NAIMUDDI Vs. EMPEROR

JUDGEMENT

(1.) The appellants in this case were placed upon their trial on charges framed under Sections 304, 304/109 and 323, Indian Penal Code. The jury unanimously convicted the appellant Naimuddi under Section 326, Indian Penal Code, and the learned Judge sentenced him to three years rigorous imprisonment The jury also convicted the appellant Bhasani under Section 326/109, Penal Code, and the Judge sentenced him also to three years rigorous miprisonment. The appellants Kokai and Yusuf Ah were convicted under Section 323, Indian Penal Code, and sentenced to rigorous imprisonment for BIX months. The case is the usual type of dispute between the two parties over pos session of certain land and the ownership of paddy grown thereon. As a result of this dispute, there was a collision between the two parties on the day of the occurrence, 6 April 1940, and two persons at least were injured on each side. One of the complainant's party a man called Shamuddi received a head injury said to have been caused by a chendao and died of his injury about four and a half months later. Two other members of the complainant's party sustained minor injuries and two at least of the appellants side were more or less seriously injured.

(2.) The case briefly was that a certain beel in which the landlords of both parties were co sharer proprietors silted up and paddy waq grown on a certain portion of the reclaimed land. The complainant's party alleged that they grew the paddy and were cutting it when the appellants came and attacked them The case set up by the appellants in support of which evidence both oral and documentary was actually adduced was that it was they who had grown the paddy and that the complainant's party came to cut it before it was quite ripe with the result that there was a fight between the two parties in which injuries were sustained by both sides. Apart from the manner in which the actual facts were dealt with by the learned, Judge in his charge and his explanation of the law as applying to these facts, there have been a number of unsatisfactory features in the actual conduct of the trial itself. The trial took place at Dacca and at a time when the public peace was very much disturbed and it is now admitted that some of the defence witnesses who had been summoned on behalf of the appellants and who had actually appeared left the town before they could be examined and that this fact was brought to the notice of the learned Judge trying the case and he refused an adjournment which was pressed for on behalf of the accused persons.

(3.) Further, it appears from the history of the case that the investigating Sub-Inspector was ill at the time and could not be examined. His evidence in the lower Court was put in on behalf of the prosecution but an application on behalf of the defence to adjourn the case in order that he might be cross-examined was refused. Lastly, the document which has been treated in the case as the first information report was admittedly not the first intimation received by the police that the occurrence had taken place because the local Dafadar deposed that he heard the row, saw the injured men coming back from the beel, heard from them the story of the occurrence and lodged information at the thana. This information was followed by a visit from a local Sub-Inspector. No attempt however was made on behalf of the prosecution to produce the Dafadar's report. It is clear from the record of the case that because the only fatal injury inflicted did not result in death for some months after the date of occurrence the matter was not taken seriously for a considerable time and the formal first information in the case is dated 23 April 1940 that is 17 days after the occurrence. In our opinion, therefore, it cannot be said that the trial was conducted in a satisfactory way. We are not satisfied that there may not have been prejudice to the appellants because of the facts mentioned above. Apart from that aspect of the case, the charge delivered by the learned Judge to the jury is not in our opinion a satisfactory charge. As previously stated, the appellant Bhasani was convicted of abetment of an offence under Section 326, Indian Penal Code, the prosecution case being that Shammuddi was struck on the head with a chen dao by the appellant Naimuddi under the orders of Bhasani.