V. Ramkumar, J.
1. Accused Nos. 1 to 6 and 8 in S. C. No. 435/2000 on the file of the Addl. Sessions Court, Thalassery for offences punishable under Sections 143, 147, 148 and 302 read with Section 149, IPC challenge the conviction entered and the sentence passed against them by that Court for the aforementioned offences.
2. The case of the prosecution can be summarised as follows:
On 1-11-1998 at about 9.30 a.m. the 8 accused persons owing allegiance to the B.J.P. out of their political enmity towards the persons belonging to the C.P.I. (M) and in furtherance of their common object of causing the death of Pavithran a C.P.I. (M) activist, formed themselves into an unlawful assembly infront of the veranda of shop No. 37 of Thrippangttur Panchayath at, Poyiloor and armed with the deadly weap-ons like chopper, sword-stick, hatchet etc. and committed rioting. They attacked Pavithran who was sitting in front of the aforesaid shop by inflicting a stab injury on his right leg with a hatchet. When Pavithran, after receiving injury, made an attempt to escape from there the accused persons chased him and cut him and stabbed him with the aforesaid lethal weapons in front of the hotel of one Kumaran. After sustain ing the grievous injuries when Pavithran fell down, the accused persons took to their heels. Pavithran who was initially taken to the Government Hospital, Thalassery was referred to the Medical College Hospital, Kozhikode from where he succumbed to the injuries. The accused have there by commit-ted offences punishable under Sections 143 147, 148 and 302 read with Section 149, I.P.C.
3. On the accused pleading not guilty to, the charge framed against them by the Court below for the aforementioned offences, the prosecution was permitted to adduce evi-dence in support of its case. The prosecution altogether examined 16 witnesses as PWs-1 to 16 and got marked 19 documents as Exts.Pl to P19 and three material objects as M.Os 1 to 3.
4. After the close of the prosecution evidence, accused were questioned under Section 313(1)(b), Cr. P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence.
5. The learned trial Judge on finding that this was not a fit case for acquittal under Section 232, Cr.P.C, called upon the accused to enter on their defence and to adduce any evidence which they might have In support thereof. Except getting marked Exts. D1 to D5 case diary contradictions of some of the prosecution witnesses, the accused did not adduce any defence evidence.
6. The learned Addl. Sessions Judge after trial, as per judgment dated 25-2-2003 found all the accused guilty of the offences charged against them and after hearing them on the question of sentence by order dated 28-2-2003 sentenced accused Nos. 1 to 6 and 8 each to imprisonment for life and to pay fine of Rs. 20,000/- and on default to pay the fine to undergo rigorous imprisonment for two years under Section 302 read with Section 149 I.P.C., to undergo rigorous imprisonment for six months under Section 143, I.P.C. and to undergo rigorous imprisonment for three years under Section 148, I.P.C. No separate sentence was awarded for the conviction under Section 147, I.P.C. The substantive sentence of imprisonment was directed to run concurrently. It is the said judgment which is assailed in these appeals by accused Nos. 1 to 6 and 8. Since the 7th accused died during the pendency of the trial the charge against him had abated.
7. We heard Adv. Sri. P. S. Sreedharan Pillal, the learned Counsel appearing for accused Nos. 1 to 6 who are the appellants In Cri. Appeal Nos. 528/03 and 1003/03 and Adv. Smt. Shahana Kathikeyan, the learned Counsel who defended the appellant (8th accused) in Crl. Appeal No. 778/2003 on State Brief. We also heard Adv. Sri. Sujith Mathew Jose, the learned Public Prosecutor who defended the State.
8. Assailing the conviction and sentence passed against the appellants, the learned Counsel for the appellants made the following submissions before us:
None of the occurrence witnesses including PW-1 had actually seen the incident in which deceased Pavithran had sustained fatal injuries. The names of the accused were not initially mentioned in the first information statement or in the statements under Section 161, Cr. P.C. at the earliest point of time. Time will show that the appellants were sub sequently implicated after due deliberations and consultation. The scene of occurrence, according to the prosecution, is from the shop by name 'Red Rose' of one P. V. Kumaran and extending up to the hotel belonging to another Kumaran. But there was not even a trail of blood at the scene of occurrence. This will go to show that the prosecution has purposely suppressed the true facts and the genesis of the occurrence. (Vide Meharaj Singh v. State of U.P. 1994 SCC Cri 1390 : 1996 Cri LJ 457. The version given by PWs-1 to 3 from the witness box is totally different from that of the prosecution version. Even though the accused Were initially charged for offences punishable under Sections 3 and 5 of the Explosive Sub-stances Act, 1908 also, when the final report was filed those offences were deleted. None of the persons who have witnessed the occurrence has been questioned or cited by the prosecution. The two Kumarans who own the shop 'Red Rose' and the hotel have been kept out of the witness box. According to the prosecution, the deceased was attacked when he was talking with his col-leagues. But none of the colleagues has been examined by the prosecution. Even though one Kunhiraman, the owner of a tea shop in the vicinity of the scene of occurrence was questioned by the police and cited as C.W. 12, he was given up by the prosecution without any rhyme of reason. The testimonies of PWs-1 to 3 are full of contradictions and, embellishments. PW-1 at. one point would depose that the incident occurred in the bus stand but would thereafter come out with a case that the deceased was attached when he was sitting in the veranda of the shop be name 'Red Rose' while chatting with his friends. In the case of PW-2, his statement before the police was that the deceased was attacked after he fell on the ground. But when examined before court, he stated that the deceased was attacked before he fell down. As per the Court charge the accused were called upon to answer the accusation that they caused the death of C.W. 1. But the evidence which has been adduced by the prosecution is to the effect that they caused the death of one Pavithran and not C.W. 1. By calling upon the accused persons to defend a case which is totally different from the charge which alone they were called upon to answer, the appellants have suffered extreme prejudice. The act of framing charge is not an empty formality. Charge is the basic record which gives notice to the accused of the accusation he is going to be tried by the court so that he could establish his defence accordingly. No further prejudice need be proved in case a charge is defective as in the present case. Vide Suresh v. State of Kerala 2005 (1) KLT 78.
9. We are afraid that we find ourselves unable to agree with the above submissions in their entirety. The occurrence took place on 1-11-1998 at 9.30 a.m. at a place called Poyiloor in Thrippangottur Village of Thalassery Taluk and within the limits of Kolavalloor Police Station. All the 8 accused persons are admittedly B.J.P. activists and the deceased and P.Ws 1 to 3 belong to C.P.I.(M), PW-1 to 3 the eye-witnesses to the occurrence, PW-1 (P. V. Govindan) is the first information in the case. Ext.P1 is the first information statement given by him to the head constable (PW-12) of Kolavallor Police Station at 11 a.m. On 1-1-1998. His statement can be summarised as follows:
He is the headmaster of Parappoyil M.L.P. School and he resides at Central Poyiloor. On 1-11-1998 at about 9.15 a.m. he was proceeding towards the Central Poyiloor bus stop for going to a place called Kallikandy. While so, Keloth Pavithran who is the driver of a taxi Jeep bearing No. KRM 3480 and others were sitting in the veranda of the shop of P. V. Kumaran and engaged in a conversation. When he was about to reach the jeep stand he heard an explosion from the jeep stand and a jeep suddenly starting and proceeding towards Thuvakkunnu. He also saw Tharassiyal Suni, Tharassiyal Pradeepan, Kacheri Suni, Echilat Chalil Manu, Kuniyal Thankan, Vinu and three or four other identifiable persons rushing towards the shop of P.V. Kumaran. Suni had a hatchet in his hand. Manu, Vinu and Kacheri Suni were having swords and choppers in their hands. Others were having sticks or lathis in their hands. They were exhorting to kill Pavithran. He then saw Thrassiyl Suni cutting Pavithran with the hatchet in his hand. On sustaining a grievous injury, Pavithran, screaming aloud ran towards the shop of Thekkeyil Vasu. The assailants chased him with exhortations to kill him. They had thrown a bomb which had exploded. Getting scared PW-1 got on to the veranda of the shop of Ahammed Haji. He saw Manu, Suni, Vinu etc. repeatedly cutting on the back and on the hands of Pavithran with sword-sticks and choppers. Pavithran fell on the road. When the nearby shop keepers and others came running, the assailants got into the jeep which was parked some distance away and proceeded towards Kacheri area. PW-1 went near Pavithran to find him bleeding from the injuries on his legs, hands and shoulders. The occurrence took place at about 9.30 a.m. Pavithran was immediately taken in a jeep to the Hospital by Paremmal Latheef and others. Pavithran was a C.P.M. sympathiser. The assailants are B.J.P. workers, The motive for the occurrence is political enmity.
10. Autopsy over the dead body of Pavithran was conducted by PW-10 (Dr. Thomas Mathew, Assistant Professor and Deputy Police Surgeon) of Calicut Medical College Hospital, Calicut on 2-11-1998, Ext. P7 is the postmortem certificate by PW-10. The following are the ante-mortem injuries noted by PW-10:
B. Injuries Antemortem
1. Incised gaping wound 26 x 7 cm on top of left shoulder cutting the acrminon process (3x5x1 cm) and separating small piece and cutting the muscle of the shoulder. Depth of the wound was 10 cm. The back end of the wound showed a tailing downwards for a length of 6 x 0.1-0.5 cm.
2. Incised gaping wound 3x2 cm superficial, back of left upper arm 10 cm below posterior axillary fold showed perimortem features.
3. Multiple contused abrasion 7x5 cm back of left elbow.
4. Linear abrasion 3 x 0.2 cm front of left forearm 10 cm above wrist.
5. Graze abrasion multiple 27 x 9 cm front of left thigh directed downwards 8 cm below groin.
6. Multiple abrasion 5x5 cm over left knee.
7. Incised wound 18x4 cm almost transverse front and outer aspect of left leg, 6 cm below knee. The tibia was cut partially and fibula and muscle of front and outer aspect of leg was cut almost completely.
8. Incised gaping wound raising a flap upwards 15x1 cm x 12 cm cutting the tendo achilles and calf muscle partially.
9. Incised wound cutting the toes (2nd, 3rd, 4th and 5th) and the big toe was cut at its middle exposing the tip of the phalanx. Three toes (2nd, 3rd and 4th) were found separate as a single piece and 5th toe is missing.
10. Incised wound 5.5 x 1 x 4.5 cm inner aspect of right angle of foot.
11. Abrasion 5x51 cm inner aspect of right leg 9 cm above aspect of right ankle.
12. Incised muscle deep wound 5.5 x 1 cm back aspect of right leg, 14 cm below right knee.
13. Incised gaping wound 12x5x6 cm slightly oblique with obliquely downwards on right knee over its front and outer aspect cutting the lower end of thigh bone and separating the epiphysis, terminated entering into the joint cavities.
14. Wound 2x1 cm inner aspect of right hand 1.5 cm below wrist.
15. Multiple contused abrasion 16x8 cm back of right forearm upper end 2 cm below elbow.
16. Linear abrasion transverse 7 cm front of right upper arm 15 cm below top of shoulder.
17. Linear abrasion 10 cm long transverse 5 cm below top of shoulder (right)
18. Incised wound 4.5 x 1 x 2 cm back left side at the level of hip bone inner end 1.5 cm outer to midline.
19. Incised wound 4 x 0.5 x 3 cm back right side at the level of hip inner end 1.5 cm outer to midline.
11. PW-10 has opined in Ext. P7 that death of the deceased was due to the multiple injuries sustained by him. When examined before Court PW-10 deposed that the above injuries could be caused by weapon like M.0.1 chopper and also due to fall.
12. When examined before Court on 10-2-2003 PW-1 gave the following version:
He was waiting for the bus at Poyiloor bus stand on 1-11-1998 at about 9.50 a.m. That is a spot where buses and taxi jeeps halt. He was waiting to catch the bus for going to Kallikandy. While so, he heard an explosion and when he looked up he saw a Jeep suddenly going towards the West and 8 persons running towards the shop by name 'Red Rose'. Deceased Pavithran was talking with two or three persons in the veranda of the said shop. The persons who ran into the shop were Tharassiyil Suni, Tharassiyil Pradeepan alias Rajeevan, Kacheri Suni alias Echilat Aneesh, Echilat Chalil Manu, Kunyil Rajan alias Shilendra and others. They were also wielding weapons. Suni was having a hatchet and Shylendran was having a chopper and others were wielding sword-stick, lathis, choppers etc. Suni cut Pavithran on the leg with hatchet. Crying aloud, Pavithran ran towards West. The accused went after him exhorting to kill him. A bomb was aimed at Pavithran, which however missed him and exploded on the road. Pavithran ran towards the hotel of Kumaran. When he reached in front of the said shop the accused persons came and cut and beat Pavithran who fell on the road. Recumbent Pavithran was again beaten and cut. When people came running, the accused got into the jeep and proceeded eastwards. Al is Suni, A6 is Pavithran, A5 Shylendran, A2 is Rajeevan, A8 is Reghu, A4 is Manu, A3 is Aneesh and A7 is Aswini Kumar. Aswini Kumar subsequently died. On the same day at 11 a.m. he went to Kolavalloor Police Station and gave Ext. P1 F.I. Statement. Political enmity is the motive for the crime. Pavithran was rushed to the Medical College Hospital, Calicut from where he breathed his last. The accused belong to B. J. P. and Pavithran was a C. P. I. (M) activist. His house is on the eastern side of Pullayithodu road. Poyiloor bus stand is 200 meters away from his house. The first part of the occurrence took place at the bus stand. The bomb explosion and the first cutting of Pavithran took place at the bus stand. At that time there were about 2-3 jeeps. It is correct to say that the shop called 'Red Rose' belonging P. V. Kumaran is about 150 meters towards the west of bus stand. The said distance is from the spot from where buses are reversed. He saw the occurrence from the bus stand. A jeep driver by name Santhosh was there. He is not able to remember who else were there. The name of Santhosh is not mentioned in Ext. P1. When he first saw Pavithran the latter was sitting in the veranda of Kumaran's shop and he was talking with his friends. Santhosh was one of the persons with whom Pavithran was engaged in a conversation. He did not notice the other person with whom the deceased was talking. The hotel building is about 75 meters away from the shop called 'Red Rose'. He was usually going along the front of the shop of P. V. Kumaran to reach the bus stand. Pavithran had sustained injury on his leg from the veranda of Kumaran's shop. His toes had been severed. He does not remember whether this fact is stated in Ext. P1. He had subsequently told the police that the toes of Pavithran which lying there had been taken by somebody in a jeep. He does not know who took them or in which jeep or when it was taken. Even though a bomb had been hurled at Pavithran while he was running it did not strike him. He does not know who threw the bomb. He does not know who exhorted to kill Pavithran. Pavithran was running at a great speed. The assailants were also running behind him in a cluster. He got into the veranda of the unoccupied shop of Ahammed Haji from where he could see the assailants. The assailants also could see him. It is not correct to say that he is an active C. P. M. worker who is more known in that area than Pavithran. He is only a sympathiser of C. P. M. He denies the suggestion that he was not there. Even though there are shops in the vicinity of the scene of crime, it being a Sunday, only one or two shops were open and one shop keeper alone had come. It is true to say that the nearby shop keepers had come by running and it was at that time the accused persons ran away from there to-wards east and got into the jeep which was parked there. The jeep was parked about 10 meters away tow,ards the east of the barber shop of Raveendran. He had not seen either the jeep coming there or the accused alighting from the Jeep. After the accused had ran away from (here he had gone near Pavithran. But he had not rendered any help to bring succor to Pavithran. He knows the other witnesses namely, Kunhikannan, Chandran (P. W. 7), Raveendran (P.W.2), Thayyullathil Chandran (P. W.3), A. Raveendran (P.W.5) all of whom he had seen at the scene of occurrence. Tharassiyil Pradeepan mentioned in Ext. P1 is A2 who has an alias name as Tharassiyil Rajeevan. Similarly Kacheri Suni mentioned in Ext. P1 is Echilat Annesh (A-3). Likewise, Kunuivyil Ranjan mentioned in Ext. P1 is Shylendran (A5). Vinu mentioned in Ext. P1 is not among the accused persons. It is not correct to pay that three of the accused persons do not have the alias name as mentioned above. He had subsequently told the police about their alias names. It is not correct to say that there are persons by name Kacheri Suni and Kuniyil Rajan in that area. It is also not correct to say that he has not seen the occurrence or identified the assailants. He denies the suggestion that the names of accused were mentioned in Ext. P1 as required by his party and out of political enmity. It is not correct to say that there was a police picket on the upstairs of the stationery shop of one Vasu situated to the east of the hotel building of Kumaran. There was a police picket 100 meters away and nearby the school. This he was knowing even at the time of occurrence. He did not go to the police picket land lodge any complaint there. There is an S. T. D. booth in front of the hotel and a mosque on the side of the hotel. There are a few houses and shops a little distance away from the place of occurrence. He was questioned by the police two or three times. On 2-11-1998 when he was questioned by the C. I. he had not mentioned about the change in the name of the accused. He denies the suggestion that Pavithran did not sustain any injuries at the place of occurrence. At the time of occurrence it was the L. D. F. which was ruling the State. But the police were not under the control of the Marxist party. He is not giving false evidence at the request of the Marxist party. He does not remember as to why the name of the sixth accused (Pavithran) is not mentioned in Ext. P1. In Ext P1 he had mentioned the names of those persons who were involved in the occurrence. He knows Pavithran even prior to the occurrence. He also knows Manu the younger brother of Pavithran even prior to the occurrence. He also knows Manuthe younger brother of Pavithran and their brother Kanaran, On that day the S. T. D. booth was not open. He also does not know whether there was any policeman in the police patrol post.
13. P. W. 2 is barber Raveendran who has by and large corroborated the version given by P. W. 1. P W. 3 Tharassiyil chandrari who is also a local resident and who was going to the tea shop of Kunhiraman for having breakfast on the ill-fated day has given evidence in support of the prosecution.
14. The occurrence started in the veranda of the shop of one P. V. Kumaran known as 'Red Rose' situated near the bus terminus at Poylioor in Thrippangottur Panchayat of Thalassery taluk. Even though there are contradictions, exaggerations, omissions and embellishments in the evidence of P. Ws. 1,2, and 3 and some discrepancies in the evidence inter se between them, they are not in respect of material aspects of the matter except in the matter of identity of the assailants other than accused Nos. 1 arid 4. It is clear from their consistent testimony that about eight persons had suddenly barged into the veranda of the shop by name 'Red Rose' belonging to one P. V. Kumaran at about 9.30 a.m. on 1-1-1998 and had attacked Pavithran with deadly weapons including hatchet and chopper. Even though Pavithran ran for his life towards the hotel of another Kumaran, his assailants chased him and overtook him and assaulted him with deadly weapons inflicting fatal injuries on his body. The evidence of P. W. 1 shows that Pavithran was first attacked with a hatchet by Al from the veranda of 'Red Rose' and cut with a hatchet and the severed toes of Pavithran were lying in front of the veranda of Red Rose.
15. P. W. 5 Raveendran who is a neighbour was among those who took the deceased to the hospital. On the way the deceased gave a dying declaration to the effect that it was Manu and Suni who inflicted the injuries on him. The reference was obviously to A4 and Al.
16. Ext. P1 is the first information statement given by P. W. 1 on 1-11-1998 at 11 a.m. to the head constable (P. W. 12) of Kolavallor Police Station. The evidence in the case shows that after the occurrence on 1-11-1998, there was a serious law and order situation prevailing in the that area. In spite of that, the first information statement was promptly lodged by P. W. 1 at 11 am. on the same day. It is pertinent to note that. W. 1 was the headmaster of the M. L. P. School, Parapoyil, and there is no reason why he should give a false version of the occurrence. Ext. P1 F. I. statement had reached the Magistrate concerned at 8.30 a.m. on the next day indicating that there has been no attempt to give an improved version of the occurrence. In Ext. P1 which is the earliest statement regarding the occurrence, the assailants identified by P. W. 1 and specifically named are the following:
(1) Tharassiyil Suni
(2) Tharassiyil Pradeepan
(3) Echilat Chalil Manu
(4) Kuniyil Rajan
(5) Vinu
But the persons who are arrayed as accused in the charge-sheet and in the Court below were the following:
(1) Tharassiyil Suni
(2) Tharassiyil Rajeevan
(3) Echilat Chalil Aneesh
(4) Echilat Chalil Manu @ Manoharan
(5) K. Shylendran
(6) A. C. Pavithran
(7) Aswini Kumar
(8) K. P. Reghu.
Out of them A7 died pending trial. But when examined before Court, P. W. 1 came out with a version that Tharassiyil Pradeepan is also called Rajeevan and Kacheri Suni is also called Echilat Annesh and that Kuniyil Rajan mentioned in Ext. P1 is Shylendran. In other words, except the names of Aland A4 all the other names mentioned in Ext. P1 are that of person who are not arrayed as accused before Court and the attempt of P. Ws. 1 to 3 at the stage of evidence has been to show the names of accused Nos. 2, 3, 5 before Court are the alias names of Pradeepan, Suni and Rajan mentioned in Ext. P1. It is pertinent to note here that even Ext. P10 report dated 10-11-1998 filed by P. W. 14 the 2nd investigating officer giving the full names and addresses of the accused persons, does not show any alias name for accused Nos. 2, 3, and 5. Likewise, the final report filed before Court also does not show any alias names for accused Nos. 2, 3 and 5. Accused Nos. 2, 3 and 5 were also arrayed before the Court below without any alias name. In the case of accused Nos. 6,7 and 8 their names do not figure at all in Ext. P1 F. I. statement and 7th accused died pending trial. Under these circumstances, even though we are inclined to accept the prosecution case that Pavithran was attacked by about 8 persons who came in a Jeep and after executing their mission they escaped in the Jeep which was parked there, we are not able to accept the case of the prosecution that accused Nos. 2, 3, 5, 6, 7 and 8 were among those assailants.
17. The evidence adverted to above shows that accused Nos. 1 and 4 who were among the assailants were both armed with deadly weapons like chopper and hatchet, and they had inflicted cut injuries on the body of Pavithran who was unarmed and who was engaged in a conversation in the veranda with the shop called 'Red Rose'. 'Red Rose' is situated very close to the bus terminus (loosely described by the witnesses as bus stand) and that is why P. W. 1 deposed that the first part of the occurrence took place at the bus stand. Pavithran had altogether 19 injuries on his body of which 11 were incised injuries. There cannot be any doubt that any person sustaining such injuries would have definitely bled to death and it is no justification to contend that if timely medical aid had been rendered the life of Pavithran could have been saved.
18. It is true that there is a mistake in the Court charge which reads as follows:
That you along with other accused persons being motivated due to political enmity in furtherance of their common object, being members of an unlawful assembly, committing rioting armed with deadly weapon like kaimazhu at or about 9.30 a.m. on 1-11-1998 and voluntarily caused hurt to C. W. 1 with intent to murder him with Kaimazhu and inflicted cut injuries all over the body while C. W. 1 was sitting in front of the veranda of Shop No. 37 Thrippangottur Panchayat Ward No. VII and due to the injuries sustained he breathed his last and thereby you committed the offence punishable under Section 143, 147, 148 and 302 read with Section 149 I.P.C. and within the cognizance of Court of Session:
And I hereby direct that you be tried on the said charges.
The reference to C. W. 1 in the Court charge is an obvious mistake and the person who was done to death is not C. W. 1 but Pavithran. It is nobody's case that C. W. 1 examined as P. W. 1 had breathed his last in the occurrence. At no point of trial had the accused raised a contention that the above inadvertent mistake in the Court charge was a grave one causing prejudice to them or that they could not shape their defence properly. It was not even suggested to any of the prosecution witnesses that C. W. 1 (examined as P. W. 1) was the victim who was cut to death. At the stage of examination under Section 313 Cr. P.C. also none of the accused persons had a case that there was such a mistake in the Court charge or that the above mistake in the Court charge had caused prejudice to them. No arguments were adduced before the trial Court also regarding mistake in the charge. Section 464 Cr. P.C. reads as follows:
464. 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 framedor on the ground of any error, omission or irregularity in the charge including any misjoinder or charge, 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) in the case of an omission to frame charge, order that a charge framed and that the trial be recommended from the point immediately after 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. (Emphasis supplied)
Thus, even the absence of a charge is not a ground to interfere with the judgment unless it has occasioned failure of justice. When the cross-examination of all the prosecution witnesses indicates that the suggestions put to them was that it was Pavithran who was attacked and killed in the occurrence, it cannot be said that the accused had suffered any prejudice on account of the above mistake. No such objection was raised in the Court below also. In State of Andhra Pradesh v. Thakkidiram Reddy and Ors. : 1998CriLJ4035 the Apex Court observed as follows:
10. Sub-section (1) of Section 464 of the Code of Criminal Procedure, 1973 ('Code for short) expressly provides that 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 mis-joinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact (emphasis supplied) been occasioned thereby. Subsection (2) of the said section lays down the procedure that the Court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes is Section 465 of the Code; and it lays down that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that Court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
11. This Court in Willie (William) Slaney v. State of Madhya Pradesh : 1956CriLJ291 elaborately discussed the applicability of Sections 535 and 537 of the Code of Criminal Procedure 1898, which correspond respectively to Sections 464 and 465 of the Code, and held that in judging a question of prejudice, as of guilt, Courts must act with broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Viewed in the context of the above observations of this Court we are unable to hold that the accused persons were in any way prejudiced due to the errors and omissions in the charges pointed out by Mr. Arunachalam. Apart from the fact that this point was not agitated in either of the Courts, below, from the fact that the material prosecution witnesses (who narrated the entire incident) were cross-examined at length from all possible angles and the suggestions that were put forward to the eye witnesses, we are fully satisfied that the accused persons were not in any way prejudiced in their defence. While on this point we may also mention that in their examination under Section 313 of the Code, the accused persons were specifically told of their having committed offences (besides others) under Sections 148 and 302/149, I.P.C. For all these reasons we reject the threshold contention of Mr. Arunachalam.
In Kammari Brahmaiah and Ors. v. Public Prosecutor, High Court of A.P. : 1999CriLJ1134 it is stated as follows (Para 13):
Non-framing of charge would not vitiate the conviction if no prejudice is caused thereby to the accused. 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 instant 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 Nos. 3 to 6 participated as stated above: the statements were recorded under Section 313 of the Cr. P.C. 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 Nos. 3 to 6 was also specifically mentioned. Hence it is apparent that no prejudice is caused to the accused who were charged for the offence under Section 302, by not framing the charge for the offence punishable under Section 302 read with 149. Thus the conviction of the accused Nos. 3 to 6 for the offence punishable under Section 325 read with 149 cannot be said to be anyway illegal which requires to be set aside.
In Para 22 of Bhoor Singh and Anr. v. State of Punjab 1974 SCC (Cri) 664 : 1974 Cri LJ 929 it is stated as follows:
Nanak Chand's case 1955 Cri LJ 721 (supra) relied on by the appellants was explained by this Court in Willie (William Slaney v. The State of Madhya Pradesh 1956 Cri LJ 291. It was pointed out that the term 'illegality' used in Nanak Chand's case must be read with reference to the facts of that case where the Court found prejudice. The Code does not use the word 'illegality', nor defines 'irregularity' and illegality can only mean an incurable illegality, incurable because of prejudice leading to a failure of justice. It was stressed (per S. R. Das, Acting C.J. and Bose, J.) that the object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the trial is not invalidated by the mere fact that the charge was not formally reduced to writing. The essential part of this part of the law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for.
19. After giving our anxious consideration to the entire facts and circumstances of the case we are of the view that the prosecution has succeeded in establishing the guilt of the accused Nos. 1 and 4 beyond reasonable doubt. But in the case of accused Nos. 2, 3, 5, 6 and 8 we have no hesitation to hold that the prosecution has not been able to establish their involvement in the occurrence to the required degree of proof. Accordingly accused Nos. 2, 3, 5, 6 and 8 are entitled to acquittal.
In the result Cri. A. Nos. 528 and 778/2003 are allowed in toto and Cri. A. No. 1003/2003 is partly allowed. The conviction entered and the sentence passed against accused Nos. 1 and 4 are confirmed. The conviction entered and sentence passed against accused Nos. 2, 3, 5, 6 and 8 are set aside and they are acquitted of the offences punishable under Sections 143, 147, 148 and 302 read with Section 149 of the Indian Penal Code and are set at liberty. Accused Nos. 2, 3, 5, 6 and 8 shall be released from prison forthwith unless their continued detention is required for any other case.