1. This is an appeal from the Sessions Judge of Mymensingh, sitting with assessors. The appellant, Chandra Bhuiya, was convicted of the offence of voluntarily causing grievous hurt to Panai Sarkar by means of a dangerous weapon, namely, a gun, an offence punishable under Section 326, Penal Code, and was sentenced to ten years' rigorous imprisonment. He was also convicted of the offence of rioting, being armed with a deadly weapon, under Section 148, Penal Code, but no further sentence was passed upon him for this offence.
2. The other appellants were convicted under Section 326 read with Section 149 of the Penal Code, and each of them was sentenced to three years' rigorous imprisonment. They were also convicted of the offence of rioting, being armed with deadly weapons, under Section 148, Penal Code, but no further sentence was passed for this offence.
3. The riot arose out of a dispute about some land which was alleged, on the one hand, to be the property of the first appellant, Chandra Bhuiya, and to be in the possession, under him, of the appellant, Hukum Garo; while, on the other, it was alleged that the land was the property of Panai Sarkar (the person mentioned in the charge against the first appellant) and was in the possession, under him, of one Panchu.
4. It was charged (and found as a fact at the trial) that Chandra Bhuiya and his party went to cut dhan on the land forcibly, and that the party of Panai went to prevent this.
5. Several persons belonging to the party of Panai were also charged with and tried for the offence of rioting, etc. The cross cases were tried by the Judge and by the same assessors : and the grounds of appeal urged before us related to the manner in which the trials of the cross cases were conducted, which it was argued was illegal, was irregular, and was calculated to prejudice the present appellants in their defence to the charges on which they were tried.
6. The case was set down for hearing just before the vacation. But . upon application on behalf of the appellants, it was postponed for the purpose of obtaining the record in the cross case, in order that that record might be referred to, when necessary, in support of the case for the appellants, which involved the contention that the trial of the appellants had been so mixed up with the trial of the cross case as to prejudice them. The hearing of the appeal was postponed for that reason. The appeal was heard in the vacation, but the Judges who sat during the vacation, and who are members of the present Bench, differing somewhat in opinion, the appeal was re-heard before us. We intimated at the close of the argument for the appellants that we did not think it necessary to call upon the Deputy Legal Remembrancer to support the conviction, as we were then of opinion that the appeal must fail; but we reserved judgment in order that we should state our decision as to some of the matters discussed before us in a written judgment.
7. In the arguments for the appellants, no attempt was made to show, upon an examination of the evidence, that the conviction was not justified by the evidence in the present case. We need not, therefore, do more than say that there is no reason to doubt the substantial truth of the evidence in the case, and that there certainly is no doubt, that if true, it fully warrants the conviction.
8. It was contended, however, that the manner in which this case was tried was not merely irregular, but illegal: and that for this reason the conviction was bad, as being absolutely vitiated by the illegality of the procedure followed.
9. The Judge states in the following words the manner in which the trials in the two cases were held:
The first case tried was that against the members of Panai's party, and then the other case was tried with the help of the same assessors. The arguments were heard on the same day, the fifth of the double trial, and the assessors were invited to give their opinions in the two cases at one time, the cases being inextricably connected.
10. There can be no doubt that the proceeding thus followed was irregular : the question before us with respect to it is whether it has vitiated the conviction.
11. The case of Hossein Buksh v. The Empress I.L.R. 6 Cal. 96 was relied on by the appellant's Counsel on this point. That decision, however, was in a case in which a procedure of this kind was followed in a jury trial, and the distinction between a jury trial and a trial with assessors, in this respect, is pointed out at page 102 of the report. It is, we think, an essential distinction, arising from the nature of the two different tribunals, the verdict in a trial by jury being final on the facts, whereas the entire case in a trial with assessors is subject to appeal, the grounds for the conviction are set out, and the question whether any prejudice has been caused to the prisoner can usually, though not, no doubt, in all cases, be satisfactorily determined.
12. In the present case it can safely be affirmed that the mode of trial, although irregular, did not prejudice the appellants in their defence, and there is the high authority of the case of Queen v. Bazu B.L.R. Sup. Vol. 750 : 8 W.R. Cr. 47 for holding that under such circumstances a re-trial is not made necessary by reason of such irregularity. We may observe that in that case it was said by Mr. Justice Phear that, in the peculiar circumstances of the case, the prisoner has perhaps been rather benefited than prejudiced by the particular course in question having been taken in his trial.
13. In the case The Queen v. Surroop Chunder Paul 12 W.R. Cr. 75 in a case in which the opposing parties who had been engaged in a riot were all tried together, although, as pointed out by this Court, the offences committed by the respective parties necessarily differed in respect of the common object to be attributed to each, the Court did not think it necessary to interpose, with respect to the ryots who had been convicted on the ground of this defect in the trial, although it did set aside the conviction under Section 154, Penal Code, of two of the defendants in the case.
14. In the face of these decisions, we are unable to accept the conclusion which the learned Counsel for the appellants invited us to adopt. He asked us to presume that by reason of the irregularity of the trial, prejudice must have been caused. That we cannot do. We do not affirm that in a case in which there has been such an irregularity as in the present case, this Court might not interfere, if there seemed reasonable ground to believe that the prisoner had been prejudiced by it; perhaps even the Court might do so, if there was reasonable ground to believe that he might have been prejudiced, but in the present case it may safely be affirmed that the appellants were not prejudiced : and to adopt the presumption urged upon as for the appellants would in effect be to hold that the convictions were absolutely void as having been illegally bad. But the decisions referred to show that this proposition cannot be sustained.
15. The appellant's Counsel further contended, upon the authority of the case of Bachu Mullah v. Sia Ram Singh I.L.R. 14 Cal. 358 that we must make a somewhat similar presumption upon a ground other than that of the irregularity just discussed. In the present case witnesses were examined for the prosecution, who were themselves under trial in the cross case which was also pending, arising out of the riot: and it is argued that the observations made in the case of Bachu Mullah v. Sia Ram Singh I.L.R. 14 Cal. 358, show that the reception of such evidence is so irregular as to affect the validity of the conviction obtained on it: in other words, that it must be presumed that the evidence was so affected by the circumstances under which the witnesses gave it, that the conviction must be set aside.
16. We cannot adopt that argument. It must be observed that the opinions expressed in that judgment, upon which reliance is placed by the appellant's Counsel, were not stated as forming the reasons for the decision of the Court, which in that case affirmed the conviction. If those observations had constituted the reason for the decision, and a conviction obtained on such evidence had been set aside on those grounds, it would have been necessary for us either to set aside the present conviction, or to refer the matter to a Full Bench. We should have felt bound to take the latter course, for we should feel unable to hold that the acceptance of evidence given under such circumstances goes in any degree to the validity of the conviction as a matter of law, although such circumstances constitute fair ground of comment as to the weight which should be given to evidence affected by them. But, as we have said, the decision in that case was not founded on those observations, and as a fact the conviction was in that case affirmed, the evidence objected to on the ground referred to having been evidence given in favour of the persons who objected to it.
17. We are unable to accept in favour of the appellants the argument founded on the case [Bachu Mullah v. Sia Ram Singh I.L.R. 14 Cal. 358].
18. It is right to notice an argument addressed to us by the Deputy Legal Remembrancer to the effect that Section 239 of the Criminal Procedure Code authorizes the trial, at one and the same trial, of the opposing parties in a riot. He argued that, notwithstanding that the common object of the rioters on one side must necessarily differ from that to be imputed to the other, a fight between the two parties must be treated as one transaction within this meaning of that section. We think it enough to say that we are unable to construe the word 'transaction' as susceptible of this meaning. Whether it might or might not be desirable that in such cases the members of both parties should be tried together, as may be done in the case of persons guilty of an affray, is a matter upon which we offer no opinion. It would involve in our judgment a change in the law, and not merely in the law of procedure at trials, but in the law of evidence, as it would hardly be possible to try cases of such a nature in this country satisfactorily without allowing the persons charged to give evidence, inasmuch as the well-known practice is to inculpate, on one side or the other, all the persons who were present, or can be possibly identified as having been present.
19. On the law, as it stands, contained in Section 239, we do not think that the two parties can regularly be charged in the same trial.
20. For the reasons we have stated, we dismiss the appeal.