Criminal Appeal No 53 of 1951
Appeal by special leave from the Judgment and Order dated the 8th June 1951 of the  High Court of Judica ture at Nagpur Hemeon and Rao JJ in Criminal Appeal No 297 of 1950 arising out of the Judgment and Order dated the 11 th September 1950 of the Court of the Additional Sessions Judge of Bhandara in Sessions Trial No 25 of 1950
Bakshi Tek Chand Gopal Singh with him for the appellant
section K Kapoor for the respondent
March 4
The Judgment of the Court was delivered by BOSE J
The appellant Kashmira Singh has been convicted of the murder of one Ramesh a small boy aged five and has been sentenced to death
He was granted special leave to appeal
Three other persons were tried along with him
They were his brother Gurudayal singh his nephew Pritipalsingh son of Gurudayal a boy of eleven and one Gurubachan singh
Gurudayal and pritipal have been acquitted
Guruba chansingh confessed and was convicted
He was also sentenced to death
He has not appealed here
The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law
The prosecution case is this
The deceased Ramesh was the son of PW 48 LP Tiwari who was the Food Officer at Gondia at the relevant date
The appellant Kashmira Singh was an Assistant Food Procurement Inspector there
On the 1st of July 1949 Tiwari found the appellant and Harbilas PW 31 getting rice polished at a certain rice mill
At that date the polishing of rice was prohibited by a State law
Tiwari accordingly reported the matter to the Deputy Commissioner of Bhandara
He suspended the 528 appellant and later his services were terminated by an order of the State Government with effect from the 7th of July
The orders were communicated on the 17th of November
This embittered the appellant who on at least two occasions was heard to express a determination to be revenged
In pursuance of this determination he got into touch with the confessing accused Gurubachan singh and enlisted his services for murdering the boy Ramesh
On the 26th of December 1949 festivities and religious ceremonies were in progress all day in the Sikh Gurudwara at Gondia
The boy Ramesh was there in the morning and from there was enticed to the house of the appellant s brother Gurudayalsingh and was done to death in a shockingly revolt ing fashion by the appellant with the active assistance of Gurubachansingh in the middle of the day at about 12 or 12 30
The body was then tied up in a gunny bag and rolled up in a roll of bedding and allowed to lie in Gurudayal s house till about 7 pm
At 7 pm the body wrapped as above was carried by Gurubachan on his head to a chowkidar s hut near the Sikh Gurudwara
The appellant accompanied him
The map Exhibit P 18A shows that the distance along the route indicated was about half a mile to three quarters of a mile
It was left there till about midnight
Shortly before midnight the appellant and Gurubachan engaged the services of a rickshaw coolie Shambhu alias Sannatrao PW 14
They took him to the chowkidar s hut recovered the bundle of bedding and went in the rickshaw to a well which appears from the map Exhibit 1  18A to be about half a mile distant
There the body was thrown into the well hat in brief is the prosecution ease
Gurubachan s confession has played an important part in implicating the appellant and the question at once arises how far and in what way the confession of an accused person can be used against a co accused 
It is evident that it is not evidence in the ordinary 529 sense of the term because as the Privy Council say in Bhuboni Sahu vs The King1 It does not indeed come within the definition of evidence  contained in section 3 of the Evidence Act
 It is not required to be given on oath nor in the presence of the accused and it cannot be tested by crossexamination
 Their Lordships also point out that it is obviously evidence of a very weak type 
It is a much weaker type of evidence than the evidence of an approv er which is not subject to any of those infirmities
 They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in support of other evidence
In view of these remarks it would be pointless to cover the same ground but we feet it is necessary to expound this further as misapprehension still exists
The question is in what way can it be used in support of other evidence  Can it be used to fill in miss ing gaps  Can it be used to corroborate an accomplice or as in the present case a witness who though not an accom plice is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated  In our opinion the matter was put succinctly by Sir Lawrence Jenkins in Emperor vs Lalit Mohan Chuckerbutty2 where he said that such a confession can only be used to lend assurance to other evidence against a co accused or to put it in another way as Reilly J did in In re Periyas wami Moopan3 the provision goes no further than this where there is evidence against the co accused sufficient if believed to support his conviction then the kind of confession de scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence 1 1949 76 IA 147 at 155
3 Mad
75 at 77
2 CAl
559 at 588
530 Translating these observations into concrete terms they come to
The proper way to approach a case of this kind is first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed a conviction could safely be based on it
If it is capable of belief independently of the confession then of course it is not necessary to call the confession in aid
But cases may arise where the judge is not prepared to act on the other evidence as it stands even though if believed it would be sufficient to sustain a conviction
In such an event the judge may call in aid the confession and use it to lend assurance to the other evi dence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept
Then as regards its use in the corroboration of accom plices and approvers
A co accused who confesses is natu rally an accomplice and the danger of using the testimony of one accomplice t0 corroborate another has repeatedly been pointed out
The danger is in no way lessened when the evidence is not on oath and cannot be tested by cross examination
Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the judge as having no greater probative value
But all these are only rules of prudence
So far as the law is concerned a conviction can be based on the uncorroborat ed testimony of an accomplice provided the judge has the rule of caution which experience dictates in mind and gives reasons why he thinks it would be safe in a given case to disregard it
Two of us bad occasion to examine this recently in Rameshwar vs The State of Rajasthan1
It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed
As the Privy Council observe in Bhuboni Sahu vs The King2 The tendency to include the innocent with the guilty is peculiarly prevalent in India as judges have 1  2 1949 76 I A147 at 157
531 noted on innumerable occasions and it is very difficult for the court to guard against the danger 
The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused
 Turning now to the facts of the present case
The evidence on which the prosecution relies apart from the confession is this  1 Previous association between Gurubachan and the appellant
The only evidence about this is PW 23 Upasrao a water carrier
He speaks of three meetings and is curiously definite about days of the week and times though he did not know on what day of the week diwali fell nor could he give the names of anybody else he met on those occasions
Howev er for what it is worth
he says he saw them talking 1 three weeks before the murder v on the 24th and 3 on the 25th
They spoke in Punjabi which he does not under stand but on the second occasion he heard them mention the name of Ramesh
Two of these meetings namely the first and the third tally with two of the only three meetings de scribed in the confession
It is proved that the witness did not disclose these facts to the police but despite that the Sessions Judge believed him because of the confession
The High Court appear to have disbelieved him for in paragraph 37 of the judgment the learned judges point out that he is contradicted by his own statement to the police
There his story was that the three brothers met and not Gurubachan and the appellant
This evidence can therefore be disregarded and consequently the confession cannot be used to prove previous association
It was argued however that if it is proved that the appellant helped in disposing of the body after the murder then their previous association can be inferred because one would hardly seek the assistance of a stranger for a task like that
That has some force but the weakness of that in this case lies on the fact that 532 according to the prosecution case as disclosed in the confession Gurubachan was a stranger to Gondia
i He had come there only six weeks before the murder and did not meet the appellant till three weeks later and then only casually
Their second meeting equally casual was on the 21st that is five days before the murder and on that date the appel lant is said to have disclosed his intention to this strang er whom he had only met once before
It is true this strang er knew the appellant s brother but how 
The brother was a travelling ticket inspector on the railway and used to allow Gurubachan to travel without a ticket presumably because he was also a Sikh
If probabilities are to be called in aid the story disclosed in the confession has distinct weakness es particularly as Gurubachan s assistance was wholly unnecessary
If the confession is true there was a well thought out plot timed with the precision almost of a minor military operation
At a given moment the nephew Pritipal was to decoy the deceased away from his companions and isolate him
Then after leading him several hundred yards down the road hand him over to Gurubachan
Gurubachan was to take him down to point No 6 on the map well over half a mile from the spot where he took over from Pritipal
In the meanwhile the appellant was to walk another half mile at right angles to Gurubachan s course to the point No 15 to hire a cycle
From there he was to cycle close on a mile to point No 6 and meet Gurubachan and the boy
As the learned High Court Judges who made a spot inspection point out the route would lie through a crowded bazaar locality
From point No 6 Gurubachan was to hand over the child to the appellant who was to cycle with him close on a mile to his brother Gurudayal s quarters point No 16 through this same crowded bazaar
In the meanwhile Gurubachan was to walk back to his house No 17 and pick up a chisel and a piece of wire for the purpose of the murder and rejoin the appellant at Gurudayal s house
As will be seen the timing would have to be within fairly close tolerances
Then at the murder itself what 533 assistance did Gurubachan give 
Nothing which a grown man could not easily have accomplished him self on a small helpless victim of five
The appellant could have accomplished all this as easily without the assistance of Gurubachan and equally Gurubachan a mere hired assassin could have done it all himself without the appellant running the risk of drawing pointed attention to himself as having been last seen in the company of the boy
We hold that previous association of a type which would induce two persons to associate together for the purposes of a murder is not established
2 That the deceased Ramesh was in the Gurudwara about 9 30 or 10 in the morning of the 26th
This is not disputed
3 That Kashmira Singh who had gone to the Gurudwara in the morning was absent between 11 AM and 12 45 PM
That the appellant was at the Gurudwara in the morning is not disputed in fact his case is that he was there the entire day
The evidence to prove that he left it between these hours consists of three persons PW 30 Atmaram PW 35 Tilakchand and PW 5 Bisan
The prosecution story is that the appellant left the Gurudwara about 11 AM to go to the shop of PW 5 Bisan to hire a cycle
He was first seen by PW 35 Tilakehand a wood stall keeper at point No 13 just near the Gurudwara
The witness places the time at about 10 30 or 11 AM
He says he saw him coming from the direction of the railway station and going past his stall
Fifteen minutes later he went past his stall again in the opposite direction that is to say towards the railway station which lies on his way to the cycle shop
Next comes PW 30 Atmaram He keeps a bookstall on the broad gauge platform of the Gondia Railway Station
He says he saw the appellant coming from the bridge and going to wards the Railway Police 69 534 Station of all places in the world
He came near enough the witness to wish him good day
He places the time at about 10 30 or 11
The only comment we make on this witness is that he says he used to see the appellant at the station almost every day and they used to greet each other
The possibility that the witness is mixing up this day with one of the other days cannot be excluded
It is certainly a matter for comment that a would be murderer on his way to hire a cycle for the purpose and keep an assignment with his accomplice and victim should go out of his way and either go on to or very near the railway platform to greet a person he knows there and then walk away towards the police station of all places where the danger of recognition would be strong
Next there is PW 5 Bisan the man in charge of the cycle shop
He speaks from his register and says the appel lant hired a cycle from him on that day at 11 20 AM and returned it at 12 45 PM
The Sessions Judge and the High Court lay great stress on this witness
But as against this is the evidence of Anupsingh Bedi DW 1 a respectable disinterested witness who is a resi dent of Nagpur
He says he saw the appellant at the Gurudwa ra at 11 and again about 11 45 AM The sessions Judge thought he was interested because he admits he reported a complaint he had received from Gurudayalsingh to the effect that the appellant was being harassed by the police and that they threatened to arrest ladies also to the Inspector General of Police and the Home Minister
He explained that as head of the Sikh community in that State he felt bound to pass on these complaints to the highest authorities
We are unable to regard this as disclosing interest
There is no suggestion that what he did was improper and we are of opinion he did nothing more than any man of responsibility in his position would have done
The High Court has not criticised him
The learned Judges merely say that he may be mistaken as to the time nor of course does he suggest that he is giving more than a mere estimate
All he 535 says is that It may have been about 11 45 AM by this time
 We do not think there is much in all this
Nobody except PW 5 Bisan pretends to be exact and when one is guessing at the time several days after the event there really is not much discrepancy between 11 20 and 11 45
Even if it was 11 45 there would still have been sufficient time to commit the murder
As two Courts have believed the evi dence on this point without calling in aid the confession we are not prepared to depart from our usual rule regarding concurrent findings of fact
We will therefore accept the position that the appellant was absent from the Gurudwara long enough to enable him to commit the murder
We will also take into consideration the fact that he made a false statement on this point when he said he was not away at all
4 Disposal of the body
The rest of the evidence relates to the disposal of the body and the only direct evidence connecting the appellant with this apart from the confession is that of Sannatrao PW 14 the rickshaw coolie
He does not bring the appellant into the picture till about midnight
Now this coolie is a very shaky witness
We cannot but note the remarkable series of coincidences which emerge from his testimony
First he is not a rickshaw coolie at all
He merely hap pened to hire a rickshaw that night and he told the police that this was the first time he had ever done that at night after
a day s work
Next he knew the appellant because he happened to be a chowkidar in the Food Office at Gondia at the same time that the appellant was there as a Food Inspec tor
But at the date of the incident neither was still in service so by a somewhat strange coincidence the appellant happens to hire for the first time this old co worker in the middle of the night who in his turn happened to hire also for the first time at night a rickshaw for which he had no licence
Next comes a still stranger coincidence
He is taken to within a few paces of his own house and the body 536 is dumped in his presence into a welt a stone s throw from where he lives
Gurubachan tells us that earlier in the day about 7 PM he Gurubachan had carried unaided the bedding on his head for a distance which we know was hail to three quarters of a mile namely from Gurudayal s house to the chowkidar s hut
Despite this the two are said to have engaged this rickshaw coolie to carry it just hall a mile a shorter distance to the well and there they threw it in in the man s presence and none of this was disclosed to the police till a month later namely the 17th of January though the witness was present when the body was recovered and though he was questioned on three previous occasions
We do not doubt that a rickshaw was used because rick shaw tracks were discovered by the well long before anybody had suggested that a rickshaw had been used
But we find it difficult to resist the inference that this witness was an accomplice so far as the disposal of the body was concerned
Consequently he is in much the same category so far as credibility is concerned That brings us at once to the rule that save in exceptional circumstances one accomplice cannot be used to corroborate another nor can he be used to corroborate a person who though not an accomplice is no more reliable than one
We have therefore either to seek corrobo ration of a kind which will implicate the appellant apart from the confession or find strong reasons for using Guruba chan s confession for that purpose
Of course against Gurubachan there is no difficulty but against the appellant the position is not as easy
We will therefore examine the reliability of Guruba chan s confession against the appellant
Now there are some glaring irregularities regarding this confession and though it was safe for the Sessions Judge and the High Court to act on it as against Gurubachan because he adhered to it throughout the sessions trial despite his pleader s efforts to show the contrary a very different position emerges when we come to the appellant
537 The first point which emerges regarding this is that the confession was not made till the 25th of February 1950 that is to say not until two months after the murder
We do not know when Gurubachan was first interrogated but PW 42 Narayandas tells us that when he was taken to the police station house at Gondia for interrogation about the 1st or 3rd January he saw Gurubachan sitting in the police lock up
We do not know how long he was kept there like this but it is evident that he was not there voluntari ly at any rate till the 1st or 3rd because the Station Officer PW 44 says that until Gurubachan Singh was ar rested he used to be allowed to go home
Also he says that Gurubachan was interrogated several times and was confronted with Pritipal
However eventually Gurubachan was allowed to go away and he went to Balaghat
Then on the 16th of February the Station Officer PW 44 went to Balaghat brought Gurubachan back with him to Gondia and handed him over to the CID Inspector Guha
Guha PW 50 tells us that from then till the 20th of February when he was arrested he was kept under observation but was allowed to go home at night
He did not confess till the 25th and the Station Officer PW 44 tells us that from the 20th to the 25th he was kept in one of the rooms in Guha s quarters
Then after the confes sion on the 25th he was taken back to Guha s custody for a couple of days and then only was he sent to the magisterial lock up
See Guha s evidence
He was kept in this lock up till the conclusion of the committal proceedings that is till the 30th of June instead of being sent to jail custody in Bhandara where there is a jail
The other accused includ ing Pritipal who had by then confessed were sent to Bhanda ra
Now though Gurubachan was kept in the magisterial lock up the distinction between the magisterial lock up and police custody in Gondia is only 538 theoretical
In practice it is no better than police custody
Police constable Lalbahadur PW 55 tells us that The Station House Officer Gondia deputes constables for duty in the lock up
The constables in charge take the prisoners out to the latrine and also arrange for their food
The Head Constable in fact is in charge
 Also Guha admits that he interrogated Gurubachan in the lock up twice within the ten days which succeeded the confession
This is in disregard of the Rules and Orders Criminal of the Nagpur High Court which enjoin at page 25 paragraph 84 of the 1948 edition that After a prisoner has made a confession before a a magistrate he should ordinarily be committed to jail and the magistrate should note on the warrant for the information of the Superintendent of the jail that the prisoner has made a confession No explanation has been given why these directions which were made for good reason were disregarded in Guruba chan s case
As we have said the other prisoners were all committed to jail custody in the usual way so there was no difficulty about observing the rule
All this makes it unsafe to disregard the rule about using accomplice testimo ny as corroboration against a non confessing accused
None of the judges who have handled this ease has given any reason why this rule could safely be departed from in this particular case
In the circumstances we do not feel that the confession by itself can be used to corroborate the rickshaw coolie Sannatrao PW 14
But there is other corroboration
It consists of the sari border and this is the next point on which the prosecution relies
There is one argument about this confession advanced on behalf of the appellant with which we shall have to deal
The prosecution were criticised for not calling the magis trate who recorded the confession as a witness
We wish to endorse the remarks of their 539 Lordships of the Privy Council in Nazir Ahrnad vs King Emperor 1 regarding the undesirability of such a practice
In our opinion the magistrate was rightly not called and it would have been improper and undesirable for the prosecution to have acted otherwise
5 Sari borders Articles F G and T Articles F  G are two pieces of a sari border which were used for tying up the mouth of the gunny bag in which the body was placed
The evidence about that is beyond doubt
Article T is another piece of a sari border which was found in the appellant s house on the 30th or December 1949
It is true the appellant was not present at the time but his mother was there and it will be seen that it was seized on the same day that the body was discovered
There is strong proof that Articles F and G are a part of the same border as Article T and as there is a concurrent finding regarding these facts we are not prepared to to take a different view
That therefore affords corroboration of Sannatrao s evi dence and the confession can be called in aid to lend assur ance to the inference which arises from these facts namely that the appellant did help to dispose of the body
The High Court and the Sessions Judge were accordingly entitled to act on this evidence for establishing that particular fact and we are not prepared to disturb their concurrent conclusions
But the matter cannot be carried further because not only are the sari borders not proved to have had any connection with the crime of murder but the confes sion shows that they did not
The only conclusion permissi ble on these facts is that the appellant at some time which is unknown subsequent to the murder assisted either active ly or passively in tying up the gunny bag in which the corpse was placed and that he then accompanied Gurubachan in the rickshaw from the chowkidar s hut to the well in the middle of the night
6 Coat Article X and Safa Article Y 1 AIR 1936 PC 253 at 258 540 These were seized on the 20th of January 1950 from a trunk in the house of the appellant s brother Gurudayalsingh
The appellant s house is not in this neighbourhood
It is some distance away in another part of the town
The coat is a uniform coat of the kind worn by a Travelling Ticket Inspector on the Railways
Gurudayal is a travelling Ticket Inspector
The appellant is not
Here again the appellant was not present when the seizures were made
This coat and safa were recovered in the fourth search
The first search was on the 30th of December 1949
The next on the 10th of January 1950
The third on the morning of the 20th and the fourth in the afternoon of the 20th
These Articles were not found in the first three searches
The Chemical Examiner reports that there is one minute blood stain on the safa and some the number is not given also minute on the coat
The seizure memo exhibit P 55 picked out only five
Those stains are not proved to be of human blood
Now there is next no evidence to connect either the coat or the safa with the appellant
The High Court has relied on the evidence of Sannatrao PW 14 Gokulprasad the Station Officer PW 44 and Tiwari PW 48
Sannatrao does no more than say that he noticed the appellant wearing a popat coloured sara and a black coat
But he was not able to describe the clothes of the passenger he had carried immediately before the appellant nor was he able to de scribe the appellant s coat in detail
That therefore is no identification of this coat with the one the appellant wore or owns
The Station Officer Gokulprasad said that he had seen the appellant wear this very coat and sara and there fore he identified them as his clothes
In cross examina tion he admitted that he had only seen the appellant on three occasions but not to speak to
Consequently that is not strong evidence of identification
But what in our opinion is almost conclusive against this identification is that Tiwari PW 48 who is clearest on the point and who of course had the best opportunities for observation 541 gives a distinctive feature of the appellant s coat namely that it had only one button
That is one of his reasons for knowing what the appellant used to wear
But the seizure memo exhibit P 55 shows that the coat Article X had two buttons
In the circumstances we find it difficult to see how it can be the appellant s coat
There is another strong point in the appellant s favour which the High Court has not noticed
PW 35 the wood stall keeper Tilakchand who saw him on his way to pick up his victim is definite that the appellant was not wear ing a coat at the time
It is difficult to see why he should have donned a coat and got it stained with blood just for murdering a child of five
In our opinion it would be unsafe to conclude on this evidence that any connection is established between the coat and the sara and the appellant
The furthest point to which this evidence can be pushed is to indicate that the appellant possessed a coat similar to Article X but which was not Article X
We do not ordinarily interfere with a concurrent finding of fact but when the finding omits to notice these two very important points in the accused s favour which in our opinion swing the balance the other way we are unable to let the finding stand
In our opinion the nexus between the appellant and the coat and the sara is not established
7 Motive
This is the last piece of evidence on which the prosecution rely
Both courts hold that the motive is established and there is strong evidence to prove it
We accordingly accept the finding that the appellant had a motive for enmity against Tiwari and that he had expressed a determination to be revenged
The only comment we will make is that other persons who were also dismissed from service had similar motives
What then is the summary of the evidence  In the appel lant s favour there are the facts that there is no proof of his having been last seen in the company of 70 542 the deceased
The only evidence of the boy s movements is that of Krishna alias Billa PW 9 a boy of seven years and all he says is that Pritipal asked him to bring Ramesh with him to the Gurudwara that morning about 9 AM
The boys played about and had some tea and then Pritipal took Ramesh away in the direction of the prostitute s house
Pritipal later returned without Ramesh
The Sessions Judge thought this witness had been tutored on at least one point
Pritipal s so called confession has been rejected because in the first place it is not a confession at all for it is exculpatory and in the next the High Court was not able to trust it
Therefore the only evidence of the boy s last movements is as above
The next point in the appellant s favour is that he was seen without a coat shortly before the murder and at a time when he was not in the vicinity of his own house
According to the prosecution the murderer wore the coat Article X and the sara Article Y The third point is that the appellant was not seen by anyone in the vicinity of the place of occurrence
The fourth point is that if the prosecution case is true then it is remarkable that no one saw the appellant and the boy on a cycle through nearly a mile of what the High Court which made a spot inspection describes as a crowded locality
The points against the appellant are 1that he had a motive and that he said he would be revenged 2 that he was absent from the Gurudwara about the time of the murder long enough to enable him to commit it and denied the fact 3 that some twelve hours after the crime he assisted in removing the body from a place between half to three quar ters of a mile distant from the scene of the crime and 4 that at some unknown point of time he assisted in tying up the mouth of the gunny bag in which the body was eventually placed
In our opinion it would be unsafe to convict of murder on these facts
543 A number of rulings were cited including one of the Privy Council and it was argued that in those cases persons were convicted of murder on similar facts
We do not intend to examine them because no decision can be a guide on facts
Each case has its own special circumstances and must be decided on its own facts
For example in most of the cases cited the accused was associated with the disposal of the body very soon after the occurrence and at the scene of the crime
Here twelve hours had elapsed and the first connection proved with the disposal is at a place over half a mile distant from where the boy is said to have been murdered
Next the points we have shown in favour of the appellant in this case were not present there
We allow the appeal on the charges of murder conspiracy and kidnapping and reverse the findings and sentences on those charges and acquit the appellant of them
We however convict the appellant of an offence under section 201 Indian Penal Code and sentence him to seven years  rigorous imprisonment
The learned Sessions Judge omitted to record a convic tion under section 201 because he was convicting the appel lant of murder
He followed a Nagpur decision which holds that in such a case it would be improper to convict in the alternative
We express no opinion about that the question does not arise as we have acquitted the appellant of the murder and the cognate charges
The case now falls in line with that of the Privy Council in Begu vs The King Emperor1 and the conviction and sentence are confined to section 201
1 1925 52 IA 191


Summary:
The appellants were prosecuted for having committed offences under section 120B read with Ss 302 and 436 of the Indian Penal Code and their case was taken up for trial before the Third Tribunal constituted under the West Bengal Tribunals of Criminal jurisdiction Act 1952 WB Act XIV of 1952
By a notification dated September 12 1952 and issued under section 2b of the Act the Government of West Bengal declared the whole area within the jurisdiction of Kakdwip and Sagar Police Stations to be a disturbed area and specified the period from January 1 1948 to March 31 1950 to be the period during which the notification was to be effective
The case against the appellants was that between the dates mentioned in the notification they took leading part in a violent movement called the Tebhaga movement in Kakdwip and incited the Bhagehasis ie the cultivators who actually cultivated the land to claim the entire crop instead of 23 share of it and that they preached murder and arson amongst the cultivators and such preaching was followed by arson and murder on a large scale
The appellants moved the High Court for an order quashing the proceedings against them on the ground that section 2b of the Act which allowed the Government to declare an area in which  there was  disturbance in the past to be a disturbed area offended article 14 Of the Constitution as discriminating between persons who had committed the same offences and whose trials had already concluded before the notification under the normal and more advantageous procedure and others whose trials had not concluded and who had to be tried by a less advantageous and special procedure prescribed by the Act
The application of the appellants was first heard by a bench of two judges but as there was difference of opinion between them the matter was referred to a third judge and the High Court by a majority held that the provisions of the impugned Act were intra vires and did not offend article 14 of the Constitution
On appeal by special leave challenging the vires Of section 2b and the proviso to section 41 Of the Act Held per Sinha CJ Gajendragadkar and Shah jj that the equality before law guaranteed by article 14 no doubt prohibits class legislation but it does not prohibit the Legislature to legislate 647 on the basis of a reasonable classification
If any state off acts can reasonably be conceived to sustain a classification the existence of that state of facts must be assumed
Chiranjitlal Choudhuri vs The Union of India and Others  and Kedar Nath Bajoria vs The State of West Bengal   followed
Where the classification is reasonable and is founded on an intelligible differentia and that differentia has a rational relation to the object sought to be achieved by the statute the validity of the statute cannot be successfully challenged under article 14
Since the classification made by the impugned Act is rational and the differentia by which offenders are classified has a rational relation with the object of the Act to provide for the speedy trial of the offences specified in the Schedule section 2b and the proviso to section 41 of the Act cannot be said to contravene article 1 Of the Constitution even though the procedure prescribed by the Act may amount to discrimination
The State of West Bengal vs Anwar Ali Sarkar 1952 SCR 284 distinguished
Kathi Raning Rawat vs The State of Saurashtra 1952 SCR 435 Lachmandas Kewalram Ahuja and Another vs The State Of Bombay  and Gopi Chand vs Delhi Administration   considered
Per Sarkar and Subba Rao jj
dissenting
Whether a law offends article 14 or not does not depend upon whether it is prospective or retrospective for both prospective and retrospective  statutes may contravene the provisions of that Article
Although the general rule is that a law must apply to all persons it is permissible to validly legislate for a class within certain well recognised limits
The true test of a valid classification is that it must be capable of being reasonably regarded as being based upon a differentia which distinguishes that class from others and the differentia itself must have a reasonable relation with the object the statute has in view
Shri Ram Krishna Dalmia vs Shri justice SR Tendolkar   followed
The object of the Act in question being to secure a speedy trial of certain offences committed in a specified area during a specified period of time in the interest of the security of the State and the maintenance of public peace and tranquillity in a disturbed area a distinction made between the cases where the trials had been concluded and the cases where the trials had not yet been concluded is not a distinction which has any rational relation to the object
In order to secure that object it is necessary to place both classes of persons in the same situation
Gopi Chand vs Delhi Administration   distinguished
648 The Act in so far as it permits an area which was a disturbed area in the past to be declared a disturbed area for the purposes of the Act offends article 14 of the Constitution and is therefore unconstitutional and void
That portion Of section 2b which declares an area to be a disturbed area in the past and the notification in question must therefore be held to be void