C.C. Ghose, J.
1. The appellants before us were charged before the learned Additional Sessions Judge of the Twenty-four Parganas and a jury under Sections 366 and 376, I.P.C. They were convicted on an unanimous verdict of the jury under the said sections and sentenced each to suffer rigorous imprisonment for five years under Section 376, I.P.C. and for three years under Section 366, I.P.C., the sentences to run concurrently.
2. The short facts are as follows : On the night of 25th April 1928, it appears that Uttami Dassi's husband was absent from home and so also was his brother. Taking advantage of that fact, 8 or 10 persons including the present accused are alleged to have entered the house of Uttami Dassi and forcibly carried her off. They also attempted to seize Uttami's sister, but the latter managed to run away. It is further alleged that these men took Uttami to the bank of the river near by, threatened her that she would be put to death beat her and forcibly ravished her and then left her in the fields. Uttami was found by her son Haripada, her sister, who is P.W. 3 and a neighbour, who is P.W. 4. She was taken home by these persons and nursed. She recovered after sometime, and related what had happened. She mentioned the names of the present accused. The Matbars of the village being informed about the occurrence came to her house but it appears that these men were at first against any information being lodged with the police. Their reason was that some of their relatives and friends were involved in the case. Uttami Dassi, however, managed to send Haripada to the thana on 27th April 1928, and the latter lodged an information with the police. A police investigation followed and the accused along with several others who were absconding, were sent up for trial.
3. The first point urged on behalf of the appellants is that the learned Sessions Judge ought not to have admitted in evidence in his Court the deposition of a, witness named Sripati Maity under Section 33 Evidence Act. Now the matter stands thus. This witness Sripati Maity had given evidence on behalf of the Prosecution in the committing Magistrate's Court. In the Sessions Court, he was not available and the police officer in charge of the case stated on good authority before the learned Sessions Judge that enquiries had been made about the whereabouts of Sripati but he could not be traced. Thereupon the deposition of Sripati in the Committing Magistrate's Court was admitted in evidence by the learned Sessions Judge. In my opinion the learned Sessions Judge was entirely right in admitting in evidence the deposition of Sripati in the Committing Magistrate's Court. Sufficient foundation for the admission in evidence of that deposition had been laid in view of the evidence of the police officer who is P.W. 9 and it appears to me that the learned Sessions Judge had reasons to be satisfied that the requirements of the statute had been complied with. It is impossible to lay down any hard and last rule for the application of Section 33, Evidence Act. Each case must depend upon its own facts and the matter is essentially one for the exercise of discretion on the part of the Sessions Judge. I am reluctant to say a single word which will have the effect of fettering the exercise of such discretion. It is sufficient for me to observe that no attempt was made on behalf of the defence to challenge in any way the statements made by the police officer in the course of his deposition in the Sessions Court relating to the whereabouts of Sripati and if that was so, there was nothing wrong or illegal in what was done by the learned Sessions Judge. This point fails and must be negatived. The second and the third points relate to the question as to whether the evidence of two witnesses named Haripada Das and Preo Bera had been fully placed before the jury or not. The learned Sessions Judge's charge to the jury had been read out to us in its entirety and I am not prepared to say that the charge is in any way defective so far as the evidence of these two witnesses is concerned. I think it is an entirely wrong view to hold that it was the duty of the learned Sessions Judge to incorporate in his charge the evidence of witnesses who had already given their depositions before the jury. The duty of the Sessions Judge is to place before the jury in a coherent manner the salient points arising on the evidence adduced before the jury and in my opinion it is no part of the duty of the Sessions Judge to make a second speech on behalf of the defence. In this case, I have examined the passages in the evidence of these two witnesses to which attention has been drawn by the learned advocate for the appellants and I am satisfied that no prejudice, whatsoever, has been caused to the appellant in any way by the manner in which the charge was framed by the learned Sessions Judge. There is no substance in these two points and they must also be negatived.
4. There is one small point which has been urged and it is this : that the Chemical Examiner's report should have been placed before the jury. Now there is no evidence on the present record that any report from the Chemical Examiner was at all obtained by the police. It may be and probably is the fact that the Chemical Examiner was asked to examine a certain piece of cloth but it does not appear that the Chemical Examiner ever sent in his report or that such report was available to the prosecution and that such report has been withheld by the prosecution.
5. I am of opinion that there is no substance whatsoever in this appeal and it must be dismissed. The appellants, if on bail, must surrender to their bail bonds and serve out the remainder of the sentences imposed on them.
6. I agree.