1. Between the 10th of December and the 17th of December 1919 the District of Kumaun suffered a series of dacoities. The first was at Hasanpur Road on the evening of the 10th of December. The second at Horipara later on the same night. The third at Satuia on the 12th. The fourth at Gangapur on the 15th. And the fifth at Paohpera on the 17th of December. Five men ware said to be impliActed in the dasoitiea. As a result, Ram Sahai and Nathua were tried for the Hasanpur dacoity and sentenced to seven years' rigorous imprisonment. For the second dacoity Ram Sahai, Nathua, Rurkoo and Parshadi were tried, and as this was a dacoity attended with circumstances of great cruelty they were sentenced each to 30 stripes. For the third dacoity, that of Satuia, the same four persons were put upon their trial with the addition of a fifth by name Mangali Ram Sahai, Nathua, Rurkoo and Mangali were tried for a fourth dacoity and sentenced as regards the first three to ten. years' rigorous imprisonment and as regards Mangali to 30 stripes. In that dacoity again great cruelty was practised. In the fifth dacoity, Ram Sahai and Parshadi were tried and sentenced to seven years' rigorous imprisonment.
2. There were two trials. Unfortunately, the dacoities committed at Horipura, Satuia and Pashpera were made the subjeot of one trial and similarly the dacoities committed at Hasanpura Road and Gangapur were made the subject of a second trial. Consequently, it happened that in the trial some of the accused were not alleged to be implicated in some of the dacoities under investigation. The same feature was present in the second trial where, for instance, Parshadi was not alleged to be implicated in the Hasanpura Road dacoity nor was Nathua alleged to be present at the Gangapur dacoity. The point has, therefore, be an taken that the trying of the two dacoities and the three dacoities together in those circumstances is an illegally which vitiates the proceedings. Then depends upon a consideration of the effect of Sections 233 to 239 inclusive of the Code of Criminal Procedure. The joinder of charges is regulated by those sections. The first one states that for every distinct offence a of which any person is accused there shall be a separate charge, and every such charge shall be tried separately except in the oases mentioned in Sections 234, 235, 236 and 237. Section 231, again, considers the case of a single parson to be pat of trial and provides that he may be charged with three offences of the same kind proved to have been committed within 12 months from the first to the last of such offences. Section 235 deals with a series of acts which are so connected together as to form the same transaction and makes the one person committing more than one offence liable to charge and trial together on those several cases. We may pass over Sections 236, 237 and 239 and come to the important Section 239. Section 239 defines what persons may be charged jointly. When more persons than one are accused of the same offence, or of different offences committed in the same transaction...they may be charged and tried together or separately, as the Court thinks fit.'
3. In the case under consideration there were different offences committed. But can it be said that they were committed in the same transaction, To say that these dacoities which commenced on the 10th of December and concluded on the 17th constituted the same transaction would, we think, be doing violence to the language of the section and putting upon it a far wider meaning than the language conveys or than is suggested by the illustrations to Sections 239 and 235,--where the words the same transaction' are used.--To hold otherwise, we should have to decide that the raiding of the district was the transaction and the dacoities incidents in that transaction, We are of opinion that those various dacoities must be regarded each as a separate transaction and it was, therefore, illegal to group together the five accused and charge four of the a for the Hasnpura dacoity, all of them for Satuia find four only for the Pachpera dacoity. Similarly, with regard to the second trial, Mr. Denis has agreed that, having regard to the circumstances connected with the Satuia dacoity, that the sentences, if the accused were in truth the perpetrators of this dacoity though severe, is not an excessive sentence. Nor having regard to the cruelties practised at Hasanpura and Pachpera was it improper to add to the penalty of transportation the infliction of 30 stripes. That is to say, if these people who were accused were in truth the dacoits who committed these outrages on the 10th, 12th and the 17th, the sentences though at first sight somewhat unusual are not in the circumstances inappropriate. They appear indeed from the evidence to be well deserved. In the circumstances, these convictions and sentences must be set aside and a re trial ordered in each case. It will, of course, be open to the Crown, if they think fit, to content themselves with an investigation of the Hasanpura, Satuia and Pachpera dacoities; but that is a matter which must be left to their discretion. We allow the appeals, set aside the convictions and sentences passed in each case and direct that the accused be re tried. The accused will remain in custody until the determination of the retrial.