Dharam Singh and Others v. the State Ojj Uttar Pradesh

Judgment

iJ S.C.R. SUPREME COUR'l' REPoRTS DHARAM SINGH AND OTHERS THE STATE OJJ' UTTAR PRADESH (J. L. KAPUR, K. C. DAS GUPTA and RAGHUBAR DAYAL, JJ.) Criminal Trial-Conviction by Sessions Judge-Appeal to High Court-Dif!ere1'Ce between Judges hearing appeal- Reference 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 reasonsgiven 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. March 9 198t Dhr.ram sr,,gh Tl.~ Sbte nf Utt41' Prad~rh 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 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 TheSte'e of Vtiar Pradesl K"pur J lllaatam ~ingh 1 J,, Stall•! Uttar Protl1sli Ko/JUI' J. 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 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 Thi StaJ• of U tiar ProJ1sh Kapur J, 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 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 bloodstained 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() ' Dharam Singh f"he Stai. of Uttar Prad;sh . Kopur.J, . 19~2 Dh1,a'1t Sillfh Thi S1414 of U ttar Pracltsh 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 SUPREME COURT.

REPORTS 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 Dharam Singh Th'e'Sttstt or lftfQr PradtSh Kapur·:!;

JMI DlaaFam St11gh 11,, Stai. of (/114r Prodesh KopurJ. 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- A.f. 1q!6S.C. 526. t~) [1962) l S.C.R. 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 Dharam Sinz'h · . The State of Uttar .Pradesh Kapur J'. 196B Dharam Sin1h 7 h, Stou oj L. ~!ar Pro<ksh Kapu1J, information given by Chowkida.r Sumera. tho Sub- Inspector 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;,- 'Fhe {itJJt~ oJ T..:ttar Pradlih JUI Dluvom Singh 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. 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 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 The Stott of Ullar-Prodt•h Raghub<-r LO.JOI J. 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 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 Tht Stalt of Uttar PrtJtltJ.'i Rag/,ubar Datal J. 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.

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 Tht. State of Uttar Pradesh lioghubat Dayal J, 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 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 Dharam Sirigh The St•le of UltarPrmksh Raghubar D•Jal J, Dharam Singh The S1alf. o/ Uttsr PraUsh llaghubar na_,al J. hP notes his arrival and departure in tho register kept at police outpost Kharcla. No entry of his arrival and departure is made in the register in the night between the 28th and 29th of July l!l5i." Police officers do write their arrivals and departures in the general diary at the police station and may also be doing so at the out-post duty registers, if '3heo Nandan Singh's statement is to be preferred to the stat.Pmonts of tho Sub-Inspector and the Head Const.able. But even then such C'ntrics arc usually made when the :trrival of an outside police officer is in connection with some work at the outpost. A casual visit on his way to another spot may not be required to Le noted.

Similarly, the return of a member of the police force at t.he outpost would be' nl'ted when he finally returns to duty. His mere return to his quarters at the outpost may not he noted. Any way, any omillfion to make an entry the duty register at the out-post is not to rliscredit the entire prosecution evidence about the incident. and the course of the investigation. After the recovery of the clead body, i:'umera, Chowkidar, was sent. to Police Station Charkhari, in whose jurisdiction the dead body was founcl. Ho lodged a report thne at 3 a.m., and stated in it wh;it lrnd taken place earlier. Rt\m Autar Dixit, P.,V.14, the then second officer at Thana Charkhari, went to the spot, took in possession the dea<l bod.v and the cart, prnpared the inquPHt report and took other necessary steps.

Criticism is made of Sumcra's being B<'nt to Charkhari police station and of this Sub-Inspector making an inv<'stigati9n in connection with an offenc<:' said to h:weheen committed in thn jurisdiction of police station Muskara. Thn criticism is unjustified. 'fhe recovery of the corpse had to be reported to the nearest police station and was properly made at Charkhari Police Station in whose jurisdiction also the dead body was found. It was the duty of the Sub-Inspector to proceed to the spot to prepare the inquest report and to take such other action as was necessary in the circumstances with respect to the recovery of the various articles (s. 174 Cr. P.O.). He was not questioned about his bonafides or about his jurisdiction to do what he stated to have done. The fact that Sumera was sent to report the recovery of the dead body to police station Charkhari can hardly lead to the conclusion that this was done as no incident had taken place in village Kharela as alleged by the prosecution.

Lastly, griPvanc.e is made of certain observations of Desai, J., generally to the effect that the accused had not stated something ·or had not led evidence to rebut the prosecution evidence on certain points. It is urged that he therefore wrongly placed on the accused the onus of proving the defence version negativing the prosecution version. I am of opinion that he made references to this as a ,factor suppnrting the conclusions he had already arrived at on the consideration of the evidence and circumstances. He did not base ·his findings on such conduct of the accused. He based his conclusion on moJe solid groundH. Some of such observations are : ( 1) •That the accused gave no explanation as to how the blood came to be on the wall of the Chabutra'. The accused were not questioned about it and therefore their omission to explain it could not go against them.

However, the fact that blood was found on the wall of the platform or in the earth in front of Kali Charan' a house was proved froµi_ the positive evidence on record. 1962 - Dharam Singh The Stai, of U tlar Pradqsh R aghubar D 1yal J •. 19G2 Dh•11w1 Singh "Tit Sta e cf Utlnr l'radrsh . Rcgl.llbar Do; a I. (2) Aftor Desai, J. had expressed his opinion about the reliability of the cyC·\I itnesses, he stated : "Kharela is a large village and if tho murder did not take place inside the abadi and at 3-30 p.m. it would not have been difficult for the appellant£ to produce reliable evidence to contradict the cye-witneescs, but they did not produce any cvidence .... None of them said that Raja Ham Singh was not murdered in the abadi and in day time. If be was not murdered in the abadi and in day time they must have heard when and where he was murdered. Their statements were not evidence govorned by the Evidence Act and they could say that what they had heard."

I am of opinion that there is nothing wrong in this observation when the incident is alleged t(I have taken place in broad daylight in the village abadi and yet the accused did not examine any witness to establish that no such incident took place in the village. Of coursP, e. finding that the incident di<l take place in the village as alleged by the prosecution could not have been ha.Red on such consideration alone and the finding to that effect has not been so based. (3) · Similarly, Desai, J., made rdcrcnce to cer~ain accused not stat.ing as to whom the bullocks belonged and how they were obtained by the police. A finding about the ownership of the cart and bullock> is based on the evidence of Tijwa and .other witnesses and not on the omission of the accused to state as to whom they belonged.

Desai, J., ~as certainly wrong in using a note in the site plan when. the subject matter of that note was not deposed to by any \\· it.ncss iu Court, hut this error with respect to the notn that thtJro were fresh ·marks of a cart in the cart enclosure of Dharam Singh had no signific:ant bearin!( on tho case. In connection with Sumera's Report at Police Station Charkhari, Desai, J., observed in his judgment: "Neither H.C. Sheo Sewak nor P.C. Raziuddin nor the armed guard had any interest · in concocting a false case against the appellants on their own. Therefore, when the information was conveyed through Sumera Chaukidar that Kharela police had gone in· search of the murderers, it must be ·accepted that information was received at the out-post at about 3-45 p.m. about the murder 'in the Abadi and that the out-post police went at once in search of the murderers. In other words the murder must have been committed in the Abadi and in day time as deposed by the prosecution witnesses."

Earlier, Desai. J., had said what Sumera had informed at th<'l Police Station. He said : "Sumeri't reacµed the police station at 3 a.m., met the second officer and informed him that constables of police circle Muskara went to his house in Jataura. and told him that Raja Ram Singh was murdered in Khare la, that the murderers carried away· his corpse in a bullock-c<irt and they and the head-constable of the out-post followed them, that the murderers ran away after throwing the corpse into the nala of Jataura, that the head of the corpse was missing but the bullock cart had been recoverecl and that he was sent to convey the information at the police station." I do not consider the evidence about Sumera's making the report and stating certain thinas there to be inadmissible in evidence. These are"' matters of record. What he dictated cannot be considered to be substantive eviqence of the facts stated, when J961 Dharam Singh The Stale of Ultar Praduh Raghubnr Dayal J. Dhoram Singh TAe St.U of Uttor Prath;h Raglnibar J).,_101 J. Sumera was not examined as a witness to prove them.

But what he actuallv dictated and thA time when he dictated arc facts ·which have been duly proved. They can be considered to determine the probability of what the direct eviden•:O tended to establish. This is what Desai J., did when he use<l these facts of his making the report and ma.king certain statements in considering that thoy tend · to support the prosecution version. It may be noted that he had earlier considered at length the suggestion th'Lt the entire proseuution c1ise was concocted by the police and the villagers and had given his reasons for repelling tho suggestion. Desai J., was in error to refer to t.he absconding of the accusod as a circumstance against them as that had not been put to them when examined under s. 3!?, Cr. P. C. But as it did not basically affect the finding with rnspect to tho rorrcctness of the prosecution case, that would not justify interference with the findings of fact. I would therefore dismiss this appeal. BY CocnT.

In view of the opm1011 of the majority, the 'Lppeal is allowed. The appellants are acquitted and must be rcle;isrd forthwith un Ires required in some other ca.se .