TMI Blog1988 (9) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... that (1) it appears from the heads of the charges framed by the learned Additional Sessions Judge that the principal accused Laisal Haque was charged along with other accused persons under Section 302 read with Section 149 of the Indian Penal Code, 1860 alleging that in furtherance of the common object of killing the deceased Gulam Rabbani and injure others, all the rioters committed the murder of Gulam Rabbani. If such a charge was framed against all the accused persons including Laisal Haque, there was no warrant of framing a charge against the accused Laisal Haque under Section 302 simpliciter, 'without making that charge as an alternative charge'. (2) The charge framed by the learned Additional Sessions Judge as against the accused persons was materially defective inasmuch as it was a 'rolled up charge', the common object of the unlawful assembly being to murder Gulam Rabbani and injure others. The use of the words 'injure others' without specifically mentioning the names of the persons who were injured made the charge vague and indefinite. Instead the learned Additional Sessions Judge ought to have framed separate and distinct charges for the assault a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Advocate for the State. Further, the conviction and sentence under Section 324 or Under Section 323 I.P.C. simpliciter without framing the charges does not appear to be legal, and have caused the failure of justice. The learned Judges accordingly held that the case required a retrial against the accused respondents alone as against 16 out of 42 persons arraigned by both the learned Additional Sessions Judge on reframing of charges. This was done without disturbing the order of acquittal recorded by the learned Additional Sessions Judge and 26 other accused. The learned Judges were pleased to add that no observation made by them in the impugned order of retrial shall be treated as an expression of opinion on the merits of the case. 4 It would be convenient at this stage to set out the charges framed by the learned Additional Sessions Judge which were in these terms: First-That you all on or about the 5th September 1980 at Najarnagar alias Sankarpore Ferryghat and P.S. Haroa were members of an unlawful assembly and did in prosecution of the common object of which assembly viz. to murder Gulam Rabbani and injure others, commit the offence of rioting and at that time wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separately, applies. Section 218 embodies the general rule as to the trial of accused persons which provides for separate trial of each accused person for every distinct offence and is based on the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet. Section 221 applies to a case only when from the evidence led by the prosecution it is doubtful which of several offences has been committed by the accused person. There must not be any doubt as to 'a single act or series of acts' which constitutes the transaction, that is to say, there must not be any doubt as to the facts. The doubt must be as to the inference to be deduced from these facts, thus making it 'doubtful' which of several offences the facts which can be proved will constitute. In the present case, there is no doubt as to the facts. It is uncontroverted from the facts found by the learned Additional Sessions Judge that the sylvan surroundings of Shankarpore Ferryghat at Najarnagar on the banks of the river Bidyadhari which otherwise are peaceful and calm, witnessed a tumultuous occurrence on the morning of September 5, 1980 resulting in a grisly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who assaulted the persons inside the oil mill and caused injuries to the servants of the complainant and others, namely, PW 7 Ahed Bux Molla, PW 8 Sanai Molla, PW 9 Fakir Ali Sardar, PW 10 Rambilas Thakur, PW 15 After Molla, PW 16 Gulam Molla, PW 19 Debiruddin Molla, PW 20 Md. Yasin Molla, PW 21 Motiar Rahman and PW 22 Afsar Ali Molla. He accordingly convicted respondent No. 1 under Section 148 as well as under Section 302 of the Indian Penal Code and sentenced him to rigorous imprisonment for a terms of three years and imprisonment for life respectively. He convicted some of the respondents who were armed with deadly weapons under Section 143 and Section 324 read with Section 149 and sentenced them to undergo rigorous imprisonment for a period of three years on both counts. Some other respondents were however convicted under Section 147 and sentenced to suffer rigorous imprisonment for two years. Presumably, the learned Additional Sessions Judge proceeded upon the basis that the act of respondent No. 1 Laisal Haque in opening fire with his pipegun at the deceased Gulam Rabbani was covered by clause thirdly of Section 300 and therefore he was guilty of culpable homicide amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. 9. Next, Section 464 of the Code provides that 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 mis-joinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has, in fact, been occasioned thereby. 10. In the celebrated case of Willie (William) Slaney v. State of Madhya Pradesh 1956CriLJ291 , Vivian Bose, J. speaking for the Court after an elaborate discussion observed that in judging a question of prejudice, as of guilt, the Courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see 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. That test is clearly fulfilled in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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