9. But even if the trial by a jury of an offence triable with assessors is not invalid on that ground, an accused should not, it seems to me, be debarred by reason of that from an appeal on the facts. This was a right which would have accrued to him if he had been tried with assessors and to deprive him of it because oE an error in procedure would be a manifest injustice. This was the view taken in Empress v. MohiniChunder Rai a Cal.