HUSENERA BEGUM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This criminal appeal was heard by a Division Bench of this Court consisting of Hon'ble Justice Amit Talukdar and Hon'ble Justice Arunava Barua and on 20.5.2002, two separate judgments were passed by which the Hon'ble Judges were divided in their opinion - Hon'ble Justice Talukdar took the view that the conviction and sentence passed against the appellant/convict is to be confirmed and the appeal is to be dismissed, whereas Hon'ble Justice Barua took the view that the appeal was to be allowed and the accused/appellant is to be acquitted inasmuch as the prosecution hopelessly failed to prove the guilt of the appellant beyond reasonable doubts.

(2.) Hence under the provisions of section 392 of the Code of Criminal Procedure, the Hon'ble Chief Justice by an order dated 27th August 2002 was pleased to place this matter before this Court. Accordingly, the appeal was taken up for hearing. At the every outset, it is to be mentioned that as two of the Hon'ble Judges of the Bench were divided in their opinion, a duty has been cast on this Court to hear the matter afresh and to deliver the opinion. In Sajjan Singh v. State of Madhya Pradesh in 1999 Supreme Court Cases (Cri) 44, the scope of section 392 of the Code was elaborately discussed and the view taken is that the third Judge is required to rehear and re-examine the matter in its entirety and he is not to sit as an Appellate Court over the judgment of dissension passed by two Hon'ble Judges. In paragraph 10 of the said judgment, it is also viewed:

(3.) So keeping in view the law on the point and the duty cast upon this Court under section 392 of the Code, the learned counsel for the appellant/convict as well as the learned Additional Public Prosecutor were heard at length.