LexDHARAM SINGH AND OTHERS versus THE STATE OJJ UTTAR PRADESH
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iJ S.C.R. SUPREME COUR'l' REPoRTS DHARAM SINGH AND OTHERS v. THE STATE OJJ' UTTAR PRADESH (J. L. KAPUR, K. C. DAS GUPTA and RAGHUBAR DAYAL, JJ.) 769 Criminal Trial-Conviction by Sessions Judge-Appeal to High Court-Dif!ere1'Ce between Judges hearing 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. con- victions. The appellants contended that where a case was referred under s. 429, the opinion of the Judge acquitting the accused had to be treated as a judgment of acquittal and that the third Judge must consider all the reasons- given by the acquitting judge and his judgment should indicate the reasons for disagreeing with the opiniOn of'the acquitting Judge. The appCllailts further ·contended that there were certain· circum- stances proved by tne evidence on the record which s bowed that the eye-witnesses co!Jld not be relied upon. Held, that there was nothing in s. 429 which required the third Judge to whom the reference was made to act as though he was sitting in appeal against acquittal. He had to consider the opinion of the two differing Judges and to give his own opinion. Hehl, further (per Kapur and Das Gupta JJ. Dayal J. contra) that the judgment of the High Court suffered from such, infirmitie_s,. as placing the. ontis of proof of certain facts on the appellants and using of inadmissible evidence. The case was ftill Of ·110 many inCons.iste:nc~es 'and improbilities and peculiarities that it made it difficult to rely upon the testimony of the eye-witnesses and to hold that the case against the appellants was established beyond reasonable doubt. Per Dayal J. The circumstances urged by the appellant did not make out a case for interference with the findings of facts 'of the High Court. 1962 March 9 198t Dhr.ram sr,,gh •• Tl.~ Sbte nf Utt41' Prad~rh I. . ' ' . 770 SOl'REME COURT REPORTS [Hl62] SUPP. CRDtrNAL APPELLA'fll Ju&ISDIG'l'ION: Criminal Appeal N'o. :!:2-! of 1!159. . Appeal by special leave from the judgment aml or~er cla.te~ I 959. :May 5 of the Allahabad High Court m Cnmmal Appeal N'o. 1049 of 1958 and Government Appeal No. 1766 of 1958 . .Jai Gopal Sethi, C. L. Sareen and R. L. Kohli for the Appellants. G. C. Math'Ur and C, P. Lal for the Respondent. _ l!W2. March 9. The Judgment of Kapur and Das Gupta, JJ. was delivered by Kapur, J. Dayal, J., delivered a separate Judgment. KAPl:R, J.-The appellants and Prithviraj Singh were tried by the 8essions Judgt', Hamirpur, tho former for offences under s. 302 read withs. 149 and 8. ~Ol rea-0. withs. 149 and of them some under s. 147 and othurs under s. 148 and the latter under s. 201 read with s. 149 of the Indian Penal Code·. From amongst the accused persons Nathu Singh was acquitted and so was Prithviraj Singh but ten others were convicted under s. 302 read with s. 149 ands. 201 read with s. 149 and two of them were convicted undor s. l4i and others under a. 148. The Sessions J udgc sentenced the convict~d persons to imprisonment for life under s. 302 read with s. 149, to three years' rigorous imprisonment under s. 201 read with ~. 149, two of them to two years' rigorouH imprisonment under s. 14 7 and others to three yoars' rigorous imprisonment under s. 148 but· all the sentences were concurrent. Against that order the convicted persona took an appeal to the High Court at ~llahabad and t~e 8tate appealed against the acquittal of Nathu Smgh and also app- lied for enhimcement of sentences against the con- victed persons. The High Court dismissed the app- eal of the convicted persons and allowed tho :ipp- eal against N'athu Singh. Thus H persons w~re convicted and sentenced to 1mprisolllllent for life 3 S.C.R. SUPREME COURT. REPORTS 77i and to other concurrent sentences and they have appealed to this court by special leave. The appellants a.nd Prithviraj Singh are resi- dents of village Kharela and they were on terms of enmity with the deceased Baja Ram Singh. On July 28, 1957, at about 3-3
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