Public Prosecutor has a duty to cross-examine hostile witness in detail; Courts have to take a participatory role in the trial and not act as mere tape recorders:Supreme Court 
Chief Justice D.Y. Chandrachud, Justices J.B. Pardiwala& Manoj Misra[ 03-5-2024]

Read Order: ANEES v. THE STATE GOVT. OF NCT [SC- CRIMINAL APPEAL NO. 437 OF 2015]

Tulip Kanth

New Delhi, May 6, 2024: While upholding the conviction of a 65-year-old man for his wife's murder, the Supreme Court has opined that the Trial judge failed to play an active role in the present matter. However, noting his old age and 11-year-long incarceration period, the Top Court granted liberty to the appellant-convict to prefer an appropriate plea for remission before the State Government.

The case of the prosecution was that the deceased-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.A wireless operator of the Delhi Police informed one lady constable who was on duty in a PCR that a woman had been stabbed. When the policeofficials reached the place of occurrence, they 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.

The investigation revealed that the marital relationship of the appellant with the deceased was strained. It was alleged that on the fateful night of the incident, an altercation took place between the appellant and the deceased, as a result, the appellant was alleged to have inflicted stab injuries indiscriminately with a knife all over the body of the deceased. It was also the case of the prosecution that the minor daughter Shaheena was the sole eyewitness to the incident. A rukka was prepared by the Investigating Officer and sent to the concerned Police Station based upon which the First Information Report was registered against the appellant for the offence punishable under Section 302 of the IPC.

The appeal before the Top Court was filed at the instance of the appellant convict sentenced to life. His conviction under Section 302 of the Indian Penal Code, 1860 was upheld by the Delhi High Court.

The 3-Judge Bench of Chief Justice D.Y. Chandrachud, JusticeJ.B. Pardiwala&Justice Manoj Misra first dealt with Section 106 of the Evidence Act which provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It was opined that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It was also made clear by the Bench that Section 106 of the Evidence Act 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 Bench also highlighted the duly proved foundational facts, which justified the courts below in invoking the principles enshrined under Section 106 of the Evidence Act. These included the fact that he 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 between 3.30 am and 4.00 am.

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. According to the Forensic Science Laboratory report, the blood stains on the clothes of the appellant matched with the blood group of the deceased i.e., AB+

The conduct of the appellant in leading the Investigating Officer and others to a drain nearby his house and the discovery of the knife from the drain was a relevant fact under Section 8 of the Evidence Act. “In other words, the evidence of the circumstance simpliciter that the appellant pointed out to the Investigating Officer the place where he threw away the weapon of offence i.e., knife would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act”, it said while also adding, “What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.”

It was also held, “Over a period of time, we have noticed, while hearing criminal appeals, that there is practically no effective and meaningful cross- examination by the Public Prosecutor of a hostile witness. All that the Public Prosecutor would do is to confront the hostile witness with his/her police statement recorded under Section 161 of the Cr.P.C. and contradict him/her with the same.”

The Bench noted that in this mattrer 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 Investigating Office. 

It was contended from the appellant's side that it could be a sudden fight between the two in the heat of passion upon a sudden quarrel. It was explained by the Bench that the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder.After a perusal of the facts, the Bench had no hesitation in saying that the present case was not one of culpable homicide not amounting to murder but the same was a case of murder. The Bench also took note of the fact that the appellant inflicted as many as twelve blows with a knife on the deceased who was unarmed and helpless.

“Where the offender takes undue advantage or has acted in a cruel or an unusual manner, the benefit of Exception 4 cannot be given to him. 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”, it said.

After being informed of the mitigating circumstances i.e. the fact that the appellant had undergone almost 11 years of imprisonment so far and as on date the appellant must be about 65 years of age, the Bench dismissed the appeal and granted liberty to the appellant to prefer an appropriate representation addressed to the State Government praying for remission of sentence.