JUDGMENT
Varghese Kalliath, J.
1. This appeal concerns a brutal murder. Nelson aged 32 sustained stab injuries with a dagger, cut injuries with a chopper and fatal blows with an iron rod. He has sustained as many as thirty injuries. He succumbed to the injuries. According to the prosecution this unfortunate event happened on 21-3-1983 at 6.45 p.m. The fateful incident commenced from the southern room of the house of the deceased Nelson. It ended in the pathway on the western side of his house.
2. The prosecution alleged that the three appellants before us are responsible for the injuries inflicted on the body of the deceased. They were indicted for the offence of murder of Nelson and also for trespass under Section 452 IPC. They stood the trial before the Sessions Court, Trivandrum. They were convicted for the offence of murder under Section 302 read with Section 34 IPC and for the offence of trespass under Section 452 IPC. The Sessions Court sentenced the accused to undergo rigorous imprisonment for life under Section 302 IPC & R.I. for five years for the offence under Section 452 IPC. Now, the accused appeal.
3. The facts are these : Accused No. 1 is the first cousin of the deceased (Nelson’s father’s brother’s son). Accused 2 and 3 are close associates and friends of accused No. 1. It is said that a persistent enmity which was continuing for three years existed between accused and the deceased. Further, it is stated that about 1 1/2 years prior to the incident, there was a criminal case against accused Nos. 1 to 3 at the instance of the deceased wherein the trial court convicted the accused and the appellate court reversed the conviction. At the time of the incident, the said matter was pending before the High Court.
4. On the fateful day, while the deceased was taking his meals sitting in the southern room, the 1st accused trespassed into the room through the southern door, armed with an iron rod, (the Sessions Court calls this M.O. 1, as a crow-bar) and beat Nelson on his head with the iron rod. At once, Nelson stood up. By that time, A2 and A3 entered the room through the eastern door, A2 carrying M.O. 3 dagger and A3 carrying M.O. 2 chopper. Nelson immediately ran out of the room. He was chased by the accused. The pathway was on the western side. When he reached the pathway, accused 1 to 3 overtook the deceased, and inflicted a large number of injuries (the medical evidence shows that the deceased sustained as many as 30 injuries); A1 by beating with the iron rod, A2 stabbing with the dagger and A3 cutting with the chopper. Nelson fell, down at the commencement of the attack and when Nelson was lying with his face to the ground on the pathway, all the accused attacked him and inflicted the injuries.
5. As soon as Nelson ran away from the room, P.W. 2, his wife, and P.W. 4, his son, who were also in the room, followed him crying. They cried aloud. P.W. 3 Visalan reached the scene of occurrence and heard the loud cry of P.Ws. 2 and 4. He saw part of the incident. By that time, P.W. 5, the father of the deceased also reached the scene of occurrence. He was also able to see the latter part of the incident. After inflicting several injuries on the body of Nelson, the accused ran away with the weapons.
6. A neighbour fetched a taxi car and also informed P.W. 1, the uncle of Nelson. He also arrived at the scene of occurrence. The injured was taken to the Medical College Hospital by P.Ws. 1 to 5. On reaching the hospital, the doctor examined Nelson and said that he is dead. It is said by P.W. 1 that Nelson was taken to the hospital by about 8.30 p.m. and they reached the hospital by 10 p.m.
7. P.W. 1, on the next day at 8.45 a.m., lodged the First Information Statement, Ext. P1. It was recorded by P.W. 12, the Sub-Inspector of Police. He registered a crime. Subsequently P.W. 13, the Circle Inspector of Police took over the investigation. He went to the Medical College and conducted the inquest and prepared the inquest report, Ext.P6. He then proceeded to the scene of occurrence and prepared Ext.P4 scene mahazar. He questioned some of the witnesses. He did not complete the investigation because he was transferred. P.W. 11 took over the investigation on 2-6-1983andonthesamedayaccused 1 to3 were arrested. He recovered M.Os. 1 to 3 under Ext. P5 mahazar.
8. P.W. 6 is the doctor who conducted the post-mortem. In the post-mortem certificate he said that Nelson died of multiple injuries he has sustained.
9. The prosecution examined P.Ws. 1 to 13 to bring home the guilt of the accused, marked Exts. P1 to P6 and produced M.Os. 1 to 6. The accused examined D.Ws. 1 and 2 and marked Ext. D1, a CD. statement of contradiction.
10. The Sessions Court after considering the evidence in the case came to the conclusion that the prosecution has established the guilt of the accused beyond reasonable doubt and so convicted the accused.
11. Counsel for the appellants raised before us arguments on the merits of the case and also a legal technical point that the charge framed in the case is so bad that the accused are entitled to an acquittal or, at any rate this Court should direct a retrial of the case. We are bound to examine the questions raised by the counsel for the appellants. We shall consider first the arguments advanced by the counsel for the appellants on the merits of the case.
12. The case of the accused is one of total denial. This they have made it clear in their statements under Section 313, Crl. P.C. The counsel submitted that the incident has taken place not as attempted to be proved by the prosecution. Broadly he said that because of the enmity entertained by the deceased and his men against the accused they have foisted a false case on the accused.
13. P.Ws. 2 to 5 claim to be eye witnesses. We shall examine the criticism of the counsel for the appellants in regard to the ocular evidence given by P.Ws. 2 to 5.
14. P.W. 2 is the wife of the deceased. She has seen the incident in its entirety from the very commencement itself. She was in the room when the deceased sustained the first blow with the iron rod from the 1st accused. When the accused chased the deceased to the pathway, she also followed the deceased. She saw the individual acts of each accused and she has stated it very clearly and plainly before the court. She was standing very near to the deceased When the deceased was sustaining the injuries. She went to the deceased when the assailants ran away. She cried aloud. She said that she took the head of the deceased and placed it on her lap. She also said that along with her, her son P.W. 4 also ran to the pathway from the room. She deposed before court the presence of P.Ws. 1, 3 and 5. Her evidence appears to be very convincing.
15. Counsel for the appellants submitted that her evidence is unbelievable. According to the defence case, she was not in the locality when this incident took place. In order to establish this fact, the accused examined D.W. 2. Their case is that P.W. 2 was in her father’s house, a little away from the house of Nelson, on the fateful day and only after the death of Nelson she was brought from her parent’s house. For this purpose the accused relied on the evidence of D.W. 2 also. The evidence of D.W. 2 is most unconvincing and thoroughly unreliable. The Sessions Court also found so. D.W. 2 is clearly a hired witness. He says that he saw a car coming and stopping near the house of P.W. 2’s father. He made enquiries and wanted to go in the car to the place where Nelson was living. In chief examination he says that he entered the car but in cross-examination he would say that he was asked to keep watch of the house of P.W. 2’s father. But, he does not know anything about the other members of that household. At one point of time, he will say that he also entered the car, but he never said that he had not gone in the car. In fact, counsel for the appellants very fairly submitted that he is not relying on the evidence of this witness. So, the first attack that P.W. 2 was not able to see the incident since she was not in the locality has absolutely no basis.
16. Now, the counsel submits that the time of the incident given by the prosecution is not correct and that there is evidence in the case that Nelson might have sustained the injuries at the hands of somebody else after 6.45 p.m. and so there was no occasion for P.Ws. 2 to 5 to see the incident. For this aspect of the case, the defence relied on the evidence of D.W. 1. We have gone through the evidence of D.W. 1 and we feel that it is very unsafe to rely on the evidence of D.W. 1. D.W. 1 himself admits that one Sarasan is the son of his father’s sister and the said Sarasan has married the sister of the 3rd accused. He further says that he is prepared to help the 3rd accused in case it is needed. We quote his own words : (Matter in vernacular omitted Ed.)
It has to be remembered that Vasavan is facing a murder trial and in fact the help of this witness is pressed into service to say that the prosecution case is not as unfolded from the evidence of the prosecution witnesses. It is very unsafe to rely on the testimony of this witness. Of course, the counsel submitted that there are other circumstances which would probabilise the case of the defence that the incident might have happened sometime after 6.45 p.m. or rather, after sunset. This the counsel submits relying on certain minor discrepancies in the evidence of the witnesses in regard to the exact time. It is in evidence, one witness had said the time as 7 p.m. and P.W. 4 said that it was after sunset. We cannot give much importance to these minor discrepancies in the evidence of these witnesses. All of them have said very clearly and plainly that they have seen the incident and identified the accused. All the accused were known to the witnesses. But counsel submits that it. is in evidence that the injured was taken to the hospital by about 8.30 p.m. and that the injured reached the hospital only by 10 p.m. These circumstances also have to be taken into account to determine the time of the incident.
17. The incident took place in a village and a taxi car was not easily available there. The fact that the deceased was taken to the hospital by 8.30 p.m. is not a pointer to say that the incident might have happened not as stated by the witnesses. Further, it has to be noted that the injured was carried to the place Where the car was brought for taking the injured and it is in evidence that they were not able to carry the injured at one stretch. It all means that some time might have taken for taking the injured to the hospital. Any how, the argument of the counsel for the appellants that the time of the incident as disclosed from the evidence of the prosecution witnesses is not correct cannot be accepted.
18. P.W. 1’s evidence is fully corroborated by the evidence of P.W. 4. Of course, he is a childwitness. The court put some preliminary questions to the witness and found that the witness is capable of giving proper answers to the questions put to him. This child witness is giving very convincing evidence. He fully corroborates the evidence of his mother, P.W. 2. There is no infirmity attached to the evidence of this witness. Further, it has to be noted that the evidence of this witness is corroborated by the evidence of P.W. 2.
19. P.Ws. 3 and 5 have not seen the incident from the beginning to the end. Some minor improbabilities have been pointed out by the counsel for the appellants in regard to the evidence of P.Ws. 3 and 5. He said that P.W. 3 had no reason to choose the western pathway to reach his house. P.W. 3 says that he has chosen that pathway since it is a short cut. There is no reason to disbelieve him on this score. Similarly, in regard to P.W. 5, the counsel submitted that there is no possibility of this witness seeing the assailants chasing the deceased from the southern room to the pathway and when P.W. 5 has said so he is not deposing before court truly and correctly. It is in evidence that this witness is residing very close to the house of the deceased. There is nothing improbable in this witness seeing the accused chasing the deceased from his room to the pathway. Anyhow, these minor matters may not be sufficient for attacking the evidence of these witnesses. Further, it is said that P.W. 5 along with his son were involved in criminal cases and so his testimony cannot be accepted. It has to be noted that P.W. 5’s evidence is being used as a corroborative piece of evidence. The main evidence is given by P.Ws, 2, 3 and 4. P.W. 3 also has deposed before the court corroborating on all material points brought out by the prosecution from the evidence of P.Ws. 2 and 4. If we believe the evidence of P.Ws. 2 to 5, it is clear and plain that the accused are responsible for the injuries inflicted on the body of the deceased.
20. The prosecution has attempted to add one more link in the evidence by the recovery of the weapons used by the accused. The prosecution wanted the confessional statement, of the accused to be used as evidence under Section 27 of the Evidence Act. Ext. P5 is the mahazar prepared for the recovery of the weapons. Ext.P5(a) is the portion of the statement given by the accused which is alleged to have led the Police Officer to discover the weapons. But the statement given by the accused is a joint statement. It reads thus:
(Matter in vernacular omitted…Ed.)
The above portion is marked as Ext.P5(a). True it is proved by P.W. 11, the Circle Inspector of Police, and it is said that pursuant to the said information given by the accused, M.Os. 1 to 3 were recovered from near Kariyode Sri Bhadrakali Temple in the presence of P.W. 9. From the very nature of the statement it is difficult to use the statement for the discovery of the weapons as evidence coming within the four corners of Section 27 of the Evidence Act. The trial court has not relied on this evidence. We feel that the trial court has done correctly.
21. Counsel for the appellants submitted that the evidence in this case has to be considered in the light of the long delay occasioned in filing the First Information Statement. The incident took place at 6.45 p.m. on 21-3-1983 and the deceased succumbed to the injuries and that was declared by the doctor at 10 p.m. on 21-3-1983. The first Information Statement was lodged by P.W. 1 at 8.45 a.m. on 22-3-1983. Considering the time of the incident and the time when the First Information was lodged, it may appear that there is delay in lodging the first information statement. First it has to be noted that the First Information Statement has been filed by P.W. 1 who was not an eye witness. The evidence of this witness is not so very important for the prosecution to bring home the guilt of the accused. True, P.W. 1 states in the First Information Statement the names of the accused and that he got the names from the eye witnesses. It is in evidence that P.W. 1 and other witnesses, namely, the wife P.W. 2, father P.W. 5 and son P.W. 4 and P.W. 3, the neighbour, all went to the Medical College Hospital and returned from there only after 10 p.m. and it issaid that they reached their house only by about 12 p. m. It cannot be said as an abnormal conduct on the part of P.W. 5 and P.W. 2 in not informing the Police immediately after they got the knowledge that Nelson died on account of the injuries he had sustained. In the circumstances P.W. 2 the widow may not go to the Police to inform the incident. Similarly the father who was suffering the agony of the death of his son also may not very promptly report the matter to the Police. P.W. 1 said that he reached his house from the Medical College Hospital only by 12 p.m. and he was told by one Sundaresan that he should inform the Police about the crime. He went to the Police station which is 8 Kms. away from the residence of P.W. 1 and filed the First Information Statement at 8.45 a.m. The circumstances narrated above can be treated as a valid explanation for the delay caused in filing the First Information Statement. The evidence of the witnesses, particularly the eye witnesses, cannot be doubted on account of the fact that the First Information Statement was lodged only at.8.45 am. the next day. We feel that this is not a point on which the counsel for the appellant can persuade us to doubt the veracity of the evidence given by the witnesses.
22. From the evidence it is clear that all the accused were armed with weapons and that too with deadly weapons. The manner in which they have committed the crime unequivocally declares that they have entertained with them the common intention to kill the deceased. We have no hesitation to hold that the accused inflicted the injuries on the body of Nelson with the common intention to kill Nelson. There is also clear evidence that they trespassed into the room with this intention.
23. We hold that on the facts proved in the case the accused are liable to be convicted for the offence of murder under Section 302 read with Section 34 I.P.C. From the evidence it is proved that they are also liable to be convicted for the offence punishable under Section 452.
24. Now we shall consider the question of the defect in the charge framed by the Court. Counsel for the appellants submits that as against accused numbers 2 and 3 there is an omission to frame a charge under Section 452 of the IPC and in regard to all the accused the charge framed under Section 302 read with Section 34 I.P.C. is incurably defective in so far as the materials given in the charge framed do not disclose the essential details that are necessary to enable sufficient notice as regards their culpability of the offence. Counsel submits that there is no mention of one of the weapons used by one of the accused, namely, the chopper. In order to understand this contention we shall quote the second part of the charge framed by the Sessions Court : “that on the same date and time, due to the previous enmity towards the deceased and in furtherance of your common intention and with the intention to cause death of the deceased Nelson caused fatal injuries on the head and several parts of his body by beating with an iron rod and cut injuries with a dagger in your hand and thereby deceased Nelson sustained injuries on his various parts of his body and he succumbed to his injuries at about 10 p.m. on 21-3-1983 and thereby you have committed an offence punishable under Section 302 IPC read with Section 34 of IPC and within the cognizance of this Court”. It has to be noted that the charge begins with these words, I….charge you, Raghavan Nadar Raghu,…Lekshmanan Surendran…Madhavan Vasavan,….accused Nos. 1 to 3 as follows:”.
25. Counsel submitted that since the charge framed is not in accordance with law, the trial is vitiated and so the conviction is illegal. He claims that the accused must either be acquitted or at the worst retried. He adds that in the circumstances of the case the court should not exercise that discretion of ordering a retrial.
26. Counsel cited before us a number of decisions which according to him will support his argument. He referred us to Krishnan v. The State , Pritam Singh v. State of Punjab , Azizul Haq v. State 1980 Cri LJ 448 (All) and V.C. Shukla v. C.B.I. 1980 SCC (Cri) 695 : 1980 Cri LJ 690. He also referred us to W. Slaney v. State of M.P. and tried to explain that case in the light of the observations in V.C. Shukla v. C.B.I. 1980 SCC (Cri) 695 : 1980 Cri LJ 690. Counsel though referred to these decisions and wanted us to rely on these decisions, very fairly reminded us against standing by previous decisions by a too rigid application of the doctrine of precedent. He pointed out the following passage from W. Slaney v. State of M.P. : But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were”. It reminds us these lines :
That codeless myraid of precedent, That wilderness of single instances
(Vide Aylmeir Field)
The precedents are quoted because the practice has got a peculiar fascination. If a judge feels to accept the precedent quoted, it gives him a way of escape. It relieves him of the difficulty to think for himself or even decide for himself. He feels that the matters to be considered have already been decided by the previous authority.
27. Anyhow, precedent is law only in regard to certain binding principles. In regard to facts decided in the precedent it will have its own peculiarities and we have to remember that facts “can never be alike in any two cases, however alike they may seem”.
28. We do not want to refer to all the cases cited by the counsel for the appellants. The counsel chiefly relied on the principles laid down in Suraj Pal v. State of U.P. and V.C. Shukla v. C.B.I. 1980 SCC (Cri) 695 : 1980 Cri LJ 690.
29. Before considering the decisions cited by the counsel we shall briefly state the statutory mandate in regard to the framing of charges in the new Code. Chapter XVII of the Criminal Procedure Code deals with ‘charge’. Section 211 dictates the contents of the charge. It reads thus:
211. Contents of charge. (1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by the name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to astatement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the Court.
(7)….
Section 212 further deals with the particulars. as to time, place and person to be mentioned in the charge. We shall quote Section 212 also.
212. Particulars as to time, place and person. (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, of the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the grosssumor, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219:
Provided that the time included between the first and last of such dates shall not exceed one year.
From the above quoted sections, we may pose the question what all matters the accused person is entitled to know from the charge and in what way does the charge in this case fall short of that ? According to us, all what the accused persons are entitled to get from the charge is (1) the offence with which they are charged (2) the law and section of the law against which the offence is said to have been committed, (3) particulars of time, place and person against whom the offence is said to have been committed. Further it is provided under Section 223 that if the nature of the case is such that those particulars do not give the accused sufficient notice of the matter with which he is charged, such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose also should be given. The accused is not entitiled to any further information in the charge. Illustration (e) to Section 223 of the Code is instructive to resolve the specific point raised by the counsel. Illustration (e) states that “A is accused of the murder of B at a given time and place, the charge need not state the manner in which A murdered B”. From the illustration it is clear that if the charge is one of murder, the accused is not entitled to be told how he committed the murder. Considering this aspect of the matter Bose J. in W. Slaney v. State of M.P. said : “When the case is one of murder the accused is not entitled to be told in the charge how it was committed whether with a pistol or a lathi or a sword. He is not entitled to know from the charge simpliciter any further circumstance. How then is he expected to defend himself ? He has the police challan, he has the evidence recorded in the Committal Court, he hears the prosecution witnesses and he is examined under Section 342 of the Code.
It is these proceedings that furnish him with all the necessary, and indeed vital, information, and it is his duty to look into them and defend himself. It will be seen that if the logic of the appellants’ contention is carried to its fullest extent the accused could complain of prejudice because he was not told in the charge whether a pistol was used for the crime or a sword and if a pistol, its calibre and bore and the type of cartridge”.
30. We feel that the object of framing a charge is not to introduce a mandate in the statute that goes to the very root of the jurisdiction like the requirement of previous sanction under the statute for taking congnizance of certain offences, but is only to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. In this connection, we would like to refer to Section 215 of the new Code of Criminal Procedure. It gives what the statute intends as the effect of an error in framing the charge. It reads thus : “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”. It is plain and clear from what is stated in the above section that when there is a charge and there is either error or omission in the charge itself or both, and whatever the character of the error or omission, whether it is serious or trivial, it is not to be regarded as important unless two conditions are fulfilled both of which are in the realm of facts. (1) the accused has ‘in fact’ been misled by it and (2) the omission or error or both have occasioned a failure of justice.
31. Now, let us consider a case where there was an error or omission and that omission or error was not observed and corrected during the trial and the accused is convicted. In such a situation, the appellate court is empowered to direct a retrial only in case, in the opinion of the court of appeal, a failure of justice has in fact (emphasis added) been occasioned thereby. This we say because of the provisions contained in Section 464 of the Criminal Procedure Code. The section deals with the effect of omission, error or irregularity in the charge or absence of it. It says,
464. Effect of omission to frame, or absence of, or error in charge: (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) if the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit;
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
The language used in the section is clear, plain and, in fact, very wide and emphatic. We say that it is emphatic since it has to be noted that even when a death sentence is under review in confirmation proceedings, the court is expressly directed not to regard any error, omission or irregularity or absence of a charge as fatal unless, in fact, it has occasioned a failure of justice. The earlier sections confined the limits within which the court may convict in spite of the fact that there is no charge for that particular offence. If Section 464, Crl P.C, is read side by side with other sections, it is clear that no finding, sentencees or order by a court of competent jurisdiction shall be deemed invalid on account of the fact that no charge was framed, or on the ground of any error, omission or irregularity in the charge unless those matters in the opinion of the court of appeal have, in fact, occasioned failure of justice.
32. If we trace the history of these sections, it is easy to understand the reason behind these provisions. At one point of time it was thought that the provisions of the Code which mandated the procedure prescribed in the matter of trial were so vital as to make any deviation therefrom an illegality that could not be rectified. Later, it was thought that such an illegality applies only when there is an express prohibition and there is actual prejudice. These ideas are clear from the decision reported in Subramonia Iyer v. King Emperor (1901) 28 Ind App 257 (PC). The Privy Council said : “The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity”. This dictum was again considered in Abdul Rahman v. Emperor AIR 1927 PC 44 : 1927-28 Cri LJ 259. The Privy Council again said : “The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused”. Viscount Sumber in Atta Mohammad v. Emporor AIR 1930 PC 57 : 1930-31 Cri LJ 378 said : “In the complete absence of any substantial injustice, in the complete absence of anything that outrages what is due to natural justice in criminal cases, their Lordships find it impossible to advise His Majesty to interfere”. The remedial provision, particularly the provision in Section 464, Crl.P.C, finds rationale, we feel in what the Privy Council has said in Babulal Choukbani v. Emperor AIR 1938 PC 130 : 1938-39 Cri LJ 452 : “It must be hoped, and indeed assumed, that magistrates and judges will exercise their jurisdiction fairly and honestly. Such is the implied condition of the exercise of judicial power. If they do not, or if they go wrong in fact or in law, the accused has ‘Prima facie’ a right of recourse to the superior courts by way of appeal or revision; and the cases show how vigilant and resolute the High Courts are in seeing that the accused is not prejudiced or embarrassed by unsubstantial departures from the code and how closely and jealously the Supreme Court guards the position of the accused. These safeguards may will have appeared to the Legislature to be sufficient when they enacted the remedial provisions of the Code and have now left them substantially unaltered in the new Code recently introduced”. The ultimate analysis of these provisions would make the matters very clear and plain. It is that the whole question is whether the accused had a fair trial. Did he get the knowledge about what he was being tried for and whether he was given a full and fair chance to defend himself. Further, if the accused had a fair trial for the offence with which he was charged and no prejudice is established, the conviction must stand “whatever the irregularities”, whether traceable to the charge, or to a want of one. The predominant devoir of the Code is to ensure that an accused person is given a full and fair trial on the basis of the well established and well understood norms that accord with our precept of natural justice. The Code is designed to streamline the ends of justice and it has no design to frustrate the ends of justice by introducing into it unsubstantial didactic subtleties. Finally, the matter has to be decided on the facts whether the accused has been prejudiced by any error, omission or irregularity in the charge or the absence of one.
33. With these preliminaries, we shall examine the question of law raised by the counsel for the appellant. He referred us to Surajpal v. State of U.P. . That was a case under Section 307/149 and Section 302/149 of the India Penal Code. There were a number of accused in that case. The finding was that there was no common object to kill. Hence all the accused were acquitted under Section 149, I.P.C. the offence in that case revealed that the appellant had himself made an attempt on the life of one man and had himself shot another dead. So, the High Court convicted that accused under Sections 307 and 302 I.P.C. In the charge framed there was no separate charge under either of those sections. The conviction was challenged before the Supreme Court. The Supreme Court said that the omission to frame a charge is a serious lacuna. The Supreme Court did not stop it there. It said that the real question is whether that lacuna had caused prejudice to the accused. The learned Judges examined the evidence to decide the question of prejudice. The Supreme Court then finally found on facts that prejudice was caused to the accused and so ordered acquittal. The facts here are totally different. Here, in the charge, there is specifict mention of the offences; under Section 302 read with Section 34 of the India Penal Code. The only irregularity, if at all it can be said to be an irregularity is the non-disclosure of the essential facts disclosing how the offence has been committed and that the charge does not disclose clearly the weapons used by each of the accused.
34. The essential requirement of the charge is that the accused should be told that they are charged for the offence of killing Nelson with the common intention to kill him under Section 302 read with Section 341.P. C.We do not think that the case will be of any assistance or help to the accused in this case. Considering the dictum of , the Supreme Court in W. Slaney v. State of M.P. AIR 1955 SC 116 : 1956 Cri LJ 291 said that in the learned Judges decided the case on the facts disclosed in that case and came to the conclusion that the accused was prejudiced.
35. Now, in this case, the question whether the accused was prejudiced or not, as far as the main charge, namely, the charge under Section 302 read with Section 34 IPC, is concerned, is really a secondary question. We shall consider the question of prejudice separately.
36. Counsel for the appellants referred us to the decision reported in V.C. Shukla v. C.B.I. 1980 SCC (Cri) 695 : 1980 Cri LJ 690. This case related to an order of the Special Judge appointed under the Special Courts Act, 1979. By the order, the learned Judge directed a charge to be framed agfainst the appellant before the Supreme Court under Section 120-B,IPC, read with Section 5(l)(d) and 5(2) of the Prevention of Corruption Act, 1947 and also under Section 5(2) read with Section 5(l)(d) of the said Act. The appeal was filed by the accused under Section ll(l)of the Special Courts Act. A preliminary objection was raised by the prosecution as to the maintainability of the appeal since the framing of the charge is purely an interlocutory order within the meaning of Section 11(1) of the Special Courts Act and no appeal would lie against such an order. The question was referred to a larger Bench even at the stage of premilinary hearing, the larger Bench ultimately held that the order impugned in the case was an interlocutory order and the appeal filed against that order before the Supreme Court was clearly not maintainable. The appeal was dismissed. Several questions were considered in the case. Counsel referred us to para 110 from the judgment of Desai J. who concurred with the majority opinion of the court. In para 110 he said : “Charge serves the purpose of notice or intimation to the accused, drawn up according to specific language of law, giving clear and unambiguous or precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial. Section 211 clearly prescribes what the charge should contain and a bare reading of it would show that the accused must be told in clear and unambiguous terms allegations of facts constituting the offence, the law which creates offence with a specific name, if given to it, and the section which is alleged to be violated with the name of the law in which it is contained. The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. It is thus an intimation or notice to the accused of what precise offence or what allegations of facts he is called upon to meet. The object of a charge is to warn an accused person of the case he is to answer”. After stating thus, Desai J. relied on the observation of Bose J. in that “the importance of framing the charge need not be overemphasised and that this should be shunned….” Desai J. further quoted Bose J. in . It reads thus : “We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials. We are unable to find any magic or charm in the ritual of a charge. It is the substance of these provisions that count and not their outward form, to hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent”. In short, we feel that the passages relied on by the counsel for the appellants from the decision of Desai J. in 1980 SCC (Cri) 695 : 1980 Cri LJ 690 are practically of no support to substantiate the case that the charge framed in this case under Section 302 read with Section 34 IPC is so defective as to persuade a court to hold the conviction under the said charge as invalid and hence requires the case to be retried.
37. As against accused Nos. 2and3, there is an omission to frame a charge under Section 452, IPC. The Public Prosecutor referred us to certain decisions to emphasise the fact that the defect of an omission to frame a charge is a defect which ought to have been pointed out at the outset at the first stage of the trial and that if it has not been done, the Courthas to consider the question of prejudice in the light of the fact that the defect has not been taken at the first stage of the trial.
38. Now, we shall consider the question of prejudice. In considering the question of prejudice, the Supreme Court has said that the Court is bound to examine whether actual prejudice has been caused in the trial of the case. What exactly is prejudice in the context has been said by Bose J. in thus : “Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Truly, the Court is bound to look at the substance of the matter. It is the prime duty of the Court to administer justice. To punish the guilty is part of that administration of justice and is as important as giving protection to’ the innocent “Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labrynth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction”. Vide .
39. Considering the facts of this case, we hold that no prejudice had been caused to the accused in the matter of an omission to frame a specific charge under Section 452, IPC as against accused 2 and 3 and the non-disclosure of the specific instruments used by each accused for the commission of the offence in regard to the charge under Section 302 read with Section 34, IPC. The charge under Section 452 is a minor or rather a secondary charge when the accused are primarily charged with the offence under Section 302 read with Section 34 and convicted for the same.
40. It is seen that the accused were represented by a lawyer before the trial Court. No complaint was raised as regards the omission to frame a charge under Section 452 or the irregularities in regard to the charge under Section 302 read with Section 34, IPC. The ocular evidence in this case clearly established the specific criminal acts alleged against each of the accused. The eye-witnesses have said clearly that all the accused trespassed into the southern room of the deceased and other individual acts of the offence. These witnesses were cross-examined at length. The evidence given by these witnesses were analysed by the Court below and put to the accused in the form of questions under Section 313, Cr.P.C. The case of the accused was a case of total denial. Further, it has to be noted that the accused examined two defence witnesses to establish the fact that the time of death alleged by the prosecution is incorrect and also that one of the eye-witnessss was not in the locality at the time when the incident took place. But the accused were not successful in establishing these facts. Bose J. on behalf of himself and S.R. Das, Ag. C. J., said in .”…But if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is, not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage.” Further, his Lordship said, “If it was not, and particularly where the accused is defended by counsel, it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused.”
41. On the facts disclosed in the case, we feel that no prejudice is caused in fact to the accused in the omission to frame a specific charge under Section 452. Assuming that there are some irregularities in framing of the charge under Section 302 read with Section 34, IPC, the facts unfolded in the case tell us that the accused have not in fact sustained any prejudice. We feel that there is no merit in the technical point raised by the counsel for the appellants on the basis of the defect in the charge of the absence of a charge under Section 452 as against accused 2 and 3.
In the result, we see no merit in this appeal and the appeal is only to be dismissed We do so.