NAYEB SHAHANA Vs. EMPEROR

JUDGEMENT

(1.) The eight appellants before us were tried by the Sessions Judge of Burdwan with the aid of a jury on a charge Under Section 302/120-B, I.P. C., i.e., conspiracy to murder, and were convicted on the majority verdict of the jury and sentenced to transportation for life. The case for the prosecution is that there was a conspiracy to murder one Dr. Akhtar Ali, in pursuance of which he was murdered by some men while he was returning home on the evening of 29th March 1932, and that the appellants were some of those conspirators. The appellants defence was that they were not in the conspiracy and that they knew nothing of the conspiracy.

(2.) The first ground urged in support of the appeal is that the trial has been vitiated by the non-compliance with the imperative provisions of Section 356, Criminal P.C. It appears that in this case the evidence was not taken down in writing by the Judge himself. It appears further that the learned Judge did not make a memorandum of the substance of what the witnesses deposed, as required by Clause (3), Section 356, Criminal P.C. It is dear however from the record that the evidence was taken down in the presence and hearing and under the personal direction and superintendence of the Judge and that the depositions of the witnesses were read over and interpreted to them in the presence of the accused and their pleader and admitted to be correct. There was no suggestion, either before the Sessions Judge or before us, that the record of the evidence, which was placed before the jury in this case, is not a correct record of what the witnesses deposed. There is no doubt that there is an omission or irregularity in this case, because the law requires that the Judge shall make memorandum of the substance of the depositions of the witnesses. The ques tion for determination therefore is whether this omission or irregularity vitiates the whole trial or whether it is cured by the provisions of Section 537, Criminal P.C. The two decisions of the judicial committee, viz, Subramania Ayyar V/s. Emperor (1901) 25 Mad 61 and Abdul Rahman V/s. Emperor clearly indicate that all violations of the rules of procedure in a criminal trial do not stand on the same footing.

(3.) The test to be applied is to ascertain whether the accused had a fair trial in spite of the transgression of the prescribed rules of procedure. If a particular rule has been prescribed for achieving a particular object and that object has not been defeated by reason of the breach of that rule, it cannot be said that the accussed had not a fair trial. We are not satisfied in the present case that, by reason of Sub-section (3), Section 356, Criminal P. C., the appellants have, in any way, been prejudiced. The object of Section 356 is to have an accurate record of the evidence in the case. As already observed there was not the faintest suggestion in the present case that the evidence, which was placed before the jury, is something different from what the witnesses deposed or that the record is otherwise incorrect or incomplete.