JUDGMENT
Sharma, J.
1. The nine appellants were placed on trial before learned Sessions Judge, Jaipur District, Jaipur in Sessions Case No. 20/97 for having committed murder of Ram Lal. Learned Sessions Judge vide judgment dated May 18, 1999 convicted and sentenced the appellants as under:-
(1) Babu Lal s/o Chhaju Ram & (2) Chhaju Ram:
Under Section 302/149 IPC To suffer Imprisonment for life and fine of Rs. 10,000/-, in default to further suffer Six Months Rigorous Imprisonment.
Under Section 148 IPC To suffer One Year Rigorous Imprisonment and fine of Rs. 1,000/-, in default to further
suffer One Month Rigorous Imprisonment.
Under Section 201 IPC To suffer Five Years Rigorous Imprisonment and fine of Rs. 2000/- , in default to further
suffer. Three months Rigorous Imprisonment.
Under Section 364 IPC To suffer Seven Years Rigorous Imprisonment and fine of Rs. 5000/-, in default to further
suffer. Three Months Rigorous Imprisonment
(3) Murlidhar:
Under Section 302/149 IPC To suffer Imprisonment for life and fine of Rs. 10,000/-, in default to further suffer Six Month s
Rigorous Imprisonment.
Under Section 148 IPC To suffer One Year Rigorous Imprisonment and fine of Rs. 1,000/-, in default to further
suffer One Month Rigorous Imprisonment.
Under Section 201 IPC To suffer Five Years Rigorous Imprisonment and fine of Rs. 2000/- , in default to further
suffer Three Months Rigorous Imprisonment.
Under Section 364 IPC To suffer Seven Years Rigorous Imprisonment and fine of Rs. 5000/-, in default to further
suffer Three Months Rigorous Imprisonment.
Under Section 379 IPC To suffer One Year Rigorous Imprisonment and fine of Rs. 1000/-, in default to further
suffer One Month Rigorous Imprisonment.
(4) Khema Ram, (5) Deepa Ram, (6) Sheopal, (7) Babu Lal s/o Deepa Ram, (8) Sagar Mal and (9) Laxman Prasad:
Under Section 302/149 IPC To suffer Imprisonment for life and fine of Rs. 10,000/-, in default to further suffer Six Months Rigorous Imprisonment.
Under Section 148 IPC To suffer One Year Rigorous Imprisonment and fine of Rs. 1,000/-, in default to further
suffer One Month Rigorous Imprisonment.
Under Section 201 IPC To suffer Five Years Rigorous Imprisonment and fine of Rs. 2000/- , in default to further
suffer Three Months Rigorous Imprisonment.
All the sentences were directed to run concurrently.
2. It is the case of the prosecution that on November 2, 1996 around 6.30 PM while Ram Lal (now deceased) was coming back to his house from Reengus on a camel cart of Mana Ram, appellant Khemaram and his family members got Ram Lal down from the camel cart and took him to their house where he was beaten by them and thereafter he was taken to some unknown place. Rameshwar, the brother of Ramlal, on coming to know about the incident in the morning of November 3, 1996, lodged a written report with the Police Station Govindgarh where a case under Sections 147, 148, 149 and 364 IPC was registered and investigation commenced. On receiving the dead body of Ramlal Section 302 IPC was also added. After thorough investigation, the Investigation Officer submitted charge sheet. The investigation however was kept pending under Section 173(8) Cr.P.C. against Bhagirath Mal. In due course the case came up for trial before the learned Sessions Judge, Jaipur District, Jaipur, who discharged the co-accused Smt. Sarli and Moharli and framed charges under Section 120B/364, 148, 120B/149/302, 120B/201 and 394/397 against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as may as 34 witnesses and got exhibited 75 documents. In their explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness however in defence was examined. The learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above.
3. We have pondered over the rival submissions and scanned the material on record.
4. The evidence adduced at the trial by the prosecution may be divided into seven sub-heads thus:-
(1) Evidence of criminal conspiracy;
(2) Evidence of abduction;
(3) Evidence of causing injuries in the house of Khema Ram;
(4) Evidence of carrying the body in tractor-trolly;
(5) Medical evidence;
(6) Evidence of recovery of lathis.
5. So far as evidence of Criminal Conspiracy is concerned, the prosecution examined Ajeet Singh (PW. 3), Hari Ram (PW. 15) and Kalu Ram (PW. 31) but the learned Trial Judge did not place any reliance on their testimony and held that it was not sufficient to establish the allegation of Criminal Conspiracy.
6. Then comes the evidence of abduction. Mana Ram (PW. 2) in his deposition stated that on the fateful day he was coming from Reengus in his camel-cart along with his son Sardara, Girdhari Kumawat and Ramlal (deceased). After dropping Girdhari Kumawat at Manawali Dhani, the camel-cart proceeded towards village Hasteda. As soon as it reached at Khema Ram Jat's well, Murlidhar and Chhaju Ram caught hold of Ramlal and got him down of the cart. Chhaju Ram, Babu Lal s/o Chhaju Ram, Murli Ram and Bhaggu Ram then started beating him with lathis. In his cross examination Mana Ram stated that he remained at the place of occurrence about twenty minutes and raised hue and cry but he did not know as to at which place Ram Lal was taken by those persons. Sardar Mal (PW. 4) corroborated the testimony of Mana Ram and deposed that Murlidhar, Chhaju Ram, Bhaggu Ram Babu Lal s/o Chhaju Ram pushed Ramlal down of the camel-cart. Babu Lal gave a lathi-blow on the person of Ramlal. He was then bodily lifted by them and was taken inner and inner. There was some darkness but light was on infront of the house of Khema Ram. In his cross examination Sardar Mal however stated that although he had seen 10 persons but he did not know the names of all persons. Girdhari Lal (PW. 14) was although declared hostile but he admitted that camel-cart of Mana Ram proceeded from Reengus at about 6.30 PM and he alongwith Ramlal, Mana Ram and Sardar had travelled in the camel-cart. As his house situated on the way therefore he got down from the cart. Satya Narain (PW. 18) did not toe the prosecution story and was declared hostile. Sunda Ram (PW. 19) was also declared hostile but he admitted that Mana Ram had come to Satya Narain's shop and told that Ramu had been pushed down of his camel-cart.
7. Learned Senior counsel canvassed that the evidence on the point of abduction of deceased Ramlal by the appellant Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram is wholly inconsistent besides being highly unnatural. The contemporaneous reaction of Mana Ram and Sardar Mal clearly betrays absence of these witnesses at the time of alleged abduction. It is further contended that there was complete darkness and the way was surrounded by 'Sarkandas' from both sides therefore it was not possible to identify anybody. In order to appreciate the contention we have closely scrutinised the testimony of Mana Ram (PW. 2) and Sardar Mal (PW. 4). Both are the independent witnesses and their testimony could not be shattered in the cross examination. Both of them deposed that there was some darkness only and they had identified appellants Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram. In Ram Gulam Chaudhary v. State of Bihar (1), counsel representing the accused made similar submissions before the Hon'ble Supreme Court. It was urged that as there was no light it was not possible for the witnesses to identify the accused or to see the incident. Their Lordships of the Supreme Court while rejecting the submissions, observed in para 34 thus:-
"We see no substance in this submission also. It must be remembered that the incident had taken place in a village. As has been held by this Court in the case of Kalika Tiwari v. State of Bihar (JT 1997(4) SC 405 = (1997) 4 SCC 445), the visible capacity of urban people who are acclimatised to fluorescent lights or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. It has been held that the visibility of villagers conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light."
8. We do not find any merit in the submission of learned Senior Counsel. We are of the view that even in the faint darkness the faces of the accused could be identified, more so when they are known to the witnesses. On examining the testimony of Mana Ram and Sardar Mal from the point of view of trustworthiness we find that they have not spoken untruth and their testimony has not been polluted. Girdhari Lal (PW. 14) corroborated this fact that deceased Ramlal took a ride on the camel-cart of Mana Ram along with him and he got down on the way. Sunda Ram (PW. 19) also supported the testimony of Mana Ram by stating that Mana Ram came to Satya Narain's shop and said that the deceased had been pushed down of his camel-cart. The prosecution in our opinion is able to establish that the appellants Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram got Ramlal down from the camel-cart and after beating Ram Lal they took him to a place which was not known to the witnesses.
9. In order to prove the fact that injuries were caused to Ramlal in the house of Khema Ram, the prosecution examined Babu Lal (PW. 5), Ram Ratan (PW. 7), Isro (PW. 10), Govind (PW. 13) and Manbhari (PW. 8). In his deposition Babu Lal (PW. 5) stated that in the evening of November 2, 1996 on hearing hue and cry when he came out of his house he did not find anybody. After a short while he heard whisper coming out of the house of Khema. Lights of the house were on and a tractor trolly stood out side. Inside the house Ramlal was lying soaked with blood, on a 'Gudari' surrounded by Bhaggu, Deepa, Sheopal, Laxman, Babulal, Chhajya, Murli, Babulal s/o Chhaju, Khema and 3-4 women. All were armed with lathis. On seeing him they asked as to what was the doing there and threatened him not to tell the incident to any body. In his cross examination Babu Lal stated that when he reached near the house of Khema, he found Manbhari already standing there. He further stated that well of Ishwar Lal, the father of Ram Lal, situated nearby at some distance from the house of Khema but he did not narrate the incident to them. He did not see Ishwar Lal and Ram Ratan near the place of incident. After seeing the incident he went to his house and slept. Ram Ratan (PW. 7) and Isro (PW. 10) who respectively are brother and father of deceased Ram Lal, deposed that on November 2, 1996 they were on their field. Around 7-8 PM on hearing noises in the house of Khema, they proceeded nearer to his house and at a distance of 100 steps they saw 10-11 persons and 2-3 women having lathis in their hands. There stood tractor trolly outside the house and lights were on inside. Khema was telling Bhaglya to kill some body. Noises were continued for twenty minutes. Khema, Chhaju, Murli, Babu Lal s/o Chhaju, Moharli w/o Chhaju, Bhaglya, Ganeshya, Deeplya, Sheopala, Laxman Babu Lal s/o Deepa, Sagar, Sarli w/o Bhaggu were inside the house. Bhaggu then asked Laxman to start the tractor and then something was put in the tractor and it proceeded towards Reengus. The witnesses further stated that they did not find abnormality in the conduct of those persons as it was their daily routine to drink in the evening and make noises. Govind (PW. 13) stated that while he was passing near the house of Khema he heard the whisper and saw the nine appellants, one bhagya and two women Sarli and Moharli. Khema was exhorting to kill some body. A tractor trolly was standing out side the house. He then went to his house. Manbhari (PW. 8) however did not toe the prosecution line and was declared hostile.
10. We thus find that out of the four witnesses examined by the prosecution to prove the incident occurred in the house of Khema Ram, two are the father and brother of the deceased, one is the neighbour of Khema Ram and other one is a casual passerby. We have therefore to judge their testimony by applying the well recognized test of basic human probabilities. The evidence has to be examined with utmost care and caution, keeping in mind that the easy tendency is more often discernible to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the malee. In assessing the value of the evidence of an eye witness, the principal considerations are:-
(i) Whether, in the circumstance of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them; and
(ii) Whether there is anything inherently improbable or unreliable in their evidence.
Turning to the testimony of Babu Lal (PW. 5) as already noticed by us we find that he is the neighbour of Khema Ram and although he saw the appellants assaulting Ram Lal but did not divulge this fact to any one. Babu Lal has given the graphic description of the incident as to how Ram Lal was lying soaked with blood on a 'gudri' surrounded by nine men and three-four women who all were armed with lathis. He could see the incident as lights were on. From the testimony of Ram Ratan (PW. 7) and Isro (PW. 10) it appears that their agricultural land and well situated at a close distance from the house of Khema Ram and it is highly unlikely and improbable that their kith and kin Ram Lal would have been given beating by the appellants while keeping light of their house on and door of the room opened. It is difficult to believe that Ram Lal would have been taken to the house of Khema Ram which was situated in the vicinity of agricultural land and well of Isro, the father of Ram Lal. Presence of Govind (PW. 13) also appears to be unnatural, as he kept mum and did not disclose the incident to any body. We find that the evidence of Babu Lal (PW. 5) Ram Ratan (PW. 7), Isro (PW. 10) and Govind (PW. 13) is replete with inherent improbabilities and they are wholly unreliable witnesses.
11. That takes us to the evidence of Man Singh (PW. 6) and Surja Ram (PW. 9) who is their deposition stated that on November 2, 1996 around 8.30 PM when they were going back from Reengus to their village 'Bagdi Nagal', they saw a tractor trolly driven by Laxman. While Sheopal and Deepa got themselves seated on mudguard, Bhagirath and Chhaju Ram were standing and Murli, Sagar, Babu Lal s/o Chhaju and Babu Lal s/o Deepa were sitting. On being asked as to at which place they were going, , Bhagirath and Chhaju informed that as Ballu Ram became sick they were taking him to Srimadhpur Hospital. They saw some body wrapped in a white Gudri, lying on a tractor. A close look at the testimony of Man Singh (PW. 6) goes to show that he is a motbir of most of the memos drawn by the Investigating Officer including memo of site plan of the house of Khema Ram (Ex.P-8), site plan of recovery of the dead body (Ex.P-2), seizure memo of soil (Ex.P-4), seizure memo of Gudri (Ex.P-6) and other memos Ex.P-7, Ex.P-10, Ex.P-11, Ex.P- 12 and Ex.P-14. In his cross examination Man Singh stated that at the time of drawing inquest- report he did not inform police that he had seen the appellants carrying some body on the tractor trolly. In his police statement (Ex.D-1) he only named six accused but at the trial he stated that he gave 10-11 names to the police. Man Singh remained with police from 5 PM of November 3, 1996 till 11 AM of the next day. Surja Ram (PW. 9) in his cross examination stated that when he reached near the dead body lying under the Reengus bridge, police was already there but at that time he did not disclose that in the proceeding night he had seen the appellants taking some body on the tractor-trolly. In his police statement (Ex. D-4) he only named Khema Ram, Babu Lal and Murlidhar but at the trial he implicated 10-11 persons. On properly marshaling and analysing the evidence of Man Singh and Surja Ram we find that the embellishments in their testimony are of such nature that undermine the substratum of the evidence and found to be tainted to the core. The testimony of these witnesses does not inspire confidence and we find ourselves unable to accept it.
12. Dr. R.S. Rungta (PW. 27) conducted post mortem on the dead body of Ram La! and vide post mortem report (Ex.P-59) following antemortem injuries were found:-
1. 1. Abrasion:
2 x 2 cm] On the Rt. Parietal Region of
5x3, cm) the scalp
1 x 1 cm]
2. Abrasion:
2cm x 2cm] On the Frontal Region of the
1,1/2cm x 1 cm] scalp
3. 3. Bruises:
5cm x 3 cm] On the Rt. Shoulder
4cm x 1 cm]
3cm x 1,1/2 cm]
1 x 1 cm]
4. 4. Abrasion:
4cm x 1 cm] On the outer Aspect of Rt.
2cm x 1,1/2 cm] Forearm
5. 5. Abrasion:
1 cm x 1 cm On the dorsum of left hand.
6. 6. Bruise :
21/2 x 2 cm On the outer aspect of lower end of left forearm.
7. 7. Bruise:
21/2 x 2 cm On the Rt. anterior chest wail below the Pectoral Region.
8. 8. Bruise:
6cm x 5 cm On the left Anterior chest wall below the Pectoral Region.
9. 9. Abrasion:
4cm x 1 cm] Below the Left Axilla
2cm x 1 cm]
10. 10. Abrasion:
2cm x 1,1/2cm Along the outer Aspect of Rt. knee.
11. 11. Abrasion: 5cm x 4 cm, Below Rt. Nee
12. 12. Abrasion: 7cm x 1 cm, On the Rt. Tibia Tuberosity
13. 13. Abrasion:
4cm x 3 cm] On the Lower end of Rt. Tibia
2cm x 2 cm]
14. 14. Bruise: 6cm x 3 cm, Left shoulder.
Probable cause of death of the deceased was 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 part e.g. testis). We thus find that the death of Ramlal was homicidal.
13. So far as evidence of recovery of lathis at the instance of appellants is concerned we find that none of the lathi so recovered was found stained with blood. Lathi can be available in the house of every villager are the alleged recoveries in our opinion does not assume much importance in the facts and circumstances of the case.
14. It would thus be seen that the evidence led on behalf of the prosecution against the appellants Khema Ram, Deepa Ram, Sheopai, Babu Lal s/o Deepa Ram, Sagar Mal and Laxman Prasad is wholly unsatisfactory and it cannot be regarded sufficient to found the conviction of these appellants. The learned trial judge appears to have overlooked the infirmities as discussed by us which were extremely damaging to the prosecution case. The prosecution has failed to prove charges under Sections 302/149, 148 and 201 IPC against the appellants Khema Ram, Deepa Ram, Sheopai, Babu Lal s/o Deepa Ram, Sagar Mal and Laxman Prasad beyond reasonable doubt.
15. Having relied on the testimony of Mana Ram (PW. 2) and Sardar Mal (PW. 4) we have in the earlier part of this judgment, held that the prosecution is able to establish that the appellants Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram pushed Ramlal down from the camel-cart and after beating Ramlal they took him to a place not known to the witnesses. The evidence adduced by the prosecution qua Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram is clear, unambiguous and in unmistakable terms establish that these appellants are the perpetrators of the crime. As these appellants were the abductors of Ramlal, a presumption can be drawn that these abductors themselves could be the killers of Ramlal, as is held by the Apex Court in State of West Bengal v. Mir Mohammad Omar (2), that the court would be justified in appropriate cases to draw the presumption that the abductors themselves could be the killers of the abducted victim, unless they explained otherwise as to what they did with the prey.
16. There is no dispute that Ramlal was murdered on November 2, 1996 and his dead body was found in the morning of the next day. Hence the only point that requires consideration is whether the appellants Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram can be held guilty of committing murder of Ramlal.
17. Interpreting the principle in Section 106 of the Evidence Act, their Lordships of the Supreme Court in State of West Bengal v. Mir Mohammed Omar (supra) indicated thus:-
"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 fossilised 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 prosecution is allowed to be wrapped in pendantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty."
18. In Sucha Singh v. State of Punjab (3), the Hon'ble Supreme Court in para 20 observed as under:-
"We only reiterate the legal principle adumbrated in State of West Bengal Vs. Mir Mohammed Omar (supra), that when more persons than one have abducted the victim, who was late murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 of the IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e. whether he left his associates en-route or whether he dissuaded others from doing the extreme act etc. etc."
Their Lordships further indicated that "the abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased"
19. Undoubtedly it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt and provisions contained in Section 106 of the Evidence Act do not intend to relieve the prosecution of its burden, but Section 106 would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused failed to offer any explanation which might drive the court to draw a different inference.
20. In the case on hand, the facts which the prosecution proved, 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 are enough to draw an inference that Ramlal's death was caused by the appellants Murlidhar, Chhaju Ram and Babu Lai s/o Chhaju Ram who were the abductors. (We refrain from expressing any opinion about Bhagirath Mal who is not before us). If any deviation from the aforesaid course would have been factually correct only the said abductors would know about it, because such deviation would have been especially within their knowledge. As they declined to state such facts, the inference would stand undisturbed. Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram alone could tell the court as to what happened to Ramlal after he was abducted by them from the camel-cart of Mana Ram. As they withheld that information from the court there is every justification from drawing the inference, in the facts and circumstance of the case, that they are the murders of the deceased Ramlal and in committing the said crime they shared common intention, thus we find them guilty under Section 302/34 IPC.
21. As a result of the foregoing discussion we dispose of the instant appeal in the following terms:-
(i) Appeal of appellants Khema Ram, Deepa Ram, Sheopal, Babu Lal s/o Deepa Ram, Sagar Mal and Laxman Prasad shall stand allowed and they are acquired of the charges under Sections 302/149, 148 and 201 IPC. They are on bail, they need not surrender and their bail bonds stand cancelled.
(ii) Appeal of appellants Murlidhar. Chhaju Ram and Babu Lal s/o Chhaju Ram stands dismissed. Their conviction and sentence under Section 364 IPC stand confirmed. Instead of Section 302/149 IPC, we convict them under Section 302/34 IPC and sentence each of them to undergo imprisonment for life and fine of Rs. 10,000/- in default to further suffer six months Rigorous Imprisonment. The sentences shall run concurrently. They however stand acquitted of the charges under Sections 148, 201 and 379 IPC.
(iii) The impugned judgment of the learned trial judge is modified as indicated above.