AMBAR ALI Vs. EMPEROR

JUDGEMENT

(1.) This case has been argued at considerable length by the learned advocate, Mr. Talukdar, but after giving our best consideration to the arguments which have been advanced on behalf of the appellant we are of opinion that this appeal must be dismissed and for the following reasons: The case for the prosecution, shortly stated, was as follows : On the afternoon of 3 October 1927, the deceased Kala Mia found two heads of cattle belonging, to the accused Ambar Ali straying into his field just to the north of the bari of the accused and damaging his paddy crop. He took them into custody with the object of impounding them and refused to let them off at the request of the accused Ambar Ali. After some altercation the accused is said to have struck him on the head with a lathi. Almost simultaneously Ambar's nephew Abdul Aziz who is not an accused in this case gave a blow on his head with a dao, with the result that he fell down unconscious on the field. He was removed to an ail by some of the men who came to the spot on hearing the row and was ultimately taken to Feni in a bullock cart. He died shortly before sunrise when the cart reached Feni. His dead body was taken to the thana at Feni and the deceased's brother Mohamed Faiz made a statement before the Sub-Inspector of Feni as to the cause of death. The statement in question was sent to the Sub-Inspector, Chhagalnaya, for investigation, as the place of occurrence was stated to be within the jurisdiction of the last mentioned thana. The post mortem examination was held by the Sub Assistant Surgeon of Feni and it was found that the cause of the death was a blow on the head by means of a blunt weapon such as a lathi. Investigation followed thereafter with the result that the accused Ambar Ali and two other men, Muja Mia and Nural Huq, were seat up for trial.

(2.) The accused Ambar Ali has been convicted by the jury under Part I, Section 304, I.P.C. The learned Judge was of opinion that the conviction should properly have been under the second part of Section 304; and taking that view he has sentenced the accused Ambar Ali to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 200 or in default, to suffer rigorous imprisonment for one year more. He has also directed that out of the fine, if realized, a sum of Rs. 150 should be paid to the heirs of the deceased Kala Mia as compensation.

(3.) The learned Judge's charge to the jury has been assailed before us in one particular. The passage in the charge to which exception has been taken runs as follows; As there is a presumption of innocence in favour of the accused, so there is a presumption of truthfulness in favour of the witnesses. The presumption is rebutted if it is shown that the witness has told an untruth. But that would not justify you in rejecting his evidence in toto. You will have to carefully scrutinize his evidence and should accept it only to the extent to which it is supported by the evidence of other trustworthy witnesses and circumstances and probabilities of the case.