Dharam Singh And Others vs The State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 2244 of 1959

Decision Date: 9 March, 1962

Coram: Kapur, J., Das Gupta, J., Dayal, J.

In the matter titled Dharam Singh and others versus the State of Uttar Pradesh, the Supreme Court of India delivered its judgment on 9 March 1962. The case was heard by a bench of judges under the criminal trial‑conviction provisions applicable to a Sessions Judge, with the appeal taken to the High Court. The principal issue before the Court concerned the procedure to be followed when two judges hearing an appeal differ in opinion and the matter is referred to a third judge under section 429 of the Code of Criminal Procedure, 1898 (Act V of 1898). The petitioners, identified as the appellants, challenged their convictions for offences under section 302 read with section 34 and section 201 read with section 34 of the Indian Penal Code, arguing that the third judge should treat the opinion of the judge who had earlier acquitted them as a judgment of acquittal and should be required to address all reasons advanced by that acquitting judge. They further submitted that the evidence, particularly that of eye‑witnesses, was unreliable and that several circumstances proved by the trial record demonstrated that those witnesses could not be trusted. The appellants sought to have the convictions set aside on these grounds.

The Court recorded that the appellants and an additional accused, Prithviraj Singh, had been tried before a Sessions Judge who convicted them of the offences mentioned. On appeal to the Allahabad High Court, two judges heard the matter and arrived at opposing conclusions, prompting a reference to a third judge pursuant to section 429. The third judge ultimately upheld the convictions. The petitioners contended that the statutory provision did not require the third judge to act as if reviewing an acquittal, but rather to consider both divergent opinions and form an independent view. The Court held that section 429 imposed no such requirement for the third judge to treat an acquittal as a final judgment of acquittal; instead, the third judge was obliged merely to examine the opinions of the two previously hearing judges and render his own decision. In the majority judgment delivered by Kapur J. and Das Gupta J., the Court affirmed this interpretation. A separate judgment by Dayal J. disagreed with the majority view and, while acknowledging certain procedural infirmities in the High Court’s judgment—such as shifting the burden of proof onto the appellants and admitting inadmissible evidence—concluded that the circumstances raised by the petitioners did not warrant interference with the factual findings of the High Court. The Court also noted that the case exhibited numerous inconsistencies, improbabilities, and peculiarities that rendered the eye‑witness testimony unreliable, thereby preventing a conclusion that the prosecution had proved the case beyond reasonable doubt. The appellate record indicated that special leave was granted for the appeal, referencing Criminal Appeal No. 2244 of 1959, which sought to overturn the High Court’s order dated 5 May 1959 in Criminal Appeal No. 1049 of 1958 and Government Appeal No. 1766 of 1958. Counsel for the appellants included senior counsel and two additional advocates, while the State was represented by its own counsel. The judgment of Kapur J. and Das Gupta J. was read aloud, followed by a separate judgment from Dayal J., thus concluding the Court’s adjudication on the matters raised.

In the trial held at Hamirpur, the accused were charged with offences under section 302 read with section 149 and under section 201 read with section 149 of the Indian Penal Code. Some of the charges also invoked section 147 and others section 148, while the latter group faced section 201 read with section 149. Among the accused, Nathu Singh and Prithviraj Singh were acquitted, whereas ten other defendants were found guilty under section 302 read with section 149 and section 201 read with section 149. Two of those convicted were also found guilty under section 147 and the remaining were convicted under section 148. The Sessions Judge imposed a life term of imprisonment on the convicted persons under section 302 read with section 149, a three‑year rigorous imprisonment term under section 201 read with section 149, a two‑year rigorous imprisonment term under section 141 on two of the convicts, and a three‑year rigorous imprisonment term under section 148 on the others. All of these sentences were ordered to run concurrently.

The convicted persons appealed their convictions to the High Court at Allahabad, and the State filed an appeal against the acquittal of Nathu Singh and also sought enhancement of the sentences imposed on the convicted defendants. The High Court dismissed the appeal filed by the convicted persons and allowed the State’s appeal against Nathu Singh, thereby confirming the convictions of eleven persons and the life imprisonment sentences together with the other concurrent terms. Those eleven individuals then obtained special leave to appeal to this Court.

The appellants, together with Prithviraj Singh, were residents of the village of Kharela and were engaged in a longstanding enmity with the deceased, Raja Ram Singh. On 28 July 1957, at approximately three‑thirty in the afternoon, the appellants assembled in front of the house of Kali Charan. Two of them were armed with lathis, two with pharsas, and seven were equipped with spears. Dharam Singh, one of the appellants, questioned Raja Ram Singh about why he had been abused. Raja Ram Singh responded that he never insults anyone behind him and, if he wishes to insult, he does so to the person’s face, after which he planted his spear in the ground and remained standing. Dharam Singh then discarded his spear, rushed forward, seized Raja Ram Singh by the waist, and ordered his ten companions to beat the victim.

Raja Ram Singh was subsequently attacked with the various weapons and fell, sustaining severe injuries. While still alive, he was struck on the neck by Sheo Rattan Singh and Gulab Singh with pharsas, partially severing his neck. Acting on Dharam Singh’s instruction, others brought a cart, and Prithviraj Singh arrived at the scene. Dharam Singh sent Prithviraj Singh home to retrieve his gun, which Prithviraj Singh returned and handed, together with a bandolier of cartridges, to Dharam Singh. Dharam Singh loaded the firearm, placed the dead body of Raja Ram Singh on the bullock cart, and the ten persons then removed the corpse from the village.

It was alleged that the dead body was discarded in a nullah close to the village of Jataura. A police post exists in that village, and the post is headed by Head Constable Shivsewak Singh, who is assisted by an armed guard. At three forty‑five in the afternoon, Shyam Lal, who is the brother‑in‑law of the deceased Rajaram Singh, presented a report at the police post. Later, at seven thirty in the evening, the same Shyam Lal filed an additional report at the Muskara police station, a location situated eight miles from the village of Kharela. The occurrence was said to have been observed by five persons identified as 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 conveyed in a bullock cart, three other witnesses testified that they had seen the body being carried in that cart; those witnesses are named as Ram Nath (P. W. 21), Tijiwa (P. W. 22) and Jurkhan (P. W. 23). The appeal before the High Court was initially heard by Cak J. and Verms J. who formed a Division Bench. Because the two judges could not reach a common view, the matter was referred under section 429 of the Criminal Procedure Code to a third judge, Desai J.

Desai J., agreeing with Cak J., upheld the conviction of the ten appellants who had been convicted by the Sessions Judge and set aside the acquittal of Nathu Singh; consequently, eleven persons were found guilty and they sought Special Leave to appeal to this Court. The appellants contended that, according to section 429, when a Division Bench is equally divided and the case is referred to a third judge, the opinion of the judge who acquitted the accused must be treated in the same manner as a trial‑court acquittal. They further argued that even if the acquitting judge’s opinion does not contain compelling reasons for disagreement, the judgment of the third judge should nevertheless record all findings and reasons given by the acquitting judge and should indicate the grounds for disagreement. The Court found no support for that contention. Section 429, as expressed, states that when the judges of the Court of Appeal are equally divided, the case together with their opinions shall be placed before another judge of the same Court, and that judge, after any hearing he deems appropriate, shall deliver his opinion, with the final judgment or order following that opinion. The provision therefore merely requires the third judge to consider the two conflicting opinions, to hold any hearing he thinks fit, and to render a judgment based on his own opinion, without imposing the additional requirement of reproducing the acquitting judge’s reasoning.

Under Section 429 the Court of Appeal is required to place the divided opinions of two judges before a third judge, who must then give his own opinion. The judgment of the Court must follow the opinion of that third judge, and consequently the decision of the Court is based on the third judge’s view. In practice the third judge is expected to consider the reasons expressed by his two colleagues before forming his own conclusion, but the provision does not permit treating this procedure as identical to the rules that apply to appeals against acquittals. The Court therefore held that equating the requirements of Section 429 with the procedure for appeals against acquittals is not supported by the statutory language, by established principle or by precedent.

Justice Desai expressed the view that the eye‑witnesses had actually seen the incident and that their testimony should be accepted. However, he also observed that the record contained certain circumstances which, when examined, materially affected the strength of the oral evidence. Those circumstances had to be taken into account in order to determine whether the prosecution’s case was correct.

The first issue before the Court was whether the murder had taken place in the village, as alleged by the prosecution. According to the prosecution, the murder occurred in the village at three‑thirty in the afternoon, at the mouth of July, in broad daylight on a public road. The prosecution argued that the injuries inflicted on Rajaram Singh were severe enough that a sizable amount of blood must have been spilled at the scene. The prosecution further stated that after the murder, Dharam Singh sent for his bullock cart, a task that would inevitably have taken some time. In the meantime, the prosecution said, Babu Singh, a witness, notified Shyam Lal, who then proceeded to lodge a report at the police post in the village, a location said to be approximately four furlongs from the site of the incident.

The appellants challenged this version. They contended that if the murder had indeed occurred as described and an armed guard was present in the village, it would have been difficult for the appellants to summon a cart, place the dead body on it, and transport it out of the village. They further argued that the interval between the alleged commission of the murder and the filing of the police report raised a serious doubt about the occurrence of the crime in the village, pointing out that no blood had been discovered at the alleged site and that no evidence had been produced to show that any blood was ever present there.

The prosecution responded by submitting that the evidence indicated that the blood had been washed away after the murder by pouring a large quantity of water on the spot and plastering the area, which explained why the investigating Sub‑Inspector did not find any blood when he visited the scene. The prosecution also claimed that some blood had been discovered on the wall of the chabutra in front of the house of the appellant Kali Charan. That blood was collected in a small tin and sent to a chemical examiner for analysis. It may be noted that the dead body was ultimately discovered six and a half miles away from the alleged scene of the crime; the neck had been cut and only a headless body was found at that distant location.

The decapitated body was discovered in the dry bed of a nullah, a small watercourse, after the head had been removed. According to the prosecution, the witness Ram Avtar testified that a large amount of blood was present at that location. In contrast, the prosecution’s own witness, P. W. Raziuddin observed that only scattered drops of blood were found in nearby areas and no substantial accumulation existed in a single spot. The investigating officers collected samples of earth that appeared stained with blood from the wall of the chabutra belonging to Kali Charan. They also gathered a sample of earth that showed no staining from the same chabutra and placed both samples in separate small tins. Additional earth that was reportedly blood‑stained was taken from the spot in the nullah’s bed where the headless corpse had been located. All of these tins were forwarded to the designated chemical examiner, who was tasked with conducting a forensic analysis of their contents. The report of the chemical examiner was not clear, but it indicated that earth from two of the tins was indeed stained with blood, although the blood could not be conclusively identified as human. The extent of the staining on the chabutra wall of Kali Charan was not sufficiently demonstrated in the record. Justice Desai expressed the view that, given the nature of the alleged murder, a considerable quantity of blood should have been discharged at the scene. He further observed that the accused Kali Charan allegedly poured water over the location, which, in his opinion, would have concealed any visible blood.

During the examination of the accused under section 342, no question was put to Kali Charan regarding the presence of blood on his chabutra, nor were any of the other accused asked about that observation. Consequently, the reliance of the High Court on this unaddressed point to prejudice the appellants was regarded as improper. The defence further contended that investigators had failed to collect any soil samples from the alleged murder site and had not examined whether blood was present there. If a person’s neck had been cut and the body sustained multiple injuries as described, a substantial volume of blood would ordinarily be expected to flow from the wound. It was therefore difficult to accept that pouring water over the spot and plastering it could render all blood invisible and unrecoverable. Moreover, no systematic effort appears to have been made to collect soil from that position and submit it to the chemical examiner for testing. Justice Desai noted that the investigating officer observed wet ground, but it remained uncertain whether the wetness resulted from water or from blood.

In July, any water that had been poured at three‑thirty in the afternoon would ordinarily have dried by eleven at night. The appellants contend that no blood trail was discovered leading from the spot where the murder is alleged to have occurred to the location where the dead body was ultimately recovered in the dry bed of the nullah. Although the evidence on this point is conflicting, it is established that a certain amount of blood was present at the place where the body was found. The deceased’s head had been completely severed and removed, and traces of blood were also found on the cart that had been used, together with a blood‑stained axe. Consequently, if the head had been placed at the site where the body was discovered and blood was oozing at that time, it is difficult to imagine that no blood would have continued to ooze and that no trail of blood would have been left, yet no such trail was identified. It may further be noted that blood was observed on the planks of the cart on which the body is said to have been transported. According to standard texts on medical jurisprudence, blood does not coagulate until after four hours, which gives substantial weight to the appellants’ submission that a blood trail should have existed from the place of the alleged murder to the place where the body was taken. The judgment of Desai J. appears to place the burden of proving certain matters upon the appellants, a burden that is not supported by law. For example, the learned judge recorded that the appellants were questioned in the magistrate’s court about the allegation that they had killed Rajaram Singh at three‑thirty in the afternoon in the abadi and then carried his dead body in the cart belonging to Dharam Singh; the appellants denied all such allegations and did not say that the deceased had not been murdered in the abadi during daylight hours. The judge then observed, “If he 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 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 reasoning is regarded as erroneous. In another passage the learned judge again appears to shift the burden onto the appellants concerning the ownership of the cart used to transport the body. The prosecution relied upon the discovery of a blood‑stained bullock cart to support its case, and the defence attacked this evidence on the ground that no identification parade of the cart and the bullocks had been conducted. The judge held that no identification proceedings were necessary because the investigating officer had accepted the witness’s statement that the cart belonged to Dharam Singh, and therefore cross‑examination of prosecution witnesses to identify the cart and the bullocks was not required. He further remarked, “Dharam Singh, Babu Singh and Prithviraj Singh appellants denied that the cart and the bullock produced were theirs but did not say to whom they belonged and how they were obtained by the police. They also did not produce any evidence to rebut the evidence of the prosecution witnesses about their ownership.” Additionally, the judge relied on the fact that the bullock cart had been taken from the bara of Ram Adhin Singh and that a site plan prepared by the sub‑Inspector of Police showed signs of fresh removal of the cart from the bara. Such a plan, unless supported by witness testimony, does not constitute admissible evidence against the appellants.

The learned judge stated that no identification proceedings were required in this matter because, if the Investigating Officer accepted the testimony of the witness who claimed that the cart belonged to Dharam Singh, the officer was not obligated to cross‑examine the prosecution witnesses by asking them to identify the cart and the bullocks. He further observed that the appellants, namely Dharain Singh, Babu Singh and Prithviraj Singh, denied that the cart and the bullock produced were theirs, yet they did not explain to whom the cart and bullocks belonged or how the police obtained them. Moreover, the appellants failed to produce any evidence to counter the prosecution witnesses’ testimony regarding ownership. In the same connection, the judge relied on the fact that the bullock cart had been brought from the bara of Ram Adhin Singh and that a site plan prepared by the Sub‑Head Officer indicated signs of fresh removal of the bullock cart from that bara. He held that such a plan does not constitute admissible evidence unless it is supported by witness testimony, and therefore it could not be used against the appellants. The judge referred to the authority in Santa Singh v. State of Punjab (1) and Tori Singh v. State of Uttar Pradesh (2) to support this point.

The judge also noted another significant fact concerning the cart. According to the prosecution witness Babu Singh, the bullocks yoked to the cart were said to belong to Ram Adhin Singh. When Babu Singh was asked to identify the bullocks, he affirmed that one of them was the same as his, but he stated that the second bullock was not the same as the one that had been yoked to the cart when the dead body was being transported. The judge described this as an extraordinary circumstance, because the bullocks alleged to belong to Ram Adhin Singh had remained in police custody throughout, yet one of them appeared to have been replaced. An additional circumstance of equal importance involved the finding of the yoke belonging to the prosecution witness Tijiwa with the cart. It was stated that Tijiwa had met the appellants while they were driving the cart away from the village. At that time, Tijiwa was returning home with his employer’s cart, and his own yoke had been borrowed because the appellants’ cart yoke had broken. Tijiwa’s yoke was later discovered at the location where the cart was found. The judge pointed out that the fate of the broken yoke was not explained, nor was it shown how Tijiwa returned his own cart to the village without the yoke. This circumstance, along with the earlier observations, had not received the attention it merited from the High Court. The appellants also pressed an argument concerning the First Information Report and the police investigation. According to the prosecution, the incident occurred at about 3:30 p.m., and an information was recorded at the police post at 3:45 p.m., as further detailed by the prosecution witness Raziuddin.

The Head Constable together with two constables of the armed guard set out to recover the dead body and to pursue the alleged murderers by tracing the route of the bullock cart. They departed from the Kharela police post at three forty‑five in the afternoon, proceeded to the residence of appellant Kali Charan, and then followed the cart’s track. At a distance of four or five steps from the spot where the incident was said to have occurred, they encountered a man named Pancham Singh; the record indicated that he was not a genuine witness and that his statement to the constable did not constitute evidence. Continuing along the cart’s path, the officers discovered the dead body lying in a nullah roughly three furlongs from the habitation of the village Jataura. The corpse was found without its head. After leaving the two armed guards at that location, the parties moved a short distance further and located the bullock cart with its two bullocks, but no person was present near the cart. Head Constable Shivsewak Singh traveled to Balatal at twelve noon to appear as a witness. The police duty register at the Kharela post contained no entry recording his return, nor any entry showing that he had proceeded with Raziuddin and others in following the cart’s track. After leaving the armed guard at the site where the body had been found, Head Constable Shivsewak Singh went to Jataura and summoned the village watchman, Sumera. At about ten or eleven at night he dispatched Watchman Sumera to the Charkhari police station to deliver a report. It was alleged that, as a result of Sumera’s information, the Sub‑Inspector in charge of Charkhari police station arrived at the scene of the body and initiated an investigation on the morning of 29 July 1957. The Sub‑Inspector took possession of the dead body, retained the inquest report, and seized the blood‑stained earth and the cart. No justification was offered for the Head Constable’s sending of Sumera to Charkhari police station when the alleged offence had occurred within the jurisdiction of Muskara police station. The record further stated that the Officer‑in‑Charge of Muskara police station, Sub‑Inspector Basu Deo, arrived at the village Kharela at eleven at night. The duty register at the police post contained no entry confirming his presence at the occurrence site. He testified that, upon reaching the location, he observed that outside the house “some water appeared to be lying and at places it appeared that the ground had been washed with hand and water.” The court noted the difficulty of such observations in the middle of a dark night and recognized that the appellants rightly disputed the Sub‑Inspector’s claim of being at the village at that hour. From these circumstances the appellants argued that substantial doubt existed regarding the time when the First Information Report was filed as well as the time and place of the murder. The facts presented therefore cast considerable doubt on the authenticity of the report and the police investigation.

In this case the Court observed that there existed considerable doubt regarding the authenticity of the report and the investigation carried out by the Muskara police into the alleged incident. The Court noted that if the information had indeed been given at the police post shortly after the occurrence, as alleged, there was no reason why the police could not have reached the scene and prevented the removal of the dead body, which was said to have been transported on a bullock cart. The Court further pointed out that the entries in the Duty Register did not show that the Head Constable returned from Balatal at four o’clock, proceeded back to Kharela village, and then followed the track of the bullock cart that allegedly carried the body. Moreover, the Court found no justification for the Head Constable, upon finding the dead body near the nullah at about six‑thirty p.m., to have sent the Chowkidar of Jataurs to Police Station Charkhari to make a report there, nor for the investigation to have been conducted by the police of that station instead of the Muskara Police Station, which had become aware of the murder in its jurisdiction at approximately the same time. The Court also questioned why the Sub‑Inspector of the Kharela Police Post would go to the place of occurrence at eleven p.m. in a very casual manner, observe water lying at the site during the hot month of July, and then fail to collect any earth from that location the following day, a point the Court regarded as significant. It was further noted that there was a complete absence of blood at the alleged site of the murder; although some blood was reported on the wall of the Kali Charan chabutra, the extent and nature of that blood were not shown, nor was the distance of the chabutra from the exact spot of the murder clarified. No evidence was presented that any earth had been opened with human blood, and the Duty Register contained no entries to support the Sub‑Inspector’s presence, rendering his arrival doubtful. The Court observed that there was no indication of any blood trail, even a short one, from the alleged scene. Additionally, the Court found the testimony concerning the borrowing of a yoke from the prosecution witness Tijiwa to be highly suspicious in the circumstances. Finally, the Court criticized the learned Judge’s approach as inconsistent with law, noting that the Judge seemed to place the burden on the defence to disprove certain facts, such as the failure of the defence to produce reliable evidence contradicting eye‑witness testimony, the failure to state that the murder was not committed in the village, and the failure to identify the owner of the cart if it did not belong to Dharam Singh, thereby deviating from proper legal standards.

In the record, Raziuddin discovered blood on the route that led from the village settlement to the nullah, and the trial judge asserted that no further trail of blood could be expected because the bleeding must have ceased before the cart departed the settlement. The basis on which the judge concluded that the bleeding had stopped was not explained. The judge also placed reliance on a report filed by Chowkidar Sumera at the Charkhari police station concerning certain facts that were mentioned in the report. Because Sumera was not called as a witness, his statements could not be treated as evidence in the proceedings. It appeared that the judge also gave consideration to the fact that the accused were absconding and offered no explanation for their absence; however, the record did not show that any questioning of the accused on this point had taken place. Regarding the testimony of Ram Nath, Tijiwa and Jurkhan, who claimed to have seen the dead body being carried in the cart, the judge expressed that he found no reason to disbelieve their accounts. In another portion of the judgment, the judge observed that when the witnesses spoke of Rajaram Singh’s neck being exposed, they must have been instructed about that detail. Taking into account other material improbabilities in the witnesses’ statements, which the judge seemed not to have weighed, it became difficult to place reliable reliance on their evidence. The case was described as riddled with numerous inconsistencies, improbabilities and unusual features, leading to the conclusion that the prosecution had not proved its case against the accused beyond reasonable doubt. The opinion was expressed that the High Court had failed to consider important circumstances revealed by the evidence and had erred by improperly shifting the burden of proof onto the accused, resulting in a miscarriage of justice. Accordingly, the matter fell within the rule laid down in Pritam Singh v. State and warranted interference. Consequently, the convictions were ordered to be set aside, the appeal was allowed, the accused were acquitted and were to be released immediately unless required in another proceeding. Justice Raghubar Dayal noted that he had examined the judgment prepared by Justice Kapur and concurred with the interpretation of Section 429 of the Criminal Procedure Code. Nevertheless, he held that the circumstances raised on behalf of the accused did not justify disturbing the High Court’s factual findings, which had been considered by Justice Desai in forming his opinion, relying chiefly on the eye‑witness statements. The arguments advanced for the accused contended that the circumstances cast doubt on the prosecution’s version that the incident occurred within the village settlement, and therefore the convictions should be set aside. The first of those circumstances was that the incident occurred at 3.30 p.m.; information about it reached a police outpost situated four furlongs away at 3.45 p.m., after which the armed guard at the outpost proceeded to the spot, and yet it…

It was observed that the accused might have removed the dead body before the armed guard reached the scene. The time required to bring a bullock cart and load the corpse could have been sufficient for the armed guard to arrive later, allowing the removal to be completed. In this regard, the testimony of Babu Singh, identified as witness one, was noted. He stated that he left the spot after the body had already been placed on the cart, and that he subsequently informed Shyam Lal about what he had seen. After receiving this information, Shyam Lal proceeded to the police outpost. Babu Singh recounted his movements, saying that after the cart departed he went to the house of Raja Ram Singh, met Shyam Lal there, narrated the entire incident, and then watched Shyam Lal go to the outpost to lodge a report while he returned home. The first information report was entered at the police station at 7.30 p.m., and it recorded that the dead body had been taken away on a cart. This record demonstrated that the armed guard could not have arrived in time to prevent the removal of the corpse.

The Court also considered the timing of the incident. The claim that the event occurred at 3.30 p.m. was found to be inaccurate, because that was the time at which Babu Singh informed Shyam Lal, not the time of the crime itself. The FIR, as dictated by Shyam Lal, stated that “at about 3.30 p.m., Babu Singh… came to my house and informed me as follows…”. Consequently, the Court inferred that the criminal act must have begun earlier, perhaps around 3.00 p.m., and that the body would have been removed by approximately 3.25 p.m.

Another point raised was the allegation that no blood‑stained earth was found at the alleged spot, which was suggested to cast doubt on the occurrence of the crime there. The prosecution, however, presented evidence that some of the accused had washed the ground where blood had fallen and subsequently plastered it. Sub‑Inspector P.W. 27 testified that blood‑stained earth was taken from the doorway of the accused Kalicharan Singh, meaning from the front of his house. Another witness, Siya Ram, identified as P.W. 26, stated that a few places in the Chabutra showed blood stains that had been scraped, and that these stains were on the walls of the Chabutra. The recovery list, Exhibit K‑29, recorded that blood‑stained earth was scraped from in front of the house of Sri Kali Charan, son of Bhan Singh, Thakur, and also from the Chabutra where some blood stains appeared to be present. Additionally, blood‑stained earth from the location where the dead body was recovered was also taken into possession. Two separate samples of this earth were sent in different packets to the Chemical Examiner, who confirmed that both samples were indeed stained with blood. The serologist, however, could not determine the nature of the blood because it had disintegrated. In light of this evidence, the Court concluded that it could not be said that no blood‑stained earth was found at the alleged spot.

Raziuddin, who was designated as PW 17 and accompanied the armed guard to the alleged spot, testified that when he first visited the house of Kali Charan he observed that the ground in front of the house showed signs of being washed at several places. He said it appeared that someone had removed material from those places by spreading water with their hands and feet. This observation supports the statements of the other witnesses that the spot had been washed and plastered. Sub‑Inspector Basudeo, PW 27, recounted that he arrived at the house of Kali Charan at approximately eleven o’clock at night and noticed water standing outside the house and ground that seemed to have been washed with hand and water. He admitted that the night was dark and that he could not conduct a thorough local inspection because there was no suitable source of light. Nevertheless, the Court held that these circumstances do not seriously undermine his testimony. The Sub‑Inspector could not have confused the nature of the material and should have been capable of distinguishing water from blood. The testimony concerning the condition of the ground is not to be doubted even though about eight hours had passed since the alleged washing. Raziuddin also deposed that rainfall had occurred two days earlier. The incident itself took place on 28 July. Consequently, the ground might already have been wet before the alleged washing, and a fresh washing could have added further moisture. Moreover, the greater the amount of blood spilled, the more water would have been required to wash it away.

The prosecution also argued that no continuous trail of blood was observed between the village and the location where the dead body was recovered, a distance exceeding six miles. The corpse had been placed on the planks of a cart, and the planks became blood‑stained. Whether any blood fell from the cart onto the track depended on the volume of blood flowing and the gaps between the planks. It was not expected that blood would have fallen in a continuous stream; only occasional drops might have been left. Those drops could have been easily pressed down by the feet of the accused who were walking behind the cart. The armed guard and other persons who followed the cart were more focused on the marks left by the cart than on noticing tiny drops of blood that might have fallen sporadically on the track. Therefore, the absence of a visible blood trail along the passage does not defeat the prosecution’s case. When the cart was produced before the Court, one of the bullocks that had been used at the time of the corpse’s removal was present, while the other bullock had been substituted. A great deal of attention was given to the substitution of this second bullock. The Sub‑Inspector explained in his evidence that he had entrusted the recovered bullocks and cart to the custody of Binda Lodhi of the village Kharedi, stating, “I had entrusted the recovered bullocks and carts to the custody of Binda Lodhi of village Kharedi. One bullock which…”

It was recorded that the Sub‑Inspector had explained that a bullock which was white in colour could not be produced before the Court because it was suffering from small‑pox. When the accused were examined, they were asked about the allegation that the other bullock was afflicted with small‑pox, and the accused did not refute that statement. The police had not retained custody of either the cart or the bullocks, and an explanation was given as to why the second bullock was not produced in Court. The Court held that this circumstance did not in any manner undermine the correctness of the prosecution’s case. It was also contended that the cart and the bullocks recovered near the dead body had not been formally identified before witnesses. The Court observed, with reference to the earlier judgment of Desai, J., that when witnesses can recognise the cart and the bullocks, there is no necessity for a formal identification before a Magistrate. Only articles whose identity is unknown to the witnesses are ordinarily put up for a test identification. Consequently, the statements of those witnesses who positively identified the cart and the bullocks were to be assessed on the basis of other surrounding circumstances. Moreover, the evidence relating to the ownership of the cart was introduced merely to corroborate the testimony of the prosecution witnesses, and the Court noted that any cart that could be accessed by the accused might have been employed for transporting the dead body.

Further, the testimony of PW 22, identified as Tijwa, was examined. Tijwa recounted that Arjun Singh, one of the accused, had stopped the cart about a mile from the village of Abadi while returning from his fields and had replaced the cart’s broken yoke with the yoke belonging to Tijwa. It was argued that the High Court had failed to notice the absence of any evidence concerning the disposition of the broken yoke and the manner in which Tijwa’s cart reached the village, treating these as material facts. The Court, however, concluded that those matters were at best remotely relevant to the assessment of Tijwa’s credibility. No cross‑examination of Tijwa on this point was undertaken. Tijwa further affirmed that the broken yoke had also been taken away in Arjun Singh’s cart. From this statement it could be inferred that Tijwa’s cart remained on the road until its owner, Mahadev Brahmin, could retrieve it. The recovery memo, Exhibit K.22, made no mention of the broken yoke being found in the cart. According to the testimony, the broken yoke had been tied with a towel, and it was possible that the accused removed the towel and discarded the broken pieces. The investigating police party had no knowledge of the broken yoke at the time of the cart’s recovery and therefore could not have searched for the missing parts. It was also possible that the broken yoke was subsequently used by Tijwa himself. Since Tijwa’s cart was required to travel only a short distance compared with the cart that carried the dead body to the nala, the accused may have expected the broken yoke to fulfil the purpose of moving the cart to the nala and back. It was, in fact, an accident that the accused encountered Tijwa on the way and borrowed his yoke.

It was observed that the accused had proceeded in order to meet Tijwa during the journey and had borrowed Tijwa’s yoke for that purpose. The Court regarded this observation as having little relevance to the assessment of the correctness of the prosecution case and therefore treated it as a matter of minor significance.

A further point of criticism that had been directed against the appellants concerned the conduct of Sheo Sewak Singh, identified as PW 20, who served as Head Constable at the Kharela Police Outpost, and of the investigating officer, Basudeo, identified as PW 27. The criticism focused on the lack of entries in the duty register of the outpost regarding the return of Sheo Sewak Singh to the outpost at approximately four p.m., and also the absence of any entry concerning the Sub‑Inspector’s visit to the outpost at about eleven p.m. on the twenty‑eighth of July. The Sub‑Inspector explained his position by stating, “It is not necessary to make any arrival and departure (entry) at police out‑post Kharela, when I visit that post in the record, of that outpost.” He clarified that this remark referred specifically to making an entry about his arrival and departure. The Sub‑Inspector further added, “I did not make any entry of my activities in the night between the twenty‑eighth and twenty‑ninth of July 1957, in the record of police out‑post at Kharela nor it was necessary to note them there.” He also said, “Entries are made in the record at Kharela outpost about the duties allotted to the staff during duty hours.”

In response, Sheo Sewak Singh, PW 20, testified that he regularly made entries in the records at the Kharela police outpost concerning his own arrival and his departure from that post, explaining that “These entries are made in the general diary by way of allotment of duty.” Another constable at the outpost, Sheo Nandan Singh, PW 19, described the document in question (Ex K.5) as a register rather than a general diary, stating, “This 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.” He further explained that when the Sub‑Inspector attached to Muskara came to the Kharela outpost, the Sub‑Inspector recorded his arrival and departure in this register, but that no entry concerning the Sub‑Inspector’s arrival and departure was made for the night of the twenty‑eighth and twenty‑ninth of July 1957.

It is accepted that police officers normally record their arrivals and departures in the general diary at the police station and may also make similar entries in the duty registers of an outpost, especially if the statements of Sheo Nandan Singh are given preference over those of the Sub‑Inspector and the Head Constable. Nevertheless, such entries are typically made when the arrival of an external police officer is connected with official work at the outpost. A casual visit made en route to another location may not be required to be noted, and the return of a police officer to his quarters at the outpost may likewise go unrecorded. Consequently, any omission to make an entry in the duty register at the outpost does not, in the Court’s view, undermine the entire body of prosecution evidence regarding the incident and the conduct of the investigation. After the recovery of the dead body, the watchman Sumera was dispatched to Police Station Charkhari.

In this case the body that had been discovered was taken to the police station at Charkhari, which exercised jurisdiction over the area where the dead body was found. The person who made the discovery lodged a written report at that station at three o’clock in the morning, setting out the circumstances he had observed earlier in the night. The report was acted upon by Ram Autar Dixit, identified as PW‑14 and then serving as the second officer at Thana Charkhari. He proceeded to the location of the discovery, seized the dead body together with a cart that was present, prepared the formal inquest report required by law, and carried out other steps that were necessary for the investigation. A criticism was later raised that the messenger named Sumera had been sent to Charkhari police station and that the Sub‑Inspector had undertaken an inquiry into an offence that the prosecution claimed had been committed within the jurisdiction of Muskara police station. The Court found that this criticism had no basis. The law requires that the discovery of a corpse be reported to the nearest police station, and the report was correctly made to Charkhari police station, which also possessed the territorial jurisdiction where the body was located. Accordingly, it was the Sub‑Inspector’s duty, under section 174 of the Criminal Procedure Code, to go to the spot, prepare the inquest report and to take whatever additional measures were necessary for the recovery of the various items involved. The Sub‑Inspector’s honesty and his authority to carry out these actions were not put in question. The fact that Sumera was sent to convey the report to Charkhari police station could not be construed as evidence that no incident had occurred in the village of Kharela, as alleged by the prosecution.

The judgment also addressed a grievance concerning certain observations made by Justice Desai, which suggested that the accused had failed to make statements or to present evidence that would counter the prosecution’s case on specific points. It was argued that the burden of proving the defence version, thereby negating the prosecution’s version, had been improperly placed on the accused. The Court expressed the view that Justice Desai’s references were intended only as factors supporting conclusions that had already been reached after a full consideration of the evidence and the surrounding circumstances. Those conclusions were not based on any alleged silence or omission on the part of the accused. The Court noted, for example, that the accused had not been asked to explain how blood had appeared on the wall of the chabutra, and therefore their failure to do so could not be held against them. Nevertheless, the presence of blood on the wall of the platform and in the earth in front of Kali Charan’s house was established by positive evidence recorded in the proceedings. In another instance, after commenting on the reliability of the eyewitnesses, Justice Desai observed that Kharela is a large village and, had the murder not occurred inside the residential settlement at 3.30 p.m., the appellants could have produced reliable evidence to contradict the eyewitness testimony; yet they offered none. He further remarked that none of the witnesses had asserted that Raja Ram Singh was not murdered inside the settlement during daylight hours. The Court held that such observations were part of the overall reasoning but did not constitute the sole basis for the finding that the alleged incident had indeed taken place as described by the prosecution.

Desai, J. observed that if the victim had not been killed inside the village abadi during daylight, the accused, who were present at that time, should have heard when and where the murder occurred; consequently, their statements could not be treated as evidence governed by the Evidence Act, and they were merely reporting what they had heard. The Court expressed the view that there was nothing improper in this observation when the incident was alleged to have happened in broad daylight within the village abadi, yet the accused failed to produce any witness to refute the occurrence of such an incident in the village. It was further noted that a conclusion that the crime did indeed take place in the village, as alleged by the prosecution, could not rest solely on that consideration, and the finding to that effect was not based merely on it. In a similar vein, Desai, J. referred to certain accused who did not state to whom the bullocks belonged or how the police had obtained them. The Court clarified that a determination regarding the ownership of the cart and bullocks must rely on the testimony of witnesses such as Tijwa and others, and not on the accused’s silence on the matter. Desai, J. was deemed to have erred in relying on a note in the site plan whose subject matter had not been deposed to by any witness in court; however, this mistake concerning the note about fresh cart marks in Dharam Singh’s cart enclosure did not have a material effect on the findings. Regarding Sumera’s report at Police Station Charkhari, Desai, J. wrote that neither H.C. Sheo Sewak, nor P.C. Raziuddin, nor the armed guard had any motive to fabricate a false case against the appellants. Accordingly, when information was conveyed through Sumera, the village watchman, that the Kharela police had set out in search of the murderers, it should be accepted that this information reached the out‑post at approximately 3:45 p.m., prompting the out‑post police to commence an immediate search. In other words, the murder must have occurred in the abadi during daylight, as affirmed by the prosecution witnesses. Earlier, Desai, J. had recounted Sumera’s statements at the police station, indicating that Sumera arrived at three a.m., met the second‑ranking officer, and reported that constables from the Muskara police circle had visited his house in Jataura and informed him of Raja Ram Singh’s murder in Kharela, that the assailants had carried the corpse away in a bullock‑cart, that the head constable of the out‑post had pursued them, that the murderers fled after discarding the body in the Jataura nala, that the head of the corpse was missing but the cart had been recovered, and that he was instructed to convey this information to the police station. The Court stated that it does not consider the evidence concerning Sumera’s making the report and the statements therein to be inadmissible; rather, these matters are relevant to the record.

The Court observed that the dictation made by the officer could not be treated as substantive evidence of the facts narrated because Sumera had not been examined as a witness to prove those statements. Nevertheless, the fact that the officer actually made the dictation and the time at which he made it were facts that had been duly proved. Those proven facts could be used to assess the probability of what the direct evidence tended to establish. This approach was precisely what Desi J. adopted when he considered the officer’s report and the statements contained therein as factors that tended to support the prosecution’s version of events.

The Court further noted that Desi J. had earlier examined at length the allegation that the entire prosecution case had been concocted by the police and the villagers, and he had set out reasons for rejecting that suggestion. However, the Court found that Desi J. was in error when he referred to the accused's absconding as a circumstance adverse to them, because that issue had not been put to the accused during examination under section 342 of the Criminal Procedure Code. The Court held that this mistake did not materially affect the finding regarding the correctness of the prosecution’s case and therefore did not justify interference with the factual findings.

Consequently, the individual judge expressed an intention to dismiss the appeal. Yet, in accordance with the majority opinion, the appeal was allowed. The Court consequently acquitted the appellants and directed that they be released forthwith unless their detention was required in some other proceeding.