Sandeep Kumar Sharma @ Dabbua and Pradeep Kumar Sharma Vs The State of Bihar

Indu Prabhu Singh, J.@mdashThis appeal by both the Appellants is directed against the judgment dated 18.5.1991 passed in Sessions Case No. 302/90 by Shri R.D. Roy, Sessions Judge, Katihar by which Appellant No. 1, Sandip Kumar Sharma, was convicted u/s 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. He was further convicted u/s 302 read with Section 34 of the Indian Penal Code but no separate sentence was passed against him. Appellant No. 2, Pradeep Kumar Sharma, was convicted u/s 302/34 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life.

2. The prosecution case, in short, is that on 15.8.1990 at about 9 P.M. the Informant, Dilip Kumar Sharma (P.W. 12), who happened to be the brother of the deceased, Raj Kumar Sharma, was watching television in one of the rooms of his house and at that time his other family members were also sitting there. At about 9 P.M. both the Appellants entered into their house. While Appellants No. 2 held the hands of the deceased, Raj Kumar Sharma, Appellant No. 1 gave a dagger blow on his chest as a result of which he received serious injury and became unconscious. He was removed to the Hospital where be died. The Fardbeyan (Ext. 1) of P.W. 12 was recorded at the Hospital on the basis of which formal F.I.R. (Ext. 3) was drawn up. The police after completing the investigations submitted the charge sheet. The cognizance of the offence was taken and after necessary commitment enquiry the case was committed to the court of sessions. On trial by the learned Sessions Judge, the Appellants were convicted in the manner indicated above.

3. In this appeal the Appellants have contended that in this case independent and competent witnesses have not been examined. Out of 16 P. Ws. examined in this case P. Ws. 5, 7, 13 and 14 have been tendered for cross examination.P. Ws 1, 2, 6 and 9 have not supported the case of the prosecution and were declared hostile. P.W. 15 is the Investigating Officer and P.W. 16 is Dr. A. Jha who held the post mortem examination on the dead body of the deceased. P.W. 8 is the grand mother of the deceased and P.W.10 is his sister. P.W. 11 is the mother of the deceased.P. Ws. 3 and 12 are the full brothers of the deceased. On behalf of the Appellants it has been contended that only the relations of the deceased have supported the case of the prosecution. No independent witness has been examined in this case. From Ext. A which is the letter written by the wife of the informant (P.W. 12) it will appear that the mother of the deceased was planning to falsely implicate the Appellants in some cases. The prosecution case is improbable inasmuch as the Appellants would not have thought of committing this offence in presence of the family members of the deceased, specially when the families of the deceased and that of the Appellants were living in the same house and the Appellants could have got ample opportunity to commit the alleged offence in some secluded spot. On these grounds, amongst others, it has been contended that the judgment of conviction of the learned court below be set aside and the Appellants be acquitted.

4. The only point for decision before me is whether this appeal is fit to be allowed or not.

5. Before proceeding to discuss the merits of this case it may be stated that this appeal was placed before a Division Bench of this Court presided over by R.N. Sahay and P.K. Sarkar, JJ. By order dated 11th May, 1998 they dismissed the appeal of Appellant No. 1, Sandip Kumar Sharma alias Dabbua. So far as the Appellant No. 2, Pradeep Kumar Sharma, was concerned they differed in their verdict. R.N. Sahay, J., set aside the conviction and sentence of Appellant No. 2, Pradeep Kumar Sharma. From the separate order given by P.K. Sarkar, J. it appears that he confirmed the judgment of conviction and sentence awarded to both the Appellants. Accordingly, he dismissed the appeal and up-held the judgment of the learned court below.

6. In view of this difference between the two learned Judges the matter was placed before the Hon''ble the Chief Justice who transferred the case to the court presided over by me and this is how this appeal has come before me. In this connection a reference may be made to Section 392 of the Code of Criminal Procedure, 1973 (in short the ''Code'') which regulates the procedure in the situation like this. It runs as follows:

392. Procedure where Judges of Court of Appeal are equally divided.- When an appeal under this Chapter 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:

Provided that if one of the Judges, constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires the appeal shall be re-Heard and decided by a larger Bench of Judges.

It may be mentioned here that this section of the Code roughly correspondent to Section 429 of the Code of Criminal Procedure, 1898 (in short the old Code). Section 392 of the new Code has, however, got a proviso added to it. Minus this proviso, there is hardly any difference between the import of these two sections.

7. On behalf of the State it has been submitted that in exercise of power u/s 392 of the Code the learned third Judge, before whom the case is placed, has to confine himself only to the points of difference between two learned Judges who constituted the Division Bench. it was also submitted that it will not be open to the learned third Judge to set aside or to otherwise modify or deal with the concurrent findings of the two learned Judges constituting the Division Bench. It was pointed out on behalf of the learned Additional Public Prosecutor, Mr. Ashwani Kumar Sinha, that u/s 392 of the Code the learned third Judge has to confine himself only to the points of difference between the two learned Judges constituting the Division Bench and he is to give his opinion only on those points of difference between the two. As against this on behalf of the Appellants, Mr. Shyam Bahadur Prasad, has contended that once the case is placed before the learned third Judge, in case of a difference of opinion between the two learned Judges constituting the Bench, the learned third Judge will have power to give his opinion on the whole case as it he thinks fit and proper and the opinion given by him will be binding on the Division Bench. In other words it has been contended if the learned third Judge finds that the concurrent findings of the learned Judges constituting the. Bench is not sustainable in the eyes of law; Section 392 of the Code empowers him to set aside the conviction and sentence of the Appellants even when their appeal so far as their conviction under any particular section is dismissed by the Division Bench. Since the contentions raised on behalf of both the parties on this point are of considerable importance it has become necessary for me to deal with the same in detail.

8. The power of the learned third Judge before whom the appeal is placed on a difference of opinion between the two other Judges of the same Court constituting the Division Bench has come up for consideration and decision from time to time before the Hon''ble Supreme Court. In view of the aforesaid submissions made by both the sides it becomes necessary for me to properly examine the law on the subject.

9. In support of his contention the learned A.P.P. has relied on the case of Bhagat Ram Vs. State of Rajasthan, . This is a judgment by the two Hon''ble Judges constituting the Bench of the Supreme Court J.M. Shalet and H.R. Khanna, JJ.). In this case charges under Sections 161, 218, 347, 389 and 120B of the Indian Penal Code as also u/s 5(1) (a) and Section 5(2) of the Prevention of Corruption Act were framed against both the accused who were acquitted of all the charges by the learned Special Judge. The State preferred an appeal against this acquittal before the High Court. The Appeal against one of the Appellants was dismissed. There was a difference of opinion between the two learned Judges constituting the Division Bench of the High Court with respect to the second Appellant. While the appeal filed by the State against one of the Appellants was dismissed, for the offence under Sections 347, 218, 389 and 120B of the'' Indian Penal Code there was a difference of opinion between the learned Judges with respect to the charges u/s 161 of the Indian Penal Code and Section 5(1) of the Prevention of Corruption Act, against one of the accused, namely, Bhagat Ram. The matter was referred to the third learned Judge u/s 429 of the Old Code. After hearing the parties the third learned Judge came to the conclusion that the materials on record were sufficient to show that both the Appellants were guilty u/s 120B of the Indian Penal Code. However, he held that in view of the decision of the Division Bench he could not set aside the acquittal of one of the Appellants, namely, Ram Swaroop. As regard the other Appellant, namely, Bharat Ram, the third learned Judge came to the conclusion that he could set aside his acquittal for the offences under Sections 120B, 218 and 347 of the Indian Penal Code. Accordingly, Bharat Ram, was found guilty by him of these offences and was sentenced to different terms of imprisonment. This is how on appeal filed by Bharat Ram the matter came before the Hon''ble Supreme Court. It was held by the Hon''ble Supreme Court that since the entire case was not referred u/s 429 of the Code to the learned third Judge he could only go into the points of difference of opinion and arrive at any conclusion on these points. It was further held in this case by the Hon''ble Supreme Court that it was not open to the learned third Judge to reopen the matter of acquittal of Bharat Ram in respect of the offence under Sections 120B, 218 and 347 of the Indian Penal Code for which an express order has been made by the Division Bench upholding the order of acquittal of the trial Judge. Further it was held by the Hon''ble Supreme Court in this case that the third learned Judge had no power to re-open the entire case and to convert the order of acquittal into that of conviction since the principle of res-judicata will be applicable to the criminal proceeding. Accordingly, the judgment of third learned Judge; in so far as he convicted the Appellant, Bhagat Ram, for the offences under Sections 120B, 218 and 347 of the Indian Penal Code; was set aside.

10. The learned A.P.P. has strongly contended before me that relying on this decision this Bench has to confine itself only on the points of difference between the two learned Judges constituting the Division Bench.

11. As against it, on behalf of the Appellants it has been contended that this submission of the learned A.P.P. is not correct. It has further been pointed out that the decision of the Hon''ble Supreme Court in Bharat Ram''s case was impliedly overruled by the Hon''ble Supreme Court in a subsequent decision. In this connection my attention has been drawn to the case of Hethubha alias Jithuba Madhuba and Others Vs. The State of Gujarat, . This decision was prior to the decision of the case of Bhagat Ram (supra) but it appears that before the Hon''ble Supreme Court this decision was not cited in the case of Bhagat Ram.

12. On behalf of the Appellants reliance has been placed on the case of Union of India (UOI) and Another Vs. B.N. Ananti Padmanabiah etc., . This is a decision by the Hon''ble Supreme Court by a Bench of three Hon''ble Judges (CM. Sikri, C.J., C.A. Vaidialingam and A.N. Roy, JJ.) In this case a Division Bench of High Court made a reference to the third learned Judge u/s 429 of the old Code. A question arose before the learned third Judge whether a new contention could be allowed to be raised before him which had not come up for consideration before the Division Bench. This question was answered in affirmative by the Hon''ble Supreme Court. In this case a reference of the case of Hethubha (supra) has been made. Paragraph 6 of the judgment in the case of Union of India (supra) runs as follows:

6. This question came up for consideration in the recent unreported decision in Hethubha alias Jithuba Madhuba and Others Vs. The State of Gujarat, . It was contended in that case on behalf of the Appellants that the third learned Judge could only deal with the difference between the two learned Judges and not with the whole case. This Court held that the third learned Judge could deal with the whole case. The language of Section 429 of the Code of Criminal Procedure in explicit that the case with the opinion of the Judges comprising the Court of Appeal shall be laid before another Judge of the same Court. The other noticeable feature in Section 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge.

13. From the aforesaid observations by the three learned Judges of the Hon''ble Supreme Court it appears that this matter is settled namely that the third learned Judge could deal with the whole case and not only with the points on which there was a difference of opinion between the two learned Judges constituting the Division Bench. It appears that the decision in the case of Hethubha (supra) was not brought to the notice of the Hon''ble Judges constituting the Division Bench in the case of Bhagat Ram (supra). The decision in the case of Union of India (supra) being a decision by a Bench of three Hon''ble Judges was however binding on the Bench of two Hon''ble Judges in the case of Bhagat Ram (supra).

14. However, the matter appears to, be settled by another reported decision of the Hon''ble Supreme Court in the case of State of Andhra Pradesh v. P.T. Appaiah and smother [1930 Cri.L.J. 1410 (S.C.)]. In this case the Sessions Judge had convicted both the accused u/s 302 read with Section 34 of the Indian Penal Code. On appeal the learned Judges constituting the Division Bench differed about the nature of the offence, namely, whether it was u/s 304 Part II or under clause "thirdly" of Section 302 of the Indian Penal Code. It was referred to the third learned Judge u/s 429 of the Old Code who after hearing the parties acquitted both the Appellants. In this case before the Hon''ble Supreme Court it was argued that it was not open to the learned third Judge to upset the concurrent findings of both the learned Judges of the Division Bench that the accused were guilty of some offence. It was also argued that as the difference between,two learned Judges was confined only about the nature of the offence the third Judge had no power u/s 429 of the Old Code to acquit the Appellants and in this connection a reference was made to the case of Bhagat Ram (supra). The Hon''ble Supreme Court in this case clearly held that the scope of Section 429 of the Old Code was not considered in the case of Bhagat Ram (supra). Also in this decision a reference was made to the case of Babu and Others Vs. State of Uttar Pradesh, which is a decision by a Bench of five Hon''ble Judges. It was held by this Bench that Section 429 of the Code contemplates that it was for the third Judge to decide on which points he shall hear the argument, if any, and that postulates that he is completely free in resolving the difference as he thinks fit. This decision of the Hon''ble Supreme Court was interpreted in the case of State of Andhra Pradesh (supra) to mean as follows:

Two things are noticeable, first, that the case shall be laid before another Judge, and, secondly the judgment and order will follow the opinion of the third learned Judge. It is, therefore, manifest that the third learned Judge can or will deal with the whole case.

In this decision in the case of Andhra Pradesh (supra) a reference was also made to the case of Union of India (supra) which is a decision by three Judge Bench. Finally it was observed as follows:

In view of these authorities which were not noticed in Bhagat Ram Vs. State of Rajasthan, we are unable to agree that the learned third Judge in the instant case to whom it was referred u/s 429 overstepped the limits of his jurisdiction in deciding the case as he did." 15. The Hon''ble Supreme Court, accordingly, did not deem it fit to interfere with the judgment of acquittal passed by the learned third Judge u/s 429 of the Old Code.

16. From these authoratative pronouncements it becomes clear that when u/s 429 of the Old Code corresponding to Section 392 of the New Code a case is placed before the learned third Judge for his opinion in case of difference of opinion between the two learned Judges constituting the Division Bench the learned third Judge gets complete freedom and right to decide the whole case in any manner that he deems fit and in view of the above mentioned decision there could be no doubt in this regard. From this it would appear that this Bench to which this case has been referred u/s 392 of the Code for opinion is completely free to decide the whole case in any manner which it deems fit and proper and there is no limitation on the same. The contentions raised on. behalf of the learned A.P.P. accordingly does not appear to be correct. The contentions raised by both the parlies on this point, accordingly, are disposed of in the light of the observation made above.

17. I will next proceed to examine the case on merit. In this case P. Ws. 1, 2, 6 and 9 were declared hostile by the prosecution and cross-examined by it. On behalf of the prosecution it has been contended that in view of the fact that they were declared hostile their entire evidence is washed off and has to be ignored. As against it the learned Counsel appearing on behalf of the Appellants has contended that this contention is not correct. In support of his contention he has placed reliance on the case of Sat Paul Vs. Delhi Administration, . In this decision it was held that if a witness is cross examined by the party which called him, it will not mean that his entire evidence is washed off. The Judge can accept that part of his testimony which he finds reliable. Also in this connection a reference may be made to the case of The State of Uttar Pradesh Vs. Het Ram and Others, . In this decision also the Hon''ble Supreme Court has held that only because a witness is declared hostile his entire evidence is not excluded. From these authoritative pronouncements by the Hon''ble Supreme Court it would become clear that the Court is not precluded from looking to the evidence of the hostile witnesses or from assessing the same.

18. In this connection I will firstly refer to the case of P.W. 1, Nath Ram Pur-bey. In his examination in chief he has stated that when he was proceeding towards the house of the informant he, found a person lying down on the Rastha by the side of the main road. P.W. 2, Pradeep Kumar Gupta, is another witness who has been declared hostile. He has stated that the deceased was lying in front of his house. Even P.W. 4 who has not been declared hostile has stated that the deceased, Raj Kumar, was lying outside the Chaukhat. From this it would appear that the evidence of these witnesses creates doubt in the prosecution case so far as the alleged place of occurrance is concerned. P.W.6 is Krishan Kumar. He has stated that when on Hullah he went to the place of occurrence he found the deceased lying down on the ground. P.W. 9 is Sumitra Devi. She was also declared hostile. She has stated that when she came out of the bath room the injured Raj Kumar Sharma had become silent. So far as P. Ws. 1 and 2 are concerned the prosecution has contended that they have stated before the police that some body has told them that Appellant, Sandip Kumar Sharma, had given a dagger biow to the deceased. One thing that appears from the evidence of P. Ws. 1 and 2 is that the prosecution version about the place where the alleged occurence had taken place becomes doubtful. P.W. 3, Anil Kumar, is brother of the deceased. He has stated that the blood had fallen in the court yard on the "Bora" as also on the Chaukhat of the house. He has also admitted that the Ganji of the deceased had become blood stained and he had shown it to the Investigating Officer. Even P.W. 11, the mother of the deceased had stated that the Ganji and clothes of Dilip got blood stained and the same were shown to the Investigating Officer. P.W. I5 is the Investigating Officer. He has stated that he had reached the place of occurrence at 5 A.M. on 16.8.1990. It may be stated here that the alleged occurrence is said to have taken place at 9 P.M. on 15.8.1990. P.W. 15 has clearly stated that at the allegea place of occurrence he did not find any blood mark. His this statement negatives the prosecution story. He has further stated that no body has shown him the blood stained "Bora" or the clothes of the deceased. He did not seize the blood stained earth or blood stained clothes of the deceased. In any case he did not send any such thing for chemical examination. As per the evidence of P.W.3 the blood had fallen in the court yard and on the Chaukat and Bora and the Ganji of the deceased had become blood-stained and he had shown it to the Investigating Officer. P.W.15 who happens to be Investigating Officer has completely denied this fact. This makes the prosecution case doubtful.

19. On behalf of the Appellants it has been contended that the medical evidence on record does not support the case of prosecution. It has further been contended that if there is any contradiction between the medical evidence on record and the oral evidence of the witnesses it is bound to make the prosecution case doubtful. In this connection my attention has been drawn to the case of Ram Narain Singh Vs. State of Punjab, in which it was held that where the evidence of P. Ws. is totally inconsistent with the medical evidence or the evidence of ballistic expert, this is the most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. It was further held that in a situation like this it will be difficult to convict the accused. Also in this connection a reference may be made to the case of Mohinder Singh Vs. The State, . In this case it has been held that it is obvious that where the direct evidence is not supported by the expert evidence, then evidence is wanting in most material part of the prosecution case and it would be difficult to convict on the basis of such evidence. In the case of Jagir Singh Vs. The State (Delhi), the eye witnesses stated in their evidence that the accused fired the shot with his arm stretched horizontally with a slight bent downwards. Forensic Expert in his evidence definitely asserted that the hand which fired the shot must have been at a slightly lower level than the part of the body hit by the shot. The barrel of the weapon would be slightly pointing upward. It was held that the evidence of the eye witnesses being in conflict with the unimpeachable expert evidence, which was not even attempted to be contradicted in cross examination, cannot be accepted. In view of these authoritative pronouncements on this point I will now proceed to examine the medical evidence on record.

20. P.W. 16, Dr. A. Jha, had held the post mortem examination on the dead body of the deceased. According to his report he found digested food 100 gm. in the stomach and in his cross examination he has stated that the death had not occurred within 8-10 minutes of the taking of the food but had taken place within 24 hours after taking of food. It may also be pointed out that in this connection that it take sufficient time for the food to be digested. P.W. 3 who happens to be the brother of the deceased has stated that at the time of the alleged occurrence his brother, Raj Kumar Sharma, deceased was watching the television and just before this he has taken his meals. If this statement is correct then P.W. 16 could not have found digested food in the stomach of the deceased. Even P.W. 11 mother of the deceased had stated that the deceased had taken his meals just before and had come to watch the television. If the evidence of P. Ws. 3 and 11 on this point is accepted as correct P.W. 16 could not have found digested food in the stomach of the deceased. Moreover the most surprising part is that though the alleged occurrence is said to have taken place at 9 P.M. and the Investigating Officer visited the place of occurrence in the following morning at 5 A.M. he did find any blood mark there even when according to the case of the prosecution there was sufficient bleeding at that place and when the deceased was put on a cot the bleeding had taken place there also. This fits in with the evidence of P. Ws. 1, 2 and 4 that when they reached the place of occurrence they found the deceased lying outside the house. In any view of the matter as noted'' above the medical evidence on record does not support the case of the prosecution.

21. So far as the witnesses examined in this case are concerned P.W. 3 happens to be the full brother of the deceased P.W. 4 has admitted that the deceased was the son of his maternal uncle. P.W. 8 is the grand mother of the deceased and P.W. 10 is his sister. P.W. 11 is the mother of the deceased the rest of the witnesses examined have either been tendered for cross examination or even declared hostile. On this ground it has been stated that only interested witnesses have come forward to support the case of the prosecution.

22. On behalf of the Appellants it has been contended that the prosecution case is improbable. In this connection my attention has been drawn to the fact that the parties are neighbourers and no body in his senses could have thought of assaulting the deceased after entering into his house in presence of his family members when he could have easily accomplished this task at some lonely spot unseen by anybody. It was also contended that there was no immediate cause for the alleged offence. There was no heat at the moment or immediate provocation leading to assault. As per the prosecution case the assault appears to be a well-calculated and cold blooded. In that situation the Appellants could have choosen some lonely place for committing this offence and in any case they would not have decided to give the dagger blow to the deceased in presence of his family members. This shows that the prosecution case is to some extent improbable.

23. On behalf of the Appellants it has been contended that the prosecution has failed to prove the motive for the aliened occurrence. It is well known that it is not necessary for the prosecution to allege any motive against the accused for the commission of any offence. However, ii Is equally well settled that if the prosecution alleges any motive it is necessary for it to prove the same. In this connection a reference may be made to the evidence of P.W. 3 who has stated that about one year prior to the alleged occurrence there was a dispute between the deceased and Appellant, Sandip Kumar Sharma. However, he has admitted that the Appellants and the informant''s family members were not only neighbours but on good terms inasmuch as they used to call the mother of the deceased as Chachi, the deceased used to call the mother of the Appellants as Tai. It has also come into the evidence that parties were on visiting terms with each other. Under this circumstance this motive as alleged by the prosecution does not appear to be sufficient. P.W. 12 is the informant. He has given another story. According to him there was a dispute between the deceased end the accused about 1-1/2 years before the alleged occurrence which has taken place on a train. This, however is not sufficient motive for taking the revenge 1-1/2 years after this dispute. P.W. 11 has come forward with another motive. According to her, Appellant, Sandip Kumar Sharma had committed the theft of suitcase of the deceased in respect of which a case was instituted whose papers were shown to the Investigating Officer. The I.O. has not said a word about the same. It thus appears that the motive alleged appear to be not correct.

24. In this connection on behalf of the Appellants my attention has been drawn to Ext. 1 which is the letter of Bhabhi of the deceased. P.W. 10 is the sister of the deceased. She had Emitted that the letter (Ext. 1) has been written by his Bhabhi. This letter is very important. It is written by one Sima wife of Dilip (P.W. 12) and the daughter-in-law of P.W. 11. This letter has been addressed to Dilip. in this letter she has stated that her family members intend to falsely implicate the family members of her Tai (present Appellants) on some allegation of theft. She has also named Dabbua who is Appellant No. 2, Sandip Kumar Sharma. According to this letter there was a scheme in the family of the informant of falsely implicating the Appellants in some faise case and Sima, daughter-in-law of P.W. 11 and wife of P.W. 12 had stated about this fact to her husband. In the end she had asked her husband to come to the house and to persuade his family members not to take any such action. This letter is very important. On the basis of this letter it has been contended that the Appellants have been falsely implicated in this case since the family members of the informant were bent upon falsely implicating the Appellants in some criminal case. The authorship of this letter is not in dispute. From this it would appear that there is great force in the submission of the learned Counsel of the Appellants that they have been falsely implicated in this case and. that the alleged occurrence had taken place somewhere else. Even P.W. 13 has admitted that at one point of time he had assulted the deceased in the course of gambling. According to the Appellants the deceased was habituated to gambling and he might have been assaulted in the course of any such gambling.

25. From the detailed discussions made above I am of the opinion that the prosecution has failed to prove its case beyond all reasonable doubts. I am also of the opinion that the prosecution has failed to prove the charges framed against the Appellants and, therefore, they are entitled to be acquitted.

26. With the aforesaid opinion I am returning this case to the Division Bench for proceeding in accordance with law. Let it be placed before the learned Judges of the Division Bench along with my above mentioned opinion.