Kan Singh, J.
1. This is an appeal by one Umrao and has been placed before me on a difference of opinion between the Judges hearing the appeal in Division Bench.
2. Umrao was put on trial in the court of the Additional Sessions Judge, Alwar on two counts; one under Section 302 Indian Penal Code and the other under Section 201 Indian Penal Code. The learned Additional Ssssions Judge found Umrao guilty under Section 302 of the Indian Penal Code, but acquitted him of the other charge observing that an act of concealing the dead body of the deceased was not screening the offender as the accused himself was the offender, The learned trial Judge relied on State v. Mohanlal AIR 1958 Raj 388 for his conclusion that a murderer by removing a dead body from a place of murder to another place cannot be held to screem himself as the person to be screened must b? somebody else than the offender within the meaning of Section 201 Indian Penal Code The convict appealed and the appeal was heard by a Division Bench consisting of V.P. Tyagi and JP Jain JJ. While Tyagi J. held that the accused was responsible for causing the death of the deceased Gulla and had, therefore, been rightly convicted by the trial court for the offence of murder under Section 302 Indian Penal Code, Jain J. held that the evidencewas not of such a character as to exclude every hypothesis but the one proposed to be proved by the prosecution namely, that of the accused being the murderer of Gulla. As regards the count under Section 201 Indian Penal Code while Tyagi J. did not make any observation, Jain J. thought that in the circumstances the accused could be. held guilty for causing disappearance of the evidence of the crime of murder and he could be punished under Section 201 Indian Penal Code, but he felt that there was a difficulty in convicting him of that charge as he had been acquitted by the trial court and there had been no appeal against the accused's acquittal under Section 201 Indian Penal Code, in the result he was of the opinion that the appeal be allowed and the accused acquitted of the charge under Section 302 Indian Penal Code as well.
3. It is in these circumstances that the appeal has been placed before me under orders of Hon'ble the Chief Justice.
4. The prosecution case has been set out both by Tyagi J; and Jam J. in their respective opinions and I need not cover the same ground over again. Suffice it to say that the essence of the indictment against the accused was that on account of previous enmity between the deceased Gulla and the family of the accused Umrao the latter had caused Gulla's death with an axe on the morning of 24 7 68 in the jungle of Machi (Dist. Alwar) near Surajwala Nala. The deceased had left his village Machi for Behrot early in the morning to attend the hearing of me case. Umrao came to know of it and he followed Gulla and he attack d Gulla in the jungle of Machi with the axe and killed him on the spot. There was no eye witness in the case and the case depended on the circumstantial evidence consisting of: (1) the motive for the crime,(2) extra judicial confession said to have been made by the accused before fore P W.I Mannalal and P.W.7 Surja. These witnesses were further corroborated by P.W.2 Sheoram, P.W 3 Lila and P.W.4 Ram Kanwar, (3) the discovery of the dead body of Gulla from a well in pursuance of an information given by the accused Umrao to P.W 21 Shri Surat Singh, Investigation Officer, vide Ex.P./16. Recovery of the dead body was made by Shri Surat Singh from the well in presence of the motbirs P.W 14 Banshidhar and P.W.15 Atmaram, (4) discovery of the clothes of the deceased and 'he axe Article--1, alleged to be the weapon of offence and a blood stained 'Dhoti' Article 6, worn by accused Umrao when he was arrested.
5. In appeal it was argued on behalf of the convict, by his leraned Counsel that the circumstantial evidence had not been properly appreciated by the trial court. As regards the recovery of axe Article l and the 'Dhoti' of the accused it was argued that the blood on these articles being disintegrated by the time the articles came to be examined by the Serologist, it could not be said that they bore human blood and, therefore, the accused could nut be said to be connected with the crime on the basis of these two circumstances. As regards the 'Dhoti' of the deceased said to have been recovered at the instance of Umrao it was submitted that it did not connect the accused with the crime as it had not b.-en proved that the 'Dhoti' belonged to the deceased. Regarding the extra judicial confession it was contended that the statements of P.W. 1 Mannalal, P.W. 2 Sheoram, PW 4 Ram Kanwar and P.W.7 Surja were unreliable.
6. Tyagi J. came to the conclusion that the trial Judge had committed grave error in seeking corroboration from the statements of Lila and Ram Kanwar for the proof of the extra judicial confession of the accused. His conclusion was that the extra judicial confession had not been established TvagiJ. has, however, accepted the statement of P W. 2 Sheoram, PW. 3 Lila and P.W 4 Ram Kanwar in part for holding that these witnesses happened to see Umrao when they were on their way to Bansur while they happened to pass from near the Nala. According to these witnesses, Umrao had ome to them and on enquiry informed them that it was Gulla with whom abuses were exchanged by Umrao. His Lordship was impressed by the statement of P.W 2 Sheoram. In cross examination this witness had turned hostile to the prosecution. He stated, when confronted with his statement in committing court Ex.P/1, that there was exchange of abuses between him and Gulla. Relying on this admission of Umrao about the presence of Gulla at a place from where ultimately blood stained earth was seized by the Investigating Officer Tyagi J held that this incriminating circumstance was established against the accused Tyagi J. further held that the recovery of the dead body was made on the information furnished by the accused vide Ex P/15 For this he relied, by and large, on the statement of P.W. 21 Shri Surat Singh Investigating Officer. Tyagi J. further reached the conclusion that at the time of his arrest (he accused was putting on the 'Dhoti' Article 6 which bore the bloodstains which had been washed. He considered it as an important piece of evidence even though it had not been proved that the blood on the 'Dhoti' was human blood as by the time the articles reached the Serologist the blood has disintegrated. Tyagi J. further put weight on the fact that in his statement under Section 342 of the Code of Criminal Procedure the accused had denied the recovery of this 'Dhoti' and that was an additional circumstance against him Tyagi J further held that the axe Article 1 was recovered at the instance of the accused So ware the other articles like the 'Dhoti' and a pair of shoes belonging to the deceased recovered at the instance of the accused. One and a half 'Chapati' was found tied in the 'Dhoti'. According to the Chemical Analyst, the axe had stains of blood on it, but according to the Serologist, the origin of the blood could not be known as the blood was disintegrated. Tyagi J. further took into consideration the nature of the incised wound found on the dead body and observed that such injuries could be caused by the axe Article 1 Tyagi J. referred to Wasim Khan v. State of Uttar Pradesh AIR 1958 SC 400 in support of his conclusion that even though the article was not shown to have human blood on it, the circumstance of there being blood on the article could yet be taken into consideration against the accused. As regards the motive, he held that even the accused had admitted in his examination under Section 342 Criminal Procedure Code that there was enmity between the deceased Gulla and the accused. In the result, therefore, Tyagi, J. concluded the discussion in the following words:
In the instant case, I think that the prosecution has succeeded in proving the following circumstances:
(1) Enmity between the parties which provided a motive for the accused to commit the offence of murder.
(2) The presence of the accused at the site of the murder as admitted by the accused himself to Sheoram (P W. 2), Lila (P.W. 3) and Ram Kanwar (P.W. 4).
(3) Recovery of the blood-stained earth from the Nala at the instance of the accused which suggests the commission of offence at the Nala.
(4) The manner in which the dead body was concealed by the accused in well known as Kothiwala two miles away from the alleged spot of occurrence and the recovery thereof in pursuance of the information supplied by the accused.
(5) Concealmen of axe (Article l) by the accused near the alleged place of occurrence and the discovery of the same in pursuance of the information supplied by the accused. It was found to be bloodstained far which no explanation is coming forth from the side of the accused except a bare denial which cannot be accepted in view of the evidence of P.W. 21 Surat Singh and P.W.15 Atmaram.
(6) The recovery of a blood-stained Dhoti (Article 6) from the person of the accused for which no explanation except denial is given by the accused.
(7) The nature of the injuries sustained by the deceased which could be inflicted by a weapon like axe (Article 1).
The cumulative effect of these circumstances leave no room for doubt to infer that the accused was the author of the injuries sustained by the deceased and that the guilt of the accused under Section 302 Penal Code is, therefore, established beyond any realm of doubt.
7. Jain J dissented. He prefaced his discussion by referring to the principles regarding circumstantial evidence. He observed that the circumstantial evidence must be such as from which the inference of the guilt of the accused is irresistible and inescapable. The entire chain of circumstantial evidence must be conclusive as to give rise to fie only inference of the guilt of the accused and it must not be consistent with any hypothesis of his innocence and it is only when there is such an evidence on record that an accused can be convicted on the basis of the circumstantial evidence. He, referred to a recent case of the Supreme Court Kali Ram v. State of Himachal Pradesh : 1974CriLJ1 . Then he embarked on the discussion of the various pieces of evidence relied on by the learned trial Judge. Regarding the motive Jain J observed that there was not an iota of evidence to prove that there was enmity between the deceased and the accused. Referring to the statement of P W 13 Mauji Ram, Station House Officer, Sargur, he observed that all that the witnesses stated was about legislation of a case of theft against Bubal. Fakra and Deena on a report made by Gulla and he also deposed that he had put up a challan, but the witness did not state as to what happened in-that case or what were the actual allegations made by Gulla. Further a copy of Gulla's report had not been placed on record. He observed that the contents of the first information report cannot be assumed without legal proof of the same. Then he referred to the statement of the accused under Section 342 Criminal Procedure Cede. He observed that the accused had, no doubt, stated that the allegations against him were false and ht had been implicated on account of 'Ramjish', but the accused was not as-ked to explain what P.W.13 Mauji Ram had deposed, nor was any question put to him about litigation. The circumstances brought out against the accused regarding the motive could not thus be availed of by the prosecution. As regards the extra judicial confession he agreed with Tyagi J that the same has not been established. However, he dissented from the conclusion reached by Tyagi J. regarding the testimony of P.W 2Sheoram, P.W.3 Lila and P.W.4 Ram Kanwar for establishing the presence of the accused near the site of the occurrence. They subjected their statement to a close scrutiny and found that they were unnatural. When these witnesses heard the cries Sheoram shouted as to who was making the cries and then Umrao accused came there and on enquiry informed h m that it was he who was making the cues and accepting the explanation of the accused the witnesses proceeded ahead This was, according to Jain J. an unnatural conduct of the witnesses. Regarding PW.2 Sheoram, Jain J. observed that he was hostile right from the beginning and when he was confronted with the statement made by him in the committing court Ex.P/1 he admitted that Umrao had told him that then was a quarrel between him and Gulla and it was the cause of the noise. From this statement, according to Jain J, it could m t be spelt out that he had seen Gulla at that place and further even accepting his statement made in Ex.P/1 it was only the word of Umrao which disclosed that there was a quarrel between him and Gulla Lila P.W 3 deposed that the cry that he and others heard wa9 'Ram Re, Toba Re, Hay Re' and it was on hearing this cry that the witnesses shouted to find out as to what was the cause of the noise But when Umrao had come near them and after he had told them that there was exchange of abuses between him and Gulla, the witnesses merely advised him not to fight. This was most unnatural. This lordship observed that it should have aroused their suspicion and they should not have gone away by merely accepting what Umrao had told them Then there was some discrepancy about the distance between the witnesses and Umrao, one said it was 1000 paces, the other said 200 paces and third said 50paces. This lordship concluded the discussion Ly observing:
It was only the word of Umrao which informed them (witnesses) that he was exchanging abuses with Gulla. In my opinion this sort of testimony is of hear say character.
Thus, the prosecution had failed to prove, according to Jain J. that the deceased Gulla was with the accused on that morning; the testimony being of hear-say character. He further noticed that no attempt had been made by the prosecution to prove that Gulla left his house in the early morning of the 24th to go to Behror as alleged in the first information report. Trerefore, Jain J did not find it possible to assume the presence of Gulla near or about the village Machi. He how ever, agreed with Tyagi J in holding that the dead body of the deceased Guila was recovered from the Kothiwala ala well in the out-skirts of village Guta on the information supplied by the accused. His lordhip however, did not accept the recoveries of a pair of shoes, a piece of 'Dhoti' and some 'Rotees', as it was not established that they belonged to the deceased. Consequently, according to him, this recovery was of no help to the prosecution. Then as regards the recovery of axe Article l, Jain J. held that it would not be sufficient to connect the accused with the crime as it had not been established that the axe had human blood on it. The mere fact that the injuries could be inflicted by an axe on Gulla deceased would not, according to his lordship mean that the axe that was used was Article 1. This lordship pointed out that the doctor had even stated that a knife too could cause the injuries en the body of Gulla, As regards the recovery of 'Dhoti' Article 6,from the person of the accused he observed that he would not place reliance on the testimony of Surat Singh, as the prosecution did not care to prove the seizure of the 'Dhoti' from P.W.15 A ma Ram when he was in the wit-ness-box. Apart from this Jain J observed that the 'Dhoti' had not beenfound positive for human blood & therefore, the recovery was of no value as a piece of evidence. In the result, he came to the conclusion that there was evidence leading to the irresistible conclusion that the accused Umrao alone could have murdered Gulla.
8. The whole case is open before me and, therefore, I have heard leraned Counsel for the appellant and the learned Deputy Government Advocate en all the points arising for consideration in the appeal.
9. The motive for the crime is said to be previous ill-will between the deceased Gulla and the family of the accused P.W.13 Shri Mauji Ram stated that en 4 11-67 the deceased Gulla had made a report regarding atheft against Birbal, Fak ia ard Deera Gi'jais of Machi and he had rut up a challan against them. He further stated that Birbal was the father of Umrao.It cannot, therefore, be Raid that there was no evidence of previous ill-will. It is true, no direct question was put to the accused regarding this testimony of P W.13 Shri Mauji Ram, nevertheless the accused cid state that there was ill will between the deceased and the family of the accused though be added that this was the reason for his being falrely implicated for the murder of Gulla. It is desirable that the evidence to be considered against an accused is put. to him in his examination under Section 342 Criminal Procedure Code so that the accused may have an opportunity of explaining the same, but the mere fact that the attention of the accused was not-drawn to the particular piece of evidence will be of no consequence, unless it was likely to result in the mis-carriage of justice. In the circumstances of the case it cannot be said that the accused was misled, because his attention was not drawn to what Shri Mauji Ram stated as the accused had admitted the previous enmity with the deceased and his family. I, therefore, agree with Tyagi J. that the motive can be taken to have been established against the accused for the crime. Both the learned Judges are one in holding that the extra judicial confession alleged to have been made by the accused before P.W. 1 Mannalal and P W 7 Surja cannot be said to have been proved beyond ail manner of doubt. I have gone through the statements of these two witnesses and find myself in agreement with the learned Judges. As regards the presence of the accused near the scent of the occurrence whin P W 2 Sheoram, P.W3 Lila and P.W.4 Ram Kanwar happened to pass that. side. Tyagi J, had believed that fact rel ying on the testimony of these witnesses, whereas Jain J. has considered their testimony to be unreliable being against the common course of human conduct Tyagi J. was greatly influenced by what Sheoram, a hostile witness, had admitted in his cross-examination. In cross-examination when the witness was faced with his committing court statement Ex P/1 he admitted where stated that Umrao had told him that there was a quarrel between him and the deceased Gulla. The question is whether the statement Ex P/1. could be read as substantive evidence in the case. Learned Deputy Government Advocate admi's that this previous statement Ex P/l way not tendered in evidence in accordance With Section 288 Criminal Procedure Code. The witness Sheoram had turned hostile in the very beginning while under examination- in-chiet he did not state anything about Gulla and he trimmed his statement by saying that the accused had simply said that it was he who was crying. A previous statement could be made use of only to corroborate or contradict a witness. The previous statement in the committing court can, however, be used as substantive evidence, if it is brought on record in accordance with Section 288 Criminal Procedure Code. Bhagwan Singh v. State of Punjab : 1952CriLJ1131 is an authority on the point. Apart from this evidence of these three witnesses is not worthy of credence The outcry, according to Lila. was 'Ram Re, Toba Re, Hay Re' On hearing such an outcry it would be the natural human urge of a by-stander to find out what the cry was about. I am, therefore, in agreement with Jain J regarding the value of the testimony of these three witnenses.
10. The next piece of evidence is the discovery of the dead body in pursuance of the information given by the accused Umrao The main witness in the case is P W.21 Shri Suraj Singh, Investigation Officer. The information recorded by him in Ex.K/15 is to the following effect:
eSus xqYyk cekj ik;h dh yk'k dqvk dksfM;k fd tks xwnk ds b/kj es gS ds ikuh es xqYyk dh yk'k dh Nkrh ij iRFkj tsDM+k ls cka/k dj Mky j[kh gS tks lkFk pydj cjken djk nwaxk A
Then in pursuance of this information P W.21 proceeded to the well and the dead body which was not floating at the time was taken out of the well and when it was so taken out was found that a stone was tied over the dead body with a rope (vide Ex.P/2 at page 102 of the Paper Book),
11. Leraned Counsel tried to make two points: firstly, he submitted that when many persons were there at the time the accused is said to have given the information as recorded in Ex P/15, the Sub Inspector should have got the information attested by motbirs which was not done. In the second place, he argued, that it could very well happen that the Sub Inspector had already got the information about the existence of the dead body in the well and then having taken it out fabricated the information Ex.P/15 F- r recording the information to be given by an accused it is not neassary to have it attested though if persons were already there, as an act of prudence, the Sub Inspector should also get signatures of the motbirs on such a record of an information, but by and large, when an Investigating Officer interrogates an accused, outside persons would not be there to witness what the accused was telling the Investigating Officer. For the information one has to go, more or less, by the testimony of the Investigating Officer. Nothing has been suggested in cross-examination as to why Surat Singh would have fabricated this information, nor was there any suggestion in cross examination to this witness that he already knew that the dead body was lying in the well and thereafter he had brought this Ex P/15 into existence. I, therefore, do not find any disturbing factor regarding the discovery of the dead body at the instance of the accused. As regards the discovery of the clothes of the deceased and the axe Article l, it is sufficient to any that these articles were discovered from places accessible to one and sundry. Apart from this there is no evidence that Article l, the axe, belonged to the accused Apart from this the origin of the blood on Article l could not be known on account of the disintegration of the blood by the time it came to be examined by the serologist. Therefore, I am unable to agree with Tyagi j. that this recovery would connect the accused with the crime.
12. Lastly, I may deal with the circumstance of the recovery of the blood stained 'Dhoti' Article 6 from the person of the accused. The blood on the 'Dhoti' had been washed away. The origin of the blood could not be found out as it was disintegrated at the time of its examination by the Serologist. Tyagi J relied on wasim Khan's case AIR 1958 SC 400, but in my bumble view the case is distinguishable. In that case the accused had himself stated that he and the deceased were alone in the cart after the two other occupants had left the cart. Thereafter the deceased was never seen alive by any one. The appellant was found in possession of the deceased's goods and the appellant had made no efforts to trace the whereabouts of the deceased or lodge information of his disappearance from the bullock cart Besides this the accused was found in possession of a big blood stained knife though the stains were not shown to be of human blood. The circumstance of there being only blood as distinct from there being human blood on an article in a case of murder is undoubtedly a weak one when the origin of the blood is not established. I may with all due deference record my dissent to the opinion expressed by Jain J. that the testimony of PW 2 Sheoram, P W.3 Lila and P W 4 Ram Kanwar was in the nature of hearsay (vide observations at bottom of page-14 of the judgment). In Rattan v. Reginam (1971) 3 All AR 801, their Lordships of the Privy Council had occasion to point out as to what would be hear-say, in similar circumstances. In that case the accused was charged with the murder of his wife. Her death bad been caused by a shotgun The accused's plea was that the discharge from the gun was accidental and it occurred when he was cleaning his gun in the kitchen of his house. When the police reached the house two shotguns and a rifile with cleaning materials were found. The accused was unable to explain a to how the conform which the shot was fired had come to be loaded. He stated that he immediately telephoned for an ambulance and shortly the police telephoned him, on which he had asked then to come immediately It was-established the at 1.09 p m. on the day in question the appellant's father had made a trunk cal1 to the appellant which lasted 2 9 minutes The conversation was perfectly normal and his father heard the voice of the deceased woman in the background making comments of a normal character At about 1.15 p m. a telephone call was made from the house; the telephonist at the local exchange who answered it, stated in evidence at the trial): I plugged into a number by Schuca 1494 (the appellant's number) and....I opened the speak key and I said to the person 'Number please' and the reply I got was 'Get me the police please'. I kept the speak key open as the person was in an hysterical state and I connected the call to Schuca 41 which is the police station. As I was connecting the call the person gave her address as 59 Mitchell Street.' The telephonist added that, as she was connecting 'he call to the police station, the caller hung up and she (the witness) then told the police that they were wanted at 59 Mitchell Street. At about 1.20 p m the police officer telephoned the appellant's house from the local police station and spoke to him. By this time the deceased had been shot. The shooting from which she had died almost immediately, had, there- fore taken place between 1.12 p.m. and 1.20 p.m. At the trial the prosecution sought to introduce the telephonist's evidence in order to rebut the appellant's account of what had occurred immediately after the shooting. Objection was taken to this evidence on the ground that it was hearse, and that it did not come within any of the recognised exceptions to the rule against hearsay, but the objection was overruled. Their Lordships of the Privy Council observed:
In determining whether evidence should be admitted of statements made at part of the 'res gestae' as an exception to the rule against hearsay evidence, the test to be applied should not be the uncertain one whether the making of the statement was in some sense part of the event or transaction; the proper test is whether the statement was be clearly made in circumstances of spontaneity and involvement in the event that the possibility of concocuon or fabrication by the maker of the statement can be disregarded; conversely, if the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able 10 to construct or adopt his account, it should be excluded; and the same is in principle true of statements made before the event
13. In that case their Lordships pointed out that the evidence of the telephonist was not a hearsay evidence and was admissible as a relevant fact i.e. as evidence that contrary to the appellant's account a call was made only some three to five minutes before the fatal shooting by a woman who could only have been the deceased; it was also relevant as possibly showing that the deceased woman was at the time in a state of emotion or fear.
14. Here, the witnesses when they reached the scene, if they were to be believed, heard the outcries & they saw the accused who blurted out what was happening or what had happened. This could not be hearsay in any accepted sense of the term. Be that as it may, the evidence of the three wit- nesses is otherwise unreliable as it does not accord with natural human conduct and, therefore, I am in agreement with Jain J. that it cannot he said to be established that the accused was seen near the site of the incident or that he had admitted that the man crying was deceased Gulla.
15. The up-shot of the discussion is : (1) that the motive for the crime is there, (2) the extra-judicial confession of the accused is not proved beyond all manner of doubt, (3) the presence of the accused near the site of the incident is not established, (4) the evidence regarding the discovery of the clothes of the accused and the axe Article 1 is of no value, (5) the recovery of a blood stained 'Dhoti' Article 6 from the person of the accused cannot carry the case against the accused very far, though I am unable to hold that this evidence is altogether valueless. I hold, in agreement with both Tyagi and Jain JJ, that the discovery of the corpse was made, in pursuance of the information Ex P/15 given by the accused, from the Kothiwala well. The nature of the information shows that the accused was concerned with the putting of the dead body into the well. However, I am unable to agree with Tyagi J. that by the above evidence the case of murder can be said to have been brought home to the accused beyond all manner of doubt, nevertheless it is established that the accused caused the evidence of murder to disappear with a view to screening the offender, Tyagi J did not make any observation regarding the offence under Section 201 Indian Penal Code obviously for the reason that he was upholding the conviction of the accused for the offence of murder, itself Jain J found difficulty in convicting the accused for the offence under Section 201 Indian Penal Code, as the learned trial Judge had recorded acquittal on that charge. To my mind, Kalawati v. Himachal Pradesh State : 1953CriLJ668 affords an answer to the problem. Accused Kalawati was the wife of Kanwar Bikram Singh Kanwer Bikram Singh was murdered during theory miming hours of 16.7 51, as he lay asleep on the roof of his mansion at Bishanoura. The case of the prosecution was that one Ranjit Singh, the other accused, who was a distent cousin of the deceased committed the murder of Bikram Singh with the help and connivance of Kalawati The two accused had developt d an illicit intimacy with each other 3rd the murder was committed to get rid of the husband of Kalawati Ranjit Singh was charged with murder under Section 302 Penal Code and Kalawati was charged under Section 114 and 302 Penal Code. The Sessions Judge found Ranjit Singh guilty of the offence and serterced him to death. He however, acquitted Kalswau of the offence of the abetment under Section 302 read with Section 114 but found her guilty under Section 201 Penal Cede, as are tried to screen Ranjit Singh. Both the convicts preferred appeals to the court of the Judicial Comissioner, Himachal Pradesh and the State preferred an appeal against the acquitted of Kalawati on the charge of murder. The Judicial Commissioner allowed Kalawati's appeal and set aside her conviction and sentence under Section 201 IPC. At the same time he allowed the State appeal against her and convicted her of an offence under Section 302 read with Section 114 Penal Code and sentenced to transpiration for life. Ranjit Singh's appeal was dismissed Kalawati then appealed to the Supreme Court. Their Lordships of the Supreme Court came to the conclusion that the charge of the abetment of murder was not established against Kalawati. but they were of the view that 6he was guilty of an offence under Section 201 Penal Code. The question then arose whether she could be convicted under Section 201 Indian Penal Code when the Judicial Commissioner had acquitted her of that charge and there was no appeal against the acquittal. It is in these circumstances that their Lordships held as follows:
It was urged for her by Mr. Mithur 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 off one and under Section 201. The Judicial Commissioner acquitted Kalawati of the offence under Section 201 for which she was convicted by the Sessions Judge 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 sate 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 in Bagu v. Emperor 52 Ind. App. 191 (P.C.) 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 P.C. If Kalawati had been acquitted of an offence under Section 201 in depend only of the charge of the 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 he conviction under Section 201
This case is on all fours, if I may say so, with the situation presented in this appeal The charge for the offence under Section 201 Indian Penal Code is undoubtedly connected with the charge of murder. Therefore, there could be no legal bar to the alteration of the conviction on the charge of murder to that under Section 201 Indian Penal Code. Apart from this, the above passage further shows that their Lordships were of the view that 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 Indian Penal Code. Therefore, the learned Sessions Judge was not strictly right in thinking that the main offender could not be held responsible for the offence under Section 201 Indian Penal Code though he may not be convicted for that as a matter of practice I am, therefore, in agreement with Jain J. to the extent that the charge under Section 302 is not made out against the accused, but I am of the view that the conviction should be altered to that under Section 201 Indian Penal Code.
16. The question that remains is that of passing a proper sentence. The accused is in jail since 24 6 70 for undergoing the sentence of life imprisonment, when he was convicted by the learned Additional Sessions Judge under Section 302 Indian Penal Code. Thus, the accused has already suffered more than 4 years imprisonment. Apart from this he was in custody during the trial and the trial had taken almost 2 years It will, therefore, be just and proper to reduce the sentence of imprisonment to that already suffered by the accused appellant.
17. Accordingly, I allow this appeal in part. The conviction of the accused is altered from Section 302 Indian Penal Code to that under Section 201 Indian Penal Code and the sentence of imprisonment is reduced to that already undergone by the accused appellant. He shall be released forthwith, if not required in any other case.