The interestedness of eyewitnesses does not automatically render their evidence unreliable, and the omission to frame a specific charge may not be fatal unless it causes a miscarriage of justice.

I.A. Ansari, J.

1. This revision is directed against the judgment and order dated 22.11.95, passed by the learned Sessions Judge, Cachar, Silchar in Criminal Appeal No. 3(3) of 1995, whereby the learned Appellate Court, while upholding the conviction of the accused Petitioners under Section 435 IPC, modified the sentence by reducing the period of rigorous imprisonment for 6 months to 4 months with a fine of Rs. 300/- each and, in default, to suffer rigorous imprisonment for a further period of one month each.

2. The case against the accused Petitioners may be briefly stated as follows:

On 6.9.90 at about 9 AM while the informant, Gogen Roy, and his son, Subal Roy, were present at their paddy field and the wife of informant and his daughter-in-law were present at the house of informant, the accused Abhinash Dutta, accompanied by accused Dipak Das and some other persons numbering as much as 22/23, forcibly entered into the homestead of the informant and set fire to the cow-shed of the informant and while the informant's wife, Smt. Aragya Roy and daughter-in-law, Smt. Shibani Roy, raised protests against the alleged act of burning of their cowshed, the accused persons assaulted Smt. Aragya Roy and Smt. Shibani Roy and caused injuries on their persons. Seeing the smoke rising from their cowshed, the informant and his son, Subal Roy, rushed to the place of occurrence and they saw both the accused Petitioners present at the place of occurrence, accused Abhinash being armed with a mashal (i.e. lifted torch) in his hand. Immediately after the occurrence, the informant went to the Police Station and lodged there an FIR. The police accordingly registered Borkhola P.S. Case No. 194/90 under Sections 147 / 436/ 323 of IPC. In course of the investigation, police visited the place of occurrence, seized some half burnt materials lying there and sent the injured persons to doctor for treatment. On completion of investigation, police submitted chargesheet against the accused persons under Sections 147 / 436 /323 IPC.

3. During trial, the learned Trial Court framed charges under Sections 147 / 436 and 323 IPC. The accused Petitioners pleaded not guilty to the charges so framed. In support of their case, the prosecution examined as many as 7 witnesses. The accused Petitioners were, then, examined under Section 313 Code of Criminal Procedure and in their examinations aforementioned, the accused Petitioners denied that they had committed the offences alleged to have been committed by them, the further case of the defence being that it was the informant, namely, Gagon Roy, who had caused injuries on the persons of the accused Petitioners by throwing arrows, etc. The defence also adduced evidence and examined two witnesses. On conclusion of the trial, the learned trial Court found the accused- Petitioners guilty of the offences under Sections 435 and 323 IPC read with Section 34thereof and sentenced each of them to suffer rigorous imprisonment for 6 months and to pay a fine of Rs. 400 and, in default, to undergo rigorous imprisonment for a further period of 1 month each. Being aggrieved by their conviction and the sentence so passed, the accused-Petitioners preferred an appeal, which was disposed of as indicated hereinabove. The accused-Petitioners have, now, approached this Court with the present revision application.

4. I have heard Mr. MH Rajbarbhuiya, learned counsel for the accused Petitioners and Mr. F.H. Laskar, learned Additional Public Prosecutor.

5. At the time of hearing of this revision application, the conviction of the accused Petitioners has been challenged on two grounds. Firstly, that though charge under Section 436 IPC was framed, the conviction of the Petitioner was under Section 435 IPC and, hence, the omission to frame a charge under Section 435 IPC was contrary to the provisions of Section 211 Code of Criminal Procedure and as a result thereof, the conviction of the accused Petitioners under Section 435 IPC is not maintainabl