1. The appellant in this case has been convited of kidnapping a minor girl from the lawful guardianship of her mother and has been sentenced, under Section 363, Indian Penal Code, to three months' rigorous imprisonment. Sharasibala Ihar, the mother of the girl, is the young widow of one Bangsi Mohan Ihar. She was living in her husband's house with her daughter Mukta a girl of six or seven years and the accused Nagendra Caandra Dhar, the adopted son, of Bangsidar's cousin also lived in the same bari
2. The case for the prosecution was that on the 29th April 11ast Nagendra asked Sharasibala to make over to him her ornaments and moveable property and also to transfer her husband's immovable property to him. Sarasibala refused and on this Nagendra assaulted her and drove her away from the house and at the same time forcibly detained her daughter Mukta and did not allow the girl to go With her mother. The accused set up the defence that Sharasibala had been guilty of misconduct with one Ramkali win had been discovered in her room on the 17tn April. Nagendra was then absent from home, and that when Nagendra returned on the 2nd May he found that Sharasibala had gone away leaving, her daughter behind her. The accused's Pleader also wished to argue the alternative defence that Sharasibala by her misconduct had forfeited her right to the guard anship of her daug hrter and that he as karta of a Hindu family was the legal guardian, or at any rate he acted in good faith in keeping the girl away from her mother. The case was tried before the Sessions Judge of Chittagong and a Jury who unanimously found the accused guilty.
3. We find that this appeal must succeed on two grounds. The first is, that ten witnesses were examined before the Committing Magistrate on behalf of the prosecution. Of these seven were not examined in the Sessions Court, nor were they tendered for cross-examination although an application was made on behalf of the accused that this should be allowed. It is not suggested that these witnesses were discarded by the Public Prosecutor on the ground that, if examined, they would not tell tie truth, a nd the accused was entitled to have them put in the box for cross-examination. Further, the learned Sessions Judge has erred in holding that the accused could not set up an alternative defence which was inconsistent with the first defence set up by him. By setting up an inconsistent defence there can be no doubt that the case for the accused becomes considerably weaker than if he settled his best line of defence and set up that defence only. But there is nothing illegal in setting up an alternative and inconsistent defence and the accused's Pleader should have been allowed to argue the alternative defence before the Jury.
4. We hold that these illegal orders passed by the learned Sessions Judge were sufficient to vitiate the trial since they were likely to have prejudiced the accused and we must, therefore, set aside the conviction and sentence passed on the appellant. On examination of the evidence we do not think it necessary that the accused should be re-tried. It appears to us that the offence, if any, committed by the accused was of a technical nature for which the period of imprisonment he has already undergone is a sufficient punishment. The main dispute between the parlies is one that can be better settled in the Civil Court than by a cerminil prosecution for kidnapping. We accrdingly set aside the conviction and sentence passed on the accused and acquit him (sic) kidnappim,. We direct that he be dischrged from his baili bond.