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SUPREME COURT OF INDIA
19th January 1953
M. PATANJALI SASTRI, CJI.,, B.K. MUKHERJEA, CHANDRASEKHARA AIYAR, BOSE AND GHULAM HASAN, JJ.
Smt. Kalawati and another, Appellants
Versus
The State of H.P.
Criminal Appeals Nos. 73 and 74 of 1952,
Advocates appeared
Shri Tara Chand Mathur, Advocate instructed by Shri B. R. Anand, Agent, (in No. 73 of 1952) and Shri Bawa Shiv Charan Singh, Advocate amicus curiae, (in No. 74 of 1952) - for Appellants; Shri G. C. Mathur, Advocate, instructed by Shri G. H. Rajadhyaksha, Agent - for the State (in both the Appeals).
The accused was charged under Ss. 114, 302 Indian Penal Code, with abetment of murder. She was acquitted by the Sessions Judge of this charge and convicted under S. 201 of the 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 of the Code and convicted the accused under Ss. 114 and 302.
Held: "But there can scarcely be any doubt that she must have witnessed the murder of her husband lying next to her on a charpal Shibbi who was at a distance of 18 feet was roused by the sound of a; sword 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, Kalawatis bed was empty, and she was found in a room nearby and not at the place of occurtence. 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 he had 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 on the safe side, and hold her guilty only of an offence under S.201, 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 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 01 the main offence and under S. 201. The Judicial Commissioner acquitted Kllolawati of the offence under S. 201 for which she was convicted by the S~8ljlioJis Judge, only because he thought that the main offence itself namely, murder, was brought home to her. But if we think for the reason 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 S. 201 the result is that Ranjit Singhs 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." (per Ohandrasekhara Aiyer J.) - Article 20 (2)-"Prosecuted"-Meaning of -Appeal against acquittal-Continuation of prosecution.
Held: If there is no punishment for an offence as a result of the prosecution, sub-clause (2) of Art. 201 has no application. An appeal against an acquittal wherever such is provided by the procedure is in substance a continuation of the prosecution.
[Kalavati and Another v. State of Himachal Pradesh, (1953) S.C.R. 546: A.I.R. 1953 S.C. 131: (1953) S.C.J. 144.]
(455) Article 20 (3)-Confession made under S. 164, Criminal Procedure Code-Applicability of the Article.
Held: Article 20 (3)2 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 be taken into consideration against him. This deals with its probative value and has nothing to do with any repugnancy to the Constitution. - Article 20 (3)-Confession made under S. 164, Criminal Procedure Code-Applicability of the Article.
Held: Article 20 (3)2 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 be taken into consideration against him. This deals with its probative value and has nothing to do with any repugnancy to the Constitution. - Article 134 (I) (c)-Reasons for certificate of fitness - Criminal Procedure Code-(1898), S. 376.
Held: The reason given for certifying the case as a fit one for appeal under Art. 134 (1) (c) is not sound. If in any 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 adequate ground for converting the Supreme Court into an ordinary court of appeal and confirmation in such matters. - Section 376-Reasons for certificate of fitness-Constitution of India, Art. 134 (1) (c). -
Judgement
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. Manirnajra in Ambala District was his place of residence on the plaints. 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.
2. Kanwar Bikram Singh was murdered during the early morning hours of 16-7-1951 as he lay asleep on the roof of his haveli or mansion at Bishaupura. 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 prosecution 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 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.
3. Ranjit Singh was charged with murder under S. 302, Penal Code, and Kalawati was charged under Ss. l14 and 302, Penal Code, with abetment of murder, which was committed in consequence. The Sessions Judge of Mahsu and Sirmur found Ranjit Singh guilty of the offence and sentenced him to the extreme penalty of the law. He acquitted Kalawati of the offence of abetment under S. 302 read with S. l14, but found her guilty under S. 201, 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 rigorrous imprisonment.
4. 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 S. 201. At the same time, he allowed the state appeal against her and convicted her of an offence under S. 302 read with S. l14, Penal Code, and sentenced her to transportation for life. Ranjit Singh s appeal was dismissed.
5. An application was made to the Judicial Commissioner under Art. 132(1) of the Constitution for a certificate that the case involved substantial questions 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 Art. 134(1)(c). He thought that as the confirmation of sentence of death as a matter of practice prevailing in the High Court 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.
6. We feel bound to state that the reason he has given for certifying the case as a fit one for appeal under Art. 134 (1) (c) is not sound. If in any 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 as well.
7. 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 S. 164, Criminal P. C., but they retracted them in the Committing
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