Bookmark
PDF
Share
CaseIQ

Nemai Mondal And Others v. State Of West Bengal .

Calcutta High Court

Feb 18, 1965

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Factual and Procedural Background

This criminal appeal reached the third Judge under section 429 of the Code of Criminal Procedure because two learned Judges of the Division Bench were equally divided in opinion. The Division Bench comprised Niyogi, J. (who considered the appellants guilty and in favour of conviction under sections 323/34 and 148 of the Indian Penal Code) and Das, J. (who would set the conviction aside).

Originally there were ten appellants. Both Judges were unanimous that:

The conviction of the first appellant, Nemai Mondal alias Nemai Chandra Mondal, under section 326 and section 147 of the Indian Penal Code should be set aside;
The convictions of appellants Nos. 9 and 10, Probodh Mondal and Kanai Mondal, under section 147 of the Indian Penal Code should be set aside.

Consequently appellants Nos. 1, 9 and 10 were set at liberty. The difference of opinion before the third Judge related specifically to appellants Nos. 2 to 8 (Jogen, Dulal, Haren, Anukul, Ramen, Kartik and Ganesh).

The opinion records factual findings relied upon by the court: the presence of eyewitnesses P.W.4 (Bejoy Mondal) and P.W.19 (Meghnath Safui), whom the court had no reason to disbelieve; a reference to the appellants coming "in a gang armed with lathis, iron rods and ballams" (relevant to sentencing); and that the appellants had been in custody from 30 July 1962 until 28 July 1964 when they were released on bail after the difference of opinion.

Legal Issues Presented

What is the proper construction of section 429 of the Code of Criminal Procedure and what is the role and duty of the third Judge when the Judges composing the Court of Appeal are equally divided in opinion?
On the merits, whether appellants Nos. 2 to 8 are guilty of offences punishable under section 148 of the Indian Penal Code and under sections 323/34 of the Indian Penal Code, and what sentence (if any) should be imposed.

Arguments of the Parties

Appellants' Arguments (Mr. Roy)

Under section 429 CrPC, the third Judge need only accept one of the views already expressed by the two differing Judges of the Division Bench.
Where one Judge has expressed himself in favour of acquittal, the third Judge should normally give the benefit of that doubt to the accused; thus, if one Judge favours acquittal, little remains for the third Judge to do other than acquit.
On sentencing, the appellants had already been in imprisonment from 30 July 1962 to 28 July 1964, a period of about two years, and this should be taken into account in sentencing.

Prosecution's Arguments (Mr. Palit)

Mr. Palit disputed both propositions advanced by Mr. Roy regarding the construction of section 429 CrPC.
On sentencing, Mr. Palit urged that there were no extenuating circumstances, pointing to the appellants coming in a gang armed with lathis, iron rods and ballams.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Granade Venkata Ratnam…Petitioner v. The Corporation Of Calcutta…Opposite Party, 22 Cal WN 745 at p. 756; (AIR 1919 Cal 862 at p. 870)	Illustration that a third Judge would not differ upon a point on which both referring Judges were agreed unless there were "strong grounds" for doing so.	The court relied on this to explain that the "case" referred under section 429 normally means the case in respect of those appellants on which the two Judges are equally divided, and that the third Judge would not lightly differ on points where the referring Judges were unanimous.
Sarat Chandra Mitra v. Emperor, ILR 38 Cal 202	Cited as supporting the view that the third Judge must consider the whole case when called upon under section 429 CrPC.	Listed among authorities supporting the court's interpretation that the third Judge has duty and liberty to examine the whole evidence and come to a final judgment.
Ahmad Sher v. Emperor, 32 Cri LJ 868 (AIR 1931 Lah 513)	Cited as supporting authority on the interpretation of the third Judge's role under section 429 CrPC.	Used as one of several decisions that support the view that the third Judge must examine the case and not merely weigh the two differing opinions.
Subedar Singh v. Emperor, AIR 1943 All 272	Cited as supporting authority on the third Judge's duty to consider the whole case under section 429 CrPC.	Included among decisions relied upon for the court's construction that the whole case is before the reference Judge.
Md. Illias Mistri v. The King, ILR 1949 (1) Cal 43	Authority stating that the whole case is before the reference Judge under section 429 CrPC and that it is the Judge's duty to examine the whole of the evidence and come to a final judgment; not merely weigh the opinions of the other Judges.	The court expressly adopted and agreed with Biswas, J.'s observations in this case to support the view that the reference Judge must examine the whole evidence and form an independent judgment.
Khetri Bewa v. State, AIR 1952 Orissa 37	Orissa High Court dictum suggesting that the phrase "if any" in section 429 shows the third Judge is not bound to have a full hearing and may, on scrutinising materials, acquit if the referring Judge's judgment in favour of innocence is not far from reasonable or perverse.	The court considered this decision but noted that doubts were expressed about its correctness and held that it did not assist Mr. Roy's submission that the third Judge should automatically give the benefit of doubt to the accused.

Court's Reasoning and Analysis

The court first addressed the preliminary point concerning the interpretation of section 429 CrPC. It reproduced the section ("When the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.") and analysed the meaning of the words "the case" and "opinion".

Key elements of the court's analysis:

The material laid before the third Judge is "the case" itself and not merely the points of difference or the differing views. Accordingly the duty of the third Judge is to decide the case and not merely accept one view or the other.
In multi-appellant matters the "case" referred is ordinarily the case in respect of those appellants on whom the two Judges are equally divided; the third Judge need not re-decide appellants about whom the two Judges were unanimous.
The concluding words of section 429 indicate that the final judgment shall follow the opinion of the third Judge; thus the final and ultimate decision is that of the third Judge after independent consideration.
The court relied on earlier decisions (including Granade Venkata Ratnam and Md. Illias Mistri) to emphasise that the third Judge has a duty to examine the whole of the evidence for himself and come to a final judgment, not merely weigh the opinion of one learned Judge against the other.
The submission that whenever two Judges differ the third Judge should automatically give the benefit of doubt to the accused was rejected. The court reasoned that accepting such a rule would make section 429 nugatory and that the third Judge must form his own view from the record and evidence; only if the third Judge himself has a reasonable doubt should the accused receive the benefit of that doubt.
The court considered the Orissa High Court decision in Khetri Bewa but noted doubts about its dictum and held it did not assist the appellants' submission for automatic acquittal.

On the merits, the court examined the evidence, stressing the established principle that quality of evidence matters more than quantity. The court cited section 134 of the Evidence Act: no particular number of witnesses is required to prove any fact and the testimony of a single witness, if believed, can be sufficient.

The court noted that apart from other witnesses, there were eyewitnesses P.W.4 (Bejoy Mondal) and P.W.19 (Meghnath Safui) to the occurrence, whom the court had no reason to disbelieve. The court held that the absence of witnesses from certain shops did not create doubt in the court's mind.

Based on the evidence and the court's evaluation, the court concluded that appellants Nos. 2 to 8 were guilty of the offences charged and proceeded to convict and sentence them. In sentencing the court balanced two factors it had before it: the appellants' pre-trial and pre-judgment imprisonment (from 30 July 1962 to 28 July 1964) and the prosecution's contention that the appellants attacked in a gang armed with weapons (no extenuating circumstances). The court found three years' rigorous imprisonment under section 148 IPC to be appropriate, having taken the period already spent in custody into account.

Holding and Implications

Core Ruling: The court convicted appellants Nos. 2 to 8 of the offences and sentenced them to imprisonment. The precise operative holdings were:

All appellants before the court (Nos. 2 to 8) were held guilty under section 148 of the Indian Penal Code and were convicted under that section.
They were also held guilty under sections 323/34 of the Indian Penal Code and convicted under those sections.
The court imposed a sentence of three years' rigorous imprisonment under section 148 of the Indian Penal Code (and did not pass any separate sentence under sections 323/34).
The appellants were directed to surrender to their bail-bonds forthwith to serve the remainder of their sentence.
The appeal was dismissed.

Direct consequences and implications:

Appellants Nos. 1, 9 and 10 had already been set at liberty by the unanimous view of the Division Bench; the present decision affects appellants Nos. 2 to 8 only.
The appellants Nos. 2 to 8 must surrender to their bail bonds and serve the remainder of the 3-year sentence imposed under section 148 IPC.
The opinion explains the third Judge's role under section 429 CrPC and applies existing authorities to that interpretation; the judgment applies those authorities to the facts at hand. The court does not in express terms state that it is announcing a new precedent beyond its application of established authorities and the statute to the particular circumstances of this case.

Show all summary ...

1. This criminal appeal comes up before me for decision under section 429 of the Cr PC because two learned Judges of the Division Bench were equally divided in opinion. Niyogi, J. was of the opinion that the appellants were guilty and should be convicted under section 323/34 of the Indian Penal Code and under section 148 of the Indian Penal Code. Das, J., on the other hand, was of the opinion that the conviction should be set aside.

2. Originally there were ten appellants. Both the learned Judges of the Division Bench, however, were unanimous that the conviction of the first appellant, Nemai Mondal alias Nemai Chandra Mondal under section 326 of the Indian Penal Code and under section 147 of the Indian Penal Code should be set aside as also the conviction of appellants Nos. 9 and 10, namely, Probodh Mondal and Kanai Mondal, under section 147 of the Indian Penal Code. Therefore, appellants Nos. 1, 9 and 10 have been set at liberty and there is no difference of opinion about them. The difference of opinion that comes up before me for decision is with respect to appellants Nos. 2 to 8, namely, Jogen, Dulal, Haren, Anukul, Ramen, Kartik and Ganesh.

3. Before dealing with the merits and facts of this appeal it is necessary to dispose of a preliminary point. Mr. Roy appearing for the appellants submits that under section 429 of the Cr PC all that need be done by the third Judge is to accept one view or the other already expressed by the two differing Judges of the Division Bench. He has further submitted that where one Judge has expressed himself in favour of acquittal then very little remains for the third Judge to do because normally when one of the two learned Judges has reasonable doubt about the guilt of the accused, the third Judge should also give the benefit of that doubt to the accused. Mr. Palit for the prosecution has disputed both these propositions. On a close scrutiny of the language and interpretation of section 429 of the Cr PC 1 do not think it is possible to accept any of the two submissions made on behalf of the appellants on section 429 of the Cr PC. I shall record my reasons briefly. section 429 of the Cr PC reads as follows:

“When the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.”

4. As I read the language of that section, what is laid before the third Judge is “the case” itself and not merely the points of difference or the views of difference. The case with the differing opinions is placed before the third Judge. In other words, it is the duty of the third Judge to decide “the case” and not merely the points on which the Judges have differed No doubt in doing so, the two differing opinions have to be considered by the third Judge. But the decision is the decision of the third Judge on the case. The concluding words of section 429 of the Cr PC to the effect that the judgment shall follow the opinion of the third Judge seems to indicate that the final and ultimate decision is of the third Judge on the case. At the same time the word “case” normally would mean in the case of a number of appellants, the case of each appellant considered separately. In other words, if out of three appellants, the two Judges of the Division Bench agree on one and disagree in respect of the other two appellants, then the “case” that is referred to under section 429 of the Cr PC is the case not of the appellant on which they agree but the appellants on whom they had disagreed the case in such a context means the case in respect of the appellants on which the two Judges are equally divided. The words “equally divided” in section 429 of the Cr PC seem to support that construction. In this case, for instance, before me all that I have to decide is the case of the seven appellants from 2 to 8 on which the two Judges were equally divided and not in respect of the appellants Nemai, Probodh and Kanai about whom they were not divided but unanimous. On this point a reference may be made to the decision in Granade Venkata Ratnam…Petitioner, v. The Corporation Of Calcutta…Opposite Party, ., 22 Cal WN 745 at p. 756 : (AIR 1919 Cal 862 at p. 870) where Woodroffe, J. observed as follows:

“Without deciding that the word “case” does not include the whole case it is plain that a third Judge would not differ upon a point on which both the referring Judges were agreed unless there were strong grounds for doing so. I am not going to do so here.”

5. It is not necessary for me in this case to decide what Woodroffe, J. meant by “strong grounds”.

6. The view that I am taking is supported by such decisions as Sarat Chandra Mitra v. Emperor, ILR 38 Cal 202, Ahmad Sher v. Emperor. 32 Cri LJ 868 (AIR 1931 Lah 513) and Subedar Singh v. Emperor. AIR 1943 All 272.

7. In Md. Illias Mistri v. The King, ILR 1949 (1) Cal 43, Biswas, J. as a reference Judge under section 429 of the Cr PC observed on section 429 of the Cr PC at page 44 of that report as follows:

“There can be no doubt upon the wording of the section that the whole case is now before me, which means not only that I am at liberty, but, that is also my duty to examine the whole of the evidence for myself and come to a final judgment. It is not a case of merely weighing the opinion of one learned Judge against that of the other and deciding which of these opinions I should accept.”

8. I respectfully agree with the observations of Biswas, J. on the interpretation of section 429 of the Cr PC.

9. The other submission of Mr. Roy on the construction of section 429 of the Cr PC that when two Judges differed the third Judge should give the benefit of doubt automatically to the accused is also, in my view, not sound. The first obvious answer is that if that were so then that view will repeal section 429 of the Cr PC which itself says that when the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge who shall deliver his opinion and the judgment shall follow such opinion. If whenever two Judges differ the third Judge was only to give the benefit of doubt then such a view will make section 429 of the Cr PC entirely nugatory. I am, therefore, unable to accept that submission of Mr. Roy. An argument on this point was also advanced to the effect that even if such a submission in its unqualified form was not acceptable there still remains the submission that where one Judge is of the view that the accused is guilty and the other is of the view that the accused is not guilty then in such a case the third Judge should exercise the benefit of doubt to the accused simply on the ground that twp Judges of this Court have differed on their guilt this argument in my opinion does not really arise in this case because Das, J. only gave the benefit of doubt to the appellants. Something like this submission was made in the case of ILR (1949) 1 Cal 43 mentioned above, where Biswas, J. again at pp. 44-45 of that report said as follows:

“Mr. C. Noad had in his opening suggested that the very fact that one learned Judge was for giving the accused the benefit of the doubt was sufficient to entitle his client loan acquittal from me. I would not go so far as that. If one learned Judge was definitely of opinion that the appellant was not guilt was against the contrary view expressed by the other learned Judge, there might have been some force in the contention put forward by Mr. C. Noad.”

10. I am satisfied that on the language of section 429 of the Cr PC when ever the Judges of the Court of Appeal are equally divided in their opinions that section is attracted and there is no qualification or limitation in that section that if the division of opinions was based on the question of guilt or no guilt then the third Judge will have no other option but to record that fact and give on that ground alone the benefit of doubt to the accused. I cannot read any such qualification or limitation in the unqualified language of section 429 of the Cr PC so far as the division of opinions among the two learned Judges is concerned. It is not possible on that language to say that in some difference of opinion the third Judge must act in a particular manner and in other difference of opinion he has greater freedom. No doubt if, the third Judge on a reading of the whole record and evidence and the differing opinions has himself any reasonable doubt then that benefit must go in favour of the accused. But this does not mean that because two of the Judges of this Court have differed in their opinions that difference alone must in every case create a reasonable doubt in the mind of the third Judge.

11. Mr. Roy has tried to attract me with a decision of the Orissa High Court in Khetri Bewa v. State, AIR 1952 Orissa 37, where it has been said that the use of the words “if any” shows that the third Judge is not bound to have a full hearing and then to arrive at an independent opinion and that the third Judge can, unless on scrutinising the materials on record, the judgment of the Judge pronouncing in favour of the innocence of the accused is considered far from reasonable or perverse, give the benefit of reasonable doubt to the accused and acquit him. Although the third Judge in that case followed the decision in Md. Illias Mistri doubts were expressed about the correctness of the dictum in that case. That decision, however, does not help Mr. Roy in his submission on the point.

[After discussing the merits of the case it was held:]

12. It is needless for me to emphasise that it is not the number of witnesses who matter but the quality of evidence. It is well known law that under section 134 of the Evidence Act no particular number of witness would be in any case required to prove any fact. The testimony of a single witness, if believed, is sufficient to establish any fact. Apart from the two witnesses P.W 4, Bejoy Mondal, and P.W 19, Meghnath Safui, who are eve-witnesses to the occurrence and who I have no reason to disbelieve, there are also other witnesses whose evidence I shall presently discuss. In that view of the matter, absence of witness from that or the shops does not in any view, create any doubt in my mind.

13. For the reasons stated above I hold all the appellants before me guilty under section 148 of the Indian Penal Code and convict them under that section. I also hold them guilty under S. 323/34 of the Indian Penal Code and convict them under those sections.

14. What remains now to consider is the sentence. Mr. Roy for the appellants has submitted that they were in imprisonment from the 30th July, 1962 when the Additional Sessions Judge convicted them until the 28th July, 1964 when the appellants were released on bail after the difference of opinion in the Court of criminal appeal.

15. He, therefore, asked me to consider the fact that they had already been in imprisonment for two years. I have taken that into consideration as against this submission Mr. Palit for the prosecution has urged that there are no extenuating circumstances when these appellants came in a gang armed with lathis, iron rods and ballams. Taking all these factors into consideration I am satisfied that the appropriate sentence in the context of the facts and circumstances of this appeal will be a sentence for three years under section 148 of the Indian Penal Code. I accordingly sentence the appellants to three years' rigorous imprisonment. I do not pass any separate sentence on the appellants under section 323/34 of the Indian Penal Code.

16. The appellants must surrender to their bail bonds forthwith to serve out the remainder of their sentence.

JI/AGT/R.G.D

17. Appeal dismissed.