WAZIR KHANversusSTATE OF UTTARAKHAND

                  [2023] 11 S.C.R. 39 : 2023 INSC 674



                             CASE DETAILS

                              WAZIR KHAN
                                      v.
                      STATE OF UTTARAKHAND
                (Criminal Appeal Nos. 1922-1923 of 2017)
                            AUGUST 02, 2023
          [J. B. PARDIWALA AND MANOJ MISRA, JJ.]

                              HEADNOTES

       Issue for consideration : In a case hinging on circumstantial evidence,
where the appellant was put to trial u/ss. 302 and 201 IPC for murdering
his wife, and he did not dispute his presence at the place of incident and,
further, the explanation offered by him as regards injuries received by his
wife was found to be false, whether the High Court was justified in reversing
the acquittal order passed by the trial court.
     Penal Code, 1860 – ss. 302 and 201 – Reversal of acquittal by
High Court – Propriety:
       Held : When attention of the appellant was drawn to the incriminating
circumstances that inculpated him in the crime, he failed to offer appropriate
explanation or gave a false answer – The same can be counted as providing
a missing link for completing a chain of circumstances – Where an accused
is alleged to have committed the murder of his wife and the prosecution
succeeds in leading evidence to show, like in the present case, that shortly
before the commission of the crime they were seen together or the offence
took place in the dwelling home where the husband also normally resided, it
has been consistently held that if the accused does not dispute his presence
at home at the relevant time and 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 – If an offence takes place inside four walls 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 the circumstances of their choice, it
will be extremely difficult for the prosecution to lead evidence to establish the
                                      39
40            SUPREME COURT REPORTS                             [2023] 11 S.C.R.


guilt of the accused, if the strict principle of circumstantial evidence, is insisted
upon by the Courts – On facts, appellant guilty – Reversal of his acquittal by
High Court, upheld. [Paras 24, 25 and 29]
      Circumstantial evidence – Incriminating circumstance put to
accused and the accused offering no explanation or offering a false
explanation – Additional link in chain of circumstances:
        Held : In a case based on circumstantial evidence where no eye witness
is available, principle followed is that when an incriminating circumstance is
put to the accused and the said accused either offers no explanation or offers an
explanation which is found to be untrue, then the same becomes an additional
link in the chain of circumstances to make it complete. [Para 23]
       Evidence – Duty on the prosecution to lead evidence – Nature of:
        Held : 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. [Para 29]
       Evidence Act, 1872 – s.106:
      Held : The prosecution cannot take recourse of s.106 of the Act, 1872
without laying any foundational facts. [Para 17]

        LIST OF CITATIONS AND OTHER REFERENCES

       State of West Bengal v. Mir Mohammad Omar and Ors. (2000) 8 SCC
382 : [2000] 2 Suppl. SCR 712; Dharm Das Wadhwani v. The State of Uttar
Pradesh AIR 1975 SC 241 : [1974] 3 SCR 607; Nika Ram v. State of Himachal
Pradesh AIR 1972 SC 2077 : [1973] 1 SCR 428; Ganesh Lal v. State of
Rajasthan (2002) 1 SCC 73; State of U.P. v. Dr. Ravindra Prakash Mittal, AIR
1992 SC 2045 : [1992] 2 SCR 815 – relied on.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
1922-1923 of 2017.
           WAZIR KHAN v. STATE OF UTTARAKHAND                                   41


      From the Judgment and Order dated 25.07.2017 and 09.08.2017 of
the High Court of Uttarakhand at Nainital in GA No. 10 of 2011.
       Appearances:
     Dr. Rajesh Pandey, Sr. Adv., Chaturanan Choubey, Abhishek Pandey,
Ms. Mridula Ray Bharadwaj, Advs. for the Appellant.
       Dr. Abhishek Atrey, Ms. Rachna Gandhi, Ms. Ambika Atrey, Advs.
for the Respondent.

        JUDGMENT/ORDER OF THE SUPREME COURT

                                    ORDER
       1. These appeals are at the instance of the appellant/convict – Wazir
Khan and is directed against the judgment(s) and order(s) dated 25.07.2017
(conviction) and 09.08.2017 (sentence) resply passed by the High Court of
Uttarakhand at Nainital in Government Appeal No. 10 of 2011, by which the
High Court allowed the appeal filed by the respondent – State of Uttarakhand
and thereby reversed the judgment and order of acquittal passed by the trial court.
        2. The deceased – Bushra was the wife of the appellant/convict – Wazir
Khan. The appellant/convict – Wazir Khan was put to trial in the Court of
Additional Sessions Judge, Roorkee, District Haridwar, Uttarakhand in Sessions
Trial No. 158 of 2007 for the offence punishable under Section 302 and 201 of
the Indian Penal Code, 1860 (for short “IPC”). It is the case of the prosecution
that the appellant/convict – Wazir Khan committed murder of his wife – Bushra
by inflicting injuries all over her body with a knife.
       3. It appears that one, Mohd. Hayyat informed the police on telephone
on 23.07.2007 that the deceased/wife of the appellant had been murdered in
her house. This incident appears to have occurred during the intervening night
of 22.01.2007 and 23.01.2007. The inquest panchnama of the dead body of the
deceased was drawn. The body of the deceased was, thereafter, sent for post-
mortem. The post-mortem report on record reveals that there were as many as 17
incised wounds on all over the body. The appellant – Wazir Khan was arrested
by the police and taken into custody. Upon completion of the investigation,
charge sheet was filed. The appellant – Wazir Khan pleaded not guilty to the
charge and claimed to be tried.
42            SUPREME COURT REPORTS                            [2023] 11 S.C.R.


       4. The prosecution examined as many as 10 witnesses, and also led
documentary evidence in support of its case. In the statement of the appellant
– Wazir Khan recorded under Section 313 of the Cr.P.C., he stated that on the
date of the incident, his wife was killed by the robbers. In his further statement,
he also stated that while the robbers killed his wife, he too suffered injuries
at the hands of the robbers.
      5. The trial court upon appreciation of the oral as well as the documentary
evidence came to conclusion that the prosecution had failed to prove its case
beyond reasonable doubt and accordingly acquitted the appellant – Wazir
Khan of all the charges.
        6. The respondent – State, being aggrieved and dissatisfied by the
judgment and order of acquittal passed by the trial court, went in appeal
before the High Court. The High Court found the judgment and order of the
trial court to be perverse, and accordingly reversed the acquittal and held the
appellant – Wazir Khan guilty of the offence of murder of his wife.
       7. In such circumstances referred to above, the appellant – Wazir Khan
is here before this Court by way of present appeals.
       8. Dr. Rajesh Pandey, the learned senior counsel appearing for the
appellant, vehemently submitted that the High Court committed a serious error
in disturbing a well reasoned judgment of acquittal passed by the trial court.
He submitted that the High Court would be justified in reversing the acquittal
only upon satisfaction that the trial court’s judgment is perverse or based on no
evidence. He would also submit that the entire case hinges on circumstantial
evidence. He submitted that there are no incriminating circumstances emerging
on the record of this case, so as to connect the appellant with the crime. He
would submit that just because the deceased happened to be the wife of the
appellant and the incident occurred in his house, by itself, is not sufficient to
hold the appellant guilty of the offence of murder.
     9. He submitted that none of the prosecution witnesses who have been
examined could be termed as reliable witnesses.
       10. He also submitted that the weapon of offence, clothes etc., though
collected during the course of investigation yet were not sent to the Forensic
Science Laboratory (FSL) for chemical analysis. He pointed out that there is
no serological test report on record.
           WAZIR KHAN v. STATE OF UTTARAKHAND                               43


        11. In such circumstances referred to above, the learned senior counsel
appearing for the appellant prays that there being merit in the present appeals
and same may be allowed and the appellant – Wazir Khan may be acquitted
of all the charges.
       12. On the other-hand, Mr. Abhishek Atery, the learned counsel
appearing on behalf of the respondent – State vehemently opposed the present
appeals and submitted that there is no error, not to speak of any error of law
said to have been committed by the High Court in reversing the judgment and
order of acquittal passed by the trial court. He would submit that the accused
has not disputed his presence in the house at the time of the incident. He
submitted that it is for the appellant/accused to explain what exactly happened
on the date of the incident. He would submit that if something happens within
the four walls of the house, then only the appellant/accused can explain, as it
could be said to be something within his special knowledge.
        13. He further pointed out that the weapon of offence i.e. the
bloodstained knife, was also recovered from the house itself at the instance
of the appellant/accused. The learned counsel took support of Section 106 of
the Evidence Act, 1872 (for short “the Act, 1872”) and submitted that where
some facts are within the knowledge of any person, the burden of proving that
fact is upon him. If the defence taken by the accused is found to be false then
it would be an additional circumstance going against the convict.
     14. In such circumstances referred to above, he prays that there being
no merit in the present appeals, the same may be dismissed.
      ANALYSIS: -
      15. 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.
      16. We take into consideration the following circumstances emerging
from the record of the case :-
     1. The deceased was the wife of the appellant – Wazir Khan. It appears
     that the marital relations of the appellant – Wazir Khan with the deceased
     were strained.
44            SUPREME COURT REPORTS                              [2023] 11 S.C.R.


      2. The appellant – Wazir Khan has not disputed his presence in the house at
      the time of the incident. However, he has put forward a defence that robbers
      got into his house and killed his wife. He has also gone to the extent of saying
      that while his wife was being attacked by the robbers, he too suffered injuries.
      3. In the aforesaid context, we may only say that there is nothing on record
      to indicate that the appellant – Wazir Khan had suffered any injuries. The
      entire defence put forward by the appellant – Wazir Khan , could be termed
      as false defence.
      4. There were as many as 17 incised wounds on the body of the deceased.
      On the next day, when the police brought the appellant – Wazir Khan at the
      scene of the occurrence, he pointed out the place where the knife was left
      behind. The weapon of offence was recovered from the place of incident
      itself.
        17. Here is a case, wherein the prosecution could be said to have laid
the legal foundation for the purpose of invoking Section 106 of the Act, 1872.
Undoubtedly, the burden is on the prosecution to prove the guilt of the appellant
– Wazir Khan beyond reasonable doubt. If the prosecution fails to discharge its
initial burden beyond reasonable doubt, the appellant – Wazir Khan has to be
acquitted. It is settled law that the prosecution cannot take recourse of Section
106 of the Act, 1872 without laying any foundational facts. However, in the case
on hand, we are convinced that the foundational facts laid by the prosecution are
sufficient to invoke Section 106 of the Act, 1872.
       18. On the other hand, the defence of the appellant – Wazir Khan of robbery
and the robbers attacking his wife, is completely falsified.
       19. 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 West Bengal v. Mir Mohammad Omar and ors., reported in (2000) 8
SCC 382.
        20. In the State of West Bengal (supra), the assailants forcibly dragged the
deceased Mahesh 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 pre-ferred an
           WAZIR KHAN v. STATE OF UTTARAKHAND                                45


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
Mahesh after he was abducted by them. The learned Sessions Judge,
after referring to the law on circumstantial evidence, had observed
that there is 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 estab- lish the charge of murder against the accused persons
beyond any reasonable doubt.
      21. This Court took note of the provisions of Section 106 of the
Evidence Act, and laid down the following principles in paragraphs
31 to 34 of the report:
     “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 fossilised
     doctrine as though it admits no process of intelligent reasoning.
     The doctrine of presumption is not alien to the above rule, nor
     would it impair the temper of the rule. On the other hand, if the
     traditional rule relating to burden of proof of the prosecution is
     allowed to be wrapped in pedantic coverage, the offenders in
     serious offences would be the major beneficiaries and the so- ciety
     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 recognised 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 evi-dence 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
46           SUPREME COURT REPORTS                        [2023] 11 S.C.R.


     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.”
      22. 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.
      23. In a case based on circumstantial evidence where no eye witness is
available, there is another principle of law which must be kept in mind. The
principle is that when an incriminating circumstance is put to the accused
and the said accused either offers no explanation or offers an explanation
which is found to be untrue, then the same becomes an additional link in the
chain of circumstances to make it complete. This view has been taken in a
catena of decisions of this Court, namely, Nika Ram v. State of Himachal
Pradesh, AIR 1972 SC 2077, Ganesh Lal v. State of Rajasthan, (2002) 1 SCC
73, and State of U.P. v. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045.
       24. When the attention of the convict appellant – Wazir Khan was
drawn to the incriminating circumstances that inculpated him in the crime,
he failed to offer appropriate explanation or gave a false answer. The same
can be counted as providing a missing link for completing a chain of
circumstances.
      25. Where an accused is alleged to have committed the murder of his
wife and the prosecution succeeds in leading evidence to show, like in the
present case, that shortly before the commission of the crime they were seen
           WAZIR KHAN v. STATE OF UTTARAKHAND                              47


together or the offence took place in the dwelling home where the husband
also normally resided, it has been consistently held that if the accused does
not dispute his presence at home at the relevant time and 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.
       26. A great deal of argument was canvassed on behalf of the accused
on the point of proof beyond reasonable doubt. According to the learned
advocate appearing for the accused, the case at hand is one which could not
be said to have been proved by the prosecution beyond reasonable doubt
and, therefore, the accused is entitled to the benefit of doubt.
      27. In the aforesaid context, we may profitably quote the following
observations made by this Court in para 13 in the case of Dharm Das
Wadhwani v. The State of Uttar Pradesh, AIR 1975 SC 241:
     “13. The question then is whether the cumulative effect of the guilt
     pointing circumstances in the present case is such that the court can
     conclude, not that the accused may be guilty but that he must be guilty.
     We must here utter a word of caution about this mental sense of ‘must’
     lest it should be confused with exclusion of every contrary possibility.
     We have in S.S. Bobade v. State of Maharashtra, AIR 1973 SC 2622,
     explained that proof beyond reasonable doubt cannot be distorted into
     a doctrine of acquittal when any delicate or remote doubt flits past a
     feeble mind. These observations are warranted by frequent acquittals
     on flimsy possibilities which are not infrequently set aside by the High
     Courts weakening the credibility of the judicature. The rule of benefit of
     reasonable doubt does not imply a frail willow bending to every whiff
     of hesitancy. Judges are made of sterner stuff and must take a practical
     view of legitimate inferences flowing from evidence, circumstantial
     or direct. At the same time, it may be affirmed, as pointed out by this
     Court in Kali Ram v. State of Hi- machal Pradesh, AIR 1973 SC 2773,
     that if a reasonable doubt arises regarding the guilt of the accused,
     the benefit of that cannot be withheld from him.”
                                                        (emphasis supplied)
48             SUPREME COURT REPORTS                         [2023] 11 S.C.R.


       28. Cases are frequently coming before the Courts where the husbands,
due to strained marital relations and doubt as regards the character, have
gone to the extent of killing the wife. These crimes are generally committed
in complete secrecy inside the house and it becomes very difficult for the
prosecution to lead evidence. Like the present case, no member of the family,
even if he is a witness of the crime, would come forward to depose against
another family member.
       29. If an offence takes place inside the four walls 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 the circumstances of their
choice, it will be extremely difficult for the prosecution to lead evidence
to establish the guilt of the accused, if the strict principle of circumstantial
evidence, is insisted upon by the Courts. Reference could be made to a
decision of this Court in the case of Trimukh Maroti Kirkan Vs. State of
Maharashtra, reported in 2007 Criminal Law Journal, page 20, in which this
Court observed that a Judge does not preside over a criminal trial merely
to see that no innocent man is punished. This 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.
      30. In such circumstances referred to above, we are of the view that
we should not disturb the impugned judgment and order passed by the
High Court.
       31. Accordingly the appeals are dismissed.
       32. Pending application(s), if any, shall stand disposed of.

Headnotes prepared by:                                          Appeals dismissed.
Bibhuti Bhushan Bose