- (1.) THE appellant Atraj and his son Sugharsingh have filed this appeal against their conviction and sentence by the learned Additional Sessions Judge, Dholpur under sec. 308 read with sec. 34 of the Indian Penal Code for causing injuries to Manka. Sugharsingh accused has also been convicted and sentenced under sec. 323 of the Indian Penal Code.
(2.) THE case for the prosecution was that on the 24th of October, 1949, sometime in the afternoon, some cattle of Atraj appellant got into the filed of Manka who rounded them up and was driving them towards the cattle pond when Mst. Javitri, sister of the appellant Atraj raised a hue and cry that their cattle were being taken away. On this the appellant Atraj and his three sons, Chota, Mohansingh and Sugharsingh came armed with lathis and began to beat Manka alias Manakchand. Manka called out his brother Poorna who was in a field nearby for help and Mst. Javitri as well as the four accused mentioned above, left Manka and ran towards Poorna. Poorna was at that time sleeping in a bagia of him and there he was badly belaboured by Atraj and his three sons. Of the two, Poorna got a very large number of injuries and had to be taken to the police station on a charpoy. A report was made at the police station, Rajakhera, which is at a distance of about a mile from the place of occurrence. THE police took the investigation in hand and got the two injured persons Manka and Poorna examined at Rajakhera Hospital. Mst, Javitri, Atraj and Chotey were also medically examined at the same hospital. Injuries were found on the body of all these five persons. Before the case was challaned. an application was also made on behalf of Manak before the Circle Inspector on the 30th October, 1949, complaining that the police was not properly investigating the case and the Circle Inspector himself should go to the spot and investigate the case. The case was ultimately challanged by the police against Mst, Javitri, Atraj, Chotey, Sugharsingh and Mohansingh under secs. 308 and 148 of the Indian Penal Code in the court of Shri Karansingh, Magistrate First Class, Dholpur. On the complaint or Mst. Javitri, a case was also started against Poorna and Manka under sec. 323 of the Indian Penal Code. In the challan case, Mst. Javitri was discharged by the learned Committing Magistrate and the four accused Atraj, Chotey Sugharsingh and Mohansingh were committed to take their trial before the learned Additional Sessions Judge, Dholpur, under sec. 308 read with sec. 34 of the Indian Penal Code. In the case started on the complaint of Mst. Javitri, the two accused Poorna and Manka were committed to take their trial under sec. 323 of the Indian Penal Code before the same Sessions Court. The challaned case started on the report of Manka was criminal case No. 18 of 1950 and the complaint case against Poorna and Manka was criminal case No. 19 of 1950. The learned Additional Sessions Judge recorded the evidence separately in both the cases, but decided both of them by one judgment. In the case against Poorna and Manka, the two accused were acquitted while in the challan case against Atraj, Sugharsingh and others, Mohansingh was acquitted and Atraj and Sugharsingh were convicted under sec. 308 read with sec. 34 and sentenced to three years' rigorous imprisonment and a fine of Rs. 250/- each. Under sec. 323, only Sugharsingh was convicted and sentenced to three months' rigorous imprisonment. Both the sentences of imprisonment of Sugharsingh were made concurrent. Chotey, the fourth accused deed during the pendency of the case. In this appealon behalf of Sugharsingh and Atraj, it has been argued by the counsel Mr. D. K. Soral, that the judgment of the learned Additional Sessions Judge is based not only on the evidence recorded in the case No. 18 of 1950 but also on the evidence recorded in the counter case No. 19 of 1950. It was argued that it could not be said as to what extent the learned Additional Sessions Judge has been influenced by the evidence in the counter case. Therefore, this judgment could not be upheld. Rulings in the cases of Ally vs. Emperor (l), Bahappa Kallappa Ajawan vs. Emperor (2), Mounagurusami Naicker In re (3) and Garibulla Alkanda vs. Sardar Akanda (4), were cited by the learned counsel in support of his contention that it was improper to consider the evidence in the cross-case against the accused in this case. It was held in the Lahore ruling that - "where two cross cases are tried together and the accused in each case replied that the prosecution evidence in one be considered as defence evidence in the other and it was so considered, the procedure was illegal and not curable by sec. 537. " In the Bombay case, it was held that where rival factions which have taken part in a riot are both prosecuted the two functions must be prosecuted separataly, since the common intention of each of the two parties to the riot would be different and they could not be tried in a single case. The most desirable procedure in such cases would be that both the cases should be tried by the same Judge, though with different assessors or juries. The first case should be tried to a conclusion and the verdict of the jury or the view of the assessors taken. But the Judge should postpone judgment in that case till he has heard the second case to a conclusion, and he should then pronounce judgments separately in each case. It was further observed that the Judge would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence in one case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case. In the Madras case, it was observed - "there can be nothing irregular in a Judge trying each case to a conclusion before different assessors and afterwards pronouncing judgment in both so long as he tries the one quite independently of the facts in the other. But it is necessary that the trial must be separate, i. e. , before different assessors and separate judgments delivered; (2) that the conclusions in each case must be founded on, any only on, the evidence in each case, and (3) that if the Judge considers himself unable to detach himself from extraneous considerations a transfer may be necessary to deliver the Judge from this embarrassment. " In the Calcutta case, it was held that - "in the case of cross-complaints evidence in one case should not be considered in dealing with the case brought by the opposite party. " Thus there is abundant authority for the view put forward by the learned counsel for the appellants that it would be illegal if a case is decided on the evidence which has not been recorded in that case, but has been recorded in another case, howsoever connected that case may be with the other case. With the principle in view, it has to be seen whether any use has been made in this case by the learned Additional Sessions Judge, of the evidence recorded in the cross-case. On a reading of the learned Additional Sessions Judge's judgment, I find that in many places, he has relied upon the evidence recorded in the counter case No. 18 of 1950 for coming to the conclusion that the accused in this case were agressors and had done crimi-nal acts. To start with, the learned Additional Sessions Judge says - "because both these criminal cases, to one under decision (Criminal Case No. 18 of 1950 State vs. Atraj) challaned by the police and the other, the complaint filed by Mst. Javitri and Chhotey under sec. 323 of the Indian Penal Code against Poorna and Manka (Criminal Case No. 19 of 1950) referred to above are, so to say, counter parts of each other, therefore, it appears proper and desirable and necessary that they should be decided under one Judgment although they have been proceeded with separately. Both the cases are the off shoot of one and the same occurrence and the "decision of one is more or less dependent on the decision of the other. In my opinion the decision of one case without taken into account the facts, evidence and argument in the other will entail great difficulties and even miscarriage of justice. Hence I am deciding both the cases together. " Although, it is always proper to write separate judgments in two separate cases, yet it is not necessary for me to make any observation in this case whether, if a single judgment is given in two connected cases, but the findings in each are based on the evidence on the record of that particular case alone, such a judgment would be vitiated or not. However, in this case, the learned Additional Sessions Judge has not only given one single judgment in both the cases, but has treated the evidence of one case as if it were evidence in the other case also. In quite a number of places, the learned Additional Sessions Judge has referred to the evidence recorded in the connected case No. 19 of 1950. The learned Additional Sessions Judge in the matter of injuries has taken the medical evidence in case No. 19 of 1950 also into consideration in the present case. Further, when coming to a finding that the cattle of the accused were found grazing in the field of Poorna and Manka, he has taken assistance from the evidence of the prosecution witnesses No. 2 and 3 recorded in case No. 19 of 1950. He has also considered the evidence of Surajpal P. W. 3 in the said case No. 19 of 1950 while coming to a finding that the occurrence took place in the field of Manka and Poorna. These are not the only instances. They could be further multiplied but to my mind, the above instances would suffice. It is difficult to ascertain from the judgment of the learned Additional Sessions Judge as to what extent he has been influenced in the conviction of the accused from the evidence recorded in case No. 19 of 1950. Under these circumstances, the judgment of the learned Additional Sessions Judge, cannot be said to be legal and has to my mind resulted in a great prejudice to the accused. The judgment of the learned Additional Session Judge cannot, therefore, be supported and the conviction and sentences passed on the accused Atraj and Sugharsingh cannot be maintained. The question now remains as to whether the case should be sent back for retrial. The ordinary course would have been to send the case for retrial after setting aside the conviction and sentence of the accused. In this case, however, certain circumstances, have been placed before me in view of which I do not think that any useful purpose would be served if a retrial is ordered in this case. The case has already been before two Sessions Judges and the result has been that the evidence of the prosecution has not been altogether consistent. If the case is sent back for retrial, the same set of witnesses will have to be examined and instead of confronting the witnesses with one set of statements, they could now be confronted with two sets and I do not think that under the circumstances, the prosecution would be able to put up strong evidence against the accused which is necessary for the conviction. It also appears from the first information report, that none of the two accused were named therein although the prosecution evidence shows that the names of the accused were known to the complaining party before the report was made. Learned counsel for the appellants read out certain portions of the prosecution evidence in order to show that Manka who comes forward as a direct witness of assault on Poorna had fled away from the scene of occurrence immediately after he was given one or two blows. Considering all the arguments of the learned counsel and seeing the evidence on the record, I do not think that any useful purpose would be served if the case is sent back for retrial. It may also be mentioned that for sometime both the accused have already been in jail. The appeal is allowed, the conviction and sentence of both the accused are set aside and they need not surrender to their bail. Fines if paid shall be refunded to them. . ;