ANEES versus THE STATE GOVT. OF NCT
[2024] 6 S.C.R. 164, Supreme Court of India, 2024
Outcome: Dismissed (Dismissed)
Segment: Facts
* Author
[2024] 6 S.C.R. 164 : 2024 INSC 368
Anees 
v. 
The State Govt. of NCT
(Criminal Appeal No. 437 of 2015)
03 May 2024
[Dr. Dhananjaya Y. Chandrachud, CJI, 
J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
Murder of appellant-accused’s wife in their house in which the 
appellant, deceased and their 5 year old daughter lived. s.106, 
Evidence Act, 1872 was invoked and the appellant was convicted 
u/s.302, IPC for the murder. Whether the High Court committed any 
error in passing the impugned judgment affirming the conviction 
of the appellant.
Headnotes
Evidence Act, 1872 – s.106 – Burden of proving fact especially 
within knowledge – “prima facie case” (foundational facts) in 
the context of s.106 – Murder of appellant-accused’s wife in 
the early morning hours in their house in which the appellant, 
deceased and their 5-year-old daughter were living – s.106 
was invoked, appellant convicted u/s.302 for the murder – 
Correctness:
Held: s.106 would apply to cases where the prosecution could be 
said to have succeeded in proving facts from which a reasonable 
inference can be drawn regarding guilt of the accused – In the 
present case, offence took place inside the four walls of the house 
in which the appellant, deceased and their 5-year-old daughter were 
living – The incident occurred in the early morning hours – When 
the Investigating Officer (IO) reached the house of the appellant, he 
found the deceased lying in a pool of blood – Appellant was also
present there – The defence put forward by the appellant that two 
unidentified persons entered the house and inflicted injuries on the 
deceased and also on his body was found to be false – Clothes 
worn by the appellant at the time of the incident had blood stains 
which matched with the blood group of the deceased – Further, 
the conduct of the appellant in leading the IO and others to a drain 
nearby his house and the discovery of the knife from the drain is a
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relevant fact u/s.8, Evidence Act – Thus, in view of the aforesaid 
foundational facts being duly proved, the courts below were justified 
in invoking the principles enshrined u/s. 106 – High Court committed 
no error in affirming the order of conviction passed by the trial 
court, holding the appellant guilty of the offence of murder of his 
wife – However, in view of the mitigating circumstances, appellant 
at liberty to prefer representation to the State Government for 
remission of sentence. [Paras 50, 56 and 84]
Evidence Act, 1872 – s.106 – Applicability – Principles of law:
Held: The ordinary rule that applies to the criminal trials that the 
onus lies on the prosecution to prove the guilt of the accused is 
not in any way modified by the rule of facts embodied in s.106 – 
s.106 is an exception to s.101, Evidence Act – s.106 is designed 
to meet certain exceptional cases in which it would be impossible, 
or at any rate disproportionately difficult, for the prosecution to 
establish the facts which are, “especially within the knowledge 
of the accused and which, he can prove without difficulty or 
inconvenience” – Court should apply s.106 in criminal cases 
with care and caution – s.106 cannot be invoked to make up the 
inability of the prosecution to produce evidence of circumstances 
pointing to the guilt of the accused – It cannot be used to support 
a conviction unless the prosecution has discharged the onus by
proving all the elements necessary to establish the offence – It 
does not absolve the prosecution from the duty of proving that a 
crime was committed even though it is a matter specifically within 
the knowledge of the accused and it does not throw the burden 
on the accused to show that no crime was committed – To infer 
the guilt of the accused from absence of reasonable explanation 
in a case where the other circumstances are not by themselves 
enough to call for his explanation is to relieve the prosecution of 
its legitimate burden – So, until a prima facie case is established 
by such evidence, the onus does not shift to the accused. [Paras 
36, 43, 44]
Evidence Act, 1872 – s.106 – Burden of proving fact especially 
within knowledge – “especially” – Meaning:
Held: s.106 provides that when any fact is especially within the 
knowledge of any person, the burden of proving that fact is upon 
him – The word “especially” means facts that are pre-eminently 
or exceptionally within the knowledge of the accused – s.106
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refers to cases where the guilt of the accused is established on 
the evidence produced by the prosecution unless the accused is 
able to prove some other facts especially within his knowledge, 
which would render the evidence of the prosecution nugatory – If 
in such a situation, the accused offers an explanation which may 
be reasonably true in the proved circumstances, the accused gets 
the benefit – But, if the accused in such a case does not give any 
explanation at all or gives a false or unacceptable explanation, 
this by itself is a circumstance which may well turn against him. 
[Paras 36, 45]
Evidence Act, 1872 – ss.8, 27 – ‘conduct’ – “relevant fact” – 
Weapon of offence, the knife was discovered at the instance 
of the appellant by drawing panchnama u/s.27:
Held: Conduct of the appellant in leading the IO and others to a 
drain nearby his house and the discovery of the knife from the 
drain is a relevant fact u/s.8 – In other words, the evidence of the 
circumstance simpliciter that the appellant pointed out to the IO 
the place where he threw away the weapon of offence i.e., knife 
would be admissible as ‘conduct’ u/s.8 irrespective of the fact 
whether the statement made by the accused contemporaneously 
with or antecedent to such conduct falls within the purview of 
s.27 – Even while discarding the evidence in the form of discovery 
panchnama, the conduct of the appellant would be relevant u/s. 
8 – The
evidence of discovery would be admissible as conduct 
u/s.8 quite apart from the admissibility of the disclosure statement 
u/s.27. [Paras 56(e), 59]
Evidence – Positive facts vis-à-vis negative facts – Rules 
shifting the evidential burden or burden of introducing 
evidence in proof of one’s case as opposed to the persuasive 
burden or burden of proof, i.e., of proving all the issues 
remaining with the prosecution:
Held: What lies at the bottom of the various rules shifting the evidential 
burden or burden of introducing evidence in proof of one’s case as 
opposed to the persuasive burden or burden of proof, i.e., of proving 
all the issues remaining with the prosecution and which never shift 
is the idea that it is impossible for the prosecution to give wholly 
convincing evidence on certain issues from its own hand and it is, 
therefore, for the accused to give evidence on them if he wishes to 
escape – Positive facts must always be proved by the prosecution
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– But the same rule cannot always apply to negative facts – It is not 
for the prosecution to anticipate and eliminate all possible defences 
or circumstances which may exonerate an accused – When a person 
does not act with some intention other than that which the character 
and circumstances of the act suggest, it is not for the prosecution 
to eliminate all the other possible intentions – If the accused had a 
different intention that is a fact especially within his knowledge and 
which he must prove. [Para 46]
Evidence Act, 1872 – s.106 – Inapplicable when fact in question 
capable of being known not only to the accused but also to 
others:
Held: s.106 has no application to cases where the fact in question, 
having regard to its nature, is such as to be capable of being 
known not only to the accused but also to others, if they happened 
to be present when it took place – The intention underlying the 
act or conduct of any individual is seldom a matter which can be 
conclusively established; it is indeed only known to the person in 
whose mind the intention is conceived – Therefore, if the prosecution 
has established that the character and circumstance of an act 
suggest that it was done with a particular intention, then under 
illustration (a) to this section, it may be assumed that he had that 
intention, unless he proves the contrary. [Para 47]
Evidence Act, 1872 – s.8 – Conduct of the accused though 
relevant
u/s.8, however, it alone cannot form the basis of 
conviction:
Held: Although the conduct of an accused may be a relevant fact 
u/s.8, yet the same, by itself, cannot be a ground to convict him 
or hold him guilty and that too, for a serious offence like murder 
– Like any other piece of evidence, the conduct of an accused 
is also one of the circumstances which the court may take into 
consideration along with the other evidence on record, direct or 
indirect – Thus, the conduct of the accused alone, though may 
be relevant u/s.8 cannot form the basis of conviction. [Para 61]
Evidence – Distinction between burden of proof and burden 
of explanation – Discussed. [Para 48]
Evidence Act, 1872 – s.106 – Burden of proving fact especially 
within knowledge – Crimes committed in complete secrecy – 
Difficulty faced by prosecution to lead direct evidence:
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Held: Cases are frequently coming before the courts where the 
husband, due to strained marital relations and doubt as regards the 
character, has gone to the extent of killing his wife – These crimes 
are generally committed in complete secrecy inside the house and 
it becomes very difficult for the prosecution to lead evidence – No 
member of the family even if he is a witness of the crime, would 
come forward to depose against another family member – If an 
offence takes place inside the four walls of a house where the 
accused has all the opportunity to plan and commit the offence at 
a time and in the circumstances of his choice, it will be extremely 
difficult for the prosecution to lead direct evidence to establish the 
guilt of the accused – It is to resolve such a situation that s.106 
exists in the statute book. [Paras 54, 55]
Code of Criminal Procedure, 1973 – ss.161(1), 162(1) – Evidence 
Act, 1872 – s.145:
Held: Statement made by a witness before the police u/s.161(1) 
can be used only for the purpose of contradicting such witness 
on what he has stated at the trial as laid down in the proviso 
to s.162(1) – Court cannot suo motu make use of statements 
to police not proved and ask questions with reference to them 
which are inconsistent with the testimony of the witness in the 
court – The words ‘if duly proved’ used in s.162 clearly show that 
the record of the statement of witnesses cannot be admitted in
evidence straightaway, nor can be looked into, but they must be 
duly proved for the purpose of contradiction by eliciting admission 
from the witness during cross-examination and also during the 
cross-examination of the IO – The statement before the IO can be 
used for contradiction but only after strict compliance with s.145 of 
the Evidence Act, that is, by drawing attention to the parts intended 
for contradiction. [Para 64]
Evidence Act, 1872 – s.145 – Cross-examination as to previous 
statements in writing – Appellant murdered his wife in their 
house – Case of the prosecution that the minor daughter 
(PW-3) was the sole eyewitness to the incident – However, she 
later turned hostile – Cross-examination by public prosecutor:
Held: In the present case, not only proper contradictions 
were not brought on record in the oral evidence of the hostile 
witnesses, but even those few that were brought on record, were 
not proved through the evidence of the IO – Such procedural 
lapses may lead to a very serious crime going unpunished –
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Anees v. The State Govt. of NCT
In such circumstances, neither the public prosecutor nor the 
presiding officer of the trial court can afford to remain remiss 
or lackadaisical – After PW-3 was declared hostile, all that the 
public prosecutor did was to put few suggestions to her for 
the purposes of cross-examination – Surprisingly, even proper 
contradictions were not brought on record – PW-3 was not 
even appropriately confronted with her police statement – It is 
not sufficient for the public prosecutor while cross-examining a 
hostile witness to merely hurl suggestions, as mere suggestions 
have no evidentiary value – Trial judge also failed to play an 
active role in the present case. [Paras 67, 70, 71]
Criminal Justice System – Criminal Trial – Public Prosecutors 
– Appointment of – Consideration for appointment should not 
be political but only merit of the person:
Held: There should not be any element of political consideration 
in appointment to the post of public prosecutor, etc. – The only 
consideration for the Government should be the merit of the person 
– The person should be not only competent, but he should also 
be a man of impeccable character and integrity – He should be 
a person who should be able to work independently without any 
reservations, dictates or other constraints. [Para 67]
Criminal Trial – Cross-examination of a hostile witness by 
public prosecutor – Absence of effective and meaningful 
cross-examination –
Deprecated– Evidence Act, 1872 – s.165 
– Code of Criminal Procedure, 1973 – s.311– Duty of Trial 
Judge, Public Prosecutor:
Held: Public Prosecutors merely confront the hostile witness with 
his/her police statement recorded u/s.161 and contradict him/her 
with the same – They only bring the contradictions on record and 
thereafter prove such contradictions through the evidence of the 
IO – This is not sufficient – It is the duty of the Public Prosecutor 
to cross-examine a hostile witness in detail and try to elucidate 
the truth and also establish that the witness is speaking lie and 
has deliberately resiled from his police statement recorded u/s.161 
– If the questioning by the public prosecutor is not skilled, like 
in the case at hand, the result is that the State as a prosecuting 
agency will not be able to elicit the truth from the child witness 
– It is the duty of the court to arrive at the truth and subserve 
the ends of justice – Courts have to take a participatory role in 
the trial and not act as mere tape recorders to record whatever
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is being stated by the witnesses – The judge has to monitor the 
proceedings in aid of justice – Even if the prosecutor is remiss or 
lethargic in some ways, the court should control the proceedings 
effectively so that the ultimate objective that is the truth is arrived 
at – Court must be conscious of serious pitfalls and dereliction of 
duty on the part of the prosecuting agency – Upon their failure 
showing indifference or adopting an attitude of aloofness, the 
trial judge must exercise the vast powers conferred u/s.165 of 
the Evidence Act and s. 311 CrPC – The judge is expected to 
actively participate in the trial, elicit necessary materials from the 
witnesses in the appropriate context which he feels necessary 
for reaching the correct conclusion – The judge has uninhibited 
power to put questions to the witness either during the chief 
examination or cross-examination or even during re-examination 
for this purpose. [Paras 69, 73, 74]
Penal Code, 1860 – Exception 4 to s.300 – Benefit, when 
not available – Appellant murdered his wife in their house – 
Alternatively, appellant pleaded that the incident occurred in 
the heat of the moment without any pre-meditation as it could 
be a sudden fight between the two in the heat of passion upon 
a sudden quarrel:
Held: Exception 4 can be invoked if death is caused without 
premeditation; in a sudden fight; without the offenders having 
taken undue advantage or having
acted in a cruel or unusual 
manner; and the fight must have been with the person killed – 
To bring a case within Exception 4, all the ingredients must be 
found – Benefit of Exception 4 cannot be given to the offender 
where he takes undue advantage or has acted in a cruel or an 
unusual manner – If the weapon used or the manner of attack by 
the assailant is disproportionate, that circumstance must be taken 
into consideration to decide whether undue advantage has been 
taken – Appellant inflicted as many as twelve blows with a knife 
on the deceased who was unarmed and helpless – Appellant took 
undue advantage and acted in a cruel manner – The present case 
is not one of culpable homicide not amounting to murder but of 
murder. [Paras 80, 82 and 83]
Words & Phrases – “prima facie case” – Meaning:
Held: The Latin expression prima facie means “at first sight”, 
“at first view”, or “based on first impression” – It means a case 
established by “prima facie evidence” which in turn means
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Anees v. The State Govt. of NCT
“evidence sufficient in law to raise a presumption of fact or 
establish the fact in question unless rebutted” – In both civil 
and criminal law, the term is used to denote that, upon initial 
examination, a legal claim has sufficient evidence to proceed 
to trial or judgment – In most legal proceedings, one party 
(typically, the plaintiff or the prosecutor) has a burden of proof, 
which requires them to present prima facie evidence for each 
element of the case or charges against the defendant – If they 
cannot present prima facie evidence, the initial claim may be 
dismissed without any need for a response by other parties – 
Evidence. [Para 49]
Case Law Cited
Shambhu Nath Mehra v. The State of Ajmer [1956] 
1 SCR 199 : AIR 1956 SC 404; Nagendra Sah v. 
State of Bihar (2021) 10 SCC 725; Tulshiram Sahadu 
Suryawanshi and Anr. v. State of Maharashtra [2012] 7 
SCR 1083 : (2012) 10 SCC 373; Trimukh Maroti Kirkan 
v. State of Maharashtra [2006] Supp. 7 SCR 156 : 
(2006) 10 SCC 681; State of W.B. v. Mir Mohammad 
Omar and Ors. [2000] Supp. 2 SCR 712 : (2000) 8 
SCC 382; Balvir Singh v. State of Uttarakhand [2023] 
12 SCR 815 : (2023) SCC OnLine 1261; Ram Gulam 
Chaudhary & Ors. v. State of Bihar [2001] Supp. 3 
SCR 279 : (2001) 8 SCC 311; Madan Singh v. State of 
Rajasthan 1979 SCC (Cri) 56; Mohd. Aslam v. State of 
Maharashtra (2001) 9 SCC 362; Anter Singh v. State 
of Rajasthan [2004] 2 SCR 123 : (2004) 10 SCC 657; 
A.N.
Venkatesh and Anr. v. State of Karnataka (2005) 
7 SCC 714; State (NCT of Delhi) v. Navjot Sandhu 
alias Afsan Guru [2003] Supp. 1 SCR 130 : (2005) 11 
SCC 600; V.K. Mishra v. State of Uttarakhand (2015) 9 
SCC 588; Zahira Habibulla H. Sheikh & Anr. vs. State 
of Gujarat & Ors. 2004 3 SCR 1050 : (2004) 4 SCC 
158; State of Rajasthan vs. Ani alias Hanif & Ors. AIR 
(1997) SC 1023; Vishal Singh v. State of Rajasthan 
[2009] 3 SCR 444 : (2009) Cri. LJ 2243; Kikar Singh 
v. State of Rajasthan [1993] 3 SCR 696 : AIR 1993 SC 
2426 – relied on.
Sharad Birdhichand Sarda v. State of Maharashtra 
[1985] 1 SCR 88 : (1984) 4 SCC 116 – referred to.
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Director of Public Prosecutions, Transwal v. Minister of 
Justice and Constitutional Development (2009) 4 SA 
222 (CC) – referred to.
Books and Periodicals Cited
Professor Glanville Williams – Proof of Guilt, Ch. 7, page 127 
and following) and the interesting discussion – para 527 negative 
averments and para 528 – “require affirmative counter-evidence” 
at page 438 and foil, of Kenny’s outlines of Criminal Law, 17th 
Edn. 1958; Webster’s Third International Dictionary (1961 Edn.) 
– referred to.
List of Acts
Evidence Act, 1872; Code of Criminal Procedure, 1973; Penal 
Code, 1860.
List of Keywords
Section 106 of Evidence Act, 1872; Fact especially within 
knowledge; Murder; Prima facie case; Foundational facts; 
Relevant fact; Conduct of accused; Weapon of offence; 
Intention; Disclosure statement; Discovery panchnama; Sole 
eyewitness; Hostile witnesses; Cross-examination of hostile 
witness; Contradicting witness; Contradictions; Suggestions; 
Confrontation with police statement; Confronting hostile witness; 
Public prosecutor; Child witness; Participatory role; Mere tape 
recorders; Inside the house; Complete secrecy; Positive facts; 
Negative facts; Exception 4 to s.300, Penal Code, 1860; Cruel 
manner; Mitigating circumstances.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 437 
of 2015
From the Judgment and Order dated 23.05.2014 of the High Court 
of Delhi at New Delhi in CRLA No. 320 of 1998
Appearances for Parties
Rishi Malhotra, Adv. for the Appellant.
Apoorv Kurup, Mukesh Kumar Maroria, Sanjay Kumar Tyagi, Mani 
Munjal, Vinayak Sharma, Raman Yadav, Advs. for the Respondent.
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Anees v. The State Govt. of NCT
Judgment / Order of the Supreme Court
Judgment
J. B. Pardiwala, J.:
For the convenience of exposition, this judgment is divided in the 
following parts: -
INDEX*
A.
CASE OF THE PROSECUTION ..................................... 3
B.
SUBMISSIONS ON BEHALF OF THE APPELLANT ..... 15
C.
SUBMISSIONS ON BEHALF OF THE STATE .............. 
17
D.
ANALYSIS ....................................................................... 19
i.
Principles of law governing the applicability of 
Section 106 of the Evidence Act .......................... 
19
ii.
What is “prima facie case” (foundational facts) in 
the context of Section 106 of the Evidence Act?.. 30
iii.
Discovery of weapon under Section 27 of the 
Evidence Act ........................................................... 
35
iv.
Cross-examination by the public prosecutor of a 
hostile witness ........................................................ 38
v.
Whether the appellant is entitled to the benefit of 
Exception 4 to Section 300 of the IPC? .............. 
47
1.	
This appeal is at the instance of a convict accused for the offence 
punishable under Section 302 of the Indian Penal Code, 1860 (for 
short, “the IPC”) and is directed against the judgment and order dated 
23.05.2014 passed by the High Court of Delhi in Criminal Appeal No. 
320 of 1998 filed by the appellant herein by which the High Court 
dismissed the appeal and thereby affirmed the judgment and order 
of conviction
passed by the Additional Sessions Judge, Karkardooma 
Court, Delhi in Sessions Case No. 176 of 1996 holding the appellant 
guilty of the offence of murder punishable under Section 302 of the 
IPC and sentencing him to undergo life imprisonment with a fine of Rs. 
5,000/-. In the event of default in the payment of the fine, the appellant 
was directed to undergo further rigorous imprisonment for six months. 
* Ed. Note: Pagination as per the original Judgment.
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A.	
CASE OF THE PROSECUTION
2.	
The deceased, namely, Saira was married to the appellant. The 
marriage of the deceased with the appellant was solemnised in 1982 
in accordance with the Muslim rites and customs. In the wedlock, a 
daughter named Shaheena was born, who, at the time of the incident 
in 1995, was five years of age. 
3.	
On 29.12.1995, at about 4:00 am, a wireless operator of the Delhi 
Police informed one lady constable who was on duty in a PCR 
that a woman had been stabbed in House No. 220, Gali No. 3, 
Mustafabad and that a responsible police officer may be asked to 
reach at the spot of occurrence. The said information was conveyed 
by the lady constable to the duty officer at P.S. Gokulpuri, who, in 
turn, reduced the same in writing and forwarded a copy thereof to 
S.I. Mohkam Singh for inquiry. 
4.	
When S.I. Mohkam Singh, along with the SHO of the concerned 
Police Station, reached the place of occurrence, he found the 
deceased lying in a pool of blood, having suffered multiple deep 
stabbed wounds in the abdomen and other parts of the body. The 
appellant herein was also present at the place of occurrence. It 
was noticed that the appellant had also suffered a few superficial 
injuries. Both, the deceased and the appellant, were sent to the 
hospital where the deceased was declared as brought dead and 
the appellant was declared fit for the purpose of interrogation and 
was discharged after some
preliminary treatment. 
5.	
The investigation revealed that the marital relationship of the appellant 
with the deceased was strained on account of the deceased leaving 
the house all of a sudden without the permission of the appellant 
and thereafter returning late in the night hours. This was not liked 
by the appellant. On several occasions, altercations used to take 
place between the appellant and the deceased on such issues. It is 
the case of the prosecution that on the fateful night of the incident, 
an altercation took place between the appellant and the deceased, 
as a result, the appellant is alleged to have inflicted stab injuries 
indiscriminately with a knife all over the body of the deceased. It is 
also the case of the prosecution that the minor daughter Shaheena 
was the sole eyewitness to the incident.
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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 
o f  i n f o r m a t i o n  a n d 
complainant
DD No. 2A Dt: 20.12.95 at 
7 AM Writing of Information 
S.I. Mohkam Singh.
3
Brief description of the 
offence (with section) and 
of property carried off, if any
Under Section 302 IPC
4
Place of occurrence and 
distance and direction from 
Police Station
5
Name and Address of the 
Criminal
House No. 220 Old 
Hustafabi Uttar Pradesh, 
Distance 1 ½ 
6
Steps taken regarding 
investigation explanation 
of delay in recording 
information
No one stand responsible 
for such delay in this 
regard.
7
Date and time of dispatch 
from police station
Thro special way. 
Through wireless information was received that in Gali 
No.2 in House No. 222 near illegible factory knife blow 
has been given and some one be sent to the place of 
occurrence. On receiving the information, Constable 
Belt No.1 and SI Karam Singh left the police station
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in government vehicle and constable illegible on the 
spot House no. 220 Gali No. 3 Old Mustaffa Bad. Over 
there the dead body of the deceased Saira was found 
on whose neck and stomach there were deep injuries 
and blood was pouring out over there, Aneesh husband 
of Saira was also present on the spot illegible. From 
there, we took them in government vehicle PR from the 
spot by constable available 1258 in government vehicle 
to GTB Hospital and ML No. illegible was prepared 
in which Saira was mentioned in writing illegible. On 
relatives coming, statements were recorded on the 
basis of illegible offence under Section 302/324 IPC was 
registered on diary at No.1175. Information may be noted 
in the rojnaamcha and myself illegible with crime team 
along with photographer proceeded of the occurrence 
and prepared report. On 29.12.95 at about 4 p.m. went 
to the House no. 220 Gali No. 3 Old Mustaffa Bad and 
the writing was made on 29.12.95 illegible signed of local 
SI PS Gokulpuri 27.12.95 police proceeding at this time 
on receipt of these writing in Hindi the case regarding 
the office by constable Gayasudeen No.11751. Case has 
been registered in the register.”
8.	
In the course of the investigation, the Investigating Officer recorded the 
statement of Shaheena, the five-year old daughter of the deceased. 
Shaheena in her police statement stated that upon hearing the cries 
and shouts in the night hours, she woke up
and witnessed her father, 
i.e., the appellant herein inflicting knife injuries on the body of her 
mother, i.e., the deceased. 
9.	
The post-mortem of the dead body of the deceased was performed 
at the G.T.B. Hospital, Shahdara, Delhi. In the post-mortem report, 
the following injuries came to be noted: 
“1.	
Incised wound 4 cm x 1.04 cm present over outer 
aspect of wound of left thumb.
2.	
Incised wound 2 cm x 0.8 cm x 0.7 cm present over 
palmar aspect of proximal phalanx of left thumb.
3.	
Incised wound 1 cm x 0.3 cm 0.3 cm present over 
dorsal aspect of middle phalanx of left ring finger.
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4.	
Linear scratch 2 cm x 0.1 present over front of left 
arm, 4 cm above elbow joint.
5.	
Incised wound 6 cm x 1 cm x 0.6 cm present over 
front and inner aspect of left knee joint.
6.	
Incised wound 5 cm x 1 cm x 2 cm present over outer 
aspect of right thigh placed 7 cm above the knee joint.
7.	
Incised wound 1.3 cm x 0.1 x 0.5 cm present over 
palmer aspect of terminal phalanx of right middle 
finger.
8.	
Incised wound 2 cm x 0.3 x 0.5 cm present over 
palmar aspect of phalanx of right ring finger cutting 
the underlined wound.
9.	
Liner scratch 4 cm x 0.2 cm present over outer aspect 
of top of right shoulder.
10.	 Incised stab wound 4 cm x 0.5 cm present over front of 
abdomen in midline 2.5 cm below the xphoid process.
It is obliquely placed clean cut margin and one angle 
of the wound being more acute than the other on 
dissection. The track of the wound is going laterally, 
upwards and posteriorly, cutting the left lobe of liver 
cutting the pericardia sec. and dominated on cutting 
an entry the right auricle of heart. Haemorrhages and 
extravasation of blood presentation with the track of 
wound. Depth of wound is 9 cm.
11.	 Incised stab wound present obliquely in midline over 
front of abdomen with interesting protruding out of 
the wound. It measures 4.5 x 0.2 cm and is placed 
5 cm above the umbilicus. It has clean cut margin 
and one angle of the wound is more acute than the 
other. On dissection, the track
of the wound is going 
up posteriorly and laterally and dominated by cutting 
the mesenteric blood vessels. Haemorrhage present 
in the mesentery depth of wound is 8 cm. 
12.	 Incised cut through wound of neck measuring 10 cm x 
2 cm into 4 cm present horizontally above the thyroid
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cartilage. Upper margin of the wound is placed 55 
cm below chin and lower margin is 6 cm above the 
sterna notch. All soft tissues of the neck, measure 
blood vessel trachea and oesophagus have been cut 
through into till the vertebral column. Haemorrhage 
and extra vacation or blood present in the soft tissues 
of the wound.
13.	 Red abrasion 2.5 cm x 0.3 cm present in midline 
over front of neck 1.5 cm below chin.
14.	 Red abrasion 2 cm. x 0.3 cm over left side of face 
1.5 cm below the left eye.”
10.	 The weapon of offence, i.e., the knife was also discovered at the 
instance of the appellant herein by drawing a panchnama under 
the provisions of Section 27 of the Indian Evidence Act, 1872 
(for short, ‘the Evidence Act’). The blood-stained clothes of the 
deceased as well as those of the appellant herein were collected 
and sent to the Forensic Science Laboratory for chemical analysis. 
The statements of various other witnesses were recorded under 
Section 161 of the Code of Criminal Procedure, 1973 (for short, 
the “Cr.P.C.”).
11.	 Upon completion of the investigation, the Investigating Officer filed 
a chargesheet for the offence punishable under Section 302 of the 
IPC in the Court of Metropolitan Magistrate, Karkardooma Courts, 
Delhi, who, in turn, committed the case to the Court of Sessions 
Judge, Karkardooma Courts, which culminated in the Sessions 
Case No. 176 of 1996. 
12.	 The appellant pleaded not guilty to
the charge framed by the 
Sessions Court and claimed to be tried. 
13.	 The prosecution examined 17 witnesses in support of the charge. 
Shaheena (PW-3), was examined as the sole eye-witness to the 
incident. Shakeel Ahmad (PW-4), the brother of the deceased, 
and Rafiq (PW-11), the father of the deceased, were examined to 
establish the demand of dowry by the appellant from the deceased, 
and the harassment caused by him towards his deceased wife. Dr. 
Sayed Ali (PW-9), the neighbour of the appellant, was examined as 
a panch witness to prove the contents of the discovery panchnama 
of the knife used in the commission of the crime.
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14.	 It is the case of the prosecution that the knife was discovered from 
a drain outside the house of the appellant, as pointed out by him, in 
the presence of the Investigating Officer and the panch witnesses. 
15.	 The prosecution also examined the following official witnesses: 
a.	
Constable Munni Khan, who was on duty at the PCR at the 
time of the incident (PW-5)
b.	
Constable Govind Singh, duty officer at the Gokulpuri P.S. at 
the time of the incident (PW-8)
c.	
Constable Giasuddin, witness to the discovery of the knife 
(PW-16)
d.	
S.I. Mohkam Singh, Investigating Officer of the case (PW-17)
16.	 It is pertinent to note that Shaheena (PW-3), the sole eye-witness to 
the incident, failed to support the case of the prosecution and was 
declared a hostile witness. She deposed before the trial court that 
upon hearing the noise and shrieks of her parents, she woke up in 
the night hours and saw that thieves had entered into their house 
and were assaulting her parents. She deposed that the thieves had 
a knife and they inflicted knife injuries on both her parents. She, 
however, admitted that she saw her mother lying on the floor bleeding 
profusely. However, she denied that it was the appellant who had 
inflicted injuries upon the deceased with a knife. She also denied 
that the relations of her parents were strained. 
17.	 Dr. Sayed Ali, PW-9, the panch witness to the discovery panchnama 
also did not support the
case of the prosecution and was declared 
as a hostile witness.
18.	 Dr. Anil Kohli, PW-1, who conducted the post-mortem on the dead 
body of the deceased, deposed that all the injuries were ante-mortem 
in nature and were sufficient in the ordinary course of nature to cause 
death, and more particularly the injuries no. 1-12 respectively were 
possible by a dagger/knife. 
19.	 Upon conclusion of the oral evidence, the further statement of the 
appellant was recorded by the trial court. In his statement recorded 
under Section 313 of the Cr.P.C., the appellant stated as under: 
“I along with my wife deceased and my daughter Shaheena 
was sleeping in my house. Two persons caused injuries
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to my wife. I tried to save her but I was also hurt by those 
persons. I do not know as to why those strangers caused 
injuries to my wife. I am innocent. After causing the injuries 
those persons fled away from there.”
20.	 The trial court, upon appreciation of the oral as well as documentary 
evidence on the record, held the appellant guilty of the offence of 
murder punishable under Section 302 of the IPC and sentenced 
him to undergo imprisonment for life and pay a fine of Rs. 5,000/. 
In the event of default in the payment of the fine, the trial court 
directed the appellant to undergo further rigorous imprisonment 
for six months. 
21.	 The appellant, feeling dissatisfied with the judgment and order of 
conviction passed by the trial court, went in appeal before the High 
Court. The High Court dismissed the appeal and thereby affirmed 
the judgment and order of the conviction passed by the trial court. 
The High Court, while affirming the judgment and order of conviction 
passed by the trial court, held as under: 
“10. PW-17’s testimony that the appellant refused to 
make the statement as to the incident and on the other 
hand, his disclosure that he would make the statement 
later on, on arrival of his relatives speaks volume that 
the appellant wanted to invent some story by gaining 
time. Had two intruders actually caused injuries on the 
person of deceased Saira as has been subsequently 
propounded by the
appellant, he would have immediately 
informed the police about the same so that the culprits 
are immediately caught and brought to book. PW-
17’s testimony that the appellant wanted to make 
the statement later on only on arrival of his relatives 
was not challenged by the appellant in PW-17’s cross 
examination. At this stage, it would be appropriate to 
advert to the explanation given by the appellant in reply 
to question No. 12 in his statement under Section 313 
Cr.P.C. which is extracted as under:- 
“Q.12 Have you anything else to say? 
Ans. I along with my wife, deceased, and my daughter 
Siana was sleeping in my house. Two persons caused
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injuries to my wife. I tried to save her but I was also 
hurt by those persons. I do not know as to why those 
strangers caused injuries to my wife. I am innocent. 
After causing the injuries those persons fled away 
from there.” 
11. The explanation that two persons had caused injuries 
on the person of deceased Saira was admittedly not put 
to PW-17 in his cross examination. Had there been any 
truth in the explanation propounded by the appellant, he 
would not have been content to simply state that the injuries 
were caused by two persons, he would have given the 
detailed description (as far as possible) of the assailants 
as also the motive as to why the deceased alone was 
targeted particularly, when robbery was not the motive 
of the injuries alleged to have been inflicted by the two 
unknown intruders. Intrusion into the house by unknown 
third persons would have resulted in tell tail and revelatory 
evidence. There is no indication or suggestion relating to 
the said evidence.
xxx xxx xxx
18. As stated earlier, it is proved by overwhelming evidence 
and is not even disputed by the appellant that deceased 
Saira was inflicted injuries inside the matrimonial home 
(of the appellant and the deceased). Initially, the appellant 
was completely silent as to how his deceased wife suffered 
injuries. He told the I.O. that he would make a statement 
later on only when his relations would arrive. As we have 
pointed out
earlier, in cross-examination of the I.O. and 
even in his statement under Section 313 Cr.P.C., the 
appellant has not given the details of the intruders. From 
the appellant’s conduct in not disclosing to the I.O. as 
to how his deceased wife suffered fatal injuries, there 
was a lurking doubt even at that very time that it was 
only the appellant who was responsible for causing the 
injuries unless something material was really brought 
out by the appellant. Nothing prevented the appellant to 
have disclosed about the incident immediately when the
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police reached the spot that the injuries were inflicted on 
his deceased wife by two unknown intruders. There was 
no indication or giveaway to show the presence of third 
parties who intentionally targeted the deceased. All these 
facts taken together, i.e. nondisclosure of the information 
about the incident to the police, not giving the details of 
the two intruders even in his statement under Section 
313 Cr.P.C. etc. would really show that the explanation 
given by the appellant was false which would become an 
additional link in the chain of circumstantial evidence in 
view of Manu Sao v. State of Bihar, (2010) 12 SCC 310.
19.In Munna Kumar Upadhyay @ Munna Upadhyaya 
v. State of Andhra Pradesh, (2012) 6 SCC 174, it was 
reiterated that if the accused gave incorrect or false 
answers during the course of his statement under Section 
313 Cr.P.C., the Court can draw an adverse inference 
against him. In para 76 of the report, the Supreme Court 
observed as under:-
“76. If the accused gave incorrect or false answers 
during the course of his statement under Section 
313 Cr.P.C., the court can draw an adverse inference 
against him. In the present case, we are of the 
considered opinion that the accused has not only 
failed to explain his conduct, in the manner in which 
every person of normal prudence would be expected 
to explain but had even given incorrect and false 
answers. In the present case, the Court not only
draws an adverse inference, but such conduct of 
the accused would also tilt the case in favour of the 
prosecution.”
20. We are conscious of the fact that Shaheena (PW-3) 
the appellant’s daughter has not supported the prosecution 
version that the appellant was the perpetrator of the crime. 
She, in fact, came out with the story which is in line with 
the explanation given by the appellant in his examination 
under Section 313 Cr.P.C. But at the same time, as stated 
above, no such explanation was given by the appellant 
to the I.O. when he reached the spot immediately on
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getting information of the incident. No such question was 
even put to the I.O. when he entered the witness box as 
PW-17. The appellant did not choose himself to enter 
the witness box under Section 315 Cr.P.C. and subject 
himself for cross-examination in order to explain the 
peculiar circumstances in which his wife was murdered 
within his small house. What is more intriguing is why the 
intruders would keep their hands off in inflicting injuries on 
the appellant’s person who as per his own showing tried 
to save his wife when she was being inflicted injuries by 
the two intruders. Therefore, we totally reject the so-called 
explanation given for the first time by the appellant in his 
examination under Section 313 Cr.P.C. The fact that the 
deceased’s murder was committed within the four corners 
of the small house in the appellant’s presence and the 
fact that the appellant even failed to disclose to the I.O. 
as to how his deceased wife suffered injuries and the 
giving of a false explanation unerringly point to the guilt 
of the appellant. It is firmly and clearly established that it 
was the appellant and the appellant alone who was the 
perpetrator of the crime. 
21. It is true that S.I. Mohkam Singh (PW-17) had admitted 
in his crossexamination that the appellant’s daughter had 
disclosed even before sending the rukka to the Police 
Station that the appellant had committed the gruesome 
act and that this fact
not been mentioned in the rukka 
does not in any way belies the prosecution version. 
Perhaps the I.O. thought that it would be inappropriate to 
record the statement of a child aged about five years for 
the purpose of registration of an FIR against her father 
and to first independently investigate and come to more 
solid evidence. It may also be mentioned that during the 
investigation of this case, an application was moved by the 
appellant’s father for getting the statement of Shaheena 
(PW-3) recorded under Section 164 Cr.P.C. which was 
not recorded by the learned Metropolitan Magistrate as 
the child was found to be tutored. It seems that the I.O. 
preferred not to be criticised for getting the case registered
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on the basis of statement of a child of tender age. And 
so he did not record Shaheena’s (PW-3) statement in 
the rukka. 
22. We are conscious of the fact that Shaheena (PW-
3) has not supported the prosecution version that her 
father, the appellant had caused injuries on the person 
of her deceased mother. The same, however, is of no 
consequence as the child was of tender years and as 
observed by the Trial Court was tutored by the appellant’s 
father. The appellant, however, cannot make any 
advantage if PW-3 did not support the prosecution version. 
23. We are not going to attach much importance to 
the alleged harassment and the demand of dowry 
by the appellant because of the contradictions and 
the discrepancies in the statements of PWs 4 and 
11. Otherwise also, this is not a case under Section 
306/304-B IPC and thus, the alleged harassment was of 
no consequence and could at best have provided some 
motive for commission of the crime. 
24. In view of the foregoing discussion, we are of the 
view that the appeal is devoid of any merit; the same 
is accordingly dismissed. The judgment and order on 
sentence passed by the Trial Court are affirmed.
25. The appeal stands disposed of in above terms.”
22.	 In such circumstances referred to above, the appellant is here before 
this Court with the present appeal. 
B.	
SUBMISSIONS ON BEHALF OF THE APPELLANT
23.	 Mr. Rishi Malhotra, the learned counsel appearing for the
appellant, 
submitted that the entire case of the prosecution rests on 
circumstantial evidence and thus all the circumstances from which 
the conclusion of guilt is to be drawn should be carefully established 
by the prosecution and the facts so established should be consistent 
only with the hypothesis of the guilt of the accused and inconsistent 
with the innocence of the accused. The counsel placed reliance on 
the decision of this Court in Sharad Birdhichand Sarda v. State of 
Maharashtra reported in (1984) 4 SCC 116 to fortify his submission
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that the prosecution could be said to have failed to prove its case 
beyond reasonable doubt and could not have taken recourse to 
Section 106 of the Evidence Act in the absence of any foundational 
facts being laid for the same. 
24.	 He further submitted that the sole eye-witness, Shaheena (PW-3), 
did not support the case of the prosecution and her oral evidence 
rather fortified the defence taken by the accused that some strangers 
entered the house in the night hours and caused injuries to the 
appellant and the deceased. 
25.	 He submitted that Sayed Ali (PW-9), the panch witness examined 
by the prosecution to prove the discovery of the knife, also turned 
hostile and failed to prove the contents of the discovery panchnama.
26.	 One another submission canvassed was that the S.I. Mohkam 
Singh (PW-17), in his testimony before the trial court, admitted that 
he had questioned Shaheena (PW-3) before forwarding the written 
report/rukka to the police station. However, the said fact is missing 
in the written report/rukka prepared after completing the inquiry. This 
according to the learned counsel indicates that the testimony of S.I. 
Mohkam Singh (PW-17) is unworthy of reliance. 
27.	 He submitted that the sole basis to convict the appellant was that 
the explanation offered by him was not sufficient to save him from 
the adverse inference drawn against him under Section 106 of the 
Evidence Act. However, the High
Court failed to appreciate that the 
prosecution has to stand on its own legs and prove its case beyond 
reasonable doubt. Prosecution cannot throw the entire burden on 
the accused to prove his innocence. 
28.	 He submitted that the courts below ought to have taken into 
consideration the conduct of the appellant at the time of the alleged 
incident. Had the appellant been the assailant, he would not have 
stayed back at the place of occurrence, but would have rather ran 
away after committing the alleged crime.
29.	 He also submitted that the prosecution could not establish any motive 
on the part of the appellant to commit the alleged crime. Both the 
trial court and the High Court proceeded on the assumption that as 
the deceased might have arrived at home late in the night, the same 
perhaps could have led to an altercation between the two leading to 
the incident. However, no witness has been examined in this regard.
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30.	 In the last, the learned counsel submitted that even if the entire 
case of the prosecution is believed or accepted to be true, still the 
case would fall within the Exception 4 to Section 300 of the IPC. In 
other words, the submission is that the alleged crime could be said 
to have been committed without pre-meditation in a sudden fight 
upon a sudden quarrel.
C.	
SUBMISSIONS ON BEHALF OF THE STATE
31.	 Mr. Apoorv Kurup, the learned counsel appearing for the State 
submitted that no error, not to speak of any error of law, could be 
said to have been committed by the High Court in dismissing the 
appeal filed by the appellant and thereby affirming the judgment and 
order of conviction passed by the trial court.
32.	 He submitted that the following incriminating circumstances, in the 
form of foundational facts, were rightly taken into consideration by 
both the courts below for the purpose of invoking Section 106 of 
the Evidence Act.
a.	
The incident occurred inside the house in which the appellant 
and the deceased resided. The deceased was found lying 
practically dead in a pool of blood. 
b.	
The appellant was present at the place of the incident till the 
time the Investigating Officer reached the house of the appellant 
upon receiving the information from the PW-8.
c.	
The appellant failed to disclose before the Investigating Officer 
at the earliest point of time that two unidentified individuals 
entered the
house and laid an assault. 
d.	
The explanation, or rather the defence, put forward by the 
appellant that two unidentified individuals entered the house 
and inflicted injuries on the deceased is falsified by the other 
circumstances on record.
e.	
False explanation offered by the accused in his further statement 
recorded under Section 313 of the Cr.P.C. is an additional 
incriminating circumstance. 
f.	
The clothes worn by the appellant at the time of the incident had 
blood stains matching with the blood group of the deceased, 
i.e., ‘AB’ positive.
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g.	
Although the prosecution might not have been able to establish 
the discovery of the weapon at the instance of the appellant in 
accordance with Section 27 of the Evidence Act, yet the fact 
that the appellant made a statement before the Investigating 
Officer in this regard and led the Investigating Officer along with 
the panch witnesses to a nearby drain from where the knife 
is said to have been discovered, would reflect on his conduct, 
which is a relevant fact under Section 8 of the Evidence Act. 
33.	 In such circumstances referred to above, the learned counsel 
appearing for the State submitted that there being no merit in the 
appeal the same may be dismissed. 
D.	
ANALYSIS
34.	 Having heard the learned counsel appearing for the parties and 
having gone through the materials on record, the only question that 
falls for our consideration is whether the High Court committed any 
error in passing the impugned judgment and order. 
i.	
Principles of law governing the applicability of Section 106 
of the Evidence Act
35.	 Section 106 of the Evidence Act reads as follows:
“106. Burden of proving fact especially within 
knowledge.— When any fact is especially within the 
knowledge of any person, the burden of proving that fact 
is upon him.
Illustration
(a) When a person does an act with some intention other 
than that which the character and circumstances of the act 
suggest, the burden of proving that intention is
upon him.
(b) A is charged with travelling on a railway without a ticket. 
The burden of proving that he had a ticket is on him.”
36.	 Section 106 of the Evidence Act referred to above provides that when 
any fact is especially within the knowledge of any person, the burden 
of proving that fact is upon him. The word “especially” means facts 
that are pre-eminently or exceptionally within the knowledge of the 
accused. The ordinary rule that applies to the criminal trials that the 
onus lies on the prosecution to prove the guilt of the accused is not
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in any way modified by the rule of facts embodied in Section 106 of 
the Evidence Act. Section 106 of the Evidence Act is an exception 
to Section 101 of the Evidence Act. Section 101 with its illustration 
(a) lays down the general rule that in a criminal case the burden of 
proof is on the prosecution and Section 106 is certainly not intended 
to relieve it of that duty. On the contrary, it is designed to meet 
certain exceptional cases in which it would be impossible, or at any 
rate disproportionately difficult, for the prosecution to establish the 
facts which are, “especially within the knowledge of the accused and 
which, he can prove without difficulty or inconvenience”.
37.	 In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 
404, this Court while considering the word “especially” employed in 
Section 106 of the Evidence Act speaking through Vivian Bose, J., 
observed as under:
“11. … The word “especially” stresses that it means 
facts that are pre-eminently or exceptionally within his 
knowledge. If the section were to be interpreted otherwise, it 
would lead to the very startling conclusion that in a murder 
case the burden lies on the accused to prove that he did 
not commit the murder because who could know better 
than he whether he did or did not.
It is evident that that cannot be the intention & the Privy 
Council has twice refused to construe this section, as 
reproduced in certain other Acts outside
India, to mean 
that the burden lies on an accused person to show that 
he did not commit the crime for which he is tried. These 
cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) 
(A) and Seneviratne v. R. 1936-3 All ER 36 AT P. 49 (B).”
38.	 The aforesaid decision of Shambhu Nath (supra) has been referred 
to and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 
SCC 725, wherein this Court observed as under:
“22. Thus, Section 106 of the Evidence Act will apply to 
those cases where the prosecution has succeeded in 
establishing the facts from which a reasonable inference 
can be drawn regarding the existence of certain other facts 
which are within the special knowledge of the accused. 
When the accused fails to offer proper explanation about
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the existence of said other facts, the court can always 
draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the 
accused fails to offer a reasonable explanation in discharge 
of burden placed on him by virtue of Section 106 of the 
Evidence Act, such a failure may provide an additional 
link to the chain of circumstances. In a case governed 
by circumstantial evidence, if the chain of circumstances 
which is required to be established by the prosecution is 
not established, the failure of the accused to discharge 
the burden under Section 106 of the Evidence Act is not 
relevant at all. When the chain is not complete, falsity of 
the defence is no ground to convict the accused.”
(Emphasis supplied)
39.	 In Tulshiram Sahadu Suryawanshi and Anr. v. State of 
Maharashtra, (2012) 10 SCC 373, this Court observed as under:
“23. It is settled law that presumption of fact is a rule in 
law of evidence that a fact otherwise doubtful may be 
inferred from certain other proved facts. When inferring 
the existence of a fact from other set of proved facts, 
the court exercises a process of reasoning and reaches 
a logical conclusion as the most probable position. The 
above position is strengthened in view of Section 114 
of the Evidence Act, 1872. It empowers the court to 
presume the existence of any fact which it thinks likely 
to have happened. In that process, the courts shall have 
regard to
the common course of natural events, human 
conduct, etc. in addition to the facts of the case. In these 
circumstances, the principles embodied in Section 106 of 
the Evidence Act can also be utilised. We make it clear 
that this section is not intended to relieve the prosecution 
of its burden to prove the guilt of the accused beyond 
reasonable doubt, but it would apply to cases where 
the prosecution has succeeded in proving facts from 
which a reasonable inference can be drawn regarding 
the existence of certain other facts, unless the accused 
by virtue of his special knowledge regarding such facts, 
failed to offer any explanation which might drive the court
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to draw a different inference. It is useful to quote the 
following observation in State of W.B. v. Mir Mohammad 
Omar and Ors. [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] 
: (SCC p. 393, para 38)
“38. Vivian Bose, J., had observed that Section 106 
of the Evidence Act is designed to meet certain 
exceptional cases in which it would be impossible 
for the prosecution to establish certain facts which 
are particularly within the knowledge of the accused. 
In Shambhu Nath Mehra v. The State of Ajmer [AIR 
1956 SC 404 : 1956 Cri LJ 794] the learned Judge 
has stated the legal principle thus :
‘11. This lays down the general rule that in 
a criminal case the burden of proof is on the 
prosecution and Section 106 is certainly not 
intended to relieve it of that duty. On the contrary, 
it is designed to meet certain exceptional cases 
in which it would be impossible, or at any rate 
disproportionately difficult, for the prosecution 
to establish facts which are “especially” within 
the knowledge of the accused and which he 
could prove without difficulty or inconvenience.
The word “especially” stresses that. It means 
facts that are pre-eminently or exceptionally 
within his knowledge.’””
(Emphasis supplied)
40.	 In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 
681, this Court was considering a similar case of homicidal death in 
the confines of the house. The following observations made therein 
are considered
relevant in the facts of the present case:
“14. If an offence takes place inside the privacy of a 
house and in such circumstances where the assailants 
have all the opportunity to plan and commit the offence 
at the time and in circumstances of their choice, it will be 
extremely difficult for the prosecution to lead evidence to 
establish the guilt of the accused if the strict principle of
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circumstantial evidence, as noticed above, is insisted upon 
by the courts. A judge does not preside over a criminal 
trial merely to see that no innocent man is punished. A 
judge also presides to see that a guilty man does not 
escape. Both are public duties. (See Stirland v. Director 
of Public Prosecutions [1944 AC 315 : (1944) 2 All ER 
13 (HL)] — quoted with approval by Arijit Pasayat, J. in 
State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 
2004 SCC (Cri) 135].) The law does not enjoin a duty on 
the prosecution to lead evidence of such character which 
is almost impossible to be led or at any rate extremely 
difficult to be led. The duty on the prosecution is to lead 
such evidence which it is capable of leading, having regard 
to the facts and circumstances of the case. Here it is 
necessary to keep in mind Section 106 of the Evidence 
Act which says that when any fact is especially within 
the knowledge of any person, the burden of proving 
that fact is upon him. Illustration (b) appended to this 
section throws some light on the content and scope of 
this provision and it reads:
“(b) A is charged with travelling on a railway 
without ticket. The burden of proving that he 
had a ticket is on him.”
15. Where an offence like murder is committed in secrecy 
inside a house, the initial burden to establish the case would 
undoubtedly be upon the prosecution, but the nature and 
amount of evidence to be led by it
to establish the charge 
cannot be of the same degree as is required in other 
cases of circumstantial evidence. The burden would be of 
a comparatively lighter character. In view of Section 106 of 
the Evidence Act there will be a corresponding burden on 
the inmates of the house to give a cogent explanation as 
to how the crime was committed. The inmates of the house 
cannot get away by simply keeping quiet and offering no 
explanation on the supposed premise that the burden to 
establish its case lies entirely upon the prosecution and 
there is no duty at all on an accused to offer any explanation.
xxx xxx xxx
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22. Where an accused is alleged to have committed the 
murder of his wife and the prosecution succeeds in leading 
evidence to show that shortly before the commission of 
crime they were seen together or the offence takes place 
in the dwelling home where the husband also normally 
resided, it has been consistently held that if the accused 
does not offer any explanation how the wife received 
injuries or offers an explanation which is found to be 
false, it is a strong circumstance which indicates that he 
is responsible for commission of the crime. …”
(Emphasis supplied)
41.	 The question of burden of proof, where some facts are within the 
personal knowledge of the accused, was examined by this Court 
in the case of State of W.B. v. Mir Mohammad Omar and Ors., 
(2000) 8 SCC 382. In this case, the assailants forcibly dragged 
the deceased from the house where he was taking shelter on 
account of the fear of the accused, and took him away at about 
2:30 in the night. The next day in the morning, his mangled body 
was found lying in the hospital. The trial court convicted the 
accused under Section 364, read with Section 34 of the IPC, and 
sentenced them to ten years rigorous imprisonment. The accused 
preferred an appeal against their conviction before the High Court 
and the State also filed an appeal challenging the acquittal of the 
accused for the charge of murder. The accused had not given 
any explanation as to what
happened to the deceased after he 
was abducted by them. The Sessions Judge, after referring to the 
law on circumstantial evidence, had observed that there was a 
missing link in the chain of evidence after the deceased was last 
seen together with the accused persons, and the discovery of the 
dead body in the hospital, and concluded that the prosecution 
had failed to establish the charge of murder against the accused 
persons beyond any reasonable doubt. This Court took note of the 
provisions of Section 106 of the Evidence Act, and laid down the 
following principles in paras 31 to 34:
“31. The pristine rule that the burden of proof is on the 
prosecution to prove the guilt of the accused should not 
be taken as a recognized doctrine as though it admits no 
process of intelligent reasoning. The doctrine of presumption
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is not alien to the above rule, nor would it impair the temper 
of the rule. On the other hand, if the traditional rule relating 
to burden of proof of the prosecution is allowed to be 
wrapped in pedantic coverage, the offenders in serious 
offences would be the major beneficiaries and the society 
would be the casualty.
32. In this case, when the prosecution succeeded in 
establishing the afore-narrated circumstances, the court has 
to presume the existence of certain facts. Presumption is 
a course recognized by the law for the court to rely on in 
conditions such as this.
33. Presumption of fact is an inference as to the existence 
of one fact from the existence of some other facts, unless 
the truth of such inference is disproved. Presumption of fact 
is a rule in law of evidence that a fact otherwise doubtful 
may be inferred from certain other proved facts. When 
inferring the existence of a fact from other set of proved 
facts, the court exercises a process of reasoning and 
reaches a logical conclusion as the most probable position. 
The above principle has gained legislative recognition in 
India when Section 114 is incorporated in the Evidence 
Act. It empowers the court to presume the existence of 
any fact which it thinks likely to have happened. In that 
process the court shall have regard to the common course 
of natural events, human conduct etc. in relation to the 
facts of the case.
34. When it is proved
to the satisfaction of the Court that 
Mahesh was abducted by the accused and they took him 
out of that area, the accused alone knew what happened 
to him until he was with them. If he was found murdered 
within a short time after the abduction the permitted 
reasoning process would enable the Court to draw the 
presumption that the accused have murdered him. Such 
inference can be disrupted if the accused would tell the 
Court what else happened to Mahesh at least until he 
was in their custody.”
(Emphasis supplied)
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42.	 Applying the aforesaid principles, this Court while maintaining the 
conviction under Section 364 read with Section 34 of the IPC, 
reversed the order of acquittal under Section 302 read with Section 
34 of the IPC, and convicted the accused under the said provision 
and sentenced them to imprisonment for life.
43.	 Thus, from the aforesaid decisions of this Court, it is evident that the 
court should apply Section 106 of the Evidence Act in criminal cases 
with care and caution. It cannot be said that it has no application to 
criminal cases. The ordinary rule which applies to criminal trials in 
this country that the onus lies on the prosecution to prove the guilt of 
the accused is not in any way modified by the provisions contained 
in Section 106 of the Evidence Act.
44.	 Section 106 of the Evidence Act cannot be invoked to make up the 
inability of the prosecution to produce evidence of circumstances 
pointing to the guilt of the accused. This section cannot be used 
to support a conviction unless the prosecution has discharged the 
onus by proving all the elements necessary to establish the offence. 
It does not absolve the prosecution from the duty of proving that a 
crime was committed even though it is a matter specifically within 
the knowledge of the accused and it does not throw the burden on 
the accused to show that no crime was committed. To infer the guilt 
of the accused from absence of reasonable
explanation in a case 
where the other circumstances are not by themselves enough to 
call for his explanation is to relieve the prosecution of its legitimate 
burden. So, until a prima facie case is established by such evidence, 
the onus does not shift to the accused.
45.	 Section 106 of the Evidence Act obviously refers to cases where the 
guilt of the accused is established on the evidence produced by the 
prosecution unless the accused is able to prove some other facts 
especially within his knowledge, which would render the evidence 
of the prosecution nugatory. If in such a situation, the accused 
offers an explanation which may be reasonably true in the proved 
circumstances, the accused gets the benefit of reasonable doubt 
though he may not be able to prove beyond reasonable doubt the 
truth of the explanation. But, if the accused in such a case does 
not give any explanation at all or gives a false or unacceptable 
explanation, this by itself is a circumstance which may well turn 
the scale against him. In the language of Prof. Glanville Williams:
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“All that the shifting of the evidential burden does at the 
final stage of the case is to allow the jury (Court) to take 
into account the silence of the accused or the absence 
of satisfactory explanation appearing from his evidence.”
(Emphasis supplied)
46.	 To recapitulate the foregoing : What lies at the bottom of the various 
rules shifting the evidential burden or burden of introducing evidence 
in proof of one’s case as opposed to the persuasive burden or 
burden of proof, i.e., of proving all the issues remaining with the 
prosecution and which never shift is the idea that it is impossible 
for the prosecution to give wholly convincing evidence on certain 
issues from its own hand and it is, therefore, for the accused to give 
evidence on them if he wishes to escape. Positive facts must always 
be proved by the prosecution. But the same rule cannot always 
apply to negative facts. It is not for the prosecution to anticipate 
and eliminate all possible defences or circumstances which may 
exonerate an accused. Again, when a person does not act with some 
intention other than that which the character and circumstances of 
the act suggest, it is not for the prosecution to eliminate all the other 
possible intentions. If the accused had a different intention that is 
a fact especially within his knowledge and which he must prove 
(see Professor Glanville Williams—Proof of Guilt, Ch. 7, page 127 
and following) and
the interesting discussion—para 527 negative 
averments and para 528 — “require affirmative counter-evidence” 
at page 438 and foil, of Kenny’s outlines of Criminal Law, 17th Edn. 
1958.
47.	 But Section 106 of the Evidence Act has no application to cases 
where the fact in question, having regard to its nature, is such 
as to be capable of being known not only to the accused but 
also to others, if they happened to be present when it took place. 
The intention underlying the act or conduct of any individual is 
seldom a matter which can be conclusively established; it is 
indeed only known to the person in whose mind the intention 
is conceived. Therefore, if the prosecution has established that 
the character and circumstance of an act suggest that it was 
done with a particular intention, then under illustration (a) to this 
section, it may be assumed that he had that intention, unless he 
proves the contrary.
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48.	 A manifest distinction exists between the burden of proof and the 
burden of going forward with the evidence. Generally, the burden of 
proof upon any affirmative proposition necessary to be established 
as the foundation of an issue does not shift, but the burden of 
evidence or the burden of explanation may shift from one side to 
the other according to the testimony. Thus, if the prosecution has 
offered evidence, which if believed by the court, would convince them 
of the accused’s guilt beyond a reasonable doubt, the accused, if 
in a position, should go forward with counter-vailing evidence, if he 
has such evidence. When facts are peculiarly within the knowledge 
of the accused, the burden is on him to present evidence of such 
facts, whether the proposition is an affirmative or negative one. He 
is not required to do so even though a prima facie case has been 
established, for the court must still find that he is guilty beyond a 
reasonable doubt before it can convict. However, the accused's failure 
to present evidence on his behalf may be regarded by the court as 
confirming the conclusion indicated by the evidence presented by 
the prosecution or as confirming presumptions which might arise 
therefrom. Although not legally required to produce evidence on his 
own behalf, the accused may, therefore, as a practical matter find 
it essential to go forward with proof. This does not alter the burden 
of proof
resting upon the prosecution [See: Balvir Singh v. State 
of Uttarakhand, 2023 SCC OnLine 1261]
ii.	
What is “prima facie case” (foundational facts) in the context 
of Section 106 of the Evidence Act?
49.	 The Latin expression prima facie means “at first sight”, “at first 
view”, or “based on first impression”. According to Webster’s Third 
International Dictionary (1961 Edn.), “prima facie case” means a case 
established by “prima facie evidence” which in turn means “evidence 
sufficient in law to raise a presumption of fact or establish the fact 
in question unless rebutted”. In both civil and criminal law, the term 
is used to denote that, upon initial examination, a legal claim has 
sufficient evidence to proceed to trial or judgment. In most legal 
proceedings, one party (typically, the plaintiff or the prosecutor) has a 
burden of proof, which requires them to present prima facie evidence 
for each element of the case or charges against the defendant. If 
they cannot present prima facie evidence, the initial claim may be 
dismissed without any need for a response by other parties.
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50.	 Section 106 of the Evidence Act would apply to cases where the 
prosecution could be said to have succeeded in proving facts from 
which a reasonable inference can be drawn regarding guilt of the 
accused.
51.	 The presumption of fact is an inference as to the existence of one 
fact from the existence of some other facts, unless the truth of such 
inference is disproved.
52.	 To explain what constitutes a prima facie case to make Section 106 
of the Evidence Act applicable, we should refer to the decision of this 
Court in Mir Mohammad (supra), wherein this Court has observed 
in paras 36 and 37 respectively as under:
“36. In this context we may profitably utilize the legal 
principle embodied in Section 106 of the Evidence Act 
which reads as follows: “When any fact is especially within 
the knowledge of any person, the burden of proving that 
fact is upon him.”
37. The section is not intended to relieve the prosecution 
of its burden to prove the guilt of the accused beyond 
reasonable doubt. But the section would apply to cases 
where the prosecution has succeeded in proving facts 
from which a reasonable inference can be drawn regarding 
the existence of certain other facts, unless the accused 
by virtue of his special knowledge regarding such facts, 
failed to offer any explanation which might drive the court 
to draw a different inference.”
(Emphasis supplied)
53.	 We should also look into the decision of this
Court in the case of 
Ram Gulam Chaudhary & Ors. v. State of Bihar, (2001) 8 SCC 
311, wherein this Court made the following observations in paragraph 
24 as under:
“24. Even otherwise, in our view, this is a case where 
Section 106 of the Evidence Act would apply. Krishnanand 
Chaudhary was brutally assaulted and then a chhura-blow 
was given on the chest. Thus chhura-blow was given after 
Bijoy Chaudhary had said “he is still alive and should 
be killed”. The appellants then carried away the body.
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What happened thereafter to Krishnanand Chaudhary is 
especially within the knowledge of the appellants. The 
appellants have given no explanation as to what they did 
after they took away the body. Krishnanand Chaudhary 
has not been since seen alive. In the absence of an 
explanation, and considering the fact that the appellants 
were suspecting the boy to have kidnapped and killed 
the child of the family of the appellants, it was for the 
appellants to have explained what they did with him after 
they took him away. When the abductors withheld that 
information from the court, there is every justification for 
drawing the inference that they had murdered the boy. 
Even though Section 106 of the Evidence Act may not be 
intended to relieve the prosecution of its burden to prove 
the guilt of the accused beyond reasonable doubt, but the 
section would apply to cases like the present, where the 
prosecution has succeeded in proving facts from which 
a reasonable inference can be drawn regarding death. 
The appellants by virtue of their special knowledge must 
offer an explanation which might lead the Court to draw 
a different inference. We, therefore, see no substance in 
this submission of Mr. Mishra.”
(Emphasis supplied)
54.	 Cases are frequently coming before the courts where the husband, 
due to strained marital relations and doubt as regards the character, 
has gone to the extent of killing his wife. These crimes are
generally 
committed in complete secrecy inside the house and it becomes 
very difficult for the prosecution to lead evidence. No member 
of the family, like in the case at hand, even if he is a witness of 
the crime, would come forward to depose against another family 
member.
55.	 If an offence takes place inside the four walls of a house and in 
such circumstances where the accused has all the opportunity to 
plan and commit the offence at a time and in the circumstances of 
his choice, it will be extremely difficult for the prosecution to lead 
direct evidence to establish the guilt of the accused. It is to resolve 
such a situation that Section 106 of the Evidence Act exists in the
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statute book. In the case of Trimukh Maroti Kirkan (supra), this 
Court observed that a Judge does not preside over a criminal trial 
merely to see that no innocent man is punished. The Court proceeded 
to observe that a Judge also presides to see that a guilty man does 
not escape. Both are public duties. The law does not enjoin a duty 
on the prosecution to lead evidence of such character, which is 
almost impossible to be led, or at any rate, extremely difficult to be 
led. The duty on the prosecution is to lead such evidence, which it 
is capable of leading, having regard to the facts and circumstances 
of the case.
56.	 We are of the view that the following foundational facts, which were 
duly proved, justified the courts below in invoking the principles 
enshrined under Section 106 of the Evidence Act: 
a)	
The offence took place inside the four walls of the house in 
which the appellant, deceased and their 5-year-old daughter 
were living. The incident occurred in the early morning hours 
between 3.30 am and 4.00 am. 
b)	
When the Investigating Officer reached the house of the 
appellant, he found the deceased lying in a pool of blood. The 
appellant was also present at his house.
c)	
The defence put forward by the appellant that two unidentified 
persons entered the house and inflicted injuries on the deceased 
and also on his body is found to be false.
d)	
The clothes worn by the appellant at the time of the
incident 
were collected by the Investigating Officer. The clothes had 
blood stains. According to the Forensic Science Laboratory 
report, the blood stains on the clothes of the appellant matched 
with the blood group of the deceased i.e., AB+
e)	
The conduct of the appellant in leading the Investigating Officer 
and others to a drain nearby his house and the discovery of 
the knife from the drain is a relevant fact under Section 8 of the 
Evidence Act. In other words, the evidence of the circumstance 
simpliciter that the appellant pointed out to the Investigating 
Officer the place where he threw away the weapon of offence 
i.e., knife would be admissible as ‘conduct’ under Section 8 
irrespective of the fact whether the statement made by the
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accused contemporaneously with or antecedent to such conduct 
falls within the purview of Section 27 of the Evidence Act.
iii.	
Discovery of weapon under Section 27 of the Evidence Act
57.	 In Madan Singh v. State of Rajasthan, 1979 SCC (Cri) 56, it was 
observed that where the evidence of the Investigating Officer who 
discovered the material objects is convincing, the evidence as to 
discovery need not be rejected on the ground that the panch witnesses 
did not support the prosecution version. Similar view was expressed 
in Mohd. Aslam v. State of Maharashtra, (2001) 9 SCC 362.
58.	 In Anter Singh v. State of Rajasthan, (2004) 10 SCC 657, it was 
further held: -
“10. … even if Panch witness turn hostile which happens 
very often in criminal cases, the evidence of the person 
who effected the recovery would not stand vitiated.”
59.	 Even while discarding the evidence in the form of discovery 
panchnama, the conduct of the appellant herein would be relevant 
under Section 8 of the Evidence Act. The evidence of discovery would 
be admissible as conduct under Section 8 of the Evidence Act quite 
apart from the admissibility of the disclosure statement under Section 
27 of the Evidence Act, as this Court observed in A.N. Venkatesh 
and Anr. v. State of Karnataka, (2005) 7 SCC 714: -
“9. By virtue of Section 8 of the Evidence Act, the conduct 
of the accused person is relevant, if such conduct 
influences or is influenced by any
fact in issue or relevant 
fact. The evidence of the circumstance, simpliciter, that 
the accused pointed out to the police officer, the place 
where the dead body of the kidnapped boy was found 
and on their pointing out the body was exhumed, would 
be admissible as conduct under Section 8 irrespective 
of the fact whether the statement made by the accused 
contemporaneously with or antecedent to such conduct 
falls within the purview of Section 27 or not as held by this 
Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 
SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400]. Even 
if we hold that the disclosure statement made by the 
accused-appellants (Ex. P-15 and P-16) is not admissible
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under Section 27 of the Evidence Act, still it is relevant 
under Section 8. …”
60.	 In the State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, 
(2005) 11 SCC 600, the two provisions i.e. Section 8 and Section 27 
of the Evidence Act were elucidated in detail with reference to the 
case law on the subject and apropos to Section 8 of the Evidence 
Act, wherein it was held:
“205. Before proceeding further, we may advert to Section 8 
of the Evidence Act. Section 8 insofar as it is relevant for our 
purpose makes the conduct of an accused person relevant, if 
such conduct influences or is influenced by any fact in issue 
or relevant fact. It could be either a previous or subsequent 
conduct. There are two Explanations to the section, which 
explains the ambit of the word ‘conduct’. They are:
“Explanation 1.- The word ‘conduct’ in this section does not 
include statements, unless those statements accompany 
and explain acts other than statements, but this explanation 
is not to affect the relevancy of statements under any other 
section of this Act.
Explanation 2.- When the conduct of any person is relevant, 
any statement made to him or in his presence and hearing, 
which affects such conduct, is relevant.”
The conduct, in order to be admissible, must be such that 
it has close nexus with a fact in issue or relevant fact. 
Explanation 1 makes it clear that the mere statements as 
distinguished from acts do not constitute
“conduct” unless 
those statements “accompany and explain acts other than 
statements”. Such statements accompanying the acts are 
considered to be evidence of res gestae. Two illustrations 
appended to Section 8 deserve special mention:
“(f) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A’s 
presence— ‘the police are coming to look for the 
man who robbed B’, and that immediately afterwards 
A ran away, are relevant.
 * * *
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(i) A is accused of a crime.
The facts that, after the commission of the alleged 
crime, he absconded, or was in possession of 
property or the proceeds of property acquired by 
the crime, or attempted to conceal things which 
were or might have been used in committing it, 
are relevant.”
206. We have already noticed the distinction highlighted 
in Prakash Chand case (supra) between the conduct of 
an accused which is admissible under Section 8 and 
the statement made to a police officer in the course 
of an investigation which is hit by Section 162 Cr.P.C. 
The evidence of the circumstance, simpliciter, that the 
accused pointed out to the police officer, the place where 
stolen articles or weapons used in the commission of the 
offence were hidden, would be admissible as “conduct” 
under Section 8 irrespective of the fact whether the 
statement made by the accused contemporaneously with 
or antecedent to such conduct, falls within the purview 
of Section 27, as pointed out in Prakash Chand case. 
In Om Prakash case (supra) this Court held that: (SCC 
p.262, para 14)
“Even apart from the admissibility of the information 
under Section 27, the evidence of the investigating 
officer and the panchas that the accused had taken 
them to PW 11 (from whom he purchased the weapon) 
and pointed him out and as corroborated by PW 11 
himself would be admissible under Section 8 of the 
Evidence Act as conduct of the accused.””
(Emphasis supplied)
61.	 However, in the aforesaid context, we would like to sound a note 
of caution. Although the conduct of an accused may be a relevant 
fact under Section 8 of the Evidence Act, yet the same, by itself, 
cannot be a ground to convict him or hold him guilty and that too, 
for a serious offence like murder. Like any other piece of evidence, 
the conduct of an accused is also one of the circumstances which 
the court may take into consideration along with the other evidence
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on record, direct or indirect. What we are trying to convey is that 
the conduct of the accused alone, though may be relevant under 
Section 8 of the Evidence Act, cannot form the basis of conviction.
iv.	
Cross-examination by the public prosecutor of a hostile 
witness
62.	 In the case at hand, Shaheena (PW-3) was the most important 
witness for the prosecution, being the solitary eye witness to the 
incident. Shaheena (PW-3) at the relevant point of time was just 
five years old. Her childhood might have been very disturbed on 
account of the strained relations of her parents. The unfortunate 
incident must have had a lasting effect on her. However, when she 
entered the witness box, she decided to resile from her previous 
statement. Had she deposed as stated by her in her police statement 
then, probably, the prosecution would not have felt the need to 
invoke Section 106 of the Evidence Act. There could be innumerable 
reasons for a witness to resile from his/her police statement and 
turn hostile. Here is a case in which a five-year-old daughter might 
have resiled thinking that having lost her mother, the father was the 
only person who may take care of her and bring her up. However, 
why she turned hostile is not important. What is important is the 
role of the public prosecutor after a prime witness, more particularly 
a child witness of tender age, turns hostile in a murder trial. When 
any prosecution witness
turns hostile and the public prosecutor 
seeks permission of the trial court to cross-examine such witness 
then that witness is like any other witness. The witness no longer 
remains the prosecution witness.
63.	 Section 162 Cr.P.C. bars the use of statement of witnesses recorded 
by the police except for the limited purpose of contradiction of such 
witnesses as indicated therein. The statement made by a witness 
before the police under Section 161(1) Cr.P.C. can be used only for 
the purpose of contradicting such witness on what he has stated at 
the trial as laid down in the proviso to Section 162(1) Cr.P.C. The 
statements under Section 161 Cr.P.C. recorded during the investigation 
are not substantive pieces of evidence but can be used primarily for 
the limited purpose: (i) of contradicting such witness by an accused 
under Section 145 of the Evidence Act; (ii) the contradiction of such 
witness also by the prosecution but with the leave of the Court; and 
(iii) the re-examination of the witness if necessary.
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64.	 The court cannot suo motu make use of statements to police 
not proved and ask questions with reference to them which are 
inconsistent with the testimony of the witness in the court. The words 
‘if duly proved’ used in Section 162 Cr.P.C. clearly show that the 
record of the statement of witnesses cannot be admitted in evidence 
straightaway, nor can be looked into, but they must be duly proved for 
the purpose of contradiction by eliciting admission from the witness 
during cross-examination and also during the cross-examination 
of the Investigating Officer. The statement before the Investigating 
Officer can be used for contradiction but only after strict compliance 
with Section 145 of the Evidence Act, that is, by drawing attention 
to the parts intended for contradiction.
65.	 Section 145 of the Evidence Act reads as under:
“145.Cross-examination as to previous statements in 
writing. — A witness may be cross-examined as to previous 
statements made by him in writing or reduced into writing, 
and relevant to matters in question, without such writing 
being shown to him, or being proved; but, if it is intended 
to contradict him by the writing, his attention must, before 
the writing can be proved, be called to those parts of it 
which are to be used for the purpose of contradicting him.”
66.	 Under Section 145 of the Evidence Act when it is intended to 
contradict the witness by his previous statement reduced
into writing, 
the attention of such witness must be called to those parts of it 
which are to be used for the purpose of contradicting him, before 
the writing can be used. While recording the deposition of a witness, 
it becomes the duty of the trial court to ensure that the part of the 
police statement with which it is intended to contradict the witness 
is brought to the notice of the witness in his cross-examination. The 
attention of witness is drawn to that part and this must reflect in his 
cross-examination by reproducing it. If the witness admits the part 
intended to contradict him, it stands proved and there is no need of 
further proof of contradiction and it will be read while appreciating the 
evidence. If he denies having made that part of the statement, his 
attention must be drawn to that statement and must be mentioned in 
the deposition. By this process the contradiction is merely brought on 
record, but it is yet to be proved. Thereafter, when the Investigating 
Officer is examined in the court, his attention should be drawn to
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the passage marked for the purpose of contradiction, it will then 
be proved in the deposition of the Investigating Officer who, again, 
by referring to the police statement will depose about the witness 
having made that statement. The process again involves referring to 
the police statement and culling out that part with which the maker 
of the statement was intended to be contradicted. If the witness 
was not confronted with that part of the statement with which the 
defence wanted to contradict him, then the court cannot suo motu 
make use of statements to police not proved in compliance with 
Section 145 of the Evidence Act, that is, by drawing attention to 
the parts intended for contradiction.” [See: V.K. Mishra v. State of 
Uttarakhand : (2015 9 SCC 588]
67.	 In the case at hand, not only proper contradictions were not brought 
on record in the oral evidence of the hostile witnesses, but even 
those few that were brought on record, were not proved through the 
evidence of the Investigating Officer. Does the State expect Section 
106 of the Evidence Act to come to its aid in every criminal prosecution. 
At times, such procedural lapses may lead to a very serious crime 
going unpunished. Any crime committed against an individual is a 
crime against the entire society. In such circumstances, neither the 
public prosecutor nor the presiding officer of the trial court can afford 
to remain remiss or lackadaisical in
any manner. Time and again, 
this Court has, through its judgments, said that there should not be 
any element of political consideration in the matters like appointment 
to the post of public prosecutor, etc. The only consideration for the 
Government should be the merit of the person. The person should 
be not only competent, but he should also be a man of impeccable 
character and integrity. He should be a person who should be able 
to work independently without any reservations, dictates or other 
constraints. The relations between the Public Prosecution Service 
and the judiciary are the very cornerstone of the criminal justice 
system. The public prosecutors who are responsible for conducting 
prosecutions and may appeal against the court decisions, are one 
of judges’ natural counterparts in the trial proceedings and also in 
the broader context of management of the system of criminal law. 
68.	 A criminal case is built upon the edifice of evidence (whether it is 
direct evidence or circumstantial evidence) that is admissible in law. 
Free and fair trial is the very foundation of the criminal jurisprudence. 
There is a reasonable apprehension in the mind of the public at
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large that the criminal trial is neither free nor fair with the Prosecutor 
appointed by the State Government conducting the trial in a manner 
where frequently the prosecution witnesses turn hostile.
69.	 Over a period of time, we have noticed, while hearing criminal 
appeals, that there is practically no effective and meaningful cross-
examination by the Public Prosecutor of a hostile witness. All that 
the Public Prosecutor would do is to confront the hostile witness with 
his/her police statement recorded under Section 161 of the Cr.P.C. 
and contradict him/her with the same. The only thing that the Public 
Prosecutor would do is to bring the contradictions on record and 
thereafter prove such contradictions through the evidence of the 
Investigating Officer. This is not sufficient. The object of the cross-
examination is to impeach the accuracy, credibility and general 
value of the evidence given in-chief; to sift the facts already stated 
by the witness; to detect and expose the discrepancy or to elicit the 
suppressed facts which will support the case of the cross-examining 
party. What we are trying to convey is that it is the duty of the Public 
Prosecutor to cross-examine a hostile witness in detail and try to 
elucidate the truth & also establish that the witness is speaking lie 
and has deliberately resiled from his police statement recorded under 
Section 161 of the Cr.P.C. A good, seasoned and experienced
Public 
Prosecutor will not only bring the contradictions on record, but will 
also cross-examine the hostile witness at length to establish that 
he or she had actually witnessed the incident as narrated in his/her 
police statement.
70.	 In the case at hand, we have noticed that after Shaheena (PW-
3) was declared hostile, all that the public prosecutor did was to 
put few suggestions to her for the purposes of cross-examination. 
Surprisingly, even proper contradictions were not brought on record. 
In other words, the PW-3 was not even appropriately confronted 
with her police statement. It is not sufficient for the public prosecutor 
while cross-examining a hostile witness to merely hurl suggestions, 
as mere suggestions have no evidentiary value. 
71.	 The trial judge also failed to play an active role in the present 
case. The trial judge should have been conscious of the fact that 
Shaheena (PW-3) was asked to depose in the open court in a charged 
atmosphere and that too in the presence of the accused who was 
none other than her own father.
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72.	 The impact of a court appearance on a child and the duty of the 
court towards a child witness have been very succinctly explained 
by the Constitutional Court of South Africa in the case of Director 
of Public Prosecutions, Transwal v. Minister of Justice and 
Constitutional Development reported in (2009) 4 SA 222 (CC). 
We quote the relevant observations as under:
“101. A court operates in an atmosphere which is intended 
to be imposing. It is an atmosphere which is foreign to 
a child. The child sits alone in the witness stand, away 
from supportive relatives such as a parent. The child 
has to testify in the presence of the alleged abuser and 
other strangers including the presiding judicial officer, 
the accused’s legal representative, the court orderly, the 
prosecutor and other court officials. While the child may 
have met the prosecutor before - at least one assumes 
that the prosecutor would have interviewed the child in 
preparing for trial - the conversation now takes place in a 
context that is probably bewildering and frightening to the 
child. Unless appropriately adapted to a child, the effect of 
the courtroom atmosphere on the child may be to reduce 
the child to a state of terrified silence. Instances of children 
who have been so frightened by being introduced into the 
alien atmosphere of the courtroom that they refuse to say 
anything are not unknown.” 
So far as conduct of the competency
assessment of the child is 
concerned, it was held as follows: 
“102. The child would be questioned by the judicial 
officer in order to satisfy himself or herself that the child 
understands that he or she is under a duty to speak the 
truth or understands the import of the oath. Regrettably 
this questioning, although well-meaning, is often theoretical 
in nature and may increase the child’s sense of confusion 
and terror. The child may wonder why he or she is being 
subjected to this questioning. That is not all.
xxx xxx xxx
104. If the child decides to speak, then the prosecutor will 
take him or her through his or her evidence. The questioning
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of a child requires special skills, similar to those required 
to run day care centres or to teach younger children. 
Questioning a child in court is no exception: it requires a 
skill. Regrettably, not all of our prosecutors are adequately 
trained in this area, although quite a few have developed 
the necessary understanding and skill to question children 
in the court room environment…” 
(Emphasis supplied)
73.	 If the questioning by the public prosecutor is not skilled, like in 
the case at hand, the result is that the State as a prosecuting 
agency will not be able to elicit the truth from the child witness. 
It is the duty of the court to arrive at the truth and subserve the 
ends of justice. The courts have to take a participatory role in 
the trial and not act as mere tape recorders to record whatever 
is being stated by the witnesses. The judge has to monitor the 
proceedings in aid of justice. Even if the prosecutor is remiss or 
lethargic in some ways, the court should control the proceedings 
effectively so that the ultimate objective that is the truth is arrived 
at. The court must be conscious of serious pitfalls and dereliction 
of duty on the part of the prosecuting agency. Upon failure of the 
prosecuting agency showing indifference or adopting an attitude of 
aloofness, the trial judge must exercise the vast powers conferred 
under Section 165 of the Evidence Act and Section 311 of the 
Cr.P.C. respectively
to elicit all the necessary materials by playing 
an active role in the evidence collecting process. (See: Zahira 
Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors., (2004) 
4 SCC 158). 
74.	 The judge is expected to actively participate in the trial, elicit 
necessary materials from the witnesses in the appropriate context 
which he feels necessary for reaching the correct conclusion. The 
judge has uninhibited power to put questions to the witness either 
during the chief examination or cross-examination or even during 
re-examination for this purpose. If a judge feels that a witness has 
committed an error or slip, it is the duty of the judge to ascertain 
whether it was so, for, to err is human and the chances of erring may 
accelerate under stress of nervousness during cross-examination. 
(See: (para 12) of State of Rajasthan vs. Ani alias Hanif & Ors., 
AIR 1997 SC 1023).
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Anees v. The State Govt. of NCT
v.	
Whether the appellant is entitled to the benefit of Exception 
4 to Section 300 of the IPC?
75.	 We shall now deal with the alternative submission of the learned 
counsel for the appellant as regards the applicability of Exception 4 
to Section 300 of the IPC. 
76.	 He submitted that even otherwise it is the case of the prosecution that 
the appellant and the deceased were not leading a happy marital life 
and used to fight with each other for some reason or the other, more 
particularly, on account of the deceased returning home very late 
in the night. The learned counsel tried to develop an argument that 
on the fateful day of the incident also some verbal altercation might 
have taken place and this fact is also substantiated by the evidence 
of Shaheena (PW-3) that she had heard shouts and shrieks of her 
parents in the night hours. This would indicate that the incident had 
occurred in the heat of the moment without any pre-meditation. In 
other words, according to the learned counsel it could be a sudden 
fight between the two in the heat of passion upon a sudden quarrel. 
He also tried to fortify his submission pointing out that appellant had 
also suffered minor injuries.
77.	 The aforesaid submission of the learned counsel appearing for the 
appellant is baseless and without any merit. However, since a specific 
ground has been urged, we should answer the same. 
78.	 The sine qua non for the application of
an Exception to Section 300 
always is that it is a case of murder but the accused claims the benefit 
of the Exception to bring it out of that Section and to make it a case 
of culpable homicide not amounting to murder. This plea, therefore, 
assumes that this is a case of murder. Hence, as per Section 105 
of the Evidence Act, it is for the accused to show the applicability of 
the Exception. Exception 4 reads as under:
“Exception 4.- Culpable homicide is not murder if it is 
committed without premeditation in a sudden fight in the 
heat of passion upon a sudden quarrel and without the 
offender having taken undue advantage or acted in a cruel 
or unusual manner.”
79.	 A perusal of the provision would reveal that four conditions must be 
satisfied to bring the matter within Exception 4:
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(i)	
it was a sudden fight;
(ii)	
there was no premeditation;
(iii)	 the act was done in the heat of passion; and; that
(iv)	 the assailant had not taken any undue advantage or acted in 	
a cruel manner.
80.	 On a plain reading of Exception 4, it appears that the help of Exception 
4 can be invoked if death is caused (a) without premeditation, (b) in a 
sudden fight, (c) without the offenders having taken undue advantage 
or having acted in a cruel or unusual manner; and (d) the fight must 
have been with the person killed. To bring a case within Exception 
4, all the ingredients mentioned in it must be found.
81.	 This Court in Vishal Singh v. State of Rajasthan , (2009) Cri. LJ 
2243 has explained the scope and ambit of Exception 4 to 300 of 
the IPC. A three-Judge Bench observed in para 7 as under: 
“7. The Fourth Exception of Section 300, IPC covers acts 
done in a sudden fight. The said exception deals with a 
case of prosecution not covered by the First Exception, 
after which its place would have been more appropriate. 
The exception is founded upon the same principle, for, 
in both there is absence of premeditation. But, while in 
the case of Exception 1 there is total deprivation of self-
control, in case of Exception 4, there is only that heat of 
passion which clouds men’s sober reasons and urges 
them to deeds which they would not otherwise do. There is 
provocation in Exception 4 as in Exception 1; but the
injury 
done is not the direct consequence of that provocation. In 
fact Exception 4 deals with cases in which notwithstanding 
that a blow may have been struck, or some provocation 
given in the origin of the dispute or in whatever way the 
quarrel may have originated, yet the subsequent conduct 
of both parties puts them in respect of guilt upon equal 
footing. A ‘sudden fight’ implies mutual provocation and 
blows on each side. The homicide committed is then 
clearly not traceable to unilateral provocation, nor in 
such cases could the whole blame be placed on one 
side. For if it were so, the Exception more appropriately
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Anees v. The State Govt. of NCT
applicable would be Exception 1. There is no previous 
deliberation or determination to fight. A fight suddenly 
takes place, for which both parties are more or less to 
be blamed. It may be that one of them starts it, but if the 
other had not aggravated it by his own conduct it would 
not have taken the serious turn it did. There is then mutual 
provocation and aggravation, and it is difficult to apportion 
the share of blame which attaches to each fighter. The 
help of Exception 4 can be invoked if death is caused (a) 
without premeditation, (b) in a sudden fight; (c) without the 
offender’s having taken undue advantage or acted in a 
cruel or unusual manner; and (d) the fight must have been 
with the person killed. To bring a case within Exception 4 
all the ingredients mentioned in it must be found. It is to 
be noted that the ‘fight’ occurring in Exception 4 to Section 
300, IPC is not defined in the IPC. It takes two to make 
a fight. Heat of passion requires that there must be no 
time for the passions to cool down and in this case, the 
parties have worked themselves into a fury on account of 
the verbal altercation in the beginning. A fight is a combat 
between two and more persons whether with or without 
weapons. It is not possible to enunciate any general rule 
as to what shall be deemed to be a sudden quarrel. It is 
a question of fact and whether a quarrel is sudden or not 
must necessarily depend upon the
proved facts of each 
case. For the application of Exception 4, it is not sufficient 
to show that there was a sudden quarrel and there was no 
premeditation. It must further be shown that the offender 
has not taken undue advantage or acted in cruel or 
unusual manner. The expression ‘undue advantage’ as 
used in the provision means ‘unfair advantage’. These 
aspects have been highlighted in Dhirajbhai Gorakhbhai 
Nayak v. State of Gujrat (2003 (5) Supreme 223]; Parkash 
Chand v. State of H.P. (2004 (11) SCC 381); Byvarapu 
Raju v. State of A.P. and Anr. (2007 (11) SCC 218) and 
Hawa Singh and Anr. v. State of Haryana (SLP (Crl.) No. 
1515/2008, disposed of on 15.1.2009).”
(Emphasis supplied)
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82.	 If the aforesaid principles, as explained by this Court, are to be 
applied to the facts of the present case, we have no hesitation 
in saying that the present case is not one of culpable homicide 
not amounting to murder but the same is a case of murder. We 
should not overlook the fact that the appellant inflicted as many 
as twelve blows with a knife on the deceased who was unarmed 
and helpless. 
83.	 Where the offender takes undue advantage or has acted in a 
cruel or an unusual manner, the benefit of Exception 4 cannot be 
given to him. If the weapon used or the manner of attack by the 
assailant is disproportionate, that circumstance must be taken into 
consideration to decide whether undue advantage has been taken. 
In Kikar Singh v. State of Rajasthan reported in AIR 1993 SC 
2426, it was held that if the accused used deadly weapons against 
an unarmed man and struck a blow on the head it must be held that 
using the blows with the knowledge that they were likely to cause 
death, he had taken undue advantage. A fight suddenly takes place, 
for which both the parties are more or less to be blamed. It might 
be that one of them starts it, but if the other had not aggravated it 
by his own conduct, it would not have taken the serious turn it did. 
There is then mutual provocation and aggravation and it is difficult 
to apportion the share of blame which attaches to each fighter. It 
takes two to make a fight.
Assuming for the moment that it was the 
deceased who picked up a fight with the appellant or provoked the 
appellant in some manner with her conduct or behaviour, still the 
appellant could be said to have taken undue advantage & acted in 
a cruel manner. 
84.	 For all the foregoing reasons, we have reached to the conclusion 
that the High Court committed no error in affirming the judgment and 
order of conviction passed by the trial court, holding the appellant 
guilty of the offence of murder of his wife. 
85.	 Before we close this matter, we are persuaded to look into a few 
mitigating circumstances emerging from the record of the case. We 
take notice of the fact that the appellant got married to the deceased 
in 1982. During those days, triple talaq was prevalent among the 
Muslims. In the year 1992, the appellant divorced the deceased with 
the aid of triple talaq. However, thereafter, he once again brought her 
back home. In the year 1995, the incident occurred. The appellant
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Anees v. The State Govt. of NCT
came to be convicted by the trial court in the year 1998. On appeal 
before the High Court, in the year 1998 itself, the substantive order 
of sentence of life imprisonment came to be suspended and the 
appellant was ordered to be released on bail. It took 16 years for 
the High Court to decide the appeal which ultimately came to be 
dismissed on 23.05.2014. Upon dismissal of the appeal, the appellant 
was once again taken into custody and since then he has been 
undergoing the sentence of life imprisonment. We are informed that 
he has undergone almost 11 years of imprisonment so far. It appears 
that as on date the appellant must be about 65 years of age. Almost 
half of his life lived so far has been spent undergoing the ordeal of 
the criminal prosecution. When a crime is committed, a variety of 
factors are responsible for making the offender commit the crime. 
Those factors may be social and economic, may be the result of 
value erosion or parental neglect; may be because of the stress of 
circumstances, or the manifestation of temptations in a milieu of 
affluence contrasted with indigence or other privations. 
86.	 In the facts of this case, more particularly keeping in mind the 
mitigating circumstances as stated above, we grant liberty to the 
appellant to prefer an appropriate representation addressed to the 
State Government praying for remission of sentence. If any such 
representation is filed by the
appellant, the State Government shall 
look into the same at the earliest and take an appropriate decision 
on the same in accordance with law within four weeks from the date 
of the receipt of such representation and communicate the same in 
writing to the appellant.
87.	 In the result, this appeal fails and is hereby dismissed in the aforesaid 
terms. 
88.	 Pending application(s), if any, also stand disposed of.
Headnotes prepared by: Divya Pandey
Result of the case: 
Appeal dismissed.