# iJ S.C.R. SUPREME COUR'l' REPoRTS DHARAM SINGH AND OTHERS v. THE STATE OJJ' UTTAR PRADESH

- **Citation:** [1962] Supp. 3 S.C.R. 769
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** J. L. Kapur, K. C. Das Gupta, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ij-s-c-r-supreme-cour-l-reports-dharam-singh-and-others-v-the-state-ojj-uttar-2493
- **Pages:** 26

## Headnote

769
Criminal Trial-Conviction by Sessions Judge-Appeal
to High Court-Dif!ere1'Ce between Judges hearing appealReference to third Judge-Duty of third Judge-If rtoust treat
opinion of acquitting Judge as judgment of acguittal-Code of
Criminal Procedure, 1898 (Act V of 1898) s. 429.
The appellants were convicted of offences under s. 302
read with s. 34 and s. 201 read with s. 34 Indian Penal Code
by the Sessions Judge. On appeal to the High Court there
was a difference of opinion between the two Judges who heard
it and the case was referred under s. 429 Code of Criminal
Procedure 'to a third Judge. The third Judge upheld the. convictions. The appellants contended that where a case was
referred under s. 429, the opinion of the Judge acquitting the
accused had to be treated as a judgment of acquittal and that
the third Judge must consider all the reasons- given by the
acquitting judge and his judgment should indicate the reasons
for disagreeing with the opiniOn of'the acquitting Judge. The
appCllailts further ·contended that there were certain· circumstances proved by tne evidence on the record which s bowed
that the eye-witnesses co!Jld not be relied upon.
Held, that there was nothing in s. 429 which required
the third Judge to whom the reference was made to act as
though he was sitting in appeal against acquittal.
He had
to consider the opinion of the two differing Judges and to give
his own opinion.
Hehl, further (per Kapur and Das Gupta JJ. Dayal J.
contra) that the judgment of the High Court suffered from
such, infirmitie_s,. as placing the. ontis of proof of certain facts on
the appellants and using of inadmissible evidence.
The case
was ftill Of ·110 many
inCons.iste:nc~es 'and improbilities and
peculiarities that it made it difficult to rely upon the testimony
of the eye-witnesses and to hold that the case against the
appellants was established beyond reasonable doubt.
Per Dayal J. The circumstances urged by the appellant
did not make out a case for interference with the findings of
facts 'of the High Court.
1962
March 9
198t
Dhr.ram sr,,gh
••
Tl.~ Sbte nf
Utt41' Prad~rh
I.
.
' '
.
770 SOl'REME COURT REPORTS [Hl62] SUPP.
CRDtrNAL APPELLA'fll Ju&ISDIG'l'ION: Criminal
Appeal N'o. :!:2-! of 1!159.
.
Appeal by special leave from the judgment
aml or~er cla.te~ I 959. :May 5 of the Allahabad High
Court m Cnmmal Appeal N'o. 1049 of 1958 and
Government Appeal No. 1766 of 1958 .
.Jai Gopal Sethi, C. L. Sareen and R. L. Kohli
for the Appellants.
G. C. Math'Ur and C, P. Lal for the Respondent.
_
l!W2. March 9. The Judgment of Kapur and
Das Gupta, JJ. was delivered by Kapur, J. Dayal,
J., delivered a separate Judgment.
KAPl:R, J.-The appellants and Prithviraj
Singh were tried by the 8essions Judgt', Hamirpur,
tho former for offences under s. 302 read withs. 149
and 8. ~Ol rea-0. withs. 149 and of them some under
s. 147 and othurs under s. 148 and the latter under
s. 201 read with s. 149 of the Indian Penal Code·.
From amongst the accused persons Nathu Singh was
acquitted and so was
Prithviraj Singh but ten
others were convicted under s. 302 read with s. 149
ands. 201 read with s. 149 and two of them were
convicted undor s. l4i and others under a. 148.
The Sessions J udgc sentenced the convict~d persons
to imprisonment for life under s. 302 read with
s. 149, to three years' rigorous imprisonment under
s. 201 read with
~. 149, two of them to two years'
rigorouH imprisonment under s. 14 7 and others to
three yoars' rigorous imprisonment under s. 148 but·
all the sentences were concurrent. Against that
order the convicted persona took an appeal to the
High Court at ~llahabad and t~e 8tate appealed
against the acquittal of Nathu Smgh and also applied for enhimcement of sentences against the convicted persons. The High Court dismissed the appeal of the convicted persons and allowed tho :ippeal against N'athu Singh.
Thus H persons
w~re
convicted and sentenced to 1mprisolllllent for life
3 S.C.R.
SUPREME COURT. REPORTS
77i
and to other concur

## Text

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iJ S.C.R.
SUPREME COUR'l' REPoRTS
DHARAM SINGH AND OTHERS
v.
THE STATE OJJ' UTTAR PRADESH
(J. L. KAPUR, K. C. DAS GUPTA and
RAGHUBAR DAYAL, JJ.)
769
Criminal Trial-Conviction by Sessions Judge-Appeal
to High Court-Dif!ere1'Ce between Judges hearing appealReference to third Judge-Duty of third Judge-If rtoust treat
opinion of acquitting Judge as judgment of acguittal-Code of
Criminal Procedure, 1898 (Act V of 1898) s. 429.
The appellants were convicted of offences under s. 302
read with s. 34 and s. 201 read with s. 34 Indian Penal Code
by the Sessions Judge. On appeal to the High Court there
was a difference of opinion between the two Judges who heard
it and the case was referred under s. 429 Code of Criminal
Procedure 'to a third Judge. The third Judge upheld the. convictions. The appellants contended that where a case was
referred under s. 429, the opinion of the Judge acquitting the
accused had to be treated as a judgment of acquittal and that
the third Judge must consider all the reasons- given by the
acquitting judge and his judgment should indicate the reasons
for disagreeing with the opiniOn of'the acquitting Judge. The
appCllailts further ·contended that there were certain· circumstances proved by tne evidence on the record which s bowed
that the eye-witnesses co!Jld not be relied upon.
Held, that there was nothing in s. 429 which required
the third Judge to whom the reference was made to act as
though he was sitting in appeal against acquittal.
He had
to consider the opinion of the two differing Judges and to give
his own opinion.
Hehl, further (per Kapur and Das Gupta JJ. Dayal J.
contra) that the judgment of the High Court suffered from
such, infirmitie_s,. as placing the. ontis of proof of certain facts on
the appellants and using of inadmissible evidence.
The case
was ftill Of ·110 many
inCons.iste:nc~es 'and improbilities and
peculiarities that it made it difficult to rely upon the testimony
of the eye-witnesses and to hold that the case against the
appellants was established beyond reasonable doubt.
Per Dayal J. The circumstances urged by the appellant
did not make out a case for interference with the findings of
facts 'of the High Court.
1962
March 9
198t
Dhr.ram sr,,gh
••
Tl.~ Sbte nf
Utt41' Prad~rh
I.
.
' '
.
770 SOl'REME COURT REPORTS [Hl62] SUPP.
CRDtrNAL APPELLA'fll Ju&ISDIG'l'ION: Criminal
Appeal N'o. :!:2-! of 1!159.
.
Appeal by special leave from the judgment
aml or~er cla.te~ I 959. :May 5 of the Allahabad High
Court m Cnmmal Appeal N'o. 1049 of 1958 and
Government Appeal No. 1766 of 1958 .
.Jai Gopal Sethi, C. L. Sareen and R. L. Kohli
for the Appellants.
G. C. Math'Ur and C, P. Lal for the Respondent.
_
l!W2. March 9. The Judgment of Kapur and
Das Gupta, JJ. was delivered by Kapur, J. Dayal,
J., delivered a separate Judgment.
KAPl:R, J.-The appellants and Prithviraj
Singh were tried by the 8essions Judgt', Hamirpur,
tho former for offences under s. 302 read withs. 149
and 8. ~Ol rea-0. withs. 149 and of them some under
s. 147 and othurs under s. 148 and the latter under
s. 201 read with s. 149 of the Indian Penal Code·.
From amongst the accused persons Nathu Singh was
acquitted and so was
Prithviraj Singh but ten
others were convicted under s. 302 read with s. 149
ands. 201 read with s. 149 and two of them were
convicted undor s. l4i and others under a. 148.
The Sessions J udgc sentenced the convict~d persons
to imprisonment for life under s. 302 read with
s. 149, to three years' rigorous imprisonment under
s. 201 read with
~. 149, two of them to two years'
rigorouH imprisonment under s. 14 7 and others to
three yoars' rigorous imprisonment under s. 148 but·
all the sentences were concurrent. Against that
order the convicted persona took an appeal to the
High Court at ~llahabad and t~e 8tate appealed
against the acquittal of Nathu Smgh and also applied for enhimcement of sentences against the convicted persons. The High Court dismissed the appeal of the convicted persons and allowed tho :ippeal against N'athu Singh.
Thus H persons
w~re
convicted and sentenced to 1mprisolllllent for life
3 S.C.R.
SUPREME COURT. REPORTS
77i
and to other concurrent sentences and they have
appealed to this court by special leave.
The appellants a.nd Prithviraj Singh are residents of village Kharela and they were on terms of
enmity with the deceased Baja Ram Singh. On July
28, 1957, at about 3-30 p.m. thii appellants collected
in front of the house of Kali Charan appellant, two
of them armed with lathis, two with pharsas and
seven of them had spears. Dharam Singh appellant asked Raja Ham Singh as to why he had been
abusing him to which the reply given by Rajaram
Singh was that he was not in the habit of abusing
any body at his back and if he felt like abusing
imy body he would do so to his face and he fixed
his spear in the ground and stood there. Appellant
Dharam Singh threw away the spear, rushed towards Rajaram Singh, caught hold of him by the
waist and asked his ten companions to beat the
enemy. Rajaram Singh was thereupon attacked
with various weapons as a result or which he fell
down severely injured. He was still alive when
appellants Sheo Rattan Singh and Gulab Singh
struck on his neck with pharsas and partially severed it.
At the instance of ·nharam Singh, his cart
was brought by others and Prith viraj Singh also
arrived at the spot. Dharam Singh asked him to
go home and bring his (Dharam Singh's) gun which
Prithviraj Singh did and handed over the gun
and the bandolier of cartridges to Dharam Singh
who loaded the gun, put the dead body of the
deceased on the bullock cart and the ten accused
persons then took away the dead body from the
village and it is alleged that they left it in a nullah
near village Jataura.
There is a poiice post in the village of which
Head Constable 6hivsewak Singh is incharge and.
· there is also an armed gimrd there. At 345 p.m.
Shyam Lal who is the brother-in-law (wife's bro-.
ther) of Rajaram Singh made a report at the police
D/11wam Singh
v.
TheSte'e of
Vtiar Pradesl
K"pur J
1962
lllaatam ~ingh
v.
1 J,, Stall•!
Uttar Protl1sli
Ko/JUI' J.
772
SLJP.REME.COU.RT BEPOR:fs (1962] SUPP.
post and at 7 30 p.m. he made a report at tho
police station Muske.rs .which is 8 miles a\\ay from
village Kharela.
This occurrence was witneSBed
b.v five persons P. W. Babu
Singh.
P. W.
Shivnath Singh, P. W. Ram Narain, P. W.
Mulain Singh and P. W. .Brij
Rani.
While
the corpse
was being
taken in
the bullock
cart three witnesses deposed to having seen it being
carried in the cart. The>y are Ram Nath P. W. 21,
Tiji\\a P. W. 22 and Jur~han P. W. 23.
In the High Court the appeal was heared in
the first instance by Cak and Verma JJ. T·here
was a difference of opinion between the learned
judges and the matter was referred under s. 429,
Criminal Procedure Codo to Desai J., who agreeing
with Cak J., upheld the conviction of the ten app·
ellants who were eonv·ioted by the Sessions Judge
and set aside the acquittal of Nathu Singh. Thus
11 persons were convicted and they have appealed
to this court by Special Leave.
It W!Ml contended on behalf of the appellan~
that under s. 429, Criminal procedure Code, where
tli.ore is difierm;1co of opinioμ botween the judges
constitut~ng .a Divisio,n Bench and the matt~r is referred to a third judge the opinion of the Judge
acquiting the acoqsec;l has t• • be treated in the samo
m~ne,r as the judgo;iept of acquittal by the trial
con.rt and evfn though it may not be no.ceSBary to
find compelling reasons for disagreeing with the
opinion of the e.cquiting judgo it is necessary that
the judgment should show that all the findings and
the reasons give,ll ii:i the opinion of the acquitting
judge are mon tioned in the opinio1;1 oft.he third
judge and the judgment should indicate the reasons
for disagreeing with the opinion of the aoquitting
Judge. We ca.n see no warrant for this contention.
Section
429
of the Criminal Procedure Code
Provides:
S.C.R.
SUPREME :COURT .REPORTS·
77?1
"When the Judges coillposing the Coutt
of appeal are equally div·ided in opinion, the
case, with •their opinions thereon, shall be laid
before another judge of the •same Court, and
such Judge, after ·suoh•hearing (if any) as he
thinks fit, shall deliver his opinion, and the
judgment or order shall follow such opinion" .
.All it says is that the opinion of the two judges
who disagree shall be laid before another judge who
after giving such hearing, if any, as he thinks fit,
shall deliver his opinion and the judgment or order
should be in accordance with such opinion. Now
it is obvious that when the opinions of the two
Judges are placed before a third Judge he would
consider those two opinions and. give his . own
opm10n
and
the
judgment
has
to
follow
the opinion of the third judge.
Consequently
on that opinion is based the judgment of .the
court.
For
all practical purposes
the third
Judge must consider the opinions of his two
colleagues and then give his own opinion but to
equate the requirements with appeals
against
acquittalR is not jnstified by provisions of s. 429 or
by principle or precedent.
Desai J., was of the opinion that the eye
witnesses had seen the occurrence and their eviden-ce
must
be
accepted
but
there
are
certain·
circumstances
proved by the evidence on
the
record which when considered materially affect the
force of the finding in regard to oral evidence and
which have to be considered in order to adjudicate
on the correctness or otherwiB'e of the prosecution
case. The first point is whether the murder was
committed in the village as is submitted by the
prosecution?
.According to the prosecution tho
mu·rder was committed in the village at 3-30 p.m.
in the month of July in broad daylight on a public
road
and: the
number
of
injuries caused
to
Rajaram Singh are such that
th'er~ !l\JlSt
D"""~'Sinth
"'
Th~ ·sf ate of
Ultar 'Pradetli
Kapur J,
195!
Ohmen Singh
v.
Thi StaJ• of
U tiar ProJ1sh
Kapur J,
774 SUPREME COURT REPORTS (1962] SUPP.
have
been a fi.ir
amount of blood spilt
at
the place. According to the prosecution evidence
after
the
murder
was
committed Dha.ra.m
Singh sent for his bullock cart which must necessarily have ta.ken a. little time. Meanwhile Babu
Singh P.W. went and informed Shyam La.I who
went tu make a report at the police post in the
village. It is stated to be about 4 furlongs away.
[t is contended by the appellants that if the murder
bad taken pla<>e as stated and them w<is an armed
guard in the villagc, it would have b•ien difficult for
the appellants to h.:i.ve sent for the cart, to put the
dead body on it and take it out of the village and
that within tho time between. the commission
of the murdor and the time oft.he making of Report
at the police post; that there is a considerable
doubt :ibout the occurrence having taken place in
the villa.go because no blood was found at the place
of the murder; at least no evidence has been produced to show that there was any blood there.
On
behalf of the prosecution it was submitted that tho
evidence discloses that afta the murder tho blood
was washed away by throwing a good deal of water
and plastering the place and thus no blood was
found when the place W<ts visited by the investigating Sub-Inspector. It was also submitted that
some blood was found on tho wall of the chabutra
·in front of the house of the appellant Kali Charan
which was collected in a small tin and was sent to
the Chemical Examiner. It may here be pointed
out that when the dead body was taken to the place
where it was found 6-1/2 miles away from the place
of occurrcnco tbe neck was cut and ta.ken away and
only thti headless body was found there. That
place was in the dry bed of a nullah. According to
tho prosecution witnesH Ram Avtar there w1i.s plenty
of blood thero but P. W. Raziuddiu stated that
blood was found in drops lying in adjacent places
but it was not found in heav) quantities at one
place.
BloO<l-stBiuod earth was ~ken from the
r
3 S.C.R.
SUPREME COURT REPORTS
775
wall of the chabutra of Kali Charan. Unstained
earth was also taken from the same place which was
also put in a small tin. Blood stained earth· was
also taken from the place in the bed of the nullah
where the dead body was found.
All these tins
were sent to the Chemical Examiner. It is not
quite clear what exactly was ·his finding but he
found that the earth in two tins was blood- stained
but blood has not been shown to be of .human
origin. It is not clearly shown as to what was the
extent of the blood on the wall of the chabutra of
Kali Charan. Desai J., was of the opinion that
a lot of blood must have been spilt at the place
where the murder was stated to have been committed but Kali Charan poured water over the spot,
therefore no blood was visible at the spot and the
Investigating Officer found the place wet when he
examined it at night and that no explanation was
given by the appellants as to how blood came to be
on the wall of the chabutra. It does not appear
from the examination of the appellants under s. 342
that any question was put to Kali Charan in ragard
to the finding of the blood on the wall of his chabutra nor was any of the other appellants aske<l this
question. The High Court should not have used
this fact against the appellants.
Another circumstance which has been pressed
at great length on behalf of the appellants is that
no attempt was m·1de to take any earth from the
place and no investigation waa made as to whether
there was any blood at the spot or not. If a man's
neck is cut and he is caused the number of injuries
that the deceased hiid, the amount of blood spilt
there must have been in a fairly large quantity and
it is difficult to imagine that just by pouring water
over the spot and plastering it no bloorl was visible
a,nd even if it was not visible no blood could be
found if any effort was made. No attempt seems
to have been made to take the earth from there and
se~d it to the Chemioal Examiner for the purpos()
1969
' Dharam Singh
v.
f"he Stai. of
Uttar Prad;sh
. Kopur.J,
. 19~2
Dh1,a'1t Sillfh
v.
Thi S1414 of
U ttar Pracltsh
776 SUPREME COURT REPORTS [1962) SUPP.
of·examination. Desai J., has observed that the
Investigating Officer found the ground to be wet.
The TnveRtigating Officer came there at II p.m. on
the night of ocourrence which was a dark night
and if he found the place to be wet it is not
clear whether it waR wet becauso of water or
bccauso
of
blood.
It
was
the
month
of ,July when any water poured at 3-30 p.m. should
have dried up by 11 p.m. Another point which
has been preBSed on behalf of the appellants is that·
no trail of blood was discovered from the place
where the murder is alleged to have been commiLted to the place where the dead body was
ultimately found in the dry bed of the nullah.
A I though the evidence is conflicting there was some
amount of blood at the place where the dtad body
was found.
The head had been completAlly severed
and taken away. In the cart also there was some
blood and a blood stained axe was also found
there. Therefore if the head was cut at the place
where the dead body was found and there was
blood oozing out at that timo it is difficult to
imagine that there would not be any blood oozing
all tho time and there would be no trail of blood.
But none has been found.
It may be pointed out
that there was blood on the planks of the cart on
which the dead body is alleged to have been taken.
According to the books on :lledical ,Jurisprndence
blood does not coagulate till after four hours.
Therefor!! the submission of the appellants that
there should have been some trail of blood from the
place where the murder was committed to the plaoe
where the dead body was taken has c:onsiderablo
force.
The judgement of Desai, J., seems to indicate
that the onus of certain matters was placed on the
appellant3 whioh is unwarranted by law.
For instance, the learned .Judge said that the appellantH
were asked in the Mai;istrate's court; about the
3 S.C.R.
SUPREME COURT. REPORTS
777
evidence that they had killed Rajaram Singh at
3-30 p.m. in the abadi and had then carried away
his dead body in the cart of Dharam Singh, and
they contented themselves by denying all the allegations and none· of them had said that the deceased
was not murdered in the abadi and in the day time.
The learned Judge then observed:-
"'If he was not murdered in the adadi
and in day time they must have heard when
and where he was murdered.
Their state·
ments were not evidence governed by the
Evidence Act and they could say that they
had heard. Yet when they refrained from
saying anything about it, it just shows that
they had not heard that Raja Ram Singh was
murdered elsewhere and at another time".
This, in our opinion, was an erroneous approach to
the question.
At another place in his judgment the learned ·
Judge again seems to have placed the onus on the
appellants and that was concerning the ownership
of the cart in which the dead body was taken.
The
finding of the bloodstained bullock cart was relied
upon by the prosecution in support of their case.
That evidence was attacked on the ground that
there was no identification parade of the c<trt and
the bullockR.
The learned Judge said in regard to
this matter that there was no necessity for any
identification proceedings because if the Investigating Officer belieTed the witness who stated that
the cart belonged to Dharam Singh then he was not
required to cross-examine the prosecution witnesses
by asking them to identify the cart and the
bullocks. He then observed:-
"Dharam Singh, Babu Singh and Prithviraj Si~1gh appellants denied that the cart and
the bullock produced were theirs but did not
say to whom they helonged and how they
were obtained by the police. They also 4~4
1962
Dharam Singh
v,
Th'e'Sttstt or
lftfQr PradtSh
Kapur·:!;
JMI
DlaaFam St11gh
••
11,, Stai. of
(/114r Prodesh
KopurJ.
778 SUPREME COURT REPORTS [1962] SUPP·
not produce a.ny evidenco to rebut the evidonc(I of the prosecution witnesses a.bout their
ownership" .
In that very connection the learned .• Jmfoo has also
relied on the fact that the bullock crtrt w~s brought
from the hara. of Ram Adhin Singh and the site
plan propared by S.H.O. showed that thero were
signs of fresh removal of the bullock cart frnm the
ba.ra.
Now this again is not admissible evidence
because nothing shown on the plan unless deposed
to by witnesses is evirlence against t.he appellants:'~
It was so heir! in Sa11ta Singh v. Stak of I'?tnjr1b ( 1)
and Tori Singh v. State of Utt'ir Pradesh (').
Thero
is another signifiwmt fact in regi:.rd to this cart
According to prosecution witness Bahn Singh, tho
bullock which were yoked in the cart belonged to
Ram Adhin Singh when he was asked to idontify
he said one of them was the same but the second
one was not the same which W:J8 yoked in the cart
at the time when tho dead body was being taken.
It is
an extraordinary circumstance that tho
bullocks which are alleged to have belonged to lfam
Adhin Singh, and which were yok<•rl to the cart
carrying t.he dead body, which a.II tho time remained
in police custody got changer! so t.hat one of t.he
bullocks is not the same.
Another circumstance
which is equally significant is the fiinding of the
yoke of prosecution witness Tijiwa with the cart.
It is stated that Tijiwa met the appellant~ when
they were driving the cart away from the village.
At the time Tijiwa was returni11g home bringing his
employer's cart..
Tijiwa's yoke 1ras I orrowcd
beoauso the yoke of the ca.rt driven by the ~ppcl
lants got broken aml Tijiwa.'s yoke was found at
the place where the cart was subsequently discovered. What happened to the broken yokf' is not
Hhown, how 'l'ijiwa took his own cart back without
the yoke to tho village is not shown.
This drcum-
\11
A.f.
1q!6S.C. 526.
t~) [1962) l S.C.R.
3 S.C.R.
SUPREME COURT REPORTS
779
stance does not seem to have received the attention
of the High Court which it deserved.
The appellants have vigorously pressed before
· us another argument which deals with the F'irst
Information Heport and investigation by the police.
Accordin~ to the prosecution the occurrence was at
about 3-30 p.m. and an information was given at
the police post at 3-45 p.m. and according to the
evidence of the prosecution witness Raziuddin, the
Head Constable and two constables of the armed
guard proceeded to recover the dead body and
follow the murderers by following the track of the
oart. They left the police post of Kharela at :~-45
p.m., and from there they went to the house of the
appellant Kali Charan and then they followed the
track of the bullock cart. At a· distance of four or
five paces from the place of occurrence they met
Pancham Singh who does not seem to be a witness;
so what he stated to the constable is not evidence.
They then followed the track of the bullock cart
and found the dead body lying in the nullah about
three furlongs away from the abadi of village
.Jataura. The dead body was headless. They left
the two armed guards at the place and proceeding
a Jittle further they found the bullock cart with t,he
two bullocks and there was no one near the bullock
cart. Head Constable Shivsewak Singh had gune ·
at 12 noon to Balatal for appearing as a witness.
There are no entries in the Police Duty Register at
the Police Post as to his return nor as to his going
with Raziuddin and others following the track of
the cart.
Leaving the armed guard at the place where
the dead body was found Head Constable Rhivsewak Singh went to Jataura and called Chowkidar
Sumer~. At about 10 or 11 in the night he sent
Chowk1dar Sumera to Thana Charkhari to give
info~mation and it is stated that as a result of the
1962
Dharam Sinz'h · .
••
The State of
Uttar .Pradesh
Kapur J'.
196B
Dharam Sin1h
v.
7 h, Stou oj
L. ~!ar Pro<ksh
Kapu1J,
780 SUPREME COURT REPORTS [1962] SUPP.
information given by Chowkida.r Sumera. tho SubInspector in-oharge of Cha.rkha.ri Police Station
came to the placo where tho dead boly W•l.S found
and he started the invostig<1tion on the morning of
July 29, l!J57.
He took the dead body into
possossion, hold the inquest report and took bloodstained earth a1id the cart into possession.
There
is no reason why the Head Constable should have
sent Sumcrn to the police station Charkhari when
the offence was committed in tho village in the
jurisdiction of police station ;\<lusknm.
It is next stated that the Officrr-in-Charge of
llfuskara Police Station, Suh-Inspector Rasu Deo
ca.me to vill11ge Kharela at II p.m.
There is no
entry in the Register at the Police Post sh<nving his
coming to the place of. ths occurrcnc<'-
He has
deposed that he went to the place of occurrence and
notioed that outside the house "some water appeared
to be lying and at places it appeared th11t thl•
ground had been washed with hand and water''.
How in the middle of a dark night he could havo
seen all that hall been explained irnd the appellants
rightly challenge bis very coming to the vi I la·;e at
that time.
From these circumstances
th·~ appellants submit that there is a
gre~t deal of doubt as
to tho time of the m11king of th'" First Infonnation
Report and the time and place of murder. Wo
ha.ve theso facts which cast a good deal of doubt
a.s to the authenticity of the report or the investigation by tho police of Mnskn,ra. into thl' allPged
occurrence.
(I) if the information was givon n,t tho police
post soon after the ooeurrence, as is alleged, tlwro is
no reason why the police should not have roached the
place and prevented the removal of tho d"n<I body
which w1\B after all being carried on n, bullork cart.
(2) It is not shown by the entries of thn Duty
Rogistor that the Head Constable returned from
B~la.tal at 4 O'Clock a.nd came back to the village
3 S.CJ,R.
SUPREME 100U:R.T REPoRTS
'Bi
(Kharela) and then proceeded to follow the "track of
the bullock cart in which the dead body was alleged
to have been carried.
(3} There is no reason why when the dead body
was found near the nullah at about 6-30 p.m. the
Head Constable should have sent the Chowkidar of
Jataura to Police Station Charkhari to make a
report at that place and why the investigation
should have been carried on
by the ·police of that
police station and not by the police of Muskara
Police Station when
the latter had come to
know of it about 6-:10 p.m. tha,t murder had been
committed in their jurisdiction.
(4)
There is no reason why the Police Sub·
Inspector Kharela Police Post should go at 11 p.m.
and in a most casual manner to the place of occurrence, see water lying at the place and that in the
hot month of July. Why the next day he did not
take any earth from that pla.ce is also a very significant question.
·
( 5.) There is total absence of blood at the
place of the occurrence. It is stated that there was
some blood on the wall of chabutra of Kali Charan
what was the extent and nature of the blood is not
shown. How far the chabutra was from the exact
place of murder is not shown.
(6) There is no evidence at all that any earth
was stained with human blood.
(7) There is total absence of entries in the
Duty Hegister.
Therefore tire coming of Sub-Inspector Basu Deo is also doubtful. There is no indication t.hat there was any trail of blood even for a
short distance from the place of oocurrence.
(8) The evidence in regard to the borrowing
of the yoke from prosecution witness Tijiwa is b,.igbly suspicious in the circumstances of thi11 case.
Dltar<im Sing;,-
v.
;,'
·
'Fhe {itJJt~ oJ
T..:ttar Pradlih
JUI
Dluvom Singh
v.
7ll. State of
U ltGf' Pr•tftsh
782 SUPREME COUHT REPORTS [1962] SJPP.
(9)
Lastly we fiud that the approach of tho
learned Judge to the case is not in accordance with
law in th •t as to two or three matters he has approached the question as if it is for the defence to disprove certain facts.
1''or instan()(' the failure of the
defence to produce reliable evidence to contradict
eye witneHHes; there failure tu state that the murder
was not commiw'd in the village ; there failure to
say as to whom the ca.rt belonged if it did not belong to Dharam Singh.
Desai J., was of the opinion that no blood
was found by Haziuddin on tho way from the abadi
to the nullah and no trail of blood coulrl be expected becau~e the bleeding must have stopped bcforo
the cart left the abadi. On what evidance he found
that bleeding must haw stopped is not clear.
The
learned Judge also relied
upon the fact th11t
Chowki<lar Sumera made a report at the police station Ch<1rkhari about certain facts which arc mentioned there. Sumera is not a witness. Therefore
whllt he stated cannot be evidence in thiH case.
It appears that the learned Judge also took
into consideration the fact that the a pp<•llante were
absconding and that they gave no ·explanation a<i
to their absconding but they <lo not seem to bave
been asked any queation in regard to it. In regard
to the witnesses Ram Nath, Tijiwa and Jurkhan
who saw the dl·ad body being carried in the cart,
the learned Judge said that he found no reason to
diRbelicve thoir testimony. At another place in the
judgemeut the learned Judge obscrvt><l that when
witnesses talked about the neck of Rajaram Singh
being cut thoy must have been tutored about it. In
this view of the matter and taking other material
.mprobabilities in the t<>stimouy of those witnesses
which the learned Judge does not seem to hav<'
considered it is difficult to place any reliance on
their evidence.
' I
J
•
3 s.c.k.
SUPREME dotJRT REl?oR.i's
7s3
-The whole case is full so many inconsistencies and improbabilities and peculiarities that it
must be said that the case has not been estabilished
against the appellants beyond reasonable doubt.
We are opinion that the High Court's failure to
consider the important circumstances disclosed by
the evidence, and the error in wrongly placing onus
on the accused has resulted in miscarriage of justice. The case therefore falls within the rule laid
down in Pritam Singh v. Stat,e (1) and calls for our
interference .
In these circumstances the conviction of the
appellants must be set aside and the appeal must
be allowed. The appellants are acquited & must
be released forthwith unless required in some
other case.
i962
Dhoram Singh
v.
The Slate of
Utt1r Prodtsh
_.,..
Kopur J.
RAGHUBAR DAYAL, J.-l have had the ad van•
Boghubor Dt;Y:I ,
tage of perusing the judgment prepared by my
learned brother Kapur, J.
I agree with the interpretation of s.429, Cr.P.C.
I am, however, of opinion that the circumstances urged for the appellants do not justify interference with the verdict of the High Court on questions of fact.
They have all been considered by
Desai J., in forming his opinion. He has relied on
the statements of the eye-witnesses.
-
It is argued for the appellants that the 0ircumstances tend to throw doubt on the correctness of
the prosecution story that the incident took place
insidn the village abadi and that therefore the
appellants' conviction should be set aside.
The first circumstance is that the incident
took place at 3.30 p. m., information about it reached
the
police
outpost
four furlongs away
at 3.45 p.m., the armed guard at the outpost then
proceeded to the spot and yet it is said that the
c11 [lil50J s.c.R. 453.
19H
D"-'•m Singh
v.
The Stott of
Ullar-Prodt•h
Raghub<-r LO.JOI J.
784 SuPREME COURT REPORTS [1962) SUPP.
ac~used "ould r~move the dead bcdy fr0m the spot
pnor to the arnval of the armed guard. The getting
of the bullock cart and the loading of the corpse
would have taken sufficient time and the arrival
of th<; armed guard could have been within that
time.
In this cnnnection, it is to be noticed that
Babu Singh, P. W. I, an eye-witness, left the spot
after the body had been removed on the cart. It
was he who informed Shyam Lal about the incident. Thereafter, Sh yarn Lal left for the police
outpost. Babu Singh states :
"After the cart left. I ran to the house of
Raja !tam Singh. There we met Shyam Lal. ..
I told ~hyam Lal all what I witnessed. He
went to tho police outpost to mako a report
and I went home."
'I he first information report was lodged at the
thana at 7-30 p.m.
It mentions the fact of the
dead body being taken away on the cart. In view
of this fact it is clear that the armed guard could
not have reached the spot in time to prevent the
removal of tJie corpse.
Another fact against the circumstance urged
is that tlic incident did not take place at 3.30 p. m.,
which was really the time when Babu Singh informed Shyam Lal. Shyam Lal dictated i.t1 the first
information report :·
"At about :l.30 p.m., Babu Singh.".. came
to my house and informed me as follows ... ".
The incident therefore must have started much
earlier, say at about 3 CYolook and the body must
have b{,>en removed by about 3.25 p.m .
•
The other circumstance urged is that no bloodstained earth was found at the spot and that therefore this throws doubt on the incident having taken
place at the spot alleged. It is in the prosecution
evidence the.t some of the accused washed the
-
3 S.C.R.
SUPREME COURT REPORTS
785
ground where blood . had fallen and plastered it.
According to the Sub·Inspector, P. W. 27, bloodstained earth was taken in possession from the door
of the accused Kalicharan Singh, which really
means, from the front of his house. Siya Ram,
P.W. 26, stated that a few places in the Cha.butra
where blood stains were detected were scraped and
that the stains were on the walls of the Chabutra.
The recovery list Ex. K-29 mentions :
"blood stained earth was scraped from
in front of the house of Sri Kali Charan, son
of Bhan Singh, Thakur, and from . the
'Chabntra' (platform), whereon there appeared
to be some stains of blood."
Blood stained earth from the place where the dead
.body was recovered was also taken in possession.
The two samples of earth so taken in possession
were sent in different packets to the ·Chemical
Exa.miner who found them stained with blood. The
Serologist could not determine the nature of the
blood due to disintegration. In view of this
evidence, it cannot be said that no blood·stained
earth was found at the alleged spot.
Further, Raziuddin, P.W. 17, who went with
the armed guard to ·the spot stated ;
"When at first I visited the house of
Kali Charan I had noted that in front of his
house there were indications of the waohing
of the ground at places. It appeared that
somebody had removed things from that place
with hands and legs by spreading water at
different places."
This supports the statement of the other witnesses
a.bout the washing and plastering of the spot.
Sub-Inspector Basudeo, P.W. 27, stated that
when he reached the house of Kali Charn at about
11 p.m., he noticed that outside it some water
190:!
Dharam Singh
•.
The State of
l'ttar Pradesh
Raghubor J?ayal J.
. 6t
Dlu6om Singh
v.
Tht Stalt of
Uttar PrtJtltJ.'i
Rag/,ubar Datal J.
186 SUPREME COURT REPORTS (1962] SOPP.
appeared to be lying and at places it appeared that
the ground had been washed with hand and water.
It is true that the night was dark and he did not
carry out the local inspection due to want of a suit·
able light.
But these facts can hardly affect his
testimony. He could not have mistaken the nature
of the witneBB and should have been able to distinguish whether it was from water or from blood. The
witneBB of the ground is ·not to be doubted even
though about 8 hours had elapsed since the washing
took place.
Raziuddin has deposed that there had been
rain-fall two days earlier. The
incident· had
taken place on the 28th of ,July. The ground
could
have
been
wet
from
before
and
fresh washing could have wetted it more. In fact,
the more the spilling of blood, the more would have
been the water used to wash it away.
Another circumstance urged is that no trail of
blood was noticed betweon the village and the
actual place where the dead body was recovered, a
distance of over six miles.
The corpse was laid on
the planks of the cart, They got blood-stained.
Any dropping of the blood from the cart on the
track would have depended on the extent of the
flow of blood and on the openings between the
planks. It is not expected that blood would have
fallen in a continuous stream. Some drops could
have fallen down at places. They could be easily
pressed upon by the accused's feet, some of whom
would have been walking behind the cart. The
armed guard and others who followed the cart in
pursuit were more concerned wit,h the following of
the marks left by the cart than with noticing some
minute drops of blood which might have fallen here
and there on the track.
Absence of blood on the
paSBage, therefore, cannot discredit the prosecution
case.
3 S.C.R.
SUPREME OOURT REPORTS
7s1 ·
When the· cart was produced in Court, it had
one of the bullocks used at the time when the
corpse was removed and another bullock substituted
for the other one. Much has been made of this
change in the other bullock. The Sub-Inspector has
stated in his evidence.
·
"I had entrusted the recovered bullockii
and carts to the custody of Binda Lodh.i of
village Kharedi. One bullock which is white
iu colour could not be brought here as it is
suf(ering from small-pox."
The questions put to tbe accused mentioned the
allegation about the other bullock suffering from
small-pox and in their replies this fact was not
denied. The· police was not in charge of the cart
and the bullock and explanation has been given for .
not producing the other bullock in Court. This
circumstance too cannot therefore affect the correctness of the prosecution case.
It has also been urged that the carts and bullocks found near the dead body were not put up for
identification by witnesses. Desai, J., has rightly
observed that when witnesses could recognize the
cart and bullocks there could be no point in having
the cart and bullocks formally identified before a
Magistrate. Only such articles and accused are put
up for a test identification as are not known to the
witnesses. Those known are never put up for identification. The statements of the witnesses who recognized them are judged from other circumstances.
Further, the evidence about thP. ownership of the
cart was only by way of corroborating the statements of the prosecution witnesses.
Any cart
which could be available to the accused could be
used for the purpose of transporting the dead brn;ly.
Tijwa, P. W. 22, stated that Arjun Singh,
accused, stopped the cart about a mile from the
village abadi when he was returning home from his
196t
Dharam Singh
v.
Tht. State of
Uttar Pradesh
lioghubat Dayal J,
1961
Dliaram Singh
••
Th< St.11 of
Utlt11 ProtlesA
Ro.r;huhar Dtf'°' J •
788 SUPREME coun:r REPORTs (1962] SUPP.
fields and replaced the yoke of the cart with that of
Tijwa's as the former had brokPn. It is urged that
the absence of c\·ideuco with rnspect to what happened to the broken yoke and how the cart' of Tijwa
reached the village, import:tnt circumstances, had
not been noticed by the High Court in its judgment.
These circumstances cannot. he said to be important.
In fact, they were very remotely relevant to test
the veracity of Tijwa. Tijwa was not cross-examined about it. He stated that the broken yoke wa.~
also taken away in tho cart of Arjun Singh. It
should follow th;i.t Tijwa's cart remained on the
passage till its owner i\Iahadev Brahmin could have
brought it bauk.
It may be mentioned that the recovery memo,
Ex. K. 22, did not mention about tho finding of the
l,Jroken yoke in the cart. The broken yoke is said
to have been tied with a towel. It might have
been that the accused had removed the towel and
thrown away the broken pieces. '.j'he police party
had no
knowlodge about
the broken
yoke
when the cart was recovered and could not therefore
have looked for the broken parts. It may equally
bo that the broken yoke was used hy Tijwa. His
cart had to go a much smaller distance that the
cart which took the dead body to the nah. When
the accused starwd with the cart they expected
the broken yoke to serve tho purpose of driving
the cart to the nala and bac!,. It was just accident
that they happened to meet Tijwa on the way 'and
borrowed his yoke.
However, I consider these
matters very insignificant in a3sessing the correctneBB of the prosecution case.
Another matter severely commented upon
for the appellants is the conduct of Sheo Sowak
Singh, P. W. 20, Head Constable, Kbarcla Police
Outpost, and the Investigating Officer, Basudeo,
P. W. 27, mainly on account of the absence of
entrica in the duty register of the outpost a bout
3 S.C.R.
SUPREME COURT REPORTS
789
Sheo Sewak Singh's return there at about 4 p.m.,
and about the Sub'.Inspector's visit to it at about
11 p.m., on 28th July.· The Sub-Inspector has
stated:
"It is not necessary to make any
arrival and departure (entry) at
police
out-post Kharela, when I visit that p9st in the
record of that outpost."
The statement is with reference to making an entry
about his arrival and d~parture. He further stated:
"I did not make any entry of my activities in the night between the 28th and 29th
July 1957, in the record of police out-post
at Kbarela nor it was necessary to note them
there.''
And again:
"Entries are made in the record at Kharela outpost about the duties allotted to the
staff during duty hours."
Sheo Sewak Singh, P.W.20, deposed:
"I do make entries in the recordH at the
police out-post Kharela about my arrival there
and also about my dC'parture from that post.
These entries are made in the general diary by
way of allotment of duty."
Sheo Nandan Singh, P.W.19, Constable at that outpost, stated:
"This (Ex.K-5) is not a general diary in
which cases are registered and entered. It is
a register in which duties that are allotted and
the Amad and Rawangi of the police staff ·are
noted.
·
When the Sub-Inspector attached .,o Mus-
)rara co:mes to the police out-post at Kbarela
'
'
,
. "'
1962
Dharam Sirigh
y,
The St•le of
UltarPrmksh
Raghubar D•Jal J,
1962
Dharam Singh
v.
The S1alf. o/
Uttsr PraUsh
llaghubar na_,al J.
790 SUPREME COURT REPORTS (1962) SUPP.
hP notes his arrival and departure in tho register kept at police outpost Kharcla.