1. The accused have been tried by a Jury for an offence punishable under Section 395, Indian Penal Code, and by the Additional Sessions Judge with the aid of the Jurors as Assessors for offences punishable under Sections 396 and 397. First, 2nd, 4th, 9th and 11th accused have been convicted of these offences and appeal.
2. Mr. Osborne on their behalf takes exception to the conduct of the trial in that they have been prejudiced by the simultaneous disposal of a charge triable by a Jury and of charges triable with the aid of Assessors and by the Judge's refusal to allow one of the Assessors to consult the others before giving his opinion as to the charges under Sections 396 and 397. The Judge, no doubt, as appears from his judgment, would have preferred to hold two trials; and we may observe with reference to Sections 226, 233 and 235, Code of Criminal Procedure, that he was fully competent to do so. But the course, which he followed, of trying all the offences charged together is contemplated by Section 269(3); and we must be satisfied that some further special irregularity, which occasioned a failure of justice, took place in connection with it before we can interfere.
3. Such an irregularity is alleged to have been committed by the Judge's refusal to allow one Assessor to consult the others before giving his opinion. Mr. Osborne relies on the possibility that the Assessor in question, who would not commit himself regarding the presence of the convicted accused among the dacoits, might have been willing to give his opinion against it as the result of consultation. But the existence of such a possibility will be material only if it is connected with the occurrence of some irregularity in procedure. We cannot find in the Code any provision authorising or forbidding the Judge to allow consultation between the Assessors and although we are not prepared to decide that the Judge may not in his discretion do so, we follow the opinion of Bashyam Aiyangar, J., expressed in Emperor v. Tirumal Reddi 11 M.L.J. 241 to the extent of holding that he is entitled to have before him each Assessor's individual and independent opinion. We, therefore, do not think that there was any irregularity in the trial.
4. Our attention has then been invited to two instances of misdirection in the charge to the Jury regarding the offence under Section 395; and we think that they have been established. Firstly, the Judge relied on the fact that the witnesses, on whose evidence he invited the Jury to act, prosecution 1st, 2nd and 11th witnesses, named the convicted accused for the first time at the inquest on the day following the occurrence, disregarding the absence of anything in the evidence of prosecution 1st and 2nd witnesses to show that they did so and not exhibiting the Inquest Report. Next the defence was that the accused had been implicated owing to the existence of factions, in which they and the prosecution witnesses had taken opposite sides; but the Judge told the Jury that 'there was no evidence to support that theory.' It is possible that he meant only to negative the existence of direct evidence of any connection between the factions and the implication of the accused. But we doubt whether that construction of what he said would strike the Jury. There was clear evidence of enmity in the depositions of prosecution 1-6 and 9th witnesses; it should have been placed before the Jury and the Jurors should have been asked to consider whether they could draw any inference from it against the prosecution case. As we think that there was misdirection in these two material respects, we must set aside the conviction of the offence under Section 395 and direct that the 1st, 2nd, 4th, 9th and 11th accused be re-tried for it.
5. As regards the offences punishable under Sections 396 and 397, for which the accused were tried by the Judge with the aid of Assessors, the decision depended on whether the accused were guilty of dacoity.
6. For no reason has been shown for interference with the Judge's conclusion that the aggravating facts, proof of which is necessary, were established. We understand the Judge to have found against the accused as regards their participation in the dacoity on the grounds indicated in his charge. The corroboration of evidence of the witnesses above specified by their mention of the accused at the inquest was thus of the greatest importance; and when the Inquest Report was not exhibited, we cannot deal with its contents. As we are unable on the evidence before us to concur in the Judge's decision, we set aside these convictions also and direct the re-trial of the accused on the charge of offences punishable under Sections 396 and 397, Indian Penal Code.
7. We think it will be better that the re-trial shall be held by the Sessions Judge. It will, of course, be for him to consider whether he will deal with the charge triable by a Jury and those triable with the aid of Assessors together or not.