Rajasthan High Court – Jaipur
Babu Lal And Anor vs State (2025:Rj-Jp:30342-Db) on 6 August, 2025
[2025:RJ-JP:30342-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 365/2001
1. Babu Lal S/o Narayan, resident of Mahavir Colony, Sanwatsar,
Police Station Madanganj, District Ajmer.
2. Nauratmal S/o Harji Ram, resident of Bhuaru, Police Station
Bandar Sindari, District Ajmer.
(At present in Central Jail, Ajmer.)
----Accused-Appellants
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. Rinesh Kumar Gupta with
Mr. Sarwat Alam
Ms. Chandrakala Sahu
Mr. Saurabh Pratap Singh and
Mr. Gaurav Sharma
For Respondent(s) : Mr. Amit Punia, P.P.
HON’BLE MR. JUSTICE AVNEESH JHINGAN
HON’BLE MR. JUSTICE BALJINDER SINGH SANDHU
Judgment
06/08/2025
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.
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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
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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
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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. 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
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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.
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.
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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. 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.
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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.
(BALJINDER SINGH SANDHU),J (AVNEESH JHINGAN),J
Simple Kumawat /18
Whether Reportable: Yes
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