P. B. MUKHARJI, J.

( 1 ) THIS criminal appeal comes up before me for decision under Section 429 of the Criminal Procedure Code because two learned Judges of the Division Bench were equally divided in opinion Niyogi, J. was of the opinion that the appellants were guilty and should be convicted under Section 323/34 of the Indian Penal Code and under Section 148 of the Indian Penal Code. Das, J. , on the other hand, was of the opinion that the conviction should he set aside.

( 2 ) ORIGINALLY there were ten appellants. Both the learned Judges of the Division Bench, however, were unanimous that the conviction of the first appellant, Nemai Mondal alias Nemai Chandra Mondal under Section 326 of the Indian Penal Code and under Section 147 of the Indian Penal Code should be set aside as also the conviction of appellants Nos. 9 and 10, namely, Probodh Mondal and Kanai Mondal, under Section 147 of the Indian Penal Code. Therefore, appellants Nos. 1, 9 and 10 have been set at liberty and there is no difference of opinion about them. The difference of opinion that comes up before me for decision is with respect to appellants Nos. 2 to 8; namely, Jogen, Dulal, Haren, Anukul, Ramen, Kartik and Ganesh.

( 3 ) BEFORE dealing with the merits and fads of this appeal it is necessary to dispose of a preliminary point. Mr. Roy appearing for the appellants submits that under Section 429 of the Criminal Procedure Code all that need be done by the third Judge is to accept one view or the other already expressed by the two differing Judges of the Division Bench. He has further submitted that where one Judge has expressed himself in favour of acquittal then very little remains for the third Judge to do because normally when one of the two learned Judges has reasonable doubt about the guilt of the accused, the third Judge should also give the benefit of that doubt to the accused. Mr. Palit for the prosecution has disputed both these propositions.

( 4 ) ON a close scrutiny of the language and interpretation of Section 429 of the Criminal Procedure Code 1 do not think it is possible to accept any of the two submissions made on behalf of the appellants on Section 429 of the Criminal Procedure Code. I shall record my reasons briefly. Section 429 of the Criminal Procedure Code reads as follows:"when the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. "

( 5 ) AS I read the language of that section, what is laid before the third Judge is "the case" itself and not merely the points of difference or the views of difference. The case with the differing opinions is placed before the third Judge. In other words, it is the duty of the third Judge to decide "the case" and not merely the points on which the Judges have differed. No doubt in doing so, the two differing opinions have to be considered by the third Judge. But the decision is the decision of the third Judge on the case. The concluding words of Section 429 of the Criminal Procedure Code to the effect that the judgment shall follow the opinion of the third Judge seems to indicate that the final and ultimate decision is of the third Judge on the case. At the same time the word "case" normally would mean in the case of a number of appellants, the case of each appellant considered separately. In other words, if out of three appellants, the two Judges of the Division Bench agree on one and disagree in respect of the other two appellants, then the "case" that is referred to under Section 429 of the Criminal Procedure Code is the case not of the appellant on which they agree but the appellants on whom they had disagreed The case in such a context means the case in respect of the appellants on which the two Judges are equally divided. The words "equally divided"

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