IMPORTANT POINT
Where murder was alleged to have been committed by unlawful assembly but charge did not mention allegations of Section 149 IPC, failure to mention nature of offence could not be said to be a mere irregularity.

ORDER

The Sessions Court of Krishna Division at Machilipatnam at Andhra Pradesh tried six accused persons alleging that they caused the death of Vemulapalli Buddah Vara Prasad @ Buddah Prasad. The deceased Buddah Prasad was the owner of banana garden. The prosecution allegation was that these accused trespassed into his property and took away some bamboo poles used for supporting the plants. Some criminal cases were also filed against these accused alleging that they have committed theft of bamboo poles. According to prosecution the accused nurtured grudge against the deceased and on 3.11.1990, they attacked deceased Buddah Prasad and caused his death. PW-1 and PW-2 had seen the accused committing the offence. They went and informed the matter to the Ex. Sarpanch (P.W. 3) who prepared report, then PW-1 and PW-2 went to the police station and gave that report to the Sub Inspector of police (PW-9). After investigation, police filed charge sheet alleging that accused had formed themselves into an unlawful assembly and caused the death of Buddah Prasad.

2. The Sessions Court framed charges against the accused on three counts. The first charge was under Section 148 IPC alleging that they formed themselves into an unlawful assembly with a common object, they caused death of Buddha Prasad and thereby committed the offence punishable under Section 148 IPC. The second charge was under Section 302 IPC simpliciter against each of the accused. The third charge was framed against A-1 and A-2 for the offence punishable under Section 324 IPC for having caused injury to Bala Seetharamaiah.

3. The Sessions Court found A-1 to A-6 guilty of offence punishable under Section 148 IPC and each of them was sentenced to undergo rigorous imprisonment for a period of one year. A1 to A-6 were also sentenced to imprisonment for life for the offence punishable under Section 302 IPC, A-1 and A-2 were also punished under Section 324 IPC and each of them to suffer rigorous imprisonment for one year.

4. Aggrieved by these convictions and sentences, the accused preferred an appeal before the High Court of Andhra Pradesh at Hyderabad. The Division Bench of the High Court noticed that as regards accused A-1 to A-6, there was no charge framed under Section 302 read with Section 149 IPC and the High Court held that A-2 the second accused was guilty for the offence under Section 304 Part-I IPC and he was sentenced to 7 years imprisonment and his conviction under Section 302 IPC was set aside. The conviction of accused A-1, A-3 to A-6 under Section 302 was set aside and instead they were sentenced to undergo imprisonment for two years each under Section 326 IPC. Aggrieved by the judgment of the High Court these two criminal appeals are filed one by the State and other by the de facto complainant (PW-1).

5. Heard Mrs. K. Amreshwari, learned senior counsel for the appellant, Ms. T. Anamika, learned counsel for the State and Mr. Y. Rajagopala Rao, learned counsel for the respondents.

6. Learned senior counsel for the appellant appearing in Criminal Appeal No. 1107/1997 submitted that in the face of clear evidence given by eye witnesses the acquittal of the accused of the offence punishable under Section 302 IPC was unsustainable and the High Court seriously erred in not convicting them for the offence of murder. The counsel submitted that even though specific charge was not framed against these accused persons under Section 302 IPC read with Section 149 IPC, it is only an irregularity and the accused were not prejudiced by such non filing of the charge and the High Court should have convicted these accused persons under Section 302/149 IPC in view of over all evidence adduced by the prosecution. It is true that PW-1 and PW-2 gave a detailed evidence as to the manner in which the incident happened. The Sessions Judge as well as the Division Bench accepted the evidence of PW-1 and PW-2 who gave evidence to the effect that Buddah Prasad was chased and dragged by these accused pe