JUDGMENT

Agarwal, J - This is a reference by the learned Sessions Judge of Gonda recommending that the convictions of the accused Barsati and Jumman, of the former under Section 325 and the latter under Section 323 be set aside and the case be remanded to the trial Court for a de novo trial. A complaint was made by one Mt. Suddha on 9th September 1941, against the accused Barsati and Jumman accusing them of offences under Sections 325 and 323. The case was tried by a Tahsildar Magistrate who convicted the accused under Sections 323 and 325, Penal Code. He sentenced Barsati accused to rigorous imprisonment for a month and half under Section 325 and a fine of Rs. 10 under Section 323. He sentenced Jumman to a fine of Rs. 15 under Section 323 and gave no punishment under Section 325. There was an appeal to the District Magistrate. He set aside the conviction of Barsati under Section 323 and maintained the conviction under Section 325. He dismissed the appeal of Jumman. There was a revision to the learned Sessions Judge of Gonda. It was argued before him that in the complaint and in the charge-sheet the date of the occurrence was stated to be 30th August 1941 at 6 p.m. and the accused were also questioned about the occurrence which took place on that date, but in the report made to the police the occurrence was said to have taken place on 31st August 1941 at 6 p.m. The learned Sessions Judge has made this reference on the ground that the applicants have been prejudiced by reason of this error and their convictions should be quashed and a retrial ordered. Section 225, Criminal P.C. provides:

No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.

2. There are illustrations to this section and one of them (d) is:

A is charged with the murder of Khuda Baksh on 21st January 1882. In factthe murdered person's name was Haidar Baksh and the date of the murder, was 20th January 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled and that the error in the charge was immaterial.

3. Section 537, Criminal P.C., also provides:

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Ch. 27 or on appeal or revision on account: (a) of any error, omission or irregularity in the...charge...(d)...unless such error, omission, irregularity...has in fact occasioned failure of justice.

4. The explanation to this section provides:

In determining whether any error, omission or irregularity in any proceedings under this Code has I occasioned a failure of justioe, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

5. It is clear that the mere fact that there was an error of date in the charge sheet is not enough to quash the conviction. We have to see whether this error has occasioned a failure of justice. I am of opinion that the accused have not been prejudiced in any way by this error. The prosecution evidence did not disclose any specific date, 30th or 31st August. They stated that the occurrence took place about two months ago. The accused's plea was that on the date of occurrence Barsati was in village Bilwa and Jumman was lying ill at his house. Two witnesses Nawazi and Idu were produced on behalf of Barsati and they stated that Barsati was cultivating some land in village Bilwa. They also did not state that he was there on any particular date. The third witness Mitthu stated that about 2J months ago, Jumman was lying ill at his house.

6. The defenc