Important point
When the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused, the principle in Section 106 of the Evidence Act could not apply.

Headnote:(i) Indian Penal Code, 1860—Section 364—Abduction—Murder—Prosecution case of criminal conspiracy to abduct and murder—Eye witnesses—Testimonies of PW2 and his son PW4 proved that while camel cart driven by PW2 was passing by the farm of accused ‘K’, the accused suddenly appeared on the scene and pulled down deceased, belaboured him and dragged him away—Intention of accused while dragging away deceased is evidenced by the statement attributed to one of the accused addressed to one B, calling him to bring a lathi to kill the deceased—Whether Sessions Court and High Court were justified in recording a conviction under Section 364 IPC against appellants—(Yes)—Intention of appellants being to dispose him of as to put him in danger of being murdered.
       Held : 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. (Para 12)
       (ii) Indian Penal Code, 1860—Sections 302/34 and 364—Murder after abduction—Acquittal for offence under Section 302/34—Evidence regarding beatings given to deceased in the house of accused held doubtful—Evidence regarding witnessing the accused persons going in Tractor Trolley with some body wrapped in a white gudri lying on the tractor held not believable—Homicidal death of deceased—Evidence as to recoveries of lathis and HMT wrist watch from the accused appears doubtful—Recovery of dead body in the path of a dried up nullah—Whether conviction of accused persons under Section 302/34 IPC can be sustained—(No)—High Court was not justified in relying on and applying rule of burden of proof under Section 106 of the Evidence Act—Evidence Act, 1872—Section 106.
       Held : The High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. (Para 22)
       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. (Paras 22 and 23)

Judgment

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.

2. 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 member 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.

3. 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.

4. 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 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, Chhajuram 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.

5. 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.

6. 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

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2005 Supreme(SC) 820

Important pointWhen the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused, the principle in Section 106 of the Evidence Act could not apply.

Cases Referred (2)

Important point
When the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused, the principle in Section 106 of the Evidence Act could not apply.