AKIL UDDIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is a revision against the conviction of the accused under Section 323 I.P.C. sentencing him to simple imprisonment for one month passed by the Judicial Magistrate at Silchar. Against the order of conviction the petitioner appealed to the Court of Sessions, Cachar at Silchar. In the memo of appeal number of questions of law and fact were urged, however, learned Judge merely recorded the contention of the parties and passed the following effective order while disposing the appeal on merits: I have very carefully considered the evidence on record and also the arguments advanced by the learned counsel for the accused-appellant. But the points raised during argument by the learned counsel in defence of the accused-appellant, cannot be considered to be enough to ignore the totality of the evidence on the basis of which the impugned judgment and the order of conviction were passed. I, therefore, find nothing on record to justify any intervention with the impugned order of conviction. It is thus seen that the learned Judge did not exercise his appellate power but merely dittoed the findings, which had been reached by the Magistrate. This is not judicial justice. An accused has statutory right to prefer an appeal and urge the questions of law and fact and it is the obligation of the appellate court to dispose of the questions giving reasons for their acceptance or rejection. He cannot by-pass or ignore the contentions and summarily dispose of the appeal. The freedom and liberty of the accused was at stake. That apart the slip-shod disposal has put this court into difficulties. It is either to remit the case to the Sessions Judge after 8 years from the incident or to re-consider the evidence at this end and dispose the case on scrutiny of the evidence. The appellate Court has thus compelled this court to thoroughly examine the evidence and dispose of the matter in accordance with the law. I propose not to send down the case and make further delay, agonies and loss of public time and public money and hence I proposed to dispose of the case on merits upon hearing learned counsel for both sides.

(2.) The Relevent facts are as follows: Way back on 62.78 Shri Fulendra Chandra Das lodged an ejahar stating that around 12 noon while he was coming from Sonai Bazar side he met Fakruddin who called him. They stood on E & D Dyke talking and then the accused gave few lathi blows on his head and back and he sustained injuries. He shouted and nearby people came. He was sent to doctor who opined that two injuries sustained by the injured were simple injuries. So it was a case of hurt under section 323, Indian Penal Code which is non-cognizable offence. But strangely enough the police took cognizance of the case adding section 341, Indian Penal Code (wrongful restraint). There is no material of wrongful restraint in the ejahar. Why should the police take up investigation of a non-cognizable case? Should the police add a nonexistent cognizable offence just assume jurisdiction to investigate the case? It presents detestable back drop and casts a serious reflection upon the whole case.

(3.) The police investigated the case and submitted a charge-sheet against the accused. The First Information Report clearly shows that apart from the accused and the injured there was a third person, namely, Faktuddin. The Investigating Officer without any rhyme or reason omitted to examine him. How comes that the principal prosecution witness was elided by the police without any plausible reason? Fakruddin was examined by the accused who stated that he was not at all aware of the incident and no such occurrence happened in his presence or view. It is thus seen that the main witness cited by the first informant in the First Information Report demolished the prosecution case structured by the first informant had been left out by the police who even did not care to record his statement. He was never designated as hostile or won over. To prosecute the accused the prosecution had to take resort to some other method or means to hook the alleged crook. The investigating agency therefore examined witnesses not cited in the First Information Report and submitted a charge-sheet against the accused under sections 341 and 323, Indian Penal Code. The trial court found no material against the accused in respect of charges under section 341, however convicted the accused under section 323, Indian Penal Code and sentenced him to suffer simple imprisonment for one month. An abortive appeal was taken by the accused. Learned appellate court did not make any exercise to scrutinise the evidence of the witnesses but merely dittoed the findings of the trial court. For the reasons set forth I propose not to send down the matter back to the appellate court for re-hearing of the appeal as it would further frustrate justice, Already over 8 years have elapsed from the date of the incident.