# Anees v. The State Govt. of NCT

- **Citation:** 2024 INSC 368
- **Court:** Supreme Court of India
- **Decided:** 2024-05-03
- **Case number:** Criminal Appeal No. 437 of 2015
- **Bench:** Dr. Dhananjaya Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anees-v-the-state-govt-of-nct-37752
- **Pages:** 50

## Headnote

Murder of appellant-accused's wife in their house in which the
appellant, deceased and their 5 year old daughter lived. s.106,
Evidence Act, 1872 was invoked and the appellant was convicted
u/s.302, IPC for the murder. Whether the High Court committed any
error in passing the impugned judgment affirming the conviction
of the appellant.
Headnotes
Evidence Act, 1872 - s.106 - Burden of proving fact especially
within knowledge - "prima facie case" (foundational facts) in
the context of s.106 - Murder of appellant-accused's wife in
the early morning hours in their house in which the appellant,
deceased and their 5-year-old daughter were living - s.106
was invoked, appellant convicted u/s.302 for the murder -
Correctness:
Held: s.106 would apply to cases where the prosecution could be
said to have succeeded in proving facts from which a reasonable
inference can be drawn regarding guilt of the accused - In the
present case, offence took place inside the four walls of the house
in which the appellant, deceased and their 5-year-old daughter were
living - The incident occurred in the early morning hours - When
the Investigating Officer (IO) reached the house of the appellant, he
found the deceased lying in a pool of blood - Appellant was also
present there - The defence put forward by the appellant that two
unidentified persons entered the house and inflicted injuries on the
deceased and also on his body was found to be false - Clothes
worn by the appellant at the time of the incident had blood stains
which matched with the blood group of the deceased - Further,
the conduct of the appellant in leading the IO and others to a drain
nearby his house and the discovery of the knife from the drain is a
[2024] 6 S.C.R.
165
Anees v. The State Govt. of NCT
relevant fact u/s.8, Evidence Act - Thus, in view of the aforesaid
foundational facts being duly proved, the courts below were justified
in invoking the principles enshrined u/s. 106 - High Court committed
no error in affirming the order of conviction passed by the trial
court, holding the appellant guilty of the offence of murder of his
wife - However, in view of the mitigating circumstances, appellant
at liberty to prefer representation to the State Government for
remission of sentence. [Paras 50, 56 and 84]
Evidence Act, 1872 - s.106 - Applicability - Principles of law:
Held: The ordinary rule that applies to the criminal trials that the
onus lies on the prosecution to prove the guilt of the accused is
not in any way modified by the rule of facts embodied in s.106 -
s.106 is an exception to s.101, Evidence Act - s.106 is designed
to meet certain exceptional cases in which it would be impossible,
or at any rate disproportionately difficult, for the prosecution to
establish the facts which are, "especially within the knowledge
of the accused and which, he can prove without difficulty or
inconvenience" - Court should apply s.106 in criminal cases
with care and caution - s.106 cannot be invoked to make up the
inability of the prosecution to produce evidence of circumstances
pointing to the guilt of the accused - It cannot be used to support
a conviction unless the prosecution has discharged the onus by
proving all the elements necessary to establish the offence - It
does not absolve the prosecution from the duty of proving that a
crime was committed even though it is a matter specifically within
the knowledge of the accused and it does not throw the burden
on the accused to show that no crime was committed - To infer
the guilt of the accused from absence of reasonable explanation
in a case where the other circumstances are not by themselves
enough to call for his explanation is to relieve the prosecution of
its legitimate burden - So, until a prima facie case is established
by such evidence, the onus does not shift to the accused. [Paras
36, 43, 44]
Evidence Act, 1872 - s.106 - Burden of proving fact especially
within knowledge - "especially" - Meaning:
Held: s.106 provides that when any fact

## Text

_Characters 0–39,927 of 109,139. This is a partial read: ask again with offset=39927 for what follows._

* Author
[2024] 6 S.C.R. 164 : 2024 INSC 368
Anees
v.
The State Govt. of NCT
(Criminal Appeal No. 437 of 2015)
03 May 2024
[Dr. Dhananjaya Y. Chandrachud, CJI,
J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
Murder of appellant-accused's wife in their house in which the
appellant, deceased and their 5 year old daughter lived. s.106,
Evidence Act, 1872 was invoked and the appellant was convicted
u/s.302, IPC for the murder. Whether the High Court committed any
error in passing the impugned judgment affirming the conviction
of the appellant.
Headnotes
Evidence Act, 1872 - s.106 - Burden of proving fact especially
within knowledge - "prima facie case" (foundational facts) in
the context of s.106 - Murder of appellant-accused's wife in
the early morning hours in their house in which the appellant,
deceased and their 5-year-old daughter were living - s.106
was invoked, appellant convicted u/s.302 for the murder -
Correctness:
Held: s.106 would apply to cases where the prosecution could be
said to have succeeded in proving facts from which a reasonable
inference can be drawn regarding guilt of the accused - In the
present case, offence took place inside the four walls of the house
in which the appellant, deceased and their 5-year-old daughter were
living - The incident occurred in the early morning hours - When
the Investigating Officer (IO) reached the house of the appellant, he
found the deceased lying in a pool of blood - Appellant was also
present there - The defence put forward by the appellant that two
unidentified persons entered the house and inflicted injuries on the
deceased and also on his body was found to be false - Clothes
worn by the appellant at the time of the incident had blood stains
which matched with the blood group of the deceased - Further,
the conduct of the appellant in leading the IO and others to a drain
nearby his house and the discovery of the knife from the drain is a
[2024] 6 S.C.R.
165
Anees v. The State Govt. of NCT
relevant fact u/s.8, Evidence Act - Thus, in view of the aforesaid
foundational facts being duly proved, the courts below were justified
in invoking the principles enshrined u/s. 106 - High Court committed
no error in affirming the order of conviction passed by the trial
court, holding the appellant guilty of the offence of murder of his
wife - However, in view of the mitigating circumstances, appellant
at liberty to prefer representation to the State Government for
remission of sentence. [Paras 50, 56 and 84]
Evidence Act, 1872 - s.106 - Applicability - Principles of law:
Held: The ordinary rule that applies to the criminal trials that the
onus lies on the prosecution to prove the guilt of the accused is
not in any way modified by the rule of facts embodied in s.106 -
s.106 is an exception to s.101, Evidence Act - s.106 is designed
to meet certain exceptional cases in which it would be impossible,
or at any rate disproportionately difficult, for the prosecution to
establish the facts which are, "especially within the knowledge
of the accused and which, he can prove without difficulty or
inconvenience" - Court should apply s.106 in criminal cases
with care and caution - s.106 cannot be invoked to make up the
inability of the prosecution to produce evidence of circumstances
pointing to the guilt of the accused - It cannot be used to support
a conviction unless the prosecution has discharged the onus by
proving all the elements necessary to establish the offence - It
does not absolve the prosecution from the duty of proving that a
crime was committed even though it is a matter specifically within
the knowledge of the accused and it does not throw the burden
on the accused to show that no crime was committed - To infer
the guilt of the accused from absence of reasonable explanation
in a case where the other circumstances are not by themselves
enough to call for his explanation is to relieve the prosecution of
its legitimate burden - So, until a prima facie case is established
by such evidence, the onus does not shift to the accused. [Paras
36, 43, 44]
Evidence Act, 1872 - s.106 - Burden of proving fact especially
within knowledge - "especially" - Meaning:
Held: s.106 provides that when any fact is especially within the
knowledge of any person, the burden of proving that fact is upon
him - The word "especially" means facts that are pre-eminently
or exceptionally within the knowledge of the accused - s.106
166
[2024] 6 S.C.R.
Digital Supreme Court Reports
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
[2024] 6 S.C.R.
167
Anees v. The State Govt. of NCT
- 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:
168
[2024] 6 S.C.R.
Digital Supreme Court Reports
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 -
[2024] 6 S.C.R.
169
Anees v. The State Govt. of NCT
In such circumstances, neither the public prosecutor nor the
presiding officer of the trial court can afford to remain remiss
or lackadaisical - After PW-3 was declared hostile, all that the
public prosecutor did was to put few suggestions to her for
the purposes of cross-examination - Surprisingly, even proper
contradictions were not brought on record - PW-3 was not
even appropriately confronted with her police statement - It is
not sufficient for the public prosecutor while cross-examining a
hostile witness to merely hurl suggestions, as mere suggestions
have no evidentiary value - Trial judge also failed to play an
active role in the present case. [Paras 67, 70, 71]
Criminal Justice System - Criminal Trial - Public Prosecutors
- Appointment of - Consideration for appointment should not
be political but only merit of the person:
Held: There should not be any element of political consideration
in appointment to the post of public prosecutor, etc. - The only
consideration for the Government should be the merit of the person
- The person should be not only competent, but he should also
be a man of impeccable character and integrity - He should be
a person who should be able to work independently without any
reservations, dictates or other constraints. [Para 67]
Criminal Trial - Cross-examination of a hostile witness by
public prosecutor - Absence of effective and meaningful
cross-examination - Deprecated- Evidence Act, 1872 - s.165
- Code of Criminal Procedure, 1973 - s.311- Duty of Trial
Judge, Public Prosecutor:
Held: Public Prosecutors merely confront the hostile witness with
his/her police statement recorded u/s.161 and contradict him/her
with the same - They only bring the contradictions on record and
thereafter prove such contradictions through the evidence of the
IO - This is not sufficient - It is the duty of the Public Prosecutor
to cross-examine a hostile witness in detail and try to elucidate
the truth and also establish that the witness is speaking lie and
has deliberately resiled from his police statement recorded u/s.161
- If the questioning by the public prosecutor is not skilled, like
in the case at hand, the result is that the State as a prosecuting
agency will not be able to elicit the truth from the child witness
- It is the duty of the court to arrive at the truth and subserve
the ends of justice - Courts have to take a participatory role in
the trial and not act as mere tape recorders to record whatever
170
[2024] 6 S.C.R.
Digital Supreme Court Reports
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
[2024] 6 S.C.R.
171
Anees v. The State Govt. of NCT
"evidence sufficient in law to raise a presumption of fact or
establish the fact in question unless rebutted" - In both civil
and criminal law, the term is used to denote that, upon initial
examination, a legal claim has sufficient evidence to proceed
to trial or judgment - In most legal proceedings, one party
(typically, the plaintiff or the prosecutor) has a burden of proof,
which requires them to present prima facie evidence for each
element of the case or charges against the defendant - If they
cannot present prima facie evidence, the initial claim may be
dismissed without any need for a response by other parties -
Evidence. [Para 49]
Case Law Cited
Shambhu Nath Mehra v. The State of Ajmer [1956]
1 SCR 199 : AIR 1956 SC 404; Nagendra Sah v.
State of Bihar (2021) 10 SCC 725; Tulshiram Sahadu
Suryawanshi and Anr. v. State of Maharashtra [2012] 7
SCR 1083 : (2012) 10 SCC 373; Trimukh Maroti Kirkan
v. State of Maharashtra [2006] Supp. 7 SCR 156 :
(2006) 10 SCC 681; State of W.B. v. Mir Mohammad
Omar and Ors. [2000] Supp. 2 SCR 712 : (2000) 8
SCC 382; Balvir Singh v. State of Uttarakhand [2023]
12 SCR 815 : (2023) SCC OnLine 1261; Ram Gulam
Chaudhary & Ors. v. State of Bihar [2001] Supp. 3
SCR 279 : (2001) 8 SCC 311; Madan Singh v. State of
Rajasthan 1979 SCC (Cri) 56; Mohd. Aslam v. State of
Maharashtra (2001) 9 SCC 362; Anter Singh v. State
of Rajasthan [2004] 2 SCR 123 : (2004) 10 SCC 657;
A.N. Venkatesh and Anr. v. State of Karnataka (2005)
7 SCC 714; State (NCT of Delhi) v. Navjot Sandhu
alias Afsan Guru [2003] Supp. 1 SCR 130 : (2005) 11
SCC 600; V.K. Mishra v. State of Uttarakhand (2015) 9
SCC 588; Zahira Habibulla H. Sheikh & Anr. vs. State
of Gujarat & Ors. 2004 3 SCR 1050 : (2004) 4 SCC
158; State of Rajasthan vs. Ani alias Hanif & Ors. AIR
(1997) SC 1023; Vishal Singh v. State of Rajasthan
[2009] 3 SCR 444 : (2009) Cri. LJ 2243; Kikar Singh
v. State of Rajasthan [1993] 3 SCR 696 : AIR 1993 SC
2426 - relied on.
Sharad Birdhichand Sarda v. State of Maharashtra
[1985] 1 SCR 88 : (1984) 4 SCC 116 - referred to.
172
[2024] 6 S.C.R.
Digital Supreme Court Reports
Director of Public Prosecutions, Transwal v. Minister of
Justice and Constitutional Development (2009) 4 SA
222 (CC) - referred to.
Books and Periodicals Cited
Professor Glanville Williams - Proof of Guilt, Ch. 7, page 127
and following) and the interesting discussion - para 527 negative
averments and para 528 - "require affirmative counter-evidence"
at page 438 and foil, of Kenny's outlines of Criminal Law, 17th
Edn. 1958; Webster's Third International Dictionary (1961 Edn.)
- referred to.
List of Acts
Evidence Act, 1872; Code of Criminal Procedure, 1973; Penal
Code, 1860.
List of Keywords
Section 106 of Evidence Act, 1872; Fact especially within
knowledge; Murder; Prima facie case; Foundational facts;
Relevant fact; Conduct of accused; Weapon of offence;
Intention; Disclosure statement; Discovery panchnama; Sole
eyewitness; Hostile witnesses; Cross-examination of hostile
witness; Contradicting witness; Contradictions; Suggestions;
Confrontation with police statement; Confronting hostile witness;
Public prosecutor; Child witness; Participatory role; Mere tape
recorders; Inside the house; Complete secrecy; Positive facts;
Negative facts; Exception 4 to s.300, Penal Code, 1860; Cruel
manner; Mitigating circumstances.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 437
of 2015
From the Judgment and Order dated 23.05.2014 of the High Court
of Delhi at New Delhi in CRLA No. 320 of 1998
Appearances for Parties
Rishi Malhotra, Adv. for the Appellant.
Apoorv Kurup, Mukesh Kumar Maroria, Sanjay Kumar Tyagi, Mani
Munjal, Vinayak Sharma, Raman Yadav, Advs. for the Respondent.
[2024] 6 S.C.R.
173
Anees v. The State Govt. of NCT
Judgment / Order of the Supreme Court
Judgment
J. B. Pardiwala, J.:
For the convenience of exposition, this judgment is divided in the
following parts: -
INDEX*
A.
CASE OF THE PROSECUTION ..................................... 3
B.
SUBMISSIONS ON BEHALF OF THE APPELLANT ..... 15
C.
SUBMISSIONS ON BEHALF OF THE STATE ..............
17
D.
ANALYSIS ....................................................................... 19
i.
Principles of law governing the applicability of
Section 106 of the Evidence Act ..........................
19
ii.
What is "prima facie case" (foundational facts) in
the context of Section 106 of the Evidence Act?.. 30
iii.
Discovery of weapon under Section 27 of the
Evidence Act ...........................................................
35
iv.
Cross-examination by the public prosecutor of a
hostile witness ........................................................ 38
v.
Whether the appellant is entitled to the benefit of
Exception 4 to Section 300 of the IPC? ..............
47
1.
This appeal is at the instance of a convict accused for the offence
punishable under Section 302 of the Indian Penal Code, 1860 (for
short, "the IPC") and is directed against the judgment and order dated
23.05.2014 passed by the High Court of Delhi in Criminal Appeal No.
320 of 1998 filed by the appellant herein by which the High Court
dismissed the appeal and thereby affirmed the judgment and order
of conviction passed by the Additional Sessions Judge, Karkardooma
Court, Delhi in Sessions Case No. 176 of 1996 holding the appellant
guilty of the offence of murder punishable under Section 302 of the
IPC and sentencing him to undergo life imprisonment with a fine of Rs.
5,000/-. In the event of default in the payment of the fine, the appellant
was directed to undergo further rigorous imprisonment for six months.
* Ed. Note: Pagination as per the original Judgment.
174
[2024] 6 S.C.R.
Digital Supreme Court Reports
A.
CASE OF THE PROSECUTION
2.
The deceased, namely, Saira was married to the appellant. The
marriage of the deceased with the appellant was solemnised in 1982
in accordance with the Muslim rites and customs. In the wedlock, a
daughter named Shaheena was born, who, at the time of the incident
in 1995, was five years of age.
3.
On 29.12.1995, at about 4:00 am, a wireless operator of the Delhi
Police informed one lady constable who was on duty in a PCR
that a woman had been stabbed in House No. 220, Gali No. 3,
Mustafabad and that a responsible police officer may be asked to
reach at the spot of occurrence. The said information was conveyed
by the lady constable to the duty officer at P.S. Gokulpuri, who, in
turn, reduced the same in writing and forwarded a copy thereof to
S.I. Mohkam Singh for inquiry.
4.
When S.I. Mohkam Singh, along with the SHO of the concerned
Police Station, reached the place of occurrence, he found the
deceased lying in a pool of blood, having suffered multiple deep
stabbed wounds in the abdomen and other parts of the body. The
appellant herein was also present at the place of occurrence. It
was noticed that the appellant had also suffered a few superficial
injuries. Both, the deceased and the appellant, were sent to the
hospital where the deceased was declared as brought dead and
the appellant was declared fit for the purpose of interrogation and
was discharged after some preliminary treatment.
5.
The investigation revealed that the marital relationship of the appellant
with the deceased was strained on account of the deceased leaving
the house all of a sudden without the permission of the appellant
and thereafter returning late in the night hours. This was not liked
by the appellant. On several occasions, altercations used to take
place between the appellant and the deceased on such issues. It is
the case of the prosecution that on the fateful night of the incident,
an altercation took place between the appellant and the deceased,
as a result, the appellant is alleged to have inflicted stab injuries
indiscriminately with a knife all over the body of the deceased. It is
also the case of the prosecution that the minor daughter Shaheena
was the sole eyewitness to the incident.
[2024] 6 S.C.R.
175
Anees v. The State Govt. of NCT
6.
In such circumstances referred to above, a rukka was prepared by
the Investigating Officer and sent to the concerned Police Station
based upon which the First Information Report No. 728 of 1995 was
registered against the appellant for the offence punishable under
Section 302 of the IPC.
7.
The contents of the FIR are reproduced herein below:
"FIRST INFORMATION REPORT
First Information of a Cognisable Crime Reported under
Section 154 Cr.PC.
FIR NO. 728/95
Date and hour of occurrence
1
Date AND
29-12-95 AT 4 AM
2
Name and residence
o f i n f o r m a t i o n a n d
complainant
DD No. 2A Dt: 20.12.95 at
7 AM Writing of Information
S.I. Mohkam Singh.
3
Brief description of the
offence (with section) and
of property carried off, if any
Under Section 302 IPC
4
Place of occurrence and
distance and direction from
Police Station
5
Name and Address of the
Criminal
House No. 220 Old
Hustafabi Uttar Pradesh,
Distance 1 1⁄2
6
Steps taken regarding
investigation explanation
of delay in recording
information
No one stand responsible
for such delay in this
regard.
7
Date and time of dispatch
from police station
Thro special way.
Through wireless information was received that in Gali
No.2 in House No. 222 near illegible factory knife blow
has been given and some one be sent to the place of
occurrence. On receiving the information, Constable
Belt No.1 and SI Karam Singh left the police station
176
[2024] 6 S.C.R.
Digital Supreme Court Reports
in government vehicle and constable illegible on the
spot House no. 220 Gali No. 3 Old Mustaffa Bad. Over
there the dead body of the deceased Saira was found
on whose neck and stomach there were deep injuries
and blood was pouring out over there, Aneesh husband
of Saira was also present on the spot illegible. From
there, we took them in government vehicle PR from the
spot by constable available 1258 in government vehicle
to GTB Hospital and ML No. illegible was prepared
in which Saira was mentioned in writing illegible. On
relatives coming, statements were recorded on the
basis of illegible offence under Section 302/324 IPC was
registered on diary at No.1175. Information may be noted
in the rojnaamcha and myself illegible with crime team
along with photographer proceeded of the occurrence
and prepared report. On 29.12.95 at about 4 p.m. went
to the House no. 220 Gali No. 3 Old Mustaffa Bad and
the writing was made on 29.12.95 illegible signed of local
SI PS Gokulpuri 27.12.95 police proceeding at this time
on receipt of these writing in Hindi the case regarding
the office by constable Gayasudeen No.11751. Case has
been registered in the register."
8.
In the course of the investigation, the Investigating Officer recorded the
statement of Shaheena, the five-year old daughter of the deceased.
Shaheena in her police statement stated that upon hearing the cries
and shouts in the night hours, she woke up and witnessed her father,
i.e., the appellant herein inflicting knife injuries on the body of her
mother, i.e., the deceased.
9.
The post-mortem of the dead body of the deceased was performed
at the G.T.B. Hospital, Shahdara, Delhi. In the post-mortem report,
the following injuries came to be noted:
"1.
Incised wound 4 cm x 1.04 cm present over outer
aspect of wound of left thumb.
2.
Incised wound 2 cm x 0.8 cm x 0.7 cm present over
palmar aspect of proximal phalanx of left thumb.
3.
Incised wound 1 cm x 0.3 cm 0.3 cm present over
dorsal aspect of middle phalanx of left ring finger.
[2024] 6 S.C.R.
177
Anees v. The State Govt. of NCT
4.
Linear scratch 2 cm x 0.1 present over front of left
arm, 4 cm above elbow joint.
5.
Incised wound 6 cm x 1 cm x 0.6 cm present over
front and inner aspect of left knee joint.
6.
Incised wound 5 cm x 1 cm x 2 cm present over outer
aspect of right thigh placed 7 cm above the knee joint.
7.
Incised wound 1.3 cm x 0.1 x 0.5 cm present over
palmer aspect of terminal phalanx of right middle
finger.
8.
Incised wound 2 cm x 0.3 x 0.5 cm present over
palmar aspect of phalanx of right ring finger cutting
the underlined wound.
9.
Liner scratch 4 cm x 0.2 cm present over outer aspect
of top of right shoulder.
10. Incised stab wound 4 cm x 0.5 cm present over front of
abdomen in midline 2.5 cm below the xphoid process.
It is obliquely placed clean cut margin and one angle
of the wound being more acute than the other on
dissection. The track of the wound is going laterally,
upwards and posteriorly, cutting the left lobe of liver
cutting the pericardia sec. and dominated on cutting
an entry the right auricle of heart. Haemorrhages and
extravasation of blood presentation with the track of
wound. Depth of wound is 9 cm.
11. Incised stab wound present obliquely in midline over
front of abdomen with interesting protruding out of
the wound. It measures 4.5 x 0.2 cm and is placed
5 cm above the umbilicus. It has clean cut margin
and one angle of the wound is more acute than the
other. On dissection, the track of the wound is going
up posteriorly and laterally and dominated by cutting
the mesenteric blood vessels. Haemorrhage present
in the mesentery depth of wound is 8 cm.
12. Incised cut through wound of neck measuring 10 cm x
2 cm into 4 cm present horizontally above the thyroid
178
[2024] 6 S.C.R.
Digital Supreme Court Reports
cartilage. Upper margin of the wound is placed 55
cm below chin and lower margin is 6 cm above the
sterna notch. All soft tissues of the neck, measure
blood vessel trachea and oesophagus have been cut
through into till the vertebral column. Haemorrhage
and extra vacation or blood present in the soft tissues
of the wound.
13. Red abrasion 2.5 cm x 0.3 cm present in midline
over front of neck 1.5 cm below chin.
14. Red abrasion 2 cm. x 0.3 cm over left side of face
1.5 cm below the left eye."
10. The weapon of offence, i.e., the knife was also discovered at the
instance of the appellant herein by drawing a panchnama under
the provisions of Section 27 of the Indian Evidence Act, 1872
(for short, 'the Evidence Act'). The blood-stained clothes of the
deceased as well as those of the appellant herein were collected
and sent to the Forensic Science Laboratory for chemical analysis.
The statements of various other witnesses were recorded under
Section 161 of the Code of Criminal Procedure, 1973 (for short,
the "Cr.P.C.").
11. Upon completion of the investigation, the Investigating Officer filed
a chargesheet for the offence punishable under Section 302 of the
IPC in the Court of Metropolitan Magistrate, Karkardooma Courts,
Delhi, who, in turn, committed the case to the Court of Sessions
Judge, Karkardooma Courts, which culminated in the Sessions
Case No. 176 of 1996.
12. The appellant pleaded not guilty to the charge framed by the
Sessions Court and claimed to be tried.
13. The prosecution examined 17 witnesses in support of the charge.
Shaheena (PW-3), was examined as the sole eye-witness to the
incident. Shakeel Ahmad (PW-4), the brother of the deceased,
and Rafiq (PW-11), the father of the deceased, were examined to
establish the demand of dowry by the appellant from the deceased,
and the harassment caused by him towards his deceased wife. Dr.
Sayed Ali (PW-9), the neighbour of the appellant, was examined as
a panch witness to prove the contents of the discovery panchnama
of the knife used in the commission of the crime.
[2024] 6 S.C.R.
179
Anees v. The State Govt. of NCT
14. It is the case of the prosecution that the knife was discovered from
a drain outside the house of the appellant, as pointed out by him, in
the presence of the Investigating Officer and the panch witnesses.
15. The prosecution also examined the following official witnesses:
a.
Constable Munni Khan, who was on duty at the PCR at the
time of the incident (PW-5)
b.
Constable Govind Singh, duty officer at the Gokulpuri P.S. at
the time of the incident (PW-8)
c.
Constable Giasuddin, witness to the discovery of the knife
(PW-16)
d.
S.I. Mohkam Singh, Investigating Officer of the case (PW-17)
16. It is pertinent to note that Shaheena (PW-3), the sole eye-witness to
the incident, failed to support the case of the prosecution and was
declared a hostile witness. She deposed before the trial court that
upon hearing the noise and shrieks of her parents, she woke up in
the night hours and saw that thieves had entered into their house
and were assaulting her parents. She deposed that the thieves had
a knife and they inflicted knife injuries on both her parents. She,
however, admitted that she saw her mother lying on the floor bleeding
profusely. However, she denied that it was the appellant who had
inflicted injuries upon the deceased with a knife. She also denied
that the relations of her parents were strained.
17. Dr. Sayed Ali, PW-9, the panch witness to the discovery panchnama
also did not support the case of the prosecution and was declared
as a hostile witness.
18. Dr. Anil Kohli, PW-1, who conducted the post-mortem on the dead
body of the deceased, deposed that all the injuries were ante-mortem
in nature and were sufficient in the ordinary course of nature to cause
death, and more particularly the injuries no. 1-12 respectively were
possible by a dagger/knife.
19. Upon conclusion of the oral evidence, the further statement of the
appellant was recorded by the trial court. In his statement recorded
under Section 313 of the Cr.P.C., the appellant stated as under:
"I along with my wife deceased and my daughter Shaheena
was sleeping in my house. Two persons caused injuries
180
[2024] 6 S.C.R.
Digital Supreme Court Reports
to my wife. I tried to save her but I was also hurt by those
persons. I do not know as to why those strangers caused
injuries to my wife. I am innocent. After causing the injuries
those persons fled away from there."
20. The trial court, upon appreciation of the oral as well as documentary
evidence on the record, held the appellant guilty of the offence of
murder punishable under Section 302 of the IPC and sentenced
him to undergo imprisonment for life and pay a fine of Rs. 5,000/.
In the event of default in the payment of the fine, the trial court
directed the appellant to undergo further rigorous imprisonment
for six months.
21. The appellant, feeling dissatisfied with the judgment and order of
conviction passed by the trial court, went in appeal before the High
Court. The High Court dismissed the appeal and thereby affirmed
the judgment and order of the conviction passed by the trial court.
The High Court, while affirming the judgment and order of conviction
passed by the trial court, held as under:
"10. PW-17's testimony that the appellant refused to
make the statement as to the incident and on the other
hand, his disclosure that he would make the statement
later on, on arrival of his relatives speaks volume that
the appellant wanted to invent some story by gaining
time. Had two intruders actually caused injuries on the
person of deceased Saira as has been subsequently
propounded by the appellant, he would have immediately
informed the police about the same so that the culprits
are immediately caught and brought to book. PW17's testimony that the appellant wanted to make
the statement later on only on arrival of his relatives
was not challenged by the appellant in PW-17's cross
examination. At this stage, it would be appropriate to
advert to the explanation given by the appellant in reply
to question No. 12 in his statement under Section 313
Cr.P.C. which is extracted as under:-
"Q.12 Have you anything else to say?
Ans. I along with my wife, deceased, and my daughter
Siana was sleeping in my house. Two persons caused
[2024] 6 S.C.R.
181
Anees v. The State Govt. of NCT
injuries to my wife. I tried to save her but I was also
hurt by those persons. I do not know as to why those
strangers caused injuries to my wife. I am innocent.
After causing the injuries those persons fled away
from there."
11. The explanation that two persons had caused injuries
on the person of deceased Saira was admittedly not put
to PW-17 in his cross examination. Had there been any
truth in the explanation propounded by the appellant, he
would not have been content to simply state that the injuries
were caused by two persons, he would have given the
detailed description (as far as possible) of the assailants
as also the motive as to why the deceased alone was
targeted particularly, when robbery was not the motive
of the injuries alleged to have been inflicted by the two
unknown intruders. Intrusion into the house by unknown
third persons would have resulted in tell tail and revelatory
evidence. There is no indication or suggestion relating to
the said evidence.
xxx xxx xxx
18. As stated earlier, it is proved by overwhelming evidence
and is not even disputed by the appellant that deceased
Saira was inflicted injuries inside the matrimonial home
(of the appellant and the deceased). Initially, the appellant
was completely silent as to how his deceased wife suffered
injuries. He told the I.O. that he would make a statement
later on only when his relations would arrive. As we have
pointed out earlier, in cross-examination of the I.O. and
even in his statement under Section 313 Cr.P.C., the
appellant has not given the details of the intruders. From
the appellant's conduct in not disclosing to the I.O. as
to how his deceased wife suffered fatal injuries, there
was a lurking doubt even at that very time that it was
only the appellant who was responsible for causing the
injuries unless something material was really brought
out by the appellant. Nothing prevented the appellant to
have disclosed about the incident immediately when the
182
[2024] 6 S.C.R.
Digital Supreme Court Reports
police reached the spot that the injuries were inflicted on
his deceased wife by two unknown intruders. There was
no indication or giveaway to show the presence of third
parties who intentionally targeted the deceased. All these
facts taken together, i.e. nondisclosure of the information
about the incident to the police, not giving the details of
the two intruders even in his statement under Section
313 Cr.P.C. etc. would really show that the explanation
given by the appellant was false which would become an
additional link in the chain of circumstantial evidence in
view of Manu Sao v. State of Bihar, (2010) 12 SCC 310.
19.In Munna Kumar Upadhyay @ Munna Upadhyaya
v. State of Andhra Pradesh, (2012) 6 SCC 174, it was
reiterated that if the accused gave incorrect or false
answers during the course of his statement under Section
313 Cr.P.C., the Court can draw an adverse inference
against him. In para 76 of the report, the Supreme Court
observed as under:-
"76. If the accused gave incorrect or false answers
during the course of his statement under Section
313 Cr.P.C., the court can draw an adverse inference
against him. In the present case, we are of the
considered opinion that the accused has not only
failed to explain his conduct, in the manner in which
every person of normal prudence would be expected
to explain but had even given incorrect and false
answers. In the present case, the Court not only
draws an adverse inference, but such conduct of
the accused would also tilt the case in favour of the
prosecution."
20.