Decided on November 28,1955

STATE Respondents


- (1.) This revision is directed against the conviction and sentence passed against the petitioner by the learned First Class Magistrate of Chenganacherry in C.C. No. 323 of 1953 on his file. The petitioner and his father were tried by the learned Magistrate for causing hurt to the complainant in the case, a young school boy. The learned Magistrate acquitted the father (accused 2), convicted the son (accused 1) and sentenced him to pay a fine of Rs. 50/-. As under S.413 Criminal Procedure Code there is no appeal against a sentence not exceeding Rs. 50/- passed by a First Class Magistrate, the petitioner has moved this Court in revision to have the conviction and sentence set aside.
(2.) Learned counsel for the petitioner tried to argue that the conviction cannot be sustained on the evidence on record. In revision I do no feel justified to sit in judgment over the learned Magistrates appreciation of the evidence.
(3.) A further point raised was that the trial is vitiated by non compliance with the provisions of S.350 Criminal Procedure Code. The learned Magistrate who disposed of the case finally first examined three prosecution witnesses in the case and he was then succeeded by another Magistrate who examined the fourth witness for the prosecution. Before the successor Magistrate the accused did not claim a de novo trial. That successor Magistrate was soon transferred and the original Magistrate took his place. When the latter resumed the trial of the case the accused wanted the trial to be commenced afresh. The Magistrate however allowed only the fourth witness to be re-called and the defence was allowed to put some further questions to him by way of cross examination. The judgment shows that in the decision of the case the learned Magistrate places great reliance on the testimony of PW 4. The point of the objection before me is that when a de novo trial was demanded the evidence should have been recorded afresh and not resumed at the stage the present Magistrate left it when he went on transfer. What the learned Magistrate did, did not even amount to that inasmuch as even the fourth witness was not examined afresh. In the circumstances I do not here feel called upon to decide whether the Magistrate should have commenced the case afresh, for assuming he could have resumed the trial of the case from the stage where he left it the fourth witness should have been examined in full. It is settled law that the word reheard in proviso (a) to S.350(1) Criminal Procedure Code means that the whole evidence of the witnesses should be recorded again, (that is they should be examined in chief, cross examined and re-examined) and that the failure to examine in chief the witnesses who were resummoned is an illegality which vitiates the trial - Vide Govinda Pillai v. State 1955 KLT 606 . What the learned Magistrate did with respect to PW.4 is sufficient to vitiate the whole trial.;

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