RAZAB ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an application under Section 401 Cr.P.C. read with Article 227 of the Constitution of India. None appears for the petitioner. Although this is a case for outright dismissal for want of prosecution, but instead of so doing, the grounds taken up by the petitioner are being considered on merits irrespective of the non- appearance of the petitioner's counsel. The Supreme Court has very recently recommended such a course of action in Bani Singh -Vs- State of U.P., 1996 (4) SCC 720 : AIR 1996 SC 2439.

(2.) The accused petitioner has been found to be guilty of offence punishable U/S 324 IPC and sentenced to undergo two months simple imprisonment and to pay a fine of Rs. 200/-, or in default of payment of fine to undergo 15 days simple imprisonment by the Judicial Magistrate, 1st Class, Nalbari in G.R. Case No! 53/88 vide his judgment dated 10.8.90. By order dated 7.9.90, a rule was issued and execution of sentence suspended. Thereafter this revision petition has been listed for the first time for hearing, Almost 8 years have rolled by. Section 374 Cr.P.C. provides for appeal and Section 376 Cr.P.C. is by way of exception to Section 374, it [provides for cases in which no appeal lies. Sub-clause (c) of Section 376 reads as follows:

(3.) Few basic facts may now be noted. P.W.2 Md. Intaj AH had gone to the house of Rajab along with Mainuddin, Fiddus, Sadulla, Badaruddin and Habibar to discuss the matrimonial matter. During the course of discussion Intaj objected to the proposed marriage of Rajab's daughter with Intitz's elder brother's son - nephew. It is alleged that Rajab attacked them with dagger and injured Intaj, Fiddus, Sadulla. One of them, namely Intaj sustained a grievous hurt, they were first rushed to the local hospital at Mukalmua, from where Intaz was referred to the medical college hospital at Guwahati. Ejahar Ext.1 was lodged at Bhanganamari Out-post, on the basis of which initially a case U/S 326/324 IPC was rqgistered. Apart from the eye witnesses, P.W 1 Fiddus Ali, P.W. 4 Md. Sadulla and P.W. 5 Daraj AH also deposed. There is evidence of the Medical Officer, P.W. 6 who had examined the injured Firdus Ali, Sadulla and Intaj. While the injuries found on Sadulla and Firdus was simple in nature but as for Intaj, a penetrating would on the left hypocondrin was found, hence the charge U/S 326 IPC. The I.O. was examined as P.W. 7. Considering the eye witnesses account and the medical evidence, the trial Court found that offences U/S 326 IPC was not made out, however, a case U/S 324 IPC was clearly made out. Now this finding recorded by the trial Court is well supported by evidence and does not call for any interference. There is no State appeal for enhancement of sentence. Such short term sentence as imposed by the trial Court do not serve any useful purpose, more so, in face of the fact that the offence U/S 324 IPC is a compoundable one and going through the impugned judgment and the record it does not appear that the accused had any criminal antecedents so as to disentitle him from the benefit of Probation of Offenders Act. There is no reference in the impugned judgment nor any indication to show that Section 360 Cr. P.C. was even present to the mind of the learned Magistrate, much less actually considered in its application to the facts of the case.