SURESH KARMAKAR Vs. SEKH ISHU

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Agartala, Tripura, under Section 438, Criminal Procedure Code, by which recommendation has been made that the conviction of Suresh Karmakar under Section 379, I. P. C., be set aside. Suresh Karmakar has been convicted by Sri S.C. Kar, Magistrate, 1st Class Khowai, and not Kailashahar as has been incorrectly mentioned by the learned Sessions Judge in his reference. The learned Sessions Judge has committed another mis take in mentioning in his order of reference that Suresh Karmakar has been fined Rs. 50/ - when as a matter of fact the learned Magistrate had imposed fine of Rs. 40/ - only on him. The learned Sessions Judge has shown only Suresh Karmakar as the petitioner when as a matter of fact Suresh Karmakar, Upendra Chandra Karmakar and Surendra Chandra Sukla Baidya were the three petitioners in this case and all of them had been convicted by the learned Magistrate.

(2.) ISHU complainant alleged that the petitioners had harvested the paddy crop raised by him on 1 kani of disputed land on 23.11.1952 and they had misappropriated the same. The petitioners denied that the paddy belonged to the complainant and another accused Parabat denied his presence on the spot at the time of the occurrence.

(3.) THE learned Sessions Judge was of the opinion that the examination of the accused under Section 342, Criminal Procedure Code, on 21.11.1953 after the accused had entered their defence was illegal. He was further of opinion that the charge framed by the learned Magistrate was defective and as no finding was given with reference to another charge under Section 427, I. P. C., the proceedings were vitiated. Lastly it has been mentioned that the evidence on the record has not been properly weighed by the learned Magistrate and so there has been a miscarriage of justice. The complaint lodged by Ishu in this case was also said to be defective merely because it did not disclose full facts.