MANJUR S/O KALU Vs. STATE

JUDGEMENT

(1.) 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 wort 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 Sections 148,149 and 802, 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, 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, Code of Criminal Procedure, bad been violated. 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 Sections 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 beat an irregularity curable under Section 537, Code of Criminal Procedure. In the course of his judgment, Sanghi J. observed:

(3.) 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 v. Emperor : A.I.R. 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, Code of Criminal Procedure, to convict an accused of an offence without taking 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 Section 148 as from the charge itself. It reads: