MATTARversusSTATE OF U.P.

                                 MATTAR                                         A
                                     V.

                             STATE OF U.P.

                              JULY 23, 2002

               [Y.K. SABHARWAL AND H.K. SEMA, JJ.]                              B


     Code of Criminal Procedure, 1973:

      s.392-0pinion of third Judge-Conviction u/s. 302134 JPC by Court of
Sessior>-Appeal before Division Bench of High Court-Judges divided in C
opinion-Matter placed before third Judge-Opinion of third Judge containing
a brief reference made to the testimony of only one of the eye witnesses-
Held, except a briefreference to the testimony ofPW 2, opinion of third Judge
does not show that the Judge independently considered the testimony of other
eye-witnesses, in particular PW I and PW 3-The Judges in different dissenting D
opinions have given-detailed reasons for and against the acceptance ofversion
as deposed by these eye witnesses -The third Judge under these circumstances
was required to independently examine the matter and express his opinion--
It is not permissible to only or merely indicate the agreement with one or
other view without giving reasons therefor-Matter remanded to High Court
to be heard afresh by a third Judge so as to make available to parties a        E
reasoned opinion showing that relevant evidence and submissions that may be
urged on behalf of parties have been independently considered-Judgment-
Difference of opinior>-Opinion of third Judge.

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                      p
334 of 1999.

     From the Judgment and Order dated 6.4.18/13.I0.98 & 16.10.98 of
the Allahabad High Court in Cr!. Appeal No. 2091 of 1980.

     B.B. Singh, Kumar Rajesh Singh and Ms. Sunita Rani Singh for the           G
Appellant..

     Ms. Vibha Datta Makhija and A.S Pundir for the Respondent.

     The following Order of the Court was delivered :

                                    281
                                                                                H
       282                     SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

  A          The appellant and his brother were charged for double murder - one of
       Ashok Kumar and other of Ram Prasad, Appellant was convicted under
       Section 302 IPC and his brother for offence under Section 302/34 IPC by
       Court of Sessions. They were awarded life sentence.

          During the pendency of appeal in the High Court against conviction
  B and sentence passed by the Court of-Sessions, brother of the appellant died.
    The appellants' appeal was heard by a Division Bench of the High Court.
    There was difference of opinion between the two learned judges, one expressed
    the opinion that the appeal of the appellant deserves to the allowed and the
    other learned judge was of the opi~ion that the appeal deserves to be dismissed.
  C Both the learned Judges gave separate judgments which are fairly lengthy
    and contain a detailed examination of evidence. In view of this difference of
    opinion the matter was placed before a third learned Judge.

             The .case of the pro5ecution is based on the ocular testimony of three
       witnesses PWs I, 2 and 3, besides the testimony of the informant PW4 and
"· D   other evidence including medical evidence produced in the trial before the
       Court Sessions. The third learned Judge, before whom the matter was placed,
       expressed the opinion that the appellant was rightly convicted under Section
       302 IPC and awarded sentence of life imprisonment. In that opinion a brief
       reference has been made to the testimony of only one of the eye-witnesses,
  E    namely PW2 Smt. Kallania. According to the prosecution she was eye-witness
       to the murder of Ram Prasad and not to the murder of the other deceased-
       Ashok Kumar. The eye-witnesses to the murder of Ashok Kumar, according
       to the prosecution case, were PWI and PW3. PW3 is an employee of PWl.
       Ashok Kumar deceased was brother of PWI, PW4 is father of Ashok Kumar
       and PWI Sushi! Kumar.
  F
              In view of the opinion of third learned judge the appeal was dismissed
       by the High Court, The judgment and order of High Court is under challenge
       in this appeal. We have gone through the opinion of the third learned Judge.
       Unfortunately, except a brief reference to the testimony of PW2, the said
       opinion does not show that the leaned judge independently considered the
  G    testimony of other eye-witnesses, in particuiar-PWI and PW3. The judges in
       different dissenting opinions have given detailed reasons, for and against the
       acceptance of version as deposed by these eye witnesses. The third learned
       Judge, under these circumstances, was required to independently examine the
       matter and express his opinion. It is not permissible to only or merely indicate
  H    the agreement with one or other view without giving reasons therefore.
                        MATTAR v. STATE OF U.P.                         283
Therefore, Mr.BB Singh, learned counsel for the appellant is right in his       A
submission that the matter deserves to be remanded to the High Court so that
it may be heard afresh by a third j~ge so as to make available to the parties
a reasoned opinion showing that r'ihe relevant evidence and submissions that
                                   '                           .
may be urged by counsel for the parties have been independently considered.
We refrain from expressing any opinion on the merits ofthe case and make
it clear that merits have not been examined by this Court which aspect would    B
be considered by the High Court (third Hon'ble judge) in accordance with
law.

      In view of the fact that the appellant is in custody for a long period, we
request the High Court to decide the matter expeditiously and, if possible, C
within a period of four months.

     For the aforesaid reasons, we set aside the judgment and order of the
High Court in Crl. A.No.2091/80 and remit the matter to the High Court in
terms aforestated. The appeal is disposed of accordingly.
                                                                                D
R.P.                                                    Appeal disposed of.