NEMAI MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This criminal appeal comes up before me for decision under Section 429 of the Criminal Procedure Code because two learned Judges of the Division Bench were equally divided in opinion Niyogi, J. was of the opinion that the appellants were guilty and should be convicted under Section 323/34 of the Indian Penal Code and under Section 148 of the Indian Penal Code. Das, J., on the other hand, was of the opinion that the conviction should he set aside.

(2.) Originally there were ten appellants. Both the learned Judges of the Division Bench, however, were unanimous that the conviction of the first appellant, Nemai Mondal alias Nemai Chandra Mondal under Section 326 of the Indian Penal Code and under Section 147 of the Indian Penal Code should be set aside as also the conviction of appellants Nos. 9 and 10, namely, Probodh Mondal and Kanai Mondal, under Section 147 of the Indian Penal Code. Therefore, appellants Nos. 1, 9 and 10 have been set at liberty and there is no difference of opinion about them. The difference of opinion that comes up before me for decision is with respect to appellants Nos. 2 to 8; namely, Jogen, Dulal, Haren, Anukul, Ramen, Kartik and Ganesh.

(3.) Before dealing with the merits and fads of this appeal it is necessary to dispose of a preliminary point. Mr. Roy appearing for the appellants submits that under Section 429 of the Criminal Procedure Code all that need be done by the third Judge is to accept one view or the other already expressed by the two differing Judges of the Division Bench. He has further submitted that where one Judge has expressed himself in favour of acquittal then very little remains for the third Judge to do because normally when one of the two learned Judges has reasonable doubt about the guilt of the accused, the third Judge should also give the benefit of that doubt to the accused. Mr. Palit for the prosecution has disputed both these propositions.