IMPORTANT POINT
Sentence or order passed by trial court in absence of charge or any error, omission or irregularity in the charge including any mis-joinder cannot be held invalid by court of appeal, confirmation or revision unless the accused is prejudiced and failure of justice has been occasioned thereby.

JUDGMENT :

R. Banumathi, J.

This appeal arises out of the judgment dated 28.07.2014 passed by the High Court of Allahabad in Criminal Appeal No.1047 of 1989 in and by which the High Court has dismissed the appeal filed by the appellant thereby affirming his conviction under Section 302 IPC and for other offences and sentence of life imprisonment imposed upon him passed by the trial court.

2. Brief facts of the case are that on 03.01.1986 at about 09.00 AM, complainant-Baboo Khan (PW-3) who is the maternal uncle of deceased Akhlaq was informed by his father that his sister’s daughter Parveen had gone to fetch water from the tank where accused Rashid (A1) and Adil (A3) had misbehaved with her. However, no further action was taken by them to save their reputation. On the same day, at around 04.00 PM, when complainant/PW-3 along with his nephew deceased Akhlaq and Aadil Hussain (PW-2) were going towards his shop, they saw accused Rashid armed with knife, Nasir (A2) armed with hockey, accused Adil and appellant-Kamil (A4) armed with danda in their hands coming towards them and surrounded PW-1, deceased Akhlaq and PW-3. Thereafter, appellant-Kamil gave a danda blow on the head of PW-2 and when deceased Akhlaq tried to snatch the hockey stick from accused Nasir, appellant-Kamil also gave a danda blow on the head of deceased from behind and when he tried to run away, accused Nasir and Adil caught hold of deceased and thereafter accused Rashid stabbed the knife in the chest of deceased on which deceased fell down on the ground with the knife which was stabbed on his chest. On raising alarm by PW-3, Jamal Uddin (PW-1) along with other people came there for help. Thereafter, all the accused ran away and deceased was taken to the hospital, where he died. Upon completion of investigation, charge sheet was filed against the accused persons.

3. Charges were framed against the accused under Sections 302, 302 read with Section 34, 323 and 323 read with Section 34 IPC. To bring home the guilt of the accused, the prosecution examined eight witnesses and exhibited number of documents.

4. Upon consideration of evidence adduced, the trial court vide its judgment dated 01.05.1989 convicted the accused as under:-

Accused	Conviction	Sentence
Rashid (A1)	Section 302 IPC Section 323 read with Section 34 IPC	Life Imprisonment One month R.I.
Nasir (A2)	Section 302 read with Section 34 IPC Section 323 read with Section 34 IPC	Life Imprisonment One month R.I.
Adil (A3)	Section 302 read with Section 34 IPC Section 323 read with Section 34 IPC	Life Imprisonment One month R.I.
Kamil (A4)	Section 302 read with Section 34 IPC Section 323 IPC	Life Imprisonment One month R.I.

5. Being aggrieved, the appellant/accused filed appeal before the High Court which came to be dismissed vide impugned judgment dated 28.07.2014. Further, appeal preferred by the accused Nasir before the Supreme Court in SLP(Crl) No.9886 of 2014 was dismissed vide order dated 22.01.2015.

6. Prosecution relies upon the evidence of eye-witness Babu/Baboo Khan (PW-3), Jamaluddin (PW-1) and Aadil (PW-2) who have categorically stated that on the date of incident i.e on 03.01.1986 at 04.00 PM, PW-3 along with his nephew deceased Akhlaq and Adil Hussain (PW-2) was going to his shop at Jogipura and when they reached near the temple at Lalpur, they saw all the four accused persons standing and waiting for them. PW-3 further deposed that at that time accused Rashid was having knife in his hand whereas accused Nasir and Kamil were having hockey and danda in their hands respectively. Immediately thereafter, appellant/accused Kamil gave a danda blow on the head of Adil Hussain (PW-2). When deceased Akhlaq tried to snatch hockey stick from accused Nasir, appellant/accused Kamil gave a danda blow on the head of deceased Akhlaq from behind. When deceased Akhlaq tried