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SUPREME COURT OF INDIA
16th February 1953
MAHAJAN AND S.R. DAS JJ.
Magga and another - Appellants
Versus
State of Rajasthan.
Criminal Appeal No. 103 of 1952.
Advocates appeared
Shri H. J. Umrigar, Advocate, appointed by the Court under R. 8 of 0. 21, Supreme Court Rules, 1950 - for Appellants; Shri Porus A. Mehta, Advocate instructed by Shri G. H. Rajadhyaksha, Agent-for the State.
Held: (1) The effect of the provisions of sections 284 and 285 is J. that a trial cannot be validly commenced with less than three assessors chosen in the manner prescribed by the Code, but once validly commenced
1. Case remanded for re-trial.
it can be continued in certain cases to a finish if some, though not all, of the persons originally appointed, attend throughout the trial. If all of them do not attend, then a fresh trial has to be held. An addition in the number of the assessors or a change or substitution in their personnel during the course of the trial is not warranted by the Code; on the other hand, it is implicitly prohibited. The procedure prescribed by S. 285 (1) is not of a permissive nature. It has to be followed if the conditions prescribed are fulfilled, and like section 285 (2) it is of a mandatory character. No scope is left in these provisions for the exercise of the discretion of the judge for supplementing these provisions and for holding a trial in a manner different from the one prescribed and for conducting it with the aid of some assessors originally appointed, and also with the aid of some others recruited during the trial.
(2) The mere fact that the assessor who was called in to act as a substitute for an absentee assessors had not been summoned but was allowed to sit as an assessor when the trial commenced did not vitiate the trial as it was a mere irregularity and did not cause any failure of justice.1
(3) Though sub-section (1) of section 185 imposes a duty on the judge to find out whether there was sufficient cause for the absence of an assessor and to consider whether it is not possible to enforce his attendance, it should be presumed that he has done so when he proceeds with the trial in his absence and a mere omission to record reasons for proceeding with the trial without the absent assessor would by itself vitiate the trial.
(4) It is difficult to convert a trial held partly with the aid of three assessors and partly with the aid of four assessors into one held with the aid of two assessors only. At no stage was the trial held with the aid of two assessors only. The third substituted assessor attended a part of the trial and the added fourth assessor also attended a part of it. None of these two were present throughout. Thus the trial when It concluded was a different trial from the one which was commenced under the provisions of section 284, Cr. P. C. To a situation like this, we think section 537 cannot be called in aid. Such a trial is not known to the Code and it seems implicitly prohibited by the provisions of sections 284 and 285. What happened in this case cannot be described as a mere error, omission or irregularity in the course of the trial. It is much more serious. It amounts to holding a trial in violation of the provisions of the Code and goes to the root of the matter and the illegality is of a character that vitiates the whole proceedings. - Section 309-Opinion of assessors.
Held: The provision in the Cr. P. C. that the opinion of the assessors is not binding on the Sessions Judge cannot lend support to the contention that the Sessions Judge is entitled to ignore their very existence. Though he may not be bound to accept their opinions, he is certainly bound to take them into consideration. The weight to be attached to such opinions may well vary with the number of assessors.
Judgement
Mahajan J.- This is an appeal under Art. 134 (1) (c) of the Constitution of India, by Magga and Bhagga, who have been convicted under S. 302, Penal Code for the triple murders of Ganesh. Gheesa and Hardas.
2. The case relates to an incident which took place on the night between 3rd and 4th April 1951. Gheesa and Ganesh deceased, Ratna, Govind, another Ganesh, who is a witness in the case, and Hardas had gone to "Imaratia" a well in village Gadwara on that night to keep watch over the crops there. Gheesa slept in one shed near the well, while Hardas slept in another shed some distance away, and Ratna slept in a third shed near the entrance gate. Ganesh, deceased, Ganesh (P.W.), and Govind slept on the threshing floor further away from the well. Some time after midnight Ratna woke up on hearing the cries of Gheesa. It is alleged that he then saw the two accused beating Gheesa, accused Magga having in his hand a farsi and accused Bhagga having a katari and an axe. Hardas, who woke up on hearing the cries, rushed to the aid of Gheesa and thereupon the two accused, Magga and Bhagga, fell upon him and attracted him with farsi and axe. Ratna ran away and hide himself near the well. On an alarm being raised, one Krishna who was working on a nearby well came and witnessed the attack on Hardas. The accused after finishing Gheesa and Hardas went to the threshing floor where Ganesh, deceased, was sleeping. There Magga asked Bhagga to hit Ganesh with the axe and Bhagga immediately hit Ganesh with the axe and he fell down. Thereafter Magga hit Ganesh two or three times with the farsi on the legs and Bhagga cut the neck of Ganesh with the katari. Govind (P.W.) entreated on behalf of Ganesh but he was threatened and was told that if he did not keep quiet he would also be killed. Without injuring Govind and Ganesh, P. Ws., the accused then left the place.
3. Information of the incident was carried to the village by Ratna and a report of it was made to the police at 11-30 A.M. on 4th April 1951. In the report it was stated that "Bhagga and Magga are standing at their house with swords and are saying that they would kill more persons. Village people are surrounding them outside the house." The sub-inspector of police, when he arrived at the village, found the house of the accused surrounded by the village people. The door of the house was closed from inside and the accused were standing on the chabutra inside. Magga had a farsi in his hand and Bhagga had an unsheathed sword. The sub-inspector got the door opened, arrested the accused, and took possession of the farsi and the sword. He also recovered the axe and a katari which were bloodstained. The clothes of the accused were also taken possession of after the arrest and they appeared to have bloodstains on them.
4. The accused pleaded non guilty. They admitted their partnership in cultivation at "Imaratia" well with the deceased but denied that any quarrel took place between them and the other partners about the cutting of the crop. They also denied that they had gone to the well armed with various weapons and had committed the murder of Gheesa, Hardas and Ganesh.
5. The Sessions Judge on the evidence led by the prosecution felt satisfied that the prosecution case was proved beyond all reasonable doubt. It was held that the murder was brutal and advantage had been taken of the persons who were sleeping to kill them. In the result the appellants were convicted under s. 302. Penal Code and sentenced to death. The sentence of death passed on them by the Sessions Judge was confirmed by the High Court after examining the evidence afresh. In the High Court a contention was raised that the whole trial was vitiated inasmuch as it had not been conducted in accordance with procedure prescribed by law. This contention was negatived on the ground that the irregularities committed in the course of the trial were such as were cured by the provisions of s. 537, Criminal P. C. As the objection raised conc
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