MURLIDHAR AND ORS. versus STATE OF RAJASTHAN

Citation: [2005] SUPP. 1 S.C.R. 175 · Decided: 09-05-2005 · Supreme Court of India · Bench: P. VENKATARAMA REDDI · Disposal: Case Partly allowed

Judgment (excerpt)

MURLIDHAR AND ORS. 
A 
v. 
STATE OF RAJASTHAN 
MAY 9, 2005 
[P. VENKATARAMA REDDI AND B.N. SRIKRISHNA, JJ.] 
B 
Penal Code, 1860-Section 364 and 302134-Commission of abduction 
and murder-Conviction affirmed by High Court under section 364 and 3021 
34-Justification of-Held: There was evidence regarding abduction of the C 
victim with an intention to dispose him of as to put him in the danger of being 
murdered-However, evidence of witnesses regarding criminal conspiracy, 
beatings given to victim and recovery not inspiring confidence-Also High 
Court wrongly relied on rule of burden of proof under section 106 of the 
Evidence Act and drew an inference that the abductors murdered the victim 
when facts were especially in the knowledge of abductors and they did not D 
give any explanation as to what happened after abduction-Hence, conviction 
under section 364 justified however, set aside under section 302134-Evidence 
Act, 1872-Section 106. 
It is alleged that the appellant along with other accused persons 
abdu.cted and murdered R. Sessions Court convicted all of them under E 
section 302/149, 148 and 201 IPC. Appellants were also convicted under 
section 364 IPC. However, High Court convicted and sentenced the 
appellants under section 364 and section 302/34 IPC and acquitted· the 
other accused persons. Hence the present appeal. 
Partly allowing the appeal, .the Court 
HELD: 1. The conviction of appellants under section 364 IPC by the 
Sessions Court and the High Court is justified and is confirmed. But their 
conviction under section 302/34 IPC cannot be sustained and as such they 
are acquitted of the said charges. (185-E] 
2.1. Read as a whole, the testimonies of two prosecution witnesses 
(PWs 2 and 4) prove that R was pulled out of the cart, belaboured by the 
accused persons and the others and dragged away to the interior of K's 
house; and the acts and words imputed to the accused when they pulled 
F 
G 
~:.: 
175 
H 
176 
SUPREME COURT REPORTS [2005] SUPP. I S.C.R. 
A R, belaboured him and dragged him leaves no doubt that their intention 
was to dispose of him so as to put him in danger of being murdered. The 
evidence of the prosecution witnesses cannot be discarded because of some 
minor incensistencies and so called contradictions. (180-D) 
2.2. High Court rightly concluded that the evidence of three 
B prosecution witnesses (PWs 3, 15 and 31) could not be relied upon for 
insufficiency of their testimony to establish that there was a criminal 
conspiracy to abduct and murder; that the evidence of prosecution 
witnesses regarding beatings given to R in the house of K was wholly 
unreliable as their evidence was replete with contradictions and inherent 
C improbabilities; that the evidence regarding witnessing the accused persons 
going in Tractor Trolley was unbelievable; and that the evidence of 
recovery of lathis and wrist watch was doubtful. 
2.2. 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 instant 
D case. The rule in section 106 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 instant case, 
the prosecution did not proceed on the footing that the facts were especially 
within the knowledge of the accused, but that there were eyewitnesses to 
E the fact of murder. The prosecution having put forward a case that what 
transpired after R was dragged away by the assailants was within the 
knowledge of witnesses, utterly failed in proving the said facts. Once this 
was established, it was not open for the High Court to have fallen back 
on the rule of burden of proof under section 106. In fact, it was nowhere 
F th.e case of the prosecution that section 106 applied to the facts on record. 
G 
H 
High Court seems to have brought it out on its own, but without any 
justification. 1184-E-F] 
State of WB. v. Mir Mohammad Omar and Ors., [2000) 8 SCC 382 and 
Shambu Nath Mehra v. State of Ajmer, [1956] SCR 199, relied on. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 355 
of 2004. 
From the Judgment and Order dated 12.5.2003 of the Rajasthan High 
Court in D.B.Crl. A. No. 324 of 1999. 
MURLIDHAR v. STATE OF RAJASTHAN [SRIKRISHNA, J.] 
177 
S.R. Bajwa, Sushi! Kumar Jain, Ram Niwas, Puneet Jain and Ms. A · 
Pratib

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