JUDGMENT
Fawcett, J.
1. In the appeal No. 134, the first point taken is that the jury wrongly convicted the accused of a minor offence under a, 411, which was one triable by the Judge with the aid of assessors, whereas the charge against him under M. 412 was triable by a jury. I do not think it necessary to discuss this question at any length. The case is one to which the provisions of Sub-section (3) of Section 269 do not apply, inasmuch as no charge was framed against the accused under Section 411. It is certainly the case that the trial was actually one by a jury; and no application was made (as it might have been, when the question of the possibility of the accused being convicted under Section 411 was discussed in the address of the Assistant Public Prosecutor) to have a separate charge framed under Section 411, so that the provisions of that sub-section might apply. There is authority for saying the accused cannot, therefore, now complain of verdict having been given by the jury and accepted by the Judge: vide the judgment of Chandavarkar J. in Emperor v. Mavsing Bechar (1909) I. L. R. 33 Bom. 123, s.c. 11 Bom. L. R. 350. Apart from that we have a clear authority of a Divisional Bench of this Court in Emperor v. Changouda for the view that in a case like the present, although there the point arose in a reverse way, the provisions of Section 238 must be regarded as absolutely uncontrolled, so that the jury had authority to convict the accused of the minor offence under Section 411, and there is nothing invalid in that verdict being accepted by the Judge and the accused sentenced thereon. There are remarks to the same effect in the judgment of Candy J. which preceded the Pull Bench decision in King-Emperor v. Parbhushankar (1901) I. L. R. 25 Bom. 680, s.c. 3 Bom. L. R. 278 and there is authority of one of the Judges in Pattikadan Ummaru v. Emperor (1902) I. L. R. 26 Mad. 243 to the same effect. It would lead to very great complications, if the view put before us that the accused can go into the facts on his appeal in spite of the provisions of Section 418, were accepted. Accordingly, in my opinion, we should only consider the question whether there has been any misdirection, or non-direction amounting to misdirection, which prejudiced the accused and which would justify our interference with the unanimous verdict of the jury convicting him under Section 411, [Then after discussing evidence in the case, his lordship concluded :]
2. It seems to me, therefore, that both the appeals fail and should be dismissed.
3. As regards the question of punishment, dacoities would not be so common, if the dacoits did not find it so easy to dispose of stolen property, and we do not think that the sentences are too severe. We, therefore, decline to interfere with regard to them.
Madgavkar, J.
4. A charge in the Sessions Division of Poona under Section 412, Indian Penal Code, is triable with the aid of a jury and a charge under Section 411 with the aid of assessors. In the present case the only charge against all the appellants was under Section 412, Indian Penal Code, and the trial was, therefore, rightly by a jury. And under Section 288 of the Code of Criminal Procedure, the appellants could clearly be convicted under Section 411, Indian Penal Code. Under these circumstances, according to the Full Bench decision in King-Emperor v. Parbhushankar (1901) I. L. R. 25 Bom. 680, s.c. 3 Bom. L. R. 278 the provisions of B. 418 of the Code of Criminal Procedure apply, and the present appeal does not He on facts. The law did not require the Court to frame a separate charge under Section 411, Indian Penal Code, nor did any of the parties so apply. IE the view of the appellants, however, is accepted, the result would be that, so long as a jury is of opinion that the appellants were not guilty of an offence under Section 412, or even under Section 411, they remain a jury, but immediately they come to the conclusion that they are guilty under Section 411, they become assessors. This is a view which the law does not permit and it is impossible to accept it.
5. I agree, therefore, with the view of my learned brother. The appeals must be dismissed.
