- (1.) This criminal appeal under section 374 (2) Criminal Procedure Code, 1973 (hereinafter referred to as the Cr.P.C.) has been preferred by the four appellants Mohd. Azim, Mohd. Idrish, Smt. Azzo and Smt. Razia Begum, assailing the correctness of the judgment and order dated 5.3.2011 passed by the Additional Sessions Judge/Special Judge (Anti-Corruption), District Bareilly, in Sessions Trial No.301 of 2001, State vs. Mohd. Azim and others, whereby all the four appellants have been convicted under section 304-B IPC read with section 34 IPC and further in addition to it, the appellant nos.3 & 4 have been convicted under section 302 IPC. The Trial Court further awarded the following sentence to each of the four appellants on hearing them on the question of sentence.
(2.) Appellant no.1 Mohd. Azim has been sentenced to life imprisonment under section 304-B read with section 34 IPC. The appellant no.2 Mohd. Idrish has been convicted to 10 years rigorous imprisonment under section 304-B read with section 34 IPC. Appellant No.3 Smt. Azzo Bano @ Azayab Bano has been sentenced to 10 years rigorous imprisonment under section 304-B IPC and lastly Smt. Razia Beghum appellant no.4 has been given life imprisonment under section 304-B IPC.
(3.) The appeal was heard by a Division Bench comprising Hon'ble Dharnidhar Jha and Hon'ble Naheed Ara Moonis, JJ and separate judgments were delivered by the Hon'ble Judges on 19.02.2013. Hon'ble Dharnidhar Jha, J, allowed the appeal, set aside the judgment of conviction and order of sentence awarded to the four appellants and directed the Trial Judge to hear the case from the stage of arguments of accused and may also hear the prosecution so as to refresh the facts of the case. Certain other directions were issued. The reasons for setting aside the judgment as contained in paragraph 15 of the judgment and other directions contained in paragraph 16 to 19 are reproduced below- 15. We have already pointed out that if the counsel of the appellant was not assisting the court as per Section 314 Cr.P.C., the learned trial judge ought to have identified his duties under Section 304 Cr.P.C. by providing legal aid to the appellant or else by appointing amicus curiae to assist him by addressing oral arguments on behalf of the appellants. In our opinion, the learned trial judge by not providing legal assistance or by not appointing amicus-curiae, was definitely not performing his statutory duty and thereby was encroaching upon the statutory rights of an accused. 16. In the above view, the impugned judgement stands completely vitiated. 17. We are unable to say anything on the merit of the case. We have proceeded merely on findings which have been recorded earlier. The judgment passed by the trial judge vitiates on account of non compliance of the mandate of law and as such it appears to be a fit case to be set aside. Accordingly, we set aside the judgment of conviction and order of sentence awarded to the four appellants and direct the Trial Judge to hear the case from the stage of hearing arguments of the accused and if he so desires, he may hear the prosecution so as to freshening up the facts of case in his mind. In case the accused is not in a position to engage counsel of his choice at his own expense, the learned Trial Judge would request some of the counsel of fair standing at the Bar and practising on criminal side of the law to assist him on behalf of the accused and this Court expects that some counsel would come forward to assist the court whereby justice would be meted out to the accused. Accordingly, the appeal is allowed. 18. We expect that the learned Trial Judge should dispose of the trial within a maximum period of two months from the date, the lower court records along with the present order are received. Registry is directed to ensure remitting the lower court record along with the order immediately to the concerned court for initiation of proceeding with regard to the trial in the manner as directed by us. 19. We are not sure that the learned Judge who had delivered the judgment is still continuing at the same station. We direct that in case the same judge is available, he will not hear this case, because some of his observations appear sufficient enough to show that he was highly governed by his sentiments rather than by his knowledge of the facts of the case, because some of observation from the opening pages up to page 11 of the judgement could not carry well with us, as a Judge is not supposed to have unnecessarily referred to stanzas of poetry so as to guiding himself to arrive at a conclusion. Principles of law and appreciating of facts placed before a judge is relevant for deriving a result. It is not a poetry or certain stanzas of a poem which could lead the Court to judgment. If the learned Judge still continues at station, the learned District Judge would send this case to any other Judge for hearing as directed by us. The appellants, if so advised, shall be free to apply for bail before the court below.";