On the 1st May 1901, their Lordships delivered judgments on the preliminary objection as follows:—

Davies, J.:— As regards the preliminary objection that the convictions of the several appellants are bad in law, inasmuch as the case was not tried by a competent tribunal, the following are the facts:—The trial began on the 23rd August, 1900 with the aid of two assessors as was right, and was regularly continued with the aid of the two assessors from day to day until the 5th of September. On the afternoon of that day and for the two following days, the 6th and 7th of September, the first assessor was allowed to absent himself on account of the illness and death of his mother, while the trial proceeded with the aid of the one remaining assessor. The Judge did not dispense with the further services of the first assessor, as he might have done under section 285(1), Code of Criminal Procedure, and as he ought to have done if be could not adjourn the hearing, for on the assessor's return to the Court on the 10th of September, which was the next date of hearing after the 7th, the Judge reinstated him as first assessor, and the depositions of the prosecution witnesses Nos. 47 to 62, which had been taken during his absence for the 2½ days, were then “shown to, and read by, him.” The trial went on with the two assessors until the 14th September, but on the following 3 or 4 days the Judge in his report is not very precise as to the dates; the first assessor was again allowed to absent himself every day up to 1 p.m in order to perform his mother's funeral ceremonies, and the trial proceeded during his absence, as before, with only the remaining assessor, but “he read the depositions recorded, “during his absence before he resumed his seat in the afternoons.” The depositions taken on these occasions were those of defence witnesses, From the 19th September till the 29th idem, when the examination of witnesses was concluded, and up to the 15th October, when the trial was closed, both assessors sat together and, at the end of the trial, the opinion of each was taken and duly recorded.

It is thus clear that the trial purports to have been conducted with the aid of two assessors, and it is so made to appear on the face of the Judge's record. Neither in his judgment nor elsewhere is there anything to indicate that the two assessors had not sat together throughout the trial.

Now my learned colleagues are of opinion that it must be considered that the trial on and after the 5th September was held with the aid of only one assessor, which was permissible under section 285(1), Code of Criminal Procedure, and that the resumed sittings of the first assessor and his taking part in the proceedings after his absence from the 5th to 7th September should be treated as an irregularity not occasioning a failure of justice. I am unable to accept this view. In the first place the Judge did not, as a matter of fact, act under section 285(1) nor does he profess to have done so, and in the second place the opinion of the first assessor finding the appellants guilty must have done them positive harm. The first assessor happens to be a retired Sub-Magistrate versed in criminal affairs and it is highly probable that his opinion had great effect on the mind of the second assessor, who is an ordinary trader devoid of forensic knowledge. Had the second assessor been left to give his own opinion without hearing the first assessor's opinion he might have given one different from what he did. In any case, the taking of the first assessor's opinion resulted in the concurrent opinion of two assessors which most necessarily have carried more weight with the Judge than the single opinion of one. The opinion of an assessor is given in the exercise of a judicial function imposed on him by law, and the Judge is bound to take it into consideration. He cannot dispense with it. Considering the status of the first assessor, the Judge was doubtless influenced by his opinion in coming to his own conclusions on the many doubtful points in the case, which he has himself set out in his judgment, but he had no right to ask for or take that opinion, and by having it his judgment was vitiated I can see no analogy between assessors in civil cases in England and the assessors we have in criminal cases in India. A Court consisting of a Judge and two or more assessors by which every person must be tried before a Court of Session when he is not tried by jury, appears to me a compromise between a trial by Judge and jury, and by a single Judge. It is a constitutional privilege, the benefit of which is not confined to the subject, for in an appeal by a person convicted in an assessor's case, the Crown can as well rely on the opinion of the assessors if it is in favour of a conviction as the prisoner can when their opinion is the other way.

I must therefore take it as the fact that this trial was a trial held with the aid of two assessors as the law requires (section 268, Code of Criminal Procedure). It began with two assessors and it ended with the two same assessors, and the depositions taken during the absence of the first assessor were handed to him for perusal as a functionary who was taking part in the whole trial. The absence of the first assessor extended in all to 4 or 4½ days, upon which the evidence of witnesses both for the prosecution and for the defence was being taken, out of a total of 30 days occupied in their examination; so that there was a lawfully constituted Court for 26 days, while for 4 days there was not. The question then is whether if in a trial held by a Judge with the aid of two assessors, one of the assessors is absent for a considerable portion of the time during which the most important part of the trial, viz., the examination of witnesses, is proceeding, the Court ceases to be a Court of competent jurisdiction. It seems to me that there can be no doubt that in such circumstances the trial is rendered null and void, for section 295, Code of Criminal Procedure, lays down the rule that if a trial is adjourned, as this was, fro_m day to day “the jury or assessors shall attend at the adjourned sitting and at every subsequent sitting until the conclusion of the trial.” It follows that, in my opinion, the conviction of the appellants must be set aside and a retrial ordered.

Benson, J.:— I do not think that there is any validity in the preliminary objection.

The law does act require that a trial should he held with the aid of two assessors throughout. It requires that a trial shall be commenced with the aid of two assessors, but it makes a special provision (section 285, Criminal Procedure Code) for the unavoidable absence of one of the assessors after the trial has commenced. In such case the law allows the trial to proceed and to be completed with the aid of one assessor only. It is only if both assessors are unavoidably absent that the proceedings are to be stayed and a new trial, with the aid of fresh assessors, held. In the present case one assessor was present throughout, and if the second assessor had not been allowed to return after absenting bio self for a time, there could be no question as to the validity of the trial. The law, it is true, does not contemplate that an assessor, having once absented himself, should return and take part in the proceedings, at a later stage, and the Sessions Judge ought not to have allowed him to do so in this case. His having done so was, no doubt, an irregularity, but the law expressly provides (section 537, Criminal Procedure Code) that an irregularity in the proceedings is no ground for setting aside a finding or sentence “unless the irregularity has, in fact, occasioned a failure of justice.” The onus is on the appellant to show that there has, in fact, been a failure of justice owing to the irregularity. This has not been shown in the present case. In my opinion, therefore, the preliminary objection has no validity and should be overruled.

Bhashyam Ayyangar, J.:— These are appeals in Sessions Case No. 53 of 1900 before the Sessions Judge of Kurnool Division. The trial of the said case commenced on 23rd August, 1900 and closed on 15th October, 1900, when judgment was reserved. The judgment was given on 24th October, 1900, and the first eight accused in the case were convicted of murder and the ninth of abetment of murder. The trial before the Court of Session was with the aid of two assessors, viz., Gundu Rao and P. Sesbaya Chetti, hereinafter referred to as the first and second assessors respectively. The first assessor was allowed by the Judge to go to Goofy to the death-bed of his mother at 2 p.m on the afternoon of 5th September, 1900, and he was also absent on the 6th and 7th September, but the trial proceeded during his absence. There was no trial of the case on Saturday, the 8th, and Sunday, the 9th idem, and it was adjourned to Monday, the 10th, on which day the first assessor returned and continued to attend the trial throughout, except on 16th, 17th, 18th and 19th September, on each of which days he was allowed absent himself till 1 p.m to enable him to perform the daily obsequies of his deceased mother. It appears that all the depositions record 1 in his absence were shown to and read by him. It is not contended that there was no sufficient cause for his absence on the days above mentioned, and it appeals that no objection was raised on either side to the Judge permitting lint to absent himself on those days. The Judge in his letter, dated 20th March, 1901, further reports that when the first assessor returned “some doubts were expressed as to the legality of the ‘(assessor's)’ return and felt by myself, but finally it was decided with the concurrence of both parties that he might be allowed to return, as the validity of the trial could not be affected in either case, so long as one assessor was present throughout the trial, according to section 285, Criminal Procedure Code.” The counsel who represents all the accused in the Sessions Court also appeared in this Court as counsel for the second accused, the appellant in Appeal No. 874 of 1900, and says that he did not waive his objection, though he did not press it or make any protest after the Judge ruled that the trial could not be affected by the return of the first assessor. Tim statement of the counsel made in this Court that he did not waive the objection must be accepted, though the Judge might have misunderstood counsel as concurring in the view of the Judge. It is very much to be regretted that any doubt should have been felt on a point which is so plain and that the first assessor should have been allowed to resume his seat as an assessor instead of the trial proceeding, as it undoubtedly could, with the and of the remaining assessor alone under section 285, clause (1). The Public Prosecutor, who also appeared in the Sessions Court, now admits that the first assessor ought not to have been allowed to resume his seat as assessor. At the conclusion of the trial the Sessions Judge invited the opinion of each assessor and recorded it, viz., that all the accused ware guilty, and the Judge, concurring in such opinion, convicted the accused. Upon the above facts a preliminary ground has been raised and argued in the above appeals, that the Judge having acted contrary to law in allowing the first assessor to resume his seat as assessor and in inviting and taking into consideration his opinion in deciding the case, the trial ought to be set aside and the conviction quashed.

In my opinion the finding and sentence appealed against is one passed by a Court of competent jurisdiction within the meaning of section 537 of the Criminal Procedure Code, and that the defect in the trial does not affect its validity and is one that can be cured under that section, if the irregularity “has not in fact occasioned a failure of justice.”

The chief contentions raised in support of the preliminary ground are, that assessors are members of the Court, that, therefore, the Court was illegally constituted from the time when the first assessor was allowed to resume his seat as assessor on 10th September, and that, even if assessors are not members of the Court, yet, inasmuch as the Sessions Judge invited the opinion of the first assessor when in law he had not the status of an assessor, and decided the case in concurrence with such opinion, the finding and sentence appealed against cannot be regarded in law as one passed by a Court of competent jurisdiction. If either of these contentions be well founded, it will go to the root of the case, and the result will be that a new trial will have to be ordered. Section 268, Criminal Procedure Code, provides that all trials before a Court of Session shall be either by jury or with the aid of assessors. In the latter case it is provided by section 284 that at least two assessors shall be chosen by the Judge. The next section 285 provides that if an assessor be prevented from any sufficient cause from attending throughout the trial, the trial shall proceed with the aid of the remaining assessor or assessors only, and that, if all the assessors are so prevented or absent themselves, the proceedings shall be stayed and a new trial shall be held with the aid of fresh assessors.

With reference to these provisions, it is conceded that the trial commenced validly with two assessors, and that no exception could be taken to the trial of the case, including the finding and sentence if the second assessor alone continued as assessor from 2 P.M on the 5th September when the first assessor departed on leave. The authorities cited simply establish that the trial will be invalid if it commenced really with only one assessor, though nominally there was a second assessor who, by reason of blindness or deafness, was incapable of understanding the proceedings [Proceedings of the Madras High Court, dated 22nd July, 1869], Queen-Empress v. Babu Lal, or if it ended without the last remaining assessor having attended the trial throughout [Queen-Empress v. Muhammad Mahmud Khan*] or if a portion of the trial which consisted in the taking of the additional evidence took place after the discharge of the assessors [Queen-Empress v. Ram Lal]. The principle of these decisions is that in cases not tried by jury, it is imperative that the Judge should commence his trial with the aid of at least two assessors, and that at least one of them should continue to attend the trial throughout. This being mandatory, the jurisdiction of the Sessions Judge to commence the trial and his jurisdiction to continue the trial are dependent upon his choosing at least two assessors to aid him and on the continuation of at least one of them throughout the trial. In other words, the above two requisites are conditions precedent to the exercise of his jurisdiction, and, therefore, any finding or sentence passed by a Sessions Judge in contravention of either of those requisites will not be one passed by a Court of competent jurisdiction, and the defect is not one which can be cured by section 537 of the Criminal Procedure Code or section 167 of the Evidence Act.

In In the matter of the petition of Narain Das, it was held by a single Judge that the acquittal of an accused person, without asking the assessors their opinion, was only an irregularity, though a serious one, and that it could he cured under sections 283 and 300 of Act X of 1872, corresponding to section 537 of Act V of 1838 In the view I have already expressed, I need hardly add that I dissent from that decision, and that if a Sessions Judge should decide a case without inviting the opinion of the assessors, he virtually holds the trial without the aid of assessors and that his finding or sentence cannot he regarded as one passed by a Court of competent jurisdiction [Queen v. Matam Mal, and Queen Empress v. Munna Lal]. In the present case there has been no violation of either of the said conditions precedent and the question raised as to the effect of allowing an assessor who absented himself for some time after he had attended a portion of the trial to resume his seat and to give his opinion at the conclusion of the trial is not governed by any direct authority, and the case, therefore, being new in the instance ought “to be governed by the established principles and the analogies which have heretofore prevailed in like cases” [per Willes, J., in Juttendromohun Tagore v. Gannendromohun Tagore, per Lord Wenleysdale in Mirchouse v. Rennell].

I now proceed to consider the principles and the analogies which bear on the question raised in this case. The principles are clearly deducible from the provisions in regard to trial with the aid of assessors as contrasted with the provisions in regard to trials by jury. In the latter case, the trial is by jury before a Court of Session, and the functions of the two tribunals forming a mixed tribunal are respectively defined in sections 298 and 299 of the Code of Criminal Procedure.

The jury form a tribunal or body with a foreman, and the verdict is the verdict of the body, and when there is no unanimity among the members of the body, the opinion of the majority prevails as the verdict of the body. The jurors are sworn after the foreman has been appointed. And after the Judge has finished his charge, the jury may retire to consider their verdict, and if they are not unanimous, the Judge may require them to retire for further consideration. If in the course of a trial by jury, any juror unavoidably absents himself, or if it appears that any juror is unable to understand the language in which evidence is given or the language in which it is interpreted, a new juror shall be added or the jury discharged and a new jury chosen. But in either case the trial shall commence anew. But in the case of a trial with the aid of assessors, the assessors do not form a body, and each acts and expresses his opinion individually, and the Judge is to invite the opinion of each separately and record it. The Judge is the sole judge of law and fact, and the responsibility of the decision rests only with him, though, in the decision of the case, he is expected to take into consideration the individual opinion of each assessor, and during the trial of the case he may also consult them on any point in connection with the examination of witnesses or otherwise. The assessors are not to retire for consultation and forming their opinion. In the case of assessors the principle is that the Judge should have before him the individual and the independent opinion of each assessor. Before the enactment of the Criminal Procedure Code, Act X of 1882, the Judge had to invite the opinion of the assessors without summing up the evidence to them. The object was to preclude the possibility of the assessors being influenced by the Judge in forming or giving their opinion. On this point the Indian Law Commissioners appointed under 16 and 17 Vic., cap. 98, sec. 22, in their first report accompanying the draft Code which formed the basis of the Criminal Procedure Code of 1861 observe at page 152 as follows:—“A difference is proposed in the mode of taking the verdict of a jury from that of taking the opinion of the assessors. In the former case, the Judge will sum up the evidence for the guidance of the jury and then call for their verdict. In the latter the Judge will call for the opinions of the assessors without any expression of his own. There is a reasonbale apprehension that the native assessor when his own opinion is to be subjected to discussion in open Court is likely to be unduly biassed by the opinion of the presiding Judge: we have endeavoured to obviate this by the order of procedure which we have described.” But in the Code of 1882, an enabling provision was introduced which is also retained in the present Code empowering the Judge to sum up the evidence to assessors before inviting their opinions. In my opinion this provision should be availed of by the Judges only in cases where the facts are intricate or complicated, and it may therefore he expedient to explain or marshal the same. Even in those cases the Judge should not, as he may do in charging a jury, express his opinion upon any question of fact arising in the case. The contrast between trial by jury and trial with the aid of assessors is that, in the former, the jury is the real tribunal but is aided by the Judge, and in certain matters directed by the Judge, but in the latter the Judge is the sole tribunal aided by each of the assessors.

“The tribunal which has to try the case is the Judge himself, and the judgment is his and his alone. The assessors who assist the Judge take no part in the judgment whatever; they are not responsible for it and have nothing to do with it. They are there for the purpose of assisting the Judge” [per Brett, M.R, in In re Beryl].

For the above reasons I am decidedly of opinion that assessors do not form members of the Sessions Court, and that, therefore the Sessions Court was not illegally constituted since the first assessor was allowed to resume his seat as assessor. If assessors are members of the Court, and the first assessor acted as a member of the Court after his return, though he ceased to be an assessor in the case when once he departed on the 5th September and the case proceeded during his absence, it may be that the finding and sentence cannot be regarded as passed by a Court of competent jurisdiction, and the defect could not be cured under section 537. In the course of argument, it was put to Mr. Adam, counsel for the appellant in No. 875, whether the finding and the sentence would have had to be quashed if the Judge had, at the conclusion of the trial, discovered his mistake in having permitted the first assessor to resume his seat as assessor, and had therefore refrained from inviting his opinion, but had invited the opinion of the other assessor only and had taken it into consideration. But for obvious reasons, the learned counsel did not venture to give a direct answer. The argument that assessors form members of the Court would have carried weight, if the question had arisen under Act VII of 1843 or under the Criminal Procedure Code of 1861, at any rate such argument would have been very plausible under section 32 of the said Act and under section 324 of that Code which ran as follows:— “In a trial before the Court of Session not by jury the trial shall be conducted with the aid of two or more assessors as members of the Court.”

The phrase “as members of the Court” disappeared in the corresponding section 232 of Act X of 1872 and has not been re-introduced either in the Code of 1882 or in that of 1898.

Though assessors do not form members of the Court, yet inasmuch as it is mandatory that the Court should be aided till the conclusion of the trial by at least one assessor attending the trial throughout and giving his opinion, can it be maintained that the second assessor cannot, under the circumstances, be legally regarded as the remaining assessor who validly attended the trial subsequent to the return of the first assessor?

This question was not raised or argued but to my mind that was the only question that required consideration, and it was with reference to that in particular that I have drawn attention to the various provisions of the Code relating to the constitution and the status of jurors and assessors. If assessors, like a jury, act as a body, though when the body is reduced to one the remaining assessor may act alone, the argument that the second assessor cannot be regarded as having legally continued to act as the remaining assessor after he was associated with the first assessor who ought not to have been allowed to resume his seat as assessor and thus the two formed a body, would be conclusive. For, in that case, the opinion given would be not his individual opinion but the opinion of the body consisting of himself and the first assessor and the constitution of the body being illegal, it would be just the same as if the trial had been continued without the aid of any assessor. But, for the reasons already given, it is clear that assessors do not form a body or tribunal, but each forms an entity in himself acting independently of his fellow assessor or assessors. The status, therefore, of the remaining assessor and the validity of his opinion as such is in no way legally affected by the first assessor having been, contrary to law, allowed to resume his seat as assessor and that probably in juxtaposition to the former.

The second contention above referred to in support of the preliminary ground is chiefly relied upon by the learned pleader who appeared for the appellant in Appeal No. 878. He argues that the Judge having invited the opinion of the first assessor as an assessor and having presumably taken the same into consideration in arriving at his conclusion in the case, his judgment is thereby vitiated and should therefore he set aside. He further argued that he is entitled to the judgment of the Sessions Court and that this Court as a Court of reference or appeal cannot substitute its own judgment for that of the Sessions Judge, after expunging from the record the opinion of the first assessor which was taken into consideration by the Sessions Judge. If this argument were sound, its result would simply be that the conviction and sentence would be quashed and the Sessions Judge would be directed to give a fresh judgment upon the evidence on the record without taking into consideration the opinion of the first assessor. One need hardly predict what the result would be in an assessor's case in which the Judge decides according to his own judgment and on his own responsibility, though he takes into consideration the opinions of the assessors. It is not alleged that beyond giving his opinion when he was invited to do so at the conclusion of the trial, the first assessor, after his return, took any part in the trial by putting any questions to the witnesses through the Court, or otherwise took any part in the trial beyond attending to it. Can it be argued that, though the second assessor validly continued as the remaining one assessor from and after the 5th of September, his opinion is vitiated and therefore invalidated by the first assessor having been invited to express his opinion first? If such a position can be maintained, it may then be said that it will be just the same as if the Judge had decided the case without inviting the opinion of the assessors, in which case a new trial would have to be held. It may be that the first assessor happens to be a retired Sub-Magistrate and that the second assessor is an ordinary trader devoid of “forensic knowledge.” But that circumstances cannot lead to any presumption either of fact or of law that the former is more competent to form an opinion upon the evidence in the case than the latter or that the latter was influenced in giving his opinion by the previously expressed opinion of the former, assuming, as I suppose was the case, that such opinion was expressed in the presence of the latter. Even, if in fact, he was so influenced his opinion will not be invalidated, whatever may be the value to be attached to such opinion, any more than the opinion of an assessor in any Sessions trial would be invalidated if in forming such opinion he was influenced by the eloquence or personality of the counsel for the accused in the case or the opinion of the Judge expressed now and then during the trial of the case. Under the law the opinion of an assessor, as I have already explained, is his own individual opinion, and it must be accepted as such whateve considerations may have weighed with him in forming his opinion, and no evidence will he admissible to establish that his opinion was influenced by the opinion of a co-assessor or any other person, bory any other circumstance. If such a doctrine were accepted, where are we to stop? Suppose, in the present case, both the assessors had attended the trial throughout, would the trial have to be set aside because the opinion of the second assessor, which echoed the opinion of the first assessor, was invalidated because it was influenced by it, and the Judge in a trial with the aid of two assessors is to have the benefit of the opinion of each assessor but that in reality “he had the opinion of only one assessor, which opinion resulted in the concurrent opinion of two assessors which must necessarily have carried more weight with the Judge than the single opinion of only one”?

The whole argument proceeds on a misapprehension of the functions of a Court of reference or appeal under the Indian law. It is not a mere Court of error, but the Court, as a Court of reference, appeal or revision is enjoined by sections 537, Criminal Procedure Code, and 167 of the Indian Evidence Act, not to reverse or alter the finding or sentence passed by a Court of competent jurisdiction on account of any error, omission, irregularity, improper admission or rejection of evidence, unless in its judgment such error, omission or irregularity has, in fact, occasioned a failure of justice or unless independently of the evidence objected to and admitted there was not sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought to have varied the decision. The only question which has now to be considered is whether the error or illegality committed by the Judge is one that is cured under either of the above sections, if this Court is satisfied, after rejecting the opinion of the first assessor, that the conviction is right and that there has been, in fact, no failure of justice and that the accused have in no way been prejudiced in their defence by the first assessor having been allowed to resume his seat. Section 167 of the Evidence Act does not directly apply to the case, because it applies only to improper admission or rejection of evidence, and technically the opinion of an assessor, which the Judge is to take into consideration in arriving at his conclusion, cannot be regarded as evidence any more than the confession of a co-accused affecting himself and others jointly tried with him for the same offence, which confession, under section 30 of the Evidence Act, the Court may take into consideration against such others, can be regarded technically as evidence (Queen-Empress v. Khandiabin Pandu).

The case, therefore, has to be dealt with under section 537 as an error or irregularity committed by the Judge in his proceedings during trial in that he invited and toot into consideration the opinion of the first assessor as an assessor when in fact and law he had forfeited his status as assessor when lie departed on leave and the further trial was not adjourned until his return. In determining whether such error or irregularity has in fact occasioned a failure of justice, this Court as a Court of reference or appeal will be guided by the principle laid down by Section 167 of the Evidence Act in the analogous case of improper admission of evidence. Such is the course which is adopted when the Court below convicts a person upon the evidence on record taken along with the supposed confession of a co-prisoner if this Court considers that the so-called confession is no confession at all within the meaning of section 30, or that for some other reason it ought not to have been taken into consideration by the Judge. This Court does not and ought not to quash the conviction simply on that ground and order a new trial or direct the Sessions Judge to pass a fresh judgment after dismissing from his consideration such supposed confession. But this Court takes and ought to take the responsibility of deciding whether independently of and apart from such confession the conviction ought to be upheld or set aside. Such confession not being technically evidence against the co-accused, the case is not dealt with directly under Section 167 of the Evidence Act but has to be dealt with as an error or irregularity within the meaning of section 537 of the Code of Criminal Procedure. But in determining whether the error or irregularity is cured under that section, the Court is guided by the principle laid down by Section 167 of the Evidence Act and I am at a loss to understand how it can be maintained that even if the finding and sentence appealed against were passed by a Court of competent jurisdiction, yet it cannot be cured under section 537 though this Court might come to the conclusion that the prisoners were not prejudiced in their defence by the irregularity complained of and that the conviction was right upon the evidence on record after expunging the opinion of the first assessor. It is argued that the opinion of an assessor is a judicial opinion and is not on the same footing as the opinion evidence of expert witnesses or on the same footing as the confession of a co-accused and therefore section 537, Criminal Procedure Code, cannot be applied to the case. No doubt an assessor, like a juryman, is a public servant, vide section 21, clause (5) Indian Penal Code, and like a juryman he is expected to form and give his opinion on the evidence given at the trial and not to act upon his personal knowledge of any relevant facts of the case without giving evidence of the same as a witness in the case (vide section 294, Criminal Procedure Code) and he may also, like the jury, be allowed to put questions through the Court to witnesses under examination (vide section 166 of the Evidence Act). But the opinion of an assessor is certainly not a judicial opinion in any sense, though one may not be so hypercritical as to object to its being characterised or referred to as quasi-judicial. But in my opinion, assessors are analogous to expert witnesses and in principle the opinion of an assessor is substantially on the same footing as the opinion evidence of expert witnesses. A brief retrospect of Indian legislation in regard to trial of criminal cases with the aid of assessors would clearly show that such is the correct view and it is also in conformity with the institution of assessors in England in civil cases, especially in admiralty, ecclesiastical, patent and similar cases (vide volume I of Encyclopaedia of Laws of England, page 348). The earliest Indian legislation which authorised European functionaries presiding in Courts of Session to constitute two or more respectable natives to assist them as assessors “with a view to the advantages derivable from their observations particularly in the examination of witnesses” is Regulation VI of 1832 which was applicable only to Bengal. Act VII of 1843 extended that system to the Presidency of Madras, and it was provided by section 32 of that Act that Sessions Judges may, in the trial of criminal cases, avail themselves of the assistance of respectable natives or other persons by constituting two or more such persons assessors or members of the Court “with a view to the advantages derivable from their observations, particularly in examination of witnesses.” It was father provided that the opinion of each of the assessors shall be given separately and discussed and, if so desired, recorded in writing. I may also observe that, under that Act, the opinion of assessors had a potentiality which it has ceased to have since the enactment of the Code of 1861. Thus it will be seen that provision was made by the Legislature for Europeans administering justice in a foreign land and therefore deficient in their knowledge of the customs and habits of the parties and witnesses appearing before them and also deficient in judging of their demeanour in the witness-box, having the benefit of the opinion of two or more respectable natives of the land as assessors possessing such knowledge and judgment. Such being the principle underlying the institution of assessors in India, which is the same as that in England in the class of cases already referred to the opinion of an assessor given upon the whole case tried before a Court of Session or any portion of such case is, in principle, on the same footing as the opinion evidence of a person specially skilled in foreign law, science or art.

On the ground, therefore, that assessors are not members of the Court of Session, that the trial in this case validly commenced with the aid of two assessors, that one of the assessors, attended the trial throughout till its termination, that his status as an assessor has not been affected and his opinion recorded by the Judge at the conclusion of the trial has not been invalidated by the action of the Judge in allowing the first assessor to resume his seat as an assessor and inviting his opinion as one of the assessors at the conclusion of the trial, but that such action on the part of the Sessions Judge is only an error or irregularity in a proceeding during the trial, which, if it has not, in fact, prejudiced the accused, could be cured under section 537 of the Code of Criminal Procedure, I would overrule the preliminary objection and proceed to hear the case on the merits and affirm or set aside the conviction, according as, in the opinion of this Court, the evidence in the case without taking into consideration the opinion of the first assessor does or does not warrant the conviction of the prisoners.

The preliminary objection having been overruled, the case was beard on the merits.

The same counsel and vakils argued on the evidence.

The Public Prosecutor (Mr. E.B Powell) appeared in support of the convictions.

In the result judgments were delivered on the merits in both the Referred Trials and in the connected Criminal Appeals, in which all their Lordships concurred in acquitting all the accused.

The question of conspiracy was dealt with by Bhashyam Ayyangar, J. as follows:—

Bhashyam Ayyangar, J.:— The first count against the first and second accused in Sessions Case No. 53 of 1900, as finally amended, runs to the following effect:—“That you the accused Nos. 1 and 2 on or about the 19th March, 1899 entered into a conspiracy with ninth accused in the same case and one Subhi Reddi the accused in Sessions Case No. 1 of 1901 to murder the deceased Ranga Reddi and that in pursuance of that conspiracy Ranga Reddi was murdered on 11th June, 1900 and that you first and second accused here thereby committed an offence punishable under sections 302 and 109 of the Indian Penal Code.” The first part of the third count against the ninth accused in Sessions Case No. 53 of 1900 runs to the following effect:—“That you the ninth accused on or about 19th March, 1899 entered into a conspiracy with the first and second accused in the same case and one Subbi Reddi the accused in Sessions Case No. 1 of 1901 to murder Ranga Redui in consequence of which the said Ranga Reddi was murdered on 11th June, 1900.” In Sessions Case No. 1 which was tried by a different Sessions Judge, the first count against Subbi Reddi the accused in that case ran as follows:— “That you the accused on or about 19th March, 1899 entered into a conspiracy with the first, second, and ninth accused in Case No. 53 to murder Ranga Reddi in pursuance of which conspiracy Ranga Reddi was murdered on 11th June, 1900 and thereby you the accused committed an offence punishable under sections 302 and 109, Indian Penal Code.”

The first and second accused in the former case and the accused in the latter case were also respectively charged with the offence of murder itself and the ninth accused in the former with the offence of abetting that murder by giving information to the first accused in the same case of the movements of Ranga Reddi on the 11th June, 1900. The second count in the former case was not drawn with sufficient precision so as to charge first and second accused also with murder along with the accused Nos. 3, 4, 5, 6, 7 and 8. But it is clear that first and second accused were not misled by this inaccuracy and the defect therefore is cured by section 535(1) of the Criminal Procedure Code. In case No. 53 the accused Nos. 1, 2 and 9 have been acquitted of the so-called charge of conspiracy and the Government has preferred Appeal No. 1028 of 1900 against such acquittal. In Sessions Case No. 1 of 1901 the accused has been convicted not only on the count of murder but also on the so-called count of conspiracy and he has appealed in No. 143 of 1901 against his conviction on both the counts.

The count of conspiracy in both the cases proceeds on a misapprehension of the law bearing on the question, as is evident not only from the wording of the count but also from the fact that the first and second accused in Sessions Case No. 58 and the accused in Sessions Case No. 1 are also charged with the substantive offence of murder. The law bearing on the question of conspiracy-under sections 107 and 109, Indian Penal Code, was considered by a Full Bench of this Court in the case of Queen-Empress v. Subrahmania Ayyar and I entirely concur with Davies, Benson and Moore, JJ., in their opinion that under the Indian Criminal Law conspiracy is a mere species of abetment when an act or an illegal omission takes place in pursuance of that conspiracy and amounts to a distinct offence for each distinct offence abetted by conspiracy.

Under the English law the agreement or combination to do an unlawful thing or to do a lawful thing by unlawful means amounts in itself to a criminal offence. The Indian Penal Code follows the English law of conspiracy only in a few exceptional cases which are made punishable under sections 311 (Thug), 400 (belonging to a gang of dacoits), 401 (belonging to a gang of thieves), 402 being a member of an assembly of dacoits) and 121A (conspiring to wage war). In these cases whether any act is done or not or offence committed in furtherance of the conspiracy, the conspirator is punishable and he will also be punishable separately for every offence committed in furtherance of the conspiracy. In all other cases, conspiracy is only one species of “abetment of an offence” as that expression is defined and explained in section 108 and stands on the same footing as abetment “by intentional aiding” In regard to both these species of abetment, an act or illegal omission, in pursuance of the conspiracy or for the purpose of intentional aiding, is essential. If two or more persons conspire the gist of the offence of abetment by conspiracy is not only the conspiracy but the taking place of an act or illegal omission in pursuance of the conspiracy and in order to the doing of the thing abetted. If a person at one and the same time instigates another to murder ten or more persons or to steal watches in the possession of ten or more persons, he will certainly have abetted ten or more murders and abetted ten or more thefts. It is perfectly immaterial whether the instigation was at one and the same moment of time or at different times. Similarly if two or more persons conspire to commit the murder of ten or more persons or to steal the watches belonging to ten or more persons, and one or more of them commits the murders or thefts in pursuance of that conspiracy, the others will be guilty, of as many abetments of murders or abetments of thefts as have been committed. In my opinion the test is not whether the instigation or conspiracy constituted one act, but whether the act or acts abetted by instigation or conspiracy would, if committed by a person capable in law of committing an offence with the same intention or knowledge as that of the abettor, amount to one offence or more offences than one. In the former case there would be but one offence of abetment, but in the latter case as many offences of abetment as the number of substantive offences.

Section 10 of the Indian Evidence Act has, in my opinion, no bearing on the question as to bow far conspiracy to commit an offence or actionable wrong is an offence under the Indian Penal Code.

It is a startling proposition to say that a man remains chargeable as an abettor by conspiracy or otherwise although he may also be chargeable, and that not in the alternative but cumulatively, as having committed the offence abetted. That is exactly what has been done in both the cases. The first and second accused in Sessions Case No. 53 and the accused in No. 1 have been charged both with the substantive offence of murder on the 11th June and the offence of conspiring to murder the deceased by murdering the deceased on the 11th in pursuance of such conspiracy. You can no more charge a man as an abettor as well as a perpetrator of the offence abetted, and that not in the alternative but cumulatively, then you can charge a man with an attempt to commit an offence and the commission of that very offence. In this connection it will he well to draw attention to section 114, Indian Penal Code, which provides that whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall he deemed to have committed such act or offence. This section provides that he shall be deemed to have committed the offence itself and not simply that he shall be liable to the same punishment as if he had committed the offence.

In Sessions Cases No. 53 and No. 1, the first and second accused in the former and the accused in the latter are alleged to have been present when Ranga Reddi was alleged to have been murdered, and in fact to have taken the most active and leading part in the perpetration of the murder. Under these circumstances it is very strange that they should have been charged both with the murder of Ranga Reddi and with the abetment of such murder. The Public Prosecutor, when this was pointed out, said that he did not press his appeal against the acquittal or seek to uphold the conviction of the accused in Sessions Case No. 1 of 1901 on the count of conspiracy, the accused Subbi Reddi in that case having been convicted of and punished for both the substantive offence of murder and of abetment of the same by conspiracy, but that he relied on the instances of conspiracy proved with reference to the said counts as material evidence in regard to the charge of murder in both the cases and also the charge of abetment of murder against the ninth accused in Sessions Case No. 53 by giving information of Ranga Reddi's movements on 11th June. It is unnecessary to consider the question of misjoinder of offences raised by the learned counsel for the respondents in Appeal No. 1028. In my opinion Appeal No. 1028 should be dismissed and the conviction of Subbi Reddi in Sessions Case No. 1 on the count of conspiracy quashed.