Jagdeo Rai vs Kali Rai

Chapman, J.—In this case the petitioner was convicted u/s 323, Indian Penal Code, and sentenced to a fine of Rs. 30. He appealed to the District Magistrate, who, after giving some sort of a hearing to the mukhtear at the time of the presentation of the appeal, sent for the record, Upon the receipt of the record, the District Magistrate dismissed the appeal without hearing the mukhtear or any other person or any Pleader whom the appellant had decided to engage. I am of opinion that this procedure does not come within the requirements of the law. If a record is sent for, it cannot be said that the appellant has been given a reasonable opportunity of being heard, if he is not heard upon the receipt of the record. The judgment of the 1st Court in this case is open to considerable criticism.

Upon the recital of the history of the litigation which is said to have terminated in this assault, the probabilities are all in favour of the accused party being in possession of this plot of land No. 146, and for the purpose of the criminal case the accused is entitled to a finding that they were in possession. The first statement made by the complainant, therefore, must be held to be untrue. The Magistrate has also found that the complainant''s story that four persons, all of whom complainant named in his statement, took part in the assault on him is also untrue. It is also found that it is untrue that the injury upon the head was caused by the person named by the complainant. When so much of the case has been found to be untrue, very little is left and the Magistrate does not in fact say that he believed the story which remains. Four witnesses were produced, one of whom Musammat Sonchiraiya was given up by the mukhtear conducting the prosecution. Of the other three, one is complainant himself, one was a plaintiff in a previous litigation, and the third has a grudge against the accused. In the face of this evidence, I am not surprised that the Magistrate did not Believe the evidence they gave. The conviction, therefore, appears to have rested merely on the fact that the complainant bore marks of injury and that there was a dispute about this plot. In my opinion there should not have been a conviction in this case. I set aside the conviction and sentence. The fine must be refunded.