N.J. Wadia J.
1. The five appellants in this case were charged under Sections 148, 326 and 307 read with Section 149 of the Indian Penal Code for having on September 8, 1942, been members of an unlawful assembly, the common object of which was to commit murderous assault on Yellappa, Basalingaya, Bhimarai and Iray a Shivaya, with having committed a riot in prosecution of this common object being armed with axes and scythes, and with having voluntarily caused grievous hurt to Yellappa and others. Accused No. 1 Banappa was also charged with having attempted to commit murder by firing a gun at Yellappa and others and with having thereby committed an offence under Section 307, Indian Penal Code, and the other accused with having committed an offence under Section 307 read with Section 149 of the Indian Penal Code. Accused No. 1 was further charged under Section 19 (e) of the Indian Arms Act for having been in possession of a gun without a license. The jury by a majority of four to one found all the accused not guilty of rioting or of causing grievous hurt. They also found accused No. 1 not guilty under Section 19(e) of the Indian Arms Act. The assessors were of opinion that the offence under Section 307 read' with Section 149 had also not been proved against any of the accused. The learned Sessions Judge was of opinion that the verdict of the jury with regard to the charges under Sections 148 and 326 with Section 149 of the Indian Penal Code and under Section 19(e) of the Indian Arms Act was manifestly perverse and against the weight of the evidence, but as he differed from the verdict of the assessors with regard to the charge under Section 307 and convicted accused No. 1 under Section 308 and accused Nos. 2 to 5 under Section 308 read with Section 149 of the Indian Penal Code, he thought it unnecessary to make a reference to this Court under Section 307 of the Code of Criminal Procedure against the verdict of the jury. He therefore made an order of acquittal as regards the offences of rioting and causing grievous hurt.
2. The decision of the learned Judge not to make a reference to this Court under s 307 of the Code of Criminal Procedure against the verdict of acquittal by the jury with regard to the charges under Sections 148 and 326 of the Indian Penal Code has created a difficulty as regards the conviction of accused Nos. 2 to 5 under Section 308 read with Section 149 of the Indian Penal Code. The learned Judge very unwillingly accepted the verdict of the jury acquitting all the accused of rioting and of causing grievous hurt. He nevertheless convicted accused No. 1 under Section 308 for having attempted to commit an offence under, Section 304 and the remaining accused Nos. 2 to 5 under Section 308 read with Section 149. It is difficult to see how the conviction of accused Nos. 2 to 5 can be sustained. They have been acquitted on the charge of rioting. It must therefore be held that there was no unlawful assembly and no common intention on the part of these four accused to commit a murderous assault on Iraya or any body else. Section 149 could not therefore be applied to them. That section pre-supposed a finding that there was an unlawful assembly with a common intention to commit an offence. The conviction of accused Nos. 2 to 5 under s.,308 read with Section 149 must therefore fail in any case. Although the learned Judge has referred in one part of his charge to Section 34 of the Indian Penal Code and has pointed out to the jury that that section could be applied even though it had not been specifically mentioned in the charge, he does not actually convict accused Nos. 2 to 5 under Section 308 read with Section 34, but only under Section 308 read with Section 149 The question however is not of much importance on the view which we propose to take of the evidence as a whole.
3. The present case is a counter case arising out of the same facts from which Appeal No. 181 of 1943, which we have just decided, arose. In that case one faction was prosecuted and convicted. The present case is against the rival faction. Accused No. 3 in the present case was the complainant in the other case, and the present complainant Iraya was accused No. 1 in that case. Each case was tried by a different Sessions Judge. The trial inthe case against Iraya began on April 15 and was concluded on April 21, 1943. The trial against the accused in the present case commenced before a different Judge on June 21, 1943, and was concluded on July 9, 1943, The procedure which was followed in putting up these two cases, both arising out of a single riot, before two different Judges has produced somewhat startling results. The accused in both cases have been convicted of having used the same gun and of having wounded Chayappa with it. In the other case Iraya was found guilty of having shot at Chayappa with the very gun with which Banappa accused No. 1 in the present case has been found guilty of wounding Chayappa. Admittedly only one shot was fired at Chayappa in the course of the riot. The case affords a very striking example of the difficulties which may occur where counter charges arising out of a riot are tried by different Judges. The Judge in the present case referred to the counter case in his charge to the jury and pointed out that the jury in the earlier case had found the prosecution witnesses in the present case guilty of rioting and firing a gun, but he observed that the opinion of the jury in the earlier case was not in any way binding on the jury in the present case, and he thought that undue stress had been laid by the defence on this fact. His remarks may be technically correct, but it is obvious that very serious injustice has resulted because of the procedure followed. One side or the other has obviously been wrongly convicted of having fired at Chayappa.
4. The question of the proper procedure to be followed in such eases, where rival factions which have taken part in a riot are both prosecuted, is one of considerable importance. The two factions must obviously be prosecuted separately, since the common intention of each of the two parties to the riot would be different and they could not be tried in a single case. There is of course no objection in law to both the cases being tried by separate Judges with the help of separate juries or assessors, but such a procedure is always open to the risk of the two Courts coming to conflicting findings, and occasionally, as in the present case, it may result in very serious injustice, one side or the other being wrongly convicted. In our opinion the most desirable procedure in such cases would seem to be that both the cases should be tried by the same Judge, though with different assessors or juries. The first case should be tried to a conclusion and the verdict of the jury or the opinion of the assessors, taken. But the Judge should postpone judgment in that case till he has heard the second case to a conclusion, and he should then pronounce judgments separately in each case. He would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence in one case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case. It would be obviously necessary that he should try the two cases in quick succession one after the other. It may be that in some particular cases he might feel some difficulty about trying both cases, and in such a case it would always be open to him to get the second case transferred. No hard and fast rule can be laid down, and we do not suggest that the procedure which we have recommended above should be invariably followed in the trialof counter casesarising out of one and same riot. But normally we think that that procedure is the one least open to objection. The view which we have taken on this point is in accord with the view which was taken by the Madras High Court in Krishna Pannadi v. Emperor A.I.R.  Mad. 190. It was observed in that case that cases and counter cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished. The same view was taken by another Judge of the Madras High Court in Lakshminarayana v. Surynarayna A.I.R.  Mad. 502. A similar view was also taken by the Lahore High Court in Ujagar Singh v. Emperor A.I.R.  Lah. 356. In Madat Khanv. Emperor (1926) 29 Bom. L.R. 784 two cases arising out of a village faction fight were tried separately against members of each faction by the same Sessions Judge who delivered a single judgment. In both cases he convicted some of the accused. Against these convictions appeals were preferred to the High Court of Lahore. The learned Judges delivered a single judgment in the two cases dismissing both appeals and confirming the convictions and sentences. The matter went up in appeal to the Privy Council. It was observed by their Lordships that in a case of this kind it is almost impossible to keep the cases wholly separate. With regard to the contention on behalf of the accused that the High Court in delivering a single judgment had imported considerations from one case into the other, their Lordships said that to some extent that was inevitable, and they remarked that although technically it might have been better to keep the evidence entirely distinct and to have delivered two separate judgments, no injustice had followed from what was done. It would appear from this that in the opinion of their Lordships there would have been no objection if the two cases had been separately tried by the same Judge in the manner indicated by us above.
5. We have found it very difficult to understand the attitude taken up by the prosecution in the present case. In the first case, in which only Iraya and his party were prosecuted, it was alleged by the prosecution that Iraya had come armed with the gun (Article 6 in the present case and Article 11 in the other case) and that he had shot Chayappa with it and had also wounded Devendra. That case ended in the conviction of Iraya. We cannot understand how, after that conviction, the prosecution could have contended in the present case that the shot which wounded Chayappa had been fired by accused No. 1 in the present case, Banappa. The attitude adopted by the prosecution must undoubtedly have misled the Judge and the jury.
6. [After dealing with the evidence in detail the judgment concluded :] The appeal is therefore allowed, the convictions and the sentences passed upon all the accused are set aside and the accused ordered to be set at liberty.