Tukaram More & Ors Vs. The State of Maharashtra  Insc 303 (23 July 2002)
Ms.Andthoasrhmadhheigkdaeri Dharmadhikari, J
court by Order dated 04.5.2001 in this case has rejected the Special Leave
Petition preferred by appellants nos. 1 & 2 for appeal to this court
against their conviction and sentences under Sections 302, 323, 201 read with
Section 34 on the Indian Penal Code [for short 'I.P.C']. This appeal by grant
of leave, therefore, is confined to the consideration of the cases of appellants
nos. 3 to 6.
judgment of the court of Additional Sessions Judge, Billoli in Sessions Case
No. 3 of 1994, the appellants before us have been convicted under Section 302
read with Section 34 of IPC to undergo a sentence of imprisonment of life and a
fine of Rs. 1,000/- each, in default of payment of fine, RI for six months.
They have also been convicted for offence under Section 323 read with Section
34 of IPC and sentenced to pay a fine of Rs. 1,000/- each and in default, to
undergo RI for six months. They are separately convicted and sentenced for
offence under Section 201 read with Section 34 of IPC and sentenced to undergo
RI for 3 years and to pay a fine of Rs. 500/- each, in default of payment of
fine, further RI for 3 months.
of the alleged crime is Sundarabai aged about 20 years. Her parents died during
her childhood. Her uncle Dashrath (PW-1) brought her up.
was married to convicted accused Taterao, about two years before the date of
her death in the intervening night of 22.10.1993 and 23.10.1993. It is alleged
that 10 or 12 days before she was found dead, she was beaten by her husband for
not attending to the household work and she had gone to complain about it to
her cousin, Raosaheb (PW-2). Raosaheb informed the incident to her uncle, Dashrath.
Both of them saw injuries over the head and back of the deceased.
of them then took her to her marital home and after pacifying the members of
her husband's family, she was left at their place at about 3.00 PM in the afternoon of 22.10.1993. On the next day i.e.
23.10.1993, the co-accused, Vithal Tukaram (who is one of the appellants before
us) reported to Dashrath, uncle of the deceased that she had gone to fetch
water from the bore-well and from there did not return. Dashrath then went to
the Police Station to lodge report of the fact of missing of Sundarabai. At
that time, one villager Subhash Kondiba (PW-4) came to the Police Station to
report that he had seen a dead body floating in the well of sarpanch of the
village. The dead body was taken out of the well. After inquest, autopsy was
performed. The post-mortem report revealed that there were as many as 15
injuries of the nature of 'contusions' of different sizes on various parts of
her body. The cause of death found by the autopsy surgeon was not 'drowning'
but 'strangulation by neck'. On the evidence of Dashrath (uncle of deceased)
and Raosaheb (cousin of the deceased) and Ananda More (PW-3) who was (a neighbour
of the accused) both the trial court and the High Court in appeal accepted the
prosecution case that the deceased was subjected to physical assaults by
members of the family on minor complaints against her in course of household
work and she was killed by them. Based on the oral evidence and the medical
evidence indicating her death to be homicidal, the courts below came to the
conclusion that all the accused participated in the commission of the crime.
They were, therefore, convicted and sentenced as mentioned above.
learned counsel appearing for the appellants submit that conviction of the
appellants is based purely on circumstantial evidence which is not of a
conclusive nature. The learned trial Judge in considering and weighing the
evidence led by the prosecution has recorded that there is no direct evidence
of the appellants having participated in beating the deceased and killing her
by strangulation. According to learned trial Judge, as the incident took place
inside the house, 'the accused persons alone could have the knowledge as to how
she was physically assaulted leading to her death'. The learned trial Judge on
the basis of post-mortem report showing presence of 15 ante-mortem injuries on
the body of the deceased raised the following inferences against the accused
which may be reproduced in his own words: - "It can be safely presumed
that at the time of causing her death by strangulation, some of the accused
persons have caught hold of the different body parts such as hand, legs, wrist
of the deceased and one of them pressed her neck and killed her by
strangulation and there by voluntarily caused injuries to her. The accused
persons are the best persons knowing about the manner of in which the incident
was caused and they have not explained it. There is nothing on record to show
that there is possibility of any other explanation, other than the fact that
the accused persons are the only guilty persons. Therefore, I hold that the
prosecution has been able to prove the commission of offence by the accused
persons under Sections 302, 323, 201 read with Section 34 of IPC. Hence, I have
recorded my findings accordingly on point nos. 1 to 4".
High Court in appeal has confirmed the conviction and sentences against all the
High Court held the following circumstances to have been proved by the
prosecution to infer complicity of the accused. The High Court in its judgment
has stated that the presence of the appellants in the house on the night of the
alleged incident of physical assault on the deceased, has to be believed
because none of the accused in their statement under Section 313 Criminal
Procedure Code [for short 'Cr.P.C.] stated that they were not in the house on
that night. What they stated is that since evening of 22.10.1993, the deceased
was not with them. The reasoning of the High Court is that this plea of accused
which is found to be false, leads to an inference that the accused were in the
house when Sundarabai was physically assaulted. In the opinion of the High
Court in the absence of clear statement under Section 313 Cr.P.C by the accused
that they were not in the house on the night intervening to 22.10.1993 and
23.10.1993, their presence in the house at the time and date of incident is
fully established. For better appreciation of reasoning of the High Court, the
relevant part of its judgment needs reproduction : - "As it is, the
accused also are not stating in their statement under Section 313 Cr.P.C, that
they were not in the house on that night. On the contrary, the statement made
by the accused under Section 313 Cr.P.C indicates that they want to say that Sundarabai
was not with them on 22.10.93 since evening. If it is read properly, it means
that they were in the house, but Sunderabai was not there. In such
circumstances, it is not necessary for the prosecution to establish
independently that all the accused were in the house in the evening of 22.10.93
at about 7 P.M and onwards. The fact is not denied
by the accused. The other evidence brought on record is sufficient to hold that
the accused were at their house. Generally, in the evening, it is expected that
all the family members will be at the house. This probability cannot be
ignored. But it does not remain in the realm of probability, because there is
evidence of Sambhaji (PW-8), which goes to show that accused Tukaram and Hirabai
were outside the house, when he went there and the other accused had not stated
that they had gone out of the house and they were not in the house during that
time. So this is not the case of "may be", but this is a case of
"must be"." Having thus inferred presence of the appellants
co-accused in the house on the alleged date and time of incident, the High
Court catalogued the following circumstances which is in its opinion unerringly
point to the guilt of the present appellants. It enumerates them thus :-
"If the facts of the present case are scanned as per the guidelines given
in this judgment, there is sufficient evidence to hold that the accused had
reason to assault Sunderabai, because, once she was assaulted, driven out from
the house but she had returned to their house. Immediately thereafter, this
incident has taken place. The second circumstance is that not only Sunderabai
was in the house, but all the six accused were also in the house, when the
alleged incident took place.
third circumstance is that the medical evidence clearly indicates that it was a
homicidal death and not a suicidal or accidental death. As many as 15 injuries
were there on the person of Sunderabai and the accused have no explanation for
any of these injuries seen on the person of Sunderabai, when the doctor
specifically stated that all the injuries were ante-mortem injuries".
High Court for basing conviction on the above circumstantial evidence reasoned thus
:- "It is impossible for the prosecution in such circumstances to prove
which of the accused did particular act to cause death of Sunderabai. If that
evidence had been there, then, it would have been the case of direct evidence
and not of circumstantial evidence. In circumstantial evidence, when more than one
person is present at the place of the incident, then the only circumstance
which has to be looked into as to what are the injuries on the person of the
deceased to find out whether that circumstance supports the prosecution case.
Here, there were six persons in the house. As many as 15 injuries are found on
the person of Sunderabai. Some are found even on her private part and the fatal
injury was caused on neck. So, these injuries amply prove that this was not an
act done by one person, but it was an act of more than one person. In the given
circumstances, there cannot be evidence showing that accused no. 1 caused
particular injury or accused no. 6 caused particular injury. All of them
jointly took part in the incident. Some might have played a lesser role, while
some might have played a major role, but the fact remains that they were
together and they did assault Sunderabai, a hapless woman alone in the
taking note of the opinion of the Autopsy Surgeon on nature of death as
contained in his post-mortem report, the High Court draws its conclusion thus :-
"Because of the medical evidence, it is amply proved that the death was
not due to drowning, but it was due to strangulation and this circumstance
clinches the prosecution case that how the dead body of Sunderabai could go out
of the house when all the accused were in the house on that night of event. The
prosecution thus, has established the case against all the accused. There is no
ground to interfere with the order of conviction and sentence recorded by the
learned Additional Sessions Judge".
have heard the learned counsel appearing for the accused who strenuously urged
that the circumstances taken into consideration by learned trial Judge and the
Judges in appeal neither singly nor cumulatively prove the involvement of the
present appellants in the alleged offence of assault and murder of the
deceased. He submits that merely because the present appellants are close
relatives and lived in the same house with the deceased and the convicted
accused (her husband and father-in-law), no inference reasonably could be drawn
that they also participated in physically assaulting the deceased and had a
common intention to commit her murder.
have also heard the learned counsel appearing for the State who has tried to
support the conviction.
case of State of U.P vs. Dr. Ravindra Prakash Mittal,
[AIR 1992 SC 2045], this Court has held that the essential ingredients to prove
guilt of an accused by circumstantial evidence are :
circumstances from which the conclusion is drawn should be fully proved;
circumstances should be conclusive in nature;
the facts so established should be consistent only with the hypothesis of guilt
and inconsistent with innocence;
circumstances should to a moral certainty, exclude the possibility of guilt of
any person other than the accused.
considering the validity of the conviction of the present appellants,
therefore, we have to apply the above strict test before relying on the circumstantial
evidence. From the facts found and the reasoning adopted by the learned Trial
Court and the High Court in appeal, we find that the circumstantial evidence in
the present case falls short of the required standard of proof. We also find
that there is fallacy in their reasoning and therefore, in the inferences drawn
by them from the facts and circumstances alleged to have been proved.
learned trial Judge (as seen from the relevant part of the judgment quoted
above) entered into the arena of surmises and tried to visualise by imagination
the manner of commission of the offence. On the basis of nature and number of
injuries found on the body of the deceased in the post-mortem report, it is
inferred that all the accused persons must have caught hold of different parts
of the body of the deceased and assaulted her separately on different parts.
Such kind of inference is highly speculative.
High Court also fell into similar error. In its judgment, it is observed that
so many injuries of the nature of contusions found on various parts of the body
of deceased could not have been caused by one or two persons and all the six
persons must have participated in the assault. We have seen the post- mortem
report (Ex.40) which describes nature of injuries as "contusions" of
different sizes on different parts of the body. We fail to understand how the
learned Judges came to the conclusion that it was not possible for one or two
persons to have caused so many injuries on the person of deceased. Merely
because as many as 15 injuries were found on body of the deceased, it cannot be
inferred that all the accused must have participated by a joint assault. Such
inference, in our considered opinion, is highly imaginary.
as other circumstances held to have been proved by the High Court are
concerned, we find that they also fall short of the test of proof required for
basing conviction on circumstantial evidence.
the fact to have been proved that few days before the date of incident, Sunderabai
was driven out from her house and was brought back by her uncle the same day,
the said fact cannot lead to an irresistible conclusion that all the present
appellants as members of the family were unwilling to receive her back to the
house. The proof of presence of present appellants in the house at the time and
date of the alleged incident cannot also reasonably lead to an inference that
they all participated in the act of physical assault. The High Court has
referred to the statement of the accused under Section 313 Cr.P.C. It stated in
its judgment that the accused in their statements took a common plea that Sunderabai
was not in the house on the alleged date of incident but the same is found to
be false, therefore, indirectly the accused should be deemed to have admitted
their presence in the house on the date and hour of incident of physical
that the presence of all the accused persons on the date and time of the
incident is fully proved but that fact alone cannot lead to an inference that
all of them jointly assaulted the deceased and had common intention to kill
her. Mere presence of the appellants/accused in the house cannot reasonably
lead to an inference of their joint participation in physical assault and
common intention on their part with the convicted accused to commit her murder.
The medical evidence showing that the death was not 'suicidal' but 'homicidal'
also does not necessarily lead to the inference of involvement of all the
accused in the homicidal death of the deceased.
High Court in a portion of the judgment (quoted above) has stated that the
prosecution cannot be expected to discharge the impossible task of proving by
direct evidence the part played by each of the accused in the alleged crime and
the nature of injury/injuries caused by each of them.
true that such crimes against married women are generally committed within
four-walls of a house and many times in secrecy. Independent eye-witnesses or
other direct evidence are scarcely available to the prosecution.
that is no reason to rely on circumstantial evidence which is not of required
standard and base conviction on surmises. In the instant case, both the trial
court and the High Court erred in not applying the strict test before relying
on the circumstantial evidence to pass the verdict of conviction. They
convicted the appellants before us only because they resided in the same house
as members of the joint family of the deceased and the two convicted accused
and were found to be present at the time and date of incident. There are
several circumstances pointing to the innocence of the accused which were not
taken into consideration. It is likely that the present appellants were present
at that hour and time of incident but did not join with the convicted accused in
physically assaulting the deceased. There may be inaction on their part in not
saving the deceased from assault by the convicted accused. Their apathy may be
morally reprehensible but would not make them criminally liable. Their
statement under Section 313 Cr.P.C that Sunderabai was not in the house in that
evening has been found to be false but that could not lead to a necessary
inference that therefore they must have joined other convicted accused in
assaulting the deceased. The existence of so many ante-mortem injuries found on
the body of the deceased in her post-mortem report also does not lead to an
inference that they could have been caused only by more than one person. We
fail to understand why injuries like 15 contusions could not have been caused
by two convicted accused by repeatedly inflicting blows on the deceased.
sound criminal justice system such offences against women should not escape
unpunished but it is equally desirable in social interest that members of the
family of the victim are not made to suffer punishment merely because of their
relation with the deceased. It is the duty of the courts to see that the penal
provisions intended to curb such crimes by bringing the offenders to book do
not cause injustice to innocent people.
set aside the conviction of the appellants and sentences under Sections 302 and
323 read with Section 34 of IPC.
as the offence under Section 201 read with Section 34 of IPC for which they are
charged and convicted is concerned, from the discussion of the evidence made by
the two courts below and by us above, the evidence on record, in our opinion,
is sufficient to sustain their conviction for the said offences. Their presence
in the house has been proved. On recovery of the dead body of the deceased from
the well, the post-mortem shows the cause of death to be homicidal and not
suicidal. The present appellants have been found to be present on the date and
hour of the incident in the house in which the deceased was done to death by
physical assaults made by the two convicted accused. The present appellants
were certainly guilty of screening the offenders. The body of the deceased
after she was physically assaulted and murdered was thrown into the well to the
knowledge of the appellants. Yet they took a false plea that on the date and
hour of the incident, deceased was not in the house.
this appeal partly succeeds. We set aside the conviction of the appellants
under Section 302, 323 read with Section 34 of IPC. Their conviction and
sentences imposed on them under Section 201 read with Section 34 of IPC are
maintained. The bail bonds of accused are cancelled and if they have not
completed the period of sentences imposed on them under Section 201 read with
Section 34, they will suffer the remaining part of the sentences.
appellants/accused who have already suffered the period of sentences for the
above offences shall be forthwith released from the custody if not required in
any other case.