Rege, J. - (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:
There is a universal opinion abroad that assessors at Sessions trials serve no useful purpose. That may or may not be so., the law, however, requires that such trials should be with the aid of assessors and the Counts should scrupulously follow the provisions of the law relating to such trials. The assessors should be asked to express their opinions in respect of each accused and on each charge of which he has been tried and with reference to the section of the law under which he has been charged. Questions, if necessary, should be put to the assessors to ascertain their opinion Section 309, Code of Criminal Procedure. A little care in this respect would avert re -trials.

With this view I am in entire agreement. The institution of the agaessors is one of steps in the association of the people in the administration of justice and has a great cultural value, if the right spirit prevails. In experience however, it is usual to find the assessors no wiser at the end of a trial than at the commencement and they rarely servo any useful purpose save the satisfaction of the judicial conscience in following the provisions of law. The legislature has in its wisdom, however, made assessors an integral part of the Court, and a trial without assessors is void. The question, whether the omission to follow the strict provisions of the Code of Criminal Procedure vitiates the conviction, must, I think, be decided on the facts of each case; and in the case before us the Appellant can have no cause for grievance merely by reason of the omission to record an opinion on the charge under Section 148, as he has been acquitted of that charge. The decision in Lal Bihari v. Emperor, A.I.R. 1934 Oudh 354 :, 35 Cr. L.J. 1066, contains some observations indeed which support prima facie the contention of the Appellant's learned Counsel. At p. 358, their Lordships observe: The learned Sessions Judge was bound to record the opinion of each assessors in respect of all the charges on which the accused were being tried and his failure to do so merely moans that he has virtually tried the case without the aid of assessors and such a trial before a Court of Session is void in toto because under Section 268, Code of Criminal Procedure, all trials before a Court of Session have to be either by Jury or with the aid of assessors.

(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:
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