JUDGMENT

Rankin, C.J. - By Section 154, Evidence Act, it is provided that:

the Court may in its discretion permit the parson who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

2. The Division Bench has referred to us two appeals by accused persons from their convictions and sentences by the Court of Session. In each case the trial was held with a jury, and in both appeals it is contended for the accused that the Sessions Judge has misdirected the jury as to the consequence in law of the fact that the Court had permitted the Public Prosecutor to put to a prosecution "witness questions of the character described by Section 154.

3. In the appeal of Prafulla Kumar Sarkar (No. 327 of 1930) Mr. D. N. Bhattacharjee, who appears for the prosecution has contended before us that the direction given by the learned Sessions Judge has not the meaning and effect which the Division Bench took it to have. As both cases are exactly of the same character for the present purpose, I will confine myself, to begin with, to the other case, viz. to the appeal of Abdul Hatem (No. 463 of 1930).

4. Abdul Hatem, Arshed Ali and Arobali were charged' with the offence of rioting, and Arshed Ali was also charged with murder. The case was of a very common type, the allegation of the complainant being that the accused had been members of a party of 20 or 25 persons who went armed with lathis and spears to the complainant's plot of land and began to reap the paddy; that one Abdul Gani went on the land with his two brothers to protest, and, while Arobali was holding him, was pierced by Arshed Ali with a spear at the order of Hatem, and so forth. Upon the question of "common object" there was the usual dispute as to whether the occurrence took place on the plot alleged which was the complainant's plot, so that the accused persons were aggressors, or took place on another plot belonging to the accused and the complainant's party were aggressors.

5. The prosecution called as a witness one Mainuddi (P. W. 11) described as a cultivator. He said in his examination-in-chief that on the morning in question he heard a golmal and saw a crowd of men near Hatem's hut which is in Hatem's bhita. That Hatem's bhita has a khal on three sides of it and on the west of it is the paddy field. That on seeing the crowd the witness came near the bhita and did not find anyone on it but found the hut broken. That he went to the south and found Abdul Gani lying wounded on the paddy field; that Abdul Gani said that' Arshed Ali had speared him and that he had been wounded on the field:

I did not ask anybody as to why there were men near the hut. I did not notice any stain of blood on the ground on the way from near the bridge. I did not notice any men on the field on which Abdul Gani was lying.

6. At this point the learned Judge records as follows:

(Declared hostile by Public Prosecutor and permitted to be cross-examined.)

7. Then follows:

I met Meher Munshi on the field when I went there. I had no talk with him. I saw Hatem Sikdar using the hut since Aswin. Before the occurrence there was no dispute between the parties over the hut. I cannot say who possessed the bhita last year and in previous years. I do not know if this bhita is claimed by anybody.

8. Then follows cross-examination by the defence. There was no re-examination. At the end of the case the deposition of this witness before the committing Magistrate was put in at the instance of the defence u/s 288, Criminal P. G. It was substantially in agreement with his evidence at the trial. Now the direction given to the jury by the learned Judge was this:

Mainuddin has deposed in favour of the defence story. This witness has been declared hostile and cross-examined by the prosecution. His evidence has therefore to be excluded from your consideration.

9. The Division Bench consider this to be a misdirection. Before us it has been challenged by the advocates for the accused and has not been s