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PETITIONER: KALAWATI AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF HIMACHAL PRADESH.

DATE OF JUDGMENT: 19/01/1953

BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM

CITATION:  1953 AIR  131            1953 SCR  546  CITATOR INFO :  RF         1965 SC1467  (16)

ACT: Indian  Penal Code (XLV of 1860), ss. 114, 201,  302-Charges under  ss. 302 and 114, and s. 201-Conviction under  s.  201 and acquittal on other charge in Sessions Court  -Conviction under  ss.  114 and 302 and acquittal under s. 201  in  High Court-Appeal  to Supreme Court-Power to  restore  conviction under  s. 201, when State has not  appealed-Constitution  of India,  1950, Art, 134 (1) (c) -Leave to  appeal-Certificate of fitness-Death sentence passed by Judicial Commissioner.

HEADNOTE: The  accused was charged under ss. 114 and 302, Penal  Code, with  abetment of murder.  The Sessions Judge acquitted  her of  this charge and convicted her under s. 201, Penal  Code, for   suppressing  evidence  of  murder  and  giving   false information.  On appeal by the accused as well as the State, the Judicial Commissioner set aside the conviction under  s. 201 and convicted the accused under ss. 114 and 302: Held,  that it was open to the Supreme Court, in  an  appeal preferred by the accused, to restore the conviction under s. 201  on setting aside the conviction under ss. 114 and  302, even  though  the State had not appealed, as  the  acquittal under  a. 201 was intimately connected with  the  conviction under  ss.  114  and 302, and took place  only  because  the accused  was convicted of the main charge under ss. 114  and 302. Begu v. King Emperor (52 I.A. 191) applied. The  fact  that  in a particular State  there  is  only  one Judicial  Commissioner as the ultimate  appellate  authority and there is no Bench of two Judges as in the High Courts to confirm  death  sentences  is not  an  adequate  ground  for granting a certificate that a case where the death  sentence has  been  awarded is a fit one for appeal  to  the  Supreme Court under article 134 (1) (c) of the Constitution.

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JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  73 and  74 of 1952.  Appeals under article 134 (1) (c)  of  the Constitution of India from the Judgment and Order dated  the 16th  June,  1952,  of the  Judicial  Commissioner’s  Court, Himachal Pradesh At Simla, in Murder Reference No. of 1951 a and 547 Criminal  Appeals Nos. 10 of 1951 and 2 of 1952 arising  out of  the Judgment dated the 5th December, 1951, of the  Court of the Sessions Judge, Mahasu, and Sirmur Districts,  Simla- 1, in Sessions Trial No. 7 of 1951. Tara Chand Mathur for the appellant Kalawati. Bawa Shiv Charan Singh for the appellant Ranjit Singh. G.   C.  Mathur for the respondent in both the appeals,  the State of Himachal Pradesh. 1953.  January 19.  The Judgment of the Court was  delivered by CHANDRASEKHARA  AIYAR  J.  -One Kanwar Bikram  Singh  was  a relation of the Rana of Kuthar.  He was a jamindar with some properties.   Bishanpura within the police. station,  Solan, was his summer resort.  Manimajra in the Ambala District was his  place  of residence on the plains.  He had  married  in 1938 kalawati, one of the two appellants.  She was herself a daughter of the late Raja of Nalagarh through a mistress. Kanwar  Bikram Singh was murdered during the early  morning hours  of 16th July, 1951, as he lay asleep on the  roof  of his haveli or mansion at Bishanpura.  He had several incised injuries  on  his person.  The case for the  prosecution  is that  Ranjit Singh, the other appellant, who was  a  distant cousin  of the deceased, committed the murder with the  help and  connivance  of Kalawati.  It is stated for  the  prose- cution that the two appellants developed an illicit intimacy with  each  other, and that they got rid  of  Kanwar  Bikram Singh,  as he was cruel in his behaviour to  Kalawati.   The last  act of ill treatment is said to have been on  the  6th July, when Kanwar Bikram slapped his wife.  Unable to endure the  continued humiliation at the hands of her husband,  and in  the  hope that her intrigue with Ranjit Singh  would  be facilitated, Kalawati is said to have conspired with  Ranjit Singh to do away with her husband, 71 548 Ranjit  Singh  was charged with murder  under  section  302, Indian  Penal Code, and Kalawati was charged under  sections 114  and  3O2 Indian Penal Code, with  abetment  of  murder, which  was committed in consequence.  The Sessions Judge  of Mahasu  and Sirmur found Ranjit Singh guilty of the  offence and sentenced him to the extreme penalty of the law.  He  Pr acquitted Kalawati of the offence of abetment under  section 302  read  with  section 114, but  found  her  guilty  under section  201,  Indian  Penal Code,  as  she  suppressed  the evidence, screened Ranjit Singh, and gave false  information in respect of the murder and he sentenced her to five years’ rigorous imprisonment. The  two  appellants preferred appeals to the Court  of  the Judicial  Commissioner,  Himachal  Pradesh,  and  the  State preferred an appeal against the acquittal of Kalawati on the charge   of  murder.   The  Judicial  Commissioner   allowed Kalawati’s appeal, and set aside her conviction and sentence under  section 201.  At the same time, he allowed the  State appeal  against her and convicted her of and  offence  under section  302 read with section 114, Indian Penal  Code,  and sentenced  her to transportation for life.   Ranjit  Singh’s appeal was dismissed.

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An  application was made to the Judicial Commissioner  under article  132 (1) of the Constitution for a certificate  that the  case  involved substantial question of law  as  to  the interpretation   of  the  Constitution.   He   granted   the certificate,  but he also added that the case was  otherwise also a fit one for appeal to the Supreme Court under article 134  (1)  (c).   He  thought that  as  the  confirmation  of sentence of death as a matter of practice prevailing in  the High  Courts was generally made by a Bench of two Judges  at least, it was not fit and proper that the matter should rest with his own decision sitting singly. We  feel  bound to state that the reason he  has  given  for certifying  the case as a fit one for appeal  under  article 134 (1) (c) is not sound.  If in any 549 particular State there is only one Judicial Commissioner  as the ultimate appellate authority, and if the confirmation of sentence of death has to be made by him, the procedure  laid down  must be followed.  The fact that there is not a  Bench of  two  Judges  as in the High Courts to  deal  with  death sentences  is  not  an adequate ground  for  converting  the Supreme   Court  into  an  ordinary  court  of  appeal   and confirmation  in such matters.  It is unnecessary,  however, to  pursue  this subject further, as we have heard  the  two appeals on their merits is well. There is no substance in the constitutional points sought to be raised on behalf of the appellants.  Both the  appellants have  made  confessions of their guilt which  were  recorded under  section  164,  Criminal  Procedure  Code,  but   they retracted  them in the Committing Magistrate’s  court.   The confessions were used against them at the sessions trial and in  their examination under section 342, Criminal  Procedure Code.    Each  was  asked  about  certain  details  of   the confession made by the other. It was contended that if an accused person retracted his  or her confession, it should not be used against him or her  at all, as it would contravene article 20 (3)   of          the Constitution, which provides that no person  accused of  any offence shall be compelled to be a witness against  himself. It  is  difficult  to  see  the  force  of  this  point.   A confession has to be voluntary before it can be used against a  person  making it and a magistrate is  bound  to  satisfy himself that it is being made without any inducement, threat or promise.  No person accused of a crime is bound to make a confession, and if there is any compulsion or threat, it has to be ruled out as irrelevant and inadmissible.  Sub-section (3) of article 20 does not apply at all to a case where  the confession  is  made  without  any  inducement,  threat   or promise.   It is true that a retracted confession  has  only little  value  as the basis for a conviction, and  that  the confession  of  one accused is not evidence  against  a  co- accused tried jointly for the same offence, but can only  be taken 550 into  consideration  against  him.   This  deals  with   its probative value and has nothing to do with any repugnancy to the Constitution. It  was also urged that as sub-clause (2) of article  20  of the Constitution provides that no person shall be prosecuted and  punished  for  the same offence  more  than  once,  the Government  cannot  have  any right  of  appeal  against  an acquittal.   If there is no punishment for the offence as  a result   of   the  prosecution,  the  sub-section   has   no application  ; and secondly, an appeal against an  acquittal wherever such is provided by the procedure is in substance a

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continuation   of  the  prosecution.   Mr.  Tarachand,   who appeared  for  Kalawati, ultimately desisted  from  pursuing these constitutional objections and addressed himself to the merits.                               I -A few facts and dates maybe set out here as relevant to the proper appreciation of the arguments addressed on behalf  of the  appellants.  The murder took place, as already  stated, on  the open roof of Bikram Singh’s haveli about 4 a. m.  on 16th July, 1951.  Mst.  Shibbi (P.W.3) who was a cook in the family  and  who was sleeping on the same roof at  a  little distance  was the first -to wake up on hearing some  strange noise,  and she saw a man going away from near her  bed  and getting  down  the  ladder at the back of  the  house.   She raised a hue and cry and found Bikram Singh fallen down from ’his bed with his face downwards.  The other servants in the house, namely, Jora and Dayaram and P.W.3’s husband,  Nathu, who were all sleeping downstairs, came on to the roof.   One Laik  Ram also arrived with a gas light.  Kalawati  who  was sleeping by the side of her husband was not in her bed;  she was standing in the room near the steps.  It was  discovered that  Bikram  Singh had been the victim of a  fatal  attack. The  commotion reached the ears of P.W.7, who lived at  some distance, and he shouted to the police station near by.  His cries  brought  on  the  scene,  at  about  4-40  a.m.   the head  constable (P.W. 24) to whom Kalawati made a  statement to the 551 effect  that  some unknown dacoits had  invaded  her  house, killed her husband and robbed her of her jewels.  As he  was proceeding   with  the  investigation,   the   station-house officer, Solan, (P.W. 38) arrived and took it up. Various  articles  were  recovered  in  the  course  of  the investigation.  A scabbard was discovered on 16th July,1951, itself  by  P.W. 19 at a distance of one  furlong  from  the house of the deceased.  Two days later, i.e., on 18th  July, 1951,  a shirt and a kachha were discovered by P.W. 22  from underneath  a stone in a water channel about a mile  further away.  On 24th July, 1951, Ranjit Singh was arrested, and it is stated that he took the police and took out a sword  from a bush to the west of the place of occurrence at a  distance of 100 yards.  Some bushes had to be out at the instance  of the  accused  before  the  sword  was  discovered.   Certain ornaments,  thirty-five  in number, and said  to  belong  to Kalawati  were  unearthed  by the accused  himself  on  27th October,  1951, from a room of his house in Basdhera.   They were  all in a metal box, and the box was in an earthen  pot which lay buried in the earth. Kalawati  made a confession on 28th July, 1951,  before  the Magistrate, Sri Antani (P.W. 31).  The confession of  Ranjit Singh  was  recorded by the same Magistrate on  3rd  August, 1951. The  material  evidence in the case consists  of  these  two confessions  and  the  evidence given  by  the  maidservant, Shibbi  (P.W.  3).  The other evidence  adduced  relates  to motive and the several discoveries, on which the prosecution relies   as  corroborative  circumstances  to  support   the substantial  truth of the confessions, which were  retracted even   before   the  Committing  Magistrate  by   both   the appellants. It  is  abundantly  clear  that  the  relationship   between Kalawati  and  her  deceased  husband,  Bikram  Singh,   was strained.  As early as 1946, she had complained against  him of  violence  and threat to kill, and his arms  licence  was cancelled.  He was addicted to drink, 552

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and  often  used to quarrel with her  and  ill-treated  her. Since  1948  or thereabouts, Ranjit Singh,  &  fairly  close relation, entered into the picture as a frequent visitor  at Manimajra  or Bishanpura.  He. developed intimate  relations with Kalawati, which led to suspicion of her misconduct with him.  The evidence of Balbir Singh, brother of the deceased, Baldev  Singh,  the  manager of  the  estate,  and  Dropadi, mistress of the father of the deceased, examined as P.Ws. 1, 2  and 5 respectively, establishes this.  In her  confession marked  Exhibit P.A.A., Kalawati points out how and why  her relations  with her husband became strained, and  refers  to her  liaison with Ranjit Singh, the conspiracy between  them to  get  rid  of Bikram Singh, the plan laid  out  for  this purpose,  and the fatal assault early in the morning of  the 16th July.  She throws the entire blame on Ranjit Singh,  to whose  scheme  she  agreed, out of  sheer  disgust  for  her husband.   She tells us that she made a confession so as  to remove the load of sinfulness from her soul. The  confession of Ranjit Singh, Exhibit P.A.C.,  which  was also  retracted, is more or less on the same lines,  but  he says that Kalawati was primarily responsible for the scheme, and he concludes it thus: "Had  Kalawati  not asked me, I would not  have  thought  of murdering Kanwar. The  fault of worsening the relations between  Kalawati  and Kanwar lies on the Kanwar.  He had illicit connections  with his father’s keep." He  admits that he inflicted the injuries found  on  Bikrana Singh  with a sword.  Before the Committing  Magistrate,  he did  not impeach this confession in any manner when  he  was examined  under section 342.  But in the Sessions  Court  he went back on it as regards every material detail almost, and stated  that it was entirely dictated to the  Magistrate  by two  police  Sub-Inspectors,  and  that  be  was  a  passive listener  to what they said.  He signed the document  out,of fear as the police had beaten him. 553 Shibbi, who on the fatal night was sleeping at some distance on the same terrace with Bikram Singh and Kalawati, woke  up on hearing a slashy noise, and found Ranjit Singh pass  near her bed and going down the ladder at the back of the  house. She raised shouts, and the servants who were sleeping in the courtyard  downstairs came up.  Kalawati was  standing  near the  steps  of an adjoining room.  When she  told  her  that Ranjit  Singh was running away Kalawati denied that  it  was Ranjit  Singh,  and stated that some dacoits  had  come  and robbed  her of her ornaments.  Her evidence was accepted  by the courts below, and there is a ring of truth about it.  If she  was a false witness, there was nothing to  prevent  her from saying that she saw Ranjit Singh attacking Bikram Singh with  a  sword.  But she tells us that she did not  see  the commission  of the murder, and saw only the back  of  Ranjit Singh  when he was hurrying down at a distance of a yard  or so  from her bed.  She could not identify the weapon in  his hand,  except to the extent of stating that he  was  holding something shining.  It is true that she did not mention  the name  of  Ranjit  Singh  at any time  earlier  than  in  the Committing Magistrate’s court, but this was because Kalawati had scolded her and asked her to keep quiet.  The suggestion that  her husband, Nathu, was probably responsible  for  the murder,  as  his  hands were  admittedly  bloodstained  when people  had gathered there, is unlikely.  He had  no  motive whatever to kill his master.  It might well be that when  he came up along with the servants and the crowd had  gathered, he  came into touch with the body in ascertaining  what  had

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happened or for giving water to the injured man in his  last gasp,  about  which there is some  evidence.   Kalawati  had given  the police a story of an attack by dacoits, and  till the   investigation  advanced,  it  is  only  natural   that suspicion  should  have fastened itself on  several  people. Laik Ram, a shopkeeper, who carries on his business opposite the  place of occurrence, who was examined as P.W. 23,  told the police that he suspected many sets of people 554 -namely,Shibbiand  Nathu,  Kalawati, a Sikh servant  of  the deceased, Balbir Singh, the brother of the deceased himself, and  the driver, who was formerly a Sub-Inspector,  and  two Sikhs  who  were seen in the jungle at  8  p.m.the  previous night. Apart from the confessions, there are definite circumstances which indicate beyond reasonable  doubt the guilt of  Ranjit Singh.   He  is a resident of Bashdera, but  his  sword  and scabbard were found near the place of occurrence, and it was he  who  recovered  the  sword  from  a  bush.   His   kacha (underwear)  remained concealed under a stone in  a  channel near  the place of occurrence.  Kalawati herself  stated  in her  confession that the kachha seemed to belong  to  Ranjit Singh,  as she knew he had purchased the cloth, and  it  was sewn on her own sewing machine and in her presence at  Mani- majra. More important is the discovery of the ornaments of Kalawati on  29th  July, ’1951, in the presence of Ranjit  Singh  and with his assistance.  They were buried underneath the  earth in  a room of his house in Bashdera.  It was urged  that  as the  room was an open one with no doors and no  roof,it  was probable  they were planted there.  According to  Kalawati’s confession,  she  had left them at Manimajra, and  she  says that  Baldev  Singh, the manager, had the  keys,  suggesting thereby  that  he might have handed over the jewels  to  the police  for  implantation.  Ranjit tells us that as  he  was being  taken to Bishanpura in a jeep, Baldev handed them  to the Sub-Inspector, Prithiram.  We are not prepared to differ from  the Judicial Commissioner on this point.   Baldev  was not  asked a single question in cross-examination about  his enmity  with  Kalawati and there was no  suggestion  why  he should have colluded with the police in the manner  alleged. The Sub-Inspector was not asked either about Ranjit  Singh’s allegation.  Much argument was addressed to the effect  that it  was  not  at all likely that Ranjit  Singh  would  have, buried  the ornaments in his own house and in an open  room, and that if he 555 wanted  to  conceal  traces  of the  crime,  he  would  have concealed them elsewhere.  The ornaments had to be  returned in  all  probability, and he might have thought  that  their careful preservation was his duty.  Had he concealed them in a locked room or box, it would have been much more  damaging to  him  if  they were discovered by the  police  who  would inevitably search his house.  It was not till the evening of the 27th that Kalawati made a confessions to the  police,and there  was  hardly  any time for them to take  hold  of  the ornaments from Manimajra, proceed to Basdhera, implant  them in the house of Ranjit Singh, return to Bishanpura, and take Ranjit  to his house on the 29th so that he could  show  the place  of concealment.  We are not prepared to  differ  from the   learned  Judicial  Commissioner,  who   rejected   the criticisms  of  the Sessions Judge about this  recovery  and accepted the prosecution story as true. As regards Kalawati the case is suspicious, no doubt.  It is possible  that  she, aided and abetted Ranjit Singh  in  the

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criminal deed.  But we think it is possible also that though she  was aware of the intentions of Ranjit  Singh  expressed from  time to time for the sake of protecting her from  ill- treatment and cruelty at the hands of her husband, she might not  have believed that he was going to put his threat  into actual  execution.  As pointed out already in more than  one place, each of the accused charges the other with the active formulation  of  the scheme to get rid  of  an  inconvenient obstacle  and  a  cruel  brute.   There  is  one  defect  in Kalawati’s  confession  which  might  be  noticed  here.   A careful  scrutiny  of it leads to the  conclusion  that  the final  hatching of the plot was on the afternoon of the  8th July, and that the entrustment of the ornaments into  Ranjit Singh’s  hands  was on the morning of the 9th.  This  is  in apparent  conflict with the diary of Bikram Singh marked  P. W.  38/3,  where there is this entry under the date  of  8th July : "Ranjit Singh gone to Simla for his personal work  to enquire  about  his  application.   Then  he  will   proceed Manimaira" If this is correct, the story of 72 556 the  plot  on  the 8th and the entrustment  on  the  9th  is somewhat  damaged, unless. it was possible for Ranjit  Singh to  go  to Simla on the afternoon of the 8th and  return  to Bishanpura  on  the  morning of the 9th,  on  which  aspect, however, there is no evidence one way or the other.  We have to  assume that the 8th of July was the date of  the  secret talk  between Kalawati and Ranjit Singh from the ’fact  that Balbir  Singh (P.  W. 1) says that he left  Bishanpura  for- Manimajra with the children on the 7th of July, and she says that the arrangement was on the day after the children left. There may be some mistake about the dates. Apart  from  this infirmative, circumstance,  there  is  yet another,   which  renders  it  unsafe  to  take   Kalawati’s confession  at its face value.  She was prepared to  make  a confession  on the 27th evening, and she was actually  taken to  the  Magistrate.   Not only was she  prepared,  but  she insisted  on making it, and there was no  particular  reason why  the  recording  was postponed to  the  next  day.   She alleges  that the SubInspector asked for time  stating  that her  condition was bad, and she should be given 12 hours  to think over it.  The confession contains minute details which would  not  normally find a place in such a  document.   For instance,, she says : We had become so close that I ban claim to have seen all his clothes,  because he used to keep his boxes usually with  me and  his room was also next to mine.  He may not  have  seen all my clothes, but those that I wore must have been seen by him.  Normally he would have seen only the jewellers which I wore.  He had not known of my jewellery box." The  conversation between Kalawati and Ranjit Singh  in  the presence of a maid-servant near the well where she had  gone to  wash  her  clothes  is  rather  incredible.   For  these reasons, we hesitate to act upon the confession of  Kalawati and  find her guilty of aiding and abetting the  offence  of murder. But  there  can  scarcely be any doubt that  she  must  have witnessed the murder of her husband lying next 557 to  her  on a charpai.  Shibbi who was at a distance  of  18 feet  was roused by the sound of a .;word attack.   Kalawati must  have  woke up also at least during the course  of  the assault if not at its commencement, several injuries  having been   inflicted  in  succession.   When  Shibbi  woke   up, Kalawati’s bed was empty, and she wag found in a room nearby

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and  not  at the place of occurrence.  She  trotted  out  an elaborate  story  of dacoity, which cannot  be  accepted  as true.  Even if in terror she ran away from her bed and stood at  a .distance, she is almost sure to have, known  who  was the  offender, unless lie bad his face muffled.   The  first version  she  gave  to the police  head  constable  when  he appeared  on the scene immediately after the occurrence  is, we  think,  false, and we are of opinion that  she  knew  or believed  it to be false.  The border line between  abetment of  the offence and giving false information to  screen  the offender  is rather thin in her case, but it is  prudent  to err  oil  the  safe side, and hold her  guilty  only  of  an offence under section 20-1, Indian Penal Code as the learned Sessions Judge did. It was urged for her by Mr. Mathur that as she was acquitted of  this offence by the Judicial Commissioner, and as  there has been no appeal by the Government against the  acquittal, she cannot now be convicted of the same by this Court.  This argument  proceeds  on  a  fallacy.   Section  201  is   not restricted  to the case of a person who screens  the  actual offender  it can be applied even to a person guilty  of  the main  offence, though as a matter of practice a Court  -will not  convict  a person both of the main  offence  and  under section  201.  The Judicial Commissioner acquitted  Kalawati of the offence under section 201 for which she was convicted by the Sessions Judge, only because he thought that the main offence  itself,  namely, murder, was brought home  to  her. But  if we think for the reasons given above that  it  would not  be  safe  to  convict her  of  the  main  offence,  the acquittal  is  no legal impediment to her  conviction  under section 201.  It was held by the Privy Council 558 in Begu v. King-Emperor(1) that in a charge of murder  under section 302 a conviction under section 201 without a further charge being made was warranted by the provisions of section 237,   Criminal  Procedure  Code.   If  Kalawati  had   been acquitted  of an offence under section 201 independently  of the  charge  of  murder against her, it would  have  been  a different  matter.   But as her acquittal is  so  intimately related  to the charge of the main offence, and as  it  took place  only  for  the reason that she  was  held  guilty  of murder, there is no bar to the restoration of the conviction under section 201. The  result is that Ranjit Singh’s Appeal No. 74 of 1952  is dismissed,  but we substitute for the sentence of death  the sentence  of transportation for life, having regard  to  the time  that  has  now elapsed since the  occurrence  and  the probable  motive  of  prevention of cruelty  to  a  helpless woman.  Kalawati’s Appeal No. 73 of 1952 is allowed, and her conviction and sentence under section 302 discharged, but we convict  her of am offence under section 201,  Indian  Penal Code,   and   sentence   her  to   three   years’   rigorous imprisonment. Appeal No. 73 allowed. Appeal No. 74 dismissed.  Sentence reduced. Agent for the appellant in.  Appeal No. 73 B. R. Anand. Agent for the respondent: G. H. Rajadhyaksha. (1) (1923) 52 1. A. 191. 559