2024 INSC 368 Criminal Appeal No. 437 of 2015 Page 1 of 54

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 437 OF 2015

ANEES …APPELLANT

VERSUS

THE STATE GOVT. OF NCT …RESPONDENT

J U D G M E N T

J. B. PARDIWALA, J.:

For the convenience of exposition, this judgment is divided in the following

parts: -

INDEX

A. CASE OF THE PROSECUTION ............................................................... 3

B. SUBMISSIONS ON BEHALF OF THE APPELLANT ......................... 15

C. SUBMISSIONS ON BEHALF OF THE STATE .................................... 17

D. ANALYSIS .................................................................................................. 19

Criminal Appeal No. 437 of 2015 Page 2 of 54

i. Principles of law governing the applicability of Section 106 of the

Evidence Act ............................................................................................. 19

ii. What is “prima facie case” (foundational facts) in the context of Section

106 of the Evidence Act? ......................................................................... 30

iii. Discovery of weapon under Section 27 of the Evidence Act ................ 35

iv. Cross-examination by the public prosecutor of a hostile witness ....... 38

v. Whether the appellant is entitled to the benefit of Exception 4 to Section

300 of the IPC? ......................................................................................... 47

a

1. This appeal is at the instance of a convict accused for the offence

punishable under Section 302 of the Indian Penal Code, 1860 (for short, “the

IPC”) and is directed against the judgment and order dated 23.05.2014

passed by the High Court of Delhi in Criminal Appeal No. 320 of 1998 filed

by the appellant herein by which the High Court dismissed the appeal and

thereby affirmed the judgment and order of conviction passed by the

Additional Sessions Judge, Karkardooma Court, Delhi in Sessions Case No.

176 of 1996 holding the appellant guilty of the offence of murder punishable

under Section 302 of the IPC and sentencing him to undergo life

imprisonment with a fine of Rs. 5,000/-. In the event of default in the

payment of the fine, the appellant was directed to undergo further rigorous

imprisonment for six months.

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A. CASE OF THE PROSECUTION

2. The deceased, namely, Saira was married to the appellant. The

marriage of the deceased with the appellant was solemnised in 1982 in

accordance with the Muslim rites and customs. In the wedlock, a daughter

named Shaheena was born, who, at the time of the incident in 1995, was five

years of age.

3. On 29.12.1995, at about 4:00 am, a wireless operator of the Delhi

Police informed one lady constable who was on duty in a PCR that a woman

had been stabbed in House No. 220, Gali No. 3, Mustafabad and that a

responsible police officer may be asked to reach at the spot of occurrence.

The said information was conveyed by the lady constable to the duty officer

at P.S. Gokulpuri, who, in turn, reduced the same in writing and forwarded

a copy thereof to S.I. Mohkam Singh for inquiry.

4. When S.I. Mohkam Singh, along with the SHO of the concerned

Police Station, reached the place of occurrence, he found the deceased lying

in a pool of blood, having suffered multiple deep stabbed wounds in the

abdomen and other parts of the body. The appellant herein was also present

at the place of occurrence. It was noticed that the appellant had also suffered

a few superficial injuries. Both, the deceased and the appellant, were sent to

the hospital where the deceased was declared as brought dead and the

appellant was declared fit for the purpose of interrogation and was

discharged after some preliminary treatment.

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5. The investigation revealed that the marital relationship of the

appellant with the deceased was strained on account of the deceased leaving

the house all of a sudden without the permission of the appellant and

thereafter returning late in the night hours. This was not liked by the

appellant. On several occasions, altercations used to take place between the

appellant and the deceased on such issues. It is the case of the prosecution

that on the fateful night of the incident, an altercation took place between

the appellant and the deceased, as a result, the appellant is alleged to have

inflicted stab injuries indiscriminately with a knife all over the body of the

deceased. It is also the case of the prosecution that the minor daughter

Shaheena was the sole eyewitness to the incident.

6. In such circumstances referred to above, a rukka was prepared by the

Investigating Officer and sent to the concerned Police Station based upon

which the First Information Report No. 728 of 1995 was registered against

the appellant for the offence punishable under Section 302 of the IPC.

7. The contents of the FIR are reproduced herein below:

“FIRST INFORMATION REPORT

First Information of a Cognisable Crime Reported under

Section 154 Cr.PC.

FIR NO. 728/95

Date and hour of occurrence

1 Date AND 29-12-95 AT 4

AM

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2 Name and residence of

information and complainant

DD No. 2A Dt:

20.12.95 at 7 AM

Writing of

Information S.I.

Mohkam Singh.

3 Brief description of the

offence (with section) and of

property carried off, if any

Under Section

302 IPC

4 Place of occurrence and

distance and direction from

Police Station

5 Name and Address of the

Criminal

House No. 220

Old Hustafabi

Uttar Pradesh,

Distance 1 ½

6 Steps taken regarding

investigation explanation of

delay in recording

information

No one stand

responsible for

such delay in this

regard.

7 Date and time of dispatch

from police station

Thro special

way.

Through wireless information was received that in Gali No.2

in House No. 222 near illegible factory knife blow has been

given and some one be sent to the place of occurrence. On

receiving the information, Constable Belt No.1 and SI Karam

Singh left the police station in government vehicle and

constable illegible on the spot House no. 220 Gali No. 3 Old

Mustaffa Bad. Over there the dead body of the deceased Saira

was found on whose neck and stomach there were deep

injuries and blood was pouring out over there, Aneesh

husband of Saira was also present on the spot illegible. From

there, we took them in government vehicle PR from the spot

by constable available 1258 in government vehicle to GTB

Hospital and ML No. illegible was prepared in which Saira

was mentioned in writing illegible. On relatives coming,

statements were recorded on the basis of illegible offence

under Section 302/324 IPC was registered on diary at

No.1175. Information may be noted in the rojnaamcha and

myself illegible with crime team along with photographer

proceeded of the occurrence and prepared report. On

29.12.95 at about 4 p.m. went to the House no. 220 Gali No.

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3 Old Mustaffa Bad and the writing was made on 29.12.95

illegible signed of local SI PS Gokulpuri 27.12.95 police

proceeding at this time on receipt of these writing in Hindi

the case regarding the office by constable Gayasudeen

No.11751. Case has been registered in the register.”

8. In the course of the investigation, the Investigating Officer recorded

the statement of Shaheena, the five-year old daughter of the deceased.

Shaheena in her police statement stated that upon hearing the cries and

shouts in the night hours, she woke up and witnessed her father, i.e., the

appellant herein inflicting knife injuries on the body of her mother, i.e., the

deceased.

9. The post-mortem of the dead body of the deceased was performed at

the G.T.B. Hospital, Shahdara, Delhi. In the post-mortem report, the

following injuries came to be noted:

“1. Incised wound 4 cm x 1.04 cm present over outer aspect of

wound of left thumb.

2. Incised wound 2 cm x 0.8 cm x 0.7 cm present over palmar

aspect of proximal phalanx of left thumb.

3. Incised wound 1 cm x 0.3 cm 0.3 cm present over dorsal aspect

of middle phalanx of left ring finger.

4. Linear scratch 2 cm x 0.1 present over front of left arm, 4 cm

above elbow joint.

5. Incised wound 6 cm x 1 cm x 0.6 cm present over front and

inner aspect of left knee joint.

6. Incised wound 5 cm x 1 cm x 2 cm present over outer aspect

of right thigh placed 7 cm above the knee joint.

7. Incised wound 1.3 cm x 0.1 x 0.5 cm present over palmer

aspect of terminal phalanx of right middle finger.

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8. Incised wound 2 cm x 0.3 x 0.5 cm present over palmar aspect

of phalanx of right ring finger cutting the underlined wound.

9. Liner scratch 4 cm x 0.2 cm present over outer aspect of top

of right shoulder.

10. Incised stab wound 4 cm x 0.5 cm present over front of

abdomen in midline 2.5 cm below the xphoid process.

It is obliquely placed clean cut margin and one angle of the

wound being more acute than the other on dissection. The track

of the wound is going laterally, upwards and posteriorly, cutting

the left lobe of liver cutting the pericardia sec. and dominated on

cutting an entry the right auricle of heart. Haemorrhages and

extravasation of blood presentation with the track of wound.

Depth of wound is 9 cm.

11. Incised stab wound present obliquely in midline over front of

abdomen with interesting protruding out of the wound. It

measures 4.5 x 0.2 cm and is placed 5 cm above the umbilicus.

It has clean cut margin and one angle of the wound is more acute

than the other. On dissection, the track of the wound is going up

posteriorly and laterally and dominated by cutting the

mesenteric blood vessels. Haemorrhage present in the mesentery

depth of wound is 8 cm.

12. Incised cut through wound of neck measuring 10 cm x 2 cm

into 4 cm present horizontally above the thyroid cartilage. Upper

margin of the wound is placed 55 cm below chin and lower

margin is 6 cm above the sterna notch. All soft tissues of the neck,

measure blood vessel trachea and oesophagus have been cut

through into till the vertebral column. Haemorrhage and extra

vacation or blood present in the soft tissues of the wound.

13. Red abrasion 2.5 cm x 0.3 cm present in midline over front

of neck 1.5 cm below chin.

14. Red abrasion 2 cm. x 0.3 cm over left side of face 1.5 cm

below the left eye.”

10. The weapon of offence, i.e., the knife was also discovered at the

instance of the appellant herein by drawing a panchnama under the

provisions of Section 27 of the Indian Evidence Act, 1872 (for short, ‘the

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Evidence Act’). The blood-stained clothes of the deceased as well as those

of the appellant herein were collected and sent to the Forensic Science

Laboratory for chemical analysis. The statements of various other witnesses

were recorded under Section 161 of the Code of Criminal Procedure, 1973

(for short, the “Cr.P.C.”).

11. Upon completion of the investigation, the Investigating Officer filed

a chargesheet for the offence punishable under Section 302 of the IPC in the

Court of Metropolitan Magistrate, Karkardooma Courts, Delhi, who, in turn,

committed the case to the Court of Sessions Judge, Karkardooma Courts,

which culminated in the Sessions Case No. 176 of 1996.

12. The appellant pleaded not guilty to the charge framed by the Sessions

Court and claimed to be tried.

13. The prosecution examined 17 witnesses in support of the charge.

Shaheena (PW-3), was examined as the sole eye-witness to the incident.

Shakeel Ahmad (PW-4), the brother of the deceased, and Rafiq (PW-11),

the father of the deceased, were examined to establish the demand of dowry

by the appellant from the deceased, and the harassment caused by him

towards his deceased wife. Dr. Sayed Ali (PW-9), the neighbour of the

appellant, was examined as a panch witness to prove the contents of the

discovery panchnama of the knife used in the commission of the crime.

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14. It is the case of the prosecution that the knife was discovered from a

drain outside the house of the appellant, as pointed out by him, in the

presence of the Investigating Officer and the panch witnesses.

15. The prosecution also examined the following official witnesses:

a. Constable Munni Khan, who was on duty at the PCR at the time

of the incident (PW-5)

b. Constable Govind Singh, duty officer at the Gokulpuri P.S. at the

time of the incident (PW-8)

c. Constable Giasuddin, witness to the discovery of the knife (PW-

16)

d. S.I. Mohkam Singh, Investigating Officer of the case (PW-17)

16. It is pertinent to note that Shaheena (PW-3), the sole eye-witness to

the incident, failed to support the case of the prosecution and was declared

a hostile witness. She deposed before the trial court that upon hearing the

noise and shrieks of her parents, she woke up in the night hours and saw that

thieves had entered into their house and were assaulting her parents. She

deposed that the thieves had a knife and they inflicted knife injuries on both

her parents. She, however, admitted that she saw her mother lying on the

floor bleeding profusely. However, she denied that it was the appellant who

had inflicted injuries upon the deceased with a knife. She also denied that

the relations of her parents were strained.

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17. Dr. Sayed Ali, PW-9, the panch witness to the discovery panchnama

also did not support the case of the prosecution and was declared as a hostile

witness.

18. Dr. Anil Kohli, PW-1, who conducted the post-mortem on the dead

body of the deceased, deposed that all the injuries were ante-mortem in

nature and were sufficient in the ordinary course of nature to cause death,

and more particularly the injuries no. 1-12 respectively were possible by a

dagger/knife.

19. Upon conclusion of the oral evidence, the further statement of the

appellant was recorded by the trial court. In his statement recorded under

Section 313 of the Cr.P.C., the appellant stated as under:

“I along with my wife deceased and my daughter Shaheena was

sleeping in my house. Two persons caused injuries to my wife. I

tried to save her but I was also hurt by those persons. I do not

know as to why those strangers caused injuries to my wife. I am

innocent. After causing the injuries those persons fled away from

there.”

20. The trial court, upon appreciation of the oral as well as documentary

evidence on the record, held the appellant guilty of the offence of murder

punishable under Section 302 of the IPC and sentenced him to undergo

imprisonment for life and pay a fine of Rs. 5,000/-. In the event of default in

the payment of the fine, the trial court directed the appellant to undergo

further rigorous imprisonment for six months.

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21. The appellant, feeling dissatisfied with the judgment and order of

conviction passed by the trial court, went in appeal before the High Court.

The High Court dismissed the appeal and thereby affirmed the judgment and

order of the conviction passed by the trial court. The High Court, while

affirming the judgment and order of conviction passed by the trial court, held

as under:

“10. PW-17’s testimony that the appellant refused to make

the statement as to the incident and on the other hand, his

disclosure that he would make the statement later on, on

arrival of his relatives speaks volume that the appellant

wanted to invent some story by gaining time. Had two

intruders actually caused injuries on the person of deceased

Saira as has been subsequently propounded by the appellant,

he would have immediately informed the police about the

same so that the culprits are immediately caught and brought

to book. PW-17’s testimony that the appellant wanted to make

the statement later on only on arrival of his relatives was not

challenged by the appellant in PW-17’s cross examination. At

this stage, it would be appropriate to advert to the

explanation given by the appellant in reply to question No. 12

in his statement under Section 313 Cr.P.C. which is extracted

as under:-

“Q.12 Have you anything else to say?

Ans. I along with my wife, deceased, and my daughter

Siana was sleeping in my house. Two persons caused

injuries to my wife. I tried to save her but I was also hurt

by those persons. I do not know as to why those strangers

caused injuries to my wife. I am innocent. After causing

the injuries those persons fled away from there.”

11. The explanation that two persons had caused injuries on

the person of deceased Saira was admittedly not put to PW-

17 in his cross examination. Had there been any truth in the

explanation propounded by the appellant, he would not have

been content to simply state that the injuries were caused by

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two persons, he would have given the detailed description (as

far as possible) of the assailants as also the motive as to why

the deceased alone was targeted particularly, when robbery

was not the motive of the injuries alleged to have been

inflicted by the two unknown intruders. Intrusion into the

house by unknown third persons would have resulted in tell

tail and revelatory evidence. There is no indication or

suggestion relating to the said evidence.

xxx xxx xxx

18. As stated earlier, it is proved by overwhelming evidence

and is not even disputed by the appellant that deceased Saira

was inflicted injuries inside the matrimonial home (of the

appellant and the deceased). Initially, the appellant was

completely silent as to how his deceased wife suffered

injuries. He told the I.O. that he would make a statement later

on only when his relations would arrive. As we have pointed

out earlier, in cross-examination of the I.O. and even in his

statement under Section 313 Cr.P.C., the appellant has not

given the details of the intruders. From the appellant’s

conduct in not disclosing to the I.O. as to how his deceased

wife suffered fatal injuries, there was a lurking doubt even at

that very time that it was only the appellant who was

responsible for causing the injuries unless something

material was really brought out by the appellant. Nothing

prevented the appellant to have disclosed about the incident

immediately when the police reached the spot that the injuries

were inflicted on his deceased wife by two unknown intruders.

There was no indication or giveaway to show the presence of

third parties who intentionally targeted the deceased. All

these facts taken together, i.e. nondisclosure of the

information about the incident to the police, not giving the

details of the two intruders even in his statement under

Section 313 Cr.P.C. etc. would really show that the

explanation given by the appellant was false which would

become an additional link in the chain of circumstantial

evidence in view of Manu Sao v. State of Bihar, (2010) 12

SCC 310.

19. In Munna Kumar Upadhyay @ Munna Upadhyaya v. State

of Andhra Pradesh, (2012) 6 SCC 174, it was reiterated that

if the accused gave incorrect or false answers during the

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course of his statement under Section 313 Cr.P.C., the Court

can draw an adverse inference against him. In para 76 of the

report, the Supreme Court observed as under:-

“76. If the accused gave incorrect or false answers

during the course of his statement under Section 313

Cr.P.C., the court can draw an adverse inference against

him. In the present case, we are of the considered

opinion that the accused has not only failed to explain

his conduct, in the manner in which every person of

normal prudence would be expected to explain but had

even given incorrect and false answers. In the present

case, the Court not only draws an adverse inference, but

such conduct of the accused would also tilt the case in

favour of the prosecution.”

20. We are conscious of the fact that Shaheena (PW-3) the

appellant’s daughter has not supported the prosecution

version that the appellant was the perpetrator of the crime.

She, in fact, came out with the story which is in line with the

explanation given by the appellant in his examination under

Section 313 Cr.P.C. But at the same time, as stated above, no

such explanation was given by the appellant to the I.O. when

he reached the spot immediately on getting information of the

incident. No such question was even put to the I.O. when he

entered the witness box as PW-17. The appellant did not

choose himself to enter the witness box under Section 315

Cr.P.C. and subject himself for cross-examination in order to

explain the peculiar circumstances in which his wife was

murdered within his small house. What is more intriguing is

why the intruders would keep their hands off in inflicting

injuries on the appellant’s person who as per his own

showing tried to save his wife when she was being inflicted

injuries by the two intruders. Therefore, we totally reject the

so-called explanation given for the first time by the appellant

in his examination under Section 313 Cr.P.C. The fact that

the deceased’s murder was committed within the four corners

of the small house in the appellant’s presence and the fact

that the appellant even failed to disclose to the I.O. as to how

his deceased wife suffered injuries and the giving of a false

explanation unerringly point to the guilt of the appellant. It is

firmly and clearly established that it was the appellant and

the appellant alone who was the perpetrator of the crime.

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21. It is true that S.I. Mohkam Singh (PW-17) had admitted

in his crossexamination that the appellant’s daughter had

disclosed even before sending the rukka to the Police Station

that the appellant had committed the gruesome act and that

this fact not been mentioned in the rukka does not in any way

belies the prosecution version. Perhaps the I.O. thought that

it would be inappropriate to record the statement of a child

aged about five years for the purpose of registration of an FIR

against her father and to first independently investigate and

come to more solid evidence. It may also be mentioned that

during the investigation of this case, an application was

moved by the appellant’s father for getting the statement of

Shaheena (PW-3) recorded under Section 164 Cr.P.C. which

was not recorded by the learned Metropolitan Magistrate as

the child was found to be tutored. It seems that the I.O.

preferred not to be criticised for getting the case registered

on the basis of statement of a child of tender age. And so he

did not record Shaheena’s (PW-3) statement in the rukka.

22. We are conscious of the fact that Shaheena (PW-3) has

not supported the prosecution version that her father, the

appellant had caused injuries on the person of her deceased

mother. The same, however, is of no consequence as the child

was of tender years and as observed by the Trial Court was

tutored by the appellant’s father. The appellant, however,

cannot make any advantage if PW-3 did not support the

prosecution version.

23. We are not going to attach much importance to the alleged

harassment and the demand of dowry by the appellant

because of the contradictions and the discrepancies in the

statements of PWs 4 and 11. Otherwise also, this is not a case

under Section 306/304-B IPC and thus, the alleged

harassment was of no consequence and could at best have

provided some motive for commission of the crime.

24. In view of the foregoing discussion, we are of the view that

the appeal is devoid of any merit; the same is accordingly

dismissed. The judgment and order on sentence passed by the

Trial Court are affirmed.

25. The appeal stands disposed of in above terms.”

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22. In such circumstances referred to above, the appellant is here before

this Court with the present appeal.

B. SUBMISSIONS ON BEHALF OF THE APPELLANT

23. Mr. Rishi Malhotra, the learned counsel appearing for the appellant,

submitted that the entire case of the prosecution rests on circumstantial

evidence and thus all the circumstances from which the conclusion of guilt

is to be drawn should be carefully established by the prosecution and the

facts so established should be consistent only with the hypothesis of the guilt

of the accused and inconsistent with the innocence of the accused. The

counsel placed reliance on the decision of this Court in Sharad Birdhichand

Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 to fortify his

submission that the prosecution could be said to have failed to prove its case

beyond reasonable doubt and could not have taken recourse to Section 106

of the Evidence Act in the absence of any foundational facts being laid for

the same.

24. He further submitted that the sole eye-witness, Shaheena (PW-3), did

not support the case of the prosecution and her oral evidence rather fortified

the defence taken by the accused that some strangers entered the house in

the night hours and caused injuries to the appellant and the deceased.

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25. He submitted that Sayed Ali (PW-9), the panch witness examined by

the prosecution to prove the discovery of the knife, also turned hostile and

failed to prove the contents of the discovery panchnama.

26. One another submission canvassed was that the S.I. Mohkam Singh

(PW-17), in his testimony before the trial court, admitted that he had

questioned Shaheena (PW-3) before forwarding the written report/rukka to

the police station. However, the said fact is missing in the written

report/rukka prepared after completing the inquiry. This according to the

learned counsel indicates that the testimony of S.I. Mohkam Singh (PW-17)

is unworthy of reliance.

27. He submitted that the sole basis to convict the appellant was that the

explanation offered by him was not sufficient to save him from the adverse

inference drawn against him under Section 106 of the Evidence Act.

However, the High Court failed to appreciate that the prosecution has to

stand on its own legs and prove its case beyond reasonable doubt.

Prosecution cannot throw the entire burden on the accused to prove his

innocence.

28. He submitted that the courts below ought to have taken into

consideration the conduct of the appellant at the time of the alleged incident.

Had the appellant been the assailant, he would not have stayed back at the

place of occurrence, but would have rather ran away after committing the

alleged crime.

Criminal Appeal No. 437 of 2015 Page 17 of 54

29. He also submitted that the prosecution could not establish any motive

on the part of the appellant to commit the alleged crime. Both the trial court

and the High Court proceeded on the assumption that as the deceased might

have arrived at home late in the night, the same perhaps could have led to an

altercation between the two leading to the incident. However, no witness has

been examined in this regard.

30. In the last, the learned counsel submitted that even if the entire case

of the prosecution is believed or accepted to be true, still the case would fall

within the Exception 4 to Section 300 of the IPC. In other words, the

submission is that the alleged crime could be said to have been committed

without pre-meditation in a sudden fight upon a sudden quarrel.

C. SUBMISSIONS ON BEHALF OF THE STATE

31. Mr. Apoorv Kurup, the learned counsel appearing for the State

submitted that no error, not to speak of any error of law, could be said to

have been committed by the High Court in dismissing the appeal filed by

the appellant and thereby affirming the judgment and order of conviction

passed by the trial court.

32. He submitted that the following incriminating circumstances, in the

form of foundational facts, were rightly taken into consideration by both the

courts below for the purpose of invoking Section 106 of the Evidence Act.

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a. The incident occurred inside the house in which the appellant

and the deceased resided. The deceased was found lying practically

dead in a pool of blood.

b. The appellant was present at the place of the incident till the

time the Investigating Officer reached the house of the appellant upon

receiving the information from the PW-8.

c. The appellant failed to disclose before the Investigating Officer

at the earliest point of time that two unidentified individuals entered

the house and laid an assault.

d. The explanation, or rather the defence, put forward by the

appellant that two unidentified individuals entered the house and

inflicted injuries on the deceased is falsified by the other

circumstances on record.

e. False explanation offered by the accused in his further

statement recorded under Section 313 of the Cr.P.C. is an additional

incriminating circumstance.

f. The clothes worn by the appellant at the time of the incident

had blood stains matching with the blood group of the deceased, i.e.,

‘AB’ positive.

g. Although the prosecution might not have been able to establish

the discovery of the weapon at the instance of the appellant in

accordance with Section 27 of the Evidence Act, yet the fact that the

Criminal Appeal No. 437 of 2015 Page 19 of 54

appellant made a statement before the Investigating Officer in this

regard and led the Investigating Officer along with the panch

witnesses to a nearby drain from where the knife is said to have been

discovered, would reflect on his conduct, which is a relevant fact

under Section 8 of the Evidence Act.

33. In such circumstances referred to above, the learned counsel

appearing for the State submitted that there being no merit in the appeal the

same may be dismissed.

D. ANALYSIS

34. Having heard the learned counsel appearing for the parties and having

gone through the materials on record, the only question that falls for our

consideration is whether the High Court committed any error in passing the

impugned judgment and order.

i. Principles of law governing the applicability of Section 106 of the

Evidence Act

35. Section 106 of the Evidence Act reads as follows:

“106. Burden of proving fact especially within

knowledge.— When any fact is especially within the

knowledge of any person, the burden of proving that fact is

upon him.

Illustration

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(a) When a person does an act with some intention other than

that which the character and circumstances of the act

suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket.

The burden of proving that he had a ticket is on him.”

36. Section 106 of the Evidence Act referred to above provides that when

any fact is especially within the knowledge of any person, the burden of

proving that fact is upon him. The word “especially” means facts that are

pre-eminently or exceptionally within the knowledge of the accused. The

ordinary rule that applies to the criminal trials that the onus lies on the

prosecution to prove the guilt of the accused is not in any way modified by

the rule of facts embodied in Section 106 of the Evidence Act. Section 106

of the Evidence Act is an exception to Section 101 of the Evidence Act.

Section 101 with its illustration (a) 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 the facts

which are, “especially within the knowledge of the accused and which, he

can prove without difficulty or inconvenience”.

37. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404,

this Court while considering the word “especially” employed in Section 106

of the Evidence Act speaking through Vivian Bose, J., observed as under:

Criminal Appeal No. 437 of 2015 Page 21 of 54

“11. … The word “especially” stresses that it means facts that

are pre-eminently or exceptionally within his knowledge. If the

section were to be interpreted otherwise, it would lead to the very

startling conclusion that in a murder case the burden lies on the

accused to prove that he did not commit the murder because who

could know better than he whether he did or did not.

It is evident that that cannot be the intention & the Privy Council

has twice refused to construe this section, as reproduced in

certain other Acts outside India, to mean that the burden lies on

an accused person to show that he did not commit the crime for

which he is tried. These cases are Attygalle v. The King, 1936

PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 All ER 36

AT P. 49 (B).”

38. The aforesaid decision of Shambhu Nath (supra) has been referred to

and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725,

wherein this Court observed as under:

“22. Thus, Section 106 of the Evidence Act will apply to those

cases where the prosecution has succeeded in establishing the

facts from which a reasonable inference can be drawn regarding

the existence of certain other facts which are within the special

knowledge of the accused. When the accused fails to offer proper

explanation about the existence of said other facts, the court can

always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the

accused fails to offer a reasonable explanation in discharge of

burden placed on him by virtue of Section 106 of the Evidence

Act, such a failure may provide an additional link to the chain of

circumstances. In a case governed by circumstantial evidence, if

the chain of circumstances which is required to be established

by the prosecution is not established, the failure of the accused

to discharge the burden under Section 106 of the Evidence Act

is not relevant at all. When the chain is not complete, falsity of

the defence is no ground to convict the accused.”

(Emphasis supplied)

Criminal Appeal No. 437 of 2015 Page 22 of 54

39. In Tulshiram Sahadu Suryawanshi and Anr. v. State of

Maharashtra, (2012) 10 SCC 373, this Court observed as under:

“23. 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 utilised. 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 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 W.B. v. Mir Mohammad Omar and Ors. [(2000) 8 SCC

382 : 2000 SCC (Cri) 1516] : (SCC p. 393, para 38)

“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. The

State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the

learned Judge has stated the legal principle thus :

‘11. 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”

Criminal Appeal No. 437 of 2015 Page 23 of 54

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.’””

(Emphasis supplied)

40. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC

681, this Court was considering a similar case of homicidal death in the

confines of the house. The following observations made therein are

considered relevant in the facts of the present case:

“14. If an offence takes place inside the privacy of a house and

in such circumstances where the assailants have all the

opportunity to plan and commit the offence at the time and in

circumstances of their choice, it will be extremely difficult for

the prosecution to lead evidence to establish the guilt of the

accused if the strict principle of circumstantial evidence, as

noticed above, is insisted upon by the courts. A judge does not

preside over a criminal trial merely to see that no innocent man

is punished. A judge also presides to see that a guilty man does

not escape. Both are public duties. (See Stirland v. Director of

Public Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)]

— quoted with approval by Arijit Pasayat, J. in State of

Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri)

135].) The law does not enjoin a duty on the prosecution to lead

evidence of such character which is almost impossible to be led

or at any rate extremely difficult to be led. The duty on the

prosecution is to lead such evidence which it is capable of

leading, having regard to the facts and circumstances of the

case. Here it is necessary to keep in mind Section 106 of the

Evidence Act which says that when any fact is especially within

the knowledge of any person, the burden of proving that fact is

upon him. Illustration (b) appended to this section throws some

light on the content and scope of this provision and it reads:

“(b) A is charged with travelling on a railway without

ticket. The burden of proving that he had a ticket is on

him.”

Criminal Appeal No. 437 of 2015 Page 24 of 54

15. Where an offence like murder is committed in secrecy inside

a house, the initial burden to establish the case would

undoubtedly be upon the prosecution, but the nature and

amount of evidence to be led by it to establish the charge cannot

be of the same degree as is required in other cases of

circumstantial evidence. The burden would be of a

comparatively lighter character. In view of Section 106 of the

Evidence Act there will be a corresponding burden on the

inmates of the house to give a cogent explanation as to how the

crime was committed. The inmates of the house cannot get

away by simply keeping quiet and offering no explanation on

the supposed premise that the burden to establish its case lies

entirely upon the prosecution and there is no duty at all on an

accused to offer any explanation.

xxx xxx xxx

22. Where an accused is alleged to have committed the murder

of his wife and the prosecution succeeds in leading evidence to

show that shortly before the commission of crime they were

seen together or the offence takes place in the dwelling home

where the husband also normally resided, it has been

consistently held that if the accused does not offer any

explanation how the wife received injuries or offers an

explanation which is found to be false, it is a strong

circumstance which indicates that he is responsible for

commission of the crime. …”

(Emphasis supplied)

41. The question of burden of proof, where some facts are within the

personal knowledge of the accused, was examined by this Court in the case

of State of W.B. v. Mir Mohammad Omar and Ors., (2000) 8 SCC 382. In

this case, the assailants forcibly dragged the deceased from the house where

he was taking shelter on account of the fear of the accused, and took him

away at about 2:30 in the night. The next day in the morning, his mangled

body was found lying in the hospital. The trial court convicted the accused

Criminal Appeal No. 437 of 2015 Page 25 of 54

under Section 364, read with Section 34 of the IPC, and sentenced them to

ten years rigorous imprisonment. The accused preferred an appeal against

their conviction before the High Court and the State also filed an appeal

challenging the acquittal of the accused for the charge of murder. The

accused had not given any explanation as to what happened to the deceased

after he was abducted by them. The Sessions Judge, after referring to the law

on circumstantial evidence, had observed that there was a missing link in the

chain of evidence after the deceased was last seen together with the accused

persons, and the discovery of the dead body in the hospital, and concluded

that the prosecution had failed to establish the charge of murder against the

accused persons beyond any reasonable doubt. This Court took note of the

provisions of Section 106 of the Evidence Act, and laid down the following

principles in paras 31 to 34:

“31. The pristine rule that the burden of proof is on the

prosecution to prove the guilt of the accused should not be

taken as a recognized doctrine as though it admits no process

of intelligent reasoning. The doctrine of presumption is not

alien to the above rule, nor would it impair the temper of the

rule. On the other hand, if the traditional rule relating to

burden of proof of the prosecution is allowed to be wrapped in

pedantic coverage, the offenders in serious offences would be

the major beneficiaries and the society would be the casualty.

32. In this case, when the prosecution succeeded in establishing

the afore-narrated circumstances, the court has to presume the

existence of certain facts. Presumption is a course recognized

by the law for the court to rely on in conditions such as this.

33. Presumption of fact is an inference as to the existence of

one fact from the existence of some other facts, unless the truth

of such inference is disproved. Presumption of fact is a rule in

Criminal Appeal No. 437 of 2015 Page 26 of 54

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 principle has gained

legislative recognition in India when Section 114 is

incorporated in the Evidence Act. It empowers the court to

presume the existence of any fact which it thinks likely to have

happened. In that process the court shall have regard to the

common course of natural events, human conduct etc. in

relation to the facts of the case.

34. When it is proved to the satisfaction of the Court that

Mahesh was abducted by the accused and they took him out of

that area, the accused alone knew what happened to him until

he was with them. If he was found murdered within a short time

after the abduction the permitted reasoning process would

enable the Court to draw the presumption that the accused have

murdered him. Such inference can be disrupted if the accused

would tell the Court what else happened to Mahesh at least

until he was in their custody.”

(Emphasis supplied)

42. Applying the aforesaid principles, this Court while maintaining the

conviction under Section 364 read with Section 34 of the IPC, reversed the

order of acquittal under Section 302 read with Section 34 of the IPC, and

convicted the accused under the said provision and sentenced them to

imprisonment for life.

43. Thus, from the aforesaid decisions of this Court, it is evident that the

court should apply Section 106 of the Evidence Act in criminal cases with

care and caution. It cannot be said that it has no application to criminal cases.

The ordinary rule which applies to criminal trials in this country that the

onus lies on the prosecution to prove the guilt of the accused is not in any

Criminal Appeal No. 437 of 2015 Page 27 of 54

way modified by the provisions contained in Section 106 of the Evidence

Act.

44. Section 106 of the Evidence Act cannot be invoked to make up the

inability of the prosecution to produce evidence of circumstances pointing

to the guilt of the accused. This section cannot be used to support a

conviction unless the prosecution has discharged the onus by proving all the

elements necessary to establish the offence. It does not absolve the

prosecution from the duty of proving that a crime was committed even

though it is a matter specifically within the knowledge of the accused and it

does not throw the burden on the accused to show that no crime was

committed. To infer the guilt of the accused from absence of reasonable

explanation in a case where the other circumstances are not by themselves

enough to call for his explanation is to relieve the prosecution of its

legitimate burden. So, until a prima facie case is established by such

evidence, the onus does not shift to the accused.

45. Section 106 of the Evidence Act obviously refers to cases where the

guilt of the accused is established on the evidence produced by the

prosecution unless the accused is able to prove some other facts especially

within his knowledge, which would render the evidence of the prosecution

nugatory. If in such a situation, the accused offers an explanation which may

be reasonably true in the proved circumstances, the accused gets the benefit

Criminal Appeal No. 437 of 2015 Page 28 of 54

of reasonable doubt though he may not be able to prove beyond reasonable

doubt the truth of the explanation. But, if the accused in such a case does not

give any explanation at all or gives a false or unacceptable explanation, this

by itself is a circumstance which may well turn the scale against him. In the

language of Prof. Glanville Williams:

“All that the shifting of the evidential burden does at the

final stage of the case is to allow the jury (Court) to take into

account the silence of the accused or the absence of

satisfactory explanation appearing from his evidence.”

(Emphasis supplied)

46. To recapitulate the foregoing : What lies at the bottom of the various

rules shifting the evidential burden or burden of introducing evidence in

proof of one’s case as opposed to the persuasive burden or burden of proof,

i.e., of proving all the issues remaining with the prosecution and which never

shift is the idea that it is impossible for the prosecution to give wholly

convincing evidence on certain issues from its own hand and it is, therefore,

for the accused to give evidence on them if he wishes to escape. Positive

facts must always be proved by the prosecution. But the same rule cannot

always apply to negative facts. It is not for the prosecution to anticipate and

eliminate all possible defences or circumstances which may exonerate an

accused. Again, when a person does not act with some intention other than

that which the character and circumstances of the act suggest, it is not for

the prosecution to eliminate all the other possible intentions. If the accused

Criminal Appeal No. 437 of 2015 Page 29 of 54

had a different intention that is a fact especially within his knowledge and

which he must prove (see Professor Glanville Williams—Proof of Guilt, Ch.

7, page 127 and following) and the interesting discussion—para 527

negative averments and para 528 — “require affirmative counter-evidence”

at page 438 and foil, of Kenny’s outlines of Criminal Law, 17

th

Edn. 1958.

47. But Section 106 of the Evidence Act has no application to cases where

the fact in question, having regard to its nature, is such as to be capable of

being known not only to the accused but also to others, if they happened to

be present when it took place. The intention underlying the act or conduct

of any individual is seldom a matter which can be conclusively established;

it is indeed only known to the person in whose mind the intention is

conceived. Therefore, if the prosecution has established that the character

and circumstance of an act suggest that it was done with a particular

intention, then under illustration (a) to this section, it may be assumed that

he had that intention, unless he proves the contrary.

48. A manifest distinction exists between the burden of proof and the

burden of going forward with the evidence. Generally, the burden of proof

upon any affirmative proposition necessary to be established as the

foundation of an issue does not shift, but the burden of evidence or the

burden of explanation may shift from one side to the other according to the

testimony. Thus, if the prosecution has offered evidence, which if believed

Criminal Appeal No. 437 of 2015 Page 30 of 54

by the court, would convince them of the accused's guilt beyond a reasonable

doubt, the accused, if in a position, should go forward with counter-vailing

evidence, if he has such evidence. When facts are peculiarly within the

knowledge of the accused, the burden is on him to present evidence of such

facts, whether the proposition is an affirmative or negative one. He is not

required to do so even though a prima facie case has been established, for

the court must still find that he is guilty beyond a reasonable doubt before it

can convict. However, the accused's failure to present evidence on his behalf

may be regarded by the court as confirming the conclusion indicated by the

evidence presented by the prosecution or as confirming presumptions which

might arise therefrom. Although not legally required to produce evidence on

his own behalf, the accused may, therefore, as a practical matter find it

essential to go forward with proof. This does not alter the burden of proof

resting upon the prosecution [See: Balvir Singh v. State of Uttarakhand,

2023 SCC OnLine 1261]

ii. What is “prima facie case” (foundational facts) in the context of

Section 106 of the Evidence Act?

49. The Latin expression prima facie means “at first sight”, “at first

view”, or “based on first impression”. According to Webster’s Third

International Dictionary (1961 Edn.), “prima facie case” means a case

established by “prima facie evidence” which in turn means “evidence

Criminal Appeal No. 437 of 2015 Page 31 of 54

sufficient in law to raise a presumption of fact or establish the fact in

question unless rebutted”. In both civil and criminal law, the term is used to

denote that, upon initial examination, a legal claim has sufficient evidence

to proceed to trial or judgment. In most legal proceedings, one party

(typically, the plaintiff or the prosecutor) has a burden of proof, which

requires them to present prima facie evidence for each element of the case

or charges against the defendant. If they cannot present prima facie

evidence, the initial claim may be dismissed without any need for a response

by other parties.

50. Section 106 of the Evidence Act would apply to cases where the

prosecution could be said to have succeeded in proving facts from which a

reasonable inference can be drawn regarding guilt of the accused.

51. The presumption of fact is an inference as to the existence of one fact

from the existence of some other facts, unless the truth of such inference is

disproved.

52. To explain what constitutes a prima facie case to make Section 106

of the Evidence Act applicable, we should refer to the decision of this Court

in Mir Mohammad (supra), wherein this Court has observed in paras 36 and

37 respectively as under:

“36. In this context we may profitably utilize the legal

principle embodied in Section 106 of the Evidence Act which

reads as follows: “When any fact is especially within the

Criminal Appeal No. 437 of 2015 Page 32 of 54

knowledge of any person, the burden of proving that fact is

upon him.”

37. The section is not intended to relieve the prosecution of

its burden to prove the guilt of the accused beyond

reasonable doubt. But the section 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 facts, failed to offer

any explanation which might drive the court to draw a

different inference.”

(Emphasis supplied)

53. We should also look into the decision of this Court in the case of Ram

Gulam Chaudhary & Ors. v. State of Bihar, (2001) 8 SCC 311, wherein

this Court made the following observations in paragraph 24 as under:

“24. Even otherwise, in our view, this is a case where Section

106 of the Evidence Act would apply. Krishnanand Chaudhary

was brutally assaulted and then a chhura-blow was given on

the chest. Thus chhura-blow was given after Bijoy Chaudhary

had said “he is still alive and should be killed”. The appellants

then carried away the body. What happened thereafter to

Krishnanand Chaudhary is especially within the knowledge of

the appellants. The appellants have given no explanation as to

what they did after they took away the body. Krishnanand

Chaudhary has not been since seen alive. In the absence of an

explanation, and considering the fact that the appellants were

suspecting the boy to have kidnapped and killed the child of the

family of the appellants, it was for the appellants to have

explained what they did with him after they took him

away. When the abductors withheld that information from the

court, there is every justification for drawing the inference that

they had murdered the boy. Even though Section 106 of the

Evidence Act may not be intended to relieve the prosecution of

its burden to prove the guilt of the accused beyond reasonable

doubt, but the section would apply to cases like the present,

where the prosecution has succeeded in proving facts from

which a reasonable inference can be drawn regarding death.

Criminal Appeal No. 437 of 2015 Page 33 of 54

The appellants by virtue of their special knowledge must offer

an explanation which might lead the Court to draw a different

inference. We, therefore, see no substance in this submission of

Mr. Mishra.”

(Emphasis supplied)

54. Cases are frequently coming before the courts where the husband, due

to strained marital relations and doubt as regards the character, has gone to

the extent of killing his wife. These crimes are generally committed in

complete secrecy inside the house and it becomes very difficult for the

prosecution to lead evidence. No member of the family, like in the case at

hand, even if he is a witness of the crime, would come forward to depose

against another family member.

55. If an offence takes place inside the four walls of a house and in such

circumstances where the accused has all the opportunity to plan and commit

the offence at a time and in the circumstances of his choice, it will be

extremely difficult for the prosecution to lead direct evidence to establish

the guilt of the accused. It is to resolve such a situation that Section 106 of

the Evidence Act exists in the statute book. In the case of Trimukh Maroti

Kirkan (supra), this Court observed that a Judge does not preside over a

criminal trial merely to see that no innocent man is punished. The Court

proceeded to observe that a Judge also presides to see that a guilty man does

not escape. Both are public duties. The law does not enjoin a duty on the

prosecution to lead evidence of such character, which is almost impossible

to be led, or at any rate, extremely difficult to be led. The duty on the

Criminal Appeal No. 437 of 2015 Page 34 of 54

prosecution is to lead such evidence, which it is capable of leading, having

regard to the facts and circumstances of the case.

56. We are of the view that the following foundational facts, which were

duly proved, justified the courts below in invoking the principles enshrined

under Section 106 of the Evidence Act:

a) The offence took place inside the four walls of the house in which the

appellant, deceased and their 5-year-old daughter were living. The

incident occurred in the early morning hours between 3.30 am and

4.00 am.

b) When the Investigating Officer reached the house of the appellant, he

found the deceased lying in a pool of blood. The appellant was also

present at his house.

c) The defence put forward by the appellant that two unidentified

persons entered the house and inflicted injuries on the deceased and

also on his body is found to be false.

d) The clothes worn by the appellant at the time of the incident were

collected by the Investigating Officer. The clothes had blood stains.

According to the Forensic Science Laboratory report, the blood stains

on the clothes of the appellant matched with the blood group of the

deceased i.e., AB+

e) The conduct of the appellant in leading the Investigating Officer and

others to a drain nearby his house and the discovery of the knife from

Criminal Appeal No. 437 of 2015 Page 35 of 54

the drain is a relevant fact under Section 8 of the Evidence Act. In

other words, the evidence of the circumstance simpliciter that the

appellant pointed out to the Investigating Officer the place where he

threw away the weapon of offence i.e., knife would be admissible as

‘conduct’ under Section 8 irrespective of the fact whether the

statement made by the accused contemporaneously with or antecedent

to such conduct falls within the purview of Section 27 of the Evidence

Act.

iii. Discovery of weapon under Section 27 of the Evidence Act

57. In Madan Singh v. State of Rajasthan, 1979 SCC (Cri) 56, it was

observed that where the evidence of the Investigating Officer who

discovered the material objects is convincing, the evidence as to discovery

need not be rejected on the ground that the panch witnesses did not support

the prosecution version. Similar view was expressed in Mohd.

Aslam v. State of Maharashtra, (2001) 9 SCC 362.

58. In Anter Singh v. State of Rajasthan, (2004) 10 SCC 657, it was

further held: -

“10. … even if Panch witness turn hostile which happens very

often in criminal cases, the evidence of the person who effected

the recovery would not stand vitiated.”

59. Even while discarding the evidence in the form of discovery

panchnama, the conduct of the appellant herein would be relevant under

Criminal Appeal No. 437 of 2015 Page 36 of 54

Section 8 of the Evidence Act. The evidence of discovery would be

admissible as conduct under Section 8 of the Evidence Act quite apart from

the admissibility of the disclosure statement under Section 27 of the

Evidence Act, as this Court observed in A.N. Venkatesh and Anr. v. State

of Karnataka, (2005) 7 SCC 714: -

“9. By virtue of Section 8 of the Evidence Act, the conduct of

the accused person is relevant, if such conduct influences or is

influenced by any fact in issue or relevant fact. The evidence of

the circumstance, simpliciter, that the accused pointed out to

the police officer, the place where the dead body of the

kidnapped boy was found and on their pointing out the body

was exhumed, would be admissible as conduct under Section 8

irrespective of the fact whether the statement made by the

accused contemporaneously with or antecedent to such conduct

falls within the purview of Section 27 or not as held by this

Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC

90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400]. Even if we hold

that the disclosure statement made by the accused-appellants

(Ex. P-15 and P-16) is not admissible under Section 27 of the

Evidence Act, still it is relevant under Section 8. …”

60. In the State (NCT of Delhi) v. Navjot Sandhu alias Afsan

Guru, (2005) 11 SCC 600, the two provisions i.e. Section 8 and Section 27

of the Evidence Act were elucidated in detail with reference to the case law

on the subject and apropos to Section 8 of the Evidence Act, wherein it was

held:

“205. Before proceeding further, we may advert to Section 8 of

the Evidence Act. Section 8 insofar as it is relevant for our

purpose makes the conduct of an accused person relevant, if

such conduct influences or is influenced by any fact in issue or

relevant fact. It could be either a previous or subsequent

Criminal Appeal No. 437 of 2015 Page 37 of 54

conduct. There are two Explanations to the section, which

explains the ambit of the word ‘conduct’. They are:

“Explanation 1.- The word ‘conduct’ in this section does not

include statements, unless those statements accompany and

explain acts other than statements, but this explanation is not

to affect the relevancy of statements under any other section of

this Act.

Explanation 2.- When the conduct of any person is relevant, any

statement made to him or in his presence and hearing, which

affects such conduct, is relevant.”

The conduct, in order to be admissible, must be such that it has

close nexus with a fact in issue or relevant fact. Explanation 1

makes it clear that the mere statements as distinguished from

acts do not constitute “conduct” unless those statements

“accompany and explain acts other than statements”. Such

statements accompanying the acts are considered to be

evidence of res gestae. Two illustrations appended to Section 8

deserve special mention:

“(f) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A's

presence— ‘the police are coming to look for the man

who robbed B’, and that immediately afterwards A ran

away, are relevant.

* * *

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime,

he absconded, or was in possession of property or the

proceeds of property acquired by the crime, or attempted

to conceal things which were or might have been used in

committing it, are relevant.”

206. We have already noticed the distinction highlighted

in Prakash Chand case (supra) between the conduct of an

accused which is admissible under Section 8 and the statement

made to a police officer in the course of an investigation which

is hit by Section 162 Cr.P.C. The evidence of the circumstance,

simpliciter, that the accused pointed out to the police officer,

the place where stolen articles or weapons used in the

commission of the offence were hidden, would be admissible as

“conduct” under Section 8 irrespective of the fact whether the

Criminal Appeal No. 437 of 2015 Page 38 of 54

statement made by the accused contemporaneously with or

antecedent to such conduct, falls within the purview of Section

27, as pointed out in Prakash Chand case. In Om Prakash

case (supra) this Court held that: (SCC p.262, para 14)

“Even apart from the admissibility of the information

under Section 27, the evidence of the investigating officer

and the panchas that the accused had taken them to PW

11 (from whom he purchased the weapon) and pointed

him out and as corroborated by PW 11 himself would be

admissible under Section 8 of the Evidence Act as conduct

of the accused.””

(Emphasis supplied)

61. However, in the aforesaid context, we would like to sound a note of

caution. Although the conduct of an accused may be a relevant fact under

Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to

convict him or hold him guilty and that too, for a serious offence like murder.

Like any other piece of evidence, the conduct of an accused is also one of

the circumstances which the court may take into consideration along with

the other evidence on record, direct or indirect. What we are trying to convey

is that the conduct of the accused alone, though may be relevant under

Section 8 of the Evidence Act, cannot form the basis of conviction.

iv. Cross-examination by the public prosecutor of a hostile witness

62. In the case at hand, Shaheena (PW-3) was the most important witness

for the prosecution, being the solitary eye witness to the incident. Shaheena

(PW-3) at the relevant point of time was just five years old. Her childhood

Criminal Appeal No. 437 of 2015 Page 39 of 54

might have been very disturbed on account of the strained relations of her

parents. The unfortunate incident must have had a lasting effect on her.

However, when she entered the witness box, she decided to resile from her

previous statement. Had she deposed as stated by her in her police statement

then, probably, the prosecution would not have felt the need to invoke

Section 106 of the Evidence Act. There could be innumerable reasons for a

witness to resile from his/her police statement and turn hostile. Here is a case

in which a five-year-old daughter might have resiled thinking that having

lost her mother, the father was the only person who may take care of her and

bring her up. However, why she turned hostile is not important. What is

important is the role of the public prosecutor after a prime witness, more

particularly a child witness of tender age, turns hostile in a murder trial.

When any prosecution witness turns hostile and the public prosecutor seeks

permission of the trial court to cross-examine such witness then that witness

is like any other witness. The witness no longer remains the prosecution

witness.

63. Section 162 Cr.P.C. bars the use of statement of witnesses recorded

by the police except for the limited purpose of contradiction of such

witnesses as indicated therein. The statement made by a witness before the

police under Section 161(1) Cr.P.C. can be used only for the purpose of

contradicting such witness on what he has stated at the trial as laid down in

the proviso to Section 162(1) Cr.P.C. The statements under Section 161

Criminal Appeal No. 437 of 2015 Page 40 of 54

Cr.P.C. recorded during the investigation are not substantive pieces of

evidence but can be used primarily for the limited purpose: (i) of

contradicting such witness by an accused under Section 145 of the Evidence

Act; (ii) the contradiction of such witness also by the prosecution but with

the leave of the Court; and (iii) the re-examination of the witness if

necessary.

64. The court cannot suo motu make use of statements to police not

proved and ask questions with reference to them which are inconsistent with

the testimony of the witness in the court. The words ‘if duly proved’ used in

Section 162 Cr.P.C. clearly show that the record of the statement of

witnesses cannot be admitted in evidence straightaway, nor can be looked

into, but they must be duly proved for the purpose of contradiction by

eliciting admission from the witness during cross-examination and also

during the cross-examination of the Investigating Officer. The statement

before the Investigating Officer can be used for contradiction but only after

strict compliance with Section 145 of the Evidence Act, that is, by drawing

attention to the parts intended for contradiction.

65. Section 145 of the Evidence Act reads as under:

“145.Cross-examination as to previous statements in writing.

— A witness may be cross-examined as to previous statements

made by him in writing or reduced into writing, and relevant to

matters in question, without such writing being shown to him, or

Criminal Appeal No. 437 of 2015 Page 41 of 54

being proved; but, if it is intended to contradict him by the

writing, his attention must, before the writing can be proved, be

called to those parts of it which are to be used for the purpose of

contradicting him.”

66. Under Section 145 of the Evidence Act when it is intended to

contradict the witness by his previous statement reduced into writing, the

attention of such witness must be called to those parts of it which are to be

used for the purpose of contradicting him, before the writing can be used.

While recording the deposition of a witness, it becomes the duty of the trial

court to ensure that the part of the police statement with which it is intended

to contradict the witness is brought to the notice of the witness in his cross-

examination. The attention of witness is drawn to that part and this must

reflect in his cross-examination by reproducing it. If the witness admits the

part intended to contradict him, it stands proved and there is no need of

further proof of contradiction and it will be read while appreciating the

evidence. If he denies having made that part of the statement, his attention

must be drawn to that statement and must be mentioned in the deposition.

By this process the contradiction is merely brought on record, but it is yet to

be proved. Thereafter, when the Investigating Officer is examined in the

court, his attention should be drawn to the passage marked for the purpose

of contradiction, it will then be proved in the deposition of the Investigating

Officer who, again, by referring to the police statement will depose about

the witness having made that statement. The process again involves referring

Criminal Appeal No. 437 of 2015 Page 42 of 54

to the police statement and culling out that part with which the maker of the

statement was intended to be contradicted. If the witness was not confronted

with that part of the statement with which the defence wanted to contradict

him, then the court cannot suo motu make use of statements to police not

proved in compliance with Section 145 of the Evidence Act, that is, by

drawing attention to the parts intended for contradiction.” [See: V.K. Mishra

v. State of Uttarakhand : (2015 9 SCC 588]

67. In the case at hand, not only proper contradictions were not brought

on record in the oral evidence of the hostile witnesses, but even those few

that were brought on record, were not proved through the evidence of the

Investigating Officer. Does the State expect Section 106 of the Evidence Act

to come to its aid in every criminal prosecution. At times, such procedural

lapses may lead to a very serious crime going unpunished. Any crime

committed against an individual is a crime against the entire society. In such

circumstances, neither the public prosecutor nor the presiding officer of the

trial court can afford to remain remiss or lackadaisical in any manner. Time

and again, this Court has, through its judgments, said that there should not

be any element of political consideration in the matters like appointment to

the post of public prosecutor, etc. The only consideration for the

Government should be the merit of the person. The person should be not

only competent, but he should also be a man of impeccable character and

integrity. He should be a person who should be able to work independently

Criminal Appeal No. 437 of 2015 Page 43 of 54

without any reservations, dictates or other constraints. The relations between

the Public Prosecution Service and the judiciary are the very cornerstone of

the criminal justice system. The public prosecutors who are responsible for

conducting prosecutions and may appeal against the court decisions, are one

of judges’ natural counterparts in the trial proceedings and also in the

broader context of management of the system of criminal law.

68. A criminal case is built upon the edifice of evidence (whether it is

direct evidence or circumstantial evidence) that is admissible in law. Free

and fair trial is the very foundation of the criminal jurisprudence. There is a

reasonable apprehension in the mind of the public at large that the criminal

trial is neither free nor fair with the Prosecutor appointed by the State

Government conducting the trial in a manner where frequently the

prosecution witnesses turn hostile.

69. Over a period of time, we have noticed, while hearing criminal

appeals, that there is practically no effective and meaningful cross-

examination by the Public Prosecutor of a hostile witness. All that the Public

Prosecutor would do is to confront the hostile witness with his/her police

statement recorded under Section 161 of the Cr.P.C. and contradict him/her

with the same. The only thing that the Public Prosecutor would do is to bring

the contradictions on record and thereafter prove such contradictions

through the evidence of the Investigating Officer. This is not sufficient. The

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object of the cross-examination is to impeach the accuracy, credibility and

general value of the evidence given in-chief; to sift the facts already stated

by the witness; to detect and expose the discrepancy or to elicit the

suppressed facts which will support the case of the cross-examining party.

What we are trying to convey is that it is the duty of the Public Prosecutor

to cross-examine a hostile witness in detail and try to elucidate the truth &

also establish that the witness is speaking lie and has deliberately resiled

from his police statement recorded under Section 161 of the Cr.P.C. A good,

seasoned and experienced Public Prosecutor will not only bring the

contradictions on record, but will also cross-examine the hostile witness at

length to establish that he or she had actually witnessed the incident as

narrated in his/her police statement.

70. In the case at hand, we have noticed that after Shaheena (PW-3) was

declared hostile, all that the public prosecutor did was to put few suggestions

to her for the purposes of cross-examination. Surprisingly, even proper

contradictions were not brought on record. In other words, the PW-3 was

not even appropriately confronted with her police statement. It is not

sufficient for the public prosecutor while cross-examining a hostile witness

to merely hurl suggestions, as mere suggestions have no evidentiary value.

71. The trial judge also failed to play an active role in the present case.

The trial judge should have been conscious of the fact that Shaheena (PW-

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3) was asked to depose in the open court in a charged atmosphere and that

too in the presence of the accused who was none other than her own father.

72. The impact of a court appearance on a child and the duty of the court

towards a child witness have been very succinctly explained by the

Constitutional Court of South Africa in the case of Director of Public

Prosecutions, Transwal v. Minister of Justice and Constitutional

Development reported in (2009) 4 SA 222 (CC). We quote the relevant

observations as under:

“101. A court operates in an atmosphere which is intended to

be imposing. It is an atmosphere which is foreign to a child. The

child sits alone in the witness stand, away from supportive

relatives such as a parent. The child has to testify in the presence

of the alleged abuser and other strangers including the

presiding judicial officer, the accused's legal representative, the

court orderly, the prosecutor and other court officials. While the

child may have met the prosecutor before - at least one assumes

that the prosecutor would have interviewed the child in

preparing for trial - the conversation now takes place in a

context that is probably bewildering and frightening to the child.

Unless appropriately adapted to a child, the effect of the

courtroom atmosphere on the child may be to reduce the child

to a state of terrified silence. Instances of children who have

been so frightened by being introduced into the alien

atmosphere of the courtroom that they refuse to say anything

are not unknown.”

So far as conduct of the competency assessment of the child is

concerned, it was held as follows:

“102. The child would be questioned by the judicial officer in

order to satisfy himself or herself that the child understands

that he or she is under a duty to speak the truth or understands

the import of the oath. Regrettably this questioning, although

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well-meaning, is often theoretical in nature and may increase

the child's sense of confusion and terror. The child may wonder

why he or she is being subjected to this questioning. That is not

all.

xxx xxx xxx

104. If the child decides to speak, then the prosecutor will take

him or her through his or her evidence. The questioning of a

child requires special skills, similar to those required to run

day care centres or to teach younger children. Questioning a

child in court is no exception: it requires a skill. Regrettably,

not all of our prosecutors are adequately trained in this area,

although quite a few have developed the necessary

understanding and skill to question children in the court

room environment…”

(Emphasis supplied)

73. If the questioning by the public prosecutor is not skilled, like in the

case at hand, the result is that the State as a prosecuting agency will not be

able to elicit the truth from the child witness. It is the duty of the court to

arrive at the truth and subserve the ends of justice. The courts have to take a

participatory role in the trial and not act as mere tape recorders to record

whatever is being stated by the witnesses. The judge has to monitor the

proceedings in aid of justice. Even if the prosecutor is remiss or lethargic in

some ways, the court should control the proceedings effectively so that the

ultimate objective that is the truth is arrived at. The court must be conscious

of serious pitfalls and dereliction of duty on the part of the prosecuting

agency. Upon failure of the prosecuting agency showing indifference or

adopting an attitude of aloofness, the trial judge must exercise the vast

Criminal Appeal No. 437 of 2015 Page 47 of 54

powers conferred under Section 165 of the Evidence Act and Section 311 of

the Cr.P.C. respectively to elicit all the necessary materials by playing an

active role in the evidence collecting process. (See: Zahira Habibulla H.

Sheikh & Anr. vs. State of Gujarat & Ors., (2004) 4 SCC 158).

74. The judge is expected to actively participate in the trial, elicit

necessary materials from the witnesses in the appropriate context which he

feels necessary for reaching the correct conclusion. The judge has

uninhibited power to put questions to the witness either during the chief

examination or cross-examination or even during re-examination for this

purpose. If a judge feels that a witness has committed an error or slip, it is

the duty of the judge to ascertain whether it was so, for, to err is human and

the chances of erring may accelerate under stress of nervousness during

cross-examination. (See: (para 12) of State of Rajasthan vs. Ani alias Hanif

& Ors., AIR 1997 SC 1023).

v. Whether the appellant is entitled to the benefit of Exception 4 to

Section 300 of the IPC?

75. We shall now deal with the alternative submission of the learned

counsel for the appellant as regards the applicability of Exception 4 to

Section 300 of the IPC.

76. He submitted that even otherwise it is the case of the prosecution that

the appellant and the deceased were not leading a happy marital life and used

Criminal Appeal No. 437 of 2015 Page 48 of 54

to fight with each other for some reason or the other, more particularly, on

account of the deceased returning home very late in the night. The learned

counsel tried to develop an argument that on the fateful day of the incident

also some verbal altercation might have taken place and this fact is also

substantiated by the evidence of Shaheena (PW-3) that she had heard shouts

and shrieks of her parents in the night hours. This would indicate that the

incident had occurred in the heat of the moment without any pre-meditation.

In other words, according to the learned counsel it could be a sudden fight

between the two in the heat of passion upon a sudden quarrel. He also tried

to fortify his submission pointing out that appellant had also suffered minor

injuries.

77. The aforesaid submission of the learned counsel appearing for the

appellant is baseless and without any merit. However, since a specific

ground has been urged, we should answer the same.

78. The sine qua non for the application of an Exception to Section 300

always is that it is a case of murder but the accused claims the benefit of the

Exception to bring it out of that Section and to make it a case of culpable

homicide not amounting to murder. This plea, therefore, assumes that this is

a case of murder. Hence, as per Section 105 of the Evidence Act, it is for the

accused to show the applicability of the Exception. Exception 4 reads as

under:

Criminal Appeal No. 437 of 2015 Page 49 of 54

“Exception 4.- Culpable homicide is not murder if it is

committed without premeditation in a sudden fight in the heat

of passion upon a sudden quarrel and without the offender

having taken undue advantage or acted in a cruel or unusual

manner.”

79. A perusal of the provision would reveal that four conditions must be

satisfied to bring the matter within Exception 4:

(i) it was a sudden fight;

(ii) there was no premeditation;

(iii) the act was done in the heat of passion; and; that

(iv) the assailant had not taken any undue advantage or acted in

a cruel manner.

80. On a plain reading of Exception 4, it appears that the help of

Exception 4 can be invoked if death is caused (a) without premeditation, (b)

in a sudden fight, (c) without the offenders having taken undue advantage or

having acted in a cruel or unusual manner; and (d) the fight must have been

with the person killed. To bring a case within Exception 4, all the ingredients

mentioned in it must be found.

81. This Court in Vishal Singh v. State of Rajasthan , (2009) Cri. LJ

2243 has explained the scope and ambit of Exception 4 to 300 of the IPC. A

three-Judge Bench observed in para 7 as under:

“7. The Fourth Exception of Section 300, IPC covers acts done

in a sudden fight. The said exception deals with a case of

prosecution not covered by the First Exception, after which its

place would have been more appropriate. The exception is

founded upon the same principle, for, in both there is absence

of premeditation. But, while in the case of Exception 1 there

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is total deprivation of self-control, in case of Exception 4,

there is only that heat of passion which clouds men's sober

reasons and urges them to deeds which they would not

otherwise do. There is provocation in Exception 4 as in

Exception 1; but the injury done is not the direct consequence

of that provocation. In fact Exception 4 deals with cases in

which notwithstanding that a blow may have been struck, or

some provocation given in the origin of the dispute or in

whatever way the quarrel may have originated, yet the

subsequent conduct of both parties puts them in respect of

guilt upon equal footing. A ‘sudden fight’ implies mutual

provocation and blows on each side. The homicide committed

is then clearly not traceable to unilateral provocation, nor in

such cases could the whole blame be placed on one side. For

if it were so, the Exception more appropriately applicable

would be Exception 1. There is no previous deliberation or

determination to fight. A fight suddenly takes place, for which

both parties are more or less to be blamed. It may be that one

of them starts it, but if the other had not aggravated it by his

own conduct it would not have taken the serious turn it did.

There is then mutual provocation and aggravation, and it is

difficult to apportion the share of blame which attaches to

each fighter. The help of Exception 4 can be invoked if death

is caused (a) without premeditation, (b) in a sudden fight; (c)

without the offender's having taken undue advantage or acted

in a cruel or unusual manner; and (d) the fight must have been

with the person killed. To bring a case within Exception 4 all

the ingredients mentioned in it must be found. It is to be noted

that the ‘fight’ occurring in Exception 4 to Section 300, IPC

is not defined in the IPC. It takes two to make a fight. Heat of

passion requires that there must be no time for the passions to

cool down and in this case, the parties have worked

themselves into a fury on account of the verbal altercation in

the beginning. A fight is a combat between two and more

persons whether with or without weapons. It is not possible to

enunciate any general rule as to what shall be deemed to be a

sudden quarrel. It is a question of fact and whether a quarrel

is sudden or not must necessarily depend upon the proved

facts of each case. For the application of Exception 4, it is not

sufficient to show that there was a sudden quarrel and there

was no premeditation. It must further be shown that the

offender has not taken undue advantage or acted in cruel or

unusual manner. The expression ‘undue advantage’ as used

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in the provision means ‘unfair advantage’. These aspects have

been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of

Gujrat (2003 (5) Supreme 223]; Parkash Chand v. State of

H.P. (2004 (11) SCC 381); Byvarapu Raju v. State of A.P. and

Anr. (2007 (11) SCC 218) and Hawa Singh and Anr. v. State

of Haryana (SLP (Crl.) No. 1515/2008, disposed of on

15.1.2009).”

(Emphasis supplied)

82. If the aforesaid principles, as explained by this Court, are to be applied

to the facts of the present case, we have no hesitation in saying that the

present case is not one of culpable homicide not amounting to murder but

the same is a case of murder. We should not overlook the fact that the

appellant inflicted as many as twelve blows with a knife on the deceased

who was unarmed and helpless.

83. Where the offender takes undue advantage or has acted in a cruel or

an unusual manner, the benefit of Exception 4 cannot be given to him. If the

weapon used or the manner of attack by the assailant is disproportionate,

that circumstance must be taken into consideration to decide whether undue

advantage has been taken. In Kikar Singh v. State of Rajasthan reported in

AIR 1993 SC 2426, it was held that if the accused used deadly weapons

against an unarmed man and struck a blow on the head it must be held that

using the blows with the knowledge that they were likely to cause death, he

had taken undue advantage. A fight suddenly takes place, for which both the

parties are more or less to be blamed. It might be that one of them starts it,

Criminal Appeal No. 437 of 2015 Page 52 of 54

but if the other had not aggravated it by his own conduct, it would not have

taken the serious turn it did. There is then mutual provocation and

aggravation and it is difficult to apportion the share of blame which attaches

to each fighter. It takes two to make a fight. Assuming for the moment that

it was the deceased who picked up a fight with the appellant or provoked the

appellant in some manner with her conduct or behaviour, still the appellant

could be said to have taken undue advantage & acted in a cruel manner.

84. For all the foregoing reasons, we have reached to the conclusion that

the High Court committed no error in affirming the judgment and order of

conviction passed by the trial court, holding the appellant guilty of the

offence of murder of his wife.

85. Before we close this matter, we are persuaded to look into a few

mitigating circumstances emerging from the record of the case. We take

notice of the fact that the appellant got married to the deceased in 1982.

During those days, triple talaq was prevalent among the Muslims. In the

year 1992, the appellant divorced the deceased with the aid of triple talaq.

However, thereafter, he once again brought her back home. In the year 1995,

the incident occurred. The appellant came to be convicted by the trial court

in the year 1998. On appeal before the High Court, in the year 1998 itself,

the substantive order of sentence of life imprisonment came to be suspended

Criminal Appeal No. 437 of 2015 Page 53 of 54

and the appellant was ordered to be released on bail. It took 16 years for the

High Court to decide the appeal which ultimately came to be dismissed on

23.05.2014. Upon dismissal of the appeal, the appellant was once again

taken into custody and since then he has been undergoing the sentence of

life imprisonment. We are informed that he has undergone almost 11 years

of imprisonment so far. It appears that as on date the appellant must be about

65 years of age. Almost half of his life lived so far has been spent undergoing

the ordeal of the criminal prosecution. When a crime is committed, a variety

of factors are responsible for making the offender commit the crime. Those

factors may be social and economic, may be the result of value erosion or

parental neglect; may be because of the stress of circumstances, or the

manifestation of temptations in a milieu of affluence contrasted with

indigence or other privations.

86. In the facts of this case, more particularly keeping in mind the

mitigating circumstances as stated above, we grant liberty to the appellant

to prefer an appropriate representation addressed to the State Government

praying for remission of sentence. If any such representation is filed by the

appellant, the State Government shall look into the same at the earliest and

take an appropriate decision on the same in accordance with law within four

weeks from the date of the receipt of such representation and communicate

the same in writing to the appellant.

Criminal Appeal No. 437 of 2015 Page 54 of 54

87. In the result, this appeal fails and is hereby dismissed in the aforesaid

terms.

88. Pending application(s), if any, also stand disposed of.

...................................................... CJI.

(Dr. Dhananjaya Y. Chandrachud)

.......................................................... J.

(J.B. Pardiwala)

.......................................................... J.

(Manoj Misra)

New Delhi;

Date: May 03, 2024.