Holding

The Supreme Court affirmed the conviction, holding that the foundational facts proved by the prosecution justified the invocation of Section 106 of the Evidence Act and that the appellant was guilty of murder, with no entitlement to Exception 4.

Summary

The appellant was convicted of murdering his wife inside their home, where their five‑year‑old daughter also lived. The prosecution relied on forensic evidence, the appellant's blood‑stained clothes, and his conduct in leading police to the weapon, while the defence claimed unknown intruders were responsible. The key legal issue was whether Section 106 of the Evidence Act could be invoked to shift the evidential burden to the accused despite the prosecution’s failure to produce a complete chain of circumstantial evidence. The Supreme Court held that the foundational facts were sufficiently proved, allowing Section 106 to apply and supporting the conviction, and rejected the appellant’s claim of benefit under Exception 4 to Section 300 IPC. The Court also criticised the inadequate cross‑examination of hostile witnesses and emphasized the trial judge’s duty to actively manage the trial. The appeal was dismissed, but the appellant was permitted to seek remission of his sentence.

Issues considered

Whether the High Court erred in affirming the conviction by applying Section 106 of the Evidence Act.
Whether the prosecution established a prima facie case sufficient to invoke Section 106.
Whether the appellant is entitled to the benefit of Exception 4 to Section 300 IPC.
Whether the conduct of the accused under Section 8 of the Evidence Act can alone constitute a basis for conviction.
Whether the public prosecutor complied with the requirements of Sections 145, 161, and 162 CrPC in cross‑examining hostile witnesses.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 162, s. 311
Evidence Act, 1872s. 106, s. 145, s. 161, s. 162, s. 165, s. 27, s. 8
Indian Penal Code, 1860s. 300, s. 302

Subjects

Section 106 of Evidence ActFact especially within knowledgeMurderPrima facie caseFoundational factsRelevant factConduct of accusedWeapon of offenceIntentionDisclosure statementDiscovery panchnamaSole eyewitnessHostile witnessesCross-examination of hostile witnessContradicting witnessSuggestionsConfrontation with police statementPublic prosecutorChild witnessParticipatory roleInside the houseComplete secrecyPositive factsNegative factsException 4 to s.300 IPCCruel mannerMitigating circumstances

Judgment

[2024] 6 S.C.R. 164 : 2024 INSC 368

Anees
v.
The State Govt. of NCT
(Criminal Appeal No. 437 of 2015)
03 May 2024
[Dr. Dhananjaya Y. Chandrachud, CJI,
J.B. Pardiwala* and Manoj Misra, JJ.]

Issue for Consideration
Murder of appellant-accused’s wife in their house in which the
appellant, deceased and their 5 year old daughter lived. s.106,
Evidence Act, 1872 was invoked and the appellant was convicted
u/s.302, IPC for the murder. Whether the High Court committed any
error in passing the impugned judgment affirming the conviction
of the appellant.

Headnotes
Evidence Act, 1872 – s.106 – Burden of proving fact especially
within knowledge – “prima facie case” (foundational facts) in
the context of s.106 – Murder of appellant-accused’s wife in
the early morning hours in their house in which the appellant,
deceased and their 5-year-old daughter were living – s.106
was invoked, appellant convicted u/s.302 for the murder –
Correctness:
Held: s.106 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 – In the
present case, 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 – When
the Investigating Officer (IO) reached the house of the appellant, he
found the deceased lying in a pool of blood – Appellant was also
present there – 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 was found to be false – Clothes
worn by the appellant at the time of the incident had blood stains
which matched with the blood group of the deceased – Further,
the conduct of the appellant in leading the IO and others to a drain
nearby his house and the discovery of the knife from the drain is a
* Author
[2024] 6 S.C.R. 165

Anees v. The State Govt. of NCT

relevant fact u/s.8, Evidence Act – Thus, in view of the aforesaid
foundational facts being duly proved, the courts below were justified
in invoking the principles enshrined u/s. 106 – High Court committed
no error in affirming the order of conviction passed by the trial
court, holding the appellant guilty of the offence of murder of his
wife – However, in view of the mitigating circumstances, appellant
at liberty to prefer representation to the State Government for
remission of sentence. [Paras 50, 56 and 84]
Evidence Act, 1872 – s.106 – Applicability – Principles of law:
Held: 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 s.106 –
s.106 is an exception to s.101, Evidence Act – s.106 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” – Court should apply s.106 in criminal cases
with care and caution – s.106 cannot be invoked to make up the
inability of the prosecution to produce evidence of circumstances
pointing to the guilt of the accused – It 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. [Paras
36, 43, 44]
Evidence Act, 1872 – s.106 – Burden of proving fact especially
within knowledge – “especially” – Meaning:
Held: s.106 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 – s.106
166 [2024] 6 S.C.R.

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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 – 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 against him.
[Paras 36, 45]
Evidence Act, 1872 – ss.8, 27 – ‘conduct’ – “relevant fact” –
Weapon of offence, the knife was discovered at the instance
of the appellant by drawing panchnama u/s.27:
Held: Conduct of the appellant in leading the IO and others to a
drain nearby his house and the discovery of the knife from the
drain is a relevant fact u/s.8 – In other words, the evidence of the
circumstance simpliciter that the appellant pointed out to the IO
the place where he threw away the weapon of offence i.e., knife
would be admissible as ‘conduct’ u/s.8 irrespective of the fact
whether the statement made by the accused contemporaneously
with or antecedent to such conduct falls within the purview of
s.27 – Even while discarding the evidence in the form of discovery
panchnama, the conduct of the appellant would be relevant u/s.
8 – The evidence of discovery would be admissible as conduct
u/s.8 quite apart from the admissibility of the disclosure statement
u/s.27. [Paras 56(e), 59]
Evidence – Positive facts vis-à-vis negative facts – 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:
Held: 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
[2024] 6 S.C.R. 167

Anees v. The State Govt. of NCT

– 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 – 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 had a
different intention that is a fact especially within his knowledge and
which he must prove. [Para 46]
Evidence Act, 1872 – s.106 – Inapplicable when fact in question
capable of being known not only to the accused but also to
others:
Held: s.106 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. [Para 47]
Evidence Act, 1872 – s.8 – Conduct of the accused though
relevant u/s.8, however, it alone cannot form the basis of
conviction:
Held: Although the conduct of an accused may be a relevant fact
u/s.8, 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 – Thus, the conduct of the accused alone, though may
be relevant u/s.8 cannot form the basis of conviction. [Para 61]
Evidence – Distinction between burden of proof and burden
of explanation – Discussed. [Para 48]
Evidence Act, 1872 – s.106 – Burden of proving fact especially
within knowledge – Crimes committed in complete secrecy –
Difficulty faced by prosecution to lead direct evidence:
168 [2024] 6 S.C.R.

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Held: 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 even if he is a witness of the crime, would
come forward to depose against another family member – If an
offence takes place inside the four walls of a house 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 s.106
exists in the statute book. [Paras 54, 55]
Code of Criminal Procedure, 1973 – ss.161(1), 162(1) – Evidence
Act, 1872 – s.145:
Held: Statement made by a witness before the police u/s.161(1)
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 s.162(1) – 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 s.162 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 IO – The statement before the IO can be
used for contradiction but only after strict compliance with s.145 of
the Evidence Act, that is, by drawing attention to the parts intended
for contradiction. [Para 64]
Evidence Act, 1872 – s.145 – Cross-examination as to previous
statements in writing – Appellant murdered his wife in their
house – Case of the prosecution that the minor daughter
(PW-3) was the sole eyewitness to the incident – However, she
later turned hostile – Cross-examination by public prosecutor:
Held: In the present case, 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 IO – Such procedural
lapses may lead to a very serious crime going unpunished –
[2024] 6 S.C.R. 169

Anees v. The State Govt. of NCT

In such circumstances, neither the public prosecutor nor the
presiding officer of the trial court can afford to remain remiss
or lackadaisical – After 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 – 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 – Trial judge also failed to play an
active role in the present case. [Paras 67, 70, 71]
Criminal Justice System – Criminal Trial – Public Prosecutors
– Appointment of – Consideration for appointment should not
be political but only merit of the person:
Held: There should not be any element of political consideration
in 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 without any
reservations, dictates or other constraints. [Para 67]
Criminal Trial – Cross-examination of a hostile witness by
public prosecutor – Absence of effective and meaningful
cross-examination – Deprecated– Evidence Act, 1872 – s.165
– Code of Criminal Procedure, 1973 – s.311– Duty of Trial
Judge, Public Prosecutor:
Held: Public Prosecutors merely confront the hostile witness with
his/her police statement recorded u/s.161 and contradict him/her
with the same – They only bring the contradictions on record and
thereafter prove such contradictions through the evidence of the
IO – This is not sufficient – It is the duty of the Public Prosecutor
to cross-examine a hostile witness in detail and try to elucidate
the truth and also establish that the witness is speaking lie and
has deliberately resiled from his police statement recorded u/s.161
– 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 – Courts have to take a participatory role in
the trial and not act as mere tape recorders to record whatever
170 [2024] 6 S.C.R.

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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 – Court must be conscious of serious pitfalls and dereliction of
duty on the part of the prosecuting agency – Upon their failure
showing indifference or adopting an attitude of aloofness, the
trial judge must exercise the vast powers conferred u/s.165 of
the Evidence Act and s. 311 CrPC – 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. [Paras 69, 73, 74]
Penal Code, 1860 – Exception 4 to s.300 – Benefit, when
not available – Appellant murdered his wife in their house –
Alternatively, appellant pleaded that the incident occurred in
the heat of the moment without any pre-meditation as it could
be a sudden fight between the two in the heat of passion upon
a sudden quarrel:
Held: Exception 4 can be invoked if death is caused without
premeditation; in a sudden fight; without the offenders having
taken undue advantage or having acted in a cruel or unusual
manner; and the fight must have been with the person killed –
To bring a case within Exception 4, all the ingredients must be
found – Benefit of Exception 4 cannot be given to the offender
where he takes undue advantage or has acted in a cruel or an
unusual manner – 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 – Appellant inflicted as many as twelve blows with a knife
on the deceased who was unarmed and helpless – Appellant took
undue advantage and acted in a cruel manner – The present case
is not one of culpable homicide not amounting to murder but of
murder. [Paras 80, 82 and 83]
Words & Phrases – “prima facie case” – Meaning:
Held: The Latin expression prima facie means “at first sight”,
“at first view”, or “based on first impression” – It means a case
established by “prima facie evidence” which in turn means
[2024] 6 S.C.R. 171

Anees v. The State Govt. of NCT

“evidence 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 –
Evidence. [Para 49]

Case Law Cited
Shambhu Nath Mehra v. The State of Ajmer [1956]
1 SCR 199 : AIR 1956 SC 404; Nagendra Sah v.
State of Bihar (2021) 10 SCC 725; Tulshiram Sahadu
Suryawanshi and Anr. v. State of Maharashtra [2012] 7
SCR 1083 : (2012) 10 SCC 373; Trimukh Maroti Kirkan
v. State of Maharashtra [2006] Supp. 7 SCR 156 :
(2006) 10 SCC 681; State of W.B. v. Mir Mohammad
Omar and Ors. [2000] Supp. 2 SCR 712 : (2000) 8
SCC 382; Balvir Singh v. State of Uttarakhand [2023]
12 SCR 815 : (2023) SCC OnLine 1261; Ram Gulam
Chaudhary & Ors. v. State of Bihar [2001] Supp. 3
SCR 279 : (2001) 8 SCC 311; Madan Singh v. State of
Rajasthan 1979 SCC (Cri) 56; Mohd. Aslam v. State of
Maharashtra (2001) 9 SCC 362; Anter Singh v. State
of Rajasthan [2004] 2 SCR 123 : (2004) 10 SCC 657;
A.N. Venkatesh and Anr. v. State of Karnataka (2005)
7 SCC 714; State (NCT of Delhi) v. Navjot Sandhu
alias Afsan Guru [2003] Supp. 1 SCR 130 : (2005) 11
SCC 600; V.K. Mishra v. State of Uttarakhand (2015) 9
SCC 588; Zahira Habibulla H. Sheikh & Anr. vs. State
of Gujarat & Ors. 2004 3 SCR 1050 : (2004) 4 SCC
158; State of Rajasthan vs. Ani alias Hanif & Ors. AIR
(1997) SC 1023; Vishal Singh v. State of Rajasthan
[2009] 3 SCR 444 : (2009) Cri. LJ 2243; Kikar Singh
v. State of Rajasthan [1993] 3 SCR 696 : AIR 1993 SC
2426 – relied on.
Sharad Birdhichand Sarda v. State of Maharashtra
[1985] 1 SCR 88 : (1984) 4 SCC 116 – referred to.
172 [2024] 6 S.C.R.

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Director of Public Prosecutions, Transwal v. Minister of
Justice and Constitutional Development (2009) 4 SA
222 (CC) – referred to.

Books and Periodicals Cited
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, 17th
Edn. 1958; Webster’s Third International Dictionary (1961 Edn.)
– referred to.

List of Acts
Evidence Act, 1872; Code of Criminal Procedure, 1973; Penal
Code, 1860.

List of Keywords
Section 106 of Evidence Act, 1872; Fact especially within
knowledge; Murder; Prima facie case; Foundational facts;
Relevant fact; Conduct of accused; Weapon of offence;
Intention; Disclosure statement; Discovery panchnama; Sole
eyewitness; Hostile witnesses; Cross-examination of hostile
witness; Contradicting witness; Contradictions; Suggestions;
Confrontation with police statement; Confronting hostile witness;
Public prosecutor; Child witness; Participatory role; Mere tape
recorders; Inside the house; Complete secrecy; Positive facts;
Negative facts; Exception 4 to s.300, Penal Code, 1860; Cruel
manner; Mitigating circumstances.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 437
of 2015
From the Judgment and Order dated 23.05.2014 of the High Court
of Delhi at New Delhi in CRLA No. 320 of 1998
Appearances for Parties
Rishi Malhotra, Adv. for the Appellant.
Apoorv Kurup, Mukesh Kumar Maroria, Sanjay Kumar Tyagi, Mani
Munjal, Vinayak Sharma, Raman Yadav, Advs. for the Respondent.
[2024] 6 S.C.R. 173

Anees v. The State Govt. of NCT

Judgment / Order of the Supreme Court

Judgment
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
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

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.

* Ed. Note: Pagination as per the original Judgment.
174 [2024] 6 S.C.R.

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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.
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.
[2024] 6 S.C.R. 175

Anees v. The State Govt. of NCT

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
2 N a m e a n d r e s i d e n c e DD No. 2A Dt: 20.12.95 at
o f i n f o r m a t i o n a n d 7 AM Writing of Information
complainant S.I. Mohkam Singh.
3 Brief description of the Under Section 302 IPC
offence (with section) and
of property carried off, if any
4 Place of occurrence and
distance and direction from
Police Station
5 Name and Address of the H o u s e N o . 2 2 0 O l d
Criminal Hustafabi Uttar Pradesh,
Distance 1 ½
6 Steps taken regarding No one stand responsible
investigation explanation for such delay in this
o f d e l a y i n r e c o r d i n g regard.
information
7 Date and time of dispatch Thro special way.
from police station

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
176 [2024] 6 S.C.R.

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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. 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.
[2024] 6 S.C.R. 177

Anees v. The State Govt. of NCT

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.
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
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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 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.
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
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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.
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
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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 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
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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 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
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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.
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
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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.”
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
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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.
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.
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.
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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.
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.
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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 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
(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
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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:
“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
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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)
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
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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” 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
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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.”
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
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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 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
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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 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)
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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 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 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:
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“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 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, 17th 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.
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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 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
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.
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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 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.
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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.
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
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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 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 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
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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 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
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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
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.
***
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(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
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
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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 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 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.
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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 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
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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 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 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
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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 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-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.
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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 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
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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 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).
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Anees v. The State Govt. of NCT

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 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:
“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:
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(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 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
[2024] 6 S.C.R. 211

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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 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)
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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, 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
[2024] 6 S.C.R. 213

Anees v. The State Govt. of NCT

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 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.
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.

Headnotes prepared by: Divya Pandey Result of the case:
Appeal dismissed.