Kewal Krishan vs The State of Patiala and East Punjab States Union

Teja Singh, C.J.—Kewal Krishan was convicted by the A.D.M. Kapurthala u/s 307, I.P.C. and was sentenced to four years'' R.I. and in addition to pay a fine of Rs. 500/- or in default to undergo further R.I. for six months. His appeal having been dis-missed by the (Sessions Judge, he preferred a revision petition to this Court. Along with this Mst. Shakuntla for attempt to murder whom Kewal Krishan was convicted preferred a petition for the enhancement of his sentence. Both the revision petitions came up for hearing before my learned brother, but as he thought that one of the questions of law urged on behalf of Kewal Krishan was not only important but the opinions of the various High Courts on it were different, he has referred the whole case to the Bench.

Kewal Krishan is married to Shakuntla''s elder sister, Mst. Janak Dulari. Both sides are agreed that the marriage took place year before the occurrence but in a few months the relations between husband and wife became strained and Mst. Janak Dulari went back to her parents, who were then residing at Kapurthala. Mst. Shakuntla is still unmarried, she gave her age as 18 years and it appears from her statement that she has recently passed the Marticulation Examination of the Punjab University. According to her the incident took place about 1-30 p.m. She was sitting in one of the rooms of her father''s house and was busy in reading a book. As chance would have it all members of her family including her parents, brOrs. and sisters were away and she was the only inmate of the house present when Kewal Krishan entered the room, tied Shankutla''s hands with a piece of rope which he was carrying and then shut her in a small Kothari adjoining to the room where she had been sitting. After chaining the door of the Kothari from outside he went to the courtyard, sprinkled kerosene oil which he had been able to find in the house on some pieces of wood that happened to be lying there and set fire to them. When the fire was ablaze he went to the Kothari, brought Mst. Shakuntla out of it and pushed her into the fire. Shakuntla raised a hue and cry on which Kewal Krishan made good his escape and after he had left, Shakuntla managed to extricate herself from the burning fire. P. W. Hari Ram was the first to be attracted to the scene by Shakuntla''s cries. He was followed by P. W. Lal Singh and two or three women. They helped Shakuntla in extinguishing the fire which her cloth had caught. A doctor was then sent for and he gave Shakuntla an injection. Then she was taken to the Government Hospital.

In the meanwhile a police constable had got the news which he carried to the police station. On receipt of the news A.S.I. Bal Mukand reached the hospital and recorded Mst. Shakuntla''s statement which formed the P.I.R. in the case. According to the F.I.R. the case was registered at 2 p.m. It was argued by the Petitioner''s counsel that the time of the registration of the case was not correct, because it is in the evidence of P. W. 4 Dr. Gurdit Singh who medically examined Mst Shakuntla that the examined Ms Shakuntla, In the hospital at 4 p.m. and the examination did not take more than 15 or 20 minutes. Unfortunately no question was put to the doctor regarding the statement that Mst. Shakuntla made to the, A.S.I. nor was the A,S.I. questioned on the point So the time given by the doctor cannot be used to contradict the time given by the A.S.I. In any case even if we agree with counsel that the case was registered not at 2 p.m. but sometime between and 4 p.m., it cannot be said that there was any great delay in lodging the F.I.R. particularly so, when, we remember that before Shakuntla was taken to the hospital and her statement was recorded, a private doctor was sent for to render where some sort of first aid. In addition some time must have been spent to inform her parents or other relations too.

It is in. evidence that the police was not able to arrest Kewal Krdshan during the investigation of the case. Accordingly they applied to the A.D.M. for warrants and it was in execution of the warrants issued by him that he was arrested at Ludhiana on 31-1-52. The case was put in Court with the final report on 6-2-52 and the first witness for the prosecution namely Hari Singh was examined on 15-2-52. The prosecution evidence concluded on 7-3-52 and the accused was charged on 10-3-52. After further cross-examination of the witnesses the accused entered upon his defence and examined as many as 14 witnesses, two in Court and 12 on commission at Delhi. His last witness was examined on 13-6-51. Not being satisfied with all this his learned Counsel made Anr. effort before us to further protract the proceedings and prayed that the conviction be quashed and the case be remanded for further cross-examination of Mst. Shakuntla and the eye-witnesses, for supplementary statement of the accused and for production of additional evidence if it became necessary. in order to be able to understand the position of learned Counsel it is necessary to mention what happened in the trial Court.

After the prosecution evidence had concluded and the accused had been charged, he was questioned whether he wanted to have the prosecution witnesses further cross-examined. The answer being in the affirmative the case was adjourned to 29-3-52. On 27-3-52 counsel for the accused made an application to the Magistrate alleging that it was impossible for his client to be present in Court on 29-3-52 because his father died four days ago and he could not stir out of his house because of the religious ceremonies that he has to perform and praying that the case be adjourned for at. least two weeks. The complainant''s counsel appended a note to the application that he had no objection to the adjournment of the case provided the P.I. agreed to it. P.I.''s note was that the was agreeable to the adjournment. When the ''application came up before the trial Magistrate he refused to grant the adjournment prayed for but exempted the accused from personal attendance on the date in question i.e. 29-3-52. The result was that the case was heard by the Magistrate on 29-3-52 in the absence of the accused and the prosecution witnesses present on that day were further cross-examined in the absence of the accused though in the presence of his counsel who conducted the cross-examination of the witnesses. Counsel for the accused urges that this procedure was illegal inasmuch as it contravened the provisions of Section 353, Code of Criminal procedure and either the case should be remanded for having those witnesses further cross-examined in the presence of the accused or their evidence should be altogether ignored. Section 353 says

Except as otherwise expressly provided, all evidence taken under Chaps. XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the I accused, or, when his personal attendance is'' dispensed with, in presence of his pleader.

Counsel maintained that the only sections of the Code of Criminal Procedure under which per-sonal attendance of an accused person can be dispensed with are Sections 205 and 540A and since neither of these sections applies to the present case, the Magistrate had no power to record the further cross-examination of the witnesses in the absence of the accused. Counsel for the State on '' the other hand argued that even though criminal Courts have power to dispense with personal attendance of an accused person under Sections 205 and 540A, this does not prevent them from dispensing with his presence at the time of recording the evidence and examining the witnesses for the prosecution in his absence u/s 353, which gives the Court implied powers for this purpose. Now it cannot be denied that Section 540A applies only to those cases in which "the accused are two or more and it can have no applicability when in a case like the present the accused is only one. A perusal of Section 205 would go to show that the operation of it is confined to the first hearing in the case for which the summonses have been issued to him. It neither applies when instead of issuing summons the Magistrate issues a warrant for the arrest of the accused nor does it empower the Magistrate to dispense with the attendance of the accused for a hearing other than the first.

This means that when there is only one accused person in the case and either the Magistrate issued warrant for his arrest instead of summons or the evidence is to be examined on a day after the first hearing in the case if we accept the plea of the accused''s counsel the accused cannot be given advantage of Section 353, i.e., in no case can the prosecution evidence be recorded in his absence. Such a construction in my opinion would not be consistent with the word "or" used in the section. The plain meaning of the section is that all evidence in a criminal case should be taken in the presence of the accused but there are two exceptions to it, first when it is otherwise expressly provided in the Code and these provisions are contained in Sections 205 and 540A, and second when the Court makes an order that the evidence be recorded in the absence of the accused, but in the presence of his pleader. As I have pointed out Sections 205 and 540A do not cover all cases. So the provision enabling the Court to make an appropriate order in a case which does not fall within the ambit of the above sections was necessary and it was for this purpose that the concluding part of Section 353 was enacted. I may also mention that since the Legislature did contemplate cases in which evidence can be recorded in the absence of the accused and in the presence of his pleader and did make some provision for them, there is nothing unreasonable in the construction that the State counsel wants us to place upon Section 353, i.e., to hold that Section 353 gives the Court an implied power for allowing evidence to be recorded in the absence of the accused in cases which do not strictly fall within the four corners of other provisions.

It is unnecessary to labour the point because this view is supported by a number of authorities. The earliest case that has been cited before us is the decision of Davar J. in ''Emperor v. O. W. King'' 15 Ind Cas 96 (Bom) (A), who held that under the provisions of S section 353, code of Criminal Procedure a High Court has the power to dispense with the attendance of an accused during his trial. In Kuppuswami Chettiar Vs. Rajagopala Iyer, Anr. learned Judge of the Madras High Court held that a Sessions Judge has power to dispense with the personal attendance of an accused and allow him to appear by pleader during the trial u/s 353, Code of Criminal Procedure Both these cases were followed by Rajamannar J. in In Re: Ummal Hasanath, The learned Judge after discussing the scope of Section 205 and comparing it with Section 353, Code of Criminal Procedure held that the latter section by necessary implication confers power on the presiding officer of a criminal Court, whether he is a Magistrate or a Sessions Judge or a judge of the High Court, to dispense with the personal attendance of an accused person. The same view was taken by a Bench of the Allahabad High Court In Aditya Pd. Bagchi Vs. Jogendra Nath Maitra, and was confirmed later by a Pull Bench of the same Court(FB) (E) As regards Section 353 it was held that the refer rice: in the section to the powers of trial Court; to dispense with the personal attendance of the accused clearly implies that the trial Court has such a power of granting exemption.

A Bench of the Assam High Court followed the view of the Allahabad High Court in '' Mt. Kamal Debi and Others Vs. Pannalal Agarwalla, The Petitioner''s counsel drew our attention to a decision of the Nagpur High Court AIR 1949 334 (Nagpur) and an unpublished decision of a single Judge of the Simla High Court ''Cri. Misc. No. 334 of 1948 (H) in which a contrary view was taken, but the weight of authority is on the other side Accordingly I overrule the objection & hold that the trial Magistrate was within his rights in recording further cross-examination of the witnesses on 29-3-52 in the presence of the counsel for the accused but in the absence of the accused himself because his personal attendance had been dispensed with. Before turning to the other points I. wish to add that though the trial Magistrate while dispensing the presence of the accused did not say in so many words that he was doing so at the request of the counsel for the accused there can be no doubt that counsel who was present when the Magistrate passed the orders must have been a consenting party and this is as good as if the order had been made at his request. This conclusion is further strengthened by the fact that on 29-3-52 when the witnesses were further cross-examined the accused brought a counsel from Delhi to conduct the cross-examination and it is not even alleged that either his counsel or the,accused who was present in Court on subsequent hearings ever objected to the cross-examination of the witnesses in his absence. Cross-examination of the witnesses both on the day when they appeared first and on the subsequent day was fairly lengthy and even searching. -This means that no prejudice was caused to the accused. In fact the accused''s counsel does not even contend that his client has suffered in any way because the further cross-examination of the witnesses took place in his absence. This makes us think that the objection raised by the counsel is frivolous and without any substance.

Two other technical points were urged by the accused''s counsel one that the examination of the accused u/s 342 was not exhaustive and the second that he was called upon to enter upon his defence before the prosecution evidence had concluded. As regards the first the record shows that the accused was examined on two occasions, first on 7-3-52 and then on 16-5-52 and on both occasions he was questioned about all the points brought out in the prosecution evidence. The only defect that counsel was able to point out is, that the questions which related to the occurrence did not mention its time. This is altogether wrong because the time is given in the question. No other omission was alleged or proved, nor were we'' told how the examination of the accused was defective. Moreover counsel was constrained to admit that whatever the omissions were they did not result in any kind of prejudice to his client. As regards the second point it is true that the accused was asked to put in the list of his witnesses when two of the prosecution witnesses who were merely of formal nature had yet to be examined, but the actual examination of the defence witnesses did not take place before the prosecution evidence had concluded. No prejudice to the accused was alleged even in this connection and consequently these objections are also overruled.

Now coming to the facts of the case, Shakuntla was the most important witness in the case and she narrated in detail how the accused shut her up in the kothri after having tied her hands with a rope and three or four minutes later he took her to the burning pyre in the Court-yard and threw her on it. Her statement that when medically examined she was found to have bums on her person and some of her clothes had also been burnt is corroborated by the evidence of Dr. Gurdit Singh and the investigating officer it was not even urged before us that these witnesses should not be believed. On the other hand the Petitioner''s counsel admitted that Shakuntla''s clothes were bumt and she had also burns on her person, but tried to explain that the incident was probably the result of an accidental fire and because the relations between Shakuntla''s family and the accused were strained he was falsely roped in. Taking into consideration the fact that the accused belonged to Ludhiana, I do not think any one in his senses would have taken the risk of inventing a whole story which could be positively disproved if the accused was not in Kapurthala on that day. Then all that is urged on behalf of the accused is that he and his wife had not been pulling on well and Shakuntla''s father wanted him to execute a deed of separation and to pay him some money. It was not suggested that anything-had happened shortly or immediately before the day of occurrence which had brought the matters ahead. Accordingly I do not believe that there was any motive on the part of Shakuntla or her father to invent the whole story.

Then we have two eye-witnesses who materially support Shakuntla''s testimony. One (Hari Ram) is the immediate neighbor of Shakuntla''s father. Their houses adjoin each other. The other has a cattle shed quite close to Shakuntla''s house. They are therefore natural witnesses. It was admitted by Hari Ram that his nephew''s daughter was married to Shankuntla father''s brother''s son, but the other witness (Lal Singh) was altogether independent and his statement also shows that he is a man of position. Both these witnesses saw the accused, who was well known to them, running away from the side of Shakuntla''s house and Shankuntla coming out of her house with her clothes on fire. They also deposed that long before Shankuntla father arrived on the scene she told them that the accused had thrown her into fire. Because of the serious nature of the offence and of the youthful age of the accused we allowed the accused''s counsel to take us through the entire evidence with a view to satisfying ourselves of the correctness of the finding of the Courts below that the case against the accused was fully established and I must say that we were not able to find out any reason to think that there was anything wrong with that finding.

The accused produced a number of defence witnesses to prove that he was in Delhi on the alleged date of occurrence and before I turn to their evidence I must say a word regarding the statement that the accused made in the trial Court He was first examined on 7-3-1952. In answer to the question whether he went to Shankuntla house. 24-1-52 at 1-30 P. M. and after tying her hands the a rope had shut her up in a room, he said that he did not go there. To the last question whether he has to say anything else, his answer was I did not go to Kapurthala. I was two or three hundred miles. from there. I would file a Item statement". The same day he put in a latten statement that purported to have been Prepared on the previous day. After narrating the cause of enmity between him and Shankuntla family this is what he said:

I never came to Kapurthala on the day of the alleged occurrence. I was hundred miles away from Kapurthala. I was at Delhi and other ''places in connection with my business affairs. I am innocent. Janak and her sister complain-ant are of doubtful character and untrustworthy.

Then he made Anr. statement on 16-5-52 when the merely stated that he was in Delhi on the day in question. In neither of these statements he made an effort to show what he actually did in Delhi nor did he aver that he met any particular person, or executed or got executed any document etc., but some of the witnesses whom he examined 1n defence tried to prove (i) that he got a notice issued by a lawyer (ii) that he presented a promote to a Notary Public for having it protested by him for non-payment and (iii) that he got an affidavit attested etc.

Why he omitted to make mention of any of these incidents either in his oral statement or in his statement in writing has not been explained. This fact by itself would go to show that the evidence relied upon by him was an after-thought and was created later. In addition the Courts below have given very good reasons for disbelieving his witnesses and in holding that the plea of alibi raised by him was absolutely false.(Then after discussing evidence of the accused on this point his Lordship proceeded I entirely agree with the Courts below that the whole of the defence evidence was false and the fact that the accused went to the length of producing perjured evidence and forging documents to prove his alibi strengthens his guilt.

Last of all it was urged by the accused''s counsel that the offence committed by him did not am-ount to attempt to murder and that it was only a case of causing hurt with fire or at the most attempt to cause grievous hurt by Are. As I have observed in Anr. part of this order notwithstanding the fact that the relations between the parties if were strained the ill-will between them was not of such a nature as to afford a motive on the part of the complainant''s father to concoct a false story against him. On the same ground I hold that there could have been no motive on the part of the accused to cause Shankuntla death. Probably what happened was that he went to Kapurthala in order to meet his wife or it may be to cause some harm to her and as he found the complainant in the house he just took into his head and injured her. It is no doubt proved that he lit a fire in the compound and threw Shankuntla into it but I do not believe that this was with the intention of causing her death, nor do I think that the injury that he intended to cause could have been sufficient to cause her death in the ordinary course, because am not satisfied that the fire which the accused had been able to kindle was of such a nature as to result into her death. In addition it must have been clear to the accused that Shankuntla screams would soon attract the attention of the persons living in the neighborhood and she would be saved before any real harm is done to her. At the: same time the fire even if it was slight could have resulted in disfiguring Shakuntla''s face or head and it can be said that the accused was guilty of attempting to cause grievous hurt Accordingly I agree with the accuser''s counsel that it was not a case of attempt to murder but of attempt to cause grievous hurt or of causing hurt with fire.

In the result I would allow the revision to the extent that I would alter the Petitioner''s conviction from Section 307 to one u/s 326 read with Section 511 or in the alternative u/s 324 and taking into consideration his age I would sentence him to two years R.I. and a fine of Rs. 1000/- or in default of payment of fine to undergo further R.I. for Six months. out of the fine, if recovered, Rs. 500/- shall be paid to Shakuntla. Shakuntla''s revision petition fails ipso facto and shall stand dismissed.

Chopra, J.

I agree.