1. This rule has been obtained by Phani Bhusan Ghosh and Sital Sarkar. Phani Bhusan has been convicted of having: committed an offence punishable under section 355 of the Indian Penal Code, that is to say, of having assaulted a person with intent to dishonour him. Sital Sarkar, petitioner No. 2, was convicted under section 323 of the Indian Penal Code, that is to say, of having caused simple hurt; both the petitioners have been sentenced to pay certain fines in default to undergo imprisonment for certain terms.
2. The case for the prosecution briefly is as follows: one Sibakali Bose lives in the village of Harope. He is the complainant. His son-in-law Nanda Dulal Das lives in the village of Khalore. On the 26th December 1947, Siba Kali went to his son-in-law and stayed there. On the 28th of the same month at about 7-30 a.m. the petitioners Phani Bhusan and Sital Sarkar and one Chandi Sarkar had an altercation with Nanda Dulal over the repairing of an old fencing which was on the land of Nanda Dulal. Sibakali tried to intervene on behalf of his son-in-law whereupon Sital Sarkar gave him a blow while Phani Bhusan struck him with a slipper on the left ear.
3. The defence taken is that Nanda Dulal enchroached on the land of the accused and erected a new fencing thereon. Over this there was an altercation and in the course of such altercation Nanda Dulal abused Sital's father and trespassed upon Sital's land in order to assault Sital. The complainant Sibakali hastened to the spot to support his son-in-law when he fell down upon the hard ground and sustained injuries. It was suggested by the defence that this case was started in order to cimcumvent any possible case that might be instituted by the accused petitioners. Seven witnesses were examined on behalf of the prosecution. Of these 7, 2 witnesses, namely P.W.s 3 and 4(Sudhir Kumar Bose and Bibhuti Bhusan Bose) were not tendered for cross examination and their evidence was expunged. Among the witnesses was a Doctor who examined the injuries on Sibakali. The prosecution rely upon the medical evidence as negativing the defence story that the injuries might have been caused by a fall. The defence gave no evidence but contented itself with making certain suggestions. The learned Magistrate has believed the prosecution story and convicted the petitioners as stated above.
4. Learned Advocate appearing on behalf of the petitioners first argued that the evidence of the witnesses P.W.s 3 and 4 (Sudhir Kumar Bose and Bibhuti Bhusan Bose) should not have been expunged as they went in favour of the defence and he contended that there is no provision in the law that such evidence should be expunged merely because the witnesses were not tendered for cross examination. I do not think there is any substance in this contention. Unless examination of a witness is complete, that is to say, unless he has been cross-examined and re-examined or unless his cross examination or re-examination has been declined, his evidence cannot be considered except in the circumstances mentioned in Section 33 of the Indian Evidence Act. There is nothing to show that these persons are dead or incapable of giving evidence or that they cannot be found or that they have been kept out of the way by the complainant; nor is there any evidence that their presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable. In the absence of these circumstances such incomplete evidence cannot be accepted.
5. The next ground taken by learned Advocate for the petitioners is that although the trial court has accepted the evidence given on behalf of the prosecution, it has expressed no opinion on the defence taken. From this learned Advocate for the petitioners asks me to draw the inference that the learned Magistrate has not weighed the evidence as he should have done. He contends that in weighing the evidence the learned Magistrate should have taken into consideration the suggestions made and either accepted them or negatived them. There is certainly this unsatisfactory element in the judgment. The learned Magistrate apart from stating the defence has not given his opinion directly upon the defence case but I do not think that this fact would justify me to interfere in revision. It is clear from the Judgment that the learned Magistrate took note of the defence because he has stated the defence fully in his judgment. He has believed the prosecution evidence and he has given his reasons therefor. Having believed the prosecution evidence it necessarily followed that the defence suggestions were not accepted. Had the defence given some evidence and had the learned Magistrate not discussed it, the petitioners would have had legitimate grievance. The defence has merely made suggestions and these suggestions are not supported by any evidence. I do not consider that much notice need be taken of them. As regards the medical evidence I find that on the whole it does suppprt the case for the prosecution. The doctor says that some of the injuries found on the person of Sibakali might have been caused by a fall but he adds in re-examination that if the injuries had been caused by a fall he would expect further injuries on that side of the body of Sibakali.
6. Sibakali is an old man of 76 and there can be no doubt that striking a respectable old man with a slipper would amount to an offence punishable under Section 355 of the Indian Penal Code. Indeed learned Advocate for the petitioners does not argue that the facts if considered to be proved would not support the charge.
7. Having regard to all these circumstances, I am of opinion that the judgment of the court below should not be interfered with. I accordingly uphold the decision of the court below and discharge this rule. The order of compensatibn will also stand.