IMPORTANT POINT
Omission to mention Section 149 IPC specifically in the charge is only an irregularity and when no prejudice is shown caused to accused by that omission it can not affect their conviction for the offence.

ORDER

Five appellants alongwith five others were tried for offences under Sections 302, 148 IPC and some minor offences. The learned Sessions Judge acquitted five co-accused of the appellants but convicted and sentenced them for offences under Section 302/148 IPC. They filed an appeal in the High Court which was dismissed by the Division Bench of the High Court on 6th May, 1986. By special leave the appellants have called in question the judgment of the High Court dated May 6, 1986.

2. In short, the prosecution case is that on 14th November, 1981 at about 10.00 p.m. when the complainant party was taking its bullock cart through a path way of the abadi to village Galia Kua, the cart suffered a sudden and violent jerk. It was noticed that a ditch had been freshly dug in the path way, though the complainant party had not noticed the existence of any such ditch earlier on their way to the forests in the evening. As soon as the bullock cart suffered a jerk, 10 or 12 persons came out from house of Ranjita and Hira. They were armed with sticks and axes. They assaulted Bhura, Badri, Dhanna and Ramphool. Ramphool and Dhanna, however, escaped unhurt. Bhura succumbed to the injuries. Badri also received injuries. Ramphool, P.W.3, went to the police station and lodged the First Information Report on 15th November, 1981 at about 6.45 a.m. The investigation was taken in hand and ten persons including five appellants were sent up for trial. According to the prosecution case the assailants had mounted the attack on the complainant party and inflicted injuries on Bhura and Badri with a view to take revenge for a violent incident which took place in 1973 when Ranjita, appellant, suffered fracture on his leg which led to the filing of criminal prosecution against Bhura and Ramphool. As many as 11 witnesses were examined by the prosecution at the trial. Dr. Bansal, PW, conducted the postmortem examination on the dead body of Bhura on 15th November, 1981 at 2.30 p.m. He noticed as many as 11 injuries on the dead body. Out of these injuries eight were incised wounds and others were injuries caused by blunt weapon. Out of the incised wounds, there were some injuries on the legs and the left thumb and the remaining three injuries were on the head of the deceased. Badri, PW, was also examined and nine injuries were found on his person. There was no fracture of any bone, though some of his injuries were described as grievous injuries. At the trial, Dr. Bansal deposed that the injuries found on the deceased were sufficient to cause death in the ordinary course of nature. During cross-examination however Dr. Bansal admitted that apart from injuries which were caused by incised weapons there were other injuries also on the body of the deceased and that "other injuries could also have resulted in his death". The prosecution also relied upon recoveries of some weapons alleged to have been effected on the basis of the statements made by the appellants and others under Section 27 of the Evidence Act on 22nd November, 1981 in support of its case.

3. The trial Court found that there were two sets of accused in the case, one set belonging to Kumhar caste while the other belonging to the Gujar community. The appellants belong to the Gujar community. The trial Court found that the evidence of the eye witnesses who had implicated not only the appellants but also five others belonging to the Kumhar caste could not be believed fully and consequently gave benefit of doubt to five accused belonging to the Kumhar caste and acquitted them.

4. The trial Court after appreciating the evidence, in the case of the appellants, opined that there was no evidence on the record to show any pre-meditation on the part of the appellants. It was also concluded that the prosecution had failed to establish as to who among the 10 accused, had stuck the fatal blow resulting in the death of Bhura. The learned Sessions Judge further observed that "it remains a mystery who the killers of Bhura a