Nur Dewan and Others vs The State

Das, J.—The five petitioners have been convicted of the offence u/s 147, Penal Code, and sentenced to rigorous imprisonment for three months each. In view of the arguments advanced before me on behalf of the petitioners, it is cot necessary to state the facts in detail. It appears that over the demolishing of a cattle trough in a sahan near the houses of the parties, there was a quarrel, and in the course of that quarrel, some persons on the side of the petitioners and the informant himself were injured. There were two counter cases. The case in which the petitioners were accused resulted in a conviction, and the case in which the informant was an accused, resulted in a discharge.

Learned counsel foe the petitioners has urged two points before me. Firstly, it is contended that there was a breach of the provisions of Section 162, Criminal P. C. It appears that the Sub-Inspector of Police, who recorded the statement of some of the prosecution witnesses, was not examined by the prosecution on the ground that he had been gained over. The result of such non-examination was that the earlier statements made by the prosecution witnesses during investigation and put to them in cross-examination could not be proved. The learned Judge, in appeal, however, considered those statements, gave effect to them and in so far as two of the witnesses were concerned, did not accept their evidence in view of their earlier statements. In view of the observation made by their Lordships of the Judicial Committee in P. Kottaya v. Emperor A I. R. (34) 1947 P. C. 67: 48 Cr. L. J. 533), the breach of the provisions of Section 162, Criminal P. C., was a mere irregularity. That irregularity has caused no prejudice, inasmuch as the learned Judge, in appeal, considered the earlier statements made by the prosecution witnesses during investigation, and gave effect to such discrepancies and inconsistencies as were disclosed by the questions put to the prosecution witnesses in cross-examination.

The second point which has been urged, is about the sentence. It is clear that both parties indulged in the assault which took place, and having regard to all the circumstances of the case, I do not think that a sentence of imprisonment is called for in this case. I would, accordingly, reduce the sentence to a fine of Rs. 75 each, or in default, rigorous imprisonment for two months each. Subject to the reduction of the sentence mentioned above, the application is dismissed. Out of the fines, if realised a sum of Rs. 25 will be paid to Dhuman Mian, the injured person, as compensation.