Law: Criminal Procedure Code (V of 1898)

Section: S. 367

Criminal Procedure Code (V of 1898), S. 367-Judgment, contents of-Evidence of both parties to be considered side by side for arriving at findings in favour of or against prosecution.   JUDGMENT   This Rule by the petitioners, who have been convicted by Mr. M. K. Ali, a Magistrate of the 1st Class, Gopalganj under various sections of the Penal Code, has been obtained on grounds Nos. 6, 9 and 10.   The learned Advocate who has appeared on behalf of the petitioners, however, hasnot pressed any of the said grounds.   The only ground that has been pressed before me with reference to certain facts ofthis case is that the Appellate Court's judgment is not a proper judgment in appeal. Since on hearing the learned Advocates, of both sides, I have decided to send this case back for a re-hearing of the appeal, it is not necessary for me to deal with the facts of this case in detail. I shall, however, only refer to those facts which are necessary for the appreciation of the point raised before me.   Mr. Sayem has contended that in this case the most important question to determinewas whether the complainant Sonatan Nissa with her husband Khalilur Rahman and his brother Nazir Ahmed Bhuiya was living on the disputed homestead on the date of occurrence or it was in the possession of accused Shamsur Rahman and his father-in-law D. W. 1 Majibur Rahman. In deciding this question, the learned Additional Sessions Judge has found that the documentary evidence with regard to title is in favour of the accused. He has, however, thought and in my view rightly that the important question that needed consideration was as to who was in actual possession of the disputed property on the date of occurrence.   To support the case of the complainant, the prosecution examined 23 witnesses andthe defence 9. The learned Addi tional Sessions Judge has, on a consideration of the evidence of the prosecution witnesses, come to the finding that the com plainant Sonatan Nissa was in possession on the date of occurrence. The grievance that has been made by Mr. Sayem is that the learned Additional Sessions Judge, while coming to this finding did not take into…