JUDGMENT Thomas, C.J. and Walford, J. - These are two appeals by Tawabar Ali Khan against his conviction and renitence. He was charged u/s 379, Indian Penal Code, for having committed theft of a wallet and fountain pens of Captain (then Lieutenant) Hume in a moving train between Roorkee and Shahjahanpur, the wallet containing a cheque book and Rs. 300 in currency notes. Alternatively he was charged u/s 411, Indian Penal Code, for being in possession of stolen property, to wit the aforementioned cheque book, on the 7th day of October 1943 in Lucknow belonging to the said Captain Hume. He was further charged under rule 48 of the Defence of India Rules for wearing the uniform of a pilot officer in the Indian Air Force. 2. Tabawar Ali Khan bad claimed the privilege of being tried under the pro- visions of Chapter XXXIII of the Criminal Procedure Code on the ground that he was British Indian subject and the complainant Captain Hume was a European t British subject. The learned City Magistrate, who was in season of the case, after considering the claim, granted the application and commuted the case to the court j of session. The appellant was tried by the learned Sessions Judge of Lucknow with the aid of five jurors in respect of the j charges u/s 379, I.P.C, or ; alternatively u/s 411, I.P.C. The offence under rule 48 of the Defence of India Rules being triable by assessors under a notification of the Provincial Government, the jurors were invited to I give their opinion as if they were acting i] as assessors in relation to this charge. "The jury by a majority of three to two found the a reliant guilty of the offences p under the Indian Penal Code, but in their ' capacity as assessors by a majority of four to one gave the opinion that the appellant was not guilty of the offence punishable under rule 48, D. I R. The learned H Sessions Judge, accepting the verdict of guilty of the majority of the jurors, passed p a sentence of 18 months' rigorous imprisonment recorded in the alternative, being of the opinion that the accused before him could not be convicted and r. sentenced for a charge of stealing and possessing the i stolen property which was the subject-matter of the charge for stealing. He, however, rejected the opinion of the majority of the assessors and convicted the appellant under sub-rule 48, D.I.R., and inflicted a sentence of four years' rigorous imprisonment. The appellant has now come up in appeal against his conviction and sentence. As both the appeals arise out of one trial they have been considered together in this judgment. 3. The facts alleged in the case are that on the 10th of June, l943, Captain (then Lieutenant) Hume was traveling in a train known as "18 Down" and when his diving arrived at Roorkee three Indian gentlemen entered his compartment, which was a two-berth coupes. One of these men was a Major Ghosh of the Indian Army Medical Corps, who was going to Lucknow. Of the other two, one was dressed in the uniform of a pilot officer in the Indian Air Force. The other, though it (is not clear how he was dressed, it transpires that the individual who was dressed in a 'pilot' officers uniform described him as a cadet in the Indian Air Force and claimed him to be his brother. On entering into the compartment the individual dressed in a pilot officer's uniform engaged Captain Hume in conversation and gave his own name as Khan. It seems that Khan talked to Captain Hume for some considerable time and as the night advanced he offered the upper berth to Capt. Hume, the lower berth having been occupied by Major Ghosh. Captain Hume declined the offer and indicated his intention of sleeping in a chair which is often to be found in coupe compartments next to the sleeping i berths. The alleged pilot officer's companion, who we know now was Aziz Hasan 'Nawab P. W. 1 in the-, case occupied the upper berth. The 'pilot officer' remained below and Capt. Hume went to sleep in the chair. It appears that some time during the night Capt. Hume finding the heat excessive took off his bush shirt and placed it on the back of the chair which he had been occupying, and unfolding his bed-roll on the floor of the compartment went off to sleep. The 'pilot officer' and his companion detrained at (Shahjahanpur. On arrival of the train at Lucknow Capt. Hume discovered that his wallet and two fountain pens, which were in one of the pockets of his bush-shirt, were missing. The 'pilot officer' and his companion detrained at (Shahjahanpur. On arrival of the train at Lucknow Capt. Hume discovered that his wallet and two fountain pens, which were in one of the pockets of his bush-shirt, were missing. He mentioned this fact to Major Ghosh, who appeared to have shown some resentment, whereupon Capt. Hume informed two military policemen at the Lucknow railway station of his loss. These military policemen questioned Major Ghosh and examined his identity card. Major Ghosh satisfied them that he was a genuine officer in the Indian Army Medical Corps and was expected at the Military Hospital and, after Capt. Hume had made a report at the Army Head- quarters, a report was ultimately sent on by the Army authorities, and the Government Railway Police at Lucknow registered a case on 24th June, 1943. 4. It would appear that In cheque book belonging to Capt. Heme and which was on a branch of Lloyds Bank, Bttrbay. was used in Lucknow on the 7th of October, 1943 Five cheques were given to various shop-keepers in lieu of goods purchased aggregating a lilt It over Rs. 2000. These cheques were signed by one Raza Ullah Khan 'pilot Officer'. Exs. PI, P2, P3, P6 and P10 are the cheques in question. In Ex. PI after Raza Ullah Khan, 'Pilot Officer', is the endorsement "R. A. F., Officer's Pay Book No. 732". In Ex. P2 the endorsement is "Officer Pay Book I.A.F. No. 732" Ex. F3, apart from the signature 'Raza Ullah Khan' and 'Pilot Officer', does not contain any endorsement as in the previous two cheques. Ex. P6 is endorsement in the same way as Ex. 1 except that the number of the pay, book is .given as 'No. 05635', and the endorsement on Ex. P10 is identical with the endorsement on Ex. P6 except that the letters 'R, A. F.' are missing therein. All these cheques were dishonored. 5. It appears that a letter purporting to be signed by Aziz Hasan Nawab.. Rais Karanpur, Dehradun, was addressed to The Air Vice Marshal Colier, Army Headquarters, New Delhi. This document is Ex. P66 on the record. P6 except that the letters 'R, A. F.' are missing therein. All these cheques were dishonored. 5. It appears that a letter purporting to be signed by Aziz Hasan Nawab.. Rais Karanpur, Dehradun, was addressed to The Air Vice Marshal Colier, Army Headquarters, New Delhi. This document is Ex. P66 on the record. In this letter a com- plaint was made against Tahawar Ali Khan, son of Nasir Ali Khan, retired sub-inspector of police, Shahjahanpur, and inter alia alleged that he (Tahawar Ali Khan) had recently traveled in a 1st class compartment in lull uniform of a pilot officer without a ticket and took away a very costly Camera, a. wrist watch, a purse containing a sum of Rs. 300 and a cheque book of "Honerly Lloyd George Bank, Bombay": It further alleged that these articles belonged to "Lt. W. R. Hume, I.G.R.G." It further alleged that "He is continuously issuing forged cheques at Delhi to the shop-keepers in Chandani Chauk and Hotel Managers". This letter was in due course sent to the Criminal Investigation Department and Inspector Imam Uddin took up the investigation and ultimately prosecuted the present appellant on the charges mentioned above. 6. The prosecution have produced 21 witnesses, in support of their case. Of these, P. W. 1, Aziz Hasan Nawab, P. W. 2, Miss Bacon and P W. 3, Miss Florence Yaqut Ali, are the witnesses who establish the identity of the appellant Tahawar Ali Khan as the person who masqueraded in a pilot officer's uniform and prove his writing. P. W. 4, T. J. Griffith, and P. Ws 6 to 12 are police officers, whose; evidence is purely of a formal nature. P. W. 13 and P. W. 15 to P, W. 18 are the shop-keepers of Lucknow to whom the appellant had issued the cheques for the goods purchased, out of the cheque book belonging to Capt. Hume,. P. W, 6, Mr. M.P. Astbana, is the magistrate who supervised the identification proceedings in jail, and P. W. 14, Sabbir Ahmad, is a licensed dealer in firearms in Lucknow and with whom the appellant is paid to have stayed together with a woman whom he represented to be his aunt. Hume,. P. W, 6, Mr. M.P. Astbana, is the magistrate who supervised the identification proceedings in jail, and P. W. 14, Sabbir Ahmad, is a licensed dealer in firearms in Lucknow and with whom the appellant is paid to have stayed together with a woman whom he represented to be his aunt. P. W. 19, V.O.J. Hodgson, is the Government Examiner of Questioned Documents, and he has proved the various writings of the accused on the cheques in question and other papers P. W. 20, Sohan Lal, is a formal witness who has proved the hand-writing of Mr. P. H. F. Dodd, the City Magistrate, who had made certain endorsements on the deposition of Capt. Hume before him. 7. The appellant was arrested on 19th February, 1944, at Andheri near Bombay at Indian Air Force Signals School where he was working and was brought to Lucknow on the 29th February. He was put up for identification in jail on 4th April, 1944. It would appear that of the six witnesses, who were sent to identify him, only Capt Hume and P. W. 13, Ibrahim, of Taj Cloth House at Aminabad, Lucknow, were able to pick him out ns the individual who had traveled in the train between Roorkee and Shahjahanpur and the person who had issued the cheque Ex. P6 for a sum of Rs. 825 8-0, respectively. The other shop-keepers, namely P. W. 16, Mohemmad Mehdi of Kazim & Co., to whom cheque Ex. P3 was issued for a sum of Rs. 290; P. W. 16, Girraj Dharan, a partner in the firm of Gopal Das Babu Lal, to whom a cheque Ex. PI for a sum of Rs. 673 was given; P. W. 17, Ram Anugrah, of Swadeshi Cloth Deport, Aminabad Park, Lucknow, to whom Cheque Ex. PI for a sum of Rs. 74 1-0 was given; and P. W. 18, Jagannath Prasad Atal, to whom cheque Ex P10 for a sum of Rs. 288 was given, were not able to pick out the appellant at the identification parade. The witnesses, however, who had failed to pick out the appellant at the identification parade had no hesitation to swear to the identity of the appellant as the person who had made the purchases at their shops and had issued the defuse in question at the enquiry and trial. We shall, however, refer to this later. 8. The witnesses, however, who had failed to pick out the appellant at the identification parade had no hesitation to swear to the identity of the appellant as the person who had made the purchases at their shops and had issued the defuse in question at the enquiry and trial. We shall, however, refer to this later. 8. Captain Hume was examined by the learned City Magistrate on the 6th April, 1944, At that time it was assumed that the case was proceeding as a warrant case under Chapter XXI of the Criminal Procedure Code, On the 2nd May, 1944, an application was made on behalf of the appellant claiming the privilege to be tried under Chapter XXXIII of the Criminal Procedure Code in view of the fact that the complainant in the case was a European British subject. On 12th July, 1944, the learned City Magistrate granted the application, holding that the appellant was entitled to the claim he had made. Thereafter, the case having become triable by a Court of Session, the proceedings in the City Magistrate's Court were deemed to have been under Chapter XVIII, Cr. P.C. 9. The date fixed for the hearing of the evidence was the 25th July, 1944. If would appear that Capt. Hume was to proceed on active service and he approached the learned Magistrate informing him of the contingency that he might not be avail- able for further evidence. The learned Magistrate issued notice to the appellant and his counsel that Capt. Hume would be examined -on the 22nd July, 1944. On the 22nd of July, the appellant was present in Court in person together with his counsel. Capt. Hume was further examined, and the accused and his counsel were asked to cross-examine the witness if they so desired. The appellant's counsel declined to cross- examined on the ground that as he was engaged on daily fee by the appellant's father, who had returned to Shahjahanpur, and the date fixed was the 25th July, he was not properly instructed and therefore he could not cross-examine the witness. It would appear that the counsel implied that as he had not received his fee for the day he was not prepared for the cross-examination. The accused himself did not then ask for a short adjournment to instruct his counsel, nor did he put any questions himself to the witness. It would appear that the counsel implied that as he had not received his fee for the day he was not prepared for the cross-examination. The accused himself did not then ask for a short adjournment to instruct his counsel, nor did he put any questions himself to the witness. The learned Magistrate then made an endorsement on the deposition of Capt. Hume to the following effects Party was given a chance for cross-examination and was informed the day before. He did not wish to cross-examine. 10. On the 25th July an application was moved before the learned City Magistrate praying for recommending Capt. Hume for cross-examination by the accused, but the learned Magistrate passed an order thereon to the following effect: I have already passed orders about cross- examination of Capt. Hume which I consider quite adequate. However, there is quite a good chance now that Capt. Hume will be available for cross- examination in the sessions court, so this point does not arise. 11. Captain Hume was not summoned in the Court of the City Magistrate again. In the Court of session Capt. Hume was not available for examination as a witness inasmuch as he had gone no active service and (he prosecution was unable to discover his whereabouts. Evidence was led to that effect and the statement made by Capt. Hume in the court of the committing Migistrate was brought on the record u/s 33 of the Evidence Act, and read as evidence. It is marked as Ex. 60. 12. Captain Hume had stated in his deposition before the committing magistrate that in June, 1943 he was lieutenant and was traveling from Amritsar to Calcutta by train in a 1st class coupe and was alone in the compartment till he reached Roorkee. At Roorkee Indian officers got into the compartment : one was a Major, the other (the accused) a 'pilot officer' and the third whose rank he could not tell. The 'pilot officer' got into conversation with him and said that his name was Khan. The third person did not give his name, but the* 'pilot officer' said he was his brother and call him Aziz, The Major's name was Ghosh. At Lhaksar, at about 9 P. M., Capt. Hume dined and all his goods were intact. After dinner the accused .'pilot officer' suggested that he (Capt. Hume) should sleep on the upper berth Capt. The third person did not give his name, but the* 'pilot officer' said he was his brother and call him Aziz, The Major's name was Ghosh. At Lhaksar, at about 9 P. M., Capt. Hume dined and all his goods were intact. After dinner the accused .'pilot officer' suggested that he (Capt. Hume) should sleep on the upper berth Capt. Hume refused and said that he would sit on the chair. 13. The upper berth was then occupied by (he 'pilot Officer's' companion, namely Aziz, and he himself dozed in the chair for some time. As it was hot Capt. Hume took off his bushshirt and hung it on the back of the chair. In the upper left pocket there were two fountain pens and in the upper t right pocket there was a note-book with some money. In the lower left pock-t there was wallet containing money and a cheque book. The cheque book was on Lloyd Bank, Horn by Road, Bombay. At about 4 A. M. he g it up from the chair and lay on the floor on his bed-roll. At that time all the three officers were there and the 'pilot Officer's' head was towards the chair. In the course of conversation earlier the 'pilot Officer' had told the witness that the man whom he called 'Aziz was. A cadet in the Air Force.' At about 7 A M., the witness woke up and found i that the 'pilot officer' and 'Aziz' were not in the compartment, but The Major was still there. The witness Then took up his bush shirt and found from (he weight of it that something was missing. He then felt his pockets and found that the two left hand pockets were empty, and his two i pens, his identity card and the wallet containing the cheque book and the money were missing. He at once mentioned the loss of his property to Major Ghosh and told him that he would have to come to the police with him on reaching Lucknow. Major Ghosh then disclosed his identity and showed some resentment at the insinuation. He then, as indicated above, reported the matter to the military policeman at Lucknow Station, to the Railway Transport Officer and ultimately to the Army Headquarters. Capt. Hume further deposed to the cheques Exs. Pi, PI and P3 as being those from his cheque book. Major Ghosh then disclosed his identity and showed some resentment at the insinuation. He then, as indicated above, reported the matter to the military policeman at Lucknow Station, to the Railway Transport Officer and ultimately to the Army Headquarters. Capt. Hume further deposed to the cheques Exs. Pi, PI and P3 as being those from his cheque book. It appears ,that the other two cheques, namely, Exs, P6 and P10, were not available at the time when Capt. Hume was examined. They were later procured from the South East Asia Command where P. W. 18, Jagannath Prasad Atal, and the proprietor of Taj Cloth House at Aminabad, had sent them with complaints to the military authorities. Capt. Hume further deposed on oath that the 'person who had traveled with him in the compartment on the night of the loss of the property and who was wearing a pilot officer's uniform was the accused Tahawar Ali Khan, and he had also picked him out in jail. 14. The learned counsel for the appellant has attacked the evidence of Capt. Hume on two grounds. His first contention is that, his client not having had an opportunity of cross-examining the witness in the Court of the committing magistrate, it was inadmissible in evidence and could not be used u/s 33 of the Evidence Act. He contends that the case was is fixed in the ordinary course to be heard on the 25th of July, but it was suddenly taken up on the 22nd of July and consequently his client did not have sufficient time to instruct his counsel to cross-examine the witness. His second line of attack upon the evidence of Capt. Hume is that the witness was not able to identify his client outright at the identification parade in jail, but upon the accused being pointed out to the witness by the Court-inspector who was present at the time the witness picked out the accused. He contends that this identification is wholly inadequate, and in view of the suspicious circumstances under which the accused was picked out no weight should be attacked to the deposition of Captain Hume. 15. With regard to the first contention affecting the admissibility of Capt. Hume's deposition at the trial in the Court of session, we are of the opinion that the deposition has been properly admitted u/s 33 of the Evidence Act. 15. With regard to the first contention affecting the admissibility of Capt. Hume's deposition at the trial in the Court of session, we are of the opinion that the deposition has been properly admitted u/s 33 of the Evidence Act. What weight one may attach to the deposition of a witness who has not been cross-examined is another matter. Section 33 of the Evidence Act provides Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceedings, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the wit- ness is dead or cannot be found, or is (incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or evidence which under the circumstances of the case, the court considers unreasonable ; Provided that the proceeding was between the same parties or their representatives in interest ; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation A criminal trial or inquiry should be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. 16. It will be seen from the provisions of this section that for a statement to be relevant and admissible three conditions are necessary. Firstly that the witness whose statement is sought to be used in evidence is either dead or cannot be found, or is incapable of giving evidence, or is I kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense which in the opinion of the Court would be unreasonable; secondly, that the proceeding was between the same parties or their representatives in interest, and, thirdly, that the adverse party in the first proceeding had the right and opportunity to cross-examine. 17. With regard to the first condition, it has been admittedly fulfilled. 17. With regard to the first condition, it has been admittedly fulfilled. Captain Hume had proceeded on active service and the prosecution could not get into touch with him nor was it possible for the witness under these circumstances to come to Court and give evidence. This fact is satisfactorily proved and accepted by the Court below. There can also be no question with regard to the second condition, namely, the identity of the parties inasmuch as that the proceedings in :he Court of the committing magistrate were virtually part of the same proceeding as the trial in the Court of session. It now remains to be seen whether the third condition, namely, whether the accused had the right and opportunity of cross-examining Capt. Hume in the court of the committing magistrate. 18. There is some conflict in the views taken by some High Courts as to whether an accused person can as a matter of right cross-examine a witness before the framing of a chargesheet. The Calcutta High Court in Emperor v. C.A. Mathews,' held that an accused person cannot as a matter of right cross-examine a witness before the stage u/s 256 Cr. P.C. had been reached. The Madras High Court however in Muthiah Fillai AIR 1929 Cal. 882; King-Emperor AIR 1932 Mad. 559 and In Re: Muthiah Chetty, AIR 1924 Mad 735 has held to the contrary. Whether an accused person has or has not a right to cross-examine a witness in a warrant case before the stage u/s 256, Cr. P.C. is reached does not arise in this case. Initially the case in the court of the City Magistrate appeared to have proceeded as a warrant case under Chapter XXI Cr. P.C. but on and from the 12th July, 1944, when the magistrate conceded the demand of the accused that the case should be tried under Chapter XXXIII of the Criminal Procedure Code the case became one triable by the court of session and the appellant had unquestionably the right to cross-examine the witness u/s 208 (2) Cr. P.C. It seems clear that the learned magistrate, being conscious of the right of the appellant to cross-examine wit- ness, recalled Capt. Hume and tendered him, after a few more questions had been asked on behalf of the prosecution, for cross-examination. 19. P.C. It seems clear that the learned magistrate, being conscious of the right of the appellant to cross-examine wit- ness, recalled Capt. Hume and tendered him, after a few more questions had been asked on behalf of the prosecution, for cross-examination. 19. The next question in this connection is whether the accused had the opportunity to cross-examine the witness ? It is contended by the learned counsel for the appellant that the case having been called up at such a short notice and the fact that on the day of hearing the counsel was not prepared to cross-examine The witness, it cannot be said that the accused had a reasonable opportunity for cross-examination. We are unable to accept this contention. To our mind what the law provides is that a witness should be examined in the presence of the party against whom the evidence is to sought to be used and that such a party should be at liberty, if he so desires, to cross-examine the witness. It will make no difference where for some reason or the other the party did not find it convenient to utilize the opportunity. In Cazemore v. Vaugham (1830) I M & S 4 at p. 6 Ellenborough L. C. J., said : But if the advise party has had liberty to cross-examine and has not chosen to exercise it, the case is then the fame in effect as if he hid cress-examined. 20. In R.V. Peacock 12 Cox. 21, it was held that : If a deposition is proved to have been taken in the presence of the accused, the law will presume that he had full opportunity of cross-examination. 21. In Gauri Datt Marwari v. D.K. Dowring AIR 1934 Pat. 443 a Divisional Bench held : 11 Section 33 does not require it for a deposition to be admissible that the adverse party should have actually exercised his tight to cross-examine the witness. It is enough if he had the opportunity to cross-examine on the occasion. 22. In the present case there is a certificate of the learned magistrate to the effect that the accused had been given an opportunity to cross-examine. Under these circumstances we are of the opinion that the statement of Captain Hume in the court of the committing magistrate was rightly admitted and used as evidence by the Sessions Judge at the trial. 23. Under these circumstances we are of the opinion that the statement of Captain Hume in the court of the committing magistrate was rightly admitted and used as evidence by the Sessions Judge at the trial. 23. The second ground of attack upon (he statement of Court. Hume is that as he had, failed to identify the appellant at the jail parade and it was not until he had been assisted by the court inspector that he was able to pick out the appellant was suspect, his evidence of identification should not carry any weight. According to the evidence of P. W. 5, M.P. Asthana, the Magistrate who supervised the identification proceedings in jail, it appears that Capt. Hume walked along the line of persons in the parade and without pointing to any one among them came back t) the Magistrate and after some hesitation pointed in the direction of the accused and said that he resembled the man who had traveled with him in the train but he could not swear that was the same man. The court inspector then told Capt. Hume that if he was the same man he should point him out by holding his hand. The witness then went up and picked out the accused by holding his hand. 24. The defence has produced two witnesses on this point. D. W. 2, Amjad Ali, a jail warder, who has deposed that he was present at the time of the identification proceedings. He stated, An Englishman came to identify the accused. He first went to the parade and came back without picking out any one. When he returned he had a talk with the prosecuting .inspector and the Magistrate. The P. I. pointed towards the parade and then the Englishman went and picked out the accused. He went straight to the accused and picked him out. 25. The other witness is D W. 7, Jii Bahadur Singh, who was an under-trial prisoner in jail at the time and one of the persons put up in the identification parade. His statement is to the effect that he was in the identification parade held for the accused Tahawar Ali Khan and ''one of the men who came to identify the accused was an Englishman, When he first came he went past parade three times without picking out anyone. 26. His statement is to the effect that he was in the identification parade held for the accused Tahawar Ali Khan and ''one of the men who came to identify the accused was an Englishman, When he first came he went past parade three times without picking out anyone. 26. Then he went to Magistrate where the P. I. was sitting. The P. I. pointed at the accused and then the Englishman came back and caught hold of the accused". 27. We have considered the evidence and we are satisfied that the evidence given by Mr. M.P. Asthana, the Magistrate is the correct version. We are not prepared to believe that a British officer of the standing of Captain Hume would in any way be influenced by any hint that a prosecuting inspector might give him. It must be remembered that, although the appellant was put up for identification some ten months after he had traveled with Captain Hume in the train and it was natural that although he suspected the accused as the person who had traveled with him, yet he hesitated in daintily pointing him out a conduct one would expect of an honest and truthful witness. There was yet another reason why Capt. Hume, although suspecting the accused, hesitated in picking him out. It appears that the accused had certain scars or other distinguishing features on his face, which were covered up by strips of paper. It is not inconceivable that certain portions of the face of the accused having been covered by paper made his recognition somewhat difficult. Indeed the shop-keepers, who failed to identify him in jail but had no hesitation in pointing to the appellant as the person who had purchased goods from them and issued the cheques in question, gave this very fact as a reason for their inability to identify the accused in jail, namely, the partial disguise by strips of paper being pasted to his face. In these circumstances we are satisfied that the evidence of identification was a perfectly honest and genuine one. 28. Had the case of the appellant depended solely upon the evidence of identification by these witnesses we might have hesitated to act upon it, but there is such a mass of other evidence that it leaves no doubt in our mind that the appellant was the person who had traveled in the compartment with Capt. 28. Had the case of the appellant depended solely upon the evidence of identification by these witnesses we might have hesitated to act upon it, but there is such a mass of other evidence that it leaves no doubt in our mind that the appellant was the person who had traveled in the compartment with Capt. Hume and subsequently utilized the cheque book in purchasing large quantities of goods from various shop-keepers in Lucknow city. 29. The last contention raised by Dr. Katju on behalf of the appellant is that the trial of the appellant is illegal inasmuch as that the charge under rule 48 of the Defence of India Rules for wearing a uniform without any excuse or lawful cause could not and should not have been joined with the charge for the offences under the Indian Penal Code, namely, Sections 379 and 411 I.P.C. He con- tends that the misjoinder of charges is an illegality which vitiates the trial. He has, however, stated that his client does not want a retrial. u/s , 235 of the Criminal Procedure Code a person may be charged with any number of offences at one trial if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person. Under sub Section (2) of Section 235, Cr. P.C. it is provided : If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished; (he person accused of them may be charged with, and tried at one trial for, each of such offences; and under Sub-section (3) of Section 235, Cr. P.C. If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. 30. The evidence in this case is that the appellant, while masquerading as a 'pilot officer' in the uniform of the Indian Air Force, went to a 1st class compartment though the suggestion is that he had a 3rd class ticket and while there he committed a theft. 30. The evidence in this case is that the appellant, while masquerading as a 'pilot officer' in the uniform of the Indian Air Force, went to a 1st class compartment though the suggestion is that he had a 3rd class ticket and while there he committed a theft. To our mind the wearing of the uniform and the subsequent theft of the wallet, the cheque book and the fountain pens can reasonably be described as a series of acts forming one transaction. It is conceivable that had it not been for the fact that the appellant was wearing a pilot officer's uniform and not possessing a 1st class ticket, he might have never been allowed an entry into the 1st class compartment. It can well be argued as it has been argued by the learned Assistant Government Advocate that the wearing of the uniform facilitated the appellant's criminal activities. The principles upon which the joinder of charges are to be determined are not that the occasion upon which the offences are committed are different, but whether there was a continuity and community of purpose. The real and substantial test by which to determine whether several offences are so connected as to form the same transaction depends on whether they are so related to one another in point at purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action. The fact that offences are committed at different times does not necessarily show that they may not be so connected as to fall within Section 235 of the Criminal Procedure Code. The occasions may be different, but there may be a continuity and a community of purpose. We are supported in the view we take by a ruling of a Divisional Bench reported in Emperor v. Sherufalii Allibhoy (1903) 27 Bom. 135. In Emperor Vs. Mayadhar Pothal, AIR 1939 Patna 577 a Divisional Bench held :- The test for applying Section 235 is to see whether the acts alleged from the series that can be regarded as one transaction. It is difficult to see how this question cm be answered in the negative when the evidence to prove the one offence is identical with that by which the other is to be established. 31. In Emperor v. Sri Narain Prasad (1907) 11 Cal. It is difficult to see how this question cm be answered in the negative when the evidence to prove the one offence is identical with that by which the other is to be established. 31. In Emperor v. Sri Narain Prasad (1907) 11 Cal. W.M. 715 a Divisional Bench held that : Where the accused was tried on several charges three of cheating u/s 420. I.P.C, two of forgery under Sections 466 and 468, I.P.C. one of using as genuine a forged document u/s 471, I.P.C., and one of cheating by presentation u/s 419, I.P.C., the trial was perfectly valid and joinder of all these charges u/s 235, Cr. P.C. not improper. The facts in that case were that the accused had represented himself to be an inspector in the Survey Department and committed two acts of cheating relying upon that representation. He then made use of a forged document purporting to be a letter of appointment signed by the Assistant Superintendent of the Survey Department and bearing an official stamp was presented to the complainant, and on the strength of that he got some money from the complainant Sheo Prasad on the 8th October. Subsequently on the 27th October the accused again asked for Rs. 25 on the allegation that the head-clerk would upset the whole arrangement unless paid that sum. This aroused the suspicion of the complainant master which led to the police being in- formed and subsequent prosecution. The Court was of the opinion that though these acts were committed at different times they showed continuity and community of purpose and were rightly tried in one trial. It might have been well if the two charges had been tried separately in the present case, but we are of the opinion that there was no illegality, in the trial, and we are in respectful agreement with the principle enunciated in the rulings cited above. 32. Moreover, the appellant has himself through his counsel asked that he does not wish a retrial, nor has it been shown to us, though we pointedly questioned the learned counsel for the appellant, whether there has been any prejudice by virtue of the joinder of charges. The learned counsel was not able to answer the question. 32. Moreover, the appellant has himself through his counsel asked that he does not wish a retrial, nor has it been shown to us, though we pointedly questioned the learned counsel for the appellant, whether there has been any prejudice by virtue of the joinder of charges. The learned counsel was not able to answer the question. Even if there had been an irregularity, or illegality, unless the appellant was in a position to show that he had been prejudiced, the illegality or the irregularity is curable by the provisions of Section 537, Cr. P.C. We are fortified in the latter view by a Divisional Bench ruling of this Court : Debt Prasad v. K.B. through Juggilal Kamlapat 1944 OA 3 : AWR (CC) 3 : OWN 1, where it was held that an error or illegality in regard to a joinder of charges can be cured by Section 537, Cr. P.C. unless the accused has been prejudiced thereby. In this view of the matter we reject the contention of the learned counsel and hold that the appellant has been rightly tried for the offences under rule 48 of the Defence of India Rules and the offences under the Indian Penal Code at one trial. 33. Finally the learned counsel has addressed us on the question of sentence. He has urged that the appellant is a young man and that some of his relations have served and are still serving in the U.P. Police Force and also in the Army. We, however, do not consider this to be an extenuating circumstance. The appellant is 23 years of age and has preventions to education. It does not appear to be a case of sudden temptation, and therefore when a man of his class deliberately embarks upon a career of crime, we feel that it calls for a deterrent sentence. No extenuating circumstance apart from his connection with people, who are serving the Government, have been shown to us. We do not feel that this is a case in which leniency might be shown. The appeals are dismissed.