Anees vs The State Govt. of NCT

Evidence Act, 1872 – s.106 – Applicability – Principles of law: Held: The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in s.106 – s.106 is an exception to s.101, Evidence Act – s.106 is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience” – Court should apply s.106 in criminal cases with care and caution – s.106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused – It cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence – It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed – To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden – So, until a prima facie case is established by such evidence, the onus does not shift to the accused. [Paras 36, 43, 44]

Evidence Act, 1872 – s.106 – Burden of proving fact especially within knowledge – “especially” – Meaning:

Held: s.106 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him – The word “especially” means facts that are pre-eminently or exceptionally within the knowledge of the accused – s.106 refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge, which would render the evidence of the prosecution nugatory – If in such a situation, the accused offers an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit – But, if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn against him. [Paras 36, 45]

Evidence Act, 1872 – ss.8, 27 – ‘conduct’ – “relevant fact” – Weapon of offence, the knife was discovered at the instance of the appellant by drawing panchnama u/s.27:

Held: Conduct of the appellant in leading the IO and others to a drain nearby his house and the discovery of the knife from the drain is a relevant fact u/s.8 – In other words, the evidence of the circumstance simpliciter that the appellant pointed out to the IO the place where he threw away the weapon of offence i.e., knife would be admissible as ‘conduct’ u/s.8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of s.27 – Even while discarding the evidence in the form of discovery panchnama, the conduct of the appellant would be relevant u/s.

8 – The evidence of discovery would be admissible as conduct u/s.8 quite apart from the admissibility of the disclosure statement u/s.27. [Paras 56(e), 59]

Evidence – Positive facts vis-à-vis negative facts – Rules shifting the evidential burden or burden of introducing evidence in proof of one’s case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution:

Held: What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one’s case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is, therefore, for the accused to give evidence on them if he wishes to escape – Positive facts must always be proved by the prosecution – But the same rule cannot always apply to negative facts – It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused – When a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions – If the accused had a different intention that is a fact especially within his knowledge and which he must prove. [Para 46]

Evidence Act, 1872 – s.106 – Inapplicable when fact in question capable of being known not only to the accused but also to others:

Held: s.106 has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place – The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived – Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary. [Para 47] Evidence Act, 1872 – s.8 – Conduct of the accused though relevant u/s.8, however, it alone cannot form the basis of conviction:

Held: Although the conduct of an accused may be a relevant fact u/s.8, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder – Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect – Thus, the conduct of the accused alone, though may be relevant u/s.8 cannot form the basis of conviction. [Para 61] Evidence – Distinction between burden of proof and burden of explanation – Discussed. [Para 48]

Evidence Act, 1872 – s.106 – Burden of proving fact especially within knowledge – Crimes committed in complete secrecy – Difficulty faced by prosecution to lead direct evidence: Held: Cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife – These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence – No member of the family even if he is a witness of the crime, would come forward to depose against another family member – If an offence takes place inside the four walls of a house where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused – It is to resolve such a situation that s.106 exists in the statute book. [Paras 54, 55]

Code of Criminal Procedure, 1973 – ss.161(1), 162(1) – Evidence Act, 1872 – s.145:

Held: Statement made by a witness before the police u/s.161(1) can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to s.162(1) – Court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court – The words ‘if duly proved’ used in s.162 clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can be looked into, but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the IO – The statement before the IO can be used for contradiction but only after strict compliance with s.145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction. [Para 64]

Evidence Act, 1872 – s.145 – Cross-examination as to previous statements in writing – Appellant murdered his wife in their house – Case of the prosecution that the minor daughter (PW-3) was the sole eyewitness to the incident – However, she later turned hostile – Cross-examination by public prosecutor: Held: In the present case, not only proper contradictions were not brought on record in the oral evidence of the hostile witnesses, but even those few that were brought on record, were not proved through the evidence of the IO – Such procedural lapses may lead to a very serious crime going unpunished – In such circumstances, neither the public prosecutor nor the presiding officer of the trial court can afford to remain remiss or lackadaisical – After PW-3 was declared hostile, all that the public prosecutor did was to put few suggestions to her for the purposes of cross-examination – Surprisingly, even proper contradictions were not brought on record – PW-3 was not even appropriately confronted with her police statement – It is not sufficient for the public prosecutor while cross-examining a hostile witness to merely hurl suggestions, as mere suggestions have no evidentiary value – Trial judge also failed to play an active role in the present case. [Paras 67, 70, 71] Criminal Justice System – Criminal Trial – Public Prosecutors – Appointment of – Consideration for appointment should not be political but only merit of the person:

Held: There should not be any element of political consideration in appointment to the post of public prosecutor, etc. – The only consideration for the Government should be the merit of the person – The person should be not only competent, but he should also be a man of impeccable character and integrity – He should be a person who should be able to work independently without any reservations, dictates or other constraints. [Para 67] Criminal Trial – Cross-examination of a hostile witness by public prosecutor – Absence of effective and meaningful cross-examination – Deprecated– Evidence Act, 1872 – s.165 – Code of Criminal Procedure, 1973 – s.311– Duty of Trial Judge, Public Prosecutor:

Held: Public Prosecutors merely confront the hostile witness with his/her police statement recorded u/s.161 and contradict him/her with the same – They only bring the contradictions on record and thereafter prove such contradictions through the evidence of the IO – This is not sufficient – It is the duty of the Public Prosecutor to cross-examine a hostile witness in detail and try to elucidate the truth and also establish that the witness is speaking lie and has deliberately resiled from his police statement recorded u/s.161 – If the questioning by the public prosecutor is not skilled, like in the case at hand, the result is that the State as a prosecuting agency will not be able to elicit the truth from the child witness – It is the duty of the court to arrive at the truth and subserve the ends of justice – Courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses – The judge has to monitor the proceedings in aid of justice – Even if the prosecutor is remiss or lethargic in some ways, the court should control the proceedings effectively so that the ultimate objective that is the truth is arrived at – Court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency – Upon their failure showing indifference or adopting an attitude of aloofness, the trial judge must exercise the vast powers conferred u/s.165 of the Evidence Act and s. 311 CrPC – The judge is expected to actively participate in the trial, elicit necessary materials from the witnesses in the appropriate context which he feels necessary for reaching the correct conclusion – The judge has uninhibited power to put questions to the witness either during the chief examination or cross-examination or even during re-examination for this purpose. [Paras 69, 73, 74]

Penal Code, 1860 – Exception 4 to s.300 – Benefit, when not available – Appellant murdered his wife in their house – Alternatively, appellant pleaded that the incident occurred in the heat of the moment without any pre-meditation as it could be a sudden fight between the two in the heat of passion upon a sudden quarrel:

Held: Exception 4 can be invoked if death is caused without premeditation; in a sudden fight; without the offenders having taken undue advantage or having acted in a cruel or unusual manner; and the fight must have been with the person killed – To bring a case within Exception 4, all the ingredients must be found – Benefit of Exception 4 cannot be given to the offender where he takes undue advantage or has acted in a cruel or an unusual manner – If the weapon used or the manner of attack by the assailant is disproportionate, that circumstance must be taken into consideration to decide whether undue advantage has been taken – Appellant inflicted as many as twelve blows with a knife on the deceased who was unarmed and helpless – Appellant took undue advantage and acted in a cruel manner – The present case is not one of culpable homicide not amounting to murder but of murder. [Paras 80, 82 and 83]

Words & Phrases – “prima facie case” – Meaning: Held: The Latin expression prima facie means “at first sight”, “at first view”, or “based on first impression” – It means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted” – In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment – In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant – If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties – Evidence. [Para 49]