JUDGMENT : R.N. Misra, J. - The Sub-Divisional Magistrate, Sambalpur committed 14 persons to the Court of sessions to stand their trial for an offence u/s 376, Indian Penal Code. At the trial stage the Public Prosecutor on behalf of the State made an application for separate trials. On the other hand the accused persons wanted one trial. The learned Trial Judge by his order dated 3-11-1970 came to hold that a joint trial of all the accused persons should take place. The State of Orissa has come up in revision challenging The direction of the learned Trial Judge. 2. The short facts necessary for determining whether the learned Trial Judge is right may now be stated. The informant, the victims and the accused persons are all residents of one village. Three ladies along with their male folk had gone out to the fields and at sunset were returning to the village all in a group. The accused persons 14 in number were sitting at one end of the village. The three ladies were going behind the male members of their families. The male folk had walked ahead and the ladies were following, and at the point when they came to pass the accused persons the three ladies were pulled out by three different groups of the accused persons. They were taken to different places and each of them was raped by a group of them. It is alleged that one lady was raped by four persons, another by six (sic) the third by seven. It is also alleged that one or two from one group bad gone over the other group after the raping was over at the first place. The learned Trial Judge has relied upon the provisions of Section 239(d), Code of Criminal Procedure to hold that a joint trial may follow. Section 233, Code of Criminal Procedure contains the general rule. Sections 234 to 239, Code of Criminal Procedure provide the exceptions. The learned Trial Judge has relied upon the provisions of Section 239(d), Code of Criminal Procedure to hold that a joint trial may follow. Section 233, Code of Criminal Procedure contains the general rule. Sections 234 to 239, Code of Criminal Procedure provide the exceptions. Section 39, Code of Criminal Procedure as far as relevant, may now be extracted: What persons may be charged jointly: - The following persons may be charged and tried together, namely: (a) persons accused of the same offence committed in the course of the same transaction; x x x (b) persons accused of different offences committed in the course of the same transaction ; x x x It is true, their Lordships of the Supreme Court have indicated in State of Andhra Pradesh v. Ganeswara Rao AIR 1963 S.C. 1850 , that the expression ?same transaction? occurring in Clauses (a) and (d) of Section 239, Code of Criminal Procedure ought to be given the same meaning according to the normal rule of construction of statutes. In the present case I do not find any basis on the materials now on record to hold that the raping done on the three ladies at three different places by three Bets of persons was a part of one and the same transaction. For a small part and mostly relating to the evidence introducing the case it may be common, but the evidence relating to the rest of the matter is absolutely different. It is difficult to say that there was a common object from before to do the raping and they were waiting for the opportunity to come. Whether such evidence would come at the trial either from the side of the prosecution or as the outoome of some element of defence raised is not known and on the hypothesis of such evidence to come whether the trial would be joint or separate cannot be decided. It is possible if there is a joint trial the accused may take the stand that they have been prejudiced. Now they have asked for a joint trial. If they find the fruits of such trial contrary to their interest they may turn round to say that the trial has become vitiated. An element of such gamble should not be permitted to get into the trial and the cause of justice should not be permitted to suffer on that account. 3. If they find the fruits of such trial contrary to their interest they may turn round to say that the trial has become vitiated. An element of such gamble should not be permitted to get into the trial and the cause of justice should not be permitted to suffer on that account. 3. The object of enacting Section 239, Code of Criminal Procedure is to avoid multiplicity of trials and the only limitation which would properly be placed on the? trial of several persons for the same kind or different offences would be that which considerations of justice and fairness require. In my view keeping that as the paramount consideration the proper way is to hold separate trials. This revision is allowed. The learned Trial Judge would proceed to try the three sets of accused persons in three separate trials. The records be transmitted by day after tomorrow. Final Result : Allowed