BINOD SINGH Vs. STATE OT BIHAR

JUDGEMENT

(1.) AT the very outset, when hearing of these cases commenced, learned counsel for petitioners drew my attention to some observations made by the appellate Court from which it would appear that in Cr. Appeal No. 144 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 AIR 1971 SC 1606 (Shyamdeo Pandey vs. State of Bihar) and the other in 1987 Cr.L.J. 1856 (Ram NareshYadav and others vs. State of Bihar). Admittedly, both the decisions of the Apex Court are of coequal Bench and this is no longer res integra 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 AIR 1987 Patna 191 (: 1987 PLJR 184) (Amar Singh Yadav vs. 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.) SIMILAR infirmity has crept in evidence of Ram Pravesh Sada (P.W. 4) who too happened to be a Homeguard personnel. Though this witness did not claim to have either known or identified petitioners by name, while they were making good escape with stolen rifle, at trial claimed to have identified petitioners in dock. He too stated to have learnt name of the petitioners from dafadar and chowkidar. Though this witness claimed to have identified the petitioners in the dock, significant issue was that he did not claim their identification when they were being chased by them and once acknowledgment made by the witness about having learnt their names from chowkidar and dafadar is accepted, his claim of identification of the petitioners would be rendered to nugatory. Similar was the case with Bishundeo Rajak (P.W. 4) who too was a Homeguard personnel. This witness neither claimed to have identified petitioners in dock nor on his own saying, he was ever examined by the Police. Though he claimed to have noticed petitioners fleeing, pursuant to which they were chased, he admits to have learnt their names only from chowkidar and datadar.