Case: Murlidhar  Vs. State Of Rajasthan

in drawing the inference that the abductors had murdered the victim, Ramlal, after abduction. 25. 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. 26. 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 offences in serious offences would be the major beneficiaries and the society would be the casualty. 27. 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. 28. The judgment of Vivian Bose, J in Shambu Nath Mehra vs. State of Ajmer 1956 SCR 199 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. 29. 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 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 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. 30. 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

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. 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 Ramlal20. 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 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 confidence29. 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 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 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 improbabilities17. 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 away22. The evidence as to recoveries also appears doubtful. The recoveries consisted to 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 area23. 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 acquired of the said charges. In these circumstances, the High Court was justified in rejecting the evidence of recoveries24. Finally, the High Court having accepted the evidence as to 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 Ramlals 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. vs. Mir Mohammad Omar and Ors. (2000) 8 SCC 382 , 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 the abductors had murdered the victim, Ramlal, after abduction13. 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.