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Supreme Court Of India

(From : 2003 (3) Rajasthan LR 292)

Hon'ble Judge(s): P. Venkatarama Reddi, B. N. Srikrishna , JJ

Penal Code (45 of 1860) , S.364, S.302, S.34— Evidence Act (1 of 1872) , S.106— Abduction and murder - Prosecution itself proceeded on footing that there were eye-witnesses to fact of murder - Hence, rule of burden of proof under S. 106, Evidence Act viz., fact that what happened to victim after his abduction by accused persons is within knowledge of accused persons - Does not apply - Hence, while maintaining conviction under S. 364 - Conviction under S. 302/34 set aside. (2003) 3 Rajasthan LR 292, Partly Reversed. In order to make out an offence under S. 364, Penal Code (1860) the evidence in the instant case was that, one of the accused dragged away the victim and while doing so he called another accused to bring a lathi to kill the victim. The acts and words imputed to the accused when they pulled victim, belaboured him and dragged him away, leaves no doubt that their intention was to so dispose him of as to put him in danger of being murdered. Therefore, conviction of accused under S. 364, Penal Code (1860) was justified.(Para 12) However, from mere abduction, it cannot be held that, since the facts were especially in the knowledge of the abductors and as the accused-abductors failed to offer any explanation as to what transpired after the victim had been abducted, the Court would be justified in drawing the ....