106 Ev Act

2024 INSC 368 REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 437 OF 2015
ANEES …APPELLANT
VERSUS
THE STATE GOVT. OF NCT …RESPONDENT
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
Criminal Appeal No. 437 of 2015 Page 1 of 54

i. Principles of law governing the applicability of Section 106 of the
Evidence Act ............................................................................................. 19
ii. What is “prima facie case” (foundational facts) in the context of Section
106 of the Evidence Act? ......................................................................... 30
iii. Discovery of weapon under Section 27 of the Evidence Act ................ 35
iv. Cross-examination by the public prosecutor of a hostile witness ....... 38
v. Whether the appellant is entitled to the benefit of Exception 4 to Section

300 of the IPC? ......................................................................................... 47
a
1. This appeal is at the instance of a convict accused for the offence
punishable under Section 302 of the Indian Penal Code, 1860 (for short, “the
IPC”) and is directed against the judgment and order dated 23.05.2014
passed by the High Court of Delhi in Criminal Appeal No. 320 of 1998 filed
by the appellant herein by which the High Court dismissed the appeal and
thereby affirmed the judgment and order of conviction passed by the
Additional Sessions Judge, Karkardooma Court, Delhi in Sessions Case No.
176 of 1996 holding the appellant guilty of the offence of murder punishable
under Section 302 of the IPC and sentencing him to undergo life
imprisonment with a fine of Rs. 5,000/-. In the event of default in the
payment of the fine, the appellant was directed to undergo further rigorous
imprisonment for six months.

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.
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 Name and residence of DD No. 2A Dt:
information and complainant 20.12.95 at 7 AM
Writing of
Information S.I.
Mohkam Singh.
3 Brief description of the Under Section
offence (with section) and of 302 IPC
property carried off, if any
4 Place of occurrence and
distance and direction from
Police Station
5 Name and Address of the House No. 220
Criminal Old Hustafabi
Uttar Pradesh,
Distance 1 ½
6 Steps taken regarding No one stand
investigation explanation of responsible for
delay in recording such delay in this
information regard.
7 Date and time of dispatch Thro special
from police station way.
Through wireless information was received that in Gali No.2

in House No. 222 near illegible factory knife blow has been
given and some one be sent to the place of occurrence. On
receiving the information, Constable Belt No.1 and SI Karam
Singh left the police station in government vehicle and
constable illegible on the spot House no. 220 Gali No. 3 Old
Mustaffa Bad. Over there the dead body of the deceased Saira
was found on whose neck and stomach there were deep
injuries and blood was pouring out over there, Aneesh
husband of Saira was also present on the spot illegible. From
there, we took them in government vehicle PR from the spot
by constable available 1258 in government vehicle to GTB
Hospital and ML No. illegible was prepared in which Saira
was mentioned in writing illegible. On relatives coming,
statements were recorded on the basis of illegible offence
under Section 302/324 IPC was registered on diary at
No.1175. Information may be noted in the rojnaamcha and
myself illegible with crime team along with photographer
proceeded of the occurrence and prepared report. On
29.12.95 at about 4 p.m. went to the House no. 220 Gali No.

3 Old Mustaffa Bad and the writing was made on 29.12.95
illegible signed of local SI PS Gokulpuri 27.12.95 police
proceeding at this time on receipt of these writing in Hindi
the case regarding the office by constable Gayasudeen
No.11751. Case has been registered in the register.”
8. In the course of the investigation, the Investigating Officer recorded
the statement of Shaheena, the five-year old daughter of the deceased.
Shaheena in her police statement stated that upon hearing the cries and
shouts in the night hours, she woke up and witnessed her father, i.e., the
appellant herein inflicting knife injuries on the body of her mother, i.e., the
deceased.
9. The post-mortem of the dead body of the deceased was performed at
the G.T.B. Hospital, Shahdara, Delhi. In the post-mortem report, the
following injuries came to be noted:
“1. Incised wound 4 cm x 1.04 cm present over outer aspect of

wound of left thumb.
2. Incised wound 2 cm x 0.8 cm x 0.7 cm present over palmar
aspect of proximal phalanx of left thumb.
3. Incised wound 1 cm x 0.3 cm 0.3 cm present over dorsal aspect
of middle phalanx of left ring finger.
4. Linear scratch 2 cm x 0.1 present over front of left arm, 4 cm
above elbow joint.
5. Incised wound 6 cm x 1 cm x 0.6 cm present over front and
inner aspect of left knee joint.
6. Incised wound 5 cm x 1 cm x 2 cm present over outer aspect
of right thigh placed 7 cm above the knee joint.
7. Incised wound 1.3 cm x 0.1 x 0.5 cm present over palmer
aspect of terminal phalanx of right middle finger.

8. Incised wound 2 cm x 0.3 x 0.5 cm present over palmar aspect
of phalanx of right ring finger cutting the underlined wound.
9. Liner scratch 4 cm x 0.2 cm present over outer aspect of top
of right shoulder.
10. Incised stab wound 4 cm x 0.5 cm present over front of
abdomen in midline 2.5 cm below the xphoid process.
It is obliquely placed clean cut margin and one angle of the
wound being more acute than the other on dissection. The track
of the wound is going laterally, upwards and posteriorly, cutting
the left lobe of liver cutting the pericardia sec. and dominated on
cutting an entry the right auricle of heart. Haemorrhages and
extravasation of blood presentation with the track of wound.
Depth of wound is 9 cm.
11. Incised stab wound present obliquely in midline over front of
abdomen with interesting protruding out of the wound. It
measures 4.5 x 0.2 cm and is placed 5 cm above the umbilicus.
It has clean cut margin and one angle of the wound is more acute
than the other. On dissection, the track of the wound is going up
posteriorly and laterally and dominated by cutting the
mesenteric blood vessels. Haemorrhage present in the mesentery
depth of wound is 8 cm.
12. Incised cut through wound of neck measuring 10 cm x 2 cm
into 4 cm present horizontally above the thyroid cartilage. Upper
margin of the wound is placed 55 cm below chin and lower
margin is 6 cm above the sterna notch. All soft tissues of the neck,
measure blood vessel trachea and oesophagus have been cut
through into till the vertebral column. Haemorrhage and extra
vacation or blood present in the soft tissues of the wound.
13. Red abrasion 2.5 cm x 0.3 cm present in midline over front
of neck 1.5 cm below chin.
14. Red abrasion 2 cm. x 0.3 cm over left side of face 1.5 cm
below the left eye.”
10. The weapon of offence, i.e., the knife was also discovered at the
instance of the appellant herein by drawing a panchnama under the
provisions of Section 27 of the Indian Evidence Act, 1872 (for short, ‘the

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.

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 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
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 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 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
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 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.
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.
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 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 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 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 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

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 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)
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:
“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.
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.
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
which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue
of his special knowledge regarding such facts, failed to offer
any explanation which might drive the court to draw a
different inference.”
(Emphasis supplied)
53. We should also look into the decision of this Court in the case of Ram
Gulam Chaudhary & Ors. v. State of Bihar, (2001) 8 SCC 311, wherein
this Court made the following observations in paragraph 24 as under:
“24. Even otherwise, in our view, this is a case where Section

106 of the Evidence Act would apply. Krishnanand Chaudhary
was brutally assaulted and then a chhura-blow was given on
the chest. Thus chhura-blow was given after Bijoy Chaudhary
had said “he is still alive and should be killed”. The appellants
then carried away the body. What happened thereafter to
Krishnanand Chaudhary is especially within the knowledge of
the appellants. The appellants have given no explanation as to
what they did after they took away the body. Krishnanand
Chaudhary has not been since seen alive. In the absence of an
explanation, and considering the fact that the appellants were
suspecting the boy to have kidnapped and killed the child of the
family of the appellants, it was for the appellants to have
explained what they did with him after they took him
away. When the abductors withheld that information from the
court, there is every justification for drawing the inference that
they had murdered the boy. Even though Section 106 of the
Evidence Act may not be intended to relieve the prosecution of
its burden to prove the guilt of the accused beyond reasonable
doubt, but the section would apply to cases like the present,
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 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 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 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.
* * *
(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 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.
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 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 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.
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 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).
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:
(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 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)
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 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.
...................................................... CJI.
(Dr. Dhananjaya Y. Chandrachud)
.......................................................... J.
(J.B. Pardiwala)
.......................................................... J.
(Manoj Misra)
New Delhi;
Date: May 03, 2024.

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2024 INSC 368 REPORTABLE

IN THE SUPREME COURT OF INDIA

THE STATE GOVT. OF NCT …RESPONDENT

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

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

Criminal Appeal No. 437 of 2015 Page 1 of 54

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

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

thereby affirmed the judgment and order of conviction passed by the

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

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

imprisonment for six months.

Criminal Appeal No. 437 of 2015 Page 2 of 54

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

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

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

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

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

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

discharged after some preliminary treatment.

Criminal Appeal No. 437 of 2015 Page 3 of 54

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

Shaheena was the sole eyewitness to the incident.

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

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

“FIRST INFORMATION REPORT

FIR NO. 728/95

Date and hour of occurrence

1 Date AND 29-12-95 AT 4

Criminal Appeal No. 437 of 2015 Page 4 of 54

Through wireless information was received that in Gali No.2

Criminal Appeal No. 437 of 2015 Page 5 of 54

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

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

Criminal Appeal No. 437 of 2015 Page 6 of 54

instance of the appellant herein by drawing a panchnama under the

Criminal Appeal No. 437 of 2015 Page 7 of 54

Laboratory for chemical analysis. The statements of various other witnesses

(for short, the “Cr.P.C.”).

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

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.

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.

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.

Criminal Appeal No. 437 of 2015 Page 8 of 54

presence of the Investigating Officer and the panch witnesses.

15. The prosecution also examined the following official witnesses: