STATE Vs. MAGGA

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Pali for confirmation of the sentence of death passed under Section 302, Penal Code on Bhagga and Magga. There has been no appeal however by Bhagga and Magga and the reference is, therefore, to be disposed of in the manner provided under Section 376, Criminal P. C.

(2.) THE case relates to an incident which took place on the night between the 3 and 4-4-1951. THEre is a well known as Imaratia in village Gadhwara. THE lands attached to that well were cultivated by eight persons in 1950-1951. THEse were Bhika, Parbhoo, Gheesa deceased, Ganesh deceased, Ratna, Chala, Kanji and the two accused Bhagga and Magga who are brothers. When the crop was ripe for cutting at the end of March, 1951, there was some dispute in that connection. Three labourers were engaged to help the partners in cutting the crop; but after their engagement the accused objected to the employment of labourers on 3-4-1951. In that connection there was exchange of abuses between the accused and Ganesha and Gheesa deceased, and the accused had grappled with Ganesh and Gheesa. Ganesh deceased had received some injuries in this struggle but the other partners intervened and separated these persons. THE accused had then gone away giving a threat to the other partners. Ganesh and Gheesa deceased also went to the village in order to make a report of the incident to the police; but the accused's sister Diwli had intervened and assured the mother of Kanji one of the partners that she would co-operate with them in cutting the crop and that the matter should not be reported to the police. THEreupon the idea of making a report to the police was given up.

(3.) THE next case is -- 'brandaban v. State', AIR 1951 Madh. B. 29. In that case it was held that "the failure to comply with the procedure laid down in S, 285 is a material irregularity which will vitiate the trial, and that no question of curing any irregularity under section 537 arises". This is a singlai Judge's decision and the learned Judge after considering certain decisions of their Lordships of the Privy Council observed as follows at page 32: " THE intention of the Legislature clearly was that if any assessor absents himself the Court should endeavour to enforce his attendance. If it is not practicable, the Court should record it and only then can proceed further. If there is nothing to indicate that there was any endeavour to enforce the attendance, there will be a presumption that the procedure adopted was one which the Code positively prohibited, at the same time it is possible that it may work actual injustice to the accused by a reduction in the number of the assessors who might have expressed their opinion in his favour. THE trial will thus be held to be conducted in a manner different from that prescribed by the Code and the trial will "be bad according to -- 'kottaya v. Emperor', AIR 1947 PC 67 and no question of curing any irregularity under section 537 arises". With due respect to the learned Judge we find it difficult to understand how any actual injustice can be said to arise by reduction in the number of assessors. Assessors merely aid the court which is not bound to follow their opinion. A reduction, therefore, in the manner of assessors cannot, in our opinion, occasion failure of justice. Further, with due respect to the learned Judge, we are not able to understand how if this provision of Section 285 (1) has not strictly been followed, it can be presumed that the procedure adopted was one which the Code positively prohibited. THE fact is that the code does not prohibit trial with the aid of less than three assessors once it has begun with the requisite number. It actually allows it under certain conditions. We, therefore, find ourselves unable to agree with the reasoning in this case.