Madhuban Vs. State of U.P.  INSC 795 (5 May 2008)
C.K. THAKKER & D.K. JAIN
ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 5446 OF 2007 REPORTABLE
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed against judgment and order passed by the High
Court of Judicature at Allahabad on April 30, 2007 in Criminal Appeal NO. 13 of
1982 by which it confirmed the order of conviction and sentence recorded on
December 22, 1981 by the 1st Additional District & Sessions Judge, Faizabad
in Sessions Trial No. 156 of 1979.
3. It was the case of the prosecution that in the night of November 15,
1976, Jai Ram Singh (Deceased 1) returned home from out of station. After
taking meal, he went to sleep in the room with his wife and his son Akhilesh
Singh @ Sanjay Singh (Deceased 2). His younger brother Sri Nath Singh
(informant) was sleeping in the adjoining room. At about 12.30 a.m., i.e. early
morning of November 16, 1976, Sri Nath Singh heard cries of his nephew and
Bhabhi, wife of Jai Ram Singh. On opening the door between the two rooms, he
saw that his brother Jai Ram Singh and nephew Akhilesh Singh were being
attacked by four persons. When Sri Nath Singh tried to intervene, he was also
assaulted and received injuries. Shout was raised for calling neighbours and
the assailants fled away. Jai Ram Singh died on the spot. Sri Nath Singh
informed the Police Station, Ayodhya and First Information Report was
registered on the same day, i.e. November 16, 1976. Akhilesh Singh @ Sanjay
Singh was critical. He was sent to District Hospital, Faizabad, but his
condition deteriorated. He was, therefore, shifted to Medical College, Lucknow.
He, however, died there on November 22, 1976. When the matter came up before
the Chief Judicial Magistrate, Faizabad, he passed an order on May 19, 1979 of
committal to the Court of Session. The learned Sessions Judge, Faizabad framed
charges against the accused for offences punishable under Sections 302, 323 and
394 read with Section 34 of the Indian Penal Code (IPC). The statement of the
accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'the Code'), was recorded. The learned 1st Additional Sessions
Judge held that the case of the prosecution was proved against the appellant
and accordingly he convicted the appellant for an offence punishable under
Section 302, IPC and ordered him to undergo rigorous imprisonment for life. He
also convicted the appellant for an offence punishable under Section 394, IPC
and ordered to undergo rigorous imprisonment for four years and for an offence
punishable under Section 323, IPC, to undergo imprisonment for nine months.
4. Being aggrieved by the order of conviction, the appellant herein
preferred an appeal before the High Court. The High Court again considered the
evidence in detail and confirmed the order of conviction and sentence recorded
by the trial court. It is this order which is challenged in the present appeal.
5. This matter was placed for admission hearing on September 17, 2007.
Attention of the Court was invited to Ground 'D' of the Special Leave Petition
wherein it was stated that the High Court had decided the appeal without
hearing the counsel for the accused.
In the light of the above contention, the Court passed the following order;
"It was stated in ground No. 'D', page 57 of the special leave petition
that the High Court was not justified in deciding the appeal without hearing
the counsel for the petitioner and merely permitted him to file "written
arguments". So far as the copy of the High Court judgment which has been
annexed to the special leave petition is concerned, it does not state anything
with regard to appearance of advocates.
In the light of the above statement and ground, issue notice returnable in
Record and proceedings of the courts below be called for within four
6. Record and proceedings of the courts below had been received and the
matter has been placed before us for final hearing.
7. We have heard the learned counsel for the parties.
8. In view of the fact that the notice was only with regard to ground 'D',
we heard the learned counsel for the parties only on that limited issue. So far
as the judgment is concerned, it no doubt records submissions of the learned
counsel for the appellant-accused in various paragraphs. In the beginning of
the judgment, however, there is no reference as regards appearance of
9. From the record and proceedings, it clearly appears that the Criminal
Appeal was heard on November 21, 2006 and the following order was passed;
"Hon'ble O.P. Srivastava, J.
Hon'ble M.K. Mittal, J.
Heard Sri M.P. Verma counsel for appellant Sri H.A. Alvi appearing for the
Judgment is reserved.
In the meantime on prayer of appellant's counsel 5 days' time is granted to
file arguments in writing."
10. It was contended on behalf of the appellant that on November 21, 2006,
when the appeal was heard by the Division Bench, the learned counsel for the
appellant was unable to argue the case due to swelling on vocal cord infected with
influenza. The learned counsel also stated that the said fact had been brought
to the notice of the Court even in an application for extension of time for
filing written statement. An affidavit in support of such assertion was also
filed in the High Court and it is very much there in the record and
11. We went through the records and proceedings before the High Court and we
are satisfied that the statement made by the learned counsel for the appellant
is found to be correct. In the application for extension of time dated
24th/25th November, 2006, it was stated that 'for the facts, reasons and
circumstances stated in the accompanying affidavit', time for filing written
statements might be extended. In the accompanying affidavit, in paragraph 2, it
was stated as under;
"2. That the above noted Crl.
Appeal was listed for hearing on 21.11.2006, before the Division Bench,
comprising of Hon. Mr. O.P. Srivastava and Hon. Mr. M.K. Mittal 'JJ', but
unfortunately the counsel for the deponent was unable to argue the case, due to
swelling on vocal cord infected with influenza."
12. It appears that the learned advocate appearing on behalf of the
appellant before the High Court could not make oral submissions because of
infection in vocal cord.
13. In view of the above facts and circumstances, in our opinion, ends of
justice would be met if we allow this appeal, set aside the order passed by the
High Court and remit the matter to the High Court for fresh disposal in
accordance with law.
14. Though the learned advocate appearing for the State submitted that the
case is of double murder and injured witness who was very much at the scene of
offence, who was assaulted and sustained injuries has been believed by the
courts below and even on that ground, no interference is called for. In our
opinion, however, in the light of what is observed by us hereinabove, it would
be appropriate if the High Court hears the learned counsel for the
appellant-accused and passes an appropriate order in accordance with law. Only
on that ground, the appeal is allowed, the order passed by the High Court is
set aside and the matter is remanded for fresh disposal in accordance with law.
15. We may observe that we have not entered into the merits of the matter
and as and when the matter is placed for hearing before the High Court, the
Court will decide the same on its own merits.
16. Ordered accordingly.