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       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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(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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(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 5th 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 5th 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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(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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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  

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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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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  

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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  

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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  

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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  

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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  

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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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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.

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(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  

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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  

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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  

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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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