2025 INSC 261
SUPREME COURT OF INDIA
(HON’BLE J.B.
PARDIWALA, J. AND MANOJ MISRA, JJ.)
STATE OF MADHYA
PRADESH
Petitioner
VERSUS
BALVEER SINGH
Respondent
Criminal
Appeal No. 1669 OF 2012-Decided on 24-02-2025
Criminal, Murder
(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.
b. 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.
c. 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.
d. 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.
e. 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)
JUDGMENT
J.B. Pardiwala, J.:-This appeal is at the
instance of the State of Madhya Pradesh and is directed against the judgment
and order dated 29.06.2010 passed by the High Court of Madhya Pradesh of
judicature at Gwalior in Criminal Appeal No. 524 of 2004 (‘Impugned Order’)
whereby the High Court allowed the appeal filed by the respondent herein and
acquitted him of the offence under Section(s) 302, 201 and 34 respectively of
the Indian Penal Code, 1860 (for short, the ‘IPC’).
A.
CASE OF THE PROSECUTION
2.
The deceased, namely, Birendra Kumari was married to the respondent accused. In
the wedlock, two sons and a daughter named Rani were born. Rani at the time of
the incident in 2003, was seven years of age.
i.
The Incident.
3.
On 15.07.2003 sometime during the midnight, Bhoora Singh alias Yashpal i.e.,
the complainant along with his father Bharat Singh; the maternal cousin brother
of the deceased’s father, heard cries and screams of the deceased coming from
the house of the accused. After some time, the screams of the deceased stopped.
At about in the morning, they learnt from the other inhabitants of the village
that the deceased had died during the night and that her body had been cremated.
4.
Accordingly, the complainant along with his father went to the Indar Police
Station at around 9:00 AM and lodged an unnatural death report / information
under Section 174 of the Code of Criminal Procedure, 1973 (for short,
the ‘Cr.P.C.’) in connection with the death of the deceased under suspicious
circumstances, which was registered in entry no. 404 of the general diary as
Morgue No. 07 of 2003 dated 16.07.2003. In the said report, the Complainants
stated that on the fateful night of the incident, at around 12:00 AM, they
heard the cries and screams of the deceased which eventually ceased. Shortly,
thereafter they saw the accused along with his family members cremating the
deceased in their field. It was further stated that when they went to the house
of the accused to inquire about the incident, the daughter of the deceased
(Rani) informed that her mother had died. The said unnatural death information
report reads as under: -
“Informant Bhoora @
Yashpal along with his companion father Bharat Singh came to the police station
and orally reported that tonight at around 12 o’ clock from the house of
Balveer Yadav of their village, the noise of her wife Virendra Kumari crying
and screaming were coming out, after some time, the noise stopped coming, thereafter,
around 3 o’clock in the night Balveer and his family members were cremating
Virendra Kumari in their field, then I went to Balveer’s house and inquired
from her daughter Rani why dear, what happened, then she told that Mummy has
died, then I got to know that Virendra Kumari has died, her body has been
burnt, therefore I am reporting that an investigation be conducted. The report
was read over and heard and has been written in the same manner as it was
stated.
Based on the aforesaid
statement, Marg No. 7/03 under Section 174 Cr.P.C. was registered,
taken under investigation, and the investigation was entrusted to ASI MP
Singh.”
5.
Upon receiving the information, enquiry was undertaken by ASI Mahendra Singh
Chauhan. In the course of the enquiry, it was revealed that the respondent
accused on the night of the incident had killed his wife i.e., the deceased in
the porch on the first floor by throwing her to the ground and thereafter
choking her neck with his leg. The enquiry further revealed that thereafter the
body was cremated in the night itself with the help of his sister, Jatan Bai.
6.
In view of the aforesaid, first information report bearing no. 142 of 2003
dated 20.07.2003 came to be registered against the respondent accused herein
and her sister, Jatan Bai for the offence punishable under Section(s) 302, 201
read with 34 respectively of the IPC. The relevant contents of the FIR are
reproduced below: -
“I am posted as
Station in charge at Police Station Indar. On 16/7/03, on the basis of
information received from Informant Bhoora @ Yashpal S/o Bharat Singh Yadav R/o
Village Singharai, Marg No. 7/03 was registered in the General Diary Entry No.
404 and taken under investigation. Its investigation was conducted by ASI
Mahendra Singh, on receiving the investigation report, it was attested by me,
where offence under Section 302, 201, 34 IPC were found
proven against Balvir Singh Yadav and Jatan Bhai, therefore, Crime No. 142/03
registered against both the accused under relevant offence sections and taken
under investigation. Copy of Marg Intimation and Inquiry Report is as follows:
Informant Bhoora @
Yashpal along with his companion father Bharat Singh came to the police station
and orally reported that tonight at around 12 o’ clock from the house of Balveer
Yadav of their village, the noise of her wife Virendra Kumari crying and
screaming were coming out, after some time, the noise stopped coming,
thereafter, around 3 o’clock in the night Balveer and his family members
were cremating Virendra Kumari in their field, then I went to Balveer’s house
and inquired from her daughter Rani why dear, what happened, then she told that
Mummy has died, then I got to know that Virendra Kumari has died, her body has
been burnt, therefore I am reporting that an investigation be conducted. The
report was read over and heard and has been written in the same manner as it
was stated. Sd/- Yashpal Singh. Based on above information, Marg No. 7/03
under Section 174 Cr.P.C. was registered and taken under
investigation and investigation was entrusted to ASI M.S. Chauhan.
Investigation Report – Respected SO Police Station Indar Subject: In relation
to the commission of offence under Section 302, 201, 34 IPC
on the investigation of Marg No. 7/03 Section 174 Cr.P.C., it is
stated that on the basis of order issued by his good-self, I ASI Mahendra Singh
conducted the investigation of Marg No. 7/03 under Section
174 Cr.P.C. after reaching the spot Village Singharai, during the course
of investigation, recorded the statement of complainant Bhoora @ Yashpal Singh
Yadav, Kumari Rani, D/o Balvir Singh Yadav, Bharat Singh Yadav R/o Village
Singharai and Badal Singh Yadav, Police Station Badarvas. On spot map of the
place of incident was prepared and seizure proceedings were conducted, from the
investigation up till now and the statement of Kumari Rani Yadav, it has been
found that Balvir Singh Yadav husband of the deceased Virendra Kumari murdered
her by slamming Virendra Kumari on the floor of the porch of the house and
choked her neck by pressing his foot and Kumari Jatan Singh helped her brother
Balvir Singh in the murder, later on, during the night itself, Balvir Singh
Yadav took the dead body of his wife on his shoulders to his field and
discreetly burnt it. Therefore, prima facie the offence under Section
302, 201, 34 IPC has been found to be proven against Balvir
Singh Yadav S/o Samadar Singh Yadav, Jatan Bhai D/o Samadar Singh Yada,
residents of Singharai. Therefore, it is requested, the investigation report
for further action along with case diary is forwarded to you. Mahendra Singh
ASI Police Station Indar.”
7.
In the course of the investigation, the statement of the complainant and his
father were recorded, spot map / site plan of the place of occurrence was
prepared along with the seizure memo for the bones and burnt bangles
found at the place of cremation of the deceased along with a plastic diesel
can in the presence of the complainant and the village watchman; Narain Singh.
Accordingly, on 22.07.2003 the respondent accused was arrested.
8.
Upon conclusion of the investigation, charge sheet was filed on 30.07.2003
against the respondent accused, Balveer Singh and the co-accused; Jatan Bai for
the offences Section(s) 302, 201 read with 34 of the IPC. On 03.08.2003,
the police statement of the child witness; Rani i.e., the daughter of the
respondent accused and deceased was recorded. The investigation revealed that
the co-accused at the time of incident was a juvenile, accordingly, her trial
was separated. The case against the respondent accused was committed for trial
to the Court of Session and registered as S.T. No. 197 of 2003. Charge was framed
against the respondent accused for the offence enumerated above by the Addl.
Session Judge to which the respondent accused pleaded not guilty and claimed to
be tried.
ii.
Oral Evidence on Record.
9.
The prosecution examined a total of 8 witnesses in support of the charge. Narain
Singh (PW2) the watchman of the village was examined as a panch witness to the
seizure memo and for establishing the accounts of the fateful night of the
incident. Bhoora Singh alias Yashpal (PW3) and Bharat Singh (PW4) were examined
to establish the chain of events when the incident occurred along with
Badal Singh (PW5), the father of the deceased to prove the harassment caused by
the respondent accused towards his deceased wife. Rani (PW6) the daughter of
the respondent accused and the deceased was examined as the sole eye-witness to
the incident. Mahender Singh Chauhan (PW7) and Rajender Kumar Chhari (PW8) were
examined to prove the contents of the unnatural death report, the FIR and the
seizure memos. Mahesh Kumar Mishra (PW1) the Patwari of the village was also
examined to establish the place of occurrence and cremation of the deceased.
10.
Rani (PW6), the daughter of the accused and deceased and the sole eye- witness
to the incident deposed that on the fateful night of the incident, the deceased
was sleeping in the open courtyard of the house. She deposed that at that time,
the deceased, her two infant brothers and her aunt Jatan i.e., the co- accused
were present in the house. At that time, the respondent accused came and grabbed
the deceased from her neck and hit a blow on her body with a stick causing her
to fall. Thereafter, the respondent accused exerted pressure on her neck with
his feet and as a result the deceased screamed for help. When she ran to help
her mother, the respondent accused slapped her and the co- accused pulled her
away. She deposed that she did not witness what happened next but later she saw
her mother dead and her body being taken by the respondent accused to the barn.
She further deposed that early in the morning she found the body of her mother
burning. She deposed that she had informed
Bhoora Singh (PW3) in the morning that the
deceased had been killed. In her cross examination, she denied the suggestion
of being tutored at the instance of PW3 or PW4. She denied that Bhoora Singh
and Bharat Singh had told her to repeat or memorize the police statement given
by her. She admitted not having told the police about the respondent hitting
the deceased with a stick before attempting to choke her. She further denied
the suggestion that the deceased was suffering from ailment, clarifying that
her mother had fallen sick only once i.e., three-months before the incident
took place. She further revealed that when her mother asked the respondent
accused to take her for treatment, the accused hit her. Apart from this,
nothing substantial was elicited through her cross-examination.
11.
Mahesh Kumar Mishra (PW1), the village patwari deposed that he had assisted the
police in preparation of the site-map of the place of incident and identified
his signatures on the same. In his cross, he stated that there are around 5-6
houses between the house of the Complainant and the accused. He further stated
that there is also a Basti between the two houses where approximately 100
people live. In the last, he admitted that cremations are often done by the
people of the village in their own fields or barns, wherever they find space.
Apart from this, nothing substantial could be elicited from his
cross-examination.
12.
Narain Singh (PW2), the village chowkidar deposed that when the police checked
the verandah of the deceased, they could find nothing and that the bangles
belonging to the deceased were recovered and collected from the place where the
body was burnt. He identified his signatures on the seizure memo drawn of the
ashes, bones and bangles belonging to the deceased as-well as a green coloured
diesel cannister. In his cross, he stated that the house of the Complainant is
5-6 furlongs away from the accused’s house making it impossible for any noise
of shouting to travel between them. He further admitted that there are houses
of 150 people approx. between the two places. In his cross he also stated that,
4-5 years ago, there had been a dispute between the complainant and the accused,
because of which they were not on talking terms. He also deposed that there is
no designated area for cremation, and people usually hold it in their own
fields. In the last, he also admitted that when he went to the house of the
accused, nothing incriminating was noticed.
13.
Bhoora Singh (PW3) deposed that the respondent accused and the deceased got
married sometime in 1990 but their relationship turned sour about a year later.
He deposed that the respondent accused had demanded a motorcycle, for which the
deceased’s father i.e., PW5 had arranged a certain sum of money. He further
deposed that the deceased had also previously instituted a case seeking
maintenance from the accused. He deposed that he lived near the house of the
deceased and the accused and that on the fateful night of the incident, he
and his father heard the cries and screams of the deceased for about an hour,
and assumed that there had been a quarrel between the two. When the screams
stopped, they thought that the altercation had ended. However, the next morning
they came to learn that the deceased had died in the night and that her body
had been cremated in the accused’s field. When he along with his father reached
the spot where the body of the deceased was burning, the other inhabitants of
the village gathered around. He deposed that the cremation of the deceased was
unusually suspicious as typically the entire village would be called to attend
the cremation, which was not the case here. He also recounted that two-three
days before the incident, he had met the deceased who in turn had requested him
to inform her father that there had been a fight between her and the accused.
In the last, he deposed that, when the police reached the place of incident,
they collected the ashes and remains of the deceased, her bangles and a diesel
canister. In the cross, he denied the suggestion that he could not have heard
the cries of the deceased due to the distance between their houses, and stated
to have heard the screams between 12:00 to 1:00 AM. He admitted not calling the
other village inhabitants upon hearing the screams as it was common for the
accused and the deceased to often fight. He denied having gone to the house of
the accused at 3:00AM in the night and further denied stating so when confronted
with his statement recorded in the morgue enquiry proceedings. He deposed that
he came to know that the deceased had died only in the morning after he was
informed by other people residing in the village at around 5:00 AM. He
further deposed that when he reached the spot at around 6:00 AM with his
father, the accused was not present however, he noticed that the other village
inhabitants had already gathered. He admitted that he was not able to remember
their names. He further deposed that the body of the deceased had been burned
in the night itself but admitted not knowing who was responsible for it. He
deposed that he only saw the burnt body of the deceased in morning and further
admitted that none of the other villagers raised any issue. He stated that he
met the daughter of the deceased i.e., PW6 after returning from the field. He
in the last denied the suggestion that he was falsely deposing on account of an
ongoing enmity.
14.
Bharat Singh, PW4, deposed that withing two years of marriage the relationship
between the deceased and accused turned sour. The accused would often harass
the deceased with demands for dowry. The accused had already obtained a ring
and a sum of money for a motorcycle from her father. He further deposed, that
on the date of incident, they had heard cries and screams of the deceased in
the night. When the screams eventually stopped, he along with his son went off
to sleep. Later they came to know that the deceased had been killed. He deposed
that they saw the wood and ashes lying near the field of the accused from a
distance. He deposed that they then went to the police to file a report, after
which he spoke to the deceased’s daughter who informed that the accused
had killed the deceased. In the last, he deposed that usually cremation is not
performed during the night hours and that all the inhabitants of the village
would join the funeral. However, that was not the case and the accused
surreptitiously burnt the body of the deceased on the fateful night of the
incident. In his cross when confronted with his police statement, he denied the
suggestion that he had not stated before police about the ring given to the
accused. He admitted that he had not personally seen the money being given to
the accused and rather had only heard about it from PW5. He acknowledged that
there are a couple of houses between his place and the accused’s house. He
further admitted that, he could not identify whose screams they heard on the
night of the incident, but later came to know from other villagers that it was
the deceased. He denied the suggestion that he and his son had gone to the
accused’s house at night and reiterated that they learnt about the incident
only in the morning. He further admitted to have only seen the wood pyre
burning from a distance and as such was unable to recollect who all had
gathered. He deposed that he had spoken to the deceased’s daughter, after they
brought the police with them, who then recorded his statement along with the
statements of PW3 and PW6 respectively. He further denied the suggestion that
there was no designated crematorium in the village. He also denied the
suggestion that he was deposing falsely due to the strained relations with the
accused, however, he admitted that two to four months before the incident, although
the accused had stopped visiting him yet he used to meet the accused’s
father occasionally. Apart from this, nothing substantial was elicited from his
cross-examination.
15.
Badal Singh, PW5 deposed that the accused had made demands for a motorcycle
within 10-12 days of the marriage, for which he gave him a sum of Rs. 45,000/-.
He further stated that the accused initially took care of the deceased but
later began harassing her to the extent he used to beat her. He stated that he
had filed a case against the accused when he had threatened to kill the
deceased, and further identified the certified copy of the same in the
exhibits. He also deposed bringing medicines and food for the deceased. He had
also filed a maintenance case and identified the certified copy of the same in
the exhibits. He deposed that on the day of the incident, the deceased had
already been cremated by the time he arrived. In the cross, he admitted not
mentioning to the police about the gold ring given towards dowry as it was a customary
practice. He further deposed that on one occasion the accused had beaten the
deceased in front of the PW3 & PW4 respectively, which had prompted them to
take her to the police to lodge a complaint. He admitted that there is a
village settlement or basti of approximately 100 lodgings between the house of
the Complainant and the accused. He admitted that his relationship with the
accused had strained due to the latter’s constant demands and torturing of the
deceased. Apart from this, nothing significant could be elicited through his
cross-examination.
16.
Mahendra Singh, PW7, the Assistant Sub-Inspector (ASI), stated in his
deposition that on 16.07.2003 he was entrusted with the investigation of case
under Morgue No. 07/2003. He further stated, that later on the same day, he
prepared the site-map of the place of incident based on PW6’s indications. He
further seized and sealed pieces of broken bangles belonging to the deceased
and the soil near the place of occurrence. He deposed that he then reached the
field where the body of the deceased had been burnt, and collected her remains
in the form of ashes and burnt pieces of bangles along with a diesel cannister.
He further deposed that he then proceeded to record the statements of PW3, PW4,
PW5 and PW6 respectively. In the last, he deposed that after the investigation
he prepared a report prima facie opining that the deceased had died under
suspicious circumstances and thereby suggesting the commission of offence under
Section(s) 302, 201 read with Section 34 of the IPC by the accused
persons. He further deposed that he accordingly handed over the report along
with the morgue case diary to PW8, the Sub-Inspector, for further action. In
his cross, he admitted that the statements recorded during the morgue enquiry
were not produced along with the challan as he had carried out investigation
only till 17.02.2003 after which the investigation was undertaken by PW8. He
further admitted that he did not record the statements of both the brothers of
PW6 as they could not be found. Apart from this, nothing substantial could be
elicited through his cross-examination.
17.
Rajendra Kumar Chhari, PW8, the Sub-Inspector (SI), deposed that upon
completion of the investigation of case under Morgue No. 07/2003, he registered
the First Information Report (FIR) as Crime No. 142 of 2003 against the accused
persons. He further stated that during the investigation, he recorded the
statements of PW3, PW4, PW5 and PW6 respectively, and that he neither added nor
deleted anything from their police statement. In his cross, he stated that the
statements recorded in morgue case diary by PW7 were handed over to him. He
further admitted that the statements of PW6 Rani and her two younger brothers
were not recorded during the morgue enquiry as well as in the course of the
investigation as they were just 3-4 years old and found to be not competent. He
further stated that the police statement of PW6 had been recorded on 03.08.2003
at the house of her maternal grandfather i.e., PW5. When confronted with the
contradiction brought on record in PW3’s testimony with his police statement,
he stated that the PW3 had categorically stated in his police statement
visiting the house of the accused at night and inquiring with PW6 as regards
her mother’s death and thus proving the said contradiction. He further admitted
in his cross, that PW4 had not mentioned anything about the accused taking a
ring from the deceased’s father in his police statement. He also admitted, that
PW6 in her police statement had neither mentioned that the accused hit the
deceased with a stick nor was any such stick recovered. However, he confirmed
that PW6 in her statement had
mentioned about the accused placing his leg on
the neck of the deceased, but admitted that she did not use the word ‘shoe’ or
indicate whether the accused was wearing one. Nevertheless, he reiterated that
PW6 had mentioned in her statement that she was sleeping with the deceased in
the veranda and that the accused had placed his leg on the neck of the deceased.
In the last, he further admitted that PW6 had not stated in her police
statement that the accused’s mother had mixed something in the food and had
offered it to the deceased.
18.
Upon completion of the recording of oral as well as documentary evidence, the
further statement of the accused was recorded under Section 313 of
the Cr.P.C., in which he claimed himself to be innocent and had been falsely
implicated in the alleged crime. When asked about PW6’s testimony that she saw
him reach the courtyard where the deceased was allegedly sleeping and the
incident took place, the respondent accused answered that all the family
members were sleeping inside the house. When questioned about PW6’s deposition
that she saw him pressing the deceased’s neck with his leg on the night of the
incident, the respondent accused answered that it was wrong. Similarly, the
respondent accused refuted the PW6’s deposition that she saw the deceased die
at the spot and later found her body cremated the following morning, and
dismissing it as wrong. The relevant extracts of the respondent accused’s
further statement read as under:-
“Que. No. 25: Witness Rani (PW-06) states that
Birender Kumari was her mother you are her father. What do you want to say?
Ans: It is right.
Que. No. 26: This
witness further states that on the day of incident her mother was sleeping in
the corridor and this witness was not sleeping by that time. You came from the
Khera in the night. What do you want to say?
Ans: It is wrong.
Que. No. 27: This
witness further states that she was sleeping nearby in the Tibbara. What do you
want to say?
Ans: It is wrong.
Que. No. 28: This
witness further states that you caught 8 Birender Kumari from her neck. Then
her mother rant towards the door. You attempted a blow of Lathi on her which
hit her on her back so her mother fell down. Then you caught her mother from
the neck. What do you want to say?
Ans: It is wrong.
Que. No. 29: This
witness further states that her mother had fell down in the Dehri and you kept
your leg on her neck. You were wearing shoes. What do you want to say?
Ans: It is wrong.
Que. No. 30: This
witness further states that her mother said, “Rani save me”. So, this witness rant
towards here and you slapped on her cheek. What do you want to say?
Ans: It is wrong.
Que. No. 31: This
witness further states that then her Bua Jatan caught this witness. What do you
want to say?
Ans: It is wrong.
Que. No. 32: This
witness further states that you 9 reached in the courtyard and Bua was also
sleeping in the courtyard at that time. What do you want to say?
Ans: All were sleeping
in the house.
Que. No. 33: This
witness further states that her mother died on the spot. She saw the dead body
of her mother. What do you want to say?
Ans: I don’t know.
Que. No. 34: This
witness further states that you took the dead body of her mother in the Kher
during the night to cremate her and after cremating her you fled away from
there. What do you want to say?
Ans: It is wrong.
Que. No. 35: This
witness further states that you caught her mother before this witness and when
she went to the field in the morning her mother was burning there. What do you
want to say? Ans: It is wrong.
xxx xxx xxx Que. No.
48: Why do the witnesses speak against you? Ans: They are afraid of the police.
Que. No. 49: Do you
want to adduce defence witness? Ans: Yes, Sir.
Que. No. 50: What do
you want to say in defence?
Ans: I am falsely
implicated in the case.”
iii.
Trial Court’s Judgment & Order.
19.
Upon appreciation of the oral as well as documentary evidence on record, the
Trial Court vide its final judgment and order dated 09.08.2004 passed in Sessions
Trial No. 197 of 2003 reached the conclusion that the respondent accused herein
was guilty of the offence punishable under Sections 302, 201 read with 34 of
the IPC. The findings recorded by the Trial Court in its judgment and
order of conviction can be better understood in five parts: -
(i) First, it took
note of the fact that the deceased was cremated in the night itself without
informing her family members and the villagers too. This fact stood proved
through the testimony of PW6 who had deposed to have seen the accused take the
deceased away. The Trial Court believed the version of the PW3 and PW4 who
later found the body of the deceased burning in the field of the accused in the
morning and also the say of the PW7, the ASI who conducted the inquest enquiry.
The clandestine manner in which the body of the deceased came to be cremated
was taken by the Trial Court as one of the incriminating circumstances against
the accused establishing the death of the deceased was not natural. The Trial
Court considered the strained relations of the accused with the deceased.
Another incriminating circumstance against the accused that was looked into was
the fact that the accused fled away from the place of incident after cremating
the deceased. The relevant observations read as under:-
“13. In evidence this
fact is proved that the deceased Birender Kumari who is the wife of the
accused, her cremation was done in the night in the fields of Samunder Singh
and in evidence it has come that without informing the villagers or the family
of the deceased she had been cremated.
xxx xxx xxx
20. [...] The witness
has stated that when her paternal aunt caught hold off her, after that she does
not know what happened to her mother. She had seen her mother dead. Her father
took her mother to the fields to burn her body which is at a little distance
from the house. In the night itself her other was burnt after which her father
ran away. The witness has stated that in her presence only her mother had been
taken away but she was not burnt in her presence.
When she went to the fields in the morning at
that time her mother was burning there. [...]
xxx xxx xxx
22. PW-3 Bhoora has
stated that Birender Kumari is his .. sister being the daughter of his maternal
uncle. On the day of incident in the night he and his father were sleeping in
their house upon which they had heard voices of Birender Kumari crying. [...]
In the morning when he and his father got up then they came to know that
Birender Kumari has died and that she has been burnt by the accused
clandestinely in their fields itself. When he and his father and the entire
village went to see then the dead body was burning which fact is confirmed by
Bharat Singh also. [...] The accused used to harass and the motorcycle had not
been given. He used to give beatings upon which the deceased used to come to
him. Once the accused beat her very badly and did- not give her anything to eat
also. Upon whiCh she had filed a case of maintenance in the JMFC Court, Kolaras
of which the certified copy is Ex.P-8. The girl had been given beatings, the
true copy of which report is Ex.P-9.
xxx xxx xxx
25. The deceased
Birender Kumari in the night itself was taken to the fields and she was
cremated which fact is confirmed apart from PW-3 Bhoora and PW-4 Bharat Singh,
from the statement of Mahender Singh also that after the enquiry of report
Ex.P-7 he had gone on the spot. The dead body of deceased Birender Kumari which
was burnt in the fields of Balvir and Samunder Singh in which the bones of the
deceased, her ashes and the burnt pieces of bangles were seized from the spot.
xxx xxx xxx
29. The accused had
carried Birender Kumari to the fields in relation to which direct evidence has
not come. It has come in the statement of Rani that the accused took her mother
to the fields and Jatan had told that her mother had been taken for cremation.
In the fields the deceased was cremated in the night which circumstance also
goes against the accused. If the death of deceased Birender Kumari was of
ordinary nature then what was the reason that in the night without informing
the reason to the family of the deceased she was cremated in the night
especially when prior to the incident itself the mutual relations of the
accused and deceased were not good and according to Ex.P-8 & P-9 the case
in relation to not giving beatings and maintenance had been filed by the
deceased in the Court. Another circumstance which indicate the involvement of
the accused in the incident is that after cremation, according to Bhoora and
Bharat the accused was not present in the fields. It has also come in the
statement of Rani that accused and Jatan had fled from the spot. According to
the arrest memo the accused has been arrested on 22.08.03. If in actual the
accused was innocent then he would not have cremated the dead body of his wife
clandestinely in the night without informing anyone nor he would have fled from
the spot.”
(Emphasis
supplied)
(ii) Secondly, the
Trial Court in order to ascertain how and in what manner the incident had taken
place which led to the death of the deceased, accepted the testimony of PW6 to
be true, trustworthy and reliable. The Trial Court believed the version of PW6
that her mother was sleeping in the courtyard, when the accused came and caught
hold of her. The deceased tried to escape but fell down upon which the accused
compressed her neck with his leg. The Trial Court recorded that PW6 had in
clear terms categorically deposed that she saw her mother die on the spot
itself, however had no idea what transpired thereafter except that the accused
carried her body to the field. The relevant observations read as under: -
“19. Now it has to be seen whether according
to the version of the prosecution what incident had taken place in the room of
the accused and in what manner the incident took place, in relation to it the
evidence which has been led from it whether the version of the prosecution can
be believed or not?
20. Rani (PW6) aged
about is aged about 7-8 years and is the daughter of deceased and accused. This
witness has stated in her chief that on the date of incident she was sleeping
with her mother and brothers Sandeep and Chotu. Her mother was in the courtyard
and she herself was sleeping in the open room. The accused caught hold off her
mother by her neck upon which her mother ran towards the door upon which her
father· caught hold off her and L gave a lathi blow to her mother which landed
on her back. Her mother fell down upon which, her father caught hold off the
neck of her mother. Her mother fell on the threshold. Her father put his leg on
the neck of her mother. Her mother shouted "save me Rani" upon which
she ran to save her but her father / accused gave her a slap. Her Bua/paternal
aunt caught hold off her. The witness has stated that when her father came at
the courtyard, at that time her paternal aunt was also sleeping in the
courtyard and she does not know what happened after it. The police had come in
the morning. Her mother had died there itself. The witness has stated that when
her paternal aunt caught hold off her, after that she does not know what
happened to her mother. She had seen her mother dead. Her father took her
mother to the fields to burn her body which is at a little distance from the
house.”
(Emphasis
supplied)
(iii) Thirdly, the
Trial Court found that although there had been a delay in recording the
statement of PW6 under Section 161 of the Cr.P.C., yet the same, by
itself, cannot be a ground to reject or doubt her testimony as an afterthought
or unbelievable. No question was put by the accused to the IO in this regard
nor any suggestion was put to the IO that he deliberately recorded as
belated statement only to create evidence against the accused. It further noted
that the testimony of both the PW5 as-well as PW6 had been recorded on the same
day. The Trial Court observed that even before recording of statement of PW6,
the morgue case No. 70/2003, the enquiry report and the FIR had mentioned PW6
as the main witness to the incident. Thus, it held that it cannot be said that
there was any attempt to falsely project her as an eye-witness to the incident.
The relevant observations read as under: -
“18. [...] In his
cross examination the witness has stated that the IO investigating the morgue
had given the morgue diary with the enquiry report. The-statement of Rani has
been recorded by the IO on 03.08.03. On the same day the statement of his
maternal grandfather PW-5 Badal Singh had also been recorded the statement of
both of them had been recorded in the house of Badal Singh. The registration of
the case on the morgue enquiry report after delay by the IO or in relation to
the recording of the statement of Rani after delay on 03.08.03 no questions
have been put. Therefore, only on this ground that the IO recorded the
statement of Rani on 03.08.03 and that her statement is an afterthought and on
the basis of it the accused is not guilty, this statement is not believable and
I do not agree with this argument. [...] in relation to the IO recording the
statement of Rani after delay no question has been put, therefore, no benefit
from the same can be given to the IO. [...] There are no such facts in the
evidence that the IO deliberately recorded the statement of Rani after delay
under section 161 Cr.P.C., so that she may be projected as an eye
witness as is mentioned in the morgue intimation Ex.P-7, morgue enquiry Report
Ex.P-11 and the FIR Ex.P-12 that Rani is the main witness in the incident.”
(Emphasis
supplied)
(iv) Fourthly, the Trial Court upon evaluation
of the testimony of PW6 found the same to be reliable and inspiring confidence.
It found that the presence of PW6 as an eye-witness to the incident was natural
and believable, as it is common for a child of her age to be sleeping with her
mother in the night. It further noted that the PW6 had been cross examined at
length for approximately 1.5 hours, and her demeanour all throughout was observed
and the same suggested that she was not tutored or deposing falsely. In the
absence of any contradictions in the form of material omissions, her testimony
cannot be discarded solely because she resides with her maternal grandfather or
that she hates the accused. It further found that although the statement given
by her during the morgue enquiry had not been produced by the prosecution, yet
the same, by itself, is not fatal as no demand had been made by the accused to
bring the same on record. Moreover, the Trial Court found that in both morgue
inquiry report and the FIR the factum of PW6 stating that the accused killed
the deceased by putting his leg on her neck is clearly recorded. The relevant
observations read as under: -
“17. First of all Rani
was present on the spot and whether she is actually an eye witness to the
incident, this fact has to be seen. In the statement of Rani in para no.1 it
has come that Birender Kumari was her mother. On the day of incident her mother
was sleeping in the courtyard and near her in open room this witness was
sleeping. This witness has stated that she has two younger brothers of whom the
elder is Sandeep who used to sleep with Jatan and the younger is Chotu who used
to sleep with her mother and she used to sleep alone. At the time of
incident her mother was feeding milk to her younger brother when her father
came. Rani was present with her mother on· the date of incident. There appears
to be no reason to disbelieve her ·statement which is natural that a minor
child was sleeping with his mother in the night.
18. The statement of
Rani during investigation was recorded by PW-7 Mahender Singh. It is correct
that the statements recorded during morgue enquiry have not been produced in
evidence but Mahender Singh during his cross has stated that in the statement
during morgue enquiry which he had recorded, his police diary is with the
police.
On behalf of the
accused no demand has been made for the bringing on record of those statements
in the case diary that statement is annexed according to which the statement of
Rani has been recorded on 16.02.2003. After that on the morgue enquiry report
the crime was registered on 20.02.2003. As has been stated by PW-8 Rajender
Chhari that after recording the FIR Ex. P-12, its copy was sent to JMFC,
Kolaras U/s 157 Cr.P.C. which is Ex.P-13. This fact has not been
challenged during cross examination.
xxx xxx xxx
27. Here it will be
proper to mention that PW-6 Rani has been cross examined at length and
according to the record her statement was started at 12:45PM and she was cross-
examined till 02:30PM and her cross examination no such fact has come which may
warrant that she has deposed falsely or that she has been tutored. She has been
found to be present on the spot. [...] there are no clear contradictions in the
statements of PW-6 Rani. Her evidence appears to be believable. Her present on
the spot and the circumstances of the incident are substantially proved. Only
on the ground that the Rani resides with her maternal grandfather and hates her
father and does not want to reside with her and after the death of mother she
is residing with her maternal grandfather only, her statement cannot be
disbelieved. The statement of Rani was recorded immediately after the incident
at the time of morgue enquiry which fact is proved from evidence. Even if on
behalf of the accused her statement has not been called in evidence, after that
the statement of Rani was recorded during the investigation on 03.08.03 as
it has come alone. The reason of delay has not been asked from the IO . Only on
that ground her statement given in the Court cannot be disbelieved.
28. The statement
given by Rani in the Court where the incident is stated to have taken place and
the manner in which the accused caused the death of Birender Kumari, there is
no reason to disbelieve the same. It is correct that Bhoora was not told by
Rani that the death of Biren·der Kumari has been caused by the accused or that
in what manner, her death was caused but in the morgue enquiry report, FIR and
statement section 161 Cr.P.C. Rani had stated the manner in which the
accused put his leg on the neck of the deceased and caused her death which fact
is confirmed from the statement of Rani given in the Court.”
(Emphasis
supplied)
(v) Lastly, the Trial
Court also found the testimony of PW6 to be sufficiently corroborated with the
other materials on record. It noted that the version of PW6 that the deceased
stopped screaming after the accused pressed her neck with his leg is
corroborated with the testimony of PW3 and PW4 respectively. Similarly, her
version, that in the morning she told PW3 that the deceased had been killed and
that she had found the burnt bangles of the deceased stands corroborated with
the testimony of PW3. The relevant observations read as under: -
“16. [...] It is clear
that on the statement of a child witness reliance should not be placed in the
absence of corroboration. In relation to the statement of a child witness the
real test is that as to what extent a child witness remains constant on his
statement and in what manner a child witness faces the cross-examination and
what extent the statement given by him find a suitable place in the
other evidence and the circumstances of the case. In view of these
principles the investigation of the evidence given by PW-6 Rani is necessary.
xxx xxx xxx
20. [...] When she
went to the fields in the morning at that time her mother was burning there.
The witness has also· stated that she had met Bhoora who is the nephew of the
maternal grandfather upon which she had told him that "mother has been
killed". She had told this fact to Bhoora in the morning when the police
had come. The witness has stated that the bangles of her mother were lying in
the courtyard. [...]
xxx xxx xxx
26. Rani has also
stated that the accused on the day of incident after putting his leg on the
neck of mother had pressed it and she had seen her mother dead, upon which
there is no reason to disbelieve the same. From the statement of PW-7 Mahender
Singh as it has come above, he had recorded the statement of Rani during morgue
enquiry and it has come in para 4 of the statement of Bharat Singh that the
police had talked with Ranj- and had recorded her statement on the same day.
This statement of Rani that she told to Bhoora that her mother has died is
confirmed from the statement of Bhoora. [...] The statement of Rani that when
her mother had stopped screaming, this fact is confirmed from the statements of
Bhoora and Bharat also that in the night the cries of Birender Kumari was heard
and after sometime the voice has stopped.”
(Emphasis
supplied)
20.
Accordingly, the Trial Court vide its judgment and order dated 09.08.2004 in ST
No. 197 of 2003 held that the prosecution had succeeded in proving its case
beyond a reasonable doubt, and convicted the respondent accused for
the offence punishable under Sections 302, 201 read with 34 of
the IPC. The operative portion of the order reads as under: -
“30. In view of the
abovementioned entire facts Rani who is the eye witness of the incident and in
view of the circumstantial evidence in which the deceased has been cremated,
the prosecution has succeeded in proving its case the accused Balvir pressed
the neck of his wife with his leg due to which she died and in order to hide
that evidence he along with the co accused went to the fields with the dead
body of the deceased Birender and cremated her without informing anyone.
xxx xxx xxx
32. In view of the
abovementioned facts I find the accused guilty of the offence punishable under
section 302 read with section 201/34 IPC. In order to hear the
accused persons on the question of sentence, at this stage the decision is
deferred.”
21.
The Trial Court sentenced the accused to undergo rigorous imprisonment for life
with fine of Rs. 1,000/- for the offence punishable under Section
302 IPC and four years of rigorous imprisonment along with fine of Rs.
2,000/- for the offence punishable under Section 201 of the IPC.
B.
IMPUGNED ORDER
22.
The accused convict being dissatisfied with the judgment and order passed by
the Trial Court, went in appeal before the High Court by way of Criminal Appeal
No. 524 of 2004. The High Court vide its impugned final judgment and order
dated 29.06.2010 allowed the appeal and acquitted the respondent accused. The
impugned judgment and order of the High Court is in three-parts.
In other words, the High Court allowed the
appeal of the accused and set aside the Trial Court’s order of conviction on
three grounds: -
(i) First, the High
Court held that although PW6 was found to be competent to depose, yet her
testimony appeared to be very shaky not inspiring confidence, more
particularly, in view of the inordinate delay of 18-days in recording her
police statement under Section 161 Cr.P.C.
The High Court took
the view that the Investigating Officer (for short, the “I.O.”) was aware that
PW6 was a very important witness, yet for reasons unknown, her statement was
not recorded immediately. Considering the delay, the High Court took the view
that the possibility of tutoring cannot be ruled out, more particularly, since
PW6 was at that time residing with PW3 i.e., the Complainant who is at inimical
terms with the accused. It also held that even in the morgue inquiry report,
PW6 never mentioned anything that would point a finger against the accused
herein, thus, reinforcing the fact that PW6 had been tutored, as otherwise she
would have mentioned about the accused killing the deceased in the said report,
and this explains why PW6 had earlier simply stated that “her mother had died”.
The relevant observations read as under: -
“15. In the present
case, from the testimony of the sole eye- witness Rani who has been examined as
PW6 and who is daughter of the deceased and appellant, it is borne out that at
the relevant point of time her age was seven years. We have no scintilla of
doubt that the child witness is competent witness and his/her evidence
cannot be thrown out just like a waste paper in a dustbin, merely because the
witness happened to be a child witness, but, it is equally true that the
testimony of the . child witness should be found to be clear, cogent and
trustworthy and he or she should not have been tutored or her testimony should
not be unnatural. By keeping this proposition in our mind we would like to scan
the testimony of this witness Rani (PW.6).
16. [...] The case
diary statement of this witness (Ex.D.2) was recorded on 3.8.2003 viz. after 18
days of the incident.
At this juncture, we
would like to mention that on the very next date of the incident i.e. 16.7.2003
it already came into the knowledge of the investigating agency that after
enquiring the incident by complainant Bhura alias Yashpal (PW.3) from this
child withess the merg report (Ex.P. 7) was lodged at 9:45 AM. Hence, why the
statement of this witness was not recorded earlier to it, we are unable to
digest. The case diary statement (Ex.D.2) of this witness was recorded after
considerable long period on 3.8.2003, and hence, it cannot be ruled out that
this child witness was tutored particularly when she was residing with her
maternal uncle and it is borne out from the testimony of complainant Bhura
alias Yashpal (PW.3) who is also the maternal uncle of this witness that they
are in inimical terms with the appellant.
17. [...] Since it is
borne out from the testimony of complainant Bhura alias Yashpal (PW.3) that
there is enmity between appellant and his in-laws and the case · diary
statement (Ex.D.2) of Rani (PW.6) was recorded on 3.8.2003 at the residence of'
her maternal grandfather, according to us, the possibility of tutoring her
cannot be ruled out, and therefore, according to us, it would be hazardous to
place reliance on the statement of this witness and to convict the appellant on
her solitary statement. [...]
xxx xxx xxx
19. [...] Bhura alias
Yashpal (PW.3) (who is in inimical terms with appellant) has stated in the merg
report that he saw appellant and his family members cremating the deceased at
3:00 in the late night and thereafter he went to the house of the
appellant and enquired from the child witness Rani (PW.6) that what has
happened and this much only was told by her that her mother had died. Nowhere
in the merg report it has been mentioned that Rani (PW.6) has stated anything
accusing the appellant since it did not find place in the merg report. For this
reason also we find that if the case diary statement (Ex.D.2) of Rani (PW.6)
was recorded on 3.8.2003 she was already tutored because if she would have
stated of the same night that appellant had killed the deceased, certainly this
fact should have· been mentioned in the merg report.”
(Emphasis
supplied)
(ii) Secondly, the
High Court observed that although the police had recorded PW6’s statement
during the morgue inquiry immediately after the incident, yet the accused never
came to be arrested on the strength of the said statement. It further observed
that the respondent accused came to be arrested on 22.08.2003, only after the
statement of PW6 had been recorded under Section 161 of the Cr.P.C.
on 03.08.2003. This according to the High Court indicates that prior to
03.08.2003 there was no evidence against the accused sufficient enough to
effect his arrest. This necessarily would lead to a legitimate inference that
the statement of PW6 recorded during the morgue enquiry must have been
unfavourable to the prosecution & therefore, was suppressed during the
trial. The relevant observations read as under: -
“17. In the present
case the appellant was arrested on 22.8.2003 as it is borne out from the
judgment of the learned Trial Court, and therefore, according to us till
3.8.2003 thee was no material and evidence against the appellant with the
investigating agency to arrest him. It is borne out from the testimony of the
investigating officer that the merg statements were recorded and, according to
us, since the appellant was arrested only on 22.8.2003 and earlier to the
statement recorded under section 161 of Cr.P.C. of Rani (PW.6) on
3/8/2003, there was no evidence against the appellant with the investigating
agency, and therefore, in these state of . affairs, according to us, the merg
statements were quite relevant and the same have been suppressed by the investigating
agency because they must be, against the prosecution. [...]”
(Emphasis
supplied)
(iii) Lastly, the High
Court held that apart from the oral evidence of PW6, being unreliable there
were other reasons to extend the benefit of doubt to the accused, more
particularly the contradictions in the form of material omissions in the
testimony of PW3 and the fact that he was at inimical terms with the accused.
It observed that the PW3 when confronted with his statement in the morgue
report, he denied having stated that he went to the house of the accused at
3:00 AM in the night.
He had further stated
that during the cremation of the deceased, the other inhabitants of the village
were also present and that none of them entertained any doubt over the death of
the deceased nor did he interact with the accused. Thus, the High Court took
the view that it was difficult to hold that the deceased had been cremated in
the night or that she had been killed by the accused. Furthermore, placing
reliance on the testimony of PW1 and PW2, the High Court held that it is
equally difficult to hold that the Complainant could have heard the
screams of the deceased, particularly considering the distance between his
house and that of the accused. The relevant observations read as under: -
“20. [...] Later-on in
the same para this witness says that at 6:00 in the morning he went to the
field of appellant along with his father, but they never interacted with
appellant that how the deceased had died. In very specific words this witness
has stated that earlier to 6:00 AM he did not go to the ' house of appellant
where he was informed by the child witness Rani (PW.6) that the deceased had
died. In very specific words this witness is saying that he did not go in the
night at 3:00 to the house of appellant and he never saw his sister (the
deceased) · being cremated in the field. [...] This witness was confronted with
his merg report (Ex.P.7) and he admitted that it bears his signature, however,
,he has specifically stated that in the merg report (Ex.P. 7) he did not state
to the police that at 3:00 in the night he went to the house of the appellant
and if such type of statement is written in the merg report he cannot say how
it has been written. Further he says that he did not . inform the police
personnels that he made enquiry from the child witness Rani (PW.6) at 3:00 in
the night [...]
21. Hence, it is
difficult to hold that during the odd ' hours in the night the deceased was
cremated. If the testimony of complainant Bhura alias Yashpal (PW.3) is taken
into consideration in proper perspective it is difficult to hold that during
the odd hours in the night the deceased was cremated and she was not cremated
during the dawn hours.
It is also borne out
from the testimony of this witness that during the cremation the inhabitants of
the village were also present because specifically he is saying that when the
deceased was being cremated no dispute raised by the inhabitants of the village
[...] And therefore, if the deceased was cremated in presence of inhabitants of
the village, it is difficult to hold that the deceased was killed by the
appellant.
22. The testimony of
complainant Bhura alias Yashpal (PW.3) who keep inimical terms with the
appellant is further more doubtful because in his statement he has
admitted that he heard the sound of hue and cry during the late hours at 12:00
in the night in his house which is 4 to 5 furlongs far away from the house of
appellant. In this context, para 4 of the cross examination of this witness may
be seen. But, if this piece of evidence of this witness is kept in
juxtaposition to the testimony of independent eye witness Narayan (PW.2) who is
village chowkidar, who in para 2 of his cross-examination has categorically
stated that the distance between the house of appellant and the complainant
Bhura Singh alias Yashpal is 5 to 6 furlongs and if somebody would shout from
the house of appellant the persons residing in the · house of appellant the
persons residing in the house of complainant Bhura alias Yashpal would not hear
the sound. It is borne out from the testimony of Patwari of the village namely
Mahesh Kumar Mishra (PW.1) as well as Narayan (PW.2), who is chowkidar of the
village that village people happen to cremate the dead body in the field itself
and because there is no separate cremation ground, and therefore, if the
deceased was cremated' in the field it was not an unnatural act.” (Emphasis
supplied)
23.
In such circumstances, referred to above, the appellant State is here before
this Court with the present appeal.
C.
ANALYSIS
24.
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.
Evidence of Child Witness and Test for parsing Tutored Testimony.
25.
The High Court, while setting aside the conviction, found the testimony of the
child witness, Rani (PW6), to be unreliable and tutored. Before we proceed to
undertake the analysis of PW6, Rani’s oral evidence it is essential to
understand how the testimony of a child witness should be looked into and
appreciated.
26. The
Indian Evidence Act, 1872 (in short, the “Evidence Act”) does not
prescribe any particular age as a determinative factor to treat a witness to be
a competent one. On the contrary, Section 118 of the Evidence Act
envisages that all persons shall be competent to testify, unless the court
considers that they are prevented from understanding the questions put to them
or from giving rational answers to these questions, because of tender years,
extreme old age, disease - whether of mind, or any other cause of the same
kind. A child of tender age can be allowed to testify if he has intellectual
capacity to understand questions and give rational answers thereto.
27. In Dattu
Ramrao Sakhare v. State of Maharashtra reported in (1997) 5 SCC 341 this
Court held that as long as a child witness is found to be competent to depose
i.e., capable of understanding the questions put to it and able to give
rational answers, the testimony of such witness can be considered as
evidence in terms of Section 118 of the Evidence Act,
irrespective of their tender age or absence of any oath. The only additional
factor to be considered is that the witness must be found to be reliable,
exhibiting the demeanour of any other competent witness, with no likelihood of
having been tutored. It further clarified that there is no requirement or
condition that the evidence of a child witness must be corroborated before it
can be considered, and rather the insistence of any corroboration is only a
rule of prudence that would depend upon the peculiar facts and circumstances of
each case. The relevant observation reads as under: -
“5. [...] A child
witness if found competent to depose to the facts and reliable one such
evidence could be the basis of conviction. In other words even in the absence
of oath the evidence of a child witness can be considered under Section
118 of the Evidence Act provided that such witness is able to understand
the questions and able to give rational answers thereof. The evidence of a
child witness and credibility thereof would depend upon the circumstances of
each case. The only precaution which the court should bear in mind while assessing
the evidence of a child witness is that the witness must be a reliable one and
his/her demeanour must be like any other competent witness and there is no
likelihood of being tutored. There is no rule or practice that in every case
the evidence of such a witness be corroborated before a conviction can be
allowed to stand but, however as a rule of prudence the court always finds it
desirable to have the corroboration to such evidence from other dependable
evidence on record.” (Emphasis supplied)
28.
Similarly in Pradeep v. State of Haryana reported in 2023 SCC OnLine
SC 777 this Court emphasized on the importance of preliminary examination of a
child witness. It held that although oat cannot be administered to a
child witness under 12-years of age yet, as per Section 118 of
the Evidence Act it is the duty of a Trial Judge to conduct a preliminary
examination before recording the evidence of the child witness to ascertain if
the child is able to understand the questions put to him and that he is able to
give rational answers to the questions put to him. It held that the Trial Judge
must record its opinion and satisfaction that the child witness understands the
duty of speaking the truth and state why he is of the opinion that the child
understands the duty of speaking the truth. It further held that the questions
put to the child in the preliminary examination must also be recorded so that
the appellate court can go into the correctness of the opinion of the Trial
Court. The relevant observations read as under: -
“8. Under the proviso
to sub-Section (1) of Section 4, it is laid down that in case of a child
witness under 12 years of age, unless satisfaction as required by the said
proviso is recorded, an oath cannot be administered to the child witness. In this
case, in the deposition of PW-1 Ajay, it is mentioned that his age was 12 years
at the time of the recording of evidence. Therefore, the proviso
to Section 4 of the Oaths Act will not apply in this case. However,
in view of the requirement of Section 118 of the Evidence Act, the
learned Trial Judge was under a duty to record his opinion that the child is
able to understand the questions put to him and that he is able to give
rational answers to the questions put to him. The Trial Judge must also record
his opinion that the child witness understands the duty of speaking the truth
and state why he is of the opinion that the child understands the duty of
speaking the truth.
9. It is a
well-settled principle that corroboration of the testimony of a child witness
is not a rule but a measure of caution and prudence. A child witness of tender
age is easily susceptible to tutoring. However, that by itself is no ground to
reject the evidence of a child witness. The Court must make careful scrutiny of
the evidence of a child witness. The Court must apply its mind to the
question whether there is a possibility of the child witness being tutored.
Therefore, scrutiny of the evidence of a child witness is required to be made
by the Court with care and caution.
10. Before recording
evidence of a minor, it is the duty of a Judicial Officer to ask preliminary
questions to him with a view to ascertain whether the minor can understand the
questions put to him and is in a position to give rational answers. The Judge
must be satisfied that the minor is able to understand the questions and
respond to them and understands the importance of speaking the truth.
Therefore, the role of the Judge who records the evidence is very crucial. He
has to make a proper preliminary examination of the minor by putting
appropriate questions to ascertain whether the minor is capable of
understanding the questions put to him and is able to give rational answers. It
is advisable to record the preliminary questions and answers so that the
Appellate Court can go into the correctness of the opinion of the Trial Court.”
(Emphasis
supplied)
29. In Ratansinh
Dalsukhbhai Nayak v. State of Gujarat reported in (2004) 1 SCC 64, this
Court explained that although child witnesses are considered as dangerous witnesses
as they are pliable and liable to be influenced easily, shaped and moulded yet
it is an accepted norm that if after careful scrutiny their testimony is found
to inspire confidence and truthful, then there is no obstacle in accepting the
evidence of such child witness. The relevant observation reads as under: -
“7. [...] The decision
on the question whether the child witness has sufficient intelligence primarily
rests with the trial Judge who notices his manners, his apparent possession or
lack of intelligence, and the said Judge may resort to any examination which
will tend to disclose his capacity and intelligence as well as his
understanding of the obligation of an oath. The decision of the trial court
may, however, be disturbed by the higher court if from what is preserved
in the records, it is clear that his conclusion was erroneous. This precaution
is necessary because child witnesses are amenable to tutoring and often live in
a world of make-believe. Though it is an established principle that child
witnesses are dangerous witnesses as they are pliable and liable to be
influenced easily, shaped and moulded, but it is also an accepted norm that if
after careful scrutiny of their evidence the court comes to the conclusion that
there is an impress of truth in it, there is no obstacle in the way of
accepting the evidence of a child witness.”
30. In Panchhi
v. State of U.P. reported in (1998) 7 SCC 177, this Court held that the
evidence of a child witness should not be outrightly rejected but the evidence
must be evaluated carefully and with greater circumspection because a child is
susceptible to be swayed by what others tell him and an easy prey to tutoring.
The relevant observations read as under: -
“11. Shri R.K. Jain,
learned Senior Counsel, contended that it is very risky to place reliance on
the evidence of PW 1, he being a child witness. According to the learned counsel,
the evidence of a child witness is generally unworthy of credence. But we do
not subscribe to the view that the evidence of a child witness would always
stand irretrievably stigmatized. It is not the law that if a witness is a
child, his evidence shall be rejected, even if it is found reliable. The law is
that evidence of a child witness must be evaluated more carefully and with
greater circumspection because a child is susceptible to be swayed by what
others tell him and thus a child witness is an easy prey to tutoring.
12. Courts have laid
down that evidence of a child witness must find adequate corroboration before
it is relied on. It is more a rule of practical wisdom than of law.”
31.
This Court in Suryanarayana v. State of Karnataka reported in (2001)
9 SCC 129 held that the evidence of a child witness who has withstood the test
of cross-examination should not be rejected per se if his testimony is found to
be free from any infirmity. It reiterated that corroboration to the
testimony of a child witness is not a rule but a measure of caution and
prudence. The Court further held that while assessing the evidence of
a child witness, courts must rule out the possibility of tutoring. However, in
the absence of any allegation of tutoring or an attempt to use the child
witness for ulterior purposes by the prosecution, the courts must rely on the
confidence-inspiring testimony of such a witness in determining the guilt or
innocence of the accused. The relevant observation reads as under: -
“5. [...] The evidence
of the child witness cannot be rejected per se, but the court, as a rule of
prudence, is required to consider such evidence with close scrutiny and only on
being convinced about the quality of the statements and its reliability, base
conviction by accepting the statement of the child witness. The evidence of PW
2 cannot be discarded only on the ground of her being of tender age. The fact
of PW 2 being a child witness would require the court to scrutinise her
evidence with care and caution. If she is shown to have stood the test of
cross-examination and there is no infirmity in her evidence, the prosecution
can rightly claim a conviction based upon her testimony alone. Corroboration of
the testimony of a child witness is not a rule but a measure of caution and
prudence. Some discrepancies in the statement of a child witness cannot be made
the basis for discarding the testimony. Discrepancies in the deposition, if not
in material particulars, would lend credence to the testimony of a child
witness who, under the normal circumstances, would like to mix-up what the
witness saw with what he or she is likely to imagine to have seen. While
appreciating the evidence of the child witness, the courts are required to rule
out the possibility of the child being tutored. In the absence of any
allegation regarding tutoring or using the child witness for ulterior purposes
of the prosecution, the courts have no option but to rely upon the confidence
inspiring testimony of such witness for the purposes of holding the accused
guilty or not.”
(Emphasis
supplied)
32. In Arbind
Singh v. State of Bihar reported in (1995) Supp (4) SCC 416 this Court
found the testimony of the child witness therein to be tutored due to the
various inconsistencies and contradiction in her statements as regards the
cause of death of the deceased therein, and due to the fact that the child
witness was residing with her maternal uncle immediately after the incident
occurred. This Court further held that implicit faith and reliance
cannot be placed on a testimony that betrays traces of tutoring and the court
must look for corroboration before relying on the same. The relevant
observation reads as under: -
“3. The entire case
hinges on the evidence of the child witness PW 2 Poonam Kumari, the daughter of
the deceased and appellant Arbind Singh. The incident occurred late in the
night and she claims she was awakened by the noise of quarrelling. She further
claims to have seen her father tying and nailing her mother before hanging her.
At the date of the incident she was aged about 5 years. When her evidence was
recorded she was aged about 9 years. The learned Trial Judge did not undertake
a ‘voir dire’ before recording her evidence on oath although he notes that she
was capable of understanding and answering the questions. Be that as it may,
the fact remains that there was a gap of 4 years between the incident and the
date on which her evidence was recorded. Immediately after the incident she was
interrogated but as she was weeping her statement was not recorded. Thereafter
her statements were recorded on October 25, 1984, October 28, 1984 and November
5, 1984, the last being under Section 164 of the Criminal Procedure
Code. In her first statement she did not say that her mother was hanged. Subsequently
she said she was hanged by electric wire. She later said she was hanged with
the help of a jute string. In her statement recorded under Section
164 of the Code of Criminal Procedure on November 5, 1984, she stated that
her father had thrown a jute string around the neck of her mother and killed
her. It will, therefore, appear from these statements that she has not been
consistent in her version. That apart, we have carefully perused the evidence
of this witness and we find traces of tutoring on certain aspects of the
case. It appears from her evidence that she was very close to her maternal
uncle with whom she was living when her mother had gone to Deoghar for
training. Immediately after the incident she was taken away by her maternal
uncle who happens to be a fairly important figure. In her evidence she stated
that there used to be quarrels between her father and mother and the former
used to ill-treat the latter without any rhyme or reason. Then she adds that
her father wanted to remarry and, therefore, he was ill-treating her mother.
Now the case put up was that the husband was ill-treating the wife as he wanted
to sell her jewellery to purchase a scooter. Therefore, the statement made by
PW 2 that her father was ill- treating her mother because he wanted to remarry
could only be the result of tutoring. She also tried to involve all the other
family members including her uncle Shambhoo whom she could not even recognize
in the dock. This she could have done only at the behest of someone else. She
also stated that neither her father nor her grandfather met her mother's
expense at Deoghar, a fact of which ordinarily a child under five years of age
would not be aware. She even tried to involve her father's sister whose name
she had not mentioned earlier. There are also certain other statements made in
the course of her deposition which would suggest that possibility of tutoring
could not be ruled out. Having taken a careful look at the evidence of this
child witness we are of the opinion that implicit faith and reliance cannot be
placed on her testimony since it is not corroborated by any independent and
reliable evidence. It is well-settled that a child witness is prone to tutoring
and hence the court should look for corroboration particularly when the
evidence betrays traces of tutoring. We, therefore, think that appellant 1 was
entitled to benefit of doubt.”
(Emphasis
supplied)
33.
Similarly in Digamber Vaishnav v. State of Chhattisgarh reported in
(2019) 4 SCC 522 this Court discarded the testimony of the child witness
therein on the ground of being tutored as it found the same to be fraught with
inconsistencies and in direct contradiction of the ocular evidence of other
prosecution witnesses.
34.
This Court in State of M.P. v. Ramesh reported in (2011) 4 SCC 786
summarized the principles pertaining to the appreciation of evidence of a child
witness as under: -
(i) First, it held
that that a child witness must be able to understand the sanctity of giving
evidence on oath and the import of the questions that were being put to him.
The evidence of a child witness must reveal that he was able to discern between
right and wrong, and the court may ascertain his suitability as a witness
through either cross-examination or by putting questions to the child in terms
of Section 165 of the Evidence Act or by determining the same from
the evidence or testimony of the child itself. The relevant observation reads
as under: -
“11. The evidence of a
child must reveal that he was able to discern between right and wrong and the
court may find out from the cross-examination whether the defence lawyer could
bring anything to indicate that the child could not differentiate between right
and wrong. The court may ascertain his suitability as a witness by putting
questions to him and even if no such questions had been put, it may be gathered
from his evidence as to whether he fully understood the implications of what he
was saying and whether he stood discredited in facing a stiff cross-
examination. A child witness must be able to understand the sanctity of giving
evidence on oath and the import of the questions that were being put to him.
(Vide Himmat Sukhadeo Wahurwagh v. State of Maharashtra (2009) 6 SCC
712.)”
(Emphasis
supplied)
(ii) Secondly, if the
evidence of the child explains the relevant events of the crime without
improvements or embellishments, and the same inspire confidence of the
court, his deposition does not require any corroboration whatsoever. The
relevant observation reads as under: -
“12. In State
of U.P. v. Krishna Master (2010) 12 SCC 324 this Court held that there is
no principle of law that it is inconceivable that a child of tender age would
not be able to recapitulate the facts in his memory. A child is always
receptive to abnormal events which take place in his life and would never
forget those events for the rest of his life. The child may be able to
recapitulate carefully and exactly when asked about the same in the future. In
case the child explains the relevant events of the crime without improvements
or embellishments, and the same inspire confidence of the court, his deposition
does not require any corroboration whatsoever. The child at a tender age is incapable
of having any malice or ill will against any person. Therefore, there must be
something on record to satisfy the court that something had gone wrong between
the date of incident and recording evidence of the child witness due to which
the witness wanted to implicate the accused falsely in a case of a serious
nature.”
(Emphasis
supplied)
(iii) Thirdly, even if
the courts find that the child witness had been tutored, even then the
statement of a child witness can be relied upon if the tutored part can be
separated from the untutored part and the remaining untutored part inspires
confidence. In such cases, the untutored part can be believed or at least taken
into consideration for the purpose of corroboration as in the case of a hostile
witness. The relevant observation reads as under: -
“13. 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 part inspires confidence. In such an eventuality the untutored
part can be believed or at least taken into consideration for the purpose of
corroboration as in the case of a hostile witness. (Vide Gagan Kanojia v. State
of Punjab (2006) 13 SCC 516.)”
(Emphasis
supplied)
(iv) Lastly, it held
that an inference as to whether child has been tutored or not, can be drawn
from the contents of his deposition. If the deposition of a child witness
inspires the confidence of the court and there is no embellishment or
improvement therein, the court may rely upon his evidence. The evidence of a
child witness must be evaluated more carefully with greater circumspection
because he is susceptible to tutoring. Only in case there is evidence on record
to show that a child has been tutored, the court can reject his statement
partly or fully and look for corroboration. The relevant observation reads as
under: -
“14. In view of the
above, the law on the issue can be summarised to the effect that the deposition
of a child witness may require corroboration, but in case his deposition
inspires the confidence of the court and there is no embellishment or
improvement therein, the court may rely upon his evidence. The evidence of a
child witness must be evaluated more carefully with greater circumspection
because he is susceptible to tutoring. Only in case there is evidence on record
to show that a child has been tutored, the court can reject his statement
partly or fully. However, an inference as to whether child has been tutored or
not, can be drawn from the contents of his deposition.”
(Emphasis
supplied)
35.
From the above exposition of law, it is clear that the evidence of a child
witness for all purposes is deemed to be on the same footing as any other
witness as long the child is found to be competent to testify. The only
precaution which the court should take while assessing the evidence of a child
witness is that such witness must be a reliable one due to the susceptibility
of children by their falling prey to tutoring. However, this in no manner means
that the evidence of a child must be rejected outrightly at the slightest of
discrepancy, rather what is required is that the same is evaluated with great
circumspection. While appreciating the testimony of a child witness the courts
are required to assess whether the evidence of such witness is its voluntary
expression and not borne out of the influence of others and whether the
testimony inspires confidence. At the same time, one must be mindful that there
is no rule requiring corroboration to the testimony of a child witness before
any reliance is placed on it. The insistence of corroboration is only a measure
of caution and prudence that the courts may exercise if deemed necessary in the
peculiar facts and circumstances of the case.
36. In Ratansinh
Dalsukhbhai Nayak (supra) this Court observed that 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. It added that 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. The relevant observation
reads as under: -
“8. The learned trial
Judge has elaborately analysed the evidence of the eyewitness. There is no
reason as to why she would falsely implicate the accused. Nothing has been
brought on record to show that she or her father had any animosity so far as
the accused is concerned. The prosecution has been able to bring home its
accusations beyond the shadow of a doubt. Further, the trial court on careful
examination was satisfied about the child's capacity to understand and to give
rational answers. That being the position, it cannot be said that the witness
(PW 11) had no maturity to understand the import of the questions put or to
give rational answers. This witness was cross-examined at length and in spite
thereof she had described in detail the scenario implicating the accused to be
the author of the crime. The answers given by the child witness would go to
show that it was only repeating what somebody else asked her to say. The mere
fact that the child was asked to say about the occurrence and as to what she
saw, is no reason to jump to a conclusion that it amounted to tutoring and that
she was deposing only as per tutoring what was not otherwise what she actually
saw. The learned counsel for the accused- appellant has taken pains to point
out certain discrepancies which are of very minor and trifle nature and in no
way affect the credibility of the prosecution version.” (Emphasis supplied)
37.
Similarly in State of M.P. v. Ramesh reported in (2011) 4 SCC 786 it
was held that even if the statement of a child witness is found to be tutored
it can be relied upon, if the same is found to be believable or inspire
confidence after separating the tutored part from the untutored portion.
The relevant observation reads as under: -
“13. 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 part inspires confidence. In such an eventuality the untutored part
can be believed or at least taken into consideration for the purpose of
corroboration as in the case of a hostile witness.”
38.
In the case at hand, the High Court held that the police statement of the child
witness, Rani (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.
39.
Indisputably the police statement of PW6 came to be recorded after 18-days of
the incident. Although the police was well aware that she was a vital witness
to the entire case and could guide the investigation in the right direction,
yet to mechanically discard her testimony solely on the ground of delay alone
was not warranted in the peculiar facts and circumstances of the case,
particularly when no question in this regard was put to the IO so as to give
him an opportunity to explain the reason for such delay.
40. In Ranbir
& Ors. v. State of Punjab reported in (1973) 2 SCC 444 this Court
observed that the factum of delayed examination of a witness ought to
be specifically put to the IO so as to enable him to explain the reasons
therefor. It further held that delay in examining a witness during
investigation would be material only if it is indicative and suggestive of some
unfair practice by the investigating agency for the purpose of introducing a
got-up witness to falsely support the prosecution case. The relevant
observation made therein reads as under: -
“7. [...] The
appellants' counsel also faintly contended that Tota Ram PW 7 was examined by
the police after considerable delay, the suggestion being that his evidence
must be looked at with suspicion. We are not impressed by this submission. The
fact of delayed examination of Tota Ram should, in our opinion, have been put
to the investigating officer so as to enable him to explain the undue delay, if
any, in examining Tota Ram. The question of delay in examining a witness during
investigation is material only if it is indicative and suggestive of some
unfair practice by the investigating agency for the purpose of introducing a
got-up witness to falsely support the prosecution case. It is, therefore,
essential that the investigating officer should be asked specifically about the
delay and the reasons therefor. [...]”
(Emphasis
supplied)
41. In State
of U.P. v. Satish reported in (2005) 3 SCC 114 this Court held that before
the delay in examination of any particular witness can be taken into
consideration to impeach their credibility, the IO must be first asked by the
accused to explain the delay by putting a question in this regard. The relevant
observation reads as under: -
“20. It is to be noted
that the explanation when offered by the IO on being questioned on the aspect
of delayed examination by the accused has to be tested by the court on the
touchstone of credibility. If the explanation is plausible then no adverse
inference can be drawn. On the other hand, if the explanation is found to
be implausible, certainly the court can consider it to be one of the factors to
affect credibility of the witnesses who were examined belatedly. It may not
have any effect on the credibility of the prosecution's evidence tendered by
the other witnesses.”
(Emphasis
supplied)
42.
While it is true that primarily it was for the accused to question the IO to
explain the delay in recording the statement of PW6, but at the same time the
Trial Judge should not have remained a mute spectator, acting like a robot or a
recording machine to just deliver whatever stands feeded by the parties. The
role of a judge in dispensation of justice after ascertaining the true facts no
doubt is very difficult one. In the pious process of unravelling the truth so
as to achieve the ultimate goal of dispensing justice between the parties the
judge cannot keep himself unconcerned and oblivious to the various happenings
taking place during the progress of trial of any case. The presiding judge
cannot afford to remain a mute spectator totally oblivious to the various
happenings taking place around him, more particularly, concerning a particular
case being tried by him. The fair trial is possible only when the court takes
active interest and elicit all relevant information and material necessary so
as to find out the truth for achieving the ultimate goal of dispensing justice
with all fairness and impartiality to both the parties. In Munna
Pandey v. State of Bihar reported in 2023 INSC 793 this Court held that a
presiding judge must cease to be a spectator and a mere recording machine
and become a participant in the trial by evincing intelligent active interest
by putting questions to witnesses in order to ascertain the truth.
43.
Thus, 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 Rani, 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. The
court in such a situation would be required to carefully see whether there is
anything palpable on the face of it to indicate any malice at the end of the
investigating agency in belatedly examining such witness.
44.
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. We say so
because, the 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, Rani (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.
45.
One another reason for the High Court to discard the testimony of PW6 on the
ground of being tutored was due to the fact that at the time of recording of
her statement, PW6 was residing with PW3, the complainant herein who is her
maternal uncle and was also at inimical terms with the accused. However, the
High Court appears to have lost sight of the fact that PW6 at the relevant
point of time was only of seven years of age. She had not only lost her mother
but had also been abandoned by her father i.e., the respondent accused herein
who went absconding. In such circumstances, the only option available to PW6
was to reside with her maternal uncle. Where else does the High Court expect a
child of such tender age in such circumstances to reside? How could the High
Court even possibly expect such child to go to the police station unaccompanied
by any adult family member to give her statement? The testimony of PW6 could
not have been discarded solely on the ground that it was recorded in the
presence of PW3, an interested witness who is at inimical terms with the
accused, especially in view of the facts narrated above. The courts are
expected to deal with such cases in a more realistic manner and not discard
evidence on account of procedural technicalities, perfunctory considerations or
insignificant lacunas.
46.
In the last what weighed with the High Court whilst discarding the testimony of
PW6 was the fact that in the morgue inquiry report there was nothing to
indicate that the witness had mentioned anything to implicate the respondent accused
herein, as she had simply stated that “her mother had died”. The High Court
further observed that because the respondent accused came to be arrested only
after the statement of PW6 had been recorded which according to the High Court
meant that the earlier statement of PW6 made during the morgue enquiry must
have been unfavourable to the prosecution which is why it was also never
brought on record.
47.
The incident is alleged to have occurred on 15.07.2003. On the very next date
i.e., 16.07.2003, the inquest proceedings under Section 174 of the
Cr.P.C. were carried out based on the information given by PW3. On that very
date, PW7 recorded the statements of PW3, PW4, PW5 and PW6, respectively based
on which the morgue report was submitted opining that the deceased had died
under suspicious circumstances and suggesting the commission of offence under
Section(s) 302, 201 read with 34 of the IPC by the accused persons.
Accordingly, on 20.07.2003, the FIR came to be registered against the respondent
accused herein.
48.
No doubt, in the inquest report it has been mentioned that PW6 only stated that
her “mother had died”, however, this does not mean that her subsequent
statements implicating the accused were tutored. This is because as per
the testimony of PW7, the death report that was prepared upon conclusion
of the inquest proceedings specifically implicated the accused herein for the
suspicious death of the deceased. In the FIR that was lodged, not only has the
respondent been named as an accused but it also specifically mentions that from
the statement of PW6 in the inquest proceedings, it has been found that the
respondent accused, the husband of the deceased murdered her by slamming
Virendra Kumari on the floor of the porch of the house and choked her to death
by pressing his foot on her neck. At the cost of repetition, the relevant
contents of the FIR are again reproduced hereunder: -
“[...]on the
investigation of Marg No. 7/03 Section 174 Cr.P.C., it is stated that
on the basis of order issued by his good-self, I ASI Mahendra Singh conducted
the investigation of Marg No. 7/03 under Section 174 Cr.P.C. after
reaching the spot Village Singharai, during the course of investigation,
recorded the statement of complainant Bhoora @ Yashpal Singh Yadav, Kumari Rani,
D/o Balvir Singh Yadav, Bharat Singh Yadav R/o Village Singharai and Badal
Singh Yadav, Police Station Badarvas. On spot map of the place of incident was
prepared and seizure proceedings were conducted, from the investigation up till
now and the statement of Kumari Rani Yadav, it has been found that Balvir Singh
Yadav husband of the deceased Virendra Kumari murdered her by slamming Virendra
Kumari on the floor of the porch of the house and choked her neck by pressing
his foot and Kumari Jatan Singh helped her brother Balvir Singh in the murder,
later on, during the night itself, Balvir Singh Yadav took the dead body of his
wife on his shoulders to his field and discreetly burnt it. [...]” (Emphasis
supplied)
49.
Thus, although the statement of PW6 that was recorded during the course of the
inquest proceedings was never produced before the court, yet it does not mean
that the suppression was due to the same being unfavourable, particularly
when the respondent accused neither sought for its production during the course
of trial nor did it question the relevant witnesses as to its contents. As
regards the timing of arrest of the respondent accused, the High Court seems to
have completely overlooked the fact that at the time of the incident, the
accused was absconding. Both PW3 and PW6, respectively had deposed that after
cremating the deceased, the respondent accused fled away, and even the Trial
Court had taken a note of this. Thus, from the sequence of events narrated
above, and the contents of the FIR, there is no doubt in our minds that the
implication of the respondent accused was not an afterthought.
50.
In order to obviate any confusion, we take this opportunity to explain what is
meant by a “tutored testimony” and the test for determining or ascertaining a
tutored testimony. Where there has been tutoring of any witness, the same can
possibly produce two broad effects in their testimony; (i) improvisation or
(ii)
fabrication.
51.
Improvisation refers to instances where the tutored witness in question adds
new details, alters facts, or provides an inconsistent version of events that
were not previously stated in their initial statements, such as those given to
the police in their statement under Section 161 of the Cr.P.C. In
such situations, the improvisation by way of tutoring must be eradicated only
in the manner envisaged under Section 162 of the Cr.P.C. read
with Section 145 of the Evidence Act. The principle of law in this
regard is that the witness who has improvised its testimony must be first
confronted with that part of its previous statement that omits or contradicts
the improvisation by bringing it to its notice and give the witness an
opportunity to either admit or deny the omission or contradiction. Where such
witness admits such omission or contradiction, there is no further need to
prove the contradiction through the IO and its effect would be looked into
while appreciating the evidence. If he denies having made that part of the
statement, his attention must be drawn to that statement and must be mentioned
in the deposition. By this process the contradiction is merely brought on
record, but it is yet to be proved. Thereafter when the investigating
officer is examined in the court, his attention should be drawn to the passage
marked for the purpose of contradiction. It will then be said to have been
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. [See: V.K. Mishra v. State of Uttarakhand reported in
(2015) 9 SCC 588]
52.
However, where the allegation of tutoring pertains to fabrication – meaning
that certain portions of both the testimony and the previous statement of a
particular witness have been doctored or falsified – in such circumstances twin
conditions would have to be proved, namely; (i) the possibility
or opportunity of the witness being tutored AND (ii) the reasonable
likelihood of the tutoring.
53.
The first condition, namely the ‘possibility or opportunity of the witness
being tutored’ can be established by demonstrating or laying down certain
foundational facts that suggest the probability that a part of the testimony of
the witness might have been tutored. 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. A mere bald assertion that there is a possibility of the
witness in question being tutored is not sufficient.
54.
The second condition ‘reasonable likelihood of tutoring’ requires that the
foundational facts established in the first step be further proven or cogently
substantiated before any portion of the witness’s testimony can be deemed
tutored. This may be done by leading evidence to prove a strong and palpable
motive to depose falsely that was imputed to the witness, or by establishing
that the delay in recording the statement is not only unexplained but is
indicative and suggestive of some unfair practice by the investigating agency
for the purpose of falsely supporting the case of the prosecution as held
in Ranbir (supra), 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.
55.
Irrespective of whether the testimony of a witness is tutored or not, the same,
generally may be classified into three categories: -
(i) wholly reliable;
(ii) wholly unreliable;
(iii) neither wholly reliable nor wholly
unreliable.
In the first category
of proof, the court should have no difficulty in coming to its conclusion
either way - it may convict or may acquit on the testimony of a single witness.
If it is found to be beyond approach or suspicion of interestedness,
incompetence or subordination. In the second category, the court equally has no
difficulty in coming to its conclusion. It is in the third category of cases, that
the court has to be circumspect and has to look for corroboration in material
particulars by reliable testimony, direct or circumstantial. There is another
danger in insisting on plurality of witnesses. Irrespective of the quality of
the oral evidence of a single witness, if courts were to insist on
plurality of witnesses in proof of any fact, they will be indirectly
encouraging subordination of witnesses. Situations may arise and do arise
where only a single person is available to give evidence in support of a
disputed fact. The court naturally has to weigh carefully such a testimony and
if it is satisfied that the evidence is reliable and free from all taints,
which tend to render oral testimony open to suspicion, it becomes its duty to
act upon such testimony. The law reports contain many precedents where the
court had to depend and act upon the testimony of a single witness in support
of the prosecution. [See: Ramratan and others v. State of
Rajasthan reported in AIR 1962 SC 424; Guli Chand and others v. State
of Rajasthan reported in AIR 1974 SC 276; Badri v. State of
Rajasthan reported in AIR 1976 SC 560]
56.
The appreciation of testimony of a witness is a hard task. There is no fixed or
straight jacket formula for appreciation of the ocular evidence. The judicially
evolved principles for appreciation of ocular evidence in a criminal case can
be enumerated as under: -
a. While appreciating
the evidence of a witness, the approach must be whether the evidence of the
witness read as a whole appears to have a ring of truth. Once that impression
is formed, it is undoubtedly necessary for the Court to scrutinize the evidence
more particularly keeping in view the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and evaluate them to find out
whether it is against the general tenor of the evidence given by the witness
and whether the earlier evaluation of the evidence is shaken as to render it
unworthy of belief.
b. If the Court before
whom the witness gives evidence had the opportunity to form the opinion about
the general tenor of evidence given by the witness, the appellate court which
had not this benefit will have to attach due weight to the appreciation of
evidence by the Trial Court and unless there are reasons weighty and formidable
it would not be proper to reject the evidence on the ground of minor variations
or infirmities in the matter of trivial details.
c. When eye-witness is
examined at length it is quite possible for him to make some discrepancies. But
courts should bear in mind that it is only when discrepancies in the evidence
of a witness are so incompatible with the credibility of his version that the
court is justified in jettisoning his evidence.
d. Minor discrepancies
on trivial matters not touching the core of the case, hyper technical approach
by taking sentences torn out of context here or there from the evidence,
attaching importance to some technical error committed by the investigating
officer not going to the root of the matter would not ordinarily permit
rejection of the evidence as a whole.
e. Too serious a view to be adopted on mere
variations falling in the narration of an incident (either as between the
evidence of two witnesses or as between two statements of the same witness) is
an unrealistic approach for judicial scrutiny.
f. By and large a
witness cannot be expected to possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is replayed on the mental
screen.
g. Ordinarily it so
happens that a witness is overtaken by events. The witness could not have
anticipated the occurrence which so often has an element of surprise. The
mental faculties therefore cannot be expected to be attuned to absorb the
details.
h. The powers of
observation differ from person to person. What one may notice, another may not.
An object or movement might emboss its image on one person's mind whereas it
might go unnoticed on the part of another.
i. By and large people
cannot accurately recall a conversation and reproduce the very words used by
them or heard by them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a human tape
recorder.
j. In regard to exact
time of an incident, or the time duration of an occurrence, usually, people
make their estimates by guess work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very precise or
reliable estimates in such matters.
Again, it depends on
the time-sense of individuals which varies from person to person.
k. Ordinarily a
witness cannot be expected to recall accurately the sequence of events which
take place in rapid succession or in a short time span. A witness is liable to
get confused, or mixed up when interrogated later on.
l. A witness, though
wholly truthful, is liable to be overawed by the court atmosphere and the
piercing cross examination by counsel and out of nervousness mix up facts, get
confused regarding sequence of events, or fill up details from imagination on
the spur of the moment. The subconscious mind of the witness sometimes so
operates on account of the fear of looking foolish or being disbelieved though
the witness is giving a truthful and honest account of the occurrence witnessed
by him.
m. A former statement
though seemingly inconsistent with the evidence need not necessarily be
sufficient to amount to contradiction. Unless the former statement has the
potency to discredit the later statement, even if the later statement is at
variance with the former to some extent it would not be helpful to contradict
that witness.
n. The evidence of an
interested and/or related witnesses should not be examined with a coloured
vision simply because of their relationship with the deceased. Though it
is not a rule of law, it is a rule of prudence that their evidence ought to be
examined with greater care and caution to ensure that it does not suffer from
any infirmity. The court must satisfy itself that the evidence of the
interested witness has a ring of truth. Only if there are no contradictions and
the testimony of the related/interested witness is found to be credible,
consistent and reasonable, can it be relied upon even without any
corroboration. At the end of the day, each case must be examined on its own
facts. There cannot be any sweeping generalisation.
[See Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat reported in AIR 1983 SC
753; Leela Ram v. State of Haryana reported in AIR 1999 SC
3717; Tahsildar Singh v. State of UP reported in AIR 1959 SC 1012]
57.
To put it simply, in assessing the value of the evidence of the eyewitnesses,
two principal considerations are whether, in the circumstances of the case, it
is possible to believe their presence at the scene of occurrence or in such
situations as would make it possible for them to witness the facts deposed to
by them and secondly, whether there is anything inherently improbable or
unreliable in their evidence. In respect of both these considerations, the
circumstances either elicited from those witnesses themselves or established by
other evidence tending to improbabilise their presence or to discredit
the veracity of their statements, will have a bearing upon the value which
a Court would attach to their evidence. Although in cases where the plea of the
accused is a mere bald assertion of tutoring, yet the evidence of the
prosecution witnesses has to be examined on its own merits, where the accused
raises a definite plea or puts forward a positive case which is inconsistent
with that of the prosecution, the nature of such plea or case and the probabilities
in respect of it will also have to be taken into account while assessing the
value of the prosecution evidence.
58.
We summarize our conclusion 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.
59.
As discussed in the foregoing paragraphs of this judgment, there is nothing on
record to indicate that PW6 was a tutored witness. We may also refer to 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. Thus, we are of the considered opinion that the High Court
committed an egregious error in discarding the testimony of PW6.
ii.
Principles of Law relating to appreciation of Circumstantial Evidence.
60.
In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher
included a whole chapter upon what lies next when the direct evidence does not
lead to any special inference. It is called Circumstantial Evidence. According
to him, in every case, of circumstantial evidence, there are always at least
two facts to be considered; (i) the Factum Probandum, or say, the principal
fact the existence of which is supposed or proposed to be proved; and (ii) the
Factum Probans or the evidentiary fact or the fact from the existence of which
that of the factum probandum is inferred.
61.
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.
[See: Sharad Birdhichand Sarda v. State of
Maharashtra reported in (1984) 4 SCC 116]
62.
In an Essay on the ‘Principles of Circumstantial Evidence’ by William Wills by
T. and J.W. Johnson and Co. 1872, it has been explained that circumstantial
evidence implies the existence of a certainty in the relation between the facts
and the inferences stemming therefrom. The relevant extract reads as under: -
“In matters of direct
testimony, if credence be given to the relators, the act of hearing and the act
of belief, though really not so, seem to be contemporaneous. But the case is
very different when we have to determine upon circumstantial evidence, the
judgment in respect of which is essentially inferential. There is no apparent
necessary connection between the facts and the inference; the facts may be
true, and the inference erroneous, and it is only by comparison with the
results of observation in similar or analogous circumstances, that we acquire
confidence in the accuracy of our conclusions.
The term PRESUMPTIVE
is frequently used as synonymous with CIRCUMSTANTIAL EVIDENCE; but it is not so
used with strict accuracy, The word" presumption," ex vi termini,
imports an inference from facts; and the adjunct "presumptive," as applied
to evidentiary facts, implies the certainty of some relation between the facts
and the inference. Circumstances generally, but not necessarily, lead to
particular inferences; for the facts may be indisputable, and yet their
relation to the principal fact may be only apparent, and not real; and even
when the connection is real, the deduction may be erroneous. Circumstantial and
presumptive evidence differ, therefore, as genus and species.
The force and effect
of circumstantial evidence depend upon its incompatibility with, and
incapability of, explanation or solution upon any other supposition than that
of the truth of the fact which it is adduced to prove; the mode of argument
resembling the method of demonstration by the reductio ad absurdum.”
63.
It is settled principle of law that an accused can be punished if he is found
guilty even in cases of circumstantial evidence provided, the prosecution is
able to prove beyond reasonable doubt the complete chain of events and
circumstances which definitely points towards the involvement or guilt of the
accused. The accused will not be entitled to acquittal merely because there is
no eye witness in the case. It is also equally true that an accused can be
convicted on the basis of circumstantial evidence subject to satisfaction of
the expected principles in that regard.
64.
Thus, in view of the above, the court must consider a case of circumstantial
evidence in light of the aforesaid settled legal propositions. In a case of
circumstantial evidence, the judgment remains essentially inferential. The
inference is drawn from the established facts as the circumstances lead to
particular inferences. The Court has to draw an inference with respect to
whether the chain of circumstances is complete, and when the circumstances
therein are collectively considered, the same must lead only to the
irresistible conclusion that the accused alone is the perpetrator of the crime
in question. All the circumstances so established must be of a conclusive
nature, and consistent only with the hypothesis of the guilt of the accused. a.
Incriminating Circumstances emerging from the evidence on record.
65.
We take note of the 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. At the cost of repetition, the relevant portion of the further
statement of the accused is reproduced hereunder: -
“Que. No. 32: This
witness further states that you reached in the courtyard and Bua was also
sleeping in the courtyard at that time. What do you want to say?
Ans: All were sleeping
in the house.” b. 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.
c. 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.
Prosecution Witness
No. 3 – Bhoora @ Yashpal “I saw the dead body burnt in the morning. The
villagers did not create any ruckus and Balvir was not present there. Who burnt
the dead body of Virendra Kumari, we do not know. Because we did not see it
getting burn” Prosecution Witness No. 6 – Rani “When the police came home, no
one from the house was there. My father had ran away, and so had my aunt. My
grandfather had also run away. I was the only one there and my brother. And my
old grandfather was there. My mother’s father in law, who is my grandfather was
there.”
d. 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. The relevant observations made by the Trial Court in this regard
are reproduced herein below: -
“22. PW-3 Bhoora has
stated that Birender Kumari is his .. sister being the daughter of his maternal
uncle. On the day of incident in the night he and his father were sleeping in
their house upon which they had heard voices of Birender Kumari crying. [...]
In the morning when he and his father got up then they came to know that
Birender Kumari has died and that she has been burnt by the accused
clandestinely in their fields itself. When he and his father and the entire
village went to see then the dead body was burning which fact is confirmed by
Bharat Singh also. [...] The accused used to harass and the motorcycle had not
been given. He used to give beatings upon which the deceased used to come to
him. Once the accused beat her very badly and did- not give her anything to eat
also. Upon whiCh she had filed a case of maintenance in the JMFC Court, Kolaras
of which the certified copy is Ex.P-8. The girl had been given beatings, the
true copy of which report is Ex.P-9.
xxx xxx xxx
29. The accused had
carried Birender Kumari to the fields in relation to which direct evidence has
not come. It has come in the statement of Rani that the accused took her mother
to the fields and Jatan had told that her mother had been taken
for cremation. In the fields the deceased was cremated in the night which
circumstance also goes against the accused. If the death of deceased Birender
Kumari was of ordinary nature then what was the reason that in the night
without informing the reason to the family of the deceased she was cremated in
the night especially when prior to the incident itself the mutual relations of
the accused and deceased were not good and according to Ex.P-8 & P-9 the
case in relation to not giving beatings and maintenance had been filed by the
deceased in the Court.
Another circumstance
which indicate the involvement of the accused in the incident [...]” (Emphasis
supplied) e. 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.
66.
The High Court whilst passing the impugned judgment and order completely failed
to advert to and refer to Section 106 of the Evidence Act, which was
crucial in a case involving circumstantial evidence of such nature as
aforementioned.
iii.
Principles of Law governing the Applicability of Section 106 of the
Evidence Act.
67.
At this stage it would be apposite to refer to Section 106 of the
Evidence Act, which states as under: -
“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.”
68. Section
106 of the Evidence Act referred to above provides that when any
fact is especially within the knowledge of any person, the burden of proving
that fact is upon him. The word “especially” means facts that are pre-eminently
or exceptionally within the knowledge of the accused. The ordinary rule that
applies to the criminal trials that the onus lies on the prosecution to prove
the guilt of the accused is not in any way modified by the rule of facts
embodied in Section 106 of the Evidence Act. Section 106 of
the Evidence Act is an exception to Section 101 of the Evidence
Act. Section 101 with its illustration
(a) lays down the
general rule that in a criminal case the burden of proof is on the prosecution
and Section 106 is certainly not intended to relieve it of that duty.
On the contrary, it is designed to meet certain exceptional cases in which it
would be impossible or at any rate disproportionately difficult for the
prosecution to establish the facts which are, “especially within the knowledge
of the accused and which, he can prove without difficulty or inconvenience”.
69. In Shambhu
Nath Mehra v. The State of Ajmer reported in 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: -
“9. [...] 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).”
70.
The aforesaid decision of Shambhu Nath (supra) has been referred to
and relied upon in Nagendra Sah v. State of Bihar reported in (2021)
10 SCC 725, wherein this Court observed as under: -
“22.
Thus, Section 106 of the Evidence Act will apply to those cases where
the prosecution has succeeded in establishing the facts from which a reasonable
inference can be drawn regarding the existence of certain other facts which are
within the special knowledge of the accused. When the accused fails to offer
proper explanation about the existence of said other facts, the court can
always draw an appropriate inference.
23. When a case is
resting on circumstantial evidence, if the accused fails to offer a reasonable
explanation in discharge of burden placed on him by virtue of Section
106 of the Evidence Act, such a failure may provide an additional
link to the chain of circumstances. In a case governed by circumstantial
evidence, if the chain of circumstances which is required to be established by
the prosecution is not established, the failure of the accused to discharge the
burden under Section 106 of the Evidence Act is not relevant at all.
When the chain is not complete, falsity of the defence is no ground to convict
the accused.”
(Emphasis
supplied)
71. In Tulshiram
Sahadu Suryawanshi and Anr. v. State of Maharashtra reported in (2012) 10
SCC 373, this Court observed as under: -
“23. It is settled law
that presumption of fact is a rule in law of evidence that a fact otherwise
doubtful may be inferred from certain other proved facts. When inferring the
existence of a fact from other set of proved facts, the court exercises a
process of reasoning and reaches a logical conclusion as the most probable
position. The above position is strengthened in view of Section
114 of the Evidence Act, 1872. It empowers the court to presume the
existence of any fact which it thinks likely to have happened. In that process,
the courts shall have regard to the common course of natural events, human
conduct, etc. in addition to the facts of the case. In these
circumstances, the principles embodied in Section 106 of the Evidence
Act can also be utilised. We make it clear that this section is not intended to
relieve the prosecution of its burden to prove the guilt of the accused beyond
reasonable doubt, but it would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable inference can be drawn
regarding the existence of certain other facts, unless the accused by virtue of
his special knowledge regarding such facts, failed to offer any explanation
which might drive the court to draw a different inference. It is useful to
quote the following observation in State of W.B. v. Mir Mohammad Omar and
Ors. [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] : (SCC p. 393, para 38) “38.
Vivian Bose, J., had observed that Section 106 of the Evidence Act is
designed to meet certain exceptional cases in which it would be impossible
for the prosecution to establish certain facts which are particularly within
the knowledge of the accused. In Shambhu Nath Mehra v. The State of
Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned Judge has stated the
legal principle thus :
‘11. This lays down
the general rule that in a criminal case the burden of proof is on the
prosecution and Section 106 is certainly not intended to relieve it
of that duty. On the contrary, it is designed to meet certain exceptional cases
in which it would be impossible, or at any rate disproportionately difficult,
for the prosecution to establish facts which are “especially” within the
knowledge of the accused and which he could prove without difficulty or
inconvenience.
The word “especially”
stresses that. It means facts that are pre-eminently or exceptionally within
his knowledge.’””
(Emphasis
supplied)
72. In Trimukh
Maroti Kirkan v. State of Maharashtra, reported in (2006) 10 SCC 681, this
Court was considering a similar case of homicidal death in the confines of the
house. The following observations are considered relevant in the facts of the
present case: -
“14. If an offence takes
place inside the privacy of a house and in such circumstances where the
assailants have all the opportunity to plan and commit the offence at the time
and in circumstances of their choice, it will be extremely difficult for the
prosecution to lead evidence to establish the guilt of the accused if the
strict principle of circumstantial evidence, as noticed above, is insisted upon
by the courts. A judge does not preside over a criminal trial merely to see
that no innocent man is punished. A judge also presides to see that a guilty
man does not escape. Both are public duties. (See Stirland v. Director of
Public Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] — quoted with
approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003)
11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the
prosecution to lead evidence of such character which is almost impossible to be
led or at any rate extremely difficult to be led.
The duty on the
prosecution is to lead such evidence which it is capable of leading, having
regard to the facts and circumstances of the case. Here it is necessary to keep
in mind Section 106 of the Evidence Act which says that when any fact
is especially within the knowledge of any person, the burden of proving that
fact is upon him. Illustration (b) appended to this section throws some light
on the content and scope of this provision and it reads:
“(b) A is charged with
travelling on a railway without ticket. The burden of proving that he had a
ticket is on him.”
15. Where an offence
like murder is committed in secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon the prosecution, but the nature
and amount of evidence to be led by it to establish the charge cannot be of the
same degree as is required in other cases of circumstantial evidence. The
burden would be of a comparatively lighter character. In view of Section
106 of the Evidence Act there will be a corresponding burden on the
inmates of the house to give a cogent explanation as to how the crime was
committed. The inmates of the house cannot get away by simply keeping quiet and
offering no explanation on the supposed premise that the burden to establish
its case lies entirely upon the prosecution and there is no duty at all on an
accused to offer any explanation.
xxx xxx xxx
22. Where an accused
is alleged to have committed the murder of his wife and the prosecution
succeeds in leading evidence to show that shortly before the commission of
crime they were seen together or the offence takes place in the dwelling home
where the husband also normally resided, it has been consistently held that if
the accused does not offer any explanation how the wife received injuries or
offers an explanation which is found to be false, it is a strong circumstance
which indicates that he is responsible for commission of the crime. …”
(Emphasis
supplied)
73.
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. reported in (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
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 of the report: -
“31. The pristine rule
that the burden of proof is on the prosecution to prove the guilt of the
accused should not be taken as a recognized doctrine as though it admits
no process of intelligent reasoning. The doctrine of presumption is not alien
to the above rule, nor would it impair the temper of the rule. On the other
hand, if the traditional rule relating to burden of proof of the prosecution is
allowed to be wrapped in pedantic coverage, the offenders in serious offences
would be the major beneficiaries and the society would be the casualty.
32. In this case, when
the prosecution succeeded in establishing the afore-narrated circumstances, the
court has to presume the existence of certain facts. Presumption is a course
recognized by the law for the court to rely on in conditions such as this.
33. Presumption of
fact is an inference as to the existence of one fact from the existence of some
other facts, unless the truth of such inference is disproved. Presumption of
fact is a rule in law of evidence that a fact otherwise doubtful may be
inferred from certain other proved facts. When inferring the existence of a
fact from other set of proved facts, the court exercises a process of reasoning
and reaches a logical conclusion as the most probable position. The above
principle has gained legislative recognition in India when Section
114 is incorporated in the Evidence Act. It empowers the court to
presume the existence of any fact which it thinks likely to have happened. In
that process the court shall have regard to the common course of natural
events, human conduct etc. in relation to the facts of the case.
34. When it is proved to
the satisfaction of the Court that Mahesh was abducted by the accused and they
took him out of that area, the accused alone knew what happened to him until he
was with them. If he was found murdered within a short time after the abduction
the permitted reasoning process would enable the Court to draw the presumption
that the accused have murdered him. Such inference can be disrupted if the
accused would tell the Court what else happened to Mahesh at least until he was
in their custody.”
(Emphasis
supplied)
74.
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.
75.
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.
76. 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.
77. 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. In the language of Prof. Glanville Williams:
“All that the shifting
of the evidential burden does at the final stage of the case is to allow the
jury (Court) to take into account the silence of the accused or the absence of
satisfactory explanation appearing from his evidence.”
(Emphasis
supplied)
78.
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.
79.
But Section 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.
80.
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 countervailing 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 reported in 2023 SCC
OnLine SC 1261 and Anees v. State Govt. of NCT reported in 2024 INSC 368]
iv.
What is “prima facie case” (foundational facts) in the context of Section
106 of the Evidence Act?
81.
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.
82. 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.
83.
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.
84.
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)
85.
We should also look into the decision of this Court in the case of Ram
Gulam Chaudhary & Ors. v. State of Bihar reported in (2001) 8 SCC 311,
wherein this Court made the following observations in para 24 as under: -
“24. Even otherwise,
in our view, this is a case where Section 106 of the Evidence Act
would apply. Krishnanand Chaudhary was brutally assaulted and then a
chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy
Chaudhary had said “he is still alive and should be killed”. The appellants
then carried away the body. What happened thereafter to Krishnanand Chaudhary
is especially within the knowledge of the appellants. The appellants have given
no explanation as to what they did after they took away the body. Krishnanand
Chaudhary has not been since seen alive. In the absence of an explanation, and
considering the fact that the appellants were suspecting the boy to have
kidnapped and killed the child of the family of the appellants, it was for
the appellants to have explained what they did with him after they took him
away. When the abductors withheld that information from the court, there is
every justification for drawing the inference that they had murdered the boy.
Even though Section 106 of the Evidence Act may not be intended to
relieve the prosecution of its burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to cases like the present, 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)
86.
Cases are frequently coming before the Courts where the husbands, due to
strained marital relations and doubt as regards the character, have gone to the
extent of killing the wife. These crimes are generally committed in complete
secrecy inside the house and it becomes very difficult for the prosecution to
lead evidence. No member of the family like in the case on board, even if he is
a witness of the crime, would come forward to depose against another family
member.
87.
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 the time and in the circumstances of its choice, it will be
extremely difficult for the prosecution to lead direct evidence to establish
the guilt of the accused. It is to resolve such a situation that Section
106 of the Evidence Act exists in the statute book. In the case
of Trimukh Maroti Kirkan (supra), this Court observed that a
Judge does not preside over a criminal trial merely to see that no innocent man
is punished. The Court proceeded to observe that a Judge also presides to see
that a guilty man does not escape. Both are public duties. The law does not
enjoin a duty on the prosecution to lead evidence of such character, which is
almost impossible to be led, or at any rate, extremely difficult to be led. The
duty on the prosecution is to lead such evidence, which it is capable of
leading, having regard to the facts and circumstances of the case.
88.
We are of the view 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.
89.
We are of the view that the 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.
90.
This appeal reminds us of Justice V. R. Krishna Iyer’s observations
in Dharm Das Wadhwani v. State of U.P. reported in (1974) 4 SCC 267:
“The rule of benefit of reasonable doubt does not imply a frail willow bending
to every whiff of hesitancy. Judges are made of sterner stuff and must take a
practical view of legitimate inferences flowing from evidence, circumstantial
or direct.” The role of courts in such circumstances assumes greater importance
and it is expected of the courts to deal with like one on hand, cases in a more
realistic manner and not allow the criminals to go scot-free on account of
procedural technicalities, perfunctory investigation or insignificant
lacunas in the evidence as otherwise serious crimes would go unpunished. The courts
are expected to be sensitive in cases involving crime against women.
D.
CONCLUSION
91.
In the result, the present appeal succeeds and is hereby allowed. The impugned
judgment and order of acquittal passed by the High Court is hereby set aside,
and the judgment and order of conviction passed by the Trial Court in S.T. No.
197 of 2003 stands restored.
92.
The respondent accused shall surrender before the Trial Court within a period
of four weeks from today to undergo the sentence as imposed by the Trial Court.
93.
Pending application(s) if any, also stand disposed of.
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