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CASE NO.: Appeal (crl.)  355 of 2004

PETITIONER: Murlidhar & Ors.

RESPONDENT: State of  Rajasthan

DATE OF JUDGMENT: 09/05/2005

BENCH: P. Venkatarama Reddi & B.N. Srikrishna

JUDGMENT: J U D G M E N T

SRIKRISHNA, J.

       The three appellants before this Court by special leave impugn the  judgment of the High Court of Judicature for Rajasthan which has convicted  them on charges under Sections 364, 302/34 IPC and sentenced them  appropriately thereunder.

       At about 11:40 a.m. on 3rd November, 1996, a written complaint was  lodged by Rameshwar (PW 1) with the Police Station, Govindgarh, District  Jaipur regarding abduction of his brother, Ramlal stating thus:  On 2nd  November, 1996 in the night around 6:30 p.m. Ramlal had left Ringus for  his village Bagdi. He took a lift in camel cart of Manaram (PW 2) of village  Gudiliya.  When the camel cart was passing by   (Manawali Dhani),  the  field of Khemaram,  Khemaram and his family members stopped the camel  cart, pulled Ramlal down the camel cart, beat him up and took him inside the  house of Khemaram.  Ramlal was beaten inside the house and, thereafter,  taken to some unknown place.  The camel cart owner, on his way, informed  one Girdhari Lal Kumawat and other villagers of village Bagadi Nangal   about the abduction and beating of Ramlal. Next day morning, the villagers  told the informant about these facts. The informant searched around, but  Ramlal could not be traced. The persons of neighbourhood also told the  informant that at night they have heard the cry of Ramlal coming from  Khemaram’s house, and Ramlal was beaten up inside the house and  thereafter taken to some unknown place.   

The Police registered a case under Sections 147, 148, 149 and 364  IPC and commenced investigation.  The investigation turned up the dead  body of Ramlal which was discovered in the path of a dried up nullah under  the Ringus bridge. The police arrested nine persons of which, apart from the  present three appellants, the other accused were Khema Ram, Deepa Ram,  Sheopal, Babulal son of Deepa Ram, Sagar Mal and Laxman Prasad. The  said nine accused were tried by the sessions court.

The Sessions Court acquitted all the accused from the charges of  Section 120B IPC but convicted all the accused as follows: Accused Khemaram, Deeparam, Shyopal, Babulal son of Deeparam,  Sagarmal and Laxman Prasad were acquitted of the charge under Section  120B/364 IPC.  

Accused Murlidhar was acquitted of charge under Section 394/397.   

Accused Khemaram, Murlidhar, Deeparam, Shyopal, Babulal son of  Deeparam, Sagarmal, Babulal son of Chhajuram, Chhajuram and Laxman  Prasad were held guilty for offence under Section 302/149 IPC.   

Accused Khemaram, Murlidhar, Deeparam, Shyopal, Babulal son of

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Deeparam, Sagarmal, Babulal son of Chhajuram, Chhajuram and Laxman  Prasad were held guilty for offence under Section 148 IPC.  

Accused Murlidhar, Deeparam, Shyopal, Babulal son of Deeparam,  Sagarmal, Babulal son of Chhajuram, Chhajuiram and Laxman Prasad were  held guilty for offence under Section 201 IPC.  

Accused Babulal son of Chhajuram, Chhajuram and Murlidhar were  held guilty for offence under Section 364 IPC.  Accused Murlidhar was held guilty for offence under Section 379  IPC.

       All the convicted accused appealed to the High Court.  The appeals of  Khema Ram, Sheopal, Babulal son of Deepa Ram, Sagar Mal and Laxman  Prasad were allowed and they were acquitted of the charges under Section  302/149, 148 and 201 IPC. The appeals of Murlidhar, Chhaju Ram and  Babulal, son of Chhaju Ram were dismissed and their conviction and  sentence under Section 364 IPC were confirmed.  The  High Court converted  the conviction to one under Section 302/34 IPC instead of Section 302/149  IPC and sentenced each of them to undergo imprisonment for life and fine of  Rs. 10,000/- with a default sentence of six months rigorous imprisonment.   The sentences were directed to run concurrently.  These three accused were,  however, acquitted of charges under Sections 148, 201 and 379 IPC.  The  convicted accused are in appeal before us.

       The evidence before the trial court consisted partly of the evidence of  eye witnesses and partly of circumstantial evidence.  The trial court  discussed the evidence under the following heads. 1.      Evidence regarding criminal conspiracy. 2.      Evidence regarding abduction of Ramlal. 3.      Evidence regarding beatings with Ramlal in the house of  Khemaram. 4.      Evidence regarding witnessing the accused persons going in  Tractor Trolley. 5.      Medical evidence 6.      Evidence regarding recovery 7.      Other evidence

1.      Evidence regarding criminal conspiracy: Both,  the Sessions Court and the High Court concurrently concluded  that the evidence of Ajeet Singh (PW 3), Hari Ram (PW 15) and Kalu Ram  (PW 31) could not be relied upon for insufficiency of their testimony to  establish  that there was a criminal conspiracy to abduct and murder. We are  in agreement with the High Court on this issue.

2.      Evidence regarding abduction of Ramlal:         Ramlal had taken a ride in the camel cart of Manaram (PW 2), who  was also accompanied by his son Sardar Mal (PW 4). Girdhari Kumawat  also took a ride in the camel cart. The evidence of Manaram (PW 2) shows  that first he dropped Girdhari Kumawat at Manawali Dhani. The camel cart  then proceeded towards Hasteda. When the camel cart was passing by  Khemaram’s well, Murlidhar and Chhajuram suddenly appeared and caught  hold of Ramlal and tried to pull him down from the cart.  Babulal, son of  Chhajuram, and Bhagguram also appeared on the scene and started beating  him with lathis. In all the fracas the camel cart started running away.  Manaram sitting on the cart tried to balance and hold the flour mill with  which the cart was loaded. Manaram’s (PW 2) evidence is corroborated by  that of his son Sardar Mal (PW 4). The evidence of these two witnesses  suggests that Ramlal was pulled out of the cart, belaboured by the accused  persons and the others and dragged away to the interior of Khemaram’s  house.

       The learned counsel for the appellants submitted that the evidence of  Manaram (PW 2) and Sardar Mal (PW 4) was not reliable as it was  inherently improbable particularly, with regard to identification of the

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accused. On a careful perusal of the evidence, we are not impressed by this  contention. Sardar Mal (PW 4) states in his evidence that although there was  some darkness, there was some amount of light in front of the house of  Khemaram. It is not, as if, the assailants were unknown to Manaram and his  son Sardar Mal. In fact, the evidence suggests that he knew Chhajuram,  Murlidhar, Babulal and Bhaggu well for two or three years, as they used to  go with him sometimes, and they were meeting once or so in a month.

       We are not satisfied that the evidence of Manaram (PW 2) and his son  Sardar Mal (PW 4) can be discarded because of some minor inconsistencies  and so called contradictions highlighted by the learned counsel. Nor we are  prepared to discard the testimonies of these two eye witnesses merely  because of their not immediately rushing to the Police Station, but  proceeding to  Nangal village and  requesting the people to inform the police  about the abduction of Ramlal.   

Read as a whole, the testimonies of these two witnesses prove that, on  the fateful day, while the camel cart  driven by Manaram was passing by the  farm of Khemaram, the accused suddenly appeared on the scene and pulled  down Ramlal,  belaboured him and dragged him away.    

       Learned counsel for the appellants contended that even assuming the  evidence of Manaram (PW 2) and Sardar Mal (PW 4) was accepted, the  offence under Section 364 IPC could not be said to have been proved.  He  contended that in order to make out an offence under Section 364 IPC, it  must be shown that the abduction must be of some person "in order that  some person may be murdered or may be so disposed of as to be put in  danger of being murdered". Learned counsel contended that there was no  evidence, whatsoever, on this aspect of the matter. We are not inclined to  agree. The intention of the accused while dragging away Ramlal is  evidenced by the statement attributed to one of the accused, Bhaggu  addressed to Babulal, son of Chhajuram, calling him to bring a lathi to kill  Ramlal. The acts and words imputed to the accused when they pulled  Ramlal, belaboured him and dragged him away, leaves us in no doubt that  their intention was to so dispose him of as to put him in danger of being  murdered. We are, therefore, satisfied that the Sessions Court and the High  Court were justified in recording a conviction under Section 364 IPC against  the accused-appellants.  

3.   Evidence regarding beatings given to Ramlal in the house of Khemaram:

       The High Court concluded that the evidence as to what transpired  within the house of Khemaram could not have been known by anyone. The  prosecution examined Babulal (PW 5),  Ramratan (PW 7), Isro (PW 10),  Govind (PW 13) and Manbhari (PW 8) on this aspect of the case as to what  happened inside Khemaram’s house.  The High Court has disbelieved this  part of the evidence of Babulal (PW 5),  Ramratan (PW 7), Isro (PW 10) and  Govind (PW 13)  as "replete with inherent improbabilities and they are  wholly unreliable witnesses". We agree with this finding of the High Court.   We also feel that Khemaram and his family would not have kept the doors of  their house open so that someone could conveniently witness what was  transpiring inside the house. This part of the story appears to be too artificial  to believe. 4.      Evidence regarding witnessing the accused persons going in Tractor  Trolley:

The High Court has correctly analysed the evidence in this regard and  came to the conclusion that the story given out by the witnesses is  unbelievable. The witnesses on this part of the evidence are Mansingh      (PW 6) and Surjaram (PW 9). These witnesses stated that on 2nd November,  1996 at about 8:30 p.m. when they were going back from Ringus to their  village Bagdi Nagal, they saw a tractor trolley driven by Laxman. They  named, Sheopal, Deepa, Bhagirath, Chhajuram, Murli, Sagar, Babulal son of  Chhaju and Babulal son of Deepa were riding on the tractor. According to

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these witnesses, on an inquiry being made as to where they were going,  Bhagirath and Chhaju informed them that Ballu Ram had become sick and  they were taking him to Srimadhopur Hospital. PW 6 and PW 9 also claimed  that they saw some body wrapped in a white gudri lying on the tractor. To  say the least, the evidence appears to be wholly unnatural, as the High Court  has pointed out that Man Singh (PW 6) is the ’motbir’ of most of the memos  drawn by the Investigating Officer. Under the cross examination, he  admitted that he had not informed the Police at the time of drawing the  inquest report that he had seen the appellants carrying some body on the  tractor trolley.  While in his police statement (Ex. D-1) he named only six  accused, but at the trial he gave 10-11 names.  Surja Ram (PW 9) under his  cross examination stated that, when he reached near the dead body of the  deceased lying under the Ringus bridge, the police were already there, but at  that time, he did not disclose the fact to the police that he had seen the  appellants taking a body on the tractor trolley during the preceding night.  We are satisfied that the analysis of the evidences by the High Court is  perfectly justified, and we agree with the conclusion of the High Court that  the testimony of these witnesses on this aspect of the matter did not inspire  confidence.  

5.      Medical Evidence:         The medical evidence is acceptable and proves without any doubt that  Ramlal was done to homicidal death. The probable cause of death is  "asphyxia due to strangulation as well as neurogenic shock as a result of  cumulative effect of multiple injuries on the body some of which are on the  vital parts, namely, testicles."  

6.      Evidence of recoveries:         The evidence as to recoveries also appears doubtful.  The recoveries  consisted of lathis and HMT wrist watch from the accused Murlidhar. As to  the evidence of lathis, the High Court has rightly refused to attach  importance to the recoveries of the lathis as lathi is something to be found in  every household in the concerned area.  

       As to the recovery of the HMT wrist watch, the evidence of Mahendra  (PW 20), son of the deceased, is contradictory.  While at one time he said  that he identified the watch because it had a broken side pin, he changed his  testimony later to say that he identified it because the strap was broken. No  formal Test Identification Parade was arranged.  It was also admitted by the  witness that the model HMT-Kohinoor watch was a popular model and there  must have been thousands of watches manufactured by the company.  The  special reason given by PW 20 for identifying the watch was that it had been  presented by the in-laws of his younger brother at the time of betrothal  ceremony. Neither the said brother of the deceased, who was actually the  owner of the watch, nor the in-laws who had gifted the watch had examined  to identify the watch. There was nothing special in the watch, which was, in  any event broken, for accused Murlidhar to treasure it as a prized possession.  There were no marks of blood or finger prints which could have connected  the accused with the watch. Significantly, the charges under Sections 397  IPC for alleged robbery, or theft of the watch were failed and Murlidhar was  acquitted of the said charges.  In these circumstances, the High Court was  justified in rejecting the evidence of recoveries.

       Finally, the High Court having accepted the evidence as to the offence  of abduction punishable under Section 364 IPC came to the conclusion that  the prosecution evidence, when considered in the light of the proximity of  time within which Ramlal sustained injuries and the proximity of the place  within which the dead body was found, was enough to draw an inference  that Ramlal’s death was caused by the accused.  Relying on Section 106 of  the Evidence Act, 1872 and the observations of this Court in State of W.B.   v.  Mir Mohammad Omar and Ors. , the High Court held that it was  established that the appellants were the abductors of Ramlal, and since the  facts were especially in the knowledge of the abductors, as the accused- abductors failed to offer any explanation as to what transpired after Ramlal  had been abducted, the court would be justified in drawing the inference that

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the abductors had murdered the victim, Ramlal, after abduction.

       The learned counsel for the appellants strenuously urged this last  conclusion of the High Court was erroneous in law and that the appellants,  even if liable to be convicted under Section 364 IPC, could not have been  convicted under Section 302/34 IPC.

       In Mir Mohammad Omar (supra) it was established that the accused  had abducted the victim, who was later found murdered. The abductors had  not given any explanation as to what happened to the victim after he was  abducted by them.  The Sessions Court held that the prosecution had failed  to establish the charge of murder against the accused persons beyond any  reasonable doubt as there was "a missing link in the chain of events after the  deceased was last seen together with the accused persons and the discovery  of the dead body of the deceased at Islamia Hospital". Rejecting the said  contention this Court observed (vide para 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 fossilized 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."

This Court further observed thus (vide para 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."

The judgment of Vivian Bose, J. in Shambu Nath Mehra v.  State of  Ajmer  lays down the legal principle underlying the shifting of burden of  proof under Section 106 of the Evidence Act  thus (vide para 38): "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."

       In our judgment, the High Court was not justified in relying on and  applying the rule of burden of proof under Section 106 of the Evidence Act

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to the case. As pointed out in Mir Mohammand Omar (supra) and  Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act  would apply when the facts are "especially within the knowledge of the  accused" and it would be impossible, or at any rate disproportionately  difficult  for the prosecution to establish such facts, "especially within the  knowledge of the accused." In the present case, the prosecution did not  proceed on the footing that the facts were especially within the knowledge of  the accused and, therefore, the principle in Section 106 could not apply.  On  the other hand, the prosecution  proceeded on the footing that there were eye  witnesses to the fact of murder. The prosecution took upon itself the burden  of examining Babulal (PW 5) as eye witness.  Testimony of Ram Ratan (PW  7) and Isro (PW 10) shows that their agricultural land was situated in a close  distance from the house of Khema Ram. As rightly pointed out by the High  Court, it is highly unlikely and improbable that their kith and kin Ramlal  would have been given beating resulting in his death by the accused- appellants while keeping lights of their house on and door of the room  opened.  It is also unlikely that the accused-appellants would have taken the  risk of dragging Ramlal to the house of Khema Ram, which was situated in  the vicinity of agricultural land and well of Isro (PW 10), the father of  Ramlal.  The evidence of Govind (PW 13) also appears to be unnatural, as  he had not disclosed the incident to anybody.  The High Court has correctly  analysed that all the witnesses, namely, Babulal (PW 5), Ram Ratan (PW 7),  Isro (PW 10) and Govind (PW 13) are wholly unreliable as their evidence is  repleated with contradiction and inherent improbabilities.   

       In the result, we are of the view that the prosecution having put  forward a case that, what transpired after Ramlal was dragged away by the  assailants was within the knowledge of witnesses, utterly failed in proving  the said facts.  Once this is established, it was not open for the High Court to  have fallen back on the rule of burden of proof under Section 106 of the  Evidence Act.  In fact, as we notice, it was nowhere the case of the  prosecution that Section 106 of the Evidence Act applied to the facts on  record.  The High Court seems to have brought it out on its own, but without  any justification. We are, therefore, of the view that the conviction of  Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram under Section 364  IPC is justified and liable to be confirmed, but their conviction under Section  302/34 IPC cannot be sustained and they are liable to be acquitted of the said  charges.

       In the result, we partly allow the appeal and make the following order:

       Appellants-accused, Murlidhar, Chhaju Ram and Babu Lal son of  Chhaju Ram are acquitted of the charges under Section 302/34 IPC. Their  conviction and sentence under Section 364 IPC stands confirmed.