Decided on September 19,1970

Buduka Kalita - Accused Petitioners Appellant
State Of Assam, Respondents


BAHARUL ISLAM, J. - (1.) THIS application is on behalf of the two petitioners, Buduka Kalita and Ambeswar Kalita, and is directed against the order of conviction and sentence passed in G. R. Case No. 787 of 1965 by the Sub -Divisional Magistrate (Judicial) Sibsagar, who convicted appellant Buduka under Sections 448/324 of the Penal Code and sentenced him to rigorous imprisonment for two months and to pay a fine of Rs. 30/ - in default to rigorous imprisonment for 10 days more, and convicted appellant Ambeswar under Sections 448/323 of the Penal Code and sentenced him to undergo rigorous imprisonment for one month and to pay a fine of Rs. 20/ - in default to undergo rigorous imprisonment for 5 days more.
(2.) THE prosecution case is that on 12 -9 -65 at about 3 -15 P.M. the two petitioners along with Boji Kalita and Konmaj Kalita, entered into the dwelling house of Mamtajuddin Ahmed (P.W. 1) and assaulted his children and their private tutor. P.W. 3. P.W. 1 lodged an ejahar at the Amuguri Police Station. On receipt of the First Information Report, the Police registered a case and after investigation, submitted charge sheet under Sections 448/424/324/326 of the Penal Code.
(3.) THE learned Magistrate framed a charge under Sections 448/324 against accused Buduka and Ambeswar and discharged the other two accused persons. The two petitioners pleaded not guilty to the charges. They have admitted that they entered into the house, but they claim it to be theirs. After examining a number of witnesses the learned Magistrate convicted and sentenced the accused persons as stated above. The accused then preferred an appeal before the Sessions Judge, Jorhat, who upheld the order of conviction and sentence passed by the Magistrate. The appeal was registered numbered as Criminal Appeal No. 4(4)/69 at Jorhat. From the ordersheet, it appears that the trial Court's records were received and the appeal became ready for hearing on 28 -11 -69, on which date it was kept in the ready list and no data of hearing was fixed. Counsel for the respondents appeared on 20 -5 -70. On 20 -7 -70, an order was passed by the Sessions Judge, Jorhat, ordering the appeal to be heard on 11 -9 -70 at Sibsagar. Counsel of the parties were ordered to be informed. But it does not appear from records whether counsel of the parties were in fact informed. Learned Counsel appearing on behalf of the petitioners states that the appellants did not know that the appeal had been transferred to Sibsagar and that 11 -3 -70 was fixed for hearing of the appeal and as such appellants' counsel could not appear on the date of hearing and the appeal was disposed of by the learned Sessions Judge in the absence of the petitioners' counsel. It also appears from the order dated 11 -3 -70 of the learned Sessions Judge that at the time of hearing appellants' counsel did not appear, and he only heard the counsel of the respondents.;

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