King Emperor vs Tirumal Reddi and Others and Subbi Reddi

On the preliminary point in referred trial No. 61 and the connected criminal appeals.

Bhashyam Aiyangar, J.

These are appeals in Sessions Case No 53 of 1900 before the Sessions Judge of Kurnool Division. The trial of the said case commenced on

23rd August 1900 and closed on 15th October 1900 when judgment was reserved. The judgment was given on 24th October 1900, and the first

eight accused in the case were convicted of murder and the ninth of abetment of murder. The trial before the Court of Session was with the aid of

two assessors, viz., Gundu Rao and P. Seshiah Chetti, hereinafter referred to as the first and second assessor respectively. The first assessor was

allowed by the Judge to go to Gooty to the death-bed of his mother at 2 P.M. on the afternoon of 5th September 1900, and he was also absent

on the 6th and 7th September, but the trial proceeded during his absence. There was no trial of the case on Saturday the 8th and Sunday the 9th

idem, and it was adjourned to Monday the 10th, on which day the first assessor returned and continued to attend the trial throughout except on

16th, 17th, 18th and 19th September, on each of which days he was allowed to absent himself till 1 P.M. to enable him to perform the daily

obsequies of his deceased mother. It appears that all the depositions recorded in his absence were shown to and read by him. It is not contended

that there was no sufficient Cause for his absence on the days above-mentioned, and it appears that no objection was raised on either side to the

Judge permitting him to absent himself on these days. The Judge in his letter, dated 20th March 1901, further reports that when the first assessor

returned ""some doubts were expressed as to the legality of the '' (assessor''s)'' return and felt by myself, but finally it was decided with the

concurrence of both parties, that he might be allowed to return, as the validity of the trial could not be affected in either case, so long as one.

assessor was present throughout the trial according to Section 285, Criminal Procedure Code."" The Counsel who represented all the accused in

the Sessions Court also appeared in this Court as Counsel for the 2nd accused, the appellant in Appeal No. 874 of 1900, and says that he did not

waive his objection though he did not. press it or make any protest after the Judge ruled that the trial could not be affected by the return of the first

assessor. The statement of the Counsel made in this Court that he did not waive the objection, must be accepted, though'' the Judge might have

misunderstood Counsel as concurring in the view of the Judge. It is very much to be regretted that any doubt should have been felt on a point

which is so plain and that the first assessor should have been allowed to resume his seat as an assessor instead of the trial proceeding, as it

undoubtedly could, with the aid of the remaining assessor alone u/s 285, Clause (1). The Public Prosecutor, who also appeared in the Sessions

Court, now admits that the first assessor ought not to have been allowed to resume his seat as assessor. At the conclusion of the trial the Sessions

Judge invited the opinion of each assessor and recorded it, viz., that all the accused were guilty, and the Judge concurring in such opinion,

convicted the accused. Upon the above facts a preliminary ground has been raised and argued in the above appeals, that the Judge having acted

contrary to law in allowing the first assessor to resume his seat as assessor and in inviting and taking into consideration his opinion in deciding the

case, the trial ought to be set aside and the conviction quashed,

In my opinion, the finding and sentence appealed against is one passed by a court of competent jurisdiction within the meaning of Section 537 of

the Criminal Procedure Code, and that the defect in the trial does not affect its validity and is one that can be cured under that section, if the

irregularity ""has not in fact occasioned a failure of justice.

The chief contentions raised in support of the preliminary ground are, that assessors are members of the court, that, therefore, the court was

illegally constituted from the time when the first assessor was allowed to resume his seat as ''assessor on 10th September, and that, even if

assessors are not members of the court, yet, inasmuch as the Sessions Judge invited the opinion of the first assessor when in law he had not the

status of an assessor, and decided the case in concurrence with such opinion, the finding and sentence appealed against cannot be regarded in law

as one passed by a court of competent jurisdiction. If either of these contentions be well founded, it will go to the root of the case and the result

will be that a new trial will have to be ordered. Section 268, Criminal Procedure Code, provides that all trials before a court of Session shall be

either by jury or with the aid of assessors. In the latter case it is provided by Section 284 that at least two assessors shall be chosen by the Judge.

The next Section 285 provides that if an assessor be prevented from any sufficient cause from attending throughout the trial, the trial shall proceed

with, the aid of the remaining assessor or assessors only and that, if all the assessors are so prevented or absent themselves, the proceedings shall

be stayed and a new trial shall be held with the aid of fresh assessors.

With reference to these provisions, it is conceded that the trial commenced validly with two assessors and that no exception could be taken to

the trial of the case including the finding and sentence if the second assessor alone continued as assessor from 2 P.M. on the 5th September when

the first assessor departed on leave. The authorities cited simply establish that the trial will be invalid if it commenced really with only one assessor,

though nominally there was a second assessor who, by reason of blindness or deafness, was incapable of understanding the proceedings Weir''s

Crl. Hub, p. 927, 3rd Ed.; Queen Empress v. Bahu Lal ILR 21 A. 106 or if it ended without the last remaining assessor having attended the trial

throughout Queen Empress v. Muhammad MahmudKhan ILR 13 A. 337 or if a portion of the trial which consisted in the taking of the additional

evidence took place after the discharge of the assessors Queen Empress v. Ram Lal ILR 15 A. 136. The principle of these decisions is that in

cases not tried by jury, it is imperative that the judge should commence his trial with the aid of at least two assessors and that at least one of them

should continue to attend the trial throughout. This being mandatory, the jurisdiction of the Sessions. Judge to commence the trial and his

jurisdiction to continue the trial are dependent upon his choosing at least two assessors to aid him and on the continuation of at least one of them

throughout the trial. In other words, the above two requisites are conditions precedent to the exercise of his jurisdiction, and, there-'' fore, any

finding or sentence passed by a Sessions Judge in contravention of either of these requisites will not be one passed by a court of competent

jurisdiction and the defect is not one which can be cured by Section 537 of the Criminal Procedure Code or Section 1G7 of the Evidence Act.

In the matter of the petition of Narain Das ILR 1 A. 610 it was held by a single Judge that the acquittal of an accused person, without asking

assessors their opinion, was only an irregularity though a serious one and that it could be cured under Sections 283 and 300 of Act X of 1872

corresponding to Section 537 of Act V of 1898. In the view I have already expressed, I need hardly add that I dissent from that decision, and that

if a Sessions Judge should decide a case without inviting the opinion of the assessors, he virtually holds the trial without the aid of assessors, and

that his finding or sentence cannot be regarded as one passed by a court of competent jurisdiction. Queen v. Matam Mal 22 W.R. 34 and Queen

Empress v. Munna Lal ILR 10 A. 414. In the present case there has been no violation of either of the said conditions precedent and the question

raised as to the effect of allowing an assessor who absented himself for some time after he had attended a portion of the trial to resume his seat and

to give his opinion at the conclusion of the trial is not governed by any direct authority and the case, therefore, being new in the instance ought ""to

be governed by the established principles and the analogies which have heretofore prevailed in like cases"" (per Willes, J., in the Tagore case, Sup,

Vol. Ind. App. at 68; per Lord Wensleydale in Mirehouse v. Rennell 1 Cl. & Fin., 546.

I now proceed to consider the principles and the analogies which bear on the question raised in this case. The principles are clearly deducible

from the provisions in regard to trial with the aid of assessors as contrasted with the provisions in regard to trials by jury. In the latter case, the trial

is by jury before a court of Session and the functions of the two tribunals forming a mixed tribunal are respectively defined in Sections 298 and 299

of the Code of Criminal Procedure.

The jury form a tribunal or body with a foreman and the verdict is the verdict of the body, and when there is no unanimity among the members

of the body, the opinion of the majority prevails as the verdict of the body. The jurors are sworn after the foreman has been appointed. And after

the Judge has finished his charge, the jury may retire to consider their verdict, and if they are not unanimous, the judge may require them to retire

for further consideration. If in the course of a trial by jury, any juror unavoidably absents himself, or if it appears that any juror is unable to

understand the language in which evidence is given or the language in which it is interpreted, a new juror shall be added or the jury discharged and

a new jury chosen. But in either case the trial shall commence anew. But in the case of a trial with the aid of assessors, the assessors do not form a

body and each acts and expresses his opinion individually, and the judge is to invite the opinion of each separately and record it. The judge is the

sole judge of law and fact and the responsibility of the decision rests only with him, though, in the decision of the case, he is expected to take into

consideration the individual opinion of each assessor, and during the trial of the case, he may also consult them on any point in connection with the

examination of witnesses or otherwise. The assessors are not to retire for consultation and forming their opinion. In the case of assessors the

principle is that the judge should have Before him the individual and the independent opinion of each assessor. Before the enactment of the Criminal

Procedure Code, Act X of 1882, the judge had to invite the opinion of the assessors without summing up the evidence to them. The object was to

preclude the possibility of the assessors being influenced by the judge in forming or giving their opinion. On this point the Indian Law

Commissioners appointed under 16 and 17 Vic. C. 98, Section 22, in their first report accompanying the draft Code which formed the basis of the

Criminal Procedure Code of 1861 observed at p. 152 as follows: ""A difference is proposed in the mode of taking the verdict of a jury from that of

taking the opinion of the assessors. In the former case, the judge will sum up the evidence for the guidance of the jury and then call for their verdict.

In the latter, the judge will call'' for the opinions of the assessors without any expression of his own. There is a reasonable apprehension that the

native assessor when his own opinion is to be subjected to discussion in open Court is likely to be unduly biased by the opinion of the presiding

judge: we have endeavoured to obviate this by the order of procedure which we have described."" But in the Code of 1882, an enabling provision

was introduced which is also retained in the present Code empowering the judge to sum up the evidence to assessors before inviting their opinions.

In my opinion this provision should be availed of by the judges only in cases where the facts are intricate or complicated and it may therefore be

expedient to explain or marshal the same. Even in these cases, the judge should not, as he may do in charging a jury, express his opinion upon any

question of fact arising in the case. The contrast between trial by jury and trial with the aid of assessors is that, in the former, the jury is the real

tribunal but is aided by the judge, and in certain matters directed by the judge, but in the latter the judge is the sole tribunal aided by each of the

assessors.

The tribunal which has to try the case is the judge himself, and the judgment is his and his alone. The assessors who assist the judge take no part in

the judgment whatever; they are not responsible for it and have nothing to do with it. They are there for the purpose of assisting the Judge (per

Brett, M.R. in In re Beryl 9. P.D. at p. 141).

For the above reasons I am decidedly of opinion that assessors do not form members of the Sessions Court and that, therefore, the Sessions

Court was not illegally constituted since the first assessor was allowed to resume his seat as assessor. If assessors are members of the Court, and

the first assessor acted as a member of the Court after his return though he ceased to be an assessor in the case when once he departed on the 5th

September and the case proceeded during his absence, it may be that the finding and sentence cannot be regarded as passed by a Court of

competent jurisdiction and the defect could not be cured u/s 537. In the course of argument, it was put to Mr. Adam, Counsel for the appellant in

No. 875, whether the finding and the sentence will have to be quashed if the judge had, at the conclusion of the trial, discovered his mistake in

having permitted the first assessor to resume his seat as assessor and therefore refrained from inviting his opinion but invited the opinion of the other

assessor only and took it into consideration. But for obvious reasons, the learned Counsel did not venture to give a direct answer. The argument

that assessors form members of the Court would carry weight, if, the question had arisen under Act VII of 1843 or under the Criminal Procedure

Code of 1861; at any rate such argument would have been very plausible u/s 32 of the said Act and u/s 324 of that Code which ran as follows: ""In

a trial before the Court of Session not by jury the trial shall be conducted with the aid of two or more assessors as members of the Court.

The phrase ""as members of the Court"" disappeared in the corresponding Section 232 of Act X. of 1872 and has not been re-introduced either

in the Code of 1882 or in that of 1898.

Though assessors do not form members of the Court, yet inasmuch as it is mandatory that the Court should be aided till the conclusion of the

trial by at least one assessor attending the trial throughout and giving his opinion, can it be maintained that the second assessor cannot, under the

circumstances, be legally regarded as the remaining assessor who validly attended the trial subsequent to the return of the first assessor?

This question was not raised or argued. But to my mind that was the only question that required consideration, and it was with reference to that

in particular that I have drawn attention to the various provisions of the Code relating to the constitution and the status of jurors and assessors. If

assessors like jury act as a body, though when the body is reduced to one the remaining assessor may act alone, the argument that the second

assessor cannot be regarded as having legally continued to act as the remaining assessor after he was associated with the first assessor who ought

not to have been allowed to resume his seat as assessor and thus the two formed a body, would be conclusive. For in that caste, the opinion given

will be not his individual opinion, but the opinion of the body consisting of himself and the first assessor and the constitution of the body being

illegal, it will be just the same as if the trial was continued without the aid of any assessor. But, for the reasons already given, it is clear that

assessors do not form a body or tribunal, but each forms an entity in himself acting independently of his fellow assessor or assessors. The

status/therefore, of the remaining assessor and the validity of his opinion as such is in no way legally affected by the first assessor having been,

contrary to law, allowed to resume his seat as assessor and that probably in junta position to the former.

The second contention above referred to in support of the preliminary ground is chiefly relied upon by the learned pleader who appeared for

the appellant in Appeal No. 878. He argues that the Judge having invited the opinion of the first assessor as an. assessor and having presumably

taken the same into consideration in arriving at his conclusion in the case, his judgment is thereby vitiated and should therefore be set aside. He

further argues that he is entitled to the judgment of the Sessions Court and that this court as a court of reference or appeal cannot substitute its own

judgment for that of the Sessions Judge, after expunging from the record the opinion of the first assessor which was taken into consideration by the

Sessions Judge. If this argument were sound, its result will simply be to quash the conviction and sentence and direct the Sessions Judge to give a

fresh judgment upon the evidence on the record without taking into consideration [the opinion of the first assessor. One need hardly predict what

the result would be in an assessor''s case in which the Judge decides according to his own judgment and on his own responsibility, though he takes

into consideration the opinions of the assessors. It is not alleged that beyond giving his opinion when he was invited to do so at the conclusion of

the trial, the first assessor, after his return, took any part in the trial by putting any questions to the witnesses through the court, or otherwise took

any part in the trial beyond attending to it. Can it be argued that, though the second assessor validly continued as the remaining one assessor from

and after the 5th of September, his opinion is vitiated and therefore invalidated by the first assessor having been invited to express his opinion first?

If such a position can be maintained, it may then be said that it will be just the same as if the Judge decided the case without inviting the opinion of

assessors, in which case a new trial will have to be held. It may be that the first assessor happens to be a retired Sub-Magistrate and that the

second assessor is an ordinary trader devoid of ""forensic knowledge"". But that circumstance cannot lead to any presumption either of fact or of

law that the former is more competent to form an opinion upon the evidence in the case than the latter, or that the latter was influenced in giving his

opinion by the previously expressed opinion of the former, assuming, as I suppose it was the case, that such opinion was expressed in the presence

of the latter. Even if, in fact, he was so influenced, it will not invalidate his opinion, whatever may be the value to be attached to such opinion, any

more than the opinion of an assessor in any Sessions trial would be invalidated if in forming such opinion he was influenced by the eloquence or

personality of the Counsel for the accused in the case or the opinion of the Judge expressed now and then during the trial of the case. Under the

law the opinion of an assessor as I have already explained is his own individual opinion, and it must be accepted as such whatever considerations

may have weighed with him in forming his opinion, and no evidence will be admissible to establish that his opinion was influenced by the opinion of

a co-assessor or any other person, or by any other circumstance. If such a doctrine were accepted, where are we to stop? Suppose, in the present

case, both the assessors had attended the trial throughout, will the trial have to be set aside because the opinion of the second assessor which

echoed the opinion of the first assessor was invalidated because it was influenced by it, and the Judge in a trial with the aid of two assessors is to

have the benefit of the opinion of each assessor but that in reality ""he had the opinion of only one assessor, which opinion resulted in the concurrent

opinion of two assessors which must necessarily have carried more weight with the Judge than the single opinion of only one""?

The whole argument proceeds on a misapprehension of the functions of a Court of reference or appeal under the Indian law. It is not a mere

Court of error, but the court as a court of reference, appeal or revision is enjoined by Sections 537, Criminal Procedure Code, and 167 of the

Indian Evidence Act, not to reverse or alter the finding or sentence passed by a court of competent jurisdiction on account of any error, omission,

irregularity, improper admission or rejection of evidence, unless in its judgment such error, omission or irregularity has, in fact, occasioned a failure

of justice or unless independently of evidence objected to and admitted there was not sufficient evidence to justify the decision, or that if the

rejected evidence had been received, it ought to have varied the decision. The only question which has now to be considered is whether the error

or illegality committed by the Judge is one that is cured under either of the above sections, if this court is satisfied after rejecting the opinion of the

first assessor that the conviction is right and that there has been, in fact, no failure of justice and that the accused have in no way been prejudiced in

their defence by the first assessor having been allowed to resume his seat. Section 167 of the Evidence Act does not directly apply to the case,

because it applies only to improper admission or rejection of evidence, and technically the opinion of an assessor, which the Judge is to take into

Consideration in arriving at his conclusion, cannot be regarded as evidence any more than the confession of a co-accused affecting himself and

others jointly tried with him for the same offence, which. confession u/s 8]0 of the Evidence Act the Court may take into consideration against such

others, can be regarded technically as evidence Queen Empress v. Khandia Bin Pandu ILR 15 B. 66.

The case, therefore, has to be dealt with u/s 537 as an error or irregularity committed by the Judge in his proceedings during trial in that he

invited and took into consideration the opinion of the first assessor as an assessor when in fact and law he had forfeited his status as assessor when

he departed on leave and the further trial was not adjourned until his return. In determining whether such error or irregularity has in fact occasioned

a failure of justice, this Court as a Court of reference or appeal will be guided by the principle laid down by Section 167 of the Evidence Act in the

analogous case of improper admission of evidence. Such is the course which is adopted when the Court below convicts a person upon the

evidence on record taken along with the supposed confession of a co-prisoner if this Court considers that the so-called confession is no confession

at all within the meaning of Section 30, or that for some other reason it ought not to have been taken into consideration by the Judge This Court

does not and ought not to quash the conviction simply on that ground and order a new trial or direct the Sessions Judge to pass a fresh judgment

after dismissing from his consideration such supposed confession. Put this Court takes and ought to take the responsibility of deciding whether

independently of and apart from such confession the conviction ought to be upheld or set aside. Such confession not being technically evidence

against the co-accused, the case is not dealt with directly u/s 167 of the Evidence Act, but has to be dealt with as an error or irregularity within the

meaning of Section 537 of the Code of Criminal Procedure. But in determining whether the error or irregularity is cured under that section, the

court is guided by the principle laid down by Section 167 of the Evidence Act and I am at a loss to understand how it can be maintained that even

if the finding and sentence appealed against wore passed by a court of competent jurisdiction, yet it cannot be cured u/s 537 though this court

might come to the conclusion that the prisoners were put prejudiced in their defence by the irregularity complained of and that the conviction was

right upon the evidence on record after expunging the opinion of the first assessor. It is argued that the opinion of an assessor is a judicial opinion

and is not on the same footing as the opinion evidence of expert witnesses or on the same footing as the confession of a co-accused and therefore

Section 537, Criminal Procedure Code, cannot be applied to the case. No doubt an assessor like a juryman is a public servant, vide Section 21,

Clause (5), Indian Penal Code, and like a juryman he is expected to form and give his opinion on the evidence given at the trial and not to act upon

his personal knowledge of any relevant facts of the case without giving evidence of the same as a witness in the case (vide Section 294, Criminal

Procedure Code) and he may also like the jury be allowed to put questions through the court to witnesses under examination (vide Section 166 of

the Evidence Act). But the opinion of an assessor is certainly not a judicial opinion in any sense, though one may not be so hypercritical as to

object to its being characterised or referred to as quasi-judicial. But in my opinion, assessors are analogous to expert witnesses and in principle the

opinion of an assessor is substantially on the same footing as the, opinion evidence of expert witnesses. A brief retrospect of Indian legislation in

regard to trial of criminal cases with the aid of assessors would clearly show that such is the correct view, and it is also in conformity with the

institution of assessors in England in civil cases, especially in admiralty, ecclesiastical, patent and similar cases (vide Vol I of Encyclopaedia of

Laws of England, p 348). The earliest Indian legislation which authorised European functionaries presiding in Courts of Session to constitute two or

more respectable natives to assist them as assessors ""with a view to the advantages derivable from their observations particularly in the examination

of witnesses"" is Regulation VI of 1832 which was applicable only to Bengal. Act VII of 1843 extended that system to the Presidency of Madras,

and it was provided by Section 32 of that Act that Sessions Judges may in the trial of criminal cases avail themselves of the assistance of

respectable natives or other persons by constituting two or more such persons assessors or members of the court ""with a view to the advantages

derivable from their observations, particularly in examination of witnesses"". It was further provided that the opinion of each of the assessors shall be

given separately and discussed and if so desired, recorded in writing. I may also observe that, under that Act, the opinion of assessors had a

potentiality which it has ceased to have since the enactment of the Code of 1861. Thus it will be seen that provision was made by the Legislature

for Europeans administering justice in a foreign land and therefore deficient in their knowledge of the customs and habits of the parties and

witnesses appearing before them and also deficient in judging of their demeanour in the witness-box, having the benefit of the opinion of two or

more respectable natives of the land as assessors possessing such knowledge and judgment. Such being the principle underlying the institution of

assessors in India, which is the same as that in England in the class of cases already referred to, the opinion of an assessor given upon the whole

case tried before a Court of Session or any portion of such case is in principle on the same footing as the opinion evidence of a person specially

skilled in foreign law, science or Article

On the ground, therefore, that assessors are not members of the Court of Session, that the trial in this case validly commenced with the aid of

two assessors, that one of the assessors attended the trial throughout till its termination, that his status as an assessor has not been affected and his

opinion recorded by the Judge at the conclusion of the trial has not been invalidated by the action of the Judge in allowing the first assessor to

resume his seat as an assessor and inviting his opinion as one of the assessors at the conclusion of the trial, but that such action on the part of the

Sessions Judge is only an error or irregularity in a proceeding during the trial, which, if it has not, in fact, prejudiced the accused, could be cured u/s

537 of the Code of Criminal Procedure, I would overrule the preliminary objection and proceed to hear the case on the merits and affirm or set

aside the conviction, according as, in the opinion of this court, the evidence in the case without taking into consideration the opinion of the first

assessor does or does not warrant the conviction of the prisoners.

Benson, J.

I do not think that there is any validity in the preliminary objection.

The law does not require that a trial should be held with the aid of two assessors throughout. It requires that a trial shall be commenced with

the aid of two assessors, but it makes a special provision (Section 285, Criminal Procedure Code) for the unavoidable absence of one of the

assessors after the trial has commenced. In such case the law allows the trial to proceed and to be completed with the aid of one assessor only. It

is only if both assessors are unavoidably absent that the proceedings are to be stayed and a new trial, with the aid of fresh assessors, held. In the

present case one assessor was present throughout, and if the second assessor had not been allowed to return after absenting himself for a time,

there could be no question as to the validity of the trial. The law, it is true, does not contemplate that an assessor, having once absented himself,

should return and take part in the proceeding at a later-stage, and the Sessions Judge ought not to have allowed him to do so in this case. His

having done so was, no doubt, an irregularity, but the law expressly provides (Section 537, Criminal Procedure Code) that an irregularity in the

proceedings is no ground for setting aside a finding or sentence ""unless the irregularity has, in fact, occasioned a failure of justice."" The onus is on

the appellant to show that there has, in fact, been a failure of justice owing to the irregularity. This has not been shown in the present case. In my

opinion, therefore, the preliminary objection has no validity and should be overruled.

Davies, J.

As regards the preliminary objection that the convictions of the several appellants are bad in law inasmuch as the case was not tried by a

competent tribunal, the following are the facts:--The trial began on the 23rd August 1900 with the aid of two assessors as was right and was

regularly continued with the aid of the two assessors from day to day until the 5th of September. On the afternoon of that day and for the two

following days, the 6th and 7th September, the first assessor was allowed to absent himself an account of the illness and death of his mother while

the trial proceeded with the aid of the one remaining assessor. The Judge did not dispense ""with the further services of the first assessor as he might

have done u/s 285(1), Code of Criminal Procedure, and as he ought to have done if he could not adjourn the hearing, for, on the assessor''s return

to the Court on the 1,0th of September, which was the next date of hearing after the 7th, the Judge reinstated him as first assessor, and the

deposit-ions of the prosecution witnesses Nos. 47 to 62 which had been taken during his absence for the 2� days were then ""shown to, and

road by, him."" The trial went on with the two assessors until the 14th September, but on the following 3 or 4 days (the Judge in his report is not

very precise as to the dates) the first assessor was again allowed to absent himself every day up to 1 P.M. in order to perform his mother''s funeral

ceremonies, and the trial proceeded during his absence, as before, with only the remaining assessor, but ""he read the depositions recorded during

his absence before he resumed his seat in the afternoons''''. The depositions taken on these occasions were these of defence witnesses. Prom the

19th September till the 29th idem, when the examination of witnesses was concluded, and up to the 15th October, when the trial was closed, both

assessors sat together and at the end of the trial, the opinion of each was taken and duly recorded.

It is thus clear that the trial purports to have been conducted with the aid of two assessors, and it is so made to appear on the face of the

Judge''s record. Neither in his Judgment not elsewhere is there anything to indicate that the two assessors had not sat together throughout the trial.

Now my learned colleagues are of opinion that it must be considered that the trial on and after the 5th September was held with the aid of only

one assessor which was permissible u/s 285(1), Code of Criminal Procedure, and that the resumed sittings of the first assessor and his taking part

in the proceedings after his absence from the 5th to 7th September should be treated as an irregularity not occasioning a failure of justice. I am

unable to accept this view. In the first place the Judge did not as a matter of fact act u/s 285(1) nor does he profess to have done so, and in the

second place the opinion"" of the first assessor finding the appellants guilty must have done them positive harm. The first assessor happens to be a

retired Sub-Magistrate versed in criminal affairs, and it is highly probable that his opinion had great effect on the mind of the second assessor, who

is an ordinary trader devoid of forensic knowledge. Had the second assessor been left to give his own opinion without hearing the first assessor''s

opinion he might have given one different from what he did. In any case, the taking of the first asssesor''s opinion resulted in the concurrent opinion

of two assessors which must necessarily have carried more weight with the Judge than the single opinion of one. The opinion of an assessor is given

in the exercise of a judicial function imposed on him by law, and the Judge is bound to take it into consideration. He cannot dispense with it.

Considering the status of the first assessor the Judge was doubtless influenced by his opinion in coming to his own conclusions on the many

doubtful points in the case, which he has himself set out in his Judgment, but he had no right to ask for or take that opinion, and by having it his

judgment was vitiated. I can see no analogy between assessors in civil cases in England and the assessors we have in criminal cases in India. A

Court consisting of a Judge and two or more assessors by which every person must be tried before a Court of Session when he is not tried by

jury, appears to me a compromise between a trial by Judge and jury, and by a single Judge. It is a constitutional privilege, the benefit of which is

not confined to the subject, for in on appeal by a person convicted in an assessors'' case, the Crown can as well rely on the opinion of the

assessors if it is in favor of a conviction as the prisoner can when their opinion is the other way.

I must therefore take it as the fact that this trial was a trial held with the aid of two assessors as the law requires (Section 268, Code of

Criminal Procedure). It began with two assessors, and it ended with the two same assessors and the depositions taken during the absence of the

first assessor were handed to him for perusal as a functionary who was taking part in the whole trial. The absence of the first assessor extended in

all to 4 or 4� days upon which the evidence of witnesses both for the prosecution and for the defence was being taken out of a total of 30 days

occupied in their examination. So that, there was a lawfully"" ""constituted Court for 26 days while for 4 days, there was not. The question then is

whether if in a trial held by a Judge with the aid of two assessors one of the assessors is absent for a considerable portion of the time during which

the most important part of the trial, viz., the examination of witnesses, is proceeding, the Court ceases to be a Court of competent jurisdiction. It

seems to me that there can be no doubt that in such circumstances, the trial is rendered null and void, for Section 295, Code of Criminal

Procedure, lays down the rule that if a trial is adjourned, as this was, from day to day,"" the jury or assessors shall attend at the adjourned sitting

and at every subsequent sitting until the conclusion of the trial."" It follows that, in my opinion, the conviction of the appellants must be set aside and

a re-trial ordered.

On the merits

Davits and Benson, JJ.

(In Referred Trial No. 61 and connected Criminal Appeals Nos. 874 to 878 and 1028 of 1900).--The preliminary objection being overruled,

we now turn to the merits of the case.

The first eight accused, Kona Tirumal Reddi, Pocham Tirumal Reddi, Madargadu, Imamgadu, Kavadi Hussen, Mushkingadu, Penchikala

Pedda Narayana, and Poreddi Subbayya, have been convicted of the murder of Bathini Ranga Reddi, a B.A. and B.L., and 1st grade pleader in

the District of Bellary. The ninth accused Kona Timma Reddi is a rival pleader of the 2nd grade in the same district and a brother of the first

accused. He has been convicted of abetting the murder. All have been sentenced to death except the third and sixth accused, who have been

sentenced to transportation for life. They appeal against their conviction. There was another count charging the 9th accused with another act of

abetment together with the 1st and 2nd accused, but they were all acquitted on this count. Against this acquittal the Public Prosecutor appeals on

behalf of Government. The facts of the actual murder, according to the evidence for the prosecution, are very briefly, as follows:--On the 11th June

1900 the deceased pleader, B. Ranga Reddi, was travelling in his cart from Rayalcheruvu Railway Station, which he left at 10 A. M., to his

father''s house in Chimalavagupalli, 7 miles off, accompanied by his gumastah Narain Reddi (17th prosecution witness) and by two clients (18th

and 19th. prosecution witnesses) belonging to a distant village named Rayampalli, the cart being driven by bandyman Hanumantu (20th prosecution

witness). On the way the two clients got down to drink at a stream and then followed at a little distance behind the cart. When the cart got to the

dry bed of a stream called Rallavagu or Vanka, the time then being about 11-30 A.M., the first eight accused and another man, named Subbi

Reddi, met the bandy, threw stones at it and stopped it, the first accused firing his revolver at the bandy but without effect. Ranga Reddi fired a

shot in return from a revolver which Narain Reddi had brought with him from Ohimalavagupalli but also without effect. Two of the accused (5th

and 6th) then gave the bandyman a couple of blows with sticks on the leg and knocked him down, and another (7th accused) cut the rope which

fastened the bullocks to the pole. Narain Reddi, the gumastah, jumped down from the cart and tried to run away but was pursued and stopped by

the 5th and 8th accused who then turned back and stopped the two Rayampalli men (who had run up on seeing the disturbance) and threatened to

kill them if they came farther. The 2nd, 4th and 7th accused meantime dragged Ranga Reddi out of the cart, and the 2nd accused and Subbi Reddi

cut him with their axes, the first accused finally cutting his throat from ear to ear. When going away the first accused took with him the revolver

which the deceased had fired. the 3rd accused was present armed with a stick, but is not said to have taken any active part in the murder. Two

ryots (Rangayya and Pedda Appayya, 21st and 22nd prosecution witnesses) who were in the fields half a mile or so from the spot, hearing the

revolver shots, ran, up to the scene of offence in time to see the murderers going away. They recognized the 1st and 2nd accused and Subbi Reddi

whom they previously knew and spoke to Narain Reddi about the murder. This is the evidence for the prosecution, and the question is whether it is

to be believed or not.

The defence is that each and all of the accused were elsewhere at the time of the murder and knew nothing as to how, or by whom, it was

committed.

The accused contend that they were falsely accused because the real murderers were not Known, and they were pitched upon owing to

enmity that existed between the deceased on the one hand and the first accused and his brother, the ninth accused, on the other hand; that the 2nd

accused and Subbi Reddi were added as they are brothers-in-law of 1st accused, and the 3rd, 4th and 5th accused as they are his horsekeepers

or servants, and the 6th, 7th and 8th accused as they are connected with Subbi Reddi. The enmity between the deceased and 1st and 9th accused

was admittedly of the bitterest character and had become Very acute just before the murder. The prosecution points to it as the motive which led

to the murder. All the circumstances show that the murder was not by dacoits for the sake of robbery but was owing to private enmity. The Kona

and Battini families, to which the 1st accused and the deceased respectively belong, are two of the most powerful families in that part of the

country. The deceased''s father Chenna Reddi pays Rs. 1,600 for his patta lands, while the 1st accused, Kona Tirumal Reddi, has patta lands

assessed at over Rs. 1,000 per annum. He lives in Tirunampalli, about two miles north of the scene of offence. The 2nd accused Pocham Reddi is

Tirumal Reddi''s brother-in-law and lives in Tippareddipalli close to Tirunampalli and about 1� miles from the scene of offence. He is also a

wealthy and powerful man. The Subbi Reddi, who has been separately tried, is another brother-in-law and a well-to-do man. The deceased''s

gumastah and the bandyman, who both belong to the neighbouring village of Chimalavagupalli deceased''s father''s village, knew these three

accused well before the murder. The gumastah had taken a prominent part in a criminal case for false coining brought against the 1st accused some

time previously on information given by the deceased. It will be observed that the case for the prosecution is that these well-to-do men, 1st

accused and his two brothers-in-law, themselves took the most prominent part in the murder, which was committed in broad daylight and in the

presence of two men, the handyman and the gumastah, who knew them previously and would be certain to identify them, and yet made no attempt

to kill either of these witnesses though they had both in their power for some time and had half a dozen hired assassins with them, so that their

murder would be a perfectly easy matter. The gumastah received no injury of any sort, and the handyman received only a couple of blows with

stick on the foot.

This story is, on the face of it, so improbable as to be almost incredible unless it is corroborated. The prosecution has evidently felt this

difficulty and has endeavoured to corroborate it in various ways.

In support of the truth of story told by the alleged eyewitnesses, the prosecution points to the fact that they gave substantially the same account

at the inquest which was held in the presence of the Sub-Magistrate about 9 P.M., on the day of the murder. The inquest report (Exhibit D) shows

that the gumastah and handyman then named the 1st and 2nd accused and Subbi Reddi as the actual murderers and described minutely the part

each took. They also identified the 3rd accused, Madargadu, who had been arrested on suspicion the same afternoon and had made a statement

involving the other accused and Subbi Reddi. They also said that they could identify the other five murderers. The Rayampalli witnesses, of course,

did not know any of the accused previously, as they were strangers in that part of the country, but they identified Madargadu then in custody and

said they could identify the others if they saw them.

The prosecution further shows that the 1st accused and his brothers-in-law were named as the murderers early the same afternoon in the

report (Exhibit 2) sent by order of Chenna Reddi, the father of the deceased, to the Police Station House Officer of Yadiki, and in the telegram

(Exhibit F (1)) sent by Chenna Reddi to the District Magistrate. It is however unfortunate that there J was great delay in the receipt of both these

documents. Yadiki is only four miles from Chimalavagupalli, and, according to Chenna Reddi and other prosecution evidence, the report (Exhibit

2) was sent off at 1 P.M. It ought therefore to have been received about 2 P.M., and the Police might well have been expected at the scene of

offence by 3 o''clock or soon after. As a fact no policeman arrived until after 7 P.M., and the explanation for this long delay can hardly be called

satisfactory. It is to be noted that though the bandyman, according to his evidence at the trial, knew the 5th accused previously by name, the name

is not mentioned in this report to the Police. The 4th accused was also a man of Yadiki and was known, apparently, as first accused''s

horsekeeper, theugh not by name, to the bandyman. Yet no reference is made to him in the report. It therefore seems improbable that the

bandyman had at that time stated that either of these men were among the murderers. Then the telegram (Exhibit F1) to the District Magistrate on

the face of it purports to have been received for despatch at Pennar Railway Station at 3 P.M., and it was not actually despatched until. 3-40 P.M.

The Assistant Station Master of Pennar, who was examined at the trial, and the Station Master and Venkataranga Reddi, a son of Chenna Reddi,

who were both examined by us at the hearing of the appeals, explain that the telegram was really sent to the Railway Station at the same time with

two others addressed to Kesava Pillai and Basi Reddi, which two wore certainly despatched at 1-25 P.M. These are addressed to a vakil and a

relative, and in them the fact of the murder alone is mentioned. The names of the murderers are not mentioned. In the telegram to the District

Magistrate, however, the names of the first accused and of his two brothers-in-law are given. It runs as follows:--""My son C. Ranga Reddi,

pleader, Gooty, was murdered to-day by Kona Tirumal Reddi, P. Thirumal Reddi, Subbi Reddi and five others. You should enquire the case

yourself."" The witnesses explain that the three messages were written on one piece of paper and were brought to the station by Balaranga Reddi, a

son of Chenna Reddi, but that he had only Rs. 5 with him whilst the three messages together cost Rs. 5-8-0 and that therefore the message to the

District Magistrate was detained until Balaranga Reddi returned home, a distance of three miles, and sent the additional eight annas. Everything

connected with the sending of this telegram is shrouded in doubt and uncertainty, and we are by no means satisfied that we have been told the truth

in regard to it. The paper on which the three telegrams were written has not been produced. In fact at the trial no reference was made to the three

being written on one piece of paper. For aught that there appeared, there were three separate telegrams. The sender of the telegrams appeared

from the evidence at the trial to be Chenna Reddi himself, but it was only at the appeal that we were told that the writer of the telegrams was

Venkataranga Reddi, and that he was in Court and might be examined. This young man is aged 24 years. He is a B.A., and has completed his Law

course. He says he was in his father''s house when Narain Reddi and the other eye-witnesses brought news of the murder, and that he

subsequently wrote and sent the telegrams. From his age and education he might certainly have been expected to take a prominent part in the

inquest and other proceedings, yet not once in the whole record does his name appear. Two other sons Balaranga Reddi and Krishna Reddi, who

do not know English, are mentioned. The latter went with his father to see the corpse, and he signed the incomplete inquest report (Exhibit L), as

also did Appi Reddi, the brother of Chenna Reddi. It is strange that the young lawyer, if really present, is nowhere mentioned in the record of the

trial as having taken any part in the inquest or other proceedings or in writing reports to the Village Magistrate or Police. Again, the story that the

telegram to the District Magistrate was delayed for a couple of hours for the sake of eight annas is highly improbable. The Station Master was a

friend of Chenna Reddi''s family, and Chenna Reddi''s own son had brought the telegram. The early despatch of the message was manifestly of

importance. Four words could have been struck out without altering the sense, or if the Station Master was unwilling to advise the son to take that

responsibility, it still seems hardly credible that he, as a friend, would not have lent the money and sent off the telegram. The prosecution relies on

the counterfoil receipts (Exhibit G) kept by the Station Master to show that while he was writing the receipt (No. 76) for the message to the

District Magistrate at Anantapur, the deficiency was discovered and the receipt was then changed into one for Kesava Pillai''s message addressed

to Gooty. The position of the words ""Gooty"" and ""Anantapur"" support this view, but it may be that as Basi Reddi''s message was for Anantapur

that station was also first written by mistake for Gooty in Kesava Pillai''s message. The receipt in fact does not take us further than the Station

Master''s oral evidence, while the alterations in the figures in the receipt book are highly suspicious as indicating fabrication. Chenna Reddi himself

has stated very fully that he sent the telegram, and if his evidence is correct it is difficult to see how it could have reached Pennar Station as early as

1-25 P.M. The evidence shows that the murder must have been committed at about 11-80 A.M. The place was one mile and five furlongs from

ChimalavagupaHi where Chenna Reddi lives. After the murder the gumastah says he ran to ChimalavagupaHi and told Chenna Reddi and others

about the murder. This must have been just before noon, as Chenna Reddi says it was. Chenna Reddi says he at once started for the scene of the

murder, but on reaching the outskirts of the village fell down (from faintness and shock) and returned home, sending others on to the corpse. One

of the witnesses says Chenna Reddi got to the karnam''s field half way to the scene of the murder before he turned back. If so, it must have been

about 12-30 when he got back to his house. He rested there a few minutes and told his people to send word to the Magistrates who were at Jutur

about five miles away to the south.

Chenna Reddi goes on to say that after the messenger was despatched to the Magistrates at Jutur, he got into a cart and went to see the

corpse, and after remaining there a short time returned home and then told his people to send a report to the police and a telegram to the District

Magistrate and to Kesava Pillai and Basi Reddi. The journey there and back would be 3� miles, and he must have remained a few minutes with

the corpse. The visit could not have occupied less than an hour in all; so it must have been about 2 P. M. when these telegrams and the report

were sent from ChimalavagupaHi, and as ChimalavagupaHi is about three miles from Pennar it must have been much nearer 3 P.M. than 1-25

P.M. when the telegram reached Pennar Railway Station, thus agreeing closely with the time when, as we know, the telegram to the District

Magistrate was, on the face of it, received for despatch. The only way out of the difficulty is to suppose that Chenna Reddi has made a mistake

and that the telegrams were really sent after Chenna Reddi''s abortive attempt to go to the corpse instead of after his actual visit to it. Chenna

Reddi is, no doubt, an elderly man and was suffering from a terrible shock at the time and may therefore well be mistaken as to the hour of the day

when he did any particular act, but it is less easy to suppose that he is mistaken as to the sequence of events. The evidence of other witnesses does

not show that he has stated the sequence of events incorrectly. If he has stated them correctly, it is hardly within the range of physical possibility

that the telegrams could have reached the station at 1-25. The difficulty disappears if it is supposed that the telegrams to Kesava Pillai and Basi

Reddi were sent before Chenna Reddi visited the corpse, and that to the District Magistrate after the visit, but this supposition is opposed to the

oral evidence. It is of primary importance to the prosecution to show that the report to the Police and the telegram to the District Magistrate

naming the 1st accused and his brothers-in-law were despatched at so early a stage as to render the defence of concoction highly improbable. If,

on the other hand, it is shown that, before these exhibits were written, the names of the murderers were not known to persons who ought to have

known them if the prosecution evidence wore true, it goes far to show that the prosecution evidence and the statements in these exhibits as to the

names of the murderers are untrue. This brings us to a portion of evidence which has not received the consideration due to it in the Sessions Court

and which seems to us to afford almost decisive proof that the evidence as to the identification of accused 1 and 2 and Subbi Reddi as the

murderers is untrue. It will be remembered that Chenna Reddi in his evidence said that after he returned from his abortive attempt to go to the

corpse and before he started thither again in the cart he ""sent a man to Jutur to in form the Deputy Magistrate and the Yadiki Sub-Magistrate who

were halting there"". The messenger was Papodu (72nd prosecution witness), a relative of Chenna Reddi. He had been with many others to see the

corpse, so it must have been nearly 1 p.M. when he left Chimalavagupalli for Jutur. He reached Jutur at 2-20 p.M., and the Sub-Magistrate (5th

prosecution witness) recorded his statement (Exhibit 5) at 2-30 P.M. This statement was made at a time and under circumstances which afford a

strong guarantee of its truthfulness. In it the witness does not mention the names of any persons as the murderers, nor does he make any mention of

Narain Reddi, the gumastah. He merely told the Deputy Magistrate . (63rd prosecution witness) that ""some persons"" were the murderers ''?

witheut naming any one. Tie witness now says that he had heard a rumour that the murderers were the 1st accused and his men, '' but there is not a

trace of this in his statement to the Sub-Magistrate. It must be observed that this witness Papodu is not a common cooly. He is a relative of

Chenna Reddi and of the deceased. He was therefore strongly interested in the matter and he went ""with many other persons"" of the village to the

scene of offence. He is evidently an intelligent and observant witness and was able to describe the various wounds on the corpse accurately to the

Magistrate. He had noticed the bullock bandy and what had become of the bullocks. He had noticed Hanumantu, the handyman, limping and the

wound on his heel. He had noticed the two strangers who wer,3 said to have come with the deceased in the bandy. It is true that he says he did

not speak to them, or to the bandyman, but it is not suggested for the prosecution that Narain Reddi or Hanumantu had any object in concealing

the names of the murderers for a time, or did, in fact, do so. If the murder occurred as the alleged eye-witnesses say, and if three of the murderers

were well known to the gumastah and bandyman and were identified by them at the time, the natural thing for them to do would be to go as soon

as possible to the village and tell every one about it, and there is no suggestion that they did otherwise. Chenna Keddi was the great man of the

village, and if Narain Keddi had come proclaiming that his master Chenna Reddi''s son had been just murdered by his old enemies and had named

them, every soul in the village would have known the fact within ten minutes. The names of the murderers would have passed from mouth to mouth

like wild-fire. The witness did not start for Jutur until about an hour after the news of the murder had come, and he had spent the hour in visiting the

corpse ""with many persons of the village"" and returning to Chenna Reddi at Chimalavagupalli. Chenna Reddi himself sent him to inform the

Magistrates. Is it possible in these circumstances that the witness would not have known who the alleged murderers were or would have failed to

inform the Deputy Magistrate and the Sub-Magistrate when questioned minutely as to all he knew of the matter? The fact that merely a verbal

message was sent strongly suggests that only the fact of the murder, not the names of the murderers, was then known, and the suggestion becomes

almost a certainty when we find that the messenger knew nothing as to the names of the murderers, notwithstanding that, in the circumstances, he

must have known them if they were really then known to the eye-witnesses. The inference to he drawn from Exhibit 5 is that the names of the

murderers were not known in the village when the messenger left it, i. e., at about 1 P.M. ""It also affords ground for an almost equally strong

inference that Narain Reddi was not with the bandy at the time of the murder--a conclusion at which the Sessions Judge also arrived on other

ground which are entitled to considerable weight. He was an important person as being the gumastah of the deceased. If he had been an eye-

witness of the murder and had come into the village with the tidings of it, it is hardly possible that Papodu would not have known the fact and

stated it to the Magistrate when he told him that Hanumantu was driving the cart at the time and that the deceased was also accompanied in the

bandy by ""two strangers"" whose names he had not learned. The inference to be drawn from Exhibit 5, that the names of the murderers were not

known at 1 o''clock on the day of the murder, is strongly supported by Exhibits Y and Y1 which are the reports sent by the Village Magistrate of

Vemulapad (49th prosecution witness) to the Station House Officer of Yadiki and the Sub-Magistrate of Jutur. They state that the writer heard

that Ranga Reddi had been murdered at 11 o''clock that day at the Rallavagu and that on going there he found the deceased with his throat cut.

These reports, the witness says, were written at about 1-30 P.M., but nothing is stated in them as to who the murderers were The witness at the

trial endeavoured to account for this by saying that there were no persons at the corpse when he went there except three strange weavers who

knew nothing about the deceased or the murder. This evidence is manifestly false. The rumour of the murder reached the witness at Timmapuram,

a couple of miles from the scone of offence, at 1 P.M., and must have come from Chimalavagupalli, whither the eye-witnesses went after the

murder. The witness reached the scene of the offence at, 1-30, and we know from Papodu''s evidence already dwelt on (Exhibit 5) that he

(Papodu) had gone there ""with many persons"" of Chimalavagupalli and must have arrived there at or before 12-30. It is wholly incredible that a

crowd having once come from the deceased''s village, would have entirely dispersed and left the body alone and unguarded. Later the same

afternoon the evidence shows that there were hundreds of persons gathered at the scene of offence, and it is certain that many persous of

Chimalavagupalli must have been there from the time that Papodu went there. These persons must have known that 1st and 2nd accused and

Subbi Reddi were alleged to be the murderers if, as the eye-witnesses say, they were at once named by them at Chimalavagupalli and they must

have told the Village Magistrate when he came there. The inference from Exhibits Y, Y1 is the same as from Exhibit 5, viz., that'' up to 1 or 1-30

P.M. the names of the murderers had not been mentioned by the eye-witnesses. The fact that the Village Magistrate by false evidence endeavours

to minimise the adverse inference may be due to his being a connection by marriage of the deceased and Chenna Reddi.

With such strong grounds for disbelieving the alleged eyewitnesses of the murder on the primary question as to the presence of the 1st and 2nd

accused and Subbi Reddi, it is not necessary to go at much length into the other evidence adduced by the prosecution to corroborate them. The

so-called confession of Madargadu (3rd accused) is no confession at all. He is most careful to say that he was an innocent spectator of the murder,

taken to the spot without any knowledge that an offence was to be committed, and that he took no part whatever in it. It cannot, therefore, be

considered as against the other accused u/s 30 of the Evidence Act. Nor can it even be taken against himself as an admission that he was present,

for it is plain that he was beaten and threatened by the men who arrested him on suspicion before he made it, and it is not at all clear that the effect

of this had been wholly removed before he made his statement to the Magistrate (Exhibit K). Moreover, intrinsically it is not consistent with the

evidence for the prosecution in that it omits several important incidents that would naturally have been mentioned if they had occurred and if his

statements were true, It does not refer to the hiding of the murderers in the well near the scene of offence, the Rayampalli men coming up behind,

the two ryots coming up just as the murderers were leaving the place, and, (most important of all) the assembly of the accused 3 to 8 in the house

of the 2nd accused at Tippareddipallli after the murder for the purpose of washing the axes and blood-stained clothes. If it it true he could hardly

have failed to mention this last incident in answer to the question ""where did you all go after that?"" that is, after the murder was completed: His

answer is ""I ran away to Yadiki. The others ran towards Tirunampalli."" The incident depends for its proof on the evidence of a single witness Haji

Bi (23rd prosecution witness) who is a Mussalman sweeper girl aged 12. Though the Sessions Judge believed her, the whole story seems to us

improbable. It and the evidence of the four ""well witnesses"" who speak to the hiding of the murderers in the well before the murder,"" and the

evidence of the two ryots who came up as the murderers were going away, are of the kind so often produced in important cases ""to complete the

chain of evidence"" as it is called. We can attach no importance to such evidence, where, as in this case, we are unable to trust the evidence of the

main witnesses for the prosecution. Then there is the confession of Mushkingadu, the 6th accused. This