Kaul, C.J. - (1.)BHAVARLAL , the appellant, before us was convicted by the learned Sessions Judge of Mandsaur for an offence under S. 302, Penal code, and sentenced to transportation for life. He cornea up in appeal.
(2.)WE may state at once that the appellant's conviction cannot stand as the learned Judge committed a serious error of procedure which wholly vitiates the trial. A charge under S. 302, Penal Code, is triable by a Sessions Judge with the aid of assessor as Under S. 284 of the Cole, when the trial is to be held with the aid of assessors not less than three and, if practicable, four should be chosen from the persons summoned to act as such. Obviously, such a mandatory provision of the Code cannot be disregarded without vitiating the trial. In the present case we find from the record that after the commitment by the Magistrate the record was received in the Court of Sessions on 7 -10 -1949. On 26 -11 -1949 the Sessions Judge summoned five persons to Act as assessors. Their names are Ibrahim, Madanlal, Iftikaruddin, Samarthmal and Umashankar. 12 -12 -1949 was fixed for commencement of the trial. On that date, it was noticed that two of the persons summoned to Act as assessors viz. Ibrahim and Samarthmal were not served with summonses. Umashankar and Iftikaruddin did not attend though served with summons. Only one of the five persons named above Madanlal was present. So far as appears from the record and the learned Government Advocate has not been able to invite our attention to anything which would show it was otherwise - -the trial commenced with only one assessor Madanlal. On that date, the charge sheet was read out to the accused and his plea of not guilty was recorded. The Public Prosecutor opened his case and the evidence of five prosecution witnesses was recorded. On the next date, that is, 13 -12 -1949 only Madanlal assessor was present but the case could not be taken up as the presiding Judge was unwell. It was adjourned to the next day. But unfortunately even on that day the case could not be taken up owing to Session Judge's illness and the trial was adjourned to 3 -1 -1950. On that date though no assessor was present the trial continued. Eight witnesses were examined and the cage was adjourned to 18 -1 -1950. It appears that having committed the first error at the commencement of the trial, the learned Sessions Judge was guilty of another error in ignoring the clear and mandatory provisions of s, 285, Criminal P.C., in proceeding with the trial without the aid of any assessor. Section 285 runs thus:
If in the course of a trial with the aid of assessors, at any time before the finding, any assessor is, from any sufficient cause, prevented from attending throughout the trial, or absents himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors.

If all the assessors are prevented from attending or absent themselves, the proceedings shall be stayed and a new trial shall be held with the aid of fresh assessors.

(3.)WE are surprised to find that the learned Sessions Judge should have been oblivious of the general law on the subject and that the mandatory provisions contained in sub -s. 2 of S. 285 of the Code were disregarded. The last witness for the prosecution was examined on 18 -1 -1950. On 19 -1 -1950 the statement of the accused was recorded in the absence of any assessor. On that day the defence evidence was also recorded. The case having closed, judgment was pronounced by the learned Sessions Judge on 6 -2 -1950 without recording the opinion of the assessors. As no assessor was present naturally it was impossible to do otherwise. The learned Sessions Judge has made no reference to this subject in his judgment. Nor does he say anything as to the opinion of the assessors. We cannot believe that the learned Sessions Judge was not aware of these provisions of the law and at the same time we cannot understand how it was that he ignored them and proceeded with this trial as if no such provision existed in the code.
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