BABULAL KANDU Vs. KANTI DUTTA MISRA

JUDGEMENT

(1.) THIS case presents some difficulty, and the difficulty arises from the conduct of the petitioner in having put forward at his trial a defence which was wholly untrue. The petitioner was discovered in the middle of the night in a house belonging to one Damodar and was apprehended by Damodar, who is a young man of about twenty and his relation Kishun Ram, who is not much older. Two constables, who were on patrol in the village, came up immediately after the petitioner was apprehended and took him in charge. The defence set up by the petitioner was that he had advanced a sum of Rs. 500/- to Mt. Rajwanti, the mother of Damodar, in connection with the latter's marriage, and had been asked by Damodar and Kishun Ram to come to the house and try to come to some arrangement as to how Mt. Rajwanti should pay the money due by her. THIS defence, which, in short, was that the petitioner had been enticed into the house and then falsely and maliciously denounced as a burglar, was quite rightly disbelieved by the Courts below. Ordinarily, when a man is found in enclosed premises at night, and when the explanation which he gives for being there is palpably untrue, the inference which may be drawn is that he was on the premises for some criminal purpose. Nevertheless, such an inference ought not to be drawn if there are circumstances in the case which go to show that in fact the petitioner may have had some innocent purpose in View, although not the purpose which he himself said he had. In this particular case there are several circumstances which, in my opinion, create a reasonable doubt as to the petitioner having been invited into the house by Mt. Rajwanti in pursuance of an intrigue, and not having broken into it in order to commit theft. The most important of these circumstances is that the petitioner was apparently found in the room occupied by Mt. Rajwanti and that he had no house-breaking implements or the like on his person. Now, admittedly, the petitioner had been in the employ of Mt. Rajwanti's husband, and was quite well-known to her. In fact, at the trial a number of letters were produced which were said to have been written by Mt. Rajwanti to the petitioner. According to the prosecution, the petitioner was not admitted into the house by Mt. Rajwanti but got into it by means of a rope which, in some way or other, he contrived to throw up and fasten on to an upper window or balcony. THIS part of the evidence was, in my opinion, most unconvincing. The learned Advocate who appears in support of the conviction, lays stress on the fact that the petitioner was taken into custody forthwith by two constables, and argues with some cogency that these constables must have been led to believe that he was a burglar. The constables were not, however, called to give evidence, as they should have been at the trial. Moreover, the Assistant Sub-Inspector who conducted the investigation was of opinion that the petitioner was not a burglar and did not submit a charge-sheet. If the petitioner had been an ordinary burglar, one would expect Damodar and Kishun Ram to have gone with him and the two constables to the police station and to have lodged an information immediately. Instead, nothing was apparently done until the next morning and an information was lodged then, not by Damodar or Kishun Ram, but by Kanti Dutt Misra, who was not himself in the house and personally knew nothing of what had taken place. It appears that the learned Additional Sessions Judge would not have convicted the petitioner if he had specially taken the defence that he had entered the house in pursuance of an intrigue with Mt. Rajwanti. The lower appellate Court appears to have thought that it was incumbent on the petitioner to take this defence specifically and also to adduce evidence to prove that the letters which he produced were in the handwriting of Mt. Rajwanti. The learned Additional Sessions Judge, in my opinion, misdirected himself. On the principle laid down in 'WOOLMINGTON v. DIRECTOR OP PUBLIC PROSECUTIONS', (1935) A C 462 at 481, if on fee evidence adduced by the prosecution, a reasonable doubt arises as to the guilt of a prisoner, the prisoner must have the benefit of it. In my opinion, there is more than a reasonable doubt as to the petitioner having entered these premises in order to commit theft. That being so, the application will be allowed, the conviction and sentence are set aside, and the petitioner is discharged from his bail.