), Police Inspector

Shinde (PW-8) attached to Karjat P.S. registered a case being

Crime No. 24 of 2003 under Sections 302 and 498-A read with

Section 34 of IPC. PW-2 has also stated that all the 3 accused

were living together and his house is at a distance of 2 kms.

away from the house of the accused and he asserted that he

was the mediator for the performance of marriage between the

deceased and A3. He also deposed that the deceased was

treated well for 4-5 months after the marriage and, thereafter,

all the accused started ill-treating her. He also stated that all

the accused used to demand Rs.50,000/- from her and they

also used to beat and abuse her.

11)From the evidence of PWs 1 and 2, the first circumstance

that all the 3 accused ill-treated the deceased is clearly

established and rightly relied on and accepted by the trial

Court and the High Court.

12)The second circumstance heavily relied on by the

prosecution is the distance between the house of the accused

and the well wherein the body of the deceased was found to be

floating. It was PW-2, who first noticed the dead body of the

deceased in the well and filed a complaint to the police. PW-2

8

Page 9 has stated that A-3 and one Prahlad came to his house and

reported about missing of Ashabai (the deceased) and enquired

whether she had come to his house. Thereafter, PW-2, along

with others, started searching her for the whole night in order

to verify her whereabouts. He also stated that when he

attempted to go near the well, the accused prevented him from

going to the well belonging to one Sarjerao Suryawanshi. It

further shows that only on the next day, when PW-2 carried

out further search for Ashabai, he came to know from his

nephew that the body of Ashabai was found lying in the well

and after seeing the dead body, he filed a complaint to the

police. The assertion of PW-2 that he was prevented from

going to the side of the well by the accused fully establish

another circumstance which shows that all the accused were

responsible for the death of the deceased. Further, without the

support and assistance of A-1 and A-2, it would not be

possible to carry the deceased by A3 alone to the well which is

at a distance of 400 ft.

13)Another important circumstance relied on and proved by

the prosecution is that the legs and hands of the deceased

were tied at the time of throwing her into the well. PW-1, in

9

Page 10 his evidence has stated that, after coming to know of her

absence in the matrimonial home, based on the complaint of

PW-2, the dead body of the deceased was removed from the

well by means of a wooden cot. He further noticed that the

hands and legs of Ashabai were tied by means of the border of

a saree. PW-1 further proved Article Nos. 5, 6 and 7 as the

pieces of the border of the saree with which the hands and legs

of the deceased-Ashabai were tied. This fact was also

strengthened by the evidence of PW-2. After getting

information from his nephew that body of Ashabai was found

lying in the well of Sarjerao, PW-2, after verification, made a

complaint to the police and, because of the same, police came

to the spot and carried on further formalities. He further

deposed that “her hands and legs were tightly tied. The hands

and legs were tied by means of the border of a saree…..” He

also affirmed that after seeing the body of Ashabai with her

legs and hands tied, he went to Karjat P.S. and filed a

complaint therein.

14)In addition to the evidence of PWs 1 and 2 about tying of

the legs and hands of the deceased by use of the border of a

Saree, Dr. Rajashri Pagaria (PW-6), who conducted the Post

10

Page 11 Mortem (Exh. 35) on the dead body of the deceased found that

the lower extremities and ankle joints were tied by means of a

piece of saree and the upper extremities were found to be

tightened by means of a cloth at the wrist joint. She further

opined that the tying of the hands and legs was not possible by

the victim herself. She explained that external injuries were

post mortem and aquatic injuries. Her stomach was found to

be containing about 200 ml. of water. The large intestine

contained fecal matter. She also opined that the death was

due to drowning. From the evidence of PWs 1, 2 and 6, it is

clear that the legs and hands of the deceased were tied by the

use of the border of a saree. It has also come in evidence that

it would not be possible for A-3 alone to tie both the legs and

hands without the assistance of A1 and A2 who were present

in the house. It has been further noticed that except the three

accused and the deceased, none were residing in their house.

15)Another circumstance relied on and proved by the

prosecution is the recovery of the border of the saree which is

an important piece of evidence and the same was established

by Amrut Akhade (PW-7) - panch witness for the

memorandum. PW-7, in his evidence, stated that on

11

Page 12 05.03.2003, he was called at P.S. Karjat for the recording of

panchnama. He further deposed that all the accused were

present there and A-2 gave a statement before him that all the

accused tied the legs and hands of the deceased and threw her

into the well. After taking down the statement, the police

obtained thumb impression of A-2 and signature of PW-7.

According to him, she also disclosed that she would give out

the clothes by means of which her hands and legs were tied.

PW-7 also proved Exh. 40 as the panchnama recorded for the

said purpose which bears his signature. Another pancha to

the said panchnama was Hanumant Shelke and the same was

also read over to him. He further deposed that he along with

police and another Pancha went to the basti of Sindubai (A-2)

in a police jeep. Sindubhai (A-2) asked the police to stop the

jeep and then she handed over the border of the saree which

was kept in a chapper (top portion). The Police recorded the

panchnama of the seizure of the border of the saree and PW-7

also admitted his signature therein.

16)In addition to the evidence of PW-7, one Dada S.

Suryawanshi, resident of Rehkuri, Tal. Karjat, Dist.

Ahmednagar, was examined as PW-5. In his evidence, he

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Page 13 deposed that the dead body was taken out from the well in his

presence with the help of a wooden cot. He further noticed

that hands and legs of the deceased were tied by means of a

red colour border of a saree. The police drew inquest in his

presence. He also signed the memorandum which is Exh. 29.

He denied the suggestion that Sampat and other persons got

into the well, tied the hands and legs of the deceased and then

the dead body was taken out.

17)This Court, in Anter Singh vs. State of Rajasthan,

(2004) 10 SCC 657, held that even if panch witness turned

hostile, the evidence of the person who effected the recovery

would not stand vitiated. After considering the scope and

ambit of Section 27 of the Evidence Act, 1872 this Court

enumerated the following principles to be adhered to.

“16. The various requirements of the section can be summed

up as follows:

(1) The fact of which evidence is sought to be given must be

relevant to the issue. It must be borne in mind that the

provision has nothing to do with the question of relevancy.

The relevancy of the fact discovered must be established

according to the prescriptions relating to relevancy of other

evidence connecting it with the crime in order to make the

fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some

information received from the accused and not by the

accused's own act.

13

Page 14 (4) The person giving the information must be accused of any

offence.

(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of information

received from an accused in custody must be deposed to.”

(7) Thereupon only that portion of the information which

relates distinctly or strictly to the fact discovered can be

proved. The rest is inadmissible.”

From the evidence of PW-1, PW-2, PW-6 – the Doctor, who

conducted the post mortem, PWs-5 and 7 – the panch witnesses

and in the light of the principles enumerated above, we are

satisfied that the material object, namely, the border of the

saree used for tying legs and hands of the deceased was

correctly identified and marked and the same has been rightly

relied on by the prosecution and accepted by the courts below.

The evidence of both PWs 5 and 7 fully support the contents of

memorandum which is Exh. Nos. 29 and 40 respectively.

18)The evidence led in by the prosecution also shows that at

the relevant point of time, the deceased was living with all the

3 accused. In other words, the appellants, their son-A3 and

the deceased were the only occupants of the house and it was,

therefore, incumbent on the appellants to have tendered some

explanation in order to avoid any suspicion as to their guilt.

All the factors referred above are undoubtedly circumstances

which constitute a chain even stronger than the account of a

14

Page 15 eye-witness and, therefore, we are of the opinion that

conviction of the appellants is fully justified.

19)It is settled law that presumption of fact is a rule in law of

evidence that a fact otherwise doubtful may be inferred from

certain other proved facts. When inferring the existence of a

fact from other set of proved facts, the Court exercises a

process of reasoning and reaches a logical conclusion as the

most probable position. The above position is strengthened in

view of Section 114 of the Evidence Act, 1872. It empowers the

Court to presume the existence of any fact which it thinks

likely to have happened. In that process, the Courts shall have

regard to the common course of natural events, human

conduct etc in addition to the facts of the case. In these

circumstances, the principles embodied in Section 106 of the

Evidence Act can also be utilized. We make it clear that this

Section is not intended to relieve the prosecution of its burden

to prove the guilt of the accused beyond reasonable doubt, but

it would apply to cases where the prosecution has succeeded in

proving facts from which a reasonable inference can be drawn

regarding the existence of certain other facts, unless the

accused by virtue of his special knowledge regarding such

15

Page 16 facts, failed to offer any explanation which might drive the

Court to draw a different inference. It is useful to quote the

following observation in State of West Bengal vs. Mir

Mohammed Omar, (2000) 8 SCC 382:

“38. Vivian Bose, J., had observed that Section 106 of the

Evidence Act is designed to meet certain exceptional cases in

which it would be impossible for the prosecution to establish

certain facts which are particularly within the knowledge of

the accused. In Shambhu Nath Mehra v. State of Ajmer the

learned Judge has stated the legal principle thus:

“This lays down the general rule that in a criminal case the

burden of proof is on the prosecution and Section 106 is

certainly not intended to relieve it of that duty. On the

contrary, it is designed to meet certain exceptional cases in

which it would be impossible, or at any rate

disproportionately difficult for the prosecution to establish

facts which are ‘especially’ within the knowledge of the

accused and which he could prove without difficulty or

inconvenience.

The word ‘especially’ stresses that. It means facts that are

pre-eminently or exceptionally within his knowledge.”

20)In the light of the above principles, in the present case,

we have not come across any serious flaw in the investigation

which had affected the case. On the other hand, we are

satisfied that the prosecution has established all the

circumstances by placing acceptable evidence. We are also

satisfied that the chain is complete and without the

involvement and assistance of A-1 and A-2, A3 alone could not

have tied the hands and legs of the deceased with the border of

16

Page 17 the saree and threw her into the well which is at a distance of

400 ft. from their house.

21)In the light of the above discussion, we fully agree with

the conclusion arrived at by the trial Court and the High

Court, consequently, the appeal fails and the same is

dismissed.

...…………… .………………………… J.

(P. SATHASIVAM)

..…....………………………………… J.

(RANJAN GOGOI)

NEW DELHI;

SEPTEMBER 14, 2012.

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