Judgement

Appeal (No. 151 of 1924) from a decree of the High Court (Broadway and Campbell JJ.) dated April 8, 1924, affirming convictions and sentences pronounced by the Sessions Judge of Montgomery.

The five appellants were charged under s. 302 of the Indian Penal Code with murder. Under circumstances which appear from the judgment of the Judicial Committee, the Sessions Judge convicted appellants 2 and 3 of murder and sentenced them to death, and convicted appellants 1, 4 and 5 of an offence under s. 201 of the Code—namely, that they, knowing that an offence had been committed, caused the disappearance of evidence (namely, the body of the murdered man). He sentenced appellants 1, 4 and 5 to seven years rigorous imprisonment.

Upon appeal to the High Court it was contended (inter alia) that the convictions of appellants 1, 4 and 5 should be set aside, on the grounds (1.) that no charge under s. 201 had been made, and (2.) that the Sessions Judge had not taken the opinion of the assessors orally as required by

s. 309 of the Code of Criminal Procedure, but had put to them collectively certain questions in writing.

The High Court dismissed the appeal. The learned judges (Broadway and Campbell JJ.) held that, having regard to s. 237 of the Code of Criminal Procedure, the conviction under s. 201 of the Penal Code was valid, although no charge had been formally made under that section. They considered that what was alleged to have taken place with regard to the assessors was an irregularity, but in their view it had occasioned no failure of justice, and that under s. 537 of the Criminal Procedure Code the convictions could not be interfered with.

The appellants petitioned the Judicial Committee for special leave to appeal, relying upon the two grounds pro ceeded upon before the High Court, more particularly that with regard to the questions alleged to have been put to the assessors.

Special leave to appeal was granted on July 2, 1924. Sub sequently the registrar of the High Court communicated to the registrar of the Judicial Committee a statement by the Sessions Judge denying that the alleged irregularity with regard to the assessors had taken place.

1925. Feb. 25. Wallach for the appellants. The conviction of the appellants 1, 4 and 5, under s. 201, without a charge under that section, was a serious departure from the procedure laid down by the Code of Criminal Procedure, and entitles those appellants to have the conviction set aside. By s. 233 of the Procedure Code there must be a separate charge for every distinct offence, except in the cases mentioned in ss. 234, 235, 236 and 239, none of which apply. A formal charge should have been before the assessors, who under s. 268 were an essential part of the tribunal. Sect. 237, under which the High Court held that the conviction was justified, applies only to cases within s. 236. That section does not apply to this case, as the facts relevant to a charge under s. 201 of the Penal Code are not the same as those in the case of a charge under s. 302. An opportunity should have been given to rebut a charge under s. 201.

Dunne K.C. and Kenworthy Brown for the respondent were not called upon.

The judgment of their Lordships was delivered by

VISCOUNT HALDANE. This is an appeal against a judgment of the High Court of Judicature at Lahore in a case which came before it on appeal from the Sessions Judge of Montgomery. By their judgment the High Court affirmed the sentence of death which had been pronounced by the Sessions Judge on two of the appellants and the sentence of seven years rigorous imprisonment pronounced on the three other appellants.

Shortly stated the case made out by the prosecution was this. On the night of June 15, 1923, one Bakhsha, the murdered man, was riding home accompanied by a man called Turez, who was the chief witness for the prosecution. The latter parted from him about 9 p.m. to go to a well in one of his fields, and Bakhsha continued on his way. Very shortly after t