SAMRU Vs. BANSARI BURMANI

JUDGEMENT

(1.) THIS Rule is directed against an order of the District Magistrate of Dinajpur whereby the conviction of the petitioners was maintained. The petitioners were charged under Sections 456, 352, 354 and 447, I.P.C. The complaint in the case was made on 5 September 1928 alleging that accused 1 Samru entered into a neighbour's house and attempted to outrage the modesty of the complainant. She cried out and various people came to the scene and the other accused participated in rescuing the first accused from the hands of the people who had already seized him. The learned Magistrate on appeal has dealt with the case in a manner which is all right so far as it goes. But it is said that he has not dealt with the case of the defence and it is quite true to say that reading the judgment of the lower appellate Court we do not gather either what the defence was or that it was supported by any witnesses. In fact, however, it appears that the defence case was that on 3 September that is two days before the occurrence, there had been something of a dispute between the first accused and the complainant's husband over a matter of some land, which resulted in an assault upon Samru who thereupon actually lodged a complaint in a criminal Court. It appears further that this case was in a measure spoken to as being substantiated by the evidence of the three witnesses who were called for the defence, one of whom was an eye-witness of the occurrence and who if believed might lead to the failure of the proseoution case. So far as the judgment of the lower appellate Court is concerned it appears that there is really no explanation forthcoming and it is only necessary for us to say that in such a case as the present where the defence is disclosed on behalf of the accused it should be stated as such by the lower appellate Court and the evidence if any upon which it is founded is to be discussed and a conclusion is to be arrived at by the lower appellate Court in the same way as in the case for the prosecution. It is not enough to say that the prosecution has been proved and that, therefore, it is unnecessary to deal with the defence case. For these reasons we make the Rule absolute and send back the case so that the appeal may be reheard by a Sessions Judge if there is no other Magistrate in the district. The petitioners will remain on the same bail pending the rehearing of the appeal.