WAZIR KHAN versus STATE OF UTTARAKHAND
[2023] 11 S.C.R. 39, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Issues
[2023] 11 S.C.R. 39 : 2023 INSC 674 
39
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 oﬀ ered by him as regards injuries received by his 
wife was found to be false, whether the High Court was justiﬁ ed 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 oﬀ er 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 oﬀ ence 
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 oﬀ er any explanation how the wife 
received injuries or oﬀ ers 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 oﬀ ence takes place inside four walls of a house and in 
such circumstances where the assailants have all the opportunity to plan and 
commit the oﬀ ence at the time and in the circumstances of their choice, it 
will be extremely diﬃ  cult for the prosecution to lead evidence to establish the
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 oﬀ ers no explanation or oﬀ ers 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 
diﬃ  cult 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.
41
WAZIR KHAN v. STATE OF UTTARAKHAND
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 ﬁ led 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 oﬀ ence 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 inﬂ icting 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 ﬁ led. 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 suﬀ ered 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 dissatisﬁ ed 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 oﬀ ence 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 justiﬁ ed 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 suﬃ  cient to 
hold the appellant guilty of the oﬀ ence 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 oﬀ ence, 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.
43
WAZIR KHAN v. STATE OF UTTARAKHAND
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 suﬀ ered injuries.
3. In the aforesaid context, we may only say that there is nothing on record 
to indicate that the appellant – Wazir Khan had suﬀ ered 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 oﬀ ence 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 
suﬃ  cient 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 falsiﬁ ed.
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
45
WAZIR KHAN v. STATE OF UTTARAKHAND
appeal against their conviction before the High Court and the State also ﬁ led 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 oﬀ ers no explanation or oﬀ ers 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 oﬀ er 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
47
WAZIR KHAN v. STATE OF UTTARAKHAND
together or the oﬀ ence 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 oﬀ er any 
explanation how the wife received injuries or oﬀ ers 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 beneﬁ t of doubt.
27. In the aforesaid context, we may proﬁ tably 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 eﬀ ect 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 ﬂ its past a 
feeble mind. These observations are warranted by frequent acquittals 
on ﬂ imsy possibilities which are not infrequently set aside by the High 
Courts weakening the credibility of the judicature. The rule of beneﬁ t 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 ﬂ owing from evidence, circumstantial 
or direct. At the same time, it may be aﬃ  rmed, 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 beneﬁ t 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 diﬃ  cult 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 oﬀ ence 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 oﬀ ence at the time and in the circumstances of their 
choice, it will be extremely diﬃ  cult 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 diﬃ  cult 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