@JUDGMENTTAG-ORDER
M.B. Shah, J.@mdashShort question in this appeal is whether some accused could be convicted for the of fence punishable u/s 325 read with 149, when all of them were charged for an of fence punishable u/s 302 I.P.C. The appeal is filed against the judgment and order passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1088 of 1992 by which the High Court reversed the judgment and order passed by the Additional Sessions Judge, Mahabubnagar in Sessions Case No. 156 of 1992 acquitting the accused No. 1 to 6 for the of fence punishable u/s 302 IPC and convicted the accused No. 1 for the of fence punishable u/s 304 part II IPC, accused No. 2 for the of fence punishable u/s 325 IPC; and accused No. 3 to 6 for the of fence punishable u/s 325 IPC read with Section 149. At the time of admission, the appeal filed by the original accused No. 1 & 2 was dismissed, leave was granted to the accused No. 3 to 6 and they were ordered to be released on bail.
2. Before deciding the contention raised by the learned Counsel for the parties, it would be necessary to narrate few facts. It is the prosecution story that Accused No. 1, 2, 4 & 5 are brothers. On 17th November, 1989, the accused No. 1 had picked up the quarrel in the morning regarding the usage of passage in the field and thereafter at about 3.30 p.m., accused No. 1 to 6 came to the field belonging to the deceased and quarrelled regarding the use of passage and water by the deceased. Deceased was beaten and he fell down. At that time, P.W. 3, younger brother of the deceased went to the rescue but he was prevented by accused No. 4 & 5 who held him tight. Accused No. 3 & 6 caught hold of the deceased and at that time accused No. 2 gave a stick blow on the head and accused No. 1 stabbed twice the deceased with a braise on his right flank and all of them ran away. As per the doctor's evidence, who performed post-mortem examination, the deceased was having the following injuries :
1. Contusion over the right cheek i.e. 3-4" length 1" width.
2. Contusion over the right elbow joint over the lateral posterior part i.e., 3" below the right elbow joint 1" length Xl/2" width.
3. A deep stab injury over the mid scapular region 1" length 1/2" width 4-5" depth.
4. A deep stab injury ove the right info-memory region 1" length X 1/2" width X 4-5" depth. From the evidence of P.W. 1 to 4, the Court (arrived at the conclusion that the death of the deceased was tht result of the injuries inflicted by accused No. 1 & 2 and the evidence was corroborated by the injuries caused to the deceased as mentioned in post-mortem examination. The Court also held that prosecution evidence establishes beyond reasonable doubt that accused No. 4 & 5 caught hold witness ] Venkataiah who went to rescue the deceased. Similarly, accused No. 3 & 6 caught hold of the deceased and at that time accused No. 1 & 2 inflicted injuries. On the basis of the aforesaid evidence led by the prosecution, High Court held that prosecution has made out a case that accused formed an unlawful assembly and during the course of the said unlawful asembly, they caused injuries and so they were liable to be convicted for the of fence punishable u/s 148 of the IPC. The Court further held that it is true that there is no charge framed by the trial court for the of fence punishable u/s 148 against the accused but since it was found that all participated and the main charge framed against the accused is u/s 302 and as no prejudice is caused to the accused the accused could be convicted for a lesser of fence u/s 325 read with 149 I.P.C.
3. At the time of hearing of this appeal, learned Counsel appearing on behalf of the appellant submitted that the Order passed by the High Court convicting the appellants for the of fence punishable u/s 325 read with 149 is on the face of it illegal as no charge u/s 149 was framed against the accused. He contended that all accused were charged only for the of fence punishable u/s 302 of IPC for causing injuries to the deceased Itikala Mogulaiah. As against this, learned Counsel for the State vehemently submitted that even though it is an error on the part of the Additional Sessions Judge of not framing the charge u/s 302 read with 149 of IPC no prejudice is caused to the accused as relevant facts were placed before the Court and the attention of the accused also was drawn. Futher, they are punished for lesser of fence, therefore, the order passed by the High Court is justified and legal.
4. In this view of the matter, the only contention which requires decision is whether the conviction of the accused 3 to 6 for the of fence punishable u/s 325 read with 149 of IPC can be maintained even if no charge u/s 149 was framed by the trial court. It is true that there is an error apparent on the part of the Additional Sessions Judge in not framing the charge for the of fence punishable u/s 149 IPC despite the clear case of the prosecution that there was a quarrel in the morning between the deceased and the accused No. 1 on the question of passage for watering the fields and thereafter at 3.30 p.m. all the accused came in the field of the deceased, they picked up the quarrel and inflicted injuries on the deceased. Still the question would be whether the conviction of A3 to A6 by the High Court for the of fence u/s 325 read with 149 can be said to be illegal which requires to be quashed and set aside if no prejudice is caused by not framing of charge u/s 148 and charge u/s 302 read with 149,
5. For deciding this contention, we would first refer to Section 464 of the Criminal Procedure Code which reads as under :
Effect of omission to frame, or absence of , or error in, charge - (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -
(a) If the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit;
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
6. The aforesaid section is in mandatory terms and it specifically provides -- what is to be done in cases where charge is not framed or there is an error, omission or irregularity in framing of the charge. From the unequivocal terms of the section, it can be stated that finding, sentence or order could be set aside only in those cases where the. facts are such that no valid charge could be preferred against the accused in respect of the facts proved. Secondly, if the facts are such that charge could be framed and yet it is not framed but there is no failure of justice, has in fact been occasioned thereby, the finding sentence or order of the court of competent jurisdiction is not to be set aside on that ground. Thirdly, if there is failure of justice occasioned by not framing of the charge or in case an error, omission or irregularity in charge re-trial of the case is to be directed as provided under Sub-section (2).
7. In the present case, the facts are clear. It establishes beyond reasonable doubt that because of the morning quarrel between the accused No. 1 and the deceased, the accused No. 1 to 6 went at the field of the deceased at about 3.30 p.m. They picked up the quarrel and inflicted injuries on the deceased. In view of these facts, the learned Counsel for the appellant was not in a position to point out any prejudice caused to the accused by not framing of the charge u/s 148 or for the of fence punishable u/s 302 read with Section 149 except by stating that by not framing charge properly accused have lost an opportunity of leading rebuttal evidence. He relied upon the decision rendered in the case of
8. In our view, this question is concluded by the decision rendered in the case of
9. Further, at this stage it would be worthwhile to refer to some discussions on the question involved from the case of
10. Thereafter, Court examined the scheme of relevant Sections as well as Section 535 & 537 and held that "Section 535 uses the words "shall be deemed invalid" which indicate that a total omission to frame a charge would render the conviction invalid but for Section 535 which serves to validate it when; that sort of "irregularity" has not occasioned a "failure of justice" Section '537 does not use any of these expressions but merely says that no conviction or sentence "shall be reversed or altered" unless there has in fact been a failure of justice" The Court thereafter negatived the contention that total omission to frame the charge would not be covered by Section 535 or 537 and held as under; "Chapter XIX deals comprehensively with charges and Sections 535 and 537 cover every case in which there is a departure from the rules set out in that Chapter. Such departures range from errors, omissions and irregularities in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. In all these cases the only question is about prejudice. We say this because the Code repeatedly says so in express and emphatic terms and because that is the foundation on which rules of procedure are based. We say it because that accords with logic and principle and reason and because it touches the deep verities on which the structure of justice is erected and maintained." The Court pertinently further observed, "We are unable to find any magic or charm in the ritual of a charge. It is the substance of these provisions that count and not their outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent. We agree that a man must know what of fence is he being tried for and that he must be told in clear and unambiguous terms and that it must all be "explained to him" so that he really understands (Section 271(1) in sessions trials, Section 255(1) in warrant cases) but to say that a technical jargon of words whose significance no man not trained to the law can grasp or follow affords him greater protection or assistance than the informing and the explaining that are the substance of the matter, is to base on fanciful theory wholly divorced from practical reality; and the same applies to the vast bulk of jurors who attend our courts. They are none the wiser because of a formal charge except in a vague and general way that is of no practical account. The essence of the matter is not a technical formula of words but the reality. Was he told? Was it explained to him? Did he understand? Was it done in a fair way?"
11. Thereafter, Court dealt with not framing the charge u/s 34 or 149 and held that "endeavor was made in the argument to draw a distinction between cases falling u/s 34 of the Indian Penal Code and those u/s 149 of the Indian Penal Code. It was contended that even if no separate charge is necessary when Section 34 is called in aid because Section 34 does not create a separate of fence, one is essential for a conviction u/s 149 and that there, at any rate, the absence of a separate charge is fatal. This is not a case u/s 149 of the Indian Penal Code so the question does not really arise but it is necessary to advert to the argument because, on the view we take of Sections 225, 535 and 537, it is immaterial what the of fence is and whether there is a charge at all. The only question is whether the irregularity occasioned prejudice." The Court further held it is to be observed that Section 535 of the Code is mandatory in its terms, just as mandatory as Section 233. If it be accepted that an absence of a charge would, but for its provisions, render a conviction invalid, this section cures such an invalidity when there is, in fact, not in theory but in fact, no failure of justice." Dealing with the facts in the case, the Court further held as under :
Put at its highest, all that the appellant can urge is that a charge in the alternative ought to have been framed, which in itself imports that it could have been so framed. As was said by the Privy Council in Begii v. King-Emperor(1) and also by this Court in Lachman Singh v. Tlte State (2)-
A man may be convicted of an of fence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. That is what happened here... They were not charged with that formally, but they were tried on evidence which brings the case u/s 237(1)
The variation between murder and concealing evidence after the crime is no more than the variation between killing a man jointly with another, sharing his intention, or allowing the other to do the actual killing with the same common intention.
12. In a differing judgment, Chandrasekhara Aiyar, J. observed that "Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention : and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the of fence cannot be said to be fatal by itself, and before a conviction for the substantive of fence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the of fence and such evidence is of course relevant."
13. The aforesaid discussion leaves no doubt that non-framing of charge would not vitiate the conviction if no prejudice is caused thereby to the accused. As observed in the aforesaid case, the trial should be fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered. Criminal Procedure Code is a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. In the present case, accused were tried on the prosecution version that all of them went at 3.30 p.m. in the field of the deceased; they picked up the quarrel with him, inflicted injuries to the deceased as narrated by the prosecution witnesses, accused No. 3 to 6 participated as stated above; the statements were recorded u/s 313 of the CPC and the questions were asked to the effect that they jointly came at 3.30 p.m. and caused injuries to the deceased as stated by the prosecution witnesses and the role assigned to accused No. 3 to 6 was also specifically mentioned. Hence, it is apparent that no prejudice is caused to the accused who were charged for the of fence u/s 302, by not framing the charge for the of fence punishable u/s 302 read with 149. In this view of the matter, the conviction of the accused No. 3 to 6 for the of fence punishable u/s 325 read with 149 cannot be said to be anyway illegal which requires ! to be set aside.
14. In the result, appeal is dismissed. V.M. Appeal dismissed.
