http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

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