Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 228 (PAT)

Sandeep Kumar Sharma v. State Of Bihar

2002-02-14

NAGENDRA RAI, R.S.GARG

body2002
Judgment 1. The two appellants, Sandeep Kumar Sharma alias Dabha and Pradeep Kumar Sharma have filed the present Appeal against their conviction passed and sentence awarded by the Sessions Judge, Katihar in Sessions Case No. 302 of 1990. Both the appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code and Appellant no. 1, Sandeep Kumar Sharma has been further convicted under Section 302 of the Indian Penal Code. Appellant no. 1 has been awarded life imprisonment under Section 302 of the Indian Penal Code but no separate sentence has been awarded under Section 302/34 I.P.C. Appellant No. 2 has been awarded life imprisonment under Section 302/34 of the Indian Penal Code. 2. The prosecution case in brief is that when the informant, Dilip Kumar Sharma, P.W. 12 along with the deceased Raj Kumar Sharma and other family members was watching the television at this house situate in Mohalla Shiv Mandir Chawk, Bara Bazar, Katihar at about 9 P.M. on 5.8.1990, the appellants at that time came. Appellant no. 2 caught hold the hands of the deceased, Raj Kumar Sharma and Appellant No. 1, Sandeep Kumar Sharma gave him dagger blows on his chest as a result of which he received injuries. The injured was taken to the Hospital where he died in course of treatment. On the said date at about 10 P.M. in the Hospital itself, the Sub Inspector, J. Ansari recorded the fardbeyan of the informant, Dilip Kumar Sharma (Exhibit 1) where he narrated the prosecution case as stated above, on the basis of which a formal F.I.R. (Exhibit 3) was drawn up and the police after investigation submitted the chargesheet. 3. After cognizance and usual commitment the appellants were put on trial and were convicted by the Trial Court as stated above. Their appeal was placed before the Division Bench consisting of Hon ble Mr. R.N. Sahay and Hon ble Mr. P.K. Sarkar, JJ. and they delivered the judgment and order dated 11.5.1998. Both of them dismissed the appeal of Appellant No. 1, Sandeep Kumar Sharma. Regarding Appellant No. 2, Pradeep Kumar Sharma there was a difference of opinion as while R.N. Sahay, J. set aside his conviction and sentence, P.K. Sarkar, J. dismissed his appeal and thereafter the matter was placed before the third Judge, Hon ble Mrs. Both of them dismissed the appeal of Appellant No. 1, Sandeep Kumar Sharma. Regarding Appellant No. 2, Pradeep Kumar Sharma there was a difference of opinion as while R.N. Sahay, J. set aside his conviction and sentence, P.K. Sarkar, J. dismissed his appeal and thereafter the matter was placed before the third Judge, Hon ble Mrs. Justice I.P.Singh under Section 392 of the Code of Criminal Procedure to deliver her opinion for the purposes of passing a final judgment and order in the matter. Mrs. I.P.Singh, J. since disposed of the matter by the order dated 18.12.1998 and came to the conclusion that the prosecution has failed to prove its case against both the appellants. In other words though the two Hon ble Judges who have heard the earlier had dismissed the appeal of appellant no. 1, she came to the conclusion that the prosecution has failed to prove the case against him also and he was also entitled to be acquitted. 4. With the aforesaid opinion she referred the matter to the Division Bench for proceeding in accordance with law. Thereafter the matter was placed before the Division Bench of the same Hon ble Judges on 5.2.1999 and they opined that as the third Hon ble Judge (Smt. I.P.Singh, J.) has already finally disposed of the appeal, the matter should have not been placed before the Division Bench as there is no such provision in the Code of Criminal Procedure. Thereafter again the matter was placed before Smt. I.P.Singh, J. who by the order dated 30.7.1999 returned the file on the ground that the matter has to be disposed of by the Division Bench in accordance with the opinion by her that is how the matter has been placed before us for disposal. It is to be mentioned that the two Hon ble Judges, who have delivered the judgment have since retired. 5. Section 392 of the Code of Criminal Procedure provides inter alia that when an appeal is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion. 6. 6. A plain reading of the aforesaid provision shows that the third Judge has to express his opinion in case a difference of opinion arises between the two Hon ble Judges and thereafter the judgment and order has to follow on that opinion. The third Judge has not to decide the matter finally. On the other hand the appeal has to be disposed of by a Division Bench in accordance with the opinion expressed by the third Judge. 7. In this connection a reference has to be made to the case of State of Uttar Pradesh V/s. Dan Singh and others [1997 (2) BLJ 315] wherein it has been held that in a case of such a situation the appeal is finally to be disposed of by the judgment and order in accordance with an opinion of the third Judge. 8. It is also well settled that even if the referring Bench is in agreement with regard to their opinion convicting some of the accused, the third Judge to whom the matter has been referred has to examine the whole question and is not bound of the opinion of the referring Judges. In other words even if the referring Judges are in agreement regarding the nature of the order to be passed against some of the accused, the third Judge to whom the matter has to be referred has to consider that matter also and can take a view different from what has been taken by the referring Judges. In this connection reference may be made to the case of the Apex Court in the case of Sajjan Singh V/s. State of Madhya Pradesh ( AIR 1998 SC 2756 ) where it has been held that the third Judge to whom the matter is referred on difference of opinion by two Judges of Division Bench of High Court, is required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. As a matter of fact that Judge is not bound by any such opinion of the Division Bench. He is not hearing the matter as if he is sitting in a three-Judge Bench where the opinion of majority would prevail. 9. As a matter of fact that Judge is not bound by any such opinion of the Division Bench. He is not hearing the matter as if he is sitting in a three-Judge Bench where the opinion of majority would prevail. 9. In this connection, as stated above, Smt. I.P. Singh, J. to whom the matter was referred after difference has opined that both the appellants should be acquitted. The said opinion is binding on us. Accordingly we are disposing of this appeal in conformity with the aforesaid opinion. The result is that this appeal is allowed and conviction and sentence passed by the Trial Court against both of the appellants are set aside. Appellant No. 1, Sandeep Kumar Sharma is in jail. He is directed to be released forthwith unless he is required in any other case. Appellant no. 2, Pradeep Kumar Sharma is discharged from his bail bond.