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2025 DIGILAW 1456 (RAJ)

Babu Lal S/o Narayan v. State of Rajasthan

2025-08-06

AVNEESH JHINGAN, BALJINDER SINGH SANDHU

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JUDGMENT : AVNEESH JHINGAN, J: 1. This appeal is preferred by Babu Lal S/o Narayan and Nauratmal S/o Harji Ram (hereinafter referred to as ‘appellants’) against the judgment dated 22.06.2001 passed by the Additional Sessions Judge, Kishangarh, District Ajmer in Sessions Case No.28/99 whereby the appellants were sentenced life imprisonment under Section 302 read with 34 IPC with fine of Rs.1000/- each. In default of payment of fine, to undergo one year rigorous imprisonment. 2. The case as set up by the prosecution is that Jala Ram (hereinafter referred to as ‘complainant’) filed a complaint (Ex.P.6) dated 08.07.1999 stating that his cousin Bhanwar Lal (hereinafter referred to as ‘deceased’) was working with Agrawat Marble Industrial Area, Madanganj, proprietary concern of Babu Lal. The deceased was employed there for last five days. On 08.07.1999 at 4:20 pm, Shyam Singh a co-villager informed the complainant that on allegation of theft the appellants were beating the deceased in the premises of Agrawat Marble with fan belt and patta. Since the godown of Shyam Singh was near the premises of Agrawat Marble, he went there and asked them not to beat him but they did not listen. Shyam Singh, Ramavtar, Darbar and Hari Ram saw the deceased was beaten, taken near the machine and was being pressurized to confess the theft. Later somebody informed that the deceased died having looped rope in his neck and injury marks on the body. During investigation, statements of Rameshwar and Birdhi Chand were recorded after two weeks and as per prosecution they were eye witnesses to the incident. The charge was framed u/s 302 read with Section 34 IPC . The prosecution examined twenty witnesses and exhibited twenty documents including photographs. In the statement recorded u/s 313 Cr.P.C. it was stated to be a case of false implication and also stated that the deceased committed suicide by hanging. The appellants were convicted, hence the present appeal. 3. Learned counsel for the appellants submits that PW-3 Darbar, PW-4 Hari Ram and PW-20 Ramavtar stated to be present at the spot by the complainant, were declared hostile. PW-7 Shyam Singh was also declared hostile. The contention is that deposition of PW-10 Rameshwar and PW-11 Birdhi Chand were not reliable and these were planted witnesses by the prosecution. 3. Learned counsel for the appellants submits that PW-3 Darbar, PW-4 Hari Ram and PW-20 Ramavtar stated to be present at the spot by the complainant, were declared hostile. PW-7 Shyam Singh was also declared hostile. The contention is that deposition of PW-10 Rameshwar and PW-11 Birdhi Chand were not reliable and these were planted witnesses by the prosecution. 3.1 Reliance is placed upon Ex.P.15 postmortem report (PMR) to argue that apart from hanging mark there were no injuries on the body of the deceased. 4. Learned Public Prosecutor contends that PW-10 Rameshwar and PW-11 Birdhi Chand had seen the appellants beating the deceased. It is further argued that as per PMR Hyoid Bone was fractured and this cannot be result of hanging. Submission is that the knot of the rope was found at chin level which cannot cause fracture of Hyoid Bone. It is argued that even in case the suicide was committed by deceased, the conduct of the accused was not above board, rather than reporting the matter to police they ran away from the spot. 5. Heard learned counsel for the parties and perused the record with their able assistance. 6. As per the complaint, PW-7 Shyam Singh informed the complainant about the incident. As per the informant, PW-3 Darbar, PW-4 Hari Ram and PW-20 Ramavtar were present at the spot when the appellants were beating the deceased. All these four prosecution witnesses turned hostile. 7. During investigation, PW-10 Rameshwar and PW-11 Birdhi Chand were projected as witnesses who had seen beating of the deceased by the appellants. These two witnesses supported the case of the prosecution to the extent that they had witnessed the deceased being beaten by the appellants with patta and fan belt. The deposition of PW-10 Rameshwar and PW-11 Birdhi Chand is doubtful as these two were not named in the complaint. These witnesses have not stated to have seen Darbar, Hari Ram and Ramavtar at the time of occurrence of the incident. Their statements were recorded after two weeks of the incident. They stated that for fifteen days they had not informed the police about the incident and then on their own they chose to go to the police station for reporting the matter. Their statements were recorded after two weeks of the incident. They stated that for fifteen days they had not informed the police about the incident and then on their own they chose to go to the police station for reporting the matter. As per PW-10 & PW-11 both the appellants gave beatings to the deceased with pattas, this statement is contrary to PMR wherein it is mentioned that no injury marks were on the body of the deceased. It is further to be noted that the cause of death of the deceased as per the PMR is hanging. Both these witnesses had not seen the deceased being hanged. 8. PW-5 Mohd. Raies had a tea stall near the factory and was examined and was declared hostile and stated that he had not given any statement to the Police. 9. PW-1 Bhagchand was engaged in welding work across the road from the place of the incident stated that on the date of the incident his shop was closed and his statement was not recorded by the police. This witness was also declared hostile. 10. As per the inquest report and PMR except ligature mark on the neck there were no injury marks on the body of the deceased. This evidence is fatal to the case of the prosecution as none of the prosecution witnesses including those declared hostile had seen the deceased being hanged, rather the case setup was that on allegation of theft, the deceased was brutally beaten by the appellants with fan belt and pattas. 11. The statement of the doctors PW-13 Dr. Gopal Mathur and PW-18 Dr. P.C. Patni who conducted PMR is consistent with the PMR that there were no injury marks on the body of the deceased. The cause of death as per PMR is antemortem hanging and PW-18 Dr. P.C. Patni specifically reiterated the cause death was Asphyxia due to hanging. 12. The contention of learned Public Prosecutor that the position of the rope and the knot cannot fracture Hyoid Bone and it is not a case of hanging is noted to be rejected, in view of the expert evidence and medical report. 13. With regard to the conduct of the accused of not reporting the suicide by the deceased to the police in itself shall not be sufficient for conviction. It is trite law that suspicion howsoever strong cannot be a substitute for evidence. 13. With regard to the conduct of the accused of not reporting the suicide by the deceased to the police in itself shall not be sufficient for conviction. It is trite law that suspicion howsoever strong cannot be a substitute for evidence. 14. Another aspect is that under Section 106 of the Indian Evidence Act, 1872 (for short ‘the Act’) burden of proving is on a person specially with knowledge of that fact. 15. It is well settled that Section 106 of the Act can be invoked only after the prosecution discharges the initial onus of prima facie establishing the guilt of the accused. The section is to be invoked cautiously. Reference in this regard be made to the decision of the Supreme Court in case of Ravi vs. State of Punjab reported in (2025) 3 SCC 584 wherein it was held: “21. The above argument may appear to be of some substance but if we look into the law deeply, we would find that the initial burden is upon the prosecution to first prima facie establish the guilt of te accused and then only the burden shifts upon the accused to explain the circumstance as contemplated by Section 106 of the Evidence Act. 22. A three-Judge Bench of this Court in Anees v. State (NCT of Delhi) has elaborately considered the principles of law governing the applicability of Section 106 of the Evidence Act and has held that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. The ordinary rule which applies to criminal trials and places the onus on the prosecution to prove the guilt of the accused, does not, in any way, stand modified by the provisions contained under Section 106 of the Evidence Act. The said provision cannot be invoked to make up the inability of the prosecution to produce the evidence of circumstances pointing to the guilt of the accused. The said provision cannot be used to support a conviction unless the prosecution has discharged the onus by proving all elements necessary to establish the offence. 23. The said provision cannot be invoked to make up the inability of the prosecution to produce the evidence of circumstances pointing to the guilt of the accused. The said provision cannot be used to support a conviction unless the prosecution has discharged the onus by proving all elements necessary to establish the offence. 23. In other words, the prosecution does not stand absolved from its initial liability to prove the offence and it is only when such an onus is discharged and a prima facie case of guilt is made out that the provisions of Section 106 of the Evidence Act may come into play.” 16. It would be apposite to note that in the present case four witnesses named in the complaint to have witnessed the beating of the deceased by the appellants turned hostile. Two witnesses brought during the investigation have been found to be unreliable and two witnesses having business place near the place of incident were declared hostile. The prosecution failed to discharge the initial onus of appellants having committed the crime which would may have foundation for invoking Section 106 of the Act. 17. In view of the above, the judgment of conviction and order of sentence dated 22.06.2001 are quashed and set aside. The appeal is allowed. 18. Keeping in view the provisions of Section 481 BNSS, appellants- Babu Lal S/o Narayan and Nauratmal S/o Harji Ram are directed to forthwith furnish personal bond in the sum of Rs.50,000/- each and surety bond of the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months with the stipulation that in the event of filing of Special Leave Petition against this judgment or on grant of leave, appellants- Babu Lal S/o Narayan and Nauratmal S/o Harji Ram on receipt of notice thereof, shall appear before the Supreme Court.