The case concerns the murder of Birendra Kumari,Balveer Singh’s wife, and the subsequent cremation of her body. The core of the appeal centers on the admissibility and reliability of child witness testimony, particularly that of the deceased’s seven-year-old daughter, Rani (PW6), and the application of circumstantial evidence and Section 106 of the Evidence Act in proving guilt. Supreme Court’s analysis of legal principles before ultimately restoring the Trial Court’s conviction.
(A) Penal Code, 1860, Section(s) 302, 201 and 34 – Evidence Act, 1872, Section 118 – Murder – Child witness – Appeal against acquittal – Appreciation of evidence – High Court, while setting aside the conviction, found the testimony of the child witness, Rani (PW6), to be unreliable and tutored – there is nothing on record to indicate that PW6 was a tutored witness – One finding of the Trial Court recorded in its judgment, wherein it has been noted that PW6 was cross examined at length for approximately 1.5 hours, and her demeanour throughout the same was believable, with nothing to indicate that she had been tutored or was deposing falsely – It also has taken note of the fact that in the entire cross examination no significant contradictions were found – Held that the High Court committed an egregious error in discarding the testimony of PW6.
(Para 25, 59)
(B) Penal Code, 1860, Section(s) 302, 201 and 34 – Evidence Act, 1872, Section 118, 165 – Murder – Child witness – Appeal against acquittal – Delay in examination u/s 161 Cr.P.C. – Tutoring of witness – Appreciation of evidence – High Court held that the police statement of the child witness, (PW6) under Section 161 of the Cr.P.C. had been recorded after a delay of more than 18-days, due to which the possibility of tutoring could not be ruled out, more particularly because PW6 at the time of recording of her statement was residing with PW3 i.e., the Complainant who was at inimical terms with the accused – No question in this regard was put to the IO so as to give him an opportunity to explain the reason for such delay – Even if the accused had failed in putting a question in regards to delay in examination of PW6, the presiding judge was duty bound to put this question to the IO in exercise of his powers under Section 165 of the Evidence Act – Since in the present case no question whatsoever was put to the IO to explain the reason for the delay in examination of PW6, we should not willingly jump to discard the testimony of PW6 on the ground of delay alone, and ought to be circumspect while scrutinizing the effect of such delay – There is nothing on record that would lead to the inference that the delay in recording the statement of PW6 was done deliberately in order to manipulate or concoct the case against the respondent accused herein, and rather such delay appears to be inadvertent with no sinister motive or design in mind – Statement of PW6 had been recorded on the same date as the statement of PW5 – If at all the investigating agency intended to allow the doctoring of the testimony of PW6 then it would have only delayed the examination of the child witness, (PW6) and not of PW5 as-well, thus this delay in examination appears to be attributable to the routine manner in which the IO proceeded with the course of investigation and the overall investigation inertia and not to give effect to any unfair practice – Impugned judgment and order of acquittal passed by the High Court liable to be set aside, and that of trial Court restored.
(Para 38,39, 43, 44 and 91)
(C) Evidence Act, 1872, Section 118 – Evidence – Child witness – Appreciation of evidence – Evidentiary valued – On the basis of case conclusion summarised as under: –
(I) The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly.
(II) As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him.
(III) Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion.
(IV) The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court.
(V) The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence.
(VI) The Trial Court must also record the demeanour of the child witness during the course of its deposition and cross-examination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others.
(VII) There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever.
(VIII)Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case.
(IX) Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.
(X) The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication.
(i) Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of Evidence Act.
(ii) Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the following two factors have to be established being as under: –
▪ Opportunity of Tutoring of the Child Witness in question whereby certain foundational facts suggesting or demonstrating the probability that a part of the testimony of the witness might have been tutored have to be established.
This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient.
▪ Reasonable likelihood of tutoring wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated. This may be done by leading evidence to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by cross-examining such witness at length that leads to either material discrepancies or contradictions, or exposes a doubtful demeanour of such witness rife with sterile repetition and confidence lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural.
(XI) Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness.
(XII) Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence.
The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness.
(Para 58)
(D) Circumstantial evidence – Appreciation of evidence – Held that although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows: –
(i) Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
(iii) The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.
(Para 61)
(E) Penal Code, 1860, Section(s) 302, 201 and 34 – Evidence Act, 1872, Section 106 – Murder – Circumstantial evidence – Appeal against acquittal – Appreciation of evidence – following circumstances emerging from evidence on record: –
a. The failure on the part of the respondent accused in not explaining in any manner as to what had actually happened to his wife i.e., the deceased or how she died on the fateful night of the incident, more particularly when he did not dispute that he was in the company of his wife at the relevant point of time. Though the respondent accused in his statement under Section 313 of the Cr.P.C. admitted that at the time of the incident everyone was sleeping in the house, yet, surprisingly, he maintained a complete silence in regards to the cause of death of the deceased.
- The unnatural conduct of the respondent accused in not informing the family members either about the death of their daughter or the cremation of her body, despite the fact that her family members were residing in the very same village.The fact that the respondent-accused after clandestinely cremating the deceased’s body fled away and could not be found either at the house or in the field where the body had been burnt as stated by PW3 and PW6, respectively, again raises suspicion about the cause of death of the deceased.
- The suspicious circumstances under which the deceased died coupled with the fact that the accused had a fight with the deceased two to three days before the incident; their strained relationship and the accused frequently treating the deceased cruelly, as deposed by PW3, PW4, PW5, and PW6, respectively, further raise concerns and points towards the involvement of the respondent accused in the alleged crime. This is corroborated by the certified copies of the maintenance case and the complaint lodged by the deceased, which were exhibited and read into evidence.
- It is also not the case of the respondent accused that the deceased was suffering from any ailment nor is there any evidence worth the name to suggest the possibility of her death occurring due to any health issue. Thus, in this regard, it was all the more important for the respondent accused to explain in what circumstances and in what manner his wife suddenly died on the fateful night of the incident. (Para 65)
(F) Evidence Act, 1872, Section 106 – Evidence – Burden of proving fact especially within knowledge – Held that Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him – The word “especially” means facts that are pre-eminently or exceptionally within the knowledge of the accused – The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act – Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act.
(Para 68)
(G) Evidence Act, 1872, Section 106 – Evidence – Burden of proving fact especially within knowledge – Held 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 – Section 106 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 – Section 106 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.
(Para 75 to 77)
(H) Evidence Act, 1872, Section 106 – Penal Code, 1860, Section(s) 302, 201 and 34 – Murder – Burden of proving fact especially within knowledge – Prime facie case – Held that the following foundational facts, duly established by the prosecution, justify the invocation of 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 respondent accused, the deceased and their 7-year-old daughter were living. The respondent accused has not disputed his presence in the house at the time of the alleged incident.
- b) The failure on the part of the accused to inform the family members about the death of their daughter and the clandestine manner in which her body was cremated, more particularly when her family members were residing in the very same village. By the time the Investigating Officer reached the place of incident the body of the deceased was fully burnt.
- c) The dubious conduct of the respondent accused in fleeing away from home leaving behind his minor daughter of seven years age all alone.
- d) The untimely death of the deceased in suspicious circumstances, occurring shortly after a fight with the respondent-accused two to three days before the incident, coupled with evidence of their strained relationship.
- e) The respondent accused maintained complete silence. In other words, has failed to explain any of the incriminating circumstances pointing a finger against him.
Aforementioned circumstances constitute more than a prima facie case to enable the prosecution to invoke Section 106 of the Evidence Act and shift the burden on the accused husband to explain what had actually happened on the day & date his wife died.
(Para 88)
(I) Evidence Act, 1872, Section 106 – Evidence – Burden of proving fact especially within knowledge – What is “prima facie case” (foundational facts) in the context of Section 106 of the Evidence Act? – 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 “prima facie” by 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 to prove, 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 – 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 – 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.
(Para 81 to 83)
State Of Madhya Pradesh V. Balveer Singh
Supreme Court: 2025 INSC 261: (DoJ 24-02-2025)
