Evidence Act, 1872
Section 8—Conduct of accused—Relevancy—Conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.
[Para 61]
Section 106—Burden of proving fact especially within knowledge—Until a prima facie case is established by evidence, the onus does not shift to the accused—Principles of law governing the applicability of Section 106 of the Evidence Act—Explained.
[Paras 35 to 48]
Section 106—Burden of proving fact especially within knowledge—What constitute a prima facie case to make Section 106 of the Evidence Act applicable.
Held : The following foundational facts, which were duly proved, justified the courts below in invoking 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 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. b) When the Investigating Officer reached the house of the appellant, he found the deceased lying in a pool of blood. The appellant was also present at his house. c) 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 is found to be false. d) The clothes worn by the appellant at the time of the incident were collected by the Investigating Officer. The clothes had blood stains. 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+ e) 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 is 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.
[Paras 49 to 56]
Section 145—Cross-examination by public prosecutor of a hostile witness—When any prosecution witness turns hostile and public prosecutor seeks permission of the trial court to cross-examine such witness than that witness is like any other witness—Witness no longer remains the prosecution witness—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.
[Paras 62 & 67]
Section 145—Cross-examination of hostile child witness—Duty of court—If the questioning by the public prosecutor is not skilled, 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 sub-serve the ends of justice—Courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses—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 failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the trial judge must exercise the vast powers conferred under Section 165 of the Evidence Act and Section 311 of the CrPC respectively to elicit all the necessary materials by playing an active role in the evidence collecting process.
Held : 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. If a judge feels that a witness has committed an error or slip, it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination.
[Paras 73 & 74]
Indian Penal Code, 1860
Exception 4 to Section 300—Benefit of exception—Entitlement—Four conditions must be satisfied to bring the matter within Exception 4 to Section 300 are : (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in the heat of passion; and; that (iv) the assailant had not taken any undue advantage or acted in a cruel manner.
[Para 79]
Section 302—Murder of wife—Conviction—Benefit of Exception 4 to Section 300 of IPC—Entitlement—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 circumstances must be taken into consideration to decide whether undue advantage has been taken—Assuming for the moment that it was deceased who picked up a fight with appellant or provoked the appellant in some manner with her conduct or behviour, still the appellant could be said to have taken undue advantage and acted in a cruel manner—Present case is not of culpable homicide not amounting to murder but the same is a case of murder—Conviction upheld.
[Paras 78 & 83]