Rege, J.:— The case for the prosecution is that there was a long-standing feud between Premsingh Rajput of Makodia and the deceased Devisingh s/o Dungaji over the ownership of agricultural lands, as a result of which the latter was done to death by four sons of Premsingh, and Manjur son of Kalu. The accused wore armed with deadly weapons and the fatal assualt was, it is said, in pursuance of the common object of taking Devisingh's life. The five accused were tried on charges under Ss. 148, 149 and 302, Penal Code, by the Second Additional Sessions Judge, Indore, who convicted them of murder and sentenced Manjoor to death, and the others to life imprisonment. Manjoor's appeal was dismissed and the death sentence confirmed by a Division Bench of this Court. This is an appeal under Section 25 of the Madhya Bharat High Court Act against the decision of the Division Bench.

2. The appellant's learned counsel challenged the propriety of the conviction on the ground that the mandatory provisions, of Section 309 of the Cr PC, had been violated.

3. That section provides inter alia that on the conclusion of a trial with the aid of assessors the Court “shall require each of the assessors to state his opinion orally on all the charges and shall record such opinion”. The accused in this case were charged under Ss. 148, 149 and 302, Penal Code; but obviously the assessors were not asked to give their opinion on each of the charges and there is only the opinion of each assessor in almost identical terms that all the accused were guilty of murder. The learned Judge of the lower appellate Court held that the omission to record the opinion on each charge was at best an irregularity curable under Section 537 of the Cr PC. In the course of his judgment, Sanghi, J. observed:

“There is a universal opinion abroad that assessors at Sessions trials serve no useful purpose. That may or may not be so. The law, however, requires that such trials should be with the aid of assessors and the Courts should scrupulously follow the provisions of the law relating to such trials. The assessors should be asked to express their opinions in respect of each accused and on each charge of which he has been tried and with reference to the section of the law under which he has been charged. Questions, if necessary, should be put to the assessors to ascertain their opinion (Section 309 of the Cr PC). A little care in this respect would avert re-trials.”

4. With this view I am in entire agreement. The institution of the assessors is one of steps in the association of the people in the administration of justice and has a great cultural value, if the right spirit prevails. In experience however, it is usual to find the assessors no wiser at the end of a trial than at the commencement and they rarely serve any useful purpose save the satisfaction of the judicial conscience in following the provisions of law. The legislature has in its wisdom, however, made assessors an integral part of the Court, and a trial without assessors is void. The question, whether the omission to follow the strict provisions of the Code of Criminal Procedure vitiates the conviction, must, I think, be decided on the facts of each case; and in the case before us the appellant can have no cause for grievance merely by reason of the omission to record an opinion on the charge under S. 148, as he has been acquitted of that charge. The decision in Lal Bihari Singh Accused v. Emperor Opposite Party., A.I.R (21) 1934 Oudh 354 : (35 Cr. L.J 1066), contains some observations indeed which support prima facie the contention of the appellant's learned counsel. At p. 358, their Lordships observe:

“The learned Sessions Judge was bound to record the opinion of each assessors in respect of all the charges on which the accused were being tried and his failure to do so merely means that he has virtually tried the case without the aid of assessors and such a trial before a Court of Session is void in toto because under Section 268 of the Cr PC, all trials before a Court of Session have to be either by Jury or with the aid of assessors.”

5. It is clear from the text of the judgment, however, that their Lordships were dealing with a case where the accused were convicted of an offence on which the opinion of the assessors was not recorded. Their observations must therefore be construed with reference to the facts before them; and I do not think a general principle can be deduced therefrom that every violation of procedural law vitiates the trial. In the case reported in Mt. Shevanti Accused v. Emperor Opposite Party., A.I.R (15) 1928 Nag. 257 : (29 Cr. L.J 561), Kinkhede A.J.C held that it was not permissible in view of the clear provisions of Section 309 of the Cr PC, to convict an accused of an offence without caking the opinion of the assessors on the charge constituting it; but went on to say “But in the view I take it is unnecessary to quash the conviction merely on this one ground.” I think with respect that this is the correct view of law and the question in each case is whether the question to the assessors if recorded and their opinions indicate an application of the mind to the charge or not and whether the form of the question or the opinion as recorded disclose a prejudice which may occasion a failure of justice. The difficulty in this case arises not so much from the omission to record an opinion on the charge under S. 148 as from the charge itself. It reads:

6. It has been found in the Courts below that the first blow was given actually by the appellant with a sword and that this resulted in the virtual severance of the neck from the body of the deceased. There can be no doubt that on proof of this, the appellant would be guilty of murder apart from the provisions of S. 149, Penal Code, which creates no offence but merely casts a constructive liability on a member of an unlawful assembly for acts done by others in pursuance of the common object of such an assembly. The charge is, notwithstanding the case for the prosecution and the facts appearing in evidence, one for murder read with S. 149, and the opinion of the assessors as recorded indicates that the question of joint liability—which in the circumstances must in the case of some of the accused be constructive, was the only one in the mind of the assessors. There is, therefore, considerable force in the contention that the accused has on a charge of S. 302 read with S. 149 been convicted of murder (S. 302).

7. It is unfortunate that neither the learned Prosecutor in the Sessions Court nor the learned Judge gave a thought to the propriety of charge. As I have said above, S. 149, Penal Code, does not create an offence and the mention of it with S. 302 could be construed to mean that all the accused on trial were charged with constructive liability for murder. On the other hand, the charge mentions the individual act of the accused as having caused the death of Devisingh and it could with propriety be said that the accused knew viz., that each of them was accordingly to the facts stated primarily responsible for inflicting injuries which by themselves would cause death in the ordinary course of nature and there was also the constructive liability so that even on proof of any one or more of the accused being found to have inflicted injuries after life was in all probability extinct, he or they would be guilty of murder by reason of the death having been caused by an act of a member of an unlawful assembly in pursuance of the common object of the assembly. In such a case the conviction under S. 302 would have been justified by Section 237 of the Cr PC but for the provisions of S. 309 of the Code; but in absence of the opinion of the assessors on the direct liability for having inflicted the fatal blow with his own hand the conviction cannot stand.

8. Next comes the question whether the whole trial is vitiated. I think not. The proceedings up to the stage of the opinion were conducted with the aid of assessors in accordance with law, and the aid was lacking only from the point from where the Court should have required the assessors to state their opinion on each charge. It is, therefore, unnecessary to hold a fresh trial and I would set aside the conviction and remand the case for disposal after recording the opinion of the assessors on each charge viz., rioting armed with deadly weapons under S. 148, Penal Code; S. 302 read with S. 149, Penal Code; and also S. 302 which as I have said above is applicable on the facts stated in the body of the charge and for which the accused could under Section 237 of the Cr PC, be convicted even though he was not charged with it. What is essential, is that the Court, which in his case is the Sessions Judge together with the assessors should arrive at the decision.

Dixit, J.:— I agree. It seems to me that in this case the failure of the learned Sessions Judge to record the opinion of the assessors on each of the charges on which the accused persons were being tried, has caused considerable prejudice to the appellant and the other accused. As has been pointed out by learned brother Rege, J., the assessors, in generally stating that all the accused persons were guilty of the offence of murder, had in mind only the question of joint liability. But for the operation of S. 149, the pre-requisite is that the Court must find that an offence has been committed by some member or members of an unlawful assembly, in prosecution of the common object. If, as in the case, the assessors were not asked to state their opinion on the charge under S. 148 and the accused persons have not been convicted of that offence, and the assessors have also not given any opinion on the specific question of there being an unlawful assembly and the appellant being a member of it, none of the accused persons can legally be held constructively guilty of murder with the aid of S. 149. A retrial of the appellant and all other convicted persons from the stage at which the material irregularity of the omission to take the opinion of the assessors on all charges, crept in, is therefore, essential.

Amarnath, J.:— I agree.

9. Retrial ordered.