1. His Lordship first dealt with the case of Dyama and confirmed the conviction and sentence passed. The appeal of Baslinga was allowed and he was acquitted of the charge of murder. The case of Appaya was next dealt with as follows :
2. Turning, lastly, to accused No. 3, his position again is entirely different. As I have said, he has been acquitted of the charge of abetment of murder. The difficulty here in the way of the prosecution is that he has been convicted of an offence which he has never been expressly charged with, and an offence moreover which the assessors were never asked to give their opinion about. Under Section 309 of the Criminal Procedure Code, it is provided that:
When, in a case tried with the aid of assessors, the case for the defence and the prosecutor's reply (if any) are concluded, the Court may sum up the evidence for the prosecution and defence, and shall then require each of the assessors to abate his opinion orally, and shall record such opinion.
3. In the view I take, it is imperative for the Judge to take the opinion of the assessors on the charge it is proposed to convict the accused on. It is not, I think, open to the Judge to put merely the charge of murder to the assessors, and when they have given their opinion on that charge and that charge only, then on his own motion and without asking any further opinion of the assessors, to find the accused guilty of something quite different. In saying this, I in no way differ from the authorities, such as Emperor v. Hanmappa : (1923)25BOMLR231 , which have been cited to us to the effect that at a trial an accused may be charged with a major offence, such as murder, and in the alternative with a minor offence, such as, being in effect an accessory to the crime. That is not the point I am on. In my opinion it is only fair that a man should understand the charges that are made against him, and that the opinion of the assessors on those charges should be definitely asked, and that it is only after this has been done that a conviction on either the major or the minor charge should be sustained against the accused. On that ground alone, therefore, I think the conviction of accused No. 3 cannot stand and that he should be acquitted and discharged.
4. I am of the same opinion. The rest of the judgment is not material to this report.