Section 106 Cannot Bridge Foundational Gaps in Circumstantial Cases: Supreme Court Clarifies Co-residence Threshold and Permits Defence Reliance on Unexhibited Prosecution Records

Introduction

In Nilesh Baburao Gitte v. State of Maharashtra (2025 INSC 1191), the Supreme Court of India set aside concurrent convictions for the alleged matricide of Sunanda alias Nanda Gitte, emphasizing strict adherence to the five golden principles of circumstantial evidence and underscoring the limits of Section 106 of the Indian Evidence Act, 1872. The Court held that where the prosecution fails to establish co-residence or proximity such that facts are “especially” within the knowledge of the accused, no adverse inference can be drawn under Section 106. It also reaffirmed that the defence may rely on documents produced by the prosecution as part of the chargesheet even if not exhibited at trial.

The case arose from a suspicious death in Talani village on 22 July 2010. The prosecution alleged homicide by strangulation, coupled with an attempted clandestine cremation, and relied on recoveries (nylon rope, iron pipe), forensic serology, and alleged motive relating to property. The trial court convicted the appellant and a co-accused, sentencing them to life imprisonment under Section 302 IPC. The High Court affirmed the appellant’s conviction but acquitted the co-accused, holding the recovery against him insufficient. The Supreme Court, per K.V. Viswanathan, J. (K. Vinod Chandran, J. concurring), allowed the appeal and acquitted the appellant.

Summary of the Judgment

The Supreme Court acquitted the appellant on the following principal grounds:

Medical evidence did not conclusively establish homicidal death; the postmortem findings, including absence of a ligature mark on the back of the neck and the expert’s own admissions, left open the possibility of suicide by hanging.
Section 106 Evidence Act could not be invoked to shift the burden to the appellant because the prosecution failed to prove that he resided with the deceased or possessed “special knowledge” of the circumstances of death; the Investigating Officer himself testified that the appellant was living separately.
The recovery evidence was unreliable and internally contradictory; the principal panch witness (PW-2) was compromised, had links to an inimical relative (PW-3), and gave materially inconsistent testimony. On similar recovery evidence, the co-accused had already been acquitted, which the State accepted.
Forensic serology was inconclusive and, critically, incriminating reports were not put to the accused under Section 313 CrPC; no DNA analysis and no established blood group of the deceased further weakened the link.
The alleged motive (property) was not proved and was clouded by the uncle’s (PW-3) own property disputes, delayed statement, and contradictions.
The prosecution’s failure to investigate the alleged first attempted cremation and to examine the assembled crowd was a serious lacuna.

The Court reiterated the caution in circumstantial cases from Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 and Hanumant v. State of Madhya Pradesh (1952) 2 SCC 71, and quoted the classic warning from Hodge, In re (1838) 2 Lewin 227 against “supplying” missing links by conjecture. The appeal was allowed and the appellant acquitted; bail bonds were discharged.

Analysis

Precedents Cited and Their Influence

Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116: The Court applied the five golden principles of circumstantial evidence, emphasizing that each circumstance must be firmly established, must point only to guilt, and must form a complete chain excluding all hypotheses consistent with innocence. Here, ambiguity in medical evidence, unreliable recovery, deficient forensic proof, and unproven motive meant the chain was incomplete.
Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681: The prosecution invoked Trimukh to argue that, where a murder is committed in secrecy inside a house, the burden under Section 106 shifts to the inmates to provide an explanation. The Supreme Court rejected this application because the Investigating Officer (PW-9) himself stated the appellant lived separately in another house; thus co-residence—and the prerequisite for inferring “special knowledge”—was not proved. Trimukh was distinguished on facts.
Shambhu Nath Mehra v. State of Ajmer (1956 SCR 199): Reaffirmed that Section 106 does not relieve the prosecution of its primary burden and applies only to facts “especially” within the accused’s knowledge. The Court used this to refuse shifting the burden where the State failed to prove co-residence or proximity.
Ramaiah alias Rama v. State of Karnataka (2014) 9 SCC 365: Relied upon to hold that even if a document produced by the prosecution is not exhibited, the defence can rely on it to discredit the prosecution. This justified considering the 1989 hospital certificate indicating treatment for relapsed schizophrenia, which supported the possibility of suicide and the doctor’s caveats.
Hanumant v. State of Madhya Pradesh (1952) 2 SCC 71 and Hodge, In re (1838) 2 Lewin 227): Quoted to emphasize judicial caution in circumstantial evidence—courts must resist “connecting” circumstances by speculation or “supplying” missing links.
Medical treatise (Modi’s Medical Jurisprudence & Toxicology, 23rd ed.): Cited to reinforce that in strangulation, ligature marks are usually horizontal and continuous below the thyroid cartilage; this treatise corroborated the medical ambiguity in the case.

Legal Reasoning

1) Homicide Not Medically Established

The postmortem recorded a ligature mark at the level of the thyroid cartilage but crucially absent on the back of the neck. The doctor (PW-6) explicitly conceded that:

Absence of a ligature mark on the back of the neck is possible in cases of hanging.
In strangulation, ligature marks should encircle the neck.
Imprint injuries from a rope are more consistent with hanging (weight of the body) than with strangulation by another person.
Certain abrasions could occur in a person with schizophrenia during an attack; the scalp injury was more consistent with a sharp-edged weapon, whereas the recovered iron pipe was not sharp-edged.

The Investigating Officer had obtained a 1989 hospital certificate stating treatment for relapsed schizophrenia. While not exhibited, it formed part of the prosecution record. Applying Ramaiah, the Court held the defence could rely on it. This, coupled with PW-6’s testimony and Modi’s treatise, left suicide by hanging a live possibility. With homicidal death itself not proved, the circumstantial chain failed at inception.

2) Section 106 Evidence Act: Co-residence as Threshold for “Special Knowledge”

The prosecution’s central plank was to invoke Trimukh and Section 106, asserting the appellant resided with the deceased and therefore had a duty to explain her injuries. The Court refused:

The Investigating Officer (PW-9) categorically stated the appellant was living in a different house (with Motiram Gitte). No contrary evidence was adduced; Motiram’s statement was not recorded; no cogent proof of co-residence was shown.
In these circumstances, no “special knowledge” could be imputed to the appellant. Per Shambhu Nath Mehra, Section 106 cannot relieve the State of its primary burden or shift it in the absence of foundational facts.

This is a significant clarification: before invoking Section 106 in domestic or household deaths, the prosecution must first establish co-residence or other facts grounding “special knowledge.” Mere speculation cannot attract Trimukh.

3) Recovery, Panch Evidence, and Co-Accused Acquittal

The recovery case was unsatisfactory:

The panch (PW-2) first said “nothing happened” at the police station, then, after being treated as hostile, implicated both accused in recoveries. He admitted close ties with PW-3 (uncle of the appellant) and that he came to the police station at PW-3’s instance. He contradicted himself about transport to the recovery site (jeep vs following on motorcycle), whether the memorandum was made in his presence, and acknowledged he could not read Marathi yet signed documents.
The iron pipe’s forensic plausibility was undermined by PW-6’s testimony that the scalp injury suggested a sharp-edged weapon, not a pipe.
On similar recovery evidence, the co-accused (Balasaheb) was acquitted by the High Court, and the State accepted that acquittal. The Supreme Court considered this parity relevant, further eroding confidence in the recoveries.

4) Forensics and Section 313 CrPC Defects

The Court highlighted critical procedural and evidentiary lapses:

The FSL report and chemical analysis—said to show blood group “A” on the rope matching the appellant—were not put to the accused under Section 313 CrPC. This is a substantial violation, rendering reliance unsafe.
The prosecution did not establish the deceased’s blood group; no DNA analysis was conducted to provide definitive linkage.

5) Inadequate Investigation into Alleged Attempted Cremation

The narrative of a hurried first attempted cremation in the morning is unsupported by basic investigation:

The anonymous caller who informed the police was never traced; the assembled crowd was not examined; no witness identified the appellant at the morning site.
This unexplained failure to pursue obvious leads led the Court to remark that “there is something more than what meets the eye.”

6) Motive and the Credibility of PW-3 (Uncle)

The prosecution’s motive theory—that the appellant sought to benefit from his mother’s property—was undermined by:

PW-3’s own property disputes (civil suits, Lok Adalat settlement) and ambiguity over mutation entries and the deceased’s participation.
A 50-day delay in recording PW-3’s statement despite his early contact with the police and proximity to the panch witnesses; contradictions about the display of land extracts at the police station; and absence of call detail records to prove the alleged “property sale” phone call five days before the death.
The presence of other legal heirs (husband and two daughters) further diluted the directness of any property gain to the appellant.

7) Section 8 (BSA Section 6): “Subsequent Conduct” Not Incriminating in the Facts

The State argued the appellant’s silence and participation in cremation indicated guilt. The Court found otherwise:

The appellant informed his uncle of the death and participated in cremation rites—conduct not inherently inconsistent with innocence, especially given the unresolved medical and investigative ambiguities.
With the very foundation (homicide, co-residence, reliable recovery) unproved, subsequent conduct could not be weaponized to fill gaps in the prosecution case.

Impact: Doctrinal and Practical Consequences

Threshold for Section 106 (Co-residence/Special Knowledge): Prosecutors must first establish co-residence or proximity before invoking Trimukh. Absent proof that the accused was an “inmate” or had special knowledge, Section 106 is inapplicable; it cannot compensate for failures to prove foundational facts.
Defence Use of Unexhibited Prosecution Documents: The Court reinforces that accused can rely on prosecution materials filed with the chargesheet even if not formally exhibited (Ramaiah). Investigators and prosecutors must assume that any recorded material may be used against them unless properly contextualized or tested at trial.
Medical-Circumstantial Synergy: Where medical science leaves homicide uncertain (e.g., ligature mark characteristics; psychiatric comorbidity like schizophrenia), courts will not allow convictions premised on inferential leaps. Forensic thoroughness (including DNA and establishing the deceased’s blood group) is crucial in circumstantial cases.
Section 313 Compliance: All incriminating evidence—including FSL/CA reports—must be fairly put to the accused. Omission can be fatal to the prosecution case.
Panch Witness Integrity and Independence: Panch witnesses closely connected to inimical parties (e.g., relatives with property disputes) will attract skepticism. Internal contradictions about memoranda, transportation, and language comprehension weaken discovery under Section 27.
Investigation of First Responders/Initial Events: Failure to trace anonymous informants, examine crowds, and document the chain of events (especially in sensitive contexts like attempted cremations) can decisively undermine the case.
Parity and Co-Accused Acquittal: Where similar evidence leads to a co-accused’s acquittal accepted by the State, courts will be reluctant to rely on the same tainted strand against the remaining accused without robust independent corroboration.
Restraint in Using “Subsequent Conduct” (Section 8 / BSA Section 6): Behavioral inferences must be cautiously drawn; culturally or situationally ambiguous acts (e.g., participation in last rites) are not inherently inculpatory absent a solid evidentiary foundation.

Complex Concepts Simplified

Circumstantial Evidence: Proof based on surrounding facts from which guilt is inferred. Conviction requires a complete and consistent chain of circumstances pointing only to guilt, excluding other reasonable hypotheses.
Section 106, Indian Evidence Act: Shifts the burden to an accused to explain facts “especially” within his knowledge—but only after the prosecution proves basic facts indicating that such special knowledge existed (e.g., co-residence). It does not relieve the State of proving its case.
Section 8, Indian Evidence Act (BSA Section 6): Allows courts to consider conduct of parties before, during, or after an event as relevant. But conduct alone rarely suffices to convict; it is context-sensitive and must be tied to other solid evidence.
Section 27, Indian Evidence Act: Makes admissible only that part of a statement to police by an accused which leads to the discovery of a fact. The discovery must be credible, voluntary, and corroborated; contradictions or coached panch witnesses can render it unsafe.
Section 313 CrPC: Requires that every incriminating circumstance be put to the accused to afford an opportunity to explain. Non-compliance can vitiate reliance on such circumstances.
7/12 Extract: A land revenue record used in Maharashtra reflecting ownership and cultivation details. Its mention in a criminal case often arises when motive is tied to land disputes.
FSL/CA vs DNA: Serology may identify blood presence and group; DNA analysis provides individual-specific identification. Absent the deceased’s blood group and without DNA, serology is usually weak linkage evidence.

Conclusion

The Supreme Court’s decision in Nilesh Baburao Gitte recalibrates the use of Section 106 and cautions courts and prosecutors against overreliance on inferential shortcuts in circumstantial homicide cases. It insists on foundational proof—particularly of co-residence/special knowledge—before shifting any explanatory burden to the accused; reiterates that defence may legitimately rely on unexhibited prosecution materials forming part of the chargesheet; and underscores the primacy of clear, consistent medical and forensic evidence, properly put to the accused under Section 313 CrPC.

The judgment stands as a strong reminder of the Sharad Birdhichand Sarda standards: conjecture cannot replace proof; missing links cannot be supplied by suspicion, adverse “conduct,” or by misapplied Section 106. Practically, it urges tighter investigative rigor (especially at the earliest stages), scrupulous adherence to procedural safeguards, and the use of robust forensic tools where medical possibilities are equivocal. In the broader legal landscape, it fortifies protections in circumstantial prosecutions and restrains the misuse of evidentiary presumptions, thereby enhancing the fairness and reliability of criminal adjudication.