ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 5446 OF 2007
C.K. Thakker, J.-
The present appeal is filed against
judgment and order passed by the High Court of Judicature at Allahabad
on April 30, 2007 in Criminal Appeal NO. 13 of 1982 by which it
confirmed the order of conviction and sentence recorded on December 22,
1981 by the 1st Additional District & Sessions Judge, Faizabad in
Sessions Trial No. 156 of 1979.
3. It was the case of the
prosecution that in the night of November 15, 1976, Jai Ram Singh
(Deceased 1) returned home from out of station. After taking meal, he
went to sleep in the room with his wife and his son Akhilesh Singh @
Sanjay Singh (Deceased 2). His younger brother Sri Nath Singh
(informant) was sleeping in the adjoining room.
At about 12.30 a.m., i.e. early
morning of November 16, 1976, Sri Nath Singh heard cries of his nephew
and Bhabhi, wife of Jai Ram Singh. On opening the door between the two
rooms, he saw that his brother Jai Ram Singh and nephew Akhilesh Singh
were being attacked by four persons. When Sri Nath Singh tried to
intervene, he was also assaulted and received injuries. Shout was raised
for calling neighbours and the assailants fled away. Jai Ram Singh died
on the spot. Sri Nath Singh informed the Police Station, Ayodhya and
First Information Report was registered on the same day, i.e. November
16, 1976. Akhilesh Singh @ Sanjay Singh was critical. He was sent to
District Hospital, Faizabad, but his condition deteriorated.
He was, therefore, shifted to
Medical College, Lucknow. He, however, died there on November 22, 1976.
When the matter came up before the Chief Judicial Magistrate, Faizabad,
he passed an order on May 19, 1979 of committal to the Court of Session.
The learned Sessions Judge, Faizabad framed charges against the accused
for offences punishable under Sections 302, 323 and 394 read with
Section 34 of the Indian Penal Code (IPC). The statement of the accused
under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'the Code'), was recorded.
The learned 1st Additional Sessions
Judge held that the case of the prosecution was proved against the
appellant and accordingly he convicted the appellant for an offence
punishable under Section 302, IPC and ordered him to undergo rigorous
imprisonment for life. He also convicted the appellant for an offence
punishable under Section 394, IPC and ordered to undergo rigorous
imprisonment for four years and for an offence punishable under Section
323, IPC, to undergo imprisonment for nine months.
4. Being aggrieved by the order of
conviction, the appellant herein preferred an appeal before the High
Court. The High Court again considered the evidence in detail and
confirmed the order of conviction and sentence recorded by the trial
court. It is this order which is challenged in the present appeal.
5. This matter was placed for
admission hearing on September 17, 2007. Attention of the Court was
invited to Ground 'D' of the Special Leave Petition wherein it was
stated that the High Court had decided the appeal without hearing the
counsel for the accused. In the light of the above contention, the Court
passed the following order;"It was stated in ground No. 'D', page 57 of
the special leave petition that the High Court was not justified in
deciding the appeal without hearing the counsel for the petitioner and
merely permitted him to file "written arguments". So far as the copy of
the High Court judgment which has been annexed to the special leave
petition is concerned, it does not state anything with regard to
appearance of advocates.
In the light of the above statement
and ground, issue notice returnable in six weeks.
Record and proceedings of the courts
below be called for within four weeks."
6. Record and proceedings of the
courts below had been received and the matter has been placed before us
for final hearing.
7. We have heard the learned counsel
for the parties.
8. In view of the fact that the
notice was only with regard to ground 'D', we heard the learned counsel
for the parties only on that limited issue. So far as the judgment is
concerned, it no doubt records submissions of the learned counsel for
the appellant-accused in various paragraphs. In the beginning of the
judgment, however, there is no reference as regards appearance of
9. From the record and proceedings,
it clearly appears that the Criminal Appeal was heard on November 21,
2006 and the following order was passed;
"Hon'ble O.P. Srivastava, J. Hon'ble M.K. Mittal, J.
Heard Sri M.P. Verma counsel for appellant Sri H.A. Alvi appearing for
the State. Judgment is reserved.In the meantime on prayer of appellant's
counsel 5 days' time is granted to file arguments in writing."
10. It was contended on behalf of
the appellant that on November 21, 2006, when the appeal was heard by
the Division Bench, the learned counsel for the appellant was unable to
argue the case due to swelling on vocal cord infected with influenza.
The learned counsel also stated that the said fact had been brought to
the notice of the Court even in an application for extension of time for
filing written statement. An affidavit in support of such assertion was
also filed in the High Court and it is very much there in the record and
11. We went through the records and
proceedings before the High Court and we are satisfied that the
statement made by the learned counsel for the appellant is found to be
correct. In the application for extension of time dated 24th/25th
November, 2006, it was stated that 'for the facts, reasons and
circumstances stated in the accompanying affidavit', time for filing
written statements might be extended. In the accompanying affidavit, in
paragraph 2, it was stated as under;
"2. That the above noted Crl. Appeal
was listed for hearing on 21.11.2006, before the Division Bench,
comprising of Hon. Mr. O.P. Srivastava and Hon. Mr. M.K. Mittal 'JJ',
but unfortunately the counsel for the deponent was unable to argue the
case, due to swelling on vocal cord infected with influenza."
12. It appears that the learned
advocate appearing on behalf of the appellant before the High Court
could not make oral submissions because of infection in vocal cord.
13. In view of the above facts and
circumstances, in our opinion, ends of justice would be met if we allow
this appeal, set aside the order passed by the High Court and remit the
matter to the High Court for fresh disposal in accordance with law.
14. Though the learned advocate
appearing for the State submitted that the case is of double murder and
injured witness who was very much at the scene of offence, who was
assaulted and sustained injuries has been believed by the courts below
and even on that ground, no interference is called for. In our opinion,
however, in the light of what is observed by us hereinabove, it would be
appropriate if the High Court hears the learned counsel for the
appellant-accused and passes an appropriate order in accordance with
law. Only on that ground, the appeal is allowed, the order passed by the
High Court is set aside and the matter is remanded for fresh disposal in
accordance with law.
15. We may observe that we have not
entered into the merits of the matter and as and when the matter is
placed for hearing before the High Court, the Court will decide the same
on its own merits.
16. Ordered accordingly.
Print This Judgment