KONMAL Vs. EMPEROR

JUDGEMENT

(1.) THE plea is raised for a fresh trial, because it is alleged that after the trial Court altered the conviction from Section 323 to Section 325, I.P.C., the applicants were not allowed to recall or resummon prosecution and defence witnesses and examine them with reference to the alteration of the charge and were further not allowed to call more witnesses whom the Court may think material. THE reader has gone through the record and has not discovered any application of the applicants to be permitted to call witnesses. THEre is no affidavit by any legal practitioner appearing in the trial Court that an oral request was made to recall previous witnesses or to summon new ones. THEre has, therefore, been in my opinion no breach of the provisions of Section 231. It would be instructive to compare those provisions with the provisions of Section 256 where duty is laid on the Court to ask the accused to state at a particular period of the trial whether he wishes to cross- examine any and, if so, which of the witnesses for the prosecution whose evidence has been taken. No such duty is laid on the Court under the provisions of Section 231, and so to make those provisions applicable there must be some evidence that the Court refused the request of the complainant or the accused to recall or summon witnesses. Reference was made to the case of Mohan Lal V/s. Emperor A.I.R. 1924 All. 635. In that case also the learned Judge has not stated that any duty lay on the Court to enquire of the accused whether they would recall previous witnesses or summon new ones.

(2.) MOST of the injuries were simple, and the grevious hurt was not of any moment. It further appears that the complainant tried to make up a false charge of theft against the applicants. Taking these facts into consideration I reduce the substantive sentence of six months to two months, otherwise the application is dismissed. The applicants shall surrender to undergo the balance of their sentence. The fine and imprisonment in default are maintained.