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CASE NO.: Appeal (crl.)  799 of 2008

PETITIONER: MADHUBAN

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 05/05/2008

BENCH: C.K. THAKKER & D.K. JAIN

JUDGMENT: J U D G M E N T ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 5446 OF 2007

REPORTABLE

C.K. THAKKER, J.

1.              Leave granted. 2.              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 \026 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 \026 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

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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

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regards appearance of advocates.   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  proceedings.   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

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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.