ANWARUL HAQUE @ BAHRUL Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER has assailed judgment dated 16.02.1994 passed by Sri Suresh Chandra Srivastava, Judicial Magistrate 1st Class, Katihar in Complaint Case No. 890/1990 (Sk. Khairuddin v. Anwarul Haque) convicting the petitioner for an offence punishable under Sections 420 IPC and sentenced him to undergo RI for two years as well as judgment dated 19.09.2001 passed by Additional Sessions Judge, IInd Katihar in Cr. Appeal No. 22 of 1994 dismissing the same.

(2.) AFTER going through lower court record, it is evident that there is gross error persisting. After having evidence recorded under Section 244 of the Cr.P.C., petitioner was charged for an offence punishable under Sections 406, 420 of the IPC. From perusal of the trial court judgment, it is evident that the learned lower court had dealt with evidence and concluded by holding the petitioner guilty for an offence punishable under Section 420 of the IPC but nothing has been recorded with regard to Section 406 of the IPC. That means to say, the judgment did not speak as to whether an offence under Section 406 is made out of not. The judgment of learned trial court is totally absent with regard to application of Section 406 of the IPC and having conclusion thereupon whether prosecution has been able to substantiate the same or not or the petitioner has been acquitted therefor or not. That means to say appreciation of Section 406 IPC has been kept in abeyance.

(3.) FROM the judgment of the appellate court, it is apparent that the petitioner, who was appellant before the learned appellate court was not represented nor the court took assistance in terms of amicus curiae and the judgment of the appellate court, on that very score is found deficient one because of the fact that save and except PW 5, the complainant, evidence of none other witness has been taken into consideration.