Important points
(1) Non-framing of charge would not vitiate the conviction if no prejudice is caused thereby to the accused.
(2) Where though despite clear case of accused all the accused picked up quarrel and caused death of deceased charge under Section 302 IPC alone was framed and no charge under Section 149 was framed, conviction under Section 325 read with Section 149 to some of the accused could not be said to be illegal in the absence of any prejudice caused to accused.

Headnote:(i) Code of Criminal Procedure, 1973 - Section 464-Non-framing of charge-Would not vitiate conviction if no prejudice is caused to accused.
       (ii) Indian Penal Code, 1860-Section 325 r/w 149-Code of Criminal Procedure, 1973-Section 464-Conviction with charge being framed-Charge framed under Section 302 against six accused-Two accused convicted under Sections 304 Part II and 325 respectively-Others convicted for offence punishable under Section 325 read with Section 149 - No charge framed under Section 149-Plea that conviction illegal for want of framing of charge under Section 149 - Not tenable - Prosecution case was all accused picked up quarrel and caused death of deceased-Error apparent on part of trial Court in not framing charge under Section 149-No prejudice caused to accused by not framing charge under Section 149-Role assigned to accused in question specifically mentioned in 3 Cr.P.C. proceedings - Conviction not vitiated.
       Held : The only contention which requires decision is whether the conviction of the accused 3 to 6 for the offence punishable under Section 325 read with 149 of IPC can be maintained even if no charge under Section 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 offence punishable under Section 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 offence under Section 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 under Section 148 and charge under Section 302 read with 149. (Para 4)
       Section 464 of the Cr.P.C. 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 of an error, omission or irregularity in charge re-trial of the case is to be directed as provided under sub-section (2). (Para 6)
       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 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 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 offence under Section 302, by not framing the charge for the offence punishable under Section 302 read with 149. In this view of the matter, the conviction of the accused No. 3 to 6 for the punishable under Section 325 read with Section 149 cannot be said to be anyway illegal which requires to be set aside. (Para 12)

Judgment

Shah, J.-Short question in this appeal is whether some accused could be convicted for the offence punishable under Sections 325 read with 149, when all of them were charged for an offence punishable under Section 302 IPC. 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 offence punishable under Section 302 IPC and convicted the accused No. 1 for the offence punishable under Section 304 part II IPC, accused No. 2 for the offence punishable under Section 325 IPC; and accused No. 3 to 6 for the offence punishable under Section 325 IPC read with Section 149. At the time of admission, the appeal filed by the original accused No. 1 and 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 and 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 quarreled 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 and 5 who held him tight. Accused No. 3 and 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 barisa 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 x 1/2" width.

3. A deep stab injury over the mid scapulor region 1" length 1/2" width 4-5" depth.

4. A deep stab injury over the right infro-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 the result of the injuries inflicted by accused No. 1 and 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 and 5 caught hold witness Venkataiah who went to rescue the deceased. Similarly, accused No. 3 and 6 caught hold of the deceased and at that time accused No. 1 and 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 assembly, they caused injuries and so they were liable to be convicted for the offence punishable under Section 148 of the IPC. The Court further held that it is true that there is no charge framed by the trial Court for the offence punishable under Section 148 against the accused but since it was found that all participated and the main charge framed against the accused is under Section 302 and as no prejudice is caused to the accused the accused could be convicted for a lesser offence under Section 325 read with 149 IPC.

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 offence punishable under Sect

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1999 Supreme(SC) 116

Cases Referred (3)