1. Accused-petitioner has been convicted under sections 380 and 457, P. P. C. And sentenced to suffer rigorous imprisonment for six months on each count with direction that the sentences shall run concurrently.
2. The prosecution case, in short, is that on 8th Chaitra 1372 B. S. (corresponding to 23-3-66) at about 2 a. m. The complai--nant Abdul Hafiz woke up from sleep and found the accused---petitioner Moziruddin inside his hut. He caught hold of him and raised alarm. His brother Abdul Ahad who slept in the next room came hearing his alarm and both overpowered the accused. Two or three miscreants from outside attempted to drag away the accused-petitioner through an opening made by the accused in the fencing but could not succeed. Some neighbours came in the meantime and chased those three persons, two of whom accused Sonahar Ali and Rosman Ali were arrested after some chase. The thieves effected entrance by cutting the tin fencing of the hut.
3. Some articles like tiffin carrier, kettle, lotas etc. Belonging to the complainant were found outside the hut. One gunny bag con--taining one sindkati one kanchi, a knife, etc. (Exh. V series) was found in possession of accused Sonahar Ali. The accused were detained in the house of the Union Council member Shamsul Haq for the night and an ejahar was lodged the next morning handing over the accused and the Exh. V series to the police. The local police, investigated into the case and submitted a charge-sheet against the accused persons and thus they were put on trial before the learned Magistrate.
4. The plea of the accused was one of innocence. They asserted that the complainant and his men hired a boat from accused Moziruddin some time back to bring shingles and in connection thereof, a quarrel ensued between the complainant and accused Moziruddin and out of that grudge the accused were arrested on the way while they were going to attend a marriage ceremony nearby and they had been falsely implicated in the case.
5. Ten witnesses for the prosecution and none for the defence were examined in the case. The learned Magistrate on appraisal of the evidence convicted and sentenced the accused-petitioner and the co-accused under section 380/457, P. P. C. As mentioned above. In appeal the learned Additional Sessions Judge, 2nd Court, Sylhet affirmed the said order of conviction and sentence.
6. Being aggrieved thereby the accused-petitioner, moved this Court and obtained the present Rule.
7. The co-accused Sonahar Ali and Rosman Ali have not pre--ferred any revisional application before this Court.
8. Accused-petitioner Moziruddin was caught red-handed inside the dwelling but of the complainant.
9. P. W. 1 Abdul Hafiz has deposed to the effect that on the relevant night he woke up from sleep and finding the accused-petitioner Moziruddin inside the hut, caught him and raised alarm. His brother P. W. 2 Abdul Ahad came at once and both overpowered the accused. Hearing their alarm, the neighbours P. W. 3 Nuruddin, P. W. 4 Mofaruddin and P. W. 5 Sona Mia came to the scene and found the co-accused Sonahar Ali and Rosman Ali outside the dwelling hut. They chased Sonahar Ali and Rosman Ali and apprehended them after some chase. P. Ws. 2, 3, 4 and 5 have corroborated P. W. 1 on material particulars. P. Ws. 6 to 10 who came to the spot immediately, saw the three accused under arrest and heard about the occurrence. All the witnesses stated that some articles namely, tiffin carrier Exh. I, kettle Exh. II and lotas Exh. III were scattered outside the dwelling but of the complainant and the gunny bag recovered from the possession of co-accused Sonahar Ali contained one sindkati, one, kanchi, a knife etc. Exh. V series. The witnesses examined in the case are most natural and competent witnesses they have been cross-examined at length by the defence but nothing tangible have elicited against them.
10. Both the Courts below have considered the evidence in their judgments and recorded independent findings on facts. The two Courts on perusal of the evidence, have held that the accused-- petitioner Moziruddin entered inside the dwelling but of the com--plainant on the alleged night along with the co-accused with intent to commit theft and they actually committed theft. The findings of facts recorded therein are quite reasonable.
11. The plea of the accused has been considered by the Courts below with reference to the evidence on record. The presence of sindkati, kanchi, knife etc. With one of the culprits and the cutmark in the fencing of the hut of P. W. 1 are very significant. The charges against the accused have been established by convincing evidence and he has been rightly convict-- ed in the case.
12. Mr. Habib Ahmad, learned Advocate for the petitioner has made a grievance that the defence was not given any opportunity to examine D. Ws. In the case. The order-sheet of the Magistrate's records shows that the grievance has no basis. After framing of the formal charges the prosecution witnesses were cross-examined at length by the defence lawyer. The case was then fixed for defence and argument on 13-9-66. On that date, on the prayer of both sides, the case was adjourned to 4-10-66 for defence and argument. On 4-10-1966 the accused did not adduce .Any D.
13. Ws. And on the contrary, one of the accused defaulted to appear before the Court. The case was again adjourned to 11-10-1966. On that date also the accused did not bring any D. Ws. Con-- sequently the case was adjourned to 15-10-1966 for defence and argument but on that date too no D. Ws. Were produced. In the circumstances, the learned Magistrate rightly observed that the accused took no steps in adducing any D. Ws. In the case. In the context of things, it cannot be argued that the accused did not get sufficient time to examine D. Ws. It was never the defence case that the accused failed to adduce D. Ws. As they were in custody. No such plea was taken before the Courts below. I, therefore, find no substance in this contention.
14. The learned Advocate has next submitted that some D. Ws. Having already been summoned by the Magistrate, it was incum--bent upon him to secure their attendance in Court and the failure of the learned Magistrate in securing the attendance of the D. Ws. In Court has occasioned a failure of justice in the trial. I cannot readily accept this argument of the learned Advocate. Section 257 of the Code of Criminal Procedure, no doubt, makes it obligatory on the part of the Magistrate, except in the case specified therein, to issue process at the instance of the accused to compel the attendance of the witnesses named by him. But if he can produce them in Court without the assistance of the Court " he is entitled to do so. Under this section, a Magistrate may issue summons upon the D. Ws. On the prayer of the accused and order that the reasonable expenses required for attendance of D. Ws. Shall be deposited in Court by the accused who wants to examine them. There is nothing on record to show that the accused filed' any petition or a list of D.
15. Ws. For issuance of summons or the Magistrate passed any such order or directed the accused to deposit the required costs for securing the attendance of D. Ws. The circumstances indicate that the accused wanted to examine some D. Ws. At his own risk and costs. The copies of summons shown to the Court by the learned Advocate do not bear any signature of the learned Magistrate. It only contains a rubber stamp signature of the Magistrate. It is, therefore, not clear whether the Magistrate issued any summons at all. Even accepting that some summons were issued, there is nothing to show that any cost was deposited by the accused to secure the attendance of the D.
16. Ws. No prayer was also made to the Magistrate to compel the attendance of the D. Ws. Or to issue warrant of arrests against them. In the circumstances, it cannot be said that the Magistrate had a duty to compel the attendance of the D. Ws. In Court. Normally in such cases, the D. Ws. Are produced before the Court by the accused at his risk and summons are also taken by him for that purpose. In the instant case, in spite of sufficient opportunity; the accused failed to produce the D.
17. Ws. Before e the Court. Hence there is no reason to hold that the accused was prejudiced in any way in the trial. The point raised by the learned Advocate thus fails.
18. The case of Kunja Behari Misra and others v. Bendudhar Panda and another (AIR,1942 Pat. 185) is slightly distinguishable. In that case the accused filed a petition to the Magistrate when the witness did not turn up. The principle laid down in that case cannot be held apple--cable to the facts of the present case and in my opinion that does not help the petitioner in any way.
19. For the reasons stated above, this Rule is discharged.
20. The accused-petitioner shall surrender forthwith and serve out the sentence.