JUDGMENT

V.D. Gyani, C.J. (Actg.)- The appellant stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life by Sessions Judge, Goalpara in Sessions Case No. 83 (G) 86, decided on 4-9-1995.

2. Exactly thirteen years ago from today (19-3-1997), on March 20th 1984, around 8 A.M., a quarrel took place between P.W. 4 Somiran Khatun, the daughter of the deceased Fatik Ali, and mother of the accused Somiran who was joined by her daughter-in-law Hajera (wife of the accused) and Akai. Although according to the FIR Ext. 1, the place of occurrence is shown to be the house of the complainant, the trial Court has found it as fact that there was no material to hold that the incident occurred in the complaints house. It was the courtyard, according to some witnesses (P.Ws. 6. 7 and 8). The I.O. is silent about it in his evidence. The fact remains that the accused-appellant in the midst of quarrel that was going on came with a 'Shabbal' a crowbar and dealt a blow on the head of the deceased, which proved fatal.

3. The appellant along with four others, namely, (1) Somiran Bewa, (2) Hajira Khatoon, (3) Akai Bibi and (4) Tuna Khatoon @ Benda Khatoon were charged and tried for offences punishable u/ss 47, 448, 302/149, 323/149 IPC, while other accused including the appellant have been acquitted by the trial Court of all the charges framed against them, it is only the appellant who has been convicted u/s 302, IPC and sentenced to undergo imprisonment for life with fine of Rs. 1,000/- and in default of payment of fine to suffer three month's R.I.

4. Two facts, be noted here (1) that there is no appeal preferred by the State against acquittal of the accused: (ii) that there was no charge framed u/s 302 IPC simpliciter against the convicted accused-appellant. The charge as framed is 302 read with Section 149 IPC, no alternative charge u/s 302 IPC and other accused have been acquitted.

5. Learned counsel Mr. B.B. Deori, appearing for the appellant faced with overwhelming evidence of eyewitnesses, corroborated by medical evidence has raised but one point, while not disputing the act attributed to the appellant. He has challenged the appellant's conviction u/s 302 IPC on two counts:

Absence of charge u/s 302 IPC causing prejudice to the accused in his defence.

Even if the prosecution case is accepted on its face value, the act would fall within the purview of Section 304 Part-II IPC.

6. The charge as framed in the instant case reads as follows:

"Thirdly. That you on or about the same day time and place you being a member of an unlawful assembly with the common object of killing, Fatik Ali, one of you namely Sukar Ali, committed murder by causing the death of Fatik Ali and therefore, all of you are guilty of murder u/s 302 IPC read with Section 149 and thereby committed an offence punishable under Section 302/149 of the Indian Penal Code and within my cognizance."

It would be seen that there is no charge framed u/s 302 IPC simpliciter, of which the appellant has been found to be guilty but reading the charge as it is the specific overt act of causing death of Fatik Ali is attributed to the accused appellant and none else. As such no prejudice can be said to have been caused to him but at the same time we would like to observe that while framing charge the trial Court must give a serious thought, to avoid framing defective charges which gives rise to such arguments being advanced in appeal. It can be avoided by framing alternative charge under the substantive head. In the case at hand, the language of the discharge has saved the situation. The Supreme Court has also observed in Willie (William) Slaney v. State of Madhaya Pradesh1.

"He contends that as he was not charged with having murdered the man personally he cannot be convicted under Section 302. He relied on certain observations in AIR 1995 SC 274 and contends that the conviction is an illegality which cannot be cured and claims that he must either be acquitted or at the most be retr