Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 337 (ALL)

DIGAMBAR SINGH v. STATE OF U. P.

2015-02-23

BALA KRISHNA NARAYANA

body2015
JUDGMENT Hon'ble Bala Krishna Narayana, J. Heard Sri Sunil Kumar, Sri Samit Gopal as well as Sri Amit Saxena, learned counsels for the appellants and Sri J. K. Upadhyay, learned A. G. A. for the State. These two criminal appeals arise out of the judgement and order dated 4.3.2010 passed by the Additional Sessions Judge / F. T. C. No. 2, Rampur in S. T. No. 122 of 2008; State Versus Parmeshwar Deen Ratnakar and four others, by which the appellants were convicted under Sections-147, 342, 323/149, 304/149 and 201 IPC and sentenced to one year R. I. and a fine of Rs. 1000/- under Section-147 IPC and in default of payment of fine, further R. I. of fifteen days, six months' R. I. under Section-342 IPC and fine of Rs. 500/- and in default of payment of fine one week's further R. I., six months' R. I. under Sections-323/149 IPC and fine of Rs. 500/- and in default of payment of fine further imprisonment of one week, under Section-201 IPC, two years' R. I. and fine of Rs. 2000/- and in default of payment of fine, further imprisonment of one month and under Sections-304/149 IPC R. I. of seven years and fine of Rs. 10000/- and in default of payment of fine, further imprisonment of six months. All the sentences were directed to run concurrently. Brief facts of the case are that on the basis of a written report (Ext. Ka 1) lodged by one Mukesh Kumar, P. W. 1, S/o of Shiv Charan Lal, R/o village-Kheraat at about 11.00 P. M. on 27.6.2003 at P. S.-Shahbad, District-Rampur, first information report (Ext. Ka 10) was registered as Case Crime No. 318 of 2003, under Sections-147, 148, 342, 323/149, 504, 304/149 and 201 IPC at P. S.-Shahbad, district-Rampur against five persons namely, Shashi Bhushan, Incharge Police chauki, Dhakeru under police station-Shahganj, Constable Raj Pal Singh, Constable Om Pal Singh, Constable Dinkar Singh and Constable Kehri Singh. The prosecution case as spelt out in the first information report by the first informant Mukesh Kumar was that his real brother, Kailash alias Pappu had left his house in village Khera, district-Rampur on foot along with his sister Kamla at about 10.00 A. M. on 27.6.2003 and was proceeding to Kerakat. The prosecution case as spelt out in the first information report by the first informant Mukesh Kumar was that his real brother, Kailash alias Pappu had left his house in village Khera, district-Rampur on foot along with his sister Kamla at about 10.00 A. M. on 27.6.2003 and was proceeding to Kerakat. After they had walked some distance Shashibhushan, Incharge Police Outpost-Dhekiya accompanied with S. I. P. D. Ratnakar, Constables Om Pal Singh, Rampal Singh and Digambar Singh and Kehri Singh intercepted informant's brother Kailash and forcibly took him to police outpost-Dhekiya. The sister of first informant immediately returned back to her house and informed her family members about the illegal detention of her brother Kailash alias Pappu within the premises of police outpost-Dhekiya. Thereafter the first informant went to house of his elder sister Shanti in village Gahmar and reached police outpost Dekhiya with her. On reaching the police outpost he saw that the accused had hung their brother upside down from a tree in a naked state and were beating him mercilessly. When the informant implored the accused-appellants to set his brother free, S. I. P. D. Ratnakar hurled abuses at him and ordered him to get out. It was further stated in the first information report that after the brother of the informant had died within the precincts of police outpost Dhekiya on account of the injuries sustained by him, as a result of being severely beaten by the accused, they had taken him in a police jeep attached with police station-Shahbad to some un-known destination. The informant and his family members had raised hue and cry at the police station and demanded that the dead body of the deceased be handed over to them. At about 6.00 P. M. they were informed that the accused had absconded after leaving the dead body of Kailash alias Pappu in the District Hospital Rampur. In the first information it was also alleged that the entire incident involving the beating of the informant's brother by the accused was witnessed by Tripurari Diwakar, Incharge, P. S.-Shahbad who had remained at the place of incident throughout and was fully involved in the commission of the crime. The inquest was conducted by Sri S. N. Yadav, S. D. M., Rampur, P. W. 8, in the mortuary of District Hospital Rampur who noted four injuries on the dead body of the deceased. The inquest was conducted by Sri S. N. Yadav, S. D. M., Rampur, P. W. 8, in the mortuary of District Hospital Rampur who noted four injuries on the dead body of the deceased. He prepared the inquest report (Ext. Ka 4) and other relevant papers Ext. ka 5 to 8 at that time. The post mortem on the dead body of the deceased was conducted by Dr. Gyan Chand, P. W. 7 on 28.6.2003 at about 4.30 P. M. The post mortem report of the deceased (Ext. Ka 4) shows fifteen injuries. The cause of the death however could not be ascertained. Viscera of the deceased was preserved and sent for forensic examination. According to the viscera report (Ext. Ka 22) alcohol poison was found present in the examination of the organs of the deceased. Investigation was conducted by C. O. Milak, Rampur, Om Veer Singh, Swarnjeet Kaur, Inspector C. B. C. I. D. and Vijai Kumar, Inspector C. B. C. I. D. It is further relevant to note here that the informant Mukesh after lodging the written report dated 27.6.2003 (Ext. Ka 1) at P. S.-Shahbad had moved an application (Ext. Ka 2) before the S. P., C. B. C. I. D., Barelly on 16.8.2003 which was signed by the informant, his sisters Kamla and Shanti and his father Shiv Charan Lal, along with his affidavit (Ext. Ka 3) in which the allegations made by him against the accused in his written report dated 26.6.2003 (Ext. Ka 10) were conspicuous by their absence. The informant in the application dated 16.8.2003 (Ext. Ka 3) and his affidavit filed by him before the S. P., C. B. C. I. D., Bareilly had categorically alleged that on 27.6.2003 some unknown persons who had come on motorcycles had kidnapped the deceased Kailash alias Pappu while he was going with his sister Kamla. Later Kailash alias Pappu was seen in police outpost Dhekiya where his condition had deteriorated and as a result he was sent for medical treatment to District Hospital Rampur where he died. After completion of investigation, the I. O. Vijay Kumar Inspector, C. B. C. I. D. submitted chargesheet (Ext. Ka 17) against the accused-appellants P. D. Ratnakar. Shashibhushan, Raj Pal Singh, Om Pal Singh, Dinkar Singh and Kehri Singh under Sections-147, 148, 304, 201, 323, 504 and 342 IPC. After completion of investigation, the I. O. Vijay Kumar Inspector, C. B. C. I. D. submitted chargesheet (Ext. Ka 17) against the accused-appellants P. D. Ratnakar. Shashibhushan, Raj Pal Singh, Om Pal Singh, Dinkar Singh and Kehri Singh under Sections-147, 148, 304, 201, 323, 504 and 342 IPC. Thereafter the case was committed to the Court of Sessions by the C. J. M., Rampur and registered as S. T. No. 122 of 2008 before the Additional Sessions Judge / Fast Track Court No. 2, Rampur. On 18.7.2008 charge was framed against all the accused under Sections-147, 148, 342, 323 read with Sections-149, 504, 304 read with Sections-149 and 201 IPC. All the accused pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as twelve witnesses namely P. W. 1 Mukesh Kumar, P. W. 2 Kamla, P. W. 3 Shiv Charan Lal, P. W. 4 Smt. Ramwati, P. W. 5 Smt. Shanti, P. W. 6 Dr. Om Prakash, P. W. 7 Dr. Gyan Chand, P. W. 8 Satya Narain Yadav, P. W. 9 Garn Pal Singh, P. W. 10 Smt. Swarnjeet Kaur, P. W. 11 Inspector Vijay Kumar and P. W. 12 Om Veer Singh. Sri Karn Pal Singh, P. W. 9 was recalled and examined as C. W. 1. The documentary evidence filed on behalf of prosecution comprised of written complaint (Ext. Ka 1) lodged by the informant Mukesh Kumar at P. S. Shahbad on 26.3.2003, application given by the informant to the S. P., C. B. C. I. D., Bareilly (Ext. Ka 2), affidavit filed by Mukesh Kumar along with the aforesaid application (Ext. Ka 3), carbon copy of the post mortem report (Ext. Ka 4), inquest report (Ext. Ka 4/1), photograph of the dead body (Ext. Ka 5), police forms total in number 13 (Ext. Ka 6), reports forwarded by the Incharge Inspector to the Chief Medical Officer, Rampur and District Hospital Rampur (Exts. Ka 7, 8 and 9), first information report (Ext. Ka 10), carbon copy of the chik report (Ext. Ka 11) and G. D. Entries (Ext. Ka 12 to 15) prepared at the relevant point of time, order dated 7.8.2003 issued by the Divisional Officer, C. B. C. I. D., Bareilly, chargesheet (Ext. Ka 17), site plan (Ext. Ka 18) and the map of the place from where the deceased was kidnapped (Ext. Ka 11) and G. D. Entries (Ext. Ka 12 to 15) prepared at the relevant point of time, order dated 7.8.2003 issued by the Divisional Officer, C. B. C. I. D., Bareilly, chargesheet (Ext. Ka 17), site plan (Ext. Ka 18) and the map of the place from where the deceased was kidnapped (Ext. Ka 19), report of Incharge Inspector Kotwali relating to taking of the deceased Kailash alias Pappu to police station (Ext Ka 21) and the report of the forensic laboratory (Ext. Ka 22). The learned Additional Sessions Judge / Fast Track Court No. 2, Rampur after considering the entire facts and circumstances of the case and the evidence on record, oral as well as documentary, convicted the accused-appellants by his judgement and order dated 4.3.2010 and awarded the aforesaid sentences to them. Learned counsel for the appellants submitted that all the witnesses of fact having denied the prosecution case as stated in the first information report and P. W. 1 and P. W. 2 having failed to identify the accused when they were subjected to test identification in the Court during the trial and having been declared hostile, except P. W. 4, on the request of the prosecution, the court below illegally invoked Section 106 of the Indian Evidence Act for convicting the appellants in the present case. Even P. W. 6 had not supported the prosecution case. He next submitted that from the perusal of the evidence of the witnesses of fact examined during the trial it was clearly established that the appellants had not caused any injury to the deceased and the injuries found on the deceased's dead body were inflicted on him by some unknown persons whom neither the informant nor the other witnesses of fact knew. There is inconsistency between the number of injuries found on the deceased's dead body during the inquest proceedings and by the doctor who had performed the post mortem on the deceased's dead body which the prosecution has miserably failed to explain by leading any link evidence. The admitted fact that the deceased's dead body was received in the District Hospital Rampur in an unsealed state, suggests the possibility of tampering with the same cannot be ruled out. The admitted fact that the deceased's dead body was received in the District Hospital Rampur in an unsealed state, suggests the possibility of tampering with the same cannot be ruled out. He further submitted that the various G. D. Entries which formed the foundation for raising the edifice of conviction of the appellants by the trial court and upon which the trial court has extensively relied for invoking Section 106 of the Indian Evidence Act, neither constitute complete chain for establishing the guilt of the appellants nor the same could be made basis for applying Section 106 of the Indian Evidence Act. He also submitted that Section 106 of the Indian Evidence Act has to be read with in conjunction with and not in derogation of Section 101 of the Indian Evidence Act. Section 106 of the Indian Evidence Act does not relieve the prosecution of its primary and foremost duty to establish the guilt of the accused beyond all reasonable doubt independent of weaknesses of the defence. It is only when prosecution, for well perceptible and acceptable reasons, is unable to lead evidence because of circumstances beyond its control including the reason that the fact required to be proved was "within the special knowledge of the accused alone" and prosecution could not have known it by due care and diligence, that Section 106 can be resorted to by shifting burden on the accused to divulge that fact which is "in his special knowledge" and if accused fails to offer any reasonable explanation to satiate judicial inquisitive scrutiny, he is liable to be punished. Section 106 could not be utilized to make up for the prosecution's inability to establish its case by leading cogent and reliable evidences. Section 106 could not be utilized to make up for the prosecution's inability to establish its case by leading cogent and reliable evidences. He lastly submitted that in the present case prosecution version as spelt out in the first information report refers to the eye witness account of the sister of the deceased who claimed having seen the appellants forcibly taking her brother Kailash alias Pappu to the police station as well as that of his brother Mukesh P. W. 1 and sister Shanti Devi P. W. 2 who had witnessed the beating of the deceased by the accused within the precincts of police outpost Dekhiya, which was fully corroborated by them in their interrogatory statements recorded during investigation but the aforesaid witnesses not only denied the prosecution case as stated in the first information report in their evidence recorded before the trial court but also disowned their statements purporting to have been recorded under Section 161 Cr. P. C. when confronted with the same during the trial and gave an entirely different description of the incident in which the appellants had no role to play and in the facts and circumstances of the present case, the prosecution had failed to disclose any fact relating to the death of the deceased which was within the special knowledge of the appellants and which the prosecution could not have known by due diligence and care. Per contra, Sri J. K. Upadyay, learned counsel for the opposite party submitted that the trial Judge had rightly taken the aid of Section 106 of the Indian Evidence Act for convicting the appellants. He next submitted that from the perusal of G. D. Entries 9, 12, 14 and 17 maintained at police outpost Dhekiya it was proved beyond any reasonable doubt that the accused-appellants had brought the deceased Kailash alias Pappu to police outpost Dekhiya and lodged him there at about 13.50 hrs. and after he had died within the precincts of police outpost Dekhia at about 15.15 hrs., a huge crowd had gathered near the police outpost. and after he had died within the precincts of police outpost Dekhia at about 15.15 hrs., a huge crowd had gathered near the police outpost. He also submitted that the in case the injuries found on the dead body of the deceased were already present when he was brought to the police outpost Dhekiya by the accused-appellants, then there is no reason why the G. D. Entry No. 14 did not record those injuries specially in view of the fact that at least four of the fifteen injuries which were noted in the post mortem report, were externally visible. The aforesaid omission clearly indicates that all the fact witnesses had stated incorrect facts in their evidence recorded during the trial either under pressure or fear of the appellants who are police personnel and what happened within the precincts of the police outpost Dhekiya between 13.50 and 15.15 hrs. on 27.6.2003, was within the special knowledge of the appellants and the burden of explaining how and under what circumstances the deceased had received injuries which caused his death lay on them which they miserably failed to discharge and accordingly Section 106 of the Indian Evidence Act was rightly invoked against them by the trial court for the purpose of convicting them. I have very carefully considered the submissions advanced by learned counsel for the parties and perused the impugned judgement and order as well as the lower court record. The only issue which arises for consideration in this appeal is whether the trial court was legally justified in applying Section 106 of the Indian Evidence Act to the facts and circumstances of the case and convicting the appellant and whether in doing so the trial court wrongly placed the burden of proving their innocence on the appellants despite the prosecution having miserably failed to discharge its initial burden to prove the prosecution case. Before examining the aforesaid issue it will be useful to examine the law on the issue. In Woolmington Versus Director of Public Prosecution: 1935 AC 462, it has been held :- "Just as there is evidence on behalf the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. In Woolmington Versus Director of Public Prosecution: 1935 AC 462, it has been held :- "Just as there is evidence on behalf the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence. . . Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have 26 already said as to the defence of insanity and Subject also to any stationary exception. If, at the end of and on the whole of the case, there reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." (emphasis ours) Above view has been approved by the apex court in a catena of it's decisions. In Vijayee Singh versus State of U.P.: 1990 Cr.L.J. (SC) 1510, apex court has observed thus:- "15. The phrase "burden of proof" is not defined in the Act. In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt". In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt". In K.M. Nanavati v. State of Maharashtra: AIR 1962 SC 605 apex court has observed as follows:- "In India, as it is in England, there is a presumption of innocence in 27 favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused." In Gurchran Singh versus State of Punjab: AIR 1956 SC 460 apex court has laid down that :- 6.But even so, the burden of proving the case against the appellants was on the prosecution irrespective of whether or not the accused have made out a plausible defence." Some of the other decisions on this point are Sawal Das versus State of Bihar: AIR 1974 SC 778 ; BaidyaNath Prasad Srivastava versus State of Bihar: AIR 1968 SC 1393 ; R venkatkrishnana versus CBI: (2009) 11 SCC 737 ; Subramaniam versus State of T.N.: (2009)14 SCC415 and many more. The residue of the above decisions are that prosecution has to establish guilt of the accused filtered of all reasonable prognosis favourable to the accused to secure conviction and it is never relieved of this initial duty. It is only when it has discharged it's initial burden of proof that the defence of the accused has to be looked into. At this juncture we advert to the most contentious contention mooted before us that section 106 Evidence Act can be applied to fasten guilt of the appellant even if prosecution has failed in it's initial burden. In this respect it is to be noted that in the present case 28 prosecution has heavily relied upon the testimony of P.W.4 Vishambhar as an eye witness to the murder to establish guilt of the appellant. Failing in that feat that now it desires to take a 'U' turn by shifting the burden of proof on the shoulders of the accused with the aid of section 106 Evidence Act. Failing in that feat that now it desires to take a 'U' turn by shifting the burden of proof on the shoulders of the accused with the aid of section 106 Evidence Act. From what we have noted above it is sufficiently born out that even in cases which are covered under section 106 of Evidence Act the same principle applies which applies in cases of eye witness account for establishing guilt of the accused. Section 106 has to be read in conjunction with and not in derogation of section 101 Evidence Act. section 106 does not relieve prosecution of it's primary and foremost duty to establish accused guilt beyond all reasonable doubt independent of weaknesses of the defence. It is only when prosecution, for well perceptible and acceptable reasons, is unable to lead evidence because of circumstances beyond it's control including the reason that the fact required to be proved was "within the special knowledge of the accused alone" and prosecution could not have known it by due care and diligence, that section 106 can be resorted to by shifting burden on the accused to divulge that fact which is "in his special knowledge" and if accused fails to offer any reasonable explanation to satiate judicial inquisitive scrutiny he is liable to be punished. But even in such a situation prosecution has firstly to 29 establish entire chain of circumstances woven together in a conglomerated whole unerringly indicating that it was accused alone who is the perpetrator of the crime and the manner of happening of the incident is known to him alone and is within his special knowledge. It is then that the burden shift from the prosecution to the accused to explain how and in what manner offence was committed. Section 106 can not be utilised to make up for the prosecution's inability to establish it's case by leading cogent and reliable evidences, especially when prosecution could have known the crime by due diligence and care. Aid of section 106 Evidence Act can be had only in cases where prosecution could not produce evidence regarding commission of crime but brings all other incriminating circumstances and sufficient material on record to prima facie probablise it's case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. Aid of section 106 Evidence Act can be had only in cases where prosecution could not produce evidence regarding commission of crime but brings all other incriminating circumstances and sufficient material on record to prima facie probablise it's case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. That section lays down only this much that if a fact is in the "special knowledge of a person" and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on that person in whose special knowledge it is. Section 106 Evidence Act has no application if the fact is in the knowledge of the prosecution or it could have gained it's knowledge with due care and diligence. Here we refer some of the decisions countenancing our view. Apex court in 30 Shambhu Nath Mahra versus State of Ajmer: AIR 1956 SC 404 has held as follows:- " 11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 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. 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. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B). .................................................................. 31 13. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B). .................................................................. 31 13. We recognise that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially" within the knowledge of the accused. This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts." Another decision on this aspect is Attygalle versus The King:AIR 1936 PC169. In P. Mani versus State of Tamil Nadu: AIR 2006 SC 1319 apex court has held as under :- " 10. We do not agree with the High Court. In a criminal case it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out 32 evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever." In yet another decision Murlidhar and others versus State of Rajasthan: AIR 2005 SC 2345 , it has been observed by the apex court as follows:- "22.In our judgement, 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 proceeded on the footing that there were eye-witnesses to 33 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 replete with contradiction and inherent improbabilities. 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 replete with contradiction and inherent improbabilities. 23.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 34 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." In Ch. Razik Ram versus Ch. J.S.Chouhan: AIR 1975 SC 667 it has been held as follows:- "116. In the first place, it may be remembered that the principle underlying Section 106, Evidence Act which is an exception to the general rule governing burden of proof - applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant-respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent." In State Of West Bengal versus Mir Mohammad Umar: 2000SCC(Cr) 1516 it has been held as follows:- "36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows : "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn 35 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. 38. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn 35 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. 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 Shambu Nath Mehra v. The State of Ajmer, 1956 SCR 199 : ( AIR 1956 SC 404 : 1956 Cri LJ 794) the learned Judge has stated the legal principle thus (para 11 of AIR) : "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 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." Thus what is gathered from the above decisions and discussion is that the prosecution has to establish the charge independently standing on it's legs and the defence of the accused cannot be singularly utilized to hold him guilty and convict him when prosecution evidence is weak, incredible, insufficient and does not inspire any confidence. The first information report (Ext. Ka 10) of the case was registered on the basis of the written report (Ext. Ka 1) given by Mukesh the real brother of the deceased Kailash alias Pappu at P. S.-Shahbad. In the first information report the informant has categorically stated that his brother Kailash alias Pappu had left his home in village Khera, P. S.-Shahbad, district-Rampur on 27.6.2003 at about 10.00 A. M. with his sister Kamla. Ka 1) given by Mukesh the real brother of the deceased Kailash alias Pappu at P. S.-Shahbad. In the first information report the informant has categorically stated that his brother Kailash alias Pappu had left his home in village Khera, P. S.-Shahbad, district-Rampur on 27.6.2003 at about 10.00 A. M. with his sister Kamla. When they reached near police outpost Dhekiya, Incharge of the police outpost Dhekiya, Shashibhushan who was accompanied by S. I. P. D. Ratnakar, constables Om Pal Singh, Raj Pal Singh, Digambar Singh and Kehri Singh had forcibly dragged Kailash into the premises of police outpost Dhekiya. Deceased's sister Kamla immediately returned back to her home and narrated the whole incident to her relatives, whereupon first informant Mukesh left for her elder sister's house in village-Gadmar and when he reached police outpost with his sister Shanti he found that the accused had hanged his brother upside down in the police outpost Dhekiya and were beating him mercilessly. When the informant implored them to let their brother go, S. I. P. D. Ratnakar hurled abuses at him and got him thrown out of the precincts of police outpost Dhekiya. In the first information report it was further stated that the informant's brother Kailash alias Pappu had died in the police outpost itself as a result of beating given to him by the accused-appellants. After the informant's brother had died the police personnel took his dead body to an un-known destination in a police jeep of P. S. Shahbad ignoring the pleas of the informant and his relatives for handing over his dead body to them. At about 6.00 P. M. he learnt that the accused had left the dead body of his brother in District Hospital Rampur. In the first information report it was also mentioned that the informant's brother was mercilessly beaten and murdered in police outpost by the accused-appellants in the presence of the Officer Incharge Tripurari Diwakar and he was fully involved in the commission of deceased's murder. The informant as well as the other witnesses who are the close relatives of the deceased namely his parents and his real sisters had fully corroborated the prosecution case as spelt out in the first information report in their statements recorded under Section 161 Cr. P. C. The investigation of the case was initially entrusted to Om Veer Singh, C. O, Mirok, Rampur P. W. 11. P. C. The investigation of the case was initially entrusted to Om Veer Singh, C. O, Mirok, Rampur P. W. 11. The inquest proceedings were conducted by Satya Narain Yadav, S. D. M., Nanpara (P.W. 8). A perusal of the inquest report (Ext. Ka 3) shows that the accused had sustained four injuries. The post mortem of the deceased was conducted on 28.6.2003 at about 4.30 P. M. by Dr. Gyan Chand (P. W. 7). The post mortem report of the deceased shows fifteen injuries on his dead body. Cause of death could not be ascertained. Viscera of the deceased was preserved and sent for forensic examination. After completion of investigation chargesheet was filed by the Investigating Officer Vijay Kumar Inspector, C. B. C. I. D., Bareilly Division against the accused-appellants P. D. Ratnakar, Shashi Bhushan, Raj Pal Singh, Om Prakash Singh, Kheri Singh and Digamber Singh under Sections-147, 148, 304, 201, 323, 504 and 342 IPC. Mukesh Kumar P. W. 1 in his evidence tendered during the trial deposed that on the day before the date of incident his real brother Kailash alias Pappu aged about 23 years was working in his field. Between 5.00 to 6.00 P. M. five or six persons came out from the nearby country liquor shop and started damaging the crops standing in the filed of his brother to which he objected, whereupon all the aforesaid persons beat Kailash alias Pappy mercilessly inflicting serious injuries on him. Upon receiving the information of the aforesaid incident, the informant P. W. 1 Mukesh Kumar and his other relatives rushed to the place of incident and brought him back to his house. When his condition started deteriorating on the next day, i. e. 27.6.2003 Kailash alias Pappu left his house at about 12.30 P. M. with his sister Kamla for getting medical treatment in Shahbad. However as soon as he and his sister Kamla came out of the village, some un-known persons caught hold of Kailash and forcibly took him to police outpost Dhekiya. The persons who had abducted Kailash were not police men. Thereafter Kamla immediately rushed back and informed the P. W. 1 Mukesh about the whole incident. He immediately went to his elder sister Sahnti's house in village Gadmar but he could not meet her as she was not at home. The persons who had abducted Kailash were not police men. Thereafter Kamla immediately rushed back and informed the P. W. 1 Mukesh about the whole incident. He immediately went to his elder sister Sahnti's house in village Gadmar but he could not meet her as she was not at home. Thereafter he immediately left for police outpost Dhekiya and reached there at about 1.50 P. M. but he did not find his brother there. However, after sometime of his reaching police outpost Dhekiya, he received information that since the condition of his brother had become very critical, he had been sent to District Hospital Rampur for treatment with two police constables. He then returned to village Gadmar and went back to police outpost Dhekiya with his sister Shanti. The information regarding the death of his brother in the District Hospital Rampur was communicated to him by the police personnel of police outpost Dhekiya between 5.00 to 5.30 P. M. Even after receiving information about his brother's death, he had remained within the precincts of police outpost Dhekiya and had informed his other relatives about the death of Kailash alias Pappy telephonically. He further stated that the distance between police outpost Dhekiya and his village by kacchha rasta is about 3-4 kms. He further denied in his evidence that he either knew or had seen the accused-appellants in police outpost Dhekiya on the date of incident. He admitted that the written report of the incident was scribed in police outpost Dhekiya. He proved the written report which was marked as Ext. Ka 1. He categorically denied that he had seen the accused-appellants beating his brother. P. W. 1 Mukesh Kumar was declared hostile on the request of the prosecution. P. W. 2, Smt. Kamla, the real sister of the deceased Kailash alias Pappu stated on oath that she had left her house along with her brother Kailash alias Pappu on the date of the incident at about 12.00 P. M. for Shahbad for purchasing medicines. When they reached near the graveyard five persons came on two motorcycles and forced the deceased to sit on one of the motorcycles and took him away to some un-known destination. She further stated that the persons, who had taken her brother, were not wearing police uniforms. When they reached near the graveyard five persons came on two motorcycles and forced the deceased to sit on one of the motorcycles and took him away to some un-known destination. She further stated that the persons, who had taken her brother, were not wearing police uniforms. She further stated that after her brother had been taken away by un-known persons, she returned back to her house and narrated the whole incident to her brother Mukesh and mother Ramwati. Thereafter her brother Mukesh P. W. 1 set out in the search of his brother. He came back at about 4.00 P. M. The family members of the deceased were telephonically informed by someone from police outpost Dhekiya that Kailash was lying in police outpost in a very precarious condition. After receiving the aforesaid information, Ramwati, the mother of the deceased and other family members of the deceased immediately left for police outpost Dhekiya. However, when they reached the police outpost Dhekiya they neither found Kailash alias Pappu nor any police man there. In the meantime, a huge crowd had gathered in front of police outpost Dhekiya. P. W. 2 Kamla during her examination-in-chief also refused to identify the accused-appellants who were present in the court room during the trial as the persons who had forcibly taken away her brother on their motorcycles. P. W. 2 Smt. Kamla Devi was also declared hostile. Shiv Charan, Ramawati and Smt. Shanti father, mother and real sister of the deceased who were examined during the trial as P. Ws. 3, 4 and 5, also did not support the prosecution case. Each of them came up with different version of the incident and the facts which were stated by them in their evidence were hearsay. P. Ws. 4 and 5 were also declared hostile. None of the abovementioned witnesses supported the prosecution case. Similarly, P. W. 6 Om Prakash Ex-pradhan of the village also did not support the prosecution case and deposed in his evidence that the condition of Kailash alias Pappu had become very critical after he had consumed liquor on 27.6.2003 and he had died due to over dose of liquor. He denied that on the date of incident, the deceased had gone to police outpost Dhekiya. P. W. 6 Om Prakash was also declared hostile on the request of the prosecution. He denied that on the date of incident, the deceased had gone to police outpost Dhekiya. P. W. 6 Om Prakash was also declared hostile on the request of the prosecution. P. W. 8, Satya Narain Yadav, S. D. M. who had conducted the inquest proceedings on 27.6.2003, proved inquest report (Ext. Ka 4) and the other relevant papers prepared by him at the time of inquest namely photograph of the dead body of the deceased, police forms total number 13, letters sent to R. I., C. M. O. and District Magistrate, Rampur namely Exts. Ka 5 to 8. He also proved the letter forwarded to the District Magistrate, Rampur by him Ext. Ka 9. P. W. 9 Constable Karn Pal Singh deposed that on 27.6.2003 he was posted as constable / clerk in police outpost of P. S.-Shahbad. On that date he had registered the chik first information report Ext Ka 10 at about 11.00 P. M. on the basis of the written report of Mukesh Kumar. He also proved the other documents namely copy of the G. D. Entries Ext. Ka 11, carbon copy of G. D. No. 17 (Ext. Ka 12), G. D. No. 21 (Ext. Ka 13), G. D. No. 22. Photostat copy Ext. Ka 14. Photostat copy of G. D. 24 (Ext. Ka 15). P. W. 12 Om Veer Singh, P. W. 10 Smt. Swarnjeet Kaur and P. W. 11 Inspector Vijay Kumar who had investigated the case at different stages, proved the various papers prepared by them during investigation including the chargesheet. Karn Pal Singh, P. W. 9 who was recalled by the court and examined again as C. W. 1, proved the G. D. Entry (Ext. Ka 27) dated 27.6.2003. There is no dispute about the fact that none of the prosecution witnesses have supported the prosecution case as spelt out in the first information report during the trial. They have further consistently denied the involvement of the accused-appellants in the commission of the offence in question. In fact, P. Ws. 1 and 2 even failed to identify the appellants in the court room during the trial when the appellants were put to identification, as the persons who had committed the crime. The prosecution had come up with a definite version of the incident in the first information report naming all the appellants as accused who had beaten and murdered the deceased. The prosecution had come up with a definite version of the incident in the first information report naming all the appellants as accused who had beaten and murdered the deceased. The first information report clearly states that while the deceased was going to Shahbad with his sister Smt. Kamla, he was forcibly taken away by the accused-appellants to the police outpost Dhekiya whereafter Smt. Kamla had rushed back to the her house in village Gadmar and narrated the whole incident to her brother Mukesh Kumar P. W. 1 who immediately started for his sister Shanti's house in village Kheriya and after he reached village-Kheriya he and sister Shanti rushed to police outpost where they found that the accused were mercilessly beating their brother after hanging him from a tree upside down in a naked stated within the precincts of police outpost Dhekiya. The aforesaid version was reiterated by the informant and the witnesses in their interrogatory statements. There is nothing either in the first information or in the statements of the witnesses recorded during investigation disclosing any fact which was specially within the knowledge of the accused and which the prosecution despite due diligence could not have known. The prosecution was crystal clear about the time, place and the manner in which offence was committed and the identity of the accused. In my opinion, after a thorough marshalling of the facts of this case and scrutiny of the evidence on record, one thing which stands out is that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. For the purpose of convicting the appellants for the offences with which they were charged, the trial Judge invoked Section 106 of the Indian Evidence Act by placing reliance on G. D. entry No. 9 recorded at 7.20 showing that the appellant S. I. Shashi Bhushan and other appellants had left for police outpost Dhekiya and returned back at about 12.30 P. M. vide G. D. entry No. 12 along with four persons who were accused in Case Crime No. 316 of 2003, under Sections-380 and 411 IPC and lodged them in the police outpost Dhekiya. The four accused who were brought and lodged in police outpost vide G. D. entry No. 12, upon interrogation disclosed the name of Kailash alias Pappu also as one of the accused in the aforesaid case, whereupon vide the same G. D. entry the accused-appellants again left police outpost-Dhekiya for searching the deceased and returned back with him to police outpost vide G. D. entry No. 14 at about 13.50 hrs. (Ext. Ka 21) and lodged him also in the police outpost Dhekiya. G. D. entry No. 17 of the same date recorded at 15.15 hrs. (Ext. Ka 12) which mentions that a huge crowd had gathered outside the police outpost Dhekiya upon learning about the death of Kailash alias Pappu, information whereof had been forwarded to the superior officers. Relying upon the aforesaid G. D. entries the trial court held that the deceased Kailash alias Pappu was brought by the accused to police outpost Dhekiya at about 13.50 hrs. and had died there before 15.15 hrs. The trial court further held that what happened within the precincts of police outpost Dhekiyan between 13.50 hrs. to 15.15 hrs. was within the 'special knowledge" of the appellants and hence the burden lay upon them to prove how and in what manner the deceased had received the injuries on account of which he had died. In my opinion, in the background of the facts of the present case and the evidence of P. W. 1 indicating that the deceased had received injuries one day before the incident as a result of being beaten by five or six un-known persons in his field and after his condition had deteriorated on 26.6.2003, he had left his house along with his sister for getting medical treatment at Shahbad and while on his way to Shahbad he was forcibly taken away by five or six un-known persons who according to P. W. 2, were not the appellants and mere failure to record the injuries of the deceased injured in the G. D. when he was brought to the police outpost and gathering of a huge crowd outside the police outpost-Dhekiya after the death of Kailash alias Pappu, would not give rise to an presumption that the appellants were the authors of the injuries received by the deceased, which had resulted in the death of the deceased within the precincts of police outpost Dhekiya. Circumstantial evidence relied upon by the court below for the purpose of convicting the appellants by invoking the aid of Section 106 of the Indian Evidence Act in my opinion, is not sufficient for drawing the conclusion that the guilt of the appellants was fully established. The Apex Court in the case of Sharad Birdhichand Sharda Versus State reported in AIR 1984 SC 1622 in paragraph 152 has laid down the following conditions which circumstantial evidence must fulfil before a case against an accused can be said to be fully established on the basis thereof:- (1) The circumstances from which the conclusion of the guilt is to be drawn should be fully established. (2) The facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. In the present case the circumstantial evidence relied upon by the court below for convicting the appellants does not fulfil the aforesaid conditions. That apart, there are other loopholes also in the prosecution case. The prosecution has failed to explain by leading any link evidence, the discrepancy with regard to the injuries found on the dead body of the deceased at the time of the inquest and in the post mortem there is also no explanation as to why the deceased's dead body was delivered to the doctor who had conducted the post mortem after the inquest in an un-sealed state. Thus, under the circumstances possibility of tampering with the deceased's dead body cannot be ruled out. The medical evidence also does not corroborate the prosecution case that the deceased had died as a result of the injuries sustained by him in the alleged beating by the appellants within the precincts of police outpost. Dr. Thus, under the circumstances possibility of tampering with the deceased's dead body cannot be ruled out. The medical evidence also does not corroborate the prosecution case that the deceased had died as a result of the injuries sustained by him in the alleged beating by the appellants within the precincts of police outpost. Dr. Gyan Chandra P. W. 7 who had conducted the post mortem of the deceased, had categorically stated in his evidence tendered during trial that the deceased could not have died due to the injuries found on his dead body. There is yet another aspect of the matter which totally demolishes the prosecution theory. Viscera report of the deceased shows that the alcohol poison was found which could have caused the death of the deceased. Thus, in view of the foregoing discussions, I have no hesitation in holding that the appellants are entitled to the benefit of doubt as the prosecution has failed to prove its case against the appellants beyond reasonable doubt and hence the conviction recorded by the trial court against the appellants as well as the sentence awarded to them cannot be sustained. In view of the above, both the appeals are allowed. The judgement and order dated 4.3.2010 passed by the Additional Sessions Judge / F. T. C. No. 2, Rampur convicting the appellants under the aforesaid offences, is set aside. Since the appellants are in jail, they shall be released forthwith, if not wanted in any other case. ——————