AWADH SINGH Vs. EMPEROR

JUDGEMENT

(1.) The three petitioners in these revisions, Awadh Singh, Muso Singh and Ramkhelawan Singh were tried jointly, with two other persons, Ramgulam Singh and Misri Kahar, by Mr. H.N. Singh, a Magistrate of the First Class, of Monghyr, upon two charges, the first under Section 420/34 and the second under Section 306/34, Indian Penal Code. The learned Magistrate acquitted Ramgulam Singh and Misri Kahar but convicted the three petitioners upon both the charges, and upon the conviction under Section 420/34 sentenced Muso Singh to two years rigorous imprisonment and to pay a fine of Rs. 500 or in default to rigorous imprisonment for five months, and Awadh Singh and Ramkhelawan Singh to one year's rigorous imprisonment each and to pay a fine of Rs. 800 each, or in default three months rigorous imprisonment each. The learned Magistrate said that he did not deem it necessary to pass any separate sentence under Section 366/34. On appeal the learned Sessions Judge affirmed the convictions and sentences under Section 420/34 but set aside the convictions under Section 366/34, upon the ground that the charge under Section 366 is within the exclusive jurisdiction of the Court of Session.

(2.) The case for the prosecution was as follows: The complainant, Badri Singh, is a resident of village Kajur, Police-station Atri of the district of Gaya. The petitioners Muso Singh and Ramkhelawan Singh are residents of village Jaitpur, out-post Lakhiserai, district Monghyr, and the petitioner Awadh Singh is a resident of village Hardhanbigha said to be adjacent to Jaitpur. The Nanihal of petitioner Awadh Singh is in the complainant's village. It was alleged that the complainant, who is about 48 years of age, was anxious to get married and that a few days before the occurrence, Awadh Singh, Muso Singh and Ramkhelawan Singh came to the complainant's village and arranged that the daughter of the petitioner Muso Shingh should be married to the complainant on payment of Rs. 2000, that subsequently the complainant sent Chhedi Hajam to the petitioner Muso Singh to fix the date of the marriage, that this having been arranged the complainant went to Burhee with a party consisting of Bano Singh, Mathur Singh, Chando Singh and others, that Muso and Awadh came to the Dharmshala at Burhee and suggested that the marriage should be performed in an opens field, that the complainant and his party objected and it was then arranged that the marriage should take place, and that it did take place that evening in the Thakurbari of Tulsi Das with a girl of thirteen years of age in the presence of the three petitioners and the members of the Barat, that subsequently the complainant gave Rs. 2000 to Muso Singh at the railway-station at Burhee in the presence of the three petitioners and the members of the Barat, that shortly afterwards the complainant learned from one Palo Singh that the petitioner Muso Singh had no daughter of his own and that the girl in question was a Sonarin of Monghyr, that the complainant being a Brahmin felt he had been grossly deceived and cheated, and that after an unavailing search for the accused persons a first-information report was lodged on the next day by the complainant in the Burhee beathouse. As the convictions under Section 366/34, Indian Penal Code have been set aside by the learned Sessions Judge, I do not need to go into the facts concerning the alleged kidnapping and identity of the girl. No point was taken before us that the learned Magistrate was not fully justified in finding, as he did, that the girl was not a daughter of the petitioner Muso Singh and was by caste a Sonarin.

(3.) In the fard-beyan attached to the first-information report which was made and signed by the complainant, the only mention of the petitioner Awadh Singh is that about a month previously he had come to the complainant's village in company with Muso Singh, Ramkhelawan Singh and Ramgulam Singh. At the trial the complainant having stated the fact of the petitioner Awadh's arrival at his village in company with Muso Singh, Ramkhelawan Singh and Ramgulam Singh, said that they gave out that Muso Singh had a daughter whom he wanted to get married, that he sent Chhedi to the petitioner Muso Singh and Awadh Singh to fix the date of the marriage and that Chhedi returned with a letter (Ex. 1) fixing the date of the marriage. Rajo Singh (p.w. 2) stated in general terms that Muso, Awadh, Ramkhelawan and Ramgulam came to the village and arranged to marry Muso's daughter to the complainant on payment of us. 2000 and that at the complainant's request he wrote letters for the petitioner Awadh Singh and the petitioner Muso to fix a date for the marriage. In cross examination he stated that during the negotiations the complainant talked with the petitioner Muso Singh and that he learnt later from the complainant that the price demanded for the girl was originally greater than Rs. 2000. It seems to follow that this witness, although present with the complainant, did not himself hear the actual negotiations between the complainant and the petitioner Muso Singh. It would seem, therefore, not by any means impossible that the petitioner Awadh Singh was in the same position as this witness and also did not hear the actual detailed negotiations. Chhedi Hajam (p.w. 4) stated that Badri Singh sent him with two letters to the petitioners Muso and Awadh Singh and that he got a reply from them jointly and brought it back and gave it to the complainant. The letter said to have been brought by Chhedi Hajam was produced and contains no mention of the petitioner Awadh Singh, and purports to emanate solely from the petitioner Muso Singh. Two witnesses, Benares Singh (p.w. 7) and Shyam Marandi (p.w. 11), both members of the Barat, deposed that after their arrival at Burhee, Muso Singh and Awadh Kishore Singh came to the Dharamshala and suggested that the marriage should take place in an open field, but that they objected and that later Muso Singh came and said that the marriage would be celebrated in the Thakurbari of Tulsi Das. Five witnesses depose that the marriage took place in the presence of Muso Singh, Awadh Singh, Ramkhelawan Singh and Ramgulam Singh. The complainant was cross-examined as to the alleged presence of Awadh Singh at the marriage and at the time of the payment of the money, and he stated that he did tell the police that Awadh Singh was then present. The Sub-Inspector (p.W. 9), however, said in evidence that the complainant did not say anything to him beyond what was in the fard- beyan, and that the complainant did not tell him that Awadh Singh was present at the time of the payment of the money, or that Awadh Singh had come with Muso Singh to fix the marriage. P.W. 11, Shyam Marandi, said that prior to the departure of the Barat from village Kujur, he had suggested to the complainant that he should have the girl inspected, but that the complainant had replied that he had confidence as Awadh Singh was the relation. Now, if the complainant bad really relied upon and had confidence in Awadh Singh in the matter, and if Awadh Singh had, as the witnesses stated, been present and a party to the preliminary negotiations, had come with Muso Singh to propose that the marriage should take place in an open field, had been present at the marriage and, again, at the payment of the money, the complainant's suspicion and wrath must immediately have been directed against him, at least as much as against Muso Singh and more so than against either Ramkhelawan Singh, or Ramgulam Singh, and that being so, it is almost inconceivable that he would not have named him with the other three as one of the persons who had been a member of the conspiracy to cheat him. It is true that there was no specific cross-examination of the complainant on the point, but I do not attach any great weight to this. The lack of any cross- examination of the prosecution witnesses as to a fact within their knowledge, which the defence seek to establish, is properly a matter of comment and inference; but there is no obligation on the defence, by cross-examination, to fill in a lacuna in the case for the prosecution. The inconsistency between the fard-beyan and the evidence given at the trial was a matter which the prosecution-witnesses themselves would properly have been asked to explain, in chief. Not only were they not asked to do so, but neither the learned Magistrate nor the learned Sessions Judge appears to have directed his attention to this glaring inconsistency in the case for the prosecution. It seems to me impossible to say that their decision might not have been affected had they done so, the more especially as the learned Magistrate acquitted Ramgulam Singh because of the possibility that he had been falsely implicated by the prosecution witnesses. In these circumstances, there appears to me to have been such a clear miscarriage of justice in the case of petitioner Awadh Singh as to justify interference with his conviction upon revision under Section 439, Criminal Procedure Code. I am, therefore, of opinion that on the materials on the record there was a reasonable doubt as to the guilt of the petitioner Awadh Singh, of which he should have been given the benefit.