Kuppaswami Ayyar, J.
1. The learned Sessions Judge considered that on the evidence on record the accused could not be convicted. But at the same time he ordered a retrial because the offence was of a serious nature affecting the public interest and he was of opinion that there was a lacuna in the prosecution evidence. He was not justified in doing so. The prosecution knew what they had to prove and that they have not proved. If there is a lacuna in the evidence, the accused is entitled to have the benefit of the same. The burden is on the prosecution to prove that the accused is guilty and, if the evidence is not sufficient to bring the guilt home to the accused, the Judge has no other course but to acquit him. Even if the offence was a serious one affecting the public interest, he was not justified in directing a retrial.
2. The order of the Sessions Judge is set aside and the petitioner is acquitted.