An error, omission, or irregularity in the proceedings during trial under the Code of Criminal Procedure will not be a ground for reversing or altering a finding, sentence, or order passed by a Court of competent jurisdiction unless it has in fact occasioned a failure of justice.

JUDGMENT :

S.K. Ray, J. - The Petitioners assaulted opposite party No. 1 on 12.8.1965 at about 5 P.M. in the village with axe and lathis. The opposite party No. 1 was medically examined, and lodged first information report at Bhanjanagar police station on 13.8.1965 at 3 P.M. The informant was medically examined by the same doctor who had examined him before privately, and had granted a certificate (ext. 1). The certificate granted to the informant by the same doctor, on police requisition, is ext. 2. There is no difference between these two certificates as to the number and nature of the injuries found on opposite party No. 1, the informant.

2. The informant tiled a complaint before the S.D.M., Bhanjanagar, on 2.9.1965, upon which complaint case No. 49/65 was registered, and cognisance was taken against six persons including the four Petitioners. Subsequently, on 8-9-1965, the police submitted charge-sheet, and on the basis of this charge-sheet cognizance was taken against the Petitioners under Sections 323 and 324/34, Indian Penal Code. Cognizance had also been taken of the selfsame offences in the earlier complaint case. By order dated 15-11.1965 passed in G.R. Case No. 211 of 1965, the S.D.M. before whom both the cases were pending, clubbed the two cases together for convenience of trial and directed that the procedure, as laid down in Section 252, Code of Criminal Procedure shall be adopted as there were two more accused in the complaint case who had not been charge-sheeted in the police case.

3. It appears that both the complainant and the accused persons were represented by lawyers, and no objection appears to have been taken against this clubbing of the two cases, and the order deciding to adopt the procedure u/s 252, Code of Criminal Procedure for the trial of the cases. Ultimately, the four Petitioners were convicted and the other two accused persons were acquitted.

4. Of the accused persons, Petitioner Bishnu Naik had also started a counter case against the complainant and a witness of his, p.w. 2, and another for which they were tried u/s 200, Indian Penal Code, convicted and sentenced to pay a fine of Rs. 5/- each. The judgment of that case was filed on behalf of the defence during the trial of the Petitioners.

5. The complainant-opposite party No. 1 examined five witnesses. The magistrate accepted the prosecution evidence and convicted Petitioner No. 1 u/s 324, and sentenced him to undergo R.I. for two months and to pay a fine of Rs. 100/- in default to undergo R.I. for one month more. The other Petitioners were convicted u/s 323/34 and were sentenced to undergo R.I. for one month and to pay a fine of Rs. 50/- each in default to undergo R. I. for 15 days more.

The charge u/s 324/34 against Petitioners 2 to 4 was held not to have been substantiated and they were acquitted of that charge.

6. On appeal, the Additional Sessions. Judge, Sri B. Misra, by his judgment dated 18-11-1968 passed in Criminal Appeal No. 36 of 1968(g) (Criminal Appeal 79/67 GDC) upheld the conviction of the Petitioners, but reduced the sentence of Petitioner No. 1 to R.I. for two weeks and to a fine of Rs. 100/- in default to undergo R.I. for two weeks more. He also reduced the sentence for the other Petitioners to a fine of Re. 100/- in default to undergo R. I. for two weeks each. This revision is against this order of conviction and sentence passed by the Additional Sessions Judge.

7. The Additional Sessions Judge found p. ws. 2, 4, and 5 were either interested for the prosecution or inimically disposed towards the accused persons p.w. 2 was a co-accused with the complainant in the criminal case initiated by Petitioner No. 2 in which he was also convicted. p.w. 4 has been found to be the husband of the complainant?s father Sister and thus interested in the prosecution. p.w. 5 is the wife of the complainant. As regards p.w. 3, the learned Additional Sessions Judge found him to be disinterested. Notwithstanding his finding that the complainant had trie