1. These two cases were cross cases of assault. In Revision No. 354, the complainant was a Marwari gunny broker who held a monthly tramway pass. On 9th October, in the morning, he boarded a car from Sealdah to High Court as a first class passenger. The accused, who was a tramway conductor, asked for his ticket and the complainant showed him his pass. It was alleged that the accused suspected that the ticket was not the complainant's. At any rate, there was an altercation between them, during which, it is alleged, the accused abused the complainant and the complainant retaliated. Upon this, the accused is alleged to have called the complainant a swine and assaulted him. Afterwards, the complainant went to the thana and lodged a complaint. His pass which had been deposited by the accused at the thana was returned to him. Subsequently, the complainant went to the hospital. The accused, on the other hand, filed a complaint against the complainant, which is the subject matter of Revision No. 334. The conductor's case was that upon being asked for his pass, the Marwari refused to show it to him and abused him. Further, with the help of Marwari fellow passengers, the Marwari assaulted him.
2. The Judge first heard the evidence for the prosecution, in Revision No. 334. There was no evidence for the defence. Then he postponed judgment, and heard the case which is the subject matter of Revision No. 354. In that case, evidence was again called for the prosecution, but none for the defence. At the end of that evidence, the pleaders on both sides addressed the Court with respect to both the cases, and, subsequently, the Magistrate gave one judgment, which is the judgment in respect of Revision No. 354, and in No. 334 he recorded the following order: Vide order in the connected case. The accused is acquitted under Section 258, Criminal P.C.' The Magistrate in his explanation says that the occurrence which formed the subject matter of the two cases was the same, and as such one was the cross case to the other, and the prosecution in the one was the defence in the other. Evidence in both the cases was separately gone into, after hearing which the lawyers made the same arguments for both, as the facts were the same. Both the cases were decided on their merits after weighing the evidence in both, as will appear from the order in case No. Cr/2380 of 1934 which was considered to be a part of the present case.
3. It is obvious that this procedure was not objected to by either of the pleaders. No objection was recorded. On the contrary, they both made one speech with regard to the evidence in both the cases. If objection had been raised by either of the pleaders, doubtless the Judge would have given separate judgments. The procedure adopted by him obviously was for the purpose of saving time and for convenience, and the only question for us to consider is whether, in these circumstances, this procedure was illegal or irregular and, if either illegal or irregular, whether it is necessary for us to interfere in Revision on the ground that some prejudice has been caused to the accused in Revision Case No. 354. In his judgment, the learned Judge after reciting the facts said:
Evidence was adduced in both the cases; and it is for determination which story is true and probable.
4. He then dealt with the evidence on behalf of the Marwari and gave his reasons why he thought that the evidence of the Marwari witnesses was true. The second witness was a Sikh by nationality and not a Marwari and the Magistrate said that
his status in life and straightness leaves no doubt in my mind that the story of the complainant is true.
5. Then he dealt with the evidence on behalf of the conductor, and remarked that there was not only hopeless discrepancy in witnesses' statement regarding the stage at which the altercation and assault took place, but discrepancy in the Inspector's own statement as to where he actually boarded the car:
If he had actually got into the car at the time of the alleged assault on the conductor, would he not have interfered then and there to stop the assault? Evidently, he came in after the incident was over and his deposition that he saw the alleged assault is false.
6. This appears to be an accurate criticism of this part of the evidence, because the Inspector said that he was at the junction of Central Avenue and Harrison Road. On hearing the golmal he went into the car; complainant was being assaulted by the accused. There were others who stopped the accused. Whereas a conductor who was in the second-class car said that he heard the hallas between the parties. He noted the assault on the complainant's face. At the Chitpore Junction, the car stopped and he noticed the cuts on the complainant's face. The Inspector came at this junction. That seems to show that the assault was just over when the car reached the junction and the Inspector boarded it, in which case he could not have seen the assault itself, though he might have seen the effects of the assault on the face of the conductor. It appears that the Inspector tried to improve his evidence on this point. Therefore the Magistrate was justified in disbelieving his evidence and holding that it was discrepant. Then the Magistrate made this observation: Over and above this it appears that complainant's story in the present case is more probable,' that is to say, in addition to the fact that he believed the Marwari's witnesses and disbelieved the conductor's witnesses; he also thought the Marwari's case more probable.
7. Now, strictly speaking, this procedure undoubtedly was irregular, if not illegal. Each case ought to have been tried separately, one after the other. But even so, there would have been no objection to the Magistrate postponing judgment in the first case until he had disposed of the second case. If therefore he had followed the regular procedure, there is nothing to show that his final conclusion would have been different. Assuming that he found these discrepancies in the evidence on behalf of the conductor and came to the conclusion that he could not accept that evidence as true, he must have acquitted the accused in that case and assuming, as he says, that he did believe the Sikh witness called on behalf of the Marwari, the result must have been that he would accept the Marwari's case and convict the conductor of assault. The question therefore arises whether there is any necessity for us to interfere in revision. The case of Queen-Empress v. Chandra Bhuiya (1893) 20 Cal 537, is very much in point. In that case there were two cross oases of rioting and grievous hurt committed separately for trial before a Sessions Judge, who, having heard the evidence in the first case, heard the evidence in the second case, examined some of the accused in the one case as witnesses for prosecution in the other and vice versa, and subsequently heard the arguments in both the cases together, and the opinions of the assessors (who were the same in both the cases) were taken at one time, and both the cases were dealt with in one judgment. It was held that this mode of trial, although irregular, did not prejudice the accused in their defence, and that under such circumstances a retrial was not made necessary by reason of such irregularity. In these circumstances, and being of opinion that no prejudice was done to the Conductor owing to this mode of trial, we do not think it necessary to interfere, and both these rules must be discharged.
8. I agree.