Gurdas and another vs The State of Punjab

D.B. Lal, J.—This appeal is brought from the judgment of the Sessions Judge, Kapurthala, in a case u/s 302 read with section 149 of the Indian Penal Code convicting Gurdas (aged 50 years) and his son Baldev Singh (aged 13 years) u/s 304 Part-I of the Indian Penal Code and sentencing Gurdas to life imprisonment, and Baldev Singh to four years'' rigorous imprisonment.

The prosecution case seems to have emanated from the first information report instituted by one Kesar Kaur at 3 45 P.M. on 4th September, 1974 and the allegation made was that about 10 P.M. on the previous night, that is on 3rd September 1974, Puna wife of Gurdas came to her house and brought Jit Singh deceased along with her under the pretrxt that she had to make certain enquires from him. Accordingly, Jit was brought by Puna to her house and the prosecution case was that her husband Gurdas, her son Baldev and three others--Rur Singh, Krishan Singh and Surjit Singh (since acquitted)--gave Jit a beating with dangs with the result that he subsequently died in the hospital. According to Kesar Kaur after some time they heard a raula at the house of Puna and went there. At that time they found Jit being beaten by the accused. However, upon seeing them, the accused bolted the door of their house from inside. Therefore, Kesar Kaur and others came back apparently without taking any steps to rescue Jit. They did not either go to the police station to institute the first information report. On the next day at about 3 P.M., Kesar Kaur learnt that Jit had died in the hospital. She went there and her statement was recorded by Naranjan Singh I.A.S. who was available at the hospital. On the basis of that statement, the first information report (Exhibit P.A.) was recorded at Sadar Police Station, Kapurthala at 3.45 P.M. on 4th September 1974 giving rise to the present case Naranjan Singh I.A.S. had received prior report from Gurdas himself which he recorded at 4 A.M., on 4th September 1974. In that report, it was submitted that Jit had scaled over the wall of the house of Gurdas at about 11 P.M. on 3rd September 1974. His intention was to molest the young girl of Gurdas and upon a hue and cry being raised Jit was caught hold of by the accused. They had tied Jit with the rope and closeted him inside the house. Therefore, Gurdas instituted the first information report at 4 A. M. on 4th September 1974 at the Police Station Sadar and Naranjan Singh A.S.I. went to the spot and recovered Jit from the house of Gurdas in an injured condition. Jit was sent to the hospital where Dr. Pushpa Dhir made him sit at the out-patient department. Subsequently, Jit having received multiple injuries died in the hospital. His autopsy was performed by Dr. Pushpa Dhir at 5.30 P.M. on 4th September 1974 and she found 21 multiple abrasions and bruises on his person. According to the opinion of the doctor the injuries collectively caused respiratory failure and that was the cause of the death. On these facts and allegations a case u/s 302, Indian Penal Code, was sent up against Gurdas, his son Baldev and the other three accused including Puna who were acquitted.

The defence of the accused was one of denial. It was, however, submitted that Jit with the bad intention of molesting the young daughter of Gurdas scaled over the wall of the house. He left his shoes which were subsequently discovered lying outside the house. When the girl raised the alarm, Gurdas and others woke up. The others were called and Jit was overpowered. Subsequently, Gurdas went and instituted the report and Jit was recovered by the police in injured condition from his house. It was, therefore, asserted that the accused, if at all, had a right to give the beating to Jit in self-defence of the person as well of property.

The prosecution in order to prove their case produced, legal witnesses including the eye-witnesses Kesar Kaur (P.W. 1) and Dalip Singh (P.W. 4), both mother and brother of the deceased. Chanan Singh (P.W. 3) Sarpanch was also the eye-witness. Dr. Pushpa Dhir (P.W. 2) came to prove the injuries. The investigating Officer was Naranjan Singh (P.W. 8) of the Sadar Police Station Kapurthala. The accused did not produce any defence.

The learned trial Judge did not believe the version given by the eye-witnesses. According to him, they did not state the correct thing. Rather he was inclined to believe the defence version. At the same time, he held that upon the admission on behalf of the accused, Jit was recovered from their house in injured condition. Although the accused never stated that they gave a beating to Jit yet the learned trial Judge inferred that the beating part could only be ascribed to them. As such, the learned trial Judge held that Gurdas and Baldev alone were liable to give the injuries and as such he recorded a finding against them u/s 304 Part-I of the Indian Penal Code and convicted and sentenced them in the manner stated above. They have felt aggrieved of the decision and have preferred this appeal.

Shri Chattar Singh the learned counsel for the appellants, urged in the foremost, that the entire gamut of the prosecution story set up before the Court was disbelieved by the Sessions Judge. The argument was that once the prosecution was discredited in toto, how could in the circumstances of the case, another prosecution case be evolved so that a finding of conviction could be recorded. It is no doubt correct that the learned trial Judge has disbelieved the prosecution version. According to Kesar Kaur (P.W. 1), Chanan Singh (P.W. 3) and Dalip Singh (P.W. 4), Puna wife of Gurdas had gone to bring Jit to her house. It was asserted by these witnesses that after Puna brought Jit to her house, the deceased was beaten by six persons inducing the two appellants. That part of the case was held not to be correct and rather it was found that Jit himself had gone to the home of Gurdas. He scaled over the wall leaving his shoes lying outside He molested the girl and perhaps in that connection he was given the beating. Regarding the shoes which were found lying outside the house, Naranjan Singh A.S.I. (P.W. 8) has himself stated about them. Similar are the statements of Gurdas and Baldev u/s 342 of the Code of Criminal Procedure Code, 1898 before the Court. It is also significant from the statements of Kesar Kaur (P.W. 1), Chanan Singh (P.W. 3) and Dalip Singh (P.W. 4) that none cared for Jit once he made his entry inside the house of Gurdas. According to these witnesses, they went to the house of Gurdas after hearing the alarm. They found that the accused had closed the door from inside. That was the end of the matter. Neither the mother nor anybody else cared to know as to what happened to Jit, as to when he was removed to the hospital and as to when he died in the hospital. According to Kesar Kaur (P.W. 1), she learnt about the death only on the next day at about 3 P.M. when she went to the hospital. The eye witnesses including the Sarpanch have also significantly stated that they did not contact anybody during the night to rescue Jit. They did not themselves take care to attend to his injuries All this speaks volumes in favour of the defence. The learned Sessions Judge was right when he concluded that it was Jit himself who was to be blamed. He went to the house of Gurdas obviously with the bad motive of molesting the young girl. He scaled over the wall and in that connection perhaps he was given the beating, may be by the two appellants or by them as well as by a few others. The earlier first information report (Exhibit P. J.) proved by the defence gave the necessary details. The learned counsel for the appellants pointed out section 100 of the Indian Penal Code According to him, the intention of Jit was to commit rape upon the girl. That would have given the right of private defence of the body extending to the causing of death The learned counsel also relied on section 103 of the Indian Penal Code and submitted that Jit committed house breaking by night and that would again give right of defence of property extending to the causing of death Shri Bains, the learned Assistant Advocate General for the State of Punjab, was rather emphatic when he pointed out that the prosecution case should succeed merely on the basis of the admissions made on behalf of the accused. According to him, the benefit of the right of private defence of person or property does not extend to the appellants because circumstances were not proved to indicate that an attempt was made to commit rape or that the offence of committing house breaking by night was at all perpetrated. For this Shri Bains pointed out that the statement of the daughter of Gurdas was rather essential. The learned counsel further contended that the accused were supposed to give a more elaboration of the case in their own statements. They could as well examine witnesses. Only upon such a testimony, a finding could be given that sections 100 and 103 of the Indian Penal Code were attracted. According to the learned counsel, it could not be established that Jit was armed with any kind of weapon either. It is to be understood that the essential burden of proof in a criminal case lies upon the prosecution. It is for them to prove their case as they bring it to the Court. In the instant case, we are confident in our view that the prosecution story as set up and relied upon by them has been disproved. Inferences are attempted to be drawn by the learned counsel upon the admissions here and there made by the accused in their statements. It is manifest, if the statements of the accused are to be considered, they have to be assessed in their true perspective. We have to go through the entire statements and no part is severable from the other. That apart, the question of burden of proof really losses its significance, when we apply it in the case of the accused who have to make only suggestions in their defence. One does not know as to how the quarrel started and in what manner the beating was given. Nothing definite can be ascertained because the accused were not called upon to prove their defence. Once the prosecution story having been disbelieved, we have to grope in the dark and it is difficult, in our opinion, in the present case, to sustain any consistent prosecution story. Therefore, the learned Sessions Judge was in error in concluding that the two appellants must have exceeded their right of self defence of person or property and must have inflicted the injuries, which were not called for, and that no benefit could be accorded to them u/s 100 and 103 of the Indian Penal Code.

In the result, we have no option but to conclude that the prosecution had not succeeded in establishing their case. The appellants like others also deserve the benefit of doubt and should have been acquitted of the charge made out against them. The appeal is, therefore, allowed and the conviction and sentence of the two appellants are set aside. The appellants are on bail and their bonds are cancelled.

R.N. Mittal, J.

I agree.