The third judge under Section 392 of the CrPC is not bound by the opinions of the division bench and has the authority to independently examine the case on merits.

Headnote:
CRIMINAL APPEAL - Section 392 of the Code of Criminal Procedure - Third Judge - Scope of Authority - Binding Nature of Opinions of Division Bench - Re-examination of Case on Merits - Admissibility of Evidence - Identification of Accused - Reliability of Eyewitness Testimony - Benefit of Doubt.
Fact of the Case:

Sajjan Singh, Dule Singh, and Meharban Singh were convicted by the Madhya Pradesh High Court for offenses under Sections 302/149 of the Indian Penal Code (IPC) and sentenced to life imprisonment. The High Court upheld the conviction of six out of ten accused, while the remaining four were acquitted. The appellants challenged their convictions in the Supreme Court.
Finding of the Court:

1. The third judge under Section 392 of the Code of Criminal Procedure (CrPC) is not bound by the opinions of the division bench and has the authority to independently examine the case on merits. 2. The third judge is not required to lean in favor of acquittal merely because one of the judges in the division bench held that view. 3. The identification of the accused by eyewitnesses must be scrutinized carefully, especially when there is enmity between the witnesses and the accused. 4. Eyewitness testimony can be unreliable, particularly when the witnesses had a fleeting glance of the occurrence and were under stress. 5. The benefit of doubt should be given to the accused if there are contradictions and inconsistencies in the prosecution's case.
Issues: 1. Whether the third judge under Section 392 of the CrPC is bound by the opinions of the division bench. 2. Whether the third judge is required to lean in favor of acquittal if one of the judges in the division bench held that view. 3. Whether the identification of the accused by eyewitnesses is reliable. 4. Whether eyewitness testimony can be relied upon when the witnesses had a fleeting glance of the occurrence and were under stress. 5. Whether the benefit of doubt should be given to the accused if there are contradictions and inconsistencies in the prosecution's case.
Ratio Decidendi: 1. The plain reading of Section 392 CrPC clearly indicates that it is for the third Judge to decide on what points he shall hear arguments, if any, and it necessary postulates that the third Judge is free to decide the appeal by resolving the difference in the manner he thinks proper. 2. In State of A. P. v. P. T. Appaiah ((1980) 4 SCC 316 : 1980 SCC (Cri) 960) it has been held by this Court that even in a case when both the Judges had held that the accused was guilty but there was difference of opinion as to the nature of offence committed by the accused, it was open to the third Judge to decide the appeal by holding that the accused was not guilty by considering the case on merit. 3. The Calcutta High Court has held in Nemai Mondal v. State of W. B. (AIR 1966 Cal 194 : 1966 Cri LJ 522) 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. 4. It has been held that benefit of doubt may be given only if the third Judge holds that it is a case where the accused is to be given benefit of doubt. 5. There is no manner of doubt that the third Judge has a statutory duty under Section 392 CrPC 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.
Final Decision: The appeal of Meharban Singh was dismissed, while the appeals of Dule Singh and Sajjan Singh were allowed. Dule Singh and Sajjan Singh were given the benefit of doubt and acquitted.

JUDGMENT

The Judgment of the Court was delivered by

D. P. WADHWA, J. - Sajjan Singh (appellant in Criminal Appeal No. 137 of 1997), Dule Singh and Meharban Singh (appellants in Criminal Appeal No. 138 of 1997) are aggrieved by the judgment of the Madhya Pradesh High Court convicting them for offences under Sections 302/149 India] Penal Code ("IPC" for short) and sentencing them to undergo imprisonment for life.

2. Originally before the Sessions Court, there were 11 accused being tried including the appellants. Two of the accused were also charged of offence under Section 404 IPC. After the conclusion of the trial, the Session Judge acquitted Banesingh and convicted rest of the 10 sentencing each o them to life imprisonment. These 10 went in appeal before the High Court The State also filed appeals against the acquittal of Banesingh. Appeals were heard by a Division Bench comprising of Shukla and Chitre, JJ. Both the Judges upheld the acquittal of Banesingh and dismissed the appeal filed by the State. So far as the 10 appellants were concerned, the Judges were divided in opinion. While Chitre, J. gave his opinion that the conviction of all of them should be upheld and their appeal dismissed, Shukla J. felt that conviction of three of them should be upheld and the rest acquitted. The matter was then referred to a third Judge, Prasad, J. under Section 392 of the Code of Criminal Procedure (for short "the Code") who by judgment dated 24-2-1996 upheld the conviction of six persons and dismissed their appeal while the remaining four were acquitted. Out of the six appellants whose appeals have been dismissed by the High Court, three are before us. The remaining three, it appears, did not appeal. As to how these persons were armed as per the prosecution and how the trial ended in conviction and/or acquittal can be described appropriately as per the statement given below :

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Sl. Name Weapon Judgment and order of Third

No. used Division Bench Judge

------------------------------------------------------------------------

Trial Shukla, J. Chitre, J. Prasad, J.

court

----------------------------------------

1. Banesingh son of Kalu Nil Acquittal Upheld Upheld -

2. Meharban Singh, son of Sword Convic Conviction Convic Convic-

Banesingh -tion -tion tion

3. Dule Singh, son of Pharsa -do- Acquittal -do- -do-

Banesingh

4. Sajjan Singh, son of Lathi -do- Acquittal -do- -do-

Devi Singh (stick)

5. Baboo Singh, son of Sajjan Sword -do- Conviction -do- -do-

Singh

6. Gajraj Singh, son of Antar Sword -do- -do- -do- -do-

Singh

7. Kriparam Pharsa -do- Acquittal -do- Aquittal

All

8. Kalu employees Lathi -do- -do- -do- -do-

of Bane- (stick)

9. Atmaram singh -do- -do- -do- -do- -do-

10. Gulab Pharsa -do- -do- -do- -do-

11. Kesu Lathi -do- -do- -do- Conviction

(stick)

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3. The incident out of which these proceedings arose occurred on 30-11-1986 at about 10.20 a.m. in Village Baniyakhedi within the jurisdiction of Police Station Depalpur, District Indore in the State of Madhya Pradesh. Prosecution alleged that 11 persons in conspiracy with each other and ten of them armed with various weapons caused the death of one Abdul Hadi (at the rate) Munna Pehalwan (Munnabhai). First information report of the crime was lodged at about 1.00 oclock on 30-11-1986 itself by Gulamahmad Khan (at the rate) Pyaremian (Pyaremian).

4. Prosecution alleged that Pyaremian along with Munnabhai p

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