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1962 Supreme(SC) 100
SUPREME COURT OF INDIA
J. L. KAPUR, K. C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.
Dharam Singh and others, Appellants
Versus
State of Uttar Pradesh, Respondent.
Criminal Appeal No. 224 of 1959.
Advocates appeared
Mr. Jai Gopal Sethi, Senior Advocates (M/s. C. L. Sareen and R. L. Kohli, Advocates, with him), for Appellants; M/s. G. C. Mathur and C. P. Lal, Advocates, for Respondent.
The court held that under Section 429 CrPC, a third judge's opinion in a divided bench prevails without the stringent requirements of an appeal against acquittal. It also reaffirmed that the prosecution must prove its case beyond reasonable doubt without shifting the onus to the accused.
Headnote:(A) Indian Penal Code - Sections 302, 147, 148, 149 and 201 - Code of Criminal Procedure - Section 429 - Difference of opinion between judges in a Court of appeal - When judges are equally divided in opinion, the case is laid before another judge, and the judgment or order shall follow such opinion - The opinion of the judge acquitting the accused in such a scenario is not to be treated in the same manner as a judgment of acquittal by the trial court, and the third judge is not required to follow the same principles as those applied in appeals against acquittals. (Para 5)
(B) Criminal Jurisprudence - Onus of proof - The prosecution must establish the case beyond reasonable doubt - It is an erroneous approach to place the onus on the accused to disprove certain facts or to provide an explanation for the absence of evidence to the contrary - Failure of the defense to produce reliable evidence to contradict eye-witnesses or to state an alternative version of events cannot be used to support a conviction if the prosecution's case is fraught with inconsistencies and improbabilities. (Paras 8, 9, 12)
Facts of the case:
Accused persons were convicted for murder and causing disappearance of evidence. The prosecution alleged that the deceased was attacked in a village in broad daylight, the body was transported in a bullock cart to a nullah, and the head was severed. The conviction was upheld by the High Court after a third judge resolved a difference of opinion between two judges of a Division Bench.
Findings of Court:
The court found significant gaps in the prosecution's case, including the total absence of blood at the alleged place of occurrence despite severe injuries, the lack of a blood trail from the village to the recovery site, and suspicious police conduct characterized by missing entries in the duty register and irregular reporting to a police station outside the relevant jurisdiction.
Issues: Whether the opinion of a third judge under Section 429 of the Code of Criminal Procedure should be treated as a judgment of acquittal and whether the prosecution established the guilt of the accused beyond reasonable doubt given the evidentiary gaps and the placement of onus on the accused.
Ratio Decidendi: The court held that Section 429 of the Code of Criminal Procedure simply requires the judgment to follow the third judge's opinion. Furthermore, the conviction was unsustainable because the High Court erroneously shifted the burden of proof to the accused and failed to consider material improbabilities in the testimony and investigation, resulting in a miscarriage of justice.
Result: Appeal allowed. The appellants are acquitted and must be released forthwith unless required in some other case.
KAPUR, J. : (On behalf of himself and Das Gupta J.) :
The appellants and Prithviraj Singh were tried by the Sessions Judge, Hamirpur, the former for offences under S. 302 read with S. 149 and S. 201 read with S. 149 and of them some under S. 147 and others 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 and S. 201 read with S. 149 and two of them were convicted under S. 147 and others under S. 148. The Sessions Judge sentenced the convicted persons to imprisonment for life under S. 302 read with S. 149, to three years rigorous imprisonment under S. 201 read with S. 149, two of them to two years rigorous imprisonment under S. 147 and others to three years rigorous imprisonment under S. 148 but all the sentences were concurrent. Against that order the convicted persons took an appeal to the High Court at Allahabad and the State appealed against the acquittal of Nathu Singh and also applied for enhancement of sentences against the convicted persons. The High Court dismissed the appeal of the convicted persons and allowed the appeal against Nathu Singh. Thus 11 persons were convicted and sentenced to imprisonment for life and to other concurrent sentences and they have appealed to this court by special leave.
(2) The appellants and Prithviraj Singh, are residents of village Kharela and they were on terms of enmity with the deceased Raja Ram Singh. On July 28, 1957, at about 3-30 p. m. the 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 Ram Singh as to why he had been abusing him to which the reply given by Raja Ram Singh was that he was not in the habit of abusing anybody at his back and if he felt like abusing anybody 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 of which he fell clown 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 Dharam Singh, his cart was brought by others and Prithviraj 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.
(3) There is a police post in the village of which Head Constable Shivsewak Singh is incharge and there is also an armed guard there. At 3-45 p. m. Shyam Lal who is the brother-in-law (wife s brother) of Rajaram Singh made a report at the police post and at 7-30 p. m. he made a report at the police station Muskara which is 8 miles away from village Kharela. This occurrence was witnessed by five persons P. W. Babu Singh P. W. Shivnath Singh, P. W. Ram Narain, P. W. Mulaim 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. They are Ram Nath P. W. 21, Tijiwa P. W. 22 and Jurhan P. W. 23.
(4) In the High Court the appeal was heard in the first instance by Oak and Verma, JJ. There was a difference of opinion between the learned judges and the matter was referred under S. 429, Criminal Procedure Code to Desai, J., who agreeing with Oak, J., upheld the conviction of the ten appellants who were con
victed by the Sessions Judge and set aside the acquittal o
