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TMI Blog2001 (3) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... t is held that the court would be justified in appropriate cases to draw the presumption that the abductors themselves could be the killers of the abducted victim, unless they explained otherwise as to what they did with the prey. Learned senior counsel submitted that the said ratio is discordant with the criminal jurisprudence thus far enunciated that the burden is entirely on the prosecution to prove the case. He further submitted that the ratio in the said decision cannot at any rate be applied for fastening an accused with the aid of Section 34 IPC. As we heard Shri U.R. Lalit in extenso on the above submission, besides other points convassed by him on the merits of the case, we are bound to deal with them now. The synopsis of the case is this. The incident happened on the night of 22.2.1991. PW-3 Diwan Singh and his wife PW-4 Dalbir Kaur had five sons. The elder three were working in the grain market at Amritsar. Among the remaining sons Narinder Singh was in the army and he came home for a furlough and stayed with his parents. The other son Surinder Singh was also staying in the same house. The militancy in Punjab had armed terrorists on its cadre who were prowling for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... somebody with AK-47 rifles. Hence the only point is whether the appellant was one of the murderers. The evidence against the appellant is the testimony of PW-3 Diwan Singh and PW-4 Dalbir Kaur. As for them, they only testified that the two deceased were taken away by armed assailants from the house on that ill-fated night and such assailants included the two convicted persons and that the corpses of the deceased were spotted next morning lying on the roadside a little away from their house. Shri U.R. Lalit, learned senior counsel first focussed on a contention that PW-3 Diwan Singh and PW-4 Dalbir Kaur were living with their elder sons at Amritsar City and that they learnt about the death of the deceased only when somebody informed them about it on the following morning. In other words, according to the learned senior counsel, the truth of the testimony of PW-3 and PW-4 will depend upon the question whether they were actually staying in the house where the deceased stayed on the night. Three witnesses were examined on the defence side to say that the old parents were actually living at Amritsar for about six months prior to the occurrence. They are: DW-1 a member of the Panc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house. As PW-3 went to the roof hiding himself from the assailants they would have decided to be satisfied for the present with what they got, i.e. the two sons. Whatever it be, the fact that the accused succeeded in taking away the two sons of the two deceased alone is not enough, in the circumstances of this case, to doubt the presence of PW-3 and his wife PW-4 in the house on the crucial night. That apart, the two younger sons, including Narinder Singh who came from army for a furlough to be with his parents, were actually staying in their house at Rupawali on the fateful night. There would be no logic in assuming that their parents would have kept away from their own house leaving those two sons alone on that night. Why should they do so. Thus we too are inclined to believe the version of PW- 3 and PW-4. On their testimony the circumstances against the appellant are the following: (1) The incident happened during a period when Punjab was boiling with terrorist activities. (2) The house of the deceased was treated by the terrorists as the home of police touts against terrorists. (3) Appellant and three others reached the house during the dead of night armed with AK-47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. Learned senior counsel contended that Section 106 of the Evidence Act is not intended for the purpose of filling up the vacuum in prosecution evidence. He invited our attention to the observations made by the Privy Council in Attygalle and anr. vs. The King (AIR 1936 PC 169) and also in Stephen Seneviratne vs. The King (AIR 1936 PC 289). In fact the observations contained therein were considered by this Court in an early decision authored by Vivian Bose, J, in Shambhu Nath Mehra vs. State of Ajmer (AIR 1956 SC 404). The statement of law made by the learned Judge in the aforesaid decision has been extracted by us in State of West Bengal vs. Mir Mohammad Omar (supra). It is useful to extract a further portion of the observation made by us in the aforesaid decision: Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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