BINOD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) At the very outset, when hearing of these cases commenced, learned Counsels for petitioners drew my attention to some observations made by the appellate Court from which it would appear that in Cr. Appeal No. 44 of 1986 neither the appellant nor Counsel for him had appeared at the time of hearing, and the appeal was disposed of on perusal of record by the appellate Court, and to my notice, two decisions of the Apex Court have been brought by the learned Counsel for the petitioners which are reported in Shyamdeo Pandey v. State of Bihar and the Ors. in 1987 Cr.L.J. 1856 Ram Naresh Yadav and Ors. v. State of Bihar, Admittedly, both the decisions of the Apex Court are of co-equal Bench and this is no longer res intergra as to whether essence of time should be the guiding factor and which of the judgments of co-equal bench should prevail and be considered good law, and one may profitably refer to a Full Bench decision of this Court reported in Amar Singh Yadav v. Shanti Devi, when Hon'ble the Chief Justice, speaking for the Bench, had occasion to observe that when two directly conflicting judgments of the Superior Court and of equal authority exist, then both of them cannot be binding on the Courts below. A choice, however difficult it may be, has to be made in such a situation and the date cannot be the guide.

(2.) In Shyamdeo Pandey's case, the Apex Court was considering the procedure for hearing the appeals and had occasion to observe that after an appeal has been admitted by the appellate Court, that indicates that there are some arguable points in the appeal and so when stage of hearing of the appeal arises, the appellate Court must pass necessary orders after perusing the record which means lower Court records. Contrary to that a conflicting decision of the Apex Court, which has been referred to earlier, was that of Ram Naresh Yadav's case in which observations were made by the Court that in such eventuality where neither appellant nor learned Counsel for the appellant appears during hearing of the appeal, the matter can be disposed of on merit only after hearing the appellant or his Counsel for which the Court may appoint a Counsel at State cost to argue on behalf of the appellant. It seems that while deciding Ram Naresh Yadav's case the decision of Shyamdeo Pandey had not been brought to the notice of the Court and, to me, it appears that Shyamdeo Pandey's case has given a more comprehensive and considered decision. Catena of decisions can be noticed in which law laid down by the Apex Court in Shyamdeo case has been followed by different High Courts and considering the matter from this angle, I find that disposal of the appeal by the appellate Court on perusal of the record had not brought any legal or serious infirmity in the finding recorded by him.

(3.) Learned Counsel for the petitioners, while assailing verdict of guilt recorded by appellate Court, which affirmed the finding of the Court below, convicting petitioners under Section 379/34 and Section 411/34 IPC sentencing them to suffer rigorous imprisonment for a term of three years on first count alone, has urged that though a number of witnesses were examined by the State at trial, there has been no clinching evidence about identification of the petitioners in the process of fleeing, after removal of rifle from custody of Police personnels. Since a good number of witnesses have either been tendered or were formal, instead of dilating on the evidence of these witnesses, I may being exercise with analysis of evidence of Bhuvaneshwar Prasad Singh (PW 3) who was the maker of fardbayan. Factual matrix appearing from the fardbayan of PW 3 and also narratives made by the witnesses was that while Police personnel were going to assist officials for realisation of Government loan, and had stayed for a while at Agapur chowk, two persons came from behind and abruptly removed a rifle from their possession, pursuant to which they were chased, the Police personnels took recourse to firing and it was alleged that Indrabali Ishwar, who allegedly carried a rifle with him, having suffered gun shot injuries, dropped the rifle and made good his escape in the village. About Binod Singh, the other petitioner, accusation attributed to him was that he too had accompanied Indrabali Ishwar. PW 3 would make candid admission that he could not see face of the person who removed rifle from their custody made good his escape, and dropped the rifle and made good his escape but he could not know the name of the person who dropped the rifle and made good his escape. It was only dafadar and chowkidar who could tell their names. Even at the stage of trial, this witness did not claim to identify the petitioners in dock.