IMPORTANT POINT
Conviction should be tested on the touchstone of prejudice theory.

Judgment :

Dr. B.S. Chauhan, J.

1. This appeal has been filed against the judgment and order passed by the High Court of Patna in Criminal Appeal No.328 of 2003 affirming the judgment and order of the trial court dated 30th May, 2003 and order of sentence dated 2nd June, 2003 passed in Sessions Trial No.122 of 2002.

2. The facts and circumstances giving rise to this appeal are that a First Information Report was lodged on 12.10.2001 against Munilal Sahni, Biswanath Sahni, brother and father of the appellant respectively. Golu Paswan and Kishore Thakur under Sections 394/302/34 of the Indian Penal Code, 1860 (in short "IPC") and Section 27 of the Arms Act for the murder of deceased Bhola Chaudhary. During the course of investigation, it came to light that the appellant had conspired with his father and brother to finish Bhola Chaudhary. Charge sheet was filed against Munilal Sahni, Biswanath Sahni and the appellant. At the time of framing of the charge on 21.11.2002, the appellant was charged only under Section 120-B IPC alone and the co-accused Munilal Sahni was charged under Sections 302/34, 394 and 412 of the IPC and Section 27 of the IPC. Accused Bishwanath Sahni was charged under Section 302/34 IPC. None of the co-accused was charged for conspiracy under Section 120-B IPC. The appellant was not charged with any other offence except under Section 120-B IPC though the specific case of the prosecution was that the appellant hatched the criminal conspiracy with his father and brother to eliminate Bhola Chaudhary. On conclusion of the trial, the appellant was convicted vide judgment and order dated 30.5.2003 under Section 120-B IPC and was sentenced to undergo rigorous imprisonment for life. Accused Bishwanath Sahni was convicted under Section 302/34 IPC and sentenced to R.I. for life. Accused Munilal Sahni was convicted under Sections 302, 394 and 412 of the IPC and sentenced to undergo R.I. for life under Section 302, R.I. for seven years under Section 394 and R.I. for three years under Section 412 IPC. He was further convicted under Section 27 of the Arms Act and sentenced to undergo R.I. for one year.

3. Being aggrieved, all the convicted persons including the present appellant filed appeal which has been decided by the impugned judgment and order dated 13.12.2007 by which the High Court acquitted Bishwanath Sahni, giving benefit of doubt. Appeal of the present appellant and Munilal Sahni was dismissed.

4. Munilal Sahni challenged the judgment and order of the High Court and his special leave petition has been dismissed by this Court. Hence, the present appeal by appellant, Sanichar Sahni.

5. Mr. A.P. Sahay, learned counsel appearing for the appellant has submitted that there was no evidence for hatching the conspiracy so far as the appellant is concerned. The appellant had falsely been implicated in this case and no charge of conspiracy under Section 120B IPC had been framed against any of the co-accused and hence it is not permissible in law to convict the appellant under the said charge as he has also not been charged for any other offence. No person can conspire with himself. Therefore, the appeal deserves to be allowed.

6. On the other hand, Shri Chandan Kumar, learned counsel appearing for the State of Bihar has vehemently opposed the submission made by the counsel for the appellant submitting that there was sufficient evidence against the appellant for collecting "Rangdari" from the deceased Bhola Chaudhary. However he could not pay at one time, when the appellant was in jail for committing some other offence. Appellant came from jail to the Court and his father and brother met him there. The appellant conspired with them to eliminate Bhola Chaudhary. If there has been some defect in framing of the charge, unless the appellant shows what prejudice has been caused to him, judgment and order of conviction passed by the courts below should not be interfered with on such technicalities. The appeal has no merit and is liab