STATE Vs. KAYAM

JUDGEMENT

(1.) This is an appeal by the State against the order of Shri Abdul Zalil Kazi, First Class Magistrate, Bhinmal, acquitting Kayam and Hakiya, opposite parties of an offence under Section 326, Penal Code.

(2.) The prosecution story was briefly this. Jiwan was working at a well in village Sedwa. The two opposite parties, Kayam and Hakiya, and a third person Abdulla, came together to the well, and Abdulla asked Jiwan to stop taking water from the well. Thereafter, Kayam caught hold of the hair of Jiwan's head, and Hakiya hit Jiwan with an axe. Abdulla also hit him with a lathi. A report of this Incident was made at Thana Sedwa within half an hour. The opposite parties pleaded not guilty. Hakiya's story was that he was working at the well, when Yusuf and Jiwan came, and abused him and hit him with lathies. Then people intervened, and saved him. He denied, however, that he had hit Jiwan with an axe. Kayam also denied having taken part in the incident. His statement was that he belonged to the party of Ashraf and Jiwan and Yusuf belonged to the party of Mohammad Rahim, and he had, therefore, been falsely implicated.

(3.) The case came before a number of Magistrates. A part of the prosecution evidence was recorded by one Magistrate. The evidence of one prosecution witness was recorded by another magistrate. Then a third Magistrate recorded the evidence of one more prosecution witness, and four defence witnesses, while the judgment was given ty a fourth Magistrate. On account of this change in the Magistrates, the statements of the accused person were not recorded at the stage at which they should have been recorded under Section 342, Criminal P. C., after ail the prosecution evidence was over. When the last Magistrate took over the case, this defect was noticed. He, therefore, recorded the statement of the accused after the defence evidence was over. Thereafter, he gave this judgment of acquittal.