Fazlur Rahman and Others vs King-Emperor

Adami, J.—The point taken by Sir Ali Imam on behalf of the petitioners is that the Deputy Magistrate, who tried the case on the second occasion has refused to consider the statements put to the witnesses as contradicting the statements made at the first trial

The learned Deputy Magistrate, in his judgment, has stated:

As to the previous depositions of the witnesses, before the Special Magistrate, there has been no compliance at all with the revisions of Section 360, Criminal P.C., and hence there is no guarantee of their absolute correctness. Consequently any attempt at contradiction by means of such incomplete records must fail.

Now, in the first place, this point was not taken in the lower appellate Court; and secondly, I have asked Sir Ali Imam to point out in what way the statements taken in the previous case would have been helpful to the petitioners as contradicting the statements made in the second trial. Sir Ali Imam rightly concedes that he is unaware of any such contradictions as could affect the case.

The learned Deputy Magistrate is perhaps wrong in stating that these statements made in the previous trial could not be referred to for the purpose of contradicting the statements made in the second trial. Those statements may not possibly be used as evidence in the case in which they were made, but nevertheless they are statements made by the witnesses previous to the trial, and it was open to the defence to put those statements to the witnesses, and in fact those statements were put to the witnesses and they were questioned with regard to them.

We have looked into the evidence in the present case and find that this is so. There is nothing there to show us that the petitioners have been in the least affected by the failure of the Deputy Magistrate, to consider whether any contradictions, that there may have been, affected the prosecution case at all. I do not think that we are called upon in any way to interfere on the ground pub forward.

Then the question of the severity of the sentence has been brought to our notice. Sir Ali Imam pleaded on behalf of the petitioner Fazlur Rahman that the second trial has led to an increase of his sentence, and in regard to all three petitioners he pleads that the fact that they have twice been on trial should be taken into consideration.

Now, with regard to the first plea, Fazlur Rahman took the risk when he asked for a fresh trial, and with regard to all three petitioners it has to be remembered that it was their own fault that the trial had to be repeated. They put forward a ground before the Sessions Judge which was in fact accepted, but which would not now be accepted after the ruling, of their Lordships of the Privy Council. The offence committed was a very serious one considering the state of feeling between the rival parties at the time when the offence was committed, and, in my mind, the sentence is not in any way too severe. I do not feel inclined to interfere either with the conviction or the sentence and therefore the application must be rejected.

Scroope, J.

I agree.