PANKAJ KUMAR GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) The above mentioned criminal appeal no. 1516 of 1999 Pankaj Kumar Gupta Versus State of U.P., criminal appeal no. 1463 of 1999-Atul Pandey alias Babloo Versus State of U.P. have come up before me by the order of Hon'ble Chief justice for the decision, under the provisions of section 392, Criminal Procedure Code, 1973 because the Division Bench comprising Hon'ble Barkat Ali Zaidi,J. And Hon'ble Vijay Kumar Verma,J. equally divided in their opinion in its judgment and order dated 28.11.2008 with regard to the appellant-accused Pankaj Kumar Gupta and Atul Pandey alias Babloo, Hon'ble Barkat Ali Zaidi, J. is of the opinion that the appellant Pankaj Kumar Gupta and Atul Padney alias Babloo deserve to be acquitted, their order of conviction has been set aside and their appeals have been allowed, on the other hand Hon'ble Vijay Kumar Verma,J. is of the opinion that the appellant Pankaj Kumar Gupta and Atul Pandey alias Babloo are guilty, they have been convicted under sections 120-B, 302 read with section 34 and 201 read with section 34 of the Indian Penal Code and their appeals are dismissed by affirming the order of conviction and sentence awarded by the trial court.

(2.) In this case three appellants namely Ram Chandra Gupta, Pankaj Kumar Gupta and Atul Pandey have been convicted by the trial court but the accused Pawan Kumar Gupta has been acquitted by the learned Sessions Judge, Varanasi on 29.5.1999 in S.T. No. 624 of 1995.

(3.) The appellants Ram Chandra Gutpa, Pankaj Kumar Gupta and Atul Pandey @ Babloo filed the Criminal Appeal No. 1517 of 1999, 1516 of 1999 and 1463 of 1999 respectively against the judgment and order dated 29.5.1999 by which they have been convicted and sentenced but against the same judgment the State of U.P. filed Government appeal no. 3111 of 1999 and the complainant Ashok Gupta filed criminal revision no. 1372 of 1999 against the acquittal of Pawan Kumar Gupta and to enhance the sentence of the appellants accused Ram Chandra Gupta, Pankaj Kumar Gupta and Atul Pandey alias Babloo. The above mentioned criminal appeals, Govt Appeal and criminal Revision, have been heard by the Division Bench, comprising Hon'ble Barkat Ali Zaidi,J. and Hon'ble Vijai Kumar Verma,J. thereafter delivered the judgment dated 26.11.2009 by which both the Hon'ble Judges dismissed the criminal Appeal no. 1517 of 1999 filed by the appellant Ram Chandra Gupta, the Government Appeal No. 3111 of 1999 and Criminal Revision no. 1372 of 1999. Their Lordships are divided in opinion with regard to the appellant Pankaj Kumar Gupta in Criminal Appeal No. 1516 of 1999 and appellant Atul Pandey alias Babloo in Criminal Appeal no. 1463 of 1999, as mentioned in earlier paragraph therefore. I have been nominated as third judge to hear these appeals by the Hon'ble Chief Justice under the provisions of section 392 Cr.P.C. To deal with the case of Pankaj Kumar Gupta and Atul Pandey alias Babloo in criminal Appeal No. 1516 of 1999 and 1463 of 1999 respectively, it is necessary to unfold the matrix of the case;