If the accused failed to put question to the witness the presiding judge is duty bound to put that question under Section 165 of the Evidence Act

Appeal against acquittal

1. 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

Deceased died after screams

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.

Complainant lodged a death report under section 174 CrPC

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: –

“ …. ”

On enquiry it is revealed that respondent killed his wife

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.

FIR filed under section 302, 201 & 34 IPC against respondent

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: –

“ …. “

Investigation

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.

Final report filed against two accused one of them is juvenile

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.

Section 313 Cr.P.C questions and answers

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

Respondent convicted under sections 302, 201 read with 34 of the IPC

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 of Hon’ble High Corut acquitting the respondent

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: –

“ … “

State preferred appeal

23.In such circumstances, referred to above, the appellant State is here before this Court with the present appeal.

Analysis

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.

Section 118 IEA: There is no particular age was determined by the IEA for witness to testify

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.

How to examine child witness? Explained

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 Criminal Appeal No. 1669 of 2012 Page 38 of 93 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 illtreating 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.”

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)

Court must be precaution when appreciation of child witness is there must be no tutoring

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.

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.”

Since s.161 crpc statement of child witness has been recorded after a delay of more than 18 days tutoring could not be ruled out

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)

If the accused did not question the IO to explain the delay presiding judge must do it

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.

Court shall not discard evidence on account of procedural technicalities, perfunctory considerations of insignificant lacunas

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.

What is tutored testimony? Explained

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.

Tutored testimony: If any improvisation and inconsistent is there it must be eradicated only as per section 162 Cr.P.C r/w s. 145 IEA

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]

How to appreciate the witness testimony? Explained

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]

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.

Nothing on record shows that the child witness was a tutored 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

What is circumstantial evidence? Explained

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.

How to appreciate circumstantial evidence? Explained

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]

Literature in Circumstantial evidence: Described

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.

iii. Principles of Law governing the Applicability of Section 106 of the Evidence Act

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”.

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.

Hon’ble High Court ought to have applied section 106 IEA

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)

Literature applied for burden of proof

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.

When section 106 IEA has no application?

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.

Distinction between the burden of proof and burden of going forward with the evidence

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]  

Facts established by the prosecution in this 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.

Prima-facie is available to invoke section 106 IEA

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.

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

The judgment cites or relies on the following cases

1. Dattu Ramrao Sakhare v. State of Maharashtra – (1997) 5 SCC 341

2. Pradeep v. State of Haryana – 2023 SCC OnLine SC 777

3. Ratansinh Dalsukhbhai Nayak v. State of Gujarat – (2004) 1 SCC 64

4. Panchhi v. State of U.P. – (1998) 7 SCC 177

5. Suryanarayana v. State of Karnataka – (2001) 9 SCC 129

6. Trimukh Maroti Kirkan v. State of Maharashtra – (2006) 10 SCC 681

7. State of W.B. v. Mir Mohammad Omar and Ors. – (2000) 8 SCC 382

8. Shambhu Nath Mehra v. The State of Ajmer – AIR 1956 SC 404

9. Nagendra Sah v. State of Bihar – (2021) 10 SCC 725

10.Dharm Das Wadhwani v. State of U.P. – (1974) 4 SCC 267

11. Balvir Singh v. State of Uttarakhand – 2023 SCC OnLine SC 1261

12. Anees v. State Govt. of NCT – 2024 INSC 368

Party

The State of Madhya Pradesh (Appellant) vs. Balveer Singh (Respondent) – Criminal Appeal No. 1669 of 2012 – 2025 INSC 261 – 24th February 2025

Author’s note

A practical difficulty to the notice of the Hon’ble courts

As an active practising lawyer on the criminal trial side, what actually happens in the courts is, in the absence of the Assistant/Public Prosecutor in the courts, the presiding officers themselves are taking chief examination by putting leading questions and eliciting answers. Sometimes, this happens even in the presence of the APP or PP.

There is no doubt that the judicial officer/presiding judges have the ultimate power to question the witnesses while they are in the witness box. Still, when it comes to recording the answers of the witnesses, it seems from the record as if the answers were given as a reply to questions put in the chief or cross-examinations.

In other words, when a question was put to the witnesses by the presiding officers during the ongoing Chief or Cross-examination it does not come (not in every case) under the caption “court question(s) as per section 165 IEA” i.e., (questions put by the presiding judge), instead it comes directly in the record/deposition as if it were the answers to the questions put by the APP/PP or by the defence counsels in Chief or Cross examinations.