EMPEROR Vs. CHANGOUDA PIRGOUDA

JUDGEMENT

(1.) This appeal raises a point of law which is not entirely free from difficulty. It may be stated as follows:-By virtue of Government Notification No. 7087, dated October 19, 1915 published at p. 257 of the Bombay Government Gazette, Part I for 1915 the offence of murder, punishable under Section 802 of the Indian Penal Code, is triable before the Court of Session of Belgaum with the aid of assessors: and the offence of causing grievous hurt by a dangerous weapon punishable under Section 326 of the Indian Penal Code is triable before the- same Court by a jury. In the present case the accused stood charged with murder and with no other offence and the offence was therefore triable by the Sessions Court with the aid of assessors. That offence was so tried up to and including the stage of the trial at which the two assessors recorded their opinions. After those opinions had been recorded the Sessions Judge adjourned the case for judgment. He held that the facts were within the scope of Section 326 and not Section 302 and therefore convicted the accused of the former offence.

(2.) It is urged in appeal that the conviction is illegal. The argument is that the offence under Section 320 was triable by a jury and not with the aid of assessors, and that as it was not tried by a jury the Sessions Judge could not convict the accused under that section.

(3.) Apart from the question of procedure it cannot be doubted that the terms of Section 23 of the Code of Criminal Procedure as interpreted by this High Court, are wide enough to permit a Court to convict an accused person charged with murder of an offence under Section 326 of the Indian Penal Code, if for instance the Sessions Judge had in this case held the accused guilty of an offence punishable under Section 304 of the Indian Penal Code which is also triable with the aid of assessors, the conviction Would clearly be permissible by virtue of Section 288 of the Code of Criminal Procedure.