1. After considering the evidence on the record in this case, we are of opinion that the appellants have been rightly convicted under Sections 149 and 304 of the Indian Penal Code. It is clear that they were the ringleaders in a premeditated riot, with the knowledge and intention necessary to bring them within these sections. The mob, of which the appellants were the ringleaders, consisted of about one hundred and twenty-five men, said to have been armed with shields, spears, and clubs. One man was killed, and others were injured.
2. On these facts we hold that the appellants have been properly convicted, and we also think that the sentences passed on them are not too severe. The appeals are, therefore, dismissed.
3. It is necessary, however, to make some observations on the procedure adopted by the Sessions Judge. He has taken advantage of the terms of Section 309 of the present Code to sum up the evidence for the prosecution and defence to the assessors. This provision has, for the first time, been introduced into our Code, and in our opinion the object is to enable the Sessions Judge in long or intricate cases to place the evidence in an intelligible form, so as to assist the assessors in arriving at a reasonable conclusion.
4. In the present case we observe that the Judge seems rather to have taken an opportunity of expressing his opinion in emphatic terms on every single matter put in evidence. He observes on one point: * * * 'although you may utterly disbelieve the witnesses, as this Court has done, with regard to those persons (who had been acquitted), but yet there is no ground for disbelieving them with regard to those men who have been named from the beginning.'
5. Now, it is impossible to suppose that the assessors could have been otherwise than very much embarrassed in coming to an independent opinion of their own in the face of the very decided opinion expressed by the Judge. There are other passages in the summing up which might be quoted to a somewhat similar effect.
6. In the next place, we observe that the summing up has been recorded by the pleader for the prosecution and accepted by the Judge as correct. We think that such a course should not have been taken by the Judge, and that if he was incapable himself of recording the heads of the summing up to the assessors, he should have availed himself of the services of some Court-officer, or directed it to be done by some independent person.
7. We next find that, instead of taking the opinion of each assessor, as is required by law, the Judge has received the opinions of all the assessors combined, as delivered through one of them whom he thus regards as the foreman of a jury.
8. We further observe that four other persons, who were under trial along with the appellants, were acquitted by the Sessions Judge at the termination of the evidence for the prosecution. The grounds on which the judgment of acquittal was based are, that the evidence of identification was unworthy of belief.
9. Under such circumstances, it was the duty of the Judge, before passing judgment, himself to ask for and record the opinions of the assessors on that evidence. The Judge, however, has thought it unnecessary to do so, because he considers that there was 'no evidence' against the accused, the fact being that there was evidence which the Judge thought unworthy of belief.