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One of the Judge constituting the Division Bench upheld the conviction of the appellant under Section 302/34 IPC but the other Judge of the Division Bench held that the case against the appellant was not established beyond reasonable doubt and the conviction was based on surmise and conjecture and the accused was entitled to be acquitted. In view of such difference of opinion, the appeal was referred to a third Judge of the High Court under Section 392 of the Code of Criminal Procedure. The third Judge has upheld the conviction of the appellant under Section 302/34 IPC and the appeal of the appellant was, therefore, dismissed by the High Court.

Before the third Judge of the High Court reliance was made in Empress Vs. Debi Singh (1986 Allahabad Weekly Notes

275) since reproduced in the decision In ReNarsiah (AIR 1959 A.P. 313) that "as a matter of judicial etiquette, when one Judge differs from his brother Judge on a pure question of the weights of evidence as to the propriety of a conviction, the opinion of the Judge who is in favour of acquittal should prevail at least, as a general rule". It was contended that in view of finding by one of the members of the Division Bench that the appellant was entitled to be acquitted, such view in favour of acquittal, as a rule of prudence, should be accepted by the third Judge hearing the appeal under Section 392 Cr. P.C. The third Judge, however, by referring to several decisions of this court has discarded such contention and has considered the appeal on merits. We feel that it will be appropriate to consider the scope and ambit of Section 392 of the Code of Criminal Procedure and the question of acceptance of the view in favour of acquittal, as a rule of prudence or on the score of judicial etiquette by the third Judge.

The Law Commission in the 41st Report had observed that if either of the Judges first hearing the appeal so requires or if after reference, the third Judge so requires, the case should be reheard and decided by a Bench of three or more Judges. This was incorporated in Clause 402 of the Bill. The Joint Select committee however substituted the words "larger Bench of Judges" for the words "Bench of three or more Judges" occurring in clause 402. Section 392 reproduces the proviso as amended by the Committee. Section 392 of the Code of Criminal Procedure as enacted is to the following effect:-

Section 392 Cr.P.C. clearly contemplates that on a difference of opinion between the two judges of the Division Bench, the matter is to be referred to the third Judge for his opinion so that the appeal is finally disposed of on the basis of such opinion of the third Judge. In the scheme of Section 392 Cr.P.C., the view that third Judge, as a rule of prudence or on the question of judicial etiquette, will lean in favour of the view of one of the Judges in favour of acquittal of the accused, cannot be sustained. The Calcutta High Court has held in Nemai Mandal Vs. State of West Bengal (AIR 1966 Cal 194) that the third Judge need not as a matter of fact, lean in favour of acquittal even if one of the judges had taken such view. It has been held that benefit of doubt may be given only if third Judge holds that it is a case where accused is to be given benefit of doubt. There is no manner of doubt that the Judge has a statutory duty under Section 392 Cr.P.C. to consider the opinions of the two Judges whose opinions are to be laid before the third Judge for giving his own opinion on consideration of the facts and circumstances of the case. In Dharam Singh Vs. State of U.P. (1964 (1) Crl.L.J. 78) this court has indicated that it is the duty of the third Judge to consider the opinion of his two colleagues and to give his opinion. Therefore the learned third Judge has rightly discarded the contention that as a rule of prudence or on the score of judicial etiquette, he was under any obligation to accept the view of one of the Judges holding in favour of acquittal of the accused appellant.