{"id":258235,"date":"1980-08-28T00:00:00","date_gmt":"1980-08-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-andhra-pradesh-vs-p-t-appaiah-and-another-on-28-august-1980"},"modified":"2017-02-15T08:38:48","modified_gmt":"2017-02-15T03:08:48","slug":"state-of-andhra-pradesh-vs-p-t-appaiah-and-another-on-28-august-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-andhra-pradesh-vs-p-t-appaiah-and-another-on-28-august-1980","title":{"rendered":"State Of Andhra Pradesh vs P. T. Appaiah And Another on 28 August, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Andhra Pradesh vs P. T. Appaiah And Another on 28 August, 1980<\/div>\n
Equivalent citations: 1981 AIR 365, 1981 SCR (1) 580<\/div>\n
Author: A Gupta<\/div>\n
Bench: Gupta, A.C.<\/div>\n
           PETITIONER:\nSTATE OF ANDHRA PRADESH\n\n\tVs.\n\nRESPONDENT:\nP. T. APPAIAH AND ANOTHER\n\nDATE OF JUDGMENT28\/08\/1980\n\nBENCH:\nGUPTA, A.C.\nBENCH:\nGUPTA, A.C.\nSARKARIA, RANJIT SINGH\n\nCITATION:\n 1981 AIR  365\t\t  1981 SCR  (1) 580\n 1980 SCC  (4) 316\n\n\nACT:\n     Code of  Criminal\tProcedure  1898,  s.  498-Difference\nbetween two  Judges of\tHigh  Court  on\t nature\t of  offence\ncommitted by  accused-Reference to  third Judge-Third  Judge\nconsidering  evidence\tand  finding   accused\tnot  guilty-\nAcquittal whether valid.\n\n\n\nHEADNOTE:\n     The Sessions  Judge convicting  the  respondents  under\nsection 302  read with\tsection 34<\/a> of the Indian Penal Code,\nsentenced each\tof them to imprisonment for life. On appeal,\na Division  Bench of  the High\tCourt found that the accused\ncaused the  injuries but  the Judges  composing the Division\nBench differed on the nature of the offence committed by the\naccused. The third Judge to whom the case was referred under\nsection 429<\/a> of the Code of Criminal Procedure 1898, found no\nmotive for  the accused\t to commit the offence and held that\nthe evidence  of the  chief prosecution\t witness  was  of  a\ndoubtful nature and that it was not safe to find the accused\nguilty relying\ton that\t evidence.  He\tacquitted  both\t the\naccused.\n     In appeal\tto this Court by the State, it was contended\nthat as\t the  difference  between  the\ttwo  Judges  of\t the\nDivision Bench\twas confined  to the  nature of\t the offence\nonly, the  third Judge\tto whom\t the case  was referred in a\nreference  under   section  429<\/a>\t of  the  Code\tof  Criminal\nProcedure, had\tno power  to acquit the accused by upsetting\nthe concurrent finding of two Judges.\n     Dismissing the appeal,\n^\n     HELD: 1.  The third Judge to whom the case was referred\nunder section  429<\/a> did\tnot  over-step\tthe  limits  of\t his\njurisdiction and  it cannot  be said  that the view taken by\nhim was unreasonable or perverse. [586 D-E]\n     2. In  Bhagat Ram's Case, [1972] 3 SCR 303 the scope of\nsection 429<\/a>  was not considered, nor any question was raised\nwhether the  Judges of the Division Bench could restrict the\npowers of  the third  Judge under  section 429<\/a>,\t nor was the\nnotice of  the Court drawn to the three earlier decisions of\nthis Court. [584 D]\n     3. What  Section 429<\/a> contemplates is that it is for the\nthird  Judge   to  decide  on  what  points  he\t shall\thear\narguments, if any, and that postulates that he is completely\nfree in resolving the difference as he thinks fit. [584 E]\n     Babu and  Others v. State of Uttar Pradesh [1965] 2 SCR\n771 applied.\n     4. The  language of section 429<\/a> of the Code of Criminal\nProcedure is  explicit that the case with the opinion of the\nJudges comprising the Court of\n581\nAppeal shall  be laid before another Judge of the same Court\nand that  the judgment\tor order shall follow the opinion of\nthe third  Judge who  can or  will deal with the whole case.\n[585 D-E]\n     Union of  India and another v. B. N. Ananti Padmanabiah<\/a>\netc. [1971] Suppl. SCR 460: Hethubha v. The State of Gujarat<\/a>\n[1971] 1 SCR 31; referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 112 of
\n1975.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  Order
\ndated 3-10-1974 of the Andhra Pradesh High Court in Criminal
\nAppeal Nos. 57 and 325\/72.\n<\/p>\n
     P. Rama  Reddy, G.\t S.  Rao  and  G.  N.  Rao  for\t the
\nAppellant.\n<\/p>\n
     A. N. Mulla and G. Narisimhalu for the Respondent.
\n     The Judgment of the Court was delivered by
\n     GUPTA, J.-This  appeal preferred by the State of Andhra
\nPradesh is directed against a judgment of the Andhra Pradesh
\nHigh Court by which a learned Judge of that Court exercising
\njurisdiction under  section 429<\/a>\t of  the  Code\tof  Criminal
\nProcedure, 1898\t set aside  the order  of conviction and the
\nsentences  passed  on  the  respondents\t before\t us  by\t the
\nSessions Judge,\t Chittoor Division.  The charge\t against the
\nrespondents was\t that at about ten on the night of September
\n5, 1971\t Venkataramaiah Chetty and Chakala Giddappa (P.W. 1)
\nwere returning\tto their village Sanganapalle from Kadepalle
\nwhere they  had gone  and when\tthey were  about a mile from
\nSanganapalle, respondent  No. 1\t armed with  a bill-hook and
\nrespondent No.\t2 with\ta stout stick attacked them and beat
\nVenkataramaiah Chetty  severely causing multiple injuries as
\na result  of which  he died. The Sessions Judge accepted the
\nevidence of  P.W. 1  and the  dying declaration said to have
\nbeen made  by  Venkataramaiah  Chetty  in  the\tpresence  of
\nseveral\t witnesses   including\tP.W.  1\t and  convicted\t the
\nrespondents under  section 302<\/a>\tread with  section 34<\/a> of the
\nIndian Penal  Code and\tsentenced each\tof them\t to  undergo
\nimprisonment for  life. On appeal preferred by the accused a
\nDivision  Bench\t  of  the  High\t Court\trejected  the  dying
\ndeclaration but accepted the evidence of P.W. 1 to find that
\nthe accused  caused the\t injuries  to  which  Venkataramaiah
\nChetty succumbed;  the learned Judges composing the Division
\nBench however differed on the nature of the offence that was
\ncommitted by  the accused in causing these injuries. Madhava
\nReddy J.  held that  having regard  to\tthe  nature  of\t the
\ninjuries it  was not  possible\tto  find  that\tthe  accused
\nintended to  cause death  and that  the offence committed by
\nthe accused  was culpable  homicide not\t amounting to murder
\npunishable under section
\n582<\/span><\/a>
\n304<\/a> Part I of the Indian Penal Code. Sriramulu J. was of the
\nopinion that  in causing  the injuries\tthe accused  had the
\ncommon intention  to kill  Venkataramaiah  Chetty.  He\talso
\nobserved that  even assuming  the offence did not fall under
\nclause “Firstly” of section 302<\/a> of the Indian Penal Code, it
\nundoubtedly fell  under clause “Thirdly” of that section and
\non this\t view reached the conclusion that the Sessions Judge
\nwas  justified\tin  convicting\tthe  accused  persons  under
\nsection 302<\/a>  read with\tsection 34<\/a> of the Indian Penal Code.
\nThe case was then referred to a third Judge, Ramchandra Raju
\nJ., under  section 429<\/a>\tof the\tCode of\t Criminal Procedure,
\n1898. Raju  J. found on a consideration of the evidence that
\n“there\tdoes   not  appear  to\tbe  any\t motive,  much\tless
\nsufficient motive,  for the  accused to commit the offence”.
\nThe immediate  motive  for  the\t offence  according  to\t the
\nprosecution was\t an incident  said to  have taken  place  on
\nSeptember  1,\t1971,  four   days  prior  to  the  date  of
\noccurrence, when  P.W. 5,  a son of the deceased, was beaten
\nby the\taccused when cattle of the deceased strayed into the
\nfield of  the first  respondent. According  to Raju  J. what
\nhappened on  September 1, was a trivial incident, P.W. 5 did
\nnot sustain  any injury,  he did  not report  the matter  to
\nanyone and  even when the deceased came and intervened there
\nwas no\tquarrel, the  accused did  not try  to\tassault\t the
\ndeceased  nor  the  deceased  tried  to\t beat  the  accused.
\nPointing out certain infirmities in the evidence of the sole
\neye-witness P.W.  1, Raju  J. found  that his  evidence\t was
\n“doubtful and  suspicious”. P.W. 7 who sought to corroborate
\na part\tof the\tevidence of P.W. 1, according to Raju J. did
\nnot “inspire  much confidence”.\t Raju J.  did not  think  it
\n“safe  to  find\t the  accused  guilty  by  placing  absolute
\nreliance on  the evidence  of  P.W.  1\tand  accordingly  he
\nacquitted both the accused.\n<\/p>\n
     Before us\tMr. P.\tRama Reddy  for the  State of Andhra
\nPradesh contends  that it was not open to the third Judge to
\nupset the  concurrent finding  of both\tthe  learned  Judges
\ncomposing the Division Bench that the accused were guilty of
\nsome offence;  it is  argued that  as the difference between
\nthe two\t Judges of  the Division  Bench was  confined to the
\nnature of the offence only, the third Judge to whom the case
\nwas referred  under section  429<\/a> of  the  Code\tof  Criminal
\nProcedure had no power to acquit the accused. Section 429<\/a> of
\nthe Code of Criminal Procedure, 1898 reads:\n<\/p>\n
\t  “When the Judges composing the Court of appeal are
\n     equally  divided  in  opinion,  the  case,\t with  their
\n     opinions thereon, shall be laid before another Judge of
\n     the same  Court, and such Judge, after such hearing (if
\n     any) as  he thinks\t fit, shall deliver his opinion, and
\n     the judgment or order shall follow such opinion.”\n<\/p><\/blockquote>\n
583<\/span><\/p>\n
In support  of his  contention Mr.  Rama Reddy relies on the
\njudgment  of   this  Court   in\t Bhagat\t  Ram  v.  State  of
\nRajasthan<\/a>.(1) This  was a decision by a Bench of two Judges.
\nIn that case Bhagat Ram, an Inspector of Police, was charged
\nwith having  committed offences\t under sections\t 120B<\/a>,\t161<\/a>,
\n218<\/a>, 347<\/a>  and 389<\/a>  of the  Indian Penal\t Code and also under
\nsection 5(1)(a)<\/a>\t read with section 5(2)<\/a> of the Prevention of
\nCorruption Act.\t Another accused, Ram Swaroop, who was tried
\nalong with  Bhagat Ram\twas charged  with  having  committed
\noffences under\tsections 120B<\/a>  and 165A<\/a>\t of the Indian Penal
\nCode. The  trial court\tacquitted both\tBhagat Ram  and\t Ram
\nSwaroop of  all the  charges framed against them. The appeal
\npreferred by  the State\t of Rajasthan  against the acquittal
\nwas heard  by a\t Division Bench\t composed of Tyagi and Lodha
\nJJ. The\t Division  Bench  confirmed  the  acquittal  of\t Ram
\nSwaroop. The  acquittal of  Bhagat Ram\tin  respect  of\t the
\ncharges under  sections 347<\/a>,  218<\/a>, 389<\/a>\tand  120B<\/a>  was\talso
\naffirmed. The  Judges however  differed on the point whether
\nthe acquittal  of Bhagat  Ram regarding\t the  charges  under
\nsection 161<\/a>  of the Indian Penal Code and section 5(1)(a)<\/a> of
\nthe Prevention\tof  Corruption\tAct  should  be\t maintained;
\naccording to  Tyagi J. these charges had not been proved, in
\nthe opinion  of Lodha  J. they\thad been.  In view  of\tthis
\ndifference, the learned Judges passed the following order:\n<\/p>\n
\t  “The result  is  that\t the  appeal  of  the  State
\n     against  the  order  of  acquittal\t of  respondent\t Ram
\n     Swaroop is dismissed. The appeal of the State so far as
\n     it relates\t to the\t acquittal of  respondent Bhagat Ram
\n     under sections 347<\/a>, 218<\/a>, 389<\/a> and 120B<\/a> Indian Penal Code
\n     is also dismissed. In view of the difference of opinion
\n     about the\tacquittal of  Bhagat Ram  under section\t 161<\/a>
\n     Indian Penal Code and Section 5(1)(a)<\/a> of the Prevention
\n     of Corruption  Act,  the  matter  may  be\tlaid  before
\n     Hon’ble the Chief Justice for referring it to the third
\n     Judge.”\n<\/p><\/blockquote>\n
Jagat Narayan  J., the\tthird Judge  to whom  the  case\t was
\nreferred, held\tthat Bhagat Ram was guilty of offences under
\nSection 161<\/a>  and also  sections 120B<\/a>,  218<\/a> and\t347<\/a>  of\t the
\nIndian Penal Code. This Court held in Bhagat Ram v. State of
\nRajasthan<\/a> (supra)  that it was not permissible for the third
\nJudge to  reopen  the  matter  and  convict  Bhagat  Ram  of
\noffences under\tsections 120B<\/a>,\t218<\/a> and\t 347<\/a> of\t the  Indian
\nPenal Code because:\n<\/p>\n
\t  “The present\twas not\t a case\t wherein the  entire
\n     matter relating  to  the  acquittal  or  conviction  of
\n     Bhagat Ram\t had been  left open  because  acquittal  or
\n     conviction of Bhagat Ram had
\n584<\/span>
\n     been left\topen because  of  a  difference\t of  opinion
\n     between the two Judges. Had that been the position, the
\n     whole case relating to Bhagat Ram could legitimately be
\n     considered by  Jagat Narayan,  J.\tand  he\t could\thave
\n     formed  his  own  view  of\t the  matter  regarding\t the
\n     correctness of the order of acquittal made by the trial
\n     Judge in  respect of  Bhagat Ram.\tOn the\tcontrary, as
\n     mentioned earlier,\t an express  order had\tbeen made by
\n     the Division  Bench upholding  the acquittal  of Bhagat
\n     Ram for  offences under sections 120B<\/a>, 218<\/a>, 347<\/a> and 389<\/a>
\n     IPC and  the State\t appeal in  that  respect  had\tbeen
\n     dismissed.”\n<\/p><\/blockquote>\n
Clearly the  decision in  Bhagat Ram’s\tcase  turns  on\t the
\nconstruction  put   on\tthe  order  of\tthe  Division  Bench
\nreferring “the\tmatter” to  the third  Judge that  he was to
\ndecide only  the  question  on\twhich  the  two\t Judges\t had
\ndiffered Bhagat\t Ram’s acquittal  in respect  of the offence
\nunder section  161<\/a> Indian  Penal Code and section 5(1)(a)<\/a> of
\nthe Prevention of Corruption Act was justified. The scope of
\nsection 429<\/a>  was not  considered in  Bhagat Ram’s  case,  no
\nquestion was raised whether the Judges of the Division Bench
\ncould restrict\tthe powers  of the third Judge under section
\n429<\/a>, nor  the notice of the Court appears to have been drawn
\nto three  earlier decisions  of this  Court on the point. In
\nBabu and others v. State of Uttar Pradesh<\/a>(1) a Bench of five
\nJudges held:\n<\/p>\n
\t  “The section\t[s. 429] contemplates that it is for
\n     third Judge  to decide  on what  points he\t shall\thear
\n     arguments, if  any, and  that  postulates\tthat  he  is
\n     completely free  in  resolving  the  difference  as  he
\n     thinks fit”<\/p><\/blockquote>\n
     The next  case is\tHethubha v.  The State of Gujarat<\/a>(2)
\nwhich was decided by a Bench of two Judges. In that case the
\nSessions Judge\tacquitted three\t accused of the charge under
\nsection 302<\/a>  read with\tsection 34<\/a>  Indian  Penal  Code\t but
\nconvicted them\tunder section  304 Part II read with section\n<\/p>\n
34. Two\t of them  were also  convicted under section 323<\/a> and
\nthe third  was convicted under section 323<\/a> read with section\n<\/p>\n
34. On\tappeal to High Court one of the two Judges composing
\nthe Division  Bench held  that it  was the  first  appellant
\nalone who inflicted the fatal injury on the victim and found
\nhim guilty  under section  302<\/a>, while  the second  and third
\nappellants were\t found guilty  under section  324<\/a> read\twith
\nsection 34<\/a>. The other learned Judge was of the view that all
\nthe accused  must be  acquitted as,  according to  him,\t the
\nevidence was  not satisfactory.\t The case  was\tthen  placed
\nbefore a third Judge under section 429<\/a> of the Code of
\n585<\/span>
\nCriminal Procedure,  1898 who  convicted the first appellant
\nunder section  302<\/a> of  the Indian Penal Code, and the second
\nand third appellants under section 302<\/a> read with section 34<\/a>.
\nThe conviction\tof the first and the second appellants under
\nsection 323<\/a>  and of  the third\tappellant under\t section 323<\/a>
\nread with  section 34<\/a> was upheld. In appeal to this Court it
\nwas contended  that the third Judge under section 429<\/a> of the
\nCode of\t Criminal Procedure,  1898 could  only deal with the
\ndifferences between  the two  Judges and  not with the whole
\ncase. Repelling this contention it was held:\n<\/p>\n
\t  “This Court  in Babu\tand Ors.  v. State  of Uttar
\n     Pradesh<\/a>(1)-held that it was for the third learned Judge
\n     to decide\ton what\t points the arguments would be heard
\n     and therefore he was free to resolve the differences as
\n     he thought\t fit. Mehta.  J. here  dealt with  the whole
\n     case. Section 429<\/a> of the Criminal Procedure Code states
\n     “that when\t the Judges  comprising the  Court of Appeal
\n     are equally  divided in  opinion, the  case with  their
\n     opinion thereon,  shall be laid before another Judge of
\n     the same  Court and  such Judge, after such hearing, if
\n     any, as  he thinks\t fit, shall deliver his opinion, and
\n     the judgment  or order  shall follow such opinion”. Two
\n     things are\t noticeable; first,  that the  case shall be
\n     laid before  another Judge, and, secondly, the judgment
\n     and order\twill follow the opinion of the third learned
\n     Judge.  It\t is,  therefore,  manifest  that  the  third
\n     learned Judge can or will deal with the whole case.”<\/p><\/blockquote>\n
     In\t Union\t of  India  and\t another  v.  B.  N.  Ananti
\nPadmanabiah<\/a> etc.,(2)  which was unreported when Bhagat Ram’s
\ncase  was  decided,  a\tthree  Judge  Bench  of\t this  Court
\nconfirmed the  decision in Hethubha’s case. In this case the
\naccused who  were found\t guilty of  offences under  sections
\n5(2)<\/a> and 5(1)(c)<\/a> and 5(1)(d)<\/a> of the Prevention of Corruption
\nAct, 1947  as well  as sections\t 467<\/a> and  471<\/a> of  the Indian
\nPenal Code  by the  Special Judge,  Gauhati, challenged\t the
\norder of conviction in the High Court of Assam and Nagaland.
\nOn difference  of opinion  between the\ttwo  Judges  of\t the
\nDivision Bench of the High Court, the case was referred to a
\nthird Judge.  Before the  third Judge  new plea was advanced
\nthat the  Magistrate at\t Delhi had no jurisdiction to accord
\nsanction  to  an  Inspector  of\t the  Delhi  Special  Police
\nEstablishment to  investigate the  case in  Assam. The third
\nJudge held  that an  order of  a  magistrate  of  the  local
\njurisdiction was  necessary, that  only a  magistrate of the
\ndistrict where\tthe crime  was committed  and no  magistrate
\noutside the jurisdiction was competent to make an
\n586<\/span>
\norder for  investigation and  accordingly the  learned Judge
\nquashed the  proceedings before the Special Judge. In appeal
\nto this\t Court it  was contended  that the third Judge could
\nonly deal with the difference between the two Judges and not
\nwith the  whole case.  This contention was rejected with the
\nobservation:\n<\/p>\n
\t  “This question  came up  for consideration  in the
\n     recent unreported\tdecision in  Hethubha &\t Ors. v. The
\n     State of  Gujarat<\/a> (supra).\t This Court  held  that\t the
\n     third learned Judge could deal with the whole case. The
\n     language  of  section  429<\/a>\t of  the  Code\tof  Criminal
\n     Procedure is explicit that the case with the opinion of
\n     the Judges comprising the Court of Appeal shall be laid
\n     before another  Judge of  the  same  Court.  The  other
\n     noticeable feature\t in  section  429<\/a>  of  the  Code  of
\n     Criminal Procedure\t is that the judgment or order shall
\n     follow the opinion of the third learned Judge.”\n<\/p><\/blockquote>\n
In view\t of these  authorities which  were  not\t noticed  in
\nBhagat Ram’s  case we  are unable  to agree that the learned
\nthird Judge  in the  instant case  to whom  it was  referred
\nunder section 429<\/a> overstepped the limits of his jurisdiction
\nin deciding the case as he did.\n<\/p>\n
     On the  merits of\tthe case,  we have already indicated
\nhow the\t learned third\tJudge viewed the evidence; it cannot
\nbe said that the view taken was unreasonable or perverse.\n<\/p>\n
     The appeal is accordingly dismissed.\n<\/p>\n
N.V.K.\t\t\t\t\t   Appeal dismissed.\n587<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Andhra Pradesh vs P. T. Appaiah And Another on 28 August, 1980 Equivalent citations: 1981 AIR 365, 1981 SCR (1) 580 Author: A Gupta Bench: Gupta, A.C. PETITIONER: STATE OF ANDHRA PRADESH Vs. RESPONDENT: P. T. APPAIAH AND ANOTHER DATE OF JUDGMENT28\/08\/1980 BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. SARKARIA, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-258235","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Andhra Pradesh vs P. T. 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