1969 P Cr (PLP)

Abu Saleque for Accused‑Petitioners. Zulmat Ali for the Opposite‑Party. This rule was issued at the instance of 3 accused‑petitioners who were convicted under sections 448 and 323, P. P. C. by Mr. K. R. Ahmed, Magistrate, 1st Class, Chittagong who sentenced them to pay a fine of Rs. 75 each, is default to suffer rigorous imprisonment for one month each under section 323, P. P. C. but did not pass any separate sentence under section 448, P. P. C. On appeal the conviction under both the counts was upheld by Mr. Md. Moseeh, Additional Sessions Judge, Chittagong who, however, reduced the sentence to a fine of Rs. 25 in default to undergo rigorous imprisonment for 15 days each under section 323, P. P. C. The prosecution case was that on the 10th Baishakh, 1372 B. S., corresponding to 23‑4‑65 there was a quarrel between the complainant Fuljan, opposite‑party No. 1 and petitioner No. 3 Noorjahan over a "kelabashi" which was alleged to have been taken away by the grandson of the camplainant. The male members, including two male accused and the son of the complainant were away at that time. When petitioner No. 1 Hachi Mia and petitioner No. 2 Nurusafa who is the husband of petitioner No. 3 returned home in the evening, petitioner Noorjahan reported the incident to them whereupon all the petitioners got infuriated, trespassed into the but of the complainant, caught hold of her by the hair and dragged her out and assaulted her. The male accused struck her with lathi and the female accused gave her blows. The complainant sustained injuries and on her cries some witnesses came and heard the occurrence. There were talks of compromise, which, however, failed. The complainant was examined by a doctor on 25‑4‑65 in Chittagong town, and thereafter the complaint was lodged whereupon the accused‑petitioners were put on trial and were charged under sections 323, P. P. C. and 448, P. P. C. The defence plea was that there was no such occurrence and that accused persons were implicated falsely. On a consideration of the evidence of the witnesses examined, the learned Magistrate found that the complainant was actually beaten inside the but into which the accused trespassed and charges were proved beyond reasonable doubt and convicted and sentenced the petitioners as stated. The accused persons preferred an appeal before the Sessions Judge of Chittagong. It was heard by an Additional Sessions Judge, who also found, upon a consideration of the entire evidence, that the charges were proved beyond reasonable doubt. He upheld the conviction but reduced the sentence as stated. Hence this revisional application in this Court. It was contended on behalf of the petitioners that according to prosecution case the complainant was examined by a doctor but the said doctor having not been examined, the entire prosecution case falls through and the learned Courts below should have disbelieved the prosecution case. Prosecution offered an explanation for failure to examine the doctor, namely, that he had gone away to a foreign country for higher training and the learned trial Court appears to have accepted the said explanation. The failure to examine doctor in relation to al charge under section 323, P. P. C. is not fatal to the prosecution case. Hence this contention is not at all tenable. I have gone through the evidences and judgment of the Courts below and I find that both the Courts considered the evidences and came to a finding that the complainant was in fact beaten by the accused‑petitioners and sustained injuries. The Courts and especially the appellate Court also held upon evidence that the accused‑petitioners had entered the dwelling but of complainant with intent to commit an offence and intimidate, annoy or 13 insult her. The conviction is based upon proper appreciation of evidences, of law and facts. No law point is involved in this case to warrant interference. The petition is accordingly rejected and the rule is discharged. Petition rejected.