TULSHIRAM SAHADU SURYAWANSHI Vs STATE OF MAHARASHTRA
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: Crl.A. No.-000507-000507 / 2008
Diary number: 21027 / 2007
Advocates: Vs
ASHA GOPALAN NAIR
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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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