Balak Ram v. Mt. Padi — 1952 DIGILAW 10 (HP)

ORDER :- This is an application in revision by one Balak Ram against the order of the first class Magistrate of Theog dated 13-7-1951 under S. 488, Criminal P. C., granting Rs. 40/- p. m. as maintenance to the petitioners wife Mt. Padi, the respondent. 2. Mt. Padi applied for maintenance against the petitioner at Rs. 100/- p. m. on 12-4-1951 on the ground of neglect and refusal on his part to maintain her. It was alleged by her that the petitioner had turned her out of house and home and thereafter contracted marriage with another wife. The petitioner appeared before the Magistrate on 3-7-1951 when both the parties prayed for time to come to a compromise and the case was adjourned to 11-7-1951. The same day, i. e. on 3-7-1951, the parties came to a written compromise outside Court. It was agreed under this compromise that Mt. Padi would reside with Balak Ram and had no objection to the latter having contracted a second marriage, that Balak Ram agreed to her living with him and would bear all her necessary expenses and satisfy her desires, that he would be absolved from the liability to maintain her if she refused to live with him without sufficient cause, and that the compromise deed would be produced before the Court on 11-7-1951 and Mt. Padi would have no further right to prosecute her case. The compromise deed was prepared in duplicate, one copy having been given to each party. 3. On the date to which the case had been adjourned, i. e. on 11-7-1951, Balak Ram produced his copy of the deed before the Magistrate and made a statement that the parties had come to a compromise. Mt. Padi however repudiated the compromise and stated that she had been forced by her brother to affix her thumb-mark to it. Besides examining the parties the Magistrate also recorded the statement of the scribe of the deed of compromise, who was produced as a witness by Balak Ram, and the statement of Mt. Padis brother, who appears to have been examined by the Court suo motu. The Magistrate, however, recorded no finding but simply adjourned the case to 12-7-1951. There is nothing to show what, if anything, happened on 12-7-1951. On 13-7-1951 the Magistrate recorded the statement of Balak Ram and delivered his judgment granting maintenance to Mt. Padi as aforesaid. Padis brother, who appears to have been examined by the Court suo motu. The Magistrate, however, recorded no finding but simply adjourned the case to 12-7-1951. There is nothing to show what, if anything, happened on 12-7-1951. On 13-7-1951 the Magistrate recorded the statement of Balak Ram and delivered his judgment granting maintenance to Mt. Padi as aforesaid. While examining Balak Ram the Magistrate asked him to show cause why separate maintenance be not awarded to Mt. Padi because he had turned her out, contracted a second marriage and neglected to maintain her. To that Balak Ram replied that he had not turned her out but she had gone away of her own accord, that he had contracted a second marriage for domestic reasons, that he was willing to keep Mt. Padi with him but not to give her separate maintenance and that if she so wished he was ready to give her separate accommodation in his house. The Magistrate recorded findings in his judgment on only two points, namely, that the compromise was no bar to his granting maintenance, and that as Balak Ram had contracted a second marriage Mt Padi was entitled to separate maintenance. As regards the rate of maintenance, he fixed it at Rs. 40/- p.m. "according to the prevalent conditions." 4. The first ground urged by the learned counsel for the petitioner was that Mt. Padis application for maintenance should have been dismissed in view of the compromise. In support of this contention he cited three rulings : MANGAYAMMA v. APPALASWAMI, AIR 1931 Mad 185(1), PAL SINGH v. MT. NIHAL KAUR, AIR 1932 Lah 349 (2) and MT. ROSHAN BANO v. AZIM, AIR 1943 Lah 59. Now, the basis for proceedings under S. 488, Criminal P. C., at the instance of the wife is that the husband though having sufficient means neglects or refuses to maintain her. The wife would not be entitled to institute the proceedings if that basis did not exist at the time of her filing her application. Nor would the Magistrate be justified in awarding maintenance without the said basis being still there when he passes the order. The wife would not be entitled to institute the proceedings if that basis did not exist at the time of her filing her application. Nor would the Magistrate be justified in awarding maintenance without the said basis being still there when he passes the order. It may be that although the wife had the right in a particular case to file an application under the said provision, the liability or the husband to pay her maintenance and the jurisdiction of the Magistrate to award the maintenance might cease because the aforesaid basis of neglect or refusal on the part of the husband to maintain the wife no longer existed. Such a contingency might arise due to a compromise between the parties since the institution of the proceedings. Whether the compromise has any such effect will depend upon the terms of the compromise. In other words, if in view of the terms of the compromise the charge of neglect or refusal to maintain the wife is negatived, the Magistrate must dismiss the application under S. 488. If, on the contrary, that charge still subsists despite the compromise, e.g., where only the rate of maintenance is settled by the compromise, the Magistrate would be justified in ordering the husband to make a monthly allowance for the maintenance of the wife, though it would have to be at the agreed rate. 5. In the present case, it cannot be said that a compromise had in fact been arrived at between the parties, for the Magistrate recorded no finding with regard to the plea of Mt. Padi that she had been forced by her brother to affix her thumbmark to the deed of compromise. In point of fact, it was really not necessary for the Magistrate to arrive at any such conclusion, for even if a valid compromise had in fact been arrived at it was repudiated by one of the parties to it when presented before the Court. In a civil suit it is of course necessary for a Court to be satisfied whether the suit had been adjusted by a compromise, because it has in that case to pass a decree in accordance therewith. In a civil suit it is of course necessary for a Court to be satisfied whether the suit had been adjusted by a compromise, because it has in that case to pass a decree in accordance therewith. So far however as proceedings under S. 488 are concerned, the only relevancy of a compromise, except if it be a compromise in respect of the rate of allowance only, is for the purpose of finding out, as adverted to above, whether the charge of neglect or refusal to maintain was, or was not, negatived by it. That being so, as soon as the alleged compromise is repudiated by a party it has no further use for disposal of proceedings under S. 488 and the Magistrate must dispose of the application for maintenance on merits. The contention of the learned counsel for the petitioner that Mt. Padis application for maintenance should have been dismissed in view of the compromise has therefore no force. 6. The rulings cited by the learned counsel for the petitioner have no application to the facts of this case for they all have reference to dismissal of an application under S. 488 where the parties come to an amicable settlement by a compromise. In that case the charge of neglect or refusal to maintain would not subsist and the Magistrate should therefore dismiss the application for maintenance. But in the present case the compromise was repudiated and therefore the charge still remained and required being disposed of on merits. 7. The next ground urged by the learned counsel for the petitioner must however prevail. It was contended by him that the Magistrate failed to follow the correct procedure on 13-7-1951, and that the petitioner had thereby been prejudiced. Under sub-section (6) of S. 488 the procedure to be followed in recording the evidence is that prescribed in the trial of summons cases. It was therefore incumbent upon the Magistrate to put all the necessary questions to the petitioner under S. 242, Criminal P. C. One such question was as regards the rate of maintenance allowance to be allowed against him. No question on this point was however put to the petitioner, and there is nothing in the statement of the petitioner justifying the inference that he agreed to the passing of an order at Rs. No question on this point was however put to the petitioner, and there is nothing in the statement of the petitioner justifying the inference that he agreed to the passing of an order at Rs. 40/- p. m. In fact, he totally denied the grounds on which maintenance was claimed. That being so, the Magistrate should not have fixed the rate of allowance without the parties having produced any evidence on that point. There is no doubt that S. 244, Criminal P. C., imposes the obligation of producing evidence on the parties themselves, but it is proper for a Court before convicting an accused (which, in proceedings under S. 488, means passing an order of maintenance against the husband) to ascertain from him whether he wanted to produce any evidence. Such a course was all the more necessary in the present case because, as already seen, the Magistrate proceeded at once to decide Mt. Padis application on merits on 13-7-1951 although from the procedure he adopted on 11-7-1951 the petitioner might naturally have concluded that what the Magistrate would first decide was whether the parties had come to an amicable settlement of their dispute and so dismiss Mt. Padis application. The petitioner was therefore not expected to be ready on 13-7-1951 with his evidence with regard to the rate of maintenance, and the Magistrate acted arbitrarily and to the prejudice of the petitioner by fixing the rate of maintenance without there being an iota of evidence on the record. 8. This point was taken up before the learned Sessions Judge also but he brushed it aside by holding, on the authority of MT. GANGA DEVI v. RAM SARUP, AIR 1939 Lah 24, that the word "means" in S. 488 included capacity to earn money. This ruling was again cited before me by the learned counsel for the respondent. The ruling does not however lay down that the question of the means of the husband can be decided merely on his capacity to earn money. It only lays down that the capacity to earn money may be taken into consideration in coming to a conclusion with regard to the means of the husband. The capacity of each person to earn money must necessarily vary with his vocation in life. It only lays down that the capacity to earn money may be taken into consideration in coming to a conclusion with regard to the means of the husband. The capacity of each person to earn money must necessarily vary with his vocation in life. That being so evidence should be forthcoming on the basic point of the husbands vocation in life, and in considering that evidence his capacity to earn money may also be taken into account. The contention of the learned counsel for the respondent that the rate of allowance could be fixed on the hypothetical and abstract thing known as the capacity to earn money is therefore wholly untenable. 9. One other ground for setting aside the order passed by the learned Magistrate is that he has recorded no finding whatsoever on the important question of whether the petitioner had neglected or refused to maintain his wife inspite of the fact that the petitioner had categorically denied the allegation in his statement. 10. The petition is accordingly allowed, the judgment and order of the learned Magistrate are set aside and Mt. Padis application is remanded to the Magistrate first class Theog for disposal according to law. Petition allowed. AIR 1952 HIMACHAL PRADESH 57 "Ram Chand v. The State" HIMACHAL PRADESH HIGH COURT Coram : 1 CHOWDHRY, J.C. ( Single Bench ) Ram Chand and others, Appellants v. The State. Criminal Appeal No. 1 of 1952, D/- 28 -3 -1952. (A) Evidence Act (1 of 1872), S.114, Illus.(b) and S.133 - EVIDENCE - ACCOMPLICE - PARDON - Accomplice evidence - Value of - Nature and extent of corroboration. Criminal P.C. (5 of 1898), S.337. The evidence of an accomplice is always open to suspicion and so must be corroborated by independent evidence, direct or circumstantial, confirming not merely the material particulars of the alleged offence but also some particular connecting the accused with it. (1916) 2 KB 658 and AIR 1935 All 86, Rel. on. (Para 8) Anno : Evidence Act, S. 114, N. 2, 4; S. 133, N. 4, 5, 6, 7, Criminal P. C., S. 337, N. 17. (B) Criminal P.C. (5 of 1898), S.367 - JUDGMENT - EVIDENCE - Appreciation of evidence - Admixture of false and true evidence. (1916) 2 KB 658 and AIR 1935 All 86, Rel. on. (Para 8) Anno : Evidence Act, S. 114, N. 2, 4; S. 133, N. 4, 5, 6, 7, Criminal P. C., S. 337, N. 17. (B) Criminal P.C. (5 of 1898), S.367 - JUDGMENT - EVIDENCE - Appreciation of evidence - Admixture of false and true evidence. The prosecution story was that the accused had committed a dacoity and, in the commission of the same had inflicted injuries on the complainant who had resisted the crime. The Court disbelieved the prosecution story as false with regard to dacoity, and without giving thought to the question whether the remaining portion of the prosecution version was worthy of credence convicted the accused under S. 325, Penal Code. Held that the commission of the dacoity being an important part of the entire narrative could not be said to be merely a fringe or embroidery to the main story. On the contrary, it was the main part of the deposition of the witnesses and it was wholly untrue. This, therefore, had the effect of pulling a stone out of the arch and therefore of the whole fabric of their testimony falling to the ground. The conviction of the accused on the testimony of such witnesses was, therefore, wholly unjustified. (Para 10) Anno : Criminal P. C., S. 367, N. 6. (C) Criminal P.C. (5 of 1898), S.337 - PARDON - May tender pardon - Discretion to tender pardon - When to be exercised. It is only in exceptional cases that the prosecution should move, or the Magistrate exercise powers, for tendering pardon to an accomplice under Section 337, Cr. P. C. One such circumstance may be that it is otherwise not possible to bring the guilt home to the other accused. Where besides the approver, there are as many as six eye-witnesses to the crime who have given evidence in the case, it cannot be said that direct evidence is lacking in the case and, therefore, the Magistrate cannot be said to have exercised a sound discretion in tendering pardon to one of the accused. (Para 11) Anno : Cr. P. C., S. 337, N. 1. Cases Referred : Chronological Paras (35) AIR 1935 All 86 : (36 Cri LJ 205) 8 (1916) 2 KB 658 : (86 LJKB 28) 8 Daulat Ram and Ishwar Das, for Appellants. Dina Nath Govt. (Para 11) Anno : Cr. P. C., S. 337, N. 1. Cases Referred : Chronological Paras (35) AIR 1935 All 86 : (36 Cri LJ 205) 8 (1916) 2 KB 658 : (86 LJKB 28) 8 Daulat Ram and Ishwar Das, for Appellants. Dina Nath Govt. Advocate, for the State. Judgement JUDGMENT :- This is an appeal by Ram Chand, Phagnu, Tulu, Bhadaru and Nandu against the Judgment and order of the learned Sessions Judge of Mandi dated 31-12-1951. Ram Chand has been convicted under Section 325, I. P. C., and sentenced to three years rigorous imprisonment. Each of the remaining four appellants has been convicted under Section 323, I. P. C., and sentenced to four months rigorous imprisonment. 2. The committal of the appellants was also made for the aforesaid offences, but it became necessary for the Magistrate to commit them for trial to the Court of Session since one of the accomplices, Sahru, had been tendered pardon under Section 337, Cr. P. C., at an earlier stage when the inquiry related to offences triable exclusively by a Court of Session, i.e. for offences punishable under Sections 395 and 397, I. P. C. 3. A number of shepherds, known as Gaddis, were returning with a large flock of sheep, about 700 in number, to Kulu Valley from Palampur side on 22-5-1951. Late in the afternoon they reached a locality known as Bhran Galu and they decided to camp there for the night. Covetous of a free supply of manure, one Ram Das, a prosecution witness in this case, offered them camping ground in his field. Close to that field was the potato field of Ram Chand, appellant of which the crop had not yet sprouted. The remaining appellants and two others, Molu, who was acquitted by the Sessions Judge, and Sahru, who turned approver, were also there. There was an altercation between them and the Gaddis, which culminated in a fight between the two parties. In that fight one of the Gaddis, named Romi, sustained two simple injuries in his head and a grievous injury in the shape of a broken lower jaw in Ram Chands field. There is however material difference between the prosecution and defence versions as to how the quarrel started and Romi came to receive the injuries. 4. In that fight one of the Gaddis, named Romi, sustained two simple injuries in his head and a grievous injury in the shape of a broken lower jaw in Ram Chands field. There is however material difference between the prosecution and defence versions as to how the quarrel started and Romi came to receive the injuries. 4. According to the prosecution, as the appellants and their two aforesaid companions espied the Gaddis approaching from Palampur side they conspired to rob them of some of their sheep and other belongings. Accordingly, when the Gaddis came near them Phagnu and Tulu picked up a quarrel with Romi, who was at the head of the flock, on the road skirting Ram Chands field, on the false accusation of the sheep having trespassed into the field. This led to an altercation and Romi was dragged inside Ram Chands field and set upon by the appellants and their companions and belaboured with fists, kicks and a lathi, and pelted with stones. The broken jaw was caused by a stone hurled at Romi by Ram Chand appellant. Phagnu appellant removed a small tin case containing currency notes of the value of Rs. 400/- from Romis pocket. The currency notes got scattered on the ground in the process, and this gave opportunity to the other assailants also to help themselves with the booty. Two of Romis sheep were also lifted and carried away by the assailants. It may be stated here that no part of this alleged booty was recovered by the police from any of the culprits except that Sahru approver professes to have discovered to them his share of Rs. 10/- from where he had hidden it. 5. The defence version was that the quarrel with the Gaddis arose by reason of the latters sheep having trespassed into Ram Chands potato field. They denied having caused any injury to Romi, but pleaded that it was Sahru approver who inflicted them. 6. It is manifest therefore that, although the accused had denied infliction of injuries on Romi, the defence plea was clearly one of private defence of property. There is, however, no mention of this important aspect of the case in the judgment of the learned Sessions Judge. 6. It is manifest therefore that, although the accused had denied infliction of injuries on Romi, the defence plea was clearly one of private defence of property. There is, however, no mention of this important aspect of the case in the judgment of the learned Sessions Judge. He has merely interpreted the defence version as one amounting to a plea of sudden fight, and accepting that plea, he held that Section 34, I. P. C., was not applicable in the case of appellants other than Ram Chand, and that their culpability must be determined in accordance with the part played by each of them in assaulting Romi. This omission naturally prejudiced the case of the appellants in the Court of Session. 7. The part of the prosecution case which had reference to offences punishable under Sections 395 and 397, I. P. C., was totally disbelieved by the committing Magistrate, so that he committed the appellants to take their trial in the court of Session for only offences under Sections 325 and 323, I. P. C. The learned Sessions Judge has also discredited that part of the prosecution version more than once in his judgment. The questions that required determination therefore were: (1) Whether Ram Chand appellant caused grievous injury and the other appellants simple injuries to Romi? and (2) If so, whether they were entitled to do so in exercise of right of private defence of property? As already stated, the learned Sessions Judge did not at all consider the second question. As regards the first, as between the prosecution and defence witnesses he gave preference to the former because in his view their testimony found support from the circumstance that not a single person in the assailants party was injured. He therefore concluded that Romi alone was pitted against the appellants and the latter were the aggressors. 8. The circumstance of Romi having sustained injuries will be considered presently, but apart from that, the prosecution version, by which of course I mean that part of the prosecution version which still remained to be determined after discarding the story of dacoity, has been held as established by the evidence of the approver, Sahru, corroborated by that of six other eye-witnesses. Four of these latter were Romi and three other Gaddis of his party named Bushahri, Padru and Lachhman. Four of these latter were Romi and three other Gaddis of his party named Bushahri, Padru and Lachhman. The remaining two were the aforesaid Ram Das, who had given shelter to the Gaddis in his field close to the field of Ram Chand appellant, and his brother Dagi. Now, the evidence of an accomplice is always open to suspicion and so must be corroborated by independent evidence, direct or circumstantial, confirming not merely the material particulars of the alleged offence but also some particular connecting the accused with it. REX v. BASKERVILLE. (1916) 2 KB 658, and GORAKH NATH v. EMPEROR, AIR 1935 All 86, founded upon the English ruling. In the present case, the evidence of Sahru carries the taint not only of being the evidence of an accomplice but also of being intrinsically false, for he denied having assaulted Romi although almost all the other witnesses were unanimous that he did. 9. Coming to the corroborative evidence, it consists, as already stated, of the direct evidence of the aforesaid six eye-witnesses and the circumstantial one, of one of the Gaddis, Romi, being injured, but none of the appellants. Now, the testimony of these eye-witnesses is anything but independent, for, all have lied in regard to a material particular and two of them, Ram Das and his brother Dagi, were inimical to Ram Chand appellant. Each and every one of the eye-witnesses, including the approver, has given a detailed and graphic description of the alleged offence of dacoity. Both the Courts below have totally discredited that part of their testimony, and it was not contended before me by the learned Government Advocate that they were not justified in doing so. The learned Sessions Judge has merely brushed that part of their testimony aside by observing that it was not believed by the committing Magistrate and was not worthy of belief in his own opinion also. He has however given no thought to the question whether inspite of that, these witnesses were worthy of credence in regard to the remaining portion of the prosecution version. This is another omission from which the judgment of the learned Sessions Judge suffers, and which has resulted in a further prejudice to the case of the appellants in that Court. 10. This is another omission from which the judgment of the learned Sessions Judge suffers, and which has resulted in a further prejudice to the case of the appellants in that Court. 10. There is a passage in the introduction to Fields Law of Evidence which has often been cited in dealing with the question of admixture of false and true evidence. It runs as follows : "There is almost always a fringe or embroidery to a story, however true in the main. The falsehood should be considered in weighing the evidence; and it may be so glaring as utterly to destroy confidence in the witness altogether. But when there is reason to believe that the main part of the deposition is true, it should not be arbitrarily rejected because of a want of veracity on perhaps some very minor point. The case will, however, be different if one of the essential circumstances in the story be clearly unfounded. This, to use a felicitous expression of Mr. Hallams, is to pull a stone out of an arch, the whole fabric must fall to the ground." Can it be said that the portion of the testimony of the aforesaid eye-witnesses relating to dacoity was merely an embellishment to the story related by them? An embellishment is addition of fictitious details in order to heighten the effect of a narrative, the narrative being in the main true, attributable to the common human failing of exaggeration. In the present case, the commission of dacoity was as important a part of the entire narrative as the infliction of injuries on Romi. Indeed, it may even be said to be the pith and marrow of the narrative since, if the prosecution witnesses were to be believed, commission of dacoity was the main object of the appellants and injuries were caused to Romi only incidentally because he resisted the commission of that offence. That being so, it cannot for a moment be said that the part of the story relating to dacoity was merely a fringe or embroidery to the main story. On the contrary, it was the main part of the deposition of the witnesses and it was wholly untrue. This therefore had the effect, in the phraseology of the quotation cited by Field, of pulling a stone out of the arch and therefore of the whole fabric of their testimony falling to the ground. On the contrary, it was the main part of the deposition of the witnesses and it was wholly untrue. This therefore had the effect, in the phraseology of the quotation cited by Field, of pulling a stone out of the arch and therefore of the whole fabric of their testimony falling to the ground. The conviction of the appellants on the testimony of such eye-witnesses was therefore wholly unjustified. 11. A closer scrutiny of the facts and circumstances of this case will further confirm the untrustworthiness of the eye-witnesses. (After discussion of the evidence the judgment proceeds) : Again, the circumstance of Sahru being chosen as approver is very strange even though legal proof be wanting, that in this also, his uncle Ram Das had a hand. Admittedly, Sahru was one of the accused who had assaulted Romi. He was also the only accused against whom there was clear evidence of the alleged offence of dacoity, since he discovered to the police currency notes worth Rs. 10/- which he professes to have looted as his share of the booty. It is strange therefore that the alleged readiness of this witness to make a full and true disclosure of the whole of the circumstances of the case should, instead of being utilised by the prosecution as a confession against himself and his co-accused, have been made a ground for obtaining a pardon for him under Section 337, Cr. P. C. Indeed, it passes ones comprehension why it should at all have been thought necessary by the prosecution in this case to secure the help of an approver to establish the guilt of the other accused, for there were already as many as six eye-witnesses of the occurrence. It is only in exceptional cases that the prosecution should move, or the Magistrate exercise powers, for tendering pardon to an accomplice under Section 337, Cr. P. C. One such circumstance may be that it is otherwise not possible to bring the guilt home to the other accused. No such ground however existed in the present case, and the learned District Magistrate does not therefore appear to have exercised a sound discretion in holding, while tendering pardon to Sahru, that the evidence in the case was lacking. No such ground however existed in the present case, and the learned District Magistrate does not therefore appear to have exercised a sound discretion in holding, while tendering pardon to Sahru, that the evidence in the case was lacking. It appears therefore that not only were all the so called eye-witnesses produced by the prosecution essentially false witnesses, but two of them, Ram Das and Dagi, were inimical to Ram Chand appellant, and the former seems to have been busy, tutoring the other prosecution witnesses and shielding his nephew Sahru. 12. The prosecution version of the occurrence appears also on the face of it to be unbelievable. (After discussion of the evidence the judgment proceeds): It is clear therefore, that it was a case of fight between the Gaddis on one side and the appellants on the other, whilst the latter were trying to drive the sheep away from Ram Chands field and the Gaddis were resisting it, and that both the parties were equally balanced in number. It is further admitted that none of the appellants was armed, and that the stick used by one of them was snatched from the hands of Romi himself. The indications are therefore clear that even if the injuries sustained by Romi were deliberately aimed at him they were caused by some one or the other of the appellants in exercise of the right of private defence of property, and that it cannot be said that the right of private defence was exceeded. 13. The appeal is allowed and the conviction and sentences of the appellants are set aside. They are on bail, their bail bonds are discharged, and they need not surrender. Convictions and sentences set aside.