NIHARBALA BANERJEE Vs. STATE

JUDGEMENT

(1.) THIS revisional application has been filed by the complainant-petitioner Niharbala Banerjee against the order of the Additional sessions Judge below allowing an appeal against the conviction of the accused persons who are the opposite parties here.

(2.) TO be very brief, the complainant's case was that on 19. 11. 69 at about 8 A M. some of the accused per persons, hereinafter described as the Gangulis, trespassed into the house of the complainant and assaulted her brother surya Narayan. Surya Narayan anyhow freed himself and took shelter in the room. The Gangulis thereafter went away threatening that they would kill surya Narayan. It is further alleged in the petition of complaint that that very day at about 1 P. M. when Surya had been to the local Post Office, the other opposite parties who are made accused, and not the Gangulis, assaulted Surya. The allegation further was that when the complainant knew about the assault, she came to the spot and the injured surya was taken to the hospital where he had to stay for treatment for a few days. Subsequently a petition of complaint was filed and the case was started. The learned Magistrate examined several witnesses and on consideration of the materials before him, he framed charges in respect of the incidents treating them as of the same transaction. Ultimately the accused opposite parties were found guilty and convicted. Against that order of conviction an appeal was filed and the appeal was allowed and against that order of acquittal an appeal was taken to this Court by the complainant and Mr. Justice s. K. Bhattacharyya allowed that appeal, set aside the order of the appellate court below and sent back the matter to the Sessions Judge, Hooghly to dispose of the same in accordance with law with a direction that the learned judge would consider the objection raised on behalf of the accused that the two incidents were separate and they did not form part of the same transaction After that remand it was held by the learned Additional Sessions Judge below who heard the appeal that the two incidents, according to the evidence on record, did not form part of the same transaction and hence due to the misjoinder of charges the judgment was set aside and the learned Magistrate was directed to split up the two cases, one for the morning incident and the other for the incident alleged to have happened at 1 P. M. and to decide the cases according to law after taking evidence afresh. Against this order the present revisional application has been filed by the complainant.

(3.) WE have heard Mr. Banerjee, the learned Advocate appearing on behalf of the complainant-petitioner and also Mr. Mukherjee appearing on behalf of the accused opposite parties mr. Durgadas Ray has also made his submissions on behalf of the State.