IMPORTANT POINTS
1. Error in framing of charge will not be fatal to prosecution case unless it wasfound that accused was misled and it occasioned failure of justice.
2. Section 397 IPC does not provide for joint liability and it only applies to person who himself uses deadly we.apon or causes grievous hurt.

JUDGMENT

Joytosh Banerjee. J.- These two appeals have been directed against the same judgment dated 15-5-1991 delivered by Sri H.K. Roy Basunia. Additional Sessions Judge. 5th Court, Alipore in Sessions Trial No.4(lI)1

1990. through which the learned Additional Sessions Judge found both .the appellants guilty of the charges framed against them under Section 395/397. I.P.C. and convicted them under the same. Subsequently. on the same day both the appellants. on their conviction under Section 395. I.P.C. were sentenced to suffer RI. for 8 years and also to pay fine of Rs. 2.000/- each in default to suffer R.I. for a further period of 6 months. They were further sentenced to suffer R.I. for 7 years on their conviction under 397. I.P.C. and the learned Judge indicated in the judgment impugned that both the sentences would run concurrently. Being aggrieved by the aforesaid conviction and the sentence awarded the appellants preferred two separate appeals which have been taken up together for hearing and the present judgment will dispose of both such appeals.

2. Briefly stated the case of the prosecution is that the informant Biswadeb Baidya came to Falta P.S. on 31-7 -1984 in the morning at about 7.05 A.M. accompanied by his son Badal Baidya and co-villagers Narayan Mondal and lodged the information that last night at about 11 P.M. he along with his wife and daughter went to sleep after taking meal. They woke up when flashes from 4/5 torch light had reached the room through the window there they were sleeping. His wife wanted to know who were they and in reply one of the miscreants who were flashing the torch asked her to open the door. The informant could understand that the dacoits had came, So he started shouting from inside the room for help.

In the meantime, the miscreants manage to break open the door and thereafter 718 persons entered inside the room with torch, lathi, pipe gun, axe etc. One of the miscreants hit him on his forehead with the axe as a result of which he sustained injury. 2/3 miscreants hit me with lathi, shovel. On being hit thus the informant fell down on the ground. Thereafter, the dacoits snatched away one pair gold ear ring, one gold nose ring. 4 pieces of gold plated bronze churi, silver chain from the person of his daughter and also snatched away one gold tub fixed with red stone. 6 pieces of gold plated bronze churi and other ornaments from the person of his wife. The dacoits broke the lock of the next room and looted articles kept there by breaking the trunk and drawer.

3. The police on the basis of the aforesaid information started a case, arrested number of persons in connection with the case and ultimately submitted charge-sheet under Section 395/397/412. I.P.C. against the 2 appellants of the 2 appeals. The learned Additional Sessions Judge on consideration of the papers referred to under Section 173. Cr.P.C. raised charges under Section 395 read with Section 397 of the I.P.C. against both the appellants and the trial proceed when both the appellants pleaded not guilty to such charge.

4. The only point for our consideration in the present appeals, whether the order of conviction and sentence passed by the learned Sessions Judge should be sustained or not.

5. The learned Advocate for the appellants on the very beginning of his argument has submitted that the charge is defective. In this connection, the learned Advocate has drawn our attention to the fact that in the instant case charge under Section 395 read with Section 397, I.P.C. was raised against only two appellants and there was no indication in such a charge that there were also others involved in the offence complained of. It is submitted that the proof of commissions of offence punishable under Section 395 should be a robbery or attempt to rob by five or more persons who are either joint actors or some of whom, actually commit the robbery, while the others are abettors being present but not actually participating in the commission of robber