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Nogendra Nath Bera and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in61Ind.Cas.654
AppellantNogendra Nath Bera and ors.
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), section 423 - appeal against conviction under section 324, penal code--appellate court, duty of--private defence right of plea of. - .....considered the plea that accused were acting in the exercise of the right of private defence. apart from a head constable, who was no witness to the occurrence, the accused did not adduce any evidence of their own, but it was for the consideration of the appeal late court whether by the cross-examination of the prosecution witnesses they had elected matters which might go to support that defense. we desire, however, to make it clear that we are not to be understood as saying that a mere protest or remonstrance by the complainant will justify the making of a violent attack upon him.2. with these observations we set aside the order of the appellate court, and send bank the case to it in order that the appeal may be re-heard and disposed of in due course of law. the petitioner will.....
Judgment:

1. In this case the judgment of the Appellate Court leaves it doubtful whether the learned Magistrate addressed his mind to the first question in the case and came to his own independent conclusion thereon, or whether he relied merely upon the conclusion arrived at by the Trying Court, How, where and by whom the injuries upon the complainant were accused was a matter in which the Appellate Court was beund to come to definite findings of its own. It is also not clear that the Appellate Court has sufficiently considered the plea that accused were acting in the exercise of the right of private defence. Apart from a Head Constable, who was no witness to the occurrence, the accused did not adduce any evidence of their own, but it was for the consideration of the Appeal late Court whether by the cross-examination of the prosecution witnesses they had elected matters which might go to support that defense. We desire, however, to make it clear that we are not to be understood as saying that a mere protest or remonstrance by the complainant will justify the making of a violent attack upon him.

2. With these observations we set aside the order of the Appellate Court, and send bank the case to it in order that the appeal may be re-heard and disposed of in due course of law. The petitioner will remain on bail pending the conclusion of the re-hearing of the appeal we have now directed.


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