ORDER
Hemeon, J.
1. The appellant Santasingh, who was prosecuted Under Section 307, Penal Code, for having stabbed Prannath (P.W. 6) in the loin with his sword on the night of the 17th December 1947 at Jubbulpore, was tried by the Sessions Judge, Jubbulpore, with a jury; and after they had been charged by him, they returned a majority verdict of guilty against the appellant. After the verdict, the defence raised the contention that as the offence of attempted murder was punishable with death in the Jubbulpore district, in virtue of Section 16, Central Provinces and Berar Publio Safety Act, 1944, the trial should have been held with the aid of assessors. The Sessions Judge held, however, that the trial by jury was a valid trial and that it was not necessary foe him to disagree with the verdict of the jury and to submit the case to this Court. He accordingly convicted and sentenced the appellant to undergo 5 years rigorous imprisonment Under Section 807, Penal Code.
2. The appellant, who is a motor engineer and 86 years of age, lives in Gorakhpur Mohalla. Jubbulpore, and not far from this reside Prannath (p. W fi) and his friend Kisanlal (P.W. 6), At some distance from their houses, there is the pan Bhop of Gulab who was not examined; and Prannath, Kiaanlal and Ramprakash (P.W. 1), their friends were in the habit of visiting it from time to time every week. On or about the 14th December 1947 when Prannath, Kisan and Ramprakash were sitting in the shop, the appellant came there in a state of intoxication and Kisanlal made fun of him.
3. On the night of 17th December 1947, when the three friends were on their way from the shop to Prannath’s house, the appellant, who waa carrying a sword, rushed out and attacked Prannath with it. Thereafter, Prannath waa taken in a rickshaw to his house; and Kisanlal made the report Ex. p 3 at 8-45 p. m, at tbe Gorakhpur police station. Prannath was taken to the Combined Military Hospital and at 9 p. m, Ramprakash made the report Ex. P-l to Beniram (P.W. 3), Sub-Inspector, Gorakhpur police-station.
4. Prannath was found by Shri P. N. Mehra (P.W. 2) to have an entrance perforating wound over the left lumbar region, 4 inches x l/2 inch and deep upto the abdominal cavity with bowels issuing from the wound and an exit wound perforating, 2 inches x l/2 inch and deep upto the inner end of tbe right inguinal ligament with a piece of omentum sticking out. The abdominal muscles were also cut and Shri Mehra was of the view that the injury could have been caused by a sharp cutting weapon and was likely to cause death.
5. The appellant in the committing Court denied that he had passed or entered the pan shop on 13th or 17th December 194T, that he was drunk or had met Prannath or his friends on any occasion. He also denied that he had attacked Prannath with a sword and asserted that he had spent the night in question at his house. In the Court of Sessions he again disclaimed all connection with the occurrences and claimed that he bad been implicated as the result of mistaken identity.
6. He adduced no evidence and in defence declared that he had spent the whole night in his house and bad not attacked anybody with a sword or any other weapon.
7. The finding that the trial by jury was, a valid trial cannot be upheld. Section 16, C. P. and Berar Public Safety Act, 1948, prescribes inter alia that whoever commits an offence Under Section307, Penal Code, may be punished with death; and the notification issued by the Provincial Government Under Section 269, Criminal P.C. excludes from trial by jury oSence3 punishable with death. It is true that Section 17, 0. P. and Berat Public Safety Act provides that any offence under Sections 307,324,325 or 326, Penal Code shall not, except in cases in respect of which a direction Under section SI has been issued, cease to be triable by any Court which might have tried the offence had it not been made punishable with tbe enhanced penalty specified in S 16, but this provision cannot apply to Courts of Session for the obvious reason that those Courts are empowered to try offences which are punishable with death. The provision must, it appears apply to the Courts of Section 30-Magistrates who are em-powered to try in certain areas all offences not punishable with death. This view is reinforced by the proviso to Section 17, C. P. and Berar Public Safety Act, 1948, which inhibits a Court not constituted under it from inflicting a punishment in excess of the punishment which it is authorised to inflict under Sections 32, 33 or 34, Criminal P.C.
8. The present case should, therefore, have been tried with the aid of assessors, but even if it could have been tried with a jury, there should have been at least seven, and, if practicable, nine persons on the jury. This is clear from the mandatory terms of the proviso to Sub-section (2) of Section 274, Criminal P.C., and as the jury here consisted of only 5 persons the trial was invalid. Section 536 (1), Criminal P.C. lays it down that if an offence triable with the aid of assessors is tried by a jury, the trial shall not on that ground only be invalid, but this mast, in my view, signify that the trial by jury was a trial in accordance with law and not one in which the constitution of tbe jury contravened the express provisions of the proviso to Section 274 (2), Criminal P.C.
9. But even if the trial by a jury of an offence triable with assessors is not invalid on that ground, an accused should not, it seems to me, be debarred by reason of that from an appeal on the facts. This was a right which would have accrued to him if he had been tried with assessors and to deprive him of it because oE an error in procedure would be a manifest injustice. This was the view taken in Empress v. MohiniChunder Rai a Cal. 765, by Maclean J. and I would also quote with respectful approval the following” observations of Biawaa J. in Golok Behari v. Emperor
Where, therefore, through no fault of his a trial by jury is imposed on an accused person in disregard of the express provisions of the statute which entitle him as ol tight to a trial with the aid of assessors, it would, in ray opinion, be a manifest injustice to deprive him of a right of appeal which he would otherwise have had under the law. Such a result should be avoided by all means, unices of course this was necessitated by the constraining language of the Code. The material provisions in this respect, as already stated, are those embodied in Section 418 (1) read with Section 536, Criminal P.C.
In the application of Section 536, as it is, there is a further point to be noticed, namely, the use of the word ‘only,’ to which little or no attention seems to have been paid in the reported cases. All that the section says is that the trial shall not ‘on that ground only’ be invalid, that is, it shall not be invalid merely on the ground of the irregularity in question. In a case under Sub-section (2), if an objection is taken, it is expressly provided that this will at once take the case out of the protection of the Sub-section. In a case under Sub-section (1) it is not said that any objection will have any such effect, but it may quite be that apart from the irregularity, there is prejudice caused to the accused by reason of such irregularity. It will then be a case not of irregularity, but of irregularity and something more, and it is difficult to see how the saving provisions of Sub-section (1) can then at all apply. Where the trial ends in an acquittftl, and there is or is not an appeal by the Local Government, there will be obviously no prejudice, and the trial may stand- But where it ends in a conviction, and the accused appeals, and the accused is sought to be shut out of an appeal on facts, he will certainly have been prejudioad, and on a strict reading of S, 536 (1) the trial will be incurably bad. To render the trial valid in such a case, the right of appeal on facts would indeed have to be conceded Prejudice may arise also in another way, as it has in this case, where the Judge takes, a view more favourable to the accused than the jury but is unable to give effect to it because the trial is a trial by jury.
10. Before turning to the facts of the case, I may at the outset point out that although the charge to the jury of the learned Sessions Judge was one which clearly indicated that the appellant had not been identified as Prannath’s assailant, he did not consider it necessary to disagree with the majority verdict of the jury and to submit the case to this Court Under Section 307, Criminal P.C. This was all the more surprising because he himself admitted in his judgment, which was delivered 9 days after the verdict of the jury, that the trend of his charge to them indicated that he thought that the offender had not been identified.
11. I may say at once that if anything is clear in the case it is that the identification of the appellant was in no way a satisfactory identification and his conviction was erroneous. The version of Prannath (P.W. 6) was to the effect that the appellant passed the pan shop in a rickshaw on the night in question, came back to it and asked for pan. Kisanlal (P.W. 6) who was then singing a song, began to sing it more loudly and the appellant and he started staring at one another. Fearing that this might lead to a quarrel, Prannath hinted that he should stop singing; and when he did so, the appellant, whose gait was unsteady, said that he had come to the shop not merely to eat pan but to see those who were sitting there. After this, he went away uttering abuses in general terms and the three friends, according to Prannath,. decided to visit the appellant’s brother-in-law Balwantsingh, who was known to Kisanlal, in order to complain to him. When, however they reached Balwantsingh’a houBe, Kisanlal did not receive a response to his call and Prannath said that he would go home.
12. He was stabbed shortly afterwards at a-point about 30 yards from Kisanlal’s house and when he reached the front of that house, he told Kisanlal, who was accompanied by Ramprakash, that Santsingh had stabbed him with a sword. He had learned the appellant’s name about a month previously from Kisanlal who also told him that he was Tarasingh’a brother… Kisanlal denied, however, that Prannath had disclosed the name of his assailant and he also averred not only that he had seen the-appellant stabbing him but that the appellant had run towards Ramprakash and himself.
13. Prom this, if true, it is obvious that the three friends must have known who the assailant was, but Kisanlal in his report ex., P-3, did not declare his name or the weapon used and merely said that a drunken Sikh had “given some beating” to Prannath after having abused) him filthily. This was a remarkable omission, as Kisanlal admittedly knew the appellant name and also knew that he was Tarasingh’s brother. His explanation that he failed to reveal it as he was in a hurry can be readily dismissed; and Ramsing (p, W. 4), Sub-Inspeetor who recorded his report, testified to the fact that when ha asked him to name the assailant and to specify the weapon used, he replied that he knew nothing about these matters.
14. The only conclusion must be that Kisanlal had not, in fact, identified the appellant as the-assailant and that his evidence was unworthy of credence. Ramprakash (P.W. 1) denied that Prannath or Kisanlal had told him who th& assailant waa and having emphatically declared that the appellant was not the assailant, added’ that the assailant was thinner and taller than the appellant. He also stated that he had not seen the face of the Sikh who had attacked Prannath with a sword. In his report, Ex. p. l, however, he had revealed that the assailant was the brother of Tarasingh and that he did not know his name. As F. w. l he further stated that he had not seen the appellant near or in the part shop on the night in question, that he did not -know how many brothers Tarasingh had and that the police had not asked him to identify the assailant.
15. It would, in the circumstances, be extremely unsafe to rely upon Prannat’h evidence, I have referred to his account of the incident at the pan shop and of the decision to complain of the appellant’s conduct to the appellant’s brother-in-law Balwantsingh, There is, however, no reference to this decision in his statement to the police and in it he merely asserted that his two companions and he were on their way to hia house when the attack took place. Although he stated in examination-in-chief as P.W. 5
the aoouaed oarne with a sword in his hand and asked me to stop and that he would deal with me. Before realised the situation, he struck me with his sword on my left base line,
He added in cross-examination that he had seen the appellant emerging from his house with a sword but had not seen him entering the house before this. To the police, however, he had supplied the following account;
Thereupon this Santasingh who was standing at the door brought a sword from the house and alter “taking out, struck.
In the committing Court he had admittedly denied that he had seen the appellant standing at his door or that he had brought a sword from inside and rushed at him.
16. I have already noted the fact that the three friends cannot have known the assailant’s name at the time of the attack and it would therefore, appear that the appellant cannot have been the assailant and that the actual attack took place in a place which was so dark that full recognition of the assailant wa3 not possible. It was also remarkable and significant that although the attack took place in a densely populated locality at about 8 p. m., no alarm was raised and no outsider came on the scone. The inference that Prannath and his companions have something discreditable to conceal can, in the circumstances, be drawn without any great hesitation, but the salient point is that they had not identified the appellant as the assailant and that there is nothing otherwise to indicate his .culpability.
17. The conviction and sentence are set aside and the appellant is acquitted.