Supreme Court: From Crime Scene to Courtroom: DNA Evidence Collection, Analysis and Legal Requirements

 DNA evidence constitutes opinion evidence as contemplated under Section 45 of the Indian Evidence Act, and like any other opinion evidence, its probative value varies from case to case. The courts must evaluate DNA evidence with appropriate scrutiny while considering its scientific foundation and procedural compliance.

DNA Profiling: Scientific Methodology and Process

Nature of DNA Evidence

·       DNA (Deoxyribonucleic acid) is genetic material present in cell nuclei, composed of four nucleotides: Adenine (A), Guanine (G), Thymine (T), and Cytosine (C).

·       Only 0.1% of DNA differs between individuals, with forensic scientists analyzing variable regions to generate unique DNA profiles

·       Current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs)

DNA Profiling Methodology

The DNA profiling process involves four sequential steps:

·       Isolation, purification and quantitation of DNA

·       Amplification of selected genetic markers

·       Visualizing fragments and genotyping

·       Statistical analysis and interpretation

Statistical Analysis and Interpretation Standards

Three Possible Outcomes of Profile Comparison:

·       Match: DNA profiles from two samples are indistinguishable

·       Exclusion: Profile differences indicate different biological sources

·       Inconclusive: Data insufficient for definitive conclusion

Random Match Probability (RMP): Statistical calculations must support any declared "match" by estimating the frequency of the particular DNA profile in a population.

Collection and Preservation Requirements

Legal and Scientific Prerequisites

DNA evidence must be properly documented, collected, packaged, and preserved to meet legal and scientific requirements for court admissibility. Contamination risks require heightened attention during:

·       Location and identification of biological specimens

·       Collection and packaging procedures

·       Chain of custody maintenance

·       Laboratory transmission protocols

Evidentiary Standards and Judicial Scrutiny

Quality Control Requirements

Courts have emphasized that DNA profile validity and reliability depend on quality control and quality assurance procedures in the laboratory. The mere exhibition of DNA reports without examining their underlying basis renders such evidence "highly vulnerable".

Burden of Proof Standards

·       DNA evidence may be more useful for investigation purposes than for raising presumptions of identity in court

·       Courts must examine whether DNA techniques were reliably applied by experts

·       Possibility of sample tampering during storage periods affects evidential weight

Precedential Guidelines

International Standards: Following R v. Dohoney & Adams, courts should require:

·       Scientist testimony on DNA comparisons with random occurrence ratio calculations

·       Prosecution disclosure of calculation methodologies to defense

·       Defense expert access to databases underlying the calculations

Judicial Observations: DNA testing provides "powerful new evidence unlike anything known before" and can determine biological tissue matches "with near certainty," while simultaneously serving to exonerate wrongly convicted individuals and confirm valid convictions.

Legal Principle Established

DNA evidence, while scientifically advanced and potentially conclusive, requires strict adherence to collection protocols, chain of custody procedures, and quality control standards. Courts must scrutinize both the scientific methodology employed and the procedural compliance achieved before according probative value to such evidence in criminal proceedings.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 611, 612-613 and 614-615 of 2022

Decided On: 07.11.2022

Rahul Vs. State of Delhi, Ministry of Home Affairs and Ors.

Hon'ble Judges/Coram:

U.U. Lalit, C.J.I., S. Ravindra Bhat and Bela M. Trivedi, JJ.

Author: Bela M. Trivedi, J.

 Equivalent Citations

2022 SCC ONLINE SC 1532,2023 SCC 1 83,2022 AIR SC 5661,2022 INSC 1176, MANU/SC/1455/2022

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Supreme Court: Basic concept of last seen theory in criminal case

 It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.

There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.

Supreme Court of India

State Of Rajasthan vs Kashi Ram on 7 November, 2006

Bench: B.P. Singh, Tarun Chatterjee

Citation;(2006)12 SCC 254 : AIR 2007 SC 144.

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Delhi HC: Whether claimant is entitled to get compensation for motor accident if he has failed to prove that he had valid driving license at the time of accident?

The doctrine of Res ipsa loquitur, in the instant appeal, initially onus lies on the Claimant that he was permitted to drive the motorcycle to the place of the incident and thereafter he met with an accident on the negligent part of the truck driver. Once the claimant discharges the onus that he was driving the motorcycle on the road with a valid driving license, then only the question of negligence on part of the truck driver arise. In the instant case the deceased neither had a learner's driving license nor was having a valid driving license. At the most the deceased would have been permitted to ride the motorcycle in a closed territory and not on the public road. The claimant has not examined any evidence to prove that he was holding the driving license at the relevant point of time. Therefore, his act of driving motorcycle on the public road in middle of the night was on his own risk. The truck driver merely being a party to the accident per se does not make him liable, particularly when Claimants has not discharged their onus. The Claimant before seeking the relief has to prove that the deceased was holding a valid permit to drive at the time of the incident under Section 2(10) Motor Vehicles Act,1988. {Para 10}.

11. In absence of a valid permit to drive deceased should not have driven motorcycle on public road which automatically infers a definite threat to the general public. In the instant case, time of the accident is 3:15 AM when generally the roads are free from traffic, if a person drives on the public road without valid driving license, the inference drawn could only be of accident and such act would not attract tortuous liability. Reliance is placed on Surender Kumar Arora And Another v. Manoj Bisla And Others (2012) 4 SCC 552.

 IN THE HIGH COURT OF DELHI

Mac. App. 954/2017 and C.M. Appl. 39162/2017

Decided On: 18.01.2019

Rehmani Begum and Ors. Vs. Krishan Pal

Hon'ble Judges/Coram:

I.S. Mehta, J.

Citation: 2019:DHC:371, MANU/DE/5246/2019.

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Bombay HC: How to appreciate evidence in motor accident case when police report was lodged against unknown vehicle?

 The burden of proof is on the claimants. Same may be discharged on preponderance of probabilities. The insurer may lead independent evidence in disproof of the claim or it may point out that the evidence relied on is inherently improbable and the Tribunal, therefore, ought not to have acted on it. {Para 14}

15. The Tribunal, in the present case, has simply relied on the factum of filing of charge sheet against the tractor driver. Admittedly, the report of the accident was lodged against unknown vehicle. It is only after three weeks a person comes forward claiming to have had witnessed the accident. He recalled of the accident only on having seen the hoarding depicting the picture of the deceased - Sandip. According to the alleged eye witness, some person had gathered on the spot of accident. Had it really been so, involvement of the offending tractor could have come to light immediately, i.e., on the same day of the accident. Same suggests that no person had witnessed the accident. The conduct of the alleged eye witness - Atul Gade in coming forward after three weeks of the accident, is unnatural and does not stand to reason. He was residing at a nearby village. On having seen such an accident, he left the place without intimating the same to anyone else. Realising to have had witnessed the accident only on having seen the hoarding and picture of the deceased, leads this Court to observe that this person is a got up witness only with a view to earn the compensation. This Court is, therefore, not inclined to rely on the evidence of this witness.

16. There is no other evidence in proof of involvement of the tractor in question. The Tribunal ought not to have allowed the claim petition merely relying on such police papers namely, charge-sheet, seen of accident panchnama and post mortem notes. This Court has, therefore, every reason to interfere with the impugned judgment and award. In view of this Court, the evidence fell short to make out case even on preponderance of probabilities.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 1342 of 2021

Decided On: 31.01.2022

Shriram General Insurance Company Ltd. Vs. Tilottam and Ors.

Hon'ble Judges/Coram:

R.G. Avachat, J.

Citation:  MANU/MH/1303/2022.

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Bombay HC: How to appreciate evidence in motor accident claim petition when false case is put forth by claimant?

As regards the fact of accident is concerned, the initial burden is always on the claimant/ claimants to prove the same, which includes not only the involvement of the vehicle but also the manner in which the accident had taken place, as pleaded in the petition. All those authorities, which have been relied by the learned Advocate appearing for the appellant, have reiterated the basic principle as aforesaid i.e. the burden is on the claimants to prove the accident including the involvement of the vehicle/vehicles. In First Appeal No. 2742 of 2015 (supra) note has been taken of the decision of Division Bench of this Court in First Appeal No. 32 of 2013 decided on 11.07.2013 (Goa Bench), wherein it was held that mere production of police papers and exhibiting those documents does not dispense the proof of contents of those documents. It was also held that merely on the basis of certified copies of First Information Report, Spot Panchnama and other documents the claimants cannot prove their case. Therefore, it is now required to be seen, as to whether the evidence adduced in this case fulfills the criteria.

12. The First Information Report has been admittedly lodged belatedly. At this stage itself, note can be taken regarding the ratio in Ravi v/s. Badrinarayan and others reporting in MANU/SC/0133/2011 : (2011) 4 SCC 693 that delay in lodging the FIR, cannot be taken as a main ground for rejecting the claim petition. Here not only the point of delay has been canvassed but it is coupled with non-involvement and collusion. Therefore, facts and evidence is required to be scanned taking into consideration these aspects. Informant Balaji is the brother of deceased and in the First Information Report, which has been lodged after 25 days of accident (on 21.06.2011), number of Tata Magic has been given and then it is stated that when he came to know about the accident, he went to hospital, where Dhanaji was admitted. He had come to know that two persons from his village viz. Laxman Uttam Kamble and Mahesh Rangnath Deshmukh had admitted Dhanaji to hospital regarding details of accident. It appears that Dhanaji was unconscious on that day but on the next day i.e. on 28.05.2011 he expired at about 1.00 p.m.. It also appears from the contents of the First Information Report that the police were calling Balaji, since the date of post mortem and inquest panchnama, to lodge First Information Report but Balaji had not gone to Police Station. He has tried to explain that, since he was in grief and his mental condition was not proper, inspite of messages given he could not lodge the report. The claimants have not examined Balaji for the reasons best known to them. No doubt, he was not eye witness but then he could have thrown light as to why he had lodged the First Information Report belatedly and no other person could have lodged the report at any earlier point of time. Interesting point to be noted is that the inquest panchnama was executed on 28.05.2011 when Balaji was present. The inquest panchnama Exh.32 only makes a statement that motorcycle driven by Dhanaji was dashed by Tata Magic. Why First Information Report was not taken down at that point itself is a question. It will not be out of place to mention another interesting fact that claimants have examined CW 2 Dipak Lokhande, whose name is not appearing in inquest panchnama or in the spot panchnama or even in First Information Report, but then he say that he had seen the accident. So also, he says that the accident was witnessed by Laxman Kamble and Mahesh Deshmukh from his village. Now said Mahesh Deshmukh is, in fact, panch to the inquest panchnama. Therefore, if he was an eye witness to the incident, why he did not inform the said fact and ask the police to incorporate the vehicle number of Tata Magic in the inquest panchnama itself, is also a question. Conveniently the claimants have kept him out of witness box, for the reasons best known to them. Therefore, mere mention of Tata Magic in inquest panchnama will not be sufficient to hold that it was the Tata Magic belonging to respondent No. 1 and insured with respondent No. 2 on the date of the accident.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 606 of 2019 and Civil Application No. 3025 of 2019 in FA/606/2019

Decided On: 24.09.2019

Shriram Insurance Company Ltd. Vs. Vanita and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: MANU/MH/2654/2019.

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LLM Notes: From Outrage to Reform: How the Mathura Case Changed India’s Rape Laws

 Judgment of Tukaram v. State of Maharashtra (Mathura Rape Case)

Background and Facts

The case involved Mathura, a young tribal girl, who alleged that she was raped by two policemen, Tukaram and Ganpat, inside a police station. The Sessions Court initially acquitted the accused, reasoning that Mathura was "habituated to sexual intercourse" and that her consent was voluntary. The High Court overturned this acquittal, recognizing the power imbalance and holding that Mathura's submission was due to fear, not consent, and convicted the accused.

Supreme Court Judgment

The Supreme Court, in 1979, reversed the High Court's conviction and again acquitted the accused. The key points in the judgment were:

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Supreme Court: Under which circumstances burden of proof would be on investigating officer that he has supplied grounds of arrest to accused?

 The learned Single Judge, unfortunately, has equated information given regarding the Appellant's arrest with the grounds of arrest. The observation that the allegation of non- supply of the grounds of arrest made by the Appellant is a bald allegation is completely uncalled for. All courts, including the High Court, have a duty to uphold fundamental rights. Once a violation of a fundamental right Under Article 22(1) was alleged, it was the duty of the High Court to go into the said contention and decide in one way or the other. When a violation of Article 22(1) is alleged with respect to grounds of arrest, there can be possible two contentions raised: (a) that the arrested person was not informed of the grounds of arrest, or (b) purported information of grounds of arrest does not contain any ground of arrest. As far as the first contention is concerned, the person who is arrested can discharge his burden by simply alleging that grounds of arrest were not informed to him. If such an allegation is made in the pleadings, the entire burden is on the arresting agency or the State to satisfy the court that effective compliance was made with the requirement of Article 22(1). Therefore, the view taken by the High Court is completely erroneous. {Para 31}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 621 of 2025.

Decided On: 07.02.2025

Vihaan Kumar Vs. State of Haryana and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and N. Kotiswar Singh, JJ.

Authored By : Abhay Shreeniwas Oka, N. Kotiswar Singh

Abhay Shreeniwas Oka, J.

Citation: Citation: 2025 INSC 162, MANU/SC/0161/2025.

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Supreme court: Accused should not be handcuffed and be tied to hospital bed if he is admitted in Hospital

Before we part with this judgment, we must refer to the shocking treatment given to the Appellant by the police. He was taken to a hospital while he was handcuffed and he was chained to the hospital bed. This itself is a violation of the fundamental right of the Appellant Under Article 21 of the Constitution of India. The right to live with dignity is a part of the rights guaranteed Under Article 21. We, therefore, propose to direct the State Government to issue necessary directions to ensure that such illegalities are never committed. {Para 29}

e) The State of Haryana shall issue guidelines/departmental instructions to the police (i) to ensure that the act of handcuffing an Accused while he is on a hospital bed and tying him to the hospital bed is not committed again. (ii) to ensure that the constitutional safeguards Under Article 22 are strictly followed. If necessary, the State Government shall amend the existing Rules/guidelines; and

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 621 of 2025.

Decided On: 07.02.2025

Vihaan Kumar Vs. State of Haryana and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and N. Kotiswar Singh, JJ.

Authored By : Abhay Shreeniwas Oka, N. Kotiswar Singh

Abhay Shreeniwas Oka, J.

Citation: Citation: 2025 INSC 162, MANU/SC/0161/2025.

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Whether Burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents?

 It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident.  {Para 17}

IN THE HIGH COURT OF ALLAHABAD

First Appeal From Order No. 1726 of 2001

Decided On: 04.08.2023

U.P.S.R.T.C. Ghaziabad Vs. Neerja Bhatiya and Ors.

Hon'ble Judges/Coram:

Dr. Kaushal Jayendra Thaker, J.

Citation:  MANU/UP/2024/2023,2023:AHC:158461.

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Supreme Court: Even if disclosure statement made by Accused is not admissible U/S 27 of Evidence Act but it is relevant U/S 8 of evidence Act as his conduct

 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.

59. Even while discarding the evidence in the form of discovery panchnama, the conduct of the Appellant herein would be relevant Under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct Under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement Under Section 27 of the Evidence Act, as this Court observed in A.N. Venkatesh and Anr. v. State of Karnataka,   MANU/SC/0468/2005 : (2005) 7 SCC 714:

9. By virtue of Section 8 of the Evidence Act, the conduct of the Accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the Accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, 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 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [  MANU/SC/0147/1978 : 1978:INSC:234 : (1979) 3 SCC 90: 1979 SCC (Cri) 656: AIR 1979 SC 400]. Even if we hold that the disclosure statement made by the Accused-Appellants (Ex. P-15 and P-16) is not admissible Under Section 27 of the Evidence Act, still it is relevant Under Section 8. ...

The conduct, in order to be admissible, must be such that it has close nexus with a fact in issue or relevant fact. Explanation 1 makes it clear that the mere statements as distinguished from acts do not constitute "conduct" unless those statements "accompany and explain acts other than statements". Such statements accompanying the acts are considered to be evidence of res gestae. 

206. We have already noticed the distinction highlighted in Prakash Chand case (supra) between the conduct of an Accused which is admissible Under Section 8 and the statement made to a police officer in the course of an investigation which is hit by Section 162 Code of Criminal Procedure The evidence of the circumstance, simpliciter, that the Accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, 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, as pointed out in Prakash Chand case. In Om Prakash case (supra) this Court held that: (SCC p.262, para 14)

Even apart from the admissibility of the information Under Section 27, the evidence of the investigating officer and the panchas that the Accused had taken them to PW 11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW 11 himself would be admissible Under Section 8 of the Evidence Act as conduct of the Accused.

(Emphasis supplied)

61. However, in the aforesaid context, we would like to sound a note of caution. Although the conduct of an Accused may be a relevant fact Under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an Accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. 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.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 437 of 2015

Decided On: 03.05.2024

Anees Vs. The State Govt. of NCT

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, C.J.I., J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0379/2024,2024 INSC 368.

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What are exceptions to the rule that burden of proof is on the prosecution to prove the guilt of the Accused ?

i. Principles of law governing the applicability of Section 106 of the Evidence Act

35. Section 106 of the Evidence Act reads as follows:

106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustration

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

36. 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".

37. In Shambhu Nath Mehra v. The State of Ajmer   MANU/SC/0023/1956 : 1956:INSC:15 : AIR 1956 SC 404, this Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:

11. ... The word "especially" stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the Section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the Accused to prove that he did not commit the murder because who could know better than he whether he did or did not.

22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the Accused. When the Accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the Accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the Accused to discharge the burden Under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the Accused.

(Emphasis supplied)

39. In Tulshiram Sahadu Suryawanshi and Anr. v. State of Maharashtra,   MANU/SC/0748/2012 : 2012:INSC:401 : (2012) 10 SCC 373, this Court observed as under:

23. It is settled law that 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 position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this Section is not intended to relieve the prosecution of its burden to prove the guilt of the Accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the Accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar and Ors. [  MANU/SC/0535/2000 : 2000:INSC:422 : (2000) 8 SCC 382: 2000 SCC (Cri) 1516]: (SCC p. 393, para 38)

38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the Accused. In Shambhu Nath Mehra v. The State of Ajmer [  MANU/SC/0023/1956 : 1956:INSC:15 : AIR 1956 SC 404: 1956 Cri LJ 794] the learned Judge has stated the legal principle thus:

11. This 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 facts which are "especially" within the knowledge of the Accused and which he could prove without difficulty or inconvenience.

The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.

(Emphasis supplied)

The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this Section throws some light on the content and scope of this provision and it reads:

(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an Accused to offer any explanation.

22. Where an Accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the Accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. ...

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.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 437 of 2015

Decided On: 03.05.2024

Anees Vs. The State Govt. of NCT

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, C.J.I., J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0379/2024,2024 INSC 368

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Claim for privilege under S 122 of The Indian Evidence Act - Communications during marriage

Section 122 of the Indian Evidence Act

Section 122 of the Indian Evidence Act, 1872, states that no person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married. This means that spouses cannot be forced to reveal private conversations they had with each other during their marriage.

Purpose of the privilege

The purpose of the spousal communication privilege is to protect the confidentiality of marriages and to encourage open and honest communication between spouses. This privilege is based on the idea that a marriage is a confidential relationship and that spouses should be able to speak freely to each other without fear of their words being used against them in court.

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Whether burden of proof is on the muslim husband to prove that he has given divorce to his wife and how he should prove it?

Having heard learned Counsel for the parties and after perusing the entire record, this Court is of the opinion that in pursuance of definition of divorced woman, it is bounden duty of the husband to prove in Court by adducing cogent and reliable evidence that he had divorced his wife in accordance with Muslim law especially when the wife is not accepting the divorce and denies the factum of giving divorce to her by her husband. Section 2(a) of (The) Muslim Women (Protection of Rights on Divorce) Act, 1986 is defined as under:--

"2, Definition.-- In this Act, unless the context otherwise requires--

(a) "Divorced woman" means a Muslim woman who married according to Muslim Law, and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law."

In the present case applicant/wife filed an application under Section 125, Cr.PC for grant of maintenance. In reply to this application, non-applicant/husband submitted in Paragraph 2 that in August, 1997, he had given divorce to the applicant/wife according to Muslim Law. Thereafter, he has filed written application on 1-5-1998, in which he has mentioned that he has pronounced oral divorce to his wife and also given divorce in writing before the Trial Court and has no relations with her.  Learned Revisional Court has failed to consider whether the divorce was given in accordance with the Muslim Law. It is pertinent to note that non-applicant/husband neither examined himself in Court as a witness nor given any opportunity to cross-examine to the applicant/wife. He has not examined any other witness in his favour in Court for establishing his case by adducing evidence. As a matter of fact, in the entire case, there is no evidence led by the husband to prove his case. A mere pleading as mentioned in paragraph 2 of his reply or filing an application about pronouncement or declaration of divorce, would not sufficient to establish that non-applicant/husband has given divorce to the applicant/wife in accordance with the Muslim Law as embodied in Section 2(1)(a) of the Muslim Woman Act.

The fact is also very important and noticeable that the wife/applicant served legal notice dated 2-12-1997, Exh. P-1, its acknowledgment is Exh. P-2 by which she demanded maintenance @ Rs. 2,000/- per month. This notice was duly received by the non-applicant/husband and also admitted the receipt of notice in Paragraph 8 of the reply submitted on 2-9-1998. When the non-applicant husband received notice on 2-12-1997, why he had not given intimation of divorce and reply to this notice informing that the applicant/wife was already divorced in the month of August, 97 and as such now she is not entitled for any maintenance except in accordance with the Provisions of Muslim Women Act.

Learned Lower Revisional Court has failed to consider that the non-applicant/husband has failed to establish that applicant/wife has been given divorce by him in accordance with Muslim Law. For this purpose, non-applicant/husband neither examined him in Court nor adduced any evidence. In absence of this, it cannot be said that the applicant/wife acquired status of divorced woman and, therefore, her application under Section 125, Cr.PC was maintainable only from the period of filing the application till the date of giving divorce and for iddat period.

 IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Criminal Revision No. 341/2001

Decided On: 19.07.2002

Khatunbai  Vs. Gani Khan

Hon'ble Judges/Coram:

S.L. Kochar, J.

Citation:  MANU/MP/0316/2002.

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How to appreciate evidence if son is claiming that his mother had no earnings and is holding immovable property as benamidar of his father?

Crucial question which is to be answered in the present appeal is whether the transaction i.e. the purchase of suit property under registered deed of sale dated 20.01.1970 by Lila is benami transaction. {Para 11}

12. Benami Transaction (Prohibition) Act, 1988 defines the expression, 'benami transaction' and equipped the appropriate authority with powers to acquire benami property. Provisions of three sections being Sections 3, 5 & 8 of the 1988 Act, which was initially a 9-section legislation, came into force with effect from 5.9.1988 whereas the remaining provisions thereof came into force from the date being 19.9.1988. Section 3 being a prohibitory legislation cannot have retrospective operation but the Section 2(a) of the Act which is a piece of declaratory legislation can have its application irrespective of its date or duration. So, definition of the expression 'benami transaction' can be borrowed from Section 2(a) of the 1988 Act in respect of the transaction held prior to promulgation of the said Act. As defined in Section 2(a) of the Act 'benami transaction' means any transaction in which property is transferred to one person for a consideration paid or provided by any other person. A transaction must, therefore, be benami irrespective of its date or duration.

13. In India, two kinds of benami transactions are generally recognized. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. [See, the judgment delivered in the cases of Bhim Singh - vs- Kan Singh, reported in (1980) 3 SCC 72 and Pulin Behari Addy (supra)].

14. However, there is a presumption in law that the person who purchases the property is the owner of the same and such presumption can be displaced only by pleading and successfully proving that the person whose name appears in the document is not the real owner, but only a benami and heavy burden lies on the person who pleads that recorded owner is mere name-lender.

15. Now, coming to the case at hand, it can be argued that to hold the subject transaction as benami transaction, it is to be proved by the principle of preponderance of probability that although the suit property was purchased in name of Lila but the consideration money was paid or provided by her husband and not by Lila.

16. Indisputably, subject deed of sale was executed and registered on 20.01.1970. Sekhar preferring the suit in 2011 claimed that Lila, transferee was mere name-lender and Sekhar adduced his oral testimony only and he did not produce any document whereas Lila deposed in 2016 and adduced her oral accounts which found support from the evidence of DW-2 and Lila had produced all the documents relating to suit property.

17. During course of hearing, both the appellant and the respondents advanced their arguments on the issue relating to 'burden of proof'. So, main question centred around the present appeal is whether it was Sekhar who had to discharge the burden to prove that the subject sale transaction was benami transaction or it was Lila who was to prove that she purchased the suit property from own fund or 'stridhan' properties detailing the source of such fund and disclosing every details of payment of consideration money.

18. The question relating to burden of proof has been set at rest in the judgment of Jaydayal Poddar (Deceased) thr. Lrs. -vs. Mst. Bibi Hazra reported in AIR 1974 SC 171 in which the Hon'ble Apex Court ruled as follows:

"It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact or benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."

19. In the given case, Sekhar claimed that his mother, Lila was a mere name-lender. He deposed that at the relevant time of sale, he was not present and he could not say the actual amount of consideration money and he admitted that he did not verify from attesting witness, identifier etc. whether his father paid the consideration money and he admitted that his father never claimed himself to be the real owner of the suit property and he admitted that he did not have any document to show that his father paid the consideration money.

20. From evidence of Lila, it appears that Lila admitted that she was a home-maker throughout her life and she had no independent income of her own and she asserted that she purchased the suit property from her 'stridhan' properties. She claimed that she herself purchased the property selling her gold ornaments. Admittedly, Lila testified that during his stay in the suit property, Sekhar used to behave well with her.

21. Mr. Poddar tried to convince us that since both the parties have led evidence, question of burden of proof has lost its significance and Court should pass judgment appreciating evidence let in by the parties and since, Lila failed to disclose the particulars of her 'stridhan' properties and since, Lila admitted that she was a home-maker throughout her life having no independent income of her own, the learned Court below should have come to the conclusion that Lila was nothing but a mere name-lender.

22. At the cost of reiteration, it may be stated that a Court is required to bear in mind the well-settled principles to the effect that the burden of showing that a transfer is a benami transaction always lies on the person who asserts it. In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami. In other words, even if it is proved that Sailendra paid the consideration money, the plaintiff must further prove that Sailendra really intended to enjoy the full benefit of the title in him alone.

23. In the case before us, Sekhar could not bring any evidence even to show what was amount of consideration money and how the consideration money was paid and how the suit property was purchased and even he could not prove who paid the consideration money. He could not produce any document relating to the suit property. Title deed and all documents relating to the suit property were all along in the custody of Lila and Lila all along paid municipal tax and got the suit property mutated in her name and Sekhar could not bring any evidence on record to lead any prudent man to infer that his father had a motive to create benami in name of his mother or Sailendra intended to enjoy the full benefit of the title in him alone. Judgments relied upon by the appellant in spite of having unquestionable value of the proposition laid down therein, shall not come in aid of the appellant in the factual matrix of the case at hand.

24. As a result, we are inclined to hold that learned Court below has correctly held that Sekhar has failed to discharge his burden to prove that subject sale transaction is benami transaction and we have not found any wrong in the approach and decision of the learned Court below and we are of the view that judgment and decree impugned cannot be annihilated. 

Calcutta High Court (Appellete Side)

Sri Sekhar Kumar Roy vs Smt. Lila Roy & Another on 7 June, 2023

Present: The Hon'ble Justice Tapabrata Chakraborty 

&The Hon'ble Justice Partha Sarathi Chatterjee

Author: Partha Sarathi Chatterjee, J.

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How to appreciate evidence if suicide letter written by accused was recovered from body of deceased?

  The underlying principle deducible from the observations extracted above is that though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a Rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion.{Para 65}

66. In the instant case, with regard to authorship of the suicide letter, the Trial Court though returned a finding in favour of the prosecution by relying solely on the expert report but did not record its satisfaction having regard to its own observations with respect to the admitted and disputed writings. It also did not examine whether in the proven facts and circumstances of the case it would be safe to rely on the expert report. It be noted that Section 73 of the IEA, 1872 enables a Court to compare the words or figures written by a person present in Court with any words or figures alleged to have been written by such person. The Trial Court therefore could have undertaken such an exercise. But, in the instant case, there appears no such exercise undertaken by the Trial Court. What is important is that in the instant case there is no witness statement identifying the handwriting of Neeraj or disclosing that Neeraj wrote the suicide letter in his presence. There is also no evidence to explain the relevance of the contents of the suicide letter. Interestingly, the suicide letter indicts one Chhote Porwal. As to why such indictment was made; whether it was with reference to some other event contemplated, the prosecution evidence is silent. Besides that, there is no evidence to show that the investigating officer queried person(s) conversant with the handwriting of the deceased to Rule out possibility of the suicide letter being in the writing of the deceased himself. In our view, such an exercise was necessary to lend assurance to the prosecution story of the suicide letter being written by Neeraj to mask the murder, because, firstly, the death on its face was not suicidal, and, secondly, it could have ruled out possibility of it being written in contemplation of some other event. Seen in that light, barring the expert report, there exists no internal or external evidence to lend assurance to the prosecution story that the suicide letter was written by Neeraj.

67. In addition to the above, we find it quite difficult to accept as to why Neeraj would leave a suicide letter written by him in a pocket of the trouser worn by the deceased, particularly, when the injuries even to a layman were homicidal. Notably, there were eight ante-mortem injuries found on the body of the deceased. 

68. A glance at those injuries would reflect that five of them were perforating or penetrating wounds cavity deep. Out of those, two were on chest and three on abdomen.  Such injuries are clearly homicidal therefore, masking this homicidal event as a suicide does not appeal to logic. Further, the injuries are not of same dimension. In these circumstances, a question would arise as to why would Neeraj who has no proven connection with the deceased or the co-Accused Santosh, or for that matter the apartment where the dead body was found, make a futile effort to mask the event of murder and thereby leave a trace of his own culpability. To answer that, the prosecution has led no admissible evidence. Thus, even if we assume that a suicide letter was found, at what stage it was written - prior to, or post the murder, or in connection with some other event which the deceased contemplated - is anybody's guess.

69. In light of the discussion above, taking into account that Neeraj has denied the incriminating circumstance of writing the suicide letter and no internal or external evidence, save the expert report, supports the writing of suicide letter by Neeraj, we are of the considered view that though the expert evidence was admissible as an opinion on the writing in the suicide letter but, on overall assessment of the evidence led by the prosecution, solely on its basis, it would be extremely unsafe to hold that the suicide letter retrieved from the trouser of the deceased was written by Neeraj.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 575 and 576 of 2011

Decided On: 28.04.2023

 Santosh  Vs.   State (G.N.C.T.) of Delhi

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, Manoj Misra and Aravind Kumar, JJ.

Author: Manoj Misra, J.

Citation: MANU/SC/0499/2023.

Read full Judgment here: Click here

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