Holding

The murder convictions can be sustained by adding Section 34 to the charge (Section 302/34), and the convictions under Section 307 must be altered to Section 326/34 with a reduced sentence.

Summary

The case involved fourteen accused who, on the night of Holi, encircled and assaulted Bindeshwari Rai with deadly weapons, resulting in his death. The trial court convicted all of them under Section 302 IPC, with some also under Section 307 IPC, while the High Court later acquitted them of the Section 302/149 charge but upheld the murder convictions. The Supreme Court examined whether convictions under Section 302 could stand without a charge of Section 34 or 149, emphasizing the need for proof of common intention and the role of eye‑witness testimony. It held that the concerted assault demonstrated a common intention, allowing the murder convictions to be sustained by adding Section 34 to the charge (i.e., Section 302/34). The Court also altered the convictions under Section 307 to Section 326/34 and reduced the sentence to two years, and affirmed that non‑framing of a charge does not invalidate a conviction unless a failure of justice is shown. The appeals were disposed of, with the convictions upheld in modified form.

Issues considered

The adequacy of conviction under Section 302 IPC without a charge of Section 34 or Section 149 when multiple accused are involved.
Whether the prosecution proved a common intention under Section 34 sufficient to sustain murder convictions.
The evidentiary value of injured eye‑witnesses and the Fardbayan in establishing the concerted assault.
The propriety of altering convictions under Section 307 IPC to Section 326 IPC with Section 34.
The effect of non‑framing or erroneous framing of charges under Section 464 CrPC on the validity of convictions.

Legislation cited

Code of Criminal Procedure, 1973s. 464
Indian Evidence Act, 1872
Indian Penal Code, 1860s. 149, s. 302, s. 307, s. 326, s. 34

Subjects

murdercommon intentionSection 34 IPCSection 149 IPCeye‑witness testimonymultiple accusedconviction alterationCrPC Section 464evidentiary value

Judgment

A LALLAN RAJ AND ORS.
v.
STA TE OF BI HAR

NOVEMBER 14, 2002

B [UMESH C. BANERJEE AND B.N. AGRA WAL, JJ.)

Penal Code, 1860; Sections 302, 302134, 3021149, 307134 and 326134:
14 accused persons assaulted and committed murder of the deceased-
C Conviction of accused persons under Section 302-Correctness of-Held: In
the absence ofevidence as to who causedfatal injury, conviction under Section
302 alone is not sustainable-On facts, accused persons by their concerted
action participated in the crime and committed murder by assaulting the
deceased with deadly weapons-Thus sentencing of accused under Section
302 could be maintained by adding Section 34-Code of Criminal Procedure,
D 1973-Section 464.

Conviction under Section 307134-Correctness of-Held, since factum
ofcausing grievous hurt established conviction required to be altered to under
Section 326134.

E Evidence Act, 1872:

Evidence of eye-witnesses-Evidentiary value-Held, since evidence of
injured eye-witnesses recorded immediately after the incident, and having
regard to the corroborative evidence available on record, their evidence
trustworthy.
F
According to the prosecution, on the day of Holi festival when PW9,
along with his brothers including the deceased, was returning from market
and reached the village at night, they found 14 persons armed with
weapons sitting at the house of the appellant and on his instigation they
encircled the deceased and his brothers and assaulted them with deadly
G weapons and committed murder of one of them and injured others. PW9
lodged an FIR. Post-mortem was conducted. The case was committed to
the Court of Session.

Trial Court held all the 14 accused persons guilty of murder and
H convicted and sentenced them under Section 302/149 IPC; 7 of them under
188
LAL LAN RAJ v. STATE OF BIHAR 189
Section 302 IPC and 5 of them under Section 307/34 IPC. On appeal, High A
Court confirmed the conviction and sentence of 6 accused persons under
Section 302 IPC but it acquitted one of the accused of the charge under
Section 302 IPC and also confirmed conviction of 5 accused persons u/s
307/34 IPC, however, it acquitted all t:1e accused persons of the charges
under Section 302/149 IPC. Hence this appeal by the convicted accused. B
It was contended for the appellant that since High Court acquitted
all the accused persons of the charges under Section 3021149, conviction
of accused for their individual acts under Section 302 is not in accordance
with law; that similar intention may not be equated with common intention
in regard to participation of accused in the crime. C
Disposing of the appeals, the Court

HELD: I. It is well settled that culpable homicide is genus and
murder is th~ species and that all murders are culpable homicide but not
vice-versa. A combined reading of the provisions in Chapter XVI of IPC D
with re~pec:t to offences affecting the human body and the exceptions and
illustrations would show that without ascertaining as to who caused the
death or that one of the many injuries inflicted by a certain person alone
was the cause of death, no one can be, much less a number of persons
together, be convicted for their acts under Section 302 IPC simpliciter.
More than one person together can be convicted only with the aid of E
Section 149 IPC (if their number is more than five) or Section 34 IPC if
they act in furtherance of common intention. Since the appellants,
however, are acquitted under Section 302/149 IPC, the High Court could
not have convicted as many as six persons under Section 302 IPC. The
requirement of statute is sharing the common intention upon being present F
at the place of occurrence. Mere distancing himself from the scene cannot
absolve the accused-though the same however depends upon the fact-
situation of the matter under consideration and no rule steadfast can be
laid down therefor. [196-D-F; 198-G, HJ

Mohan Singh v. State of Punjab, [1962) Supp. 3 SCR 848, follllwed. G
Suresh and Anr. v. State of UP., [2001) 3 SCC 673 and Ghosh v. King
Emperor, AIR (1925) PC 1: 26 Cri. LJ 431, relied on.

2. In the instant case, High Court has rendered the submissions of
the defence as regards the witnesses being on inimical terms as totally H
190 SUPREME COURT REPORTS [2002) SUPP. 4 S.,C.R.

A hypothetical guesswork de hors the realities. Incidentally, the evidence of
PWs.7, 9 and 10, stand out to be in full corroboration of the prosecution's
case that no sooner the deceased and his companions arrived at the place
of occurrence, one of the accused exhorted to kill and thereafter assaulted
him with sword. (199-A, Bl

B 3. The evidence available on record in particular that of injured eye
witnesses, namely, PWs. 7, 9 and IO and the "Fardbayan" which was
recorded without any loss of time to the effect that all the accused persons
encircled the informant and other witnesses and inflicted injuries on the
deceased by deadly weapons resulting in his death-it is trustworthy and
C acceptable and question of decrying the evidentiary value thereof does not
and cannot arise, more so, having regard to the corroborative evidence
of the doctor who conducted the post-mortem. The entire gamut of the
matter in issue leaves no manner of doubt that the concerted action by
reason of simultaneous conscious mind of persons participating in the
action to bring about the death of the victim and it is this piece of evidence
D which br~ngs in the element of Section 34 even though no charge was
framed thereunder. This conviction and sentence under Section 302 IPC
can be maintained by adding Section 34 IPC thereto that is to say under
Section 302/34 of the Indian Penal Code. (203-B-D)

Slaney v. The State of Madhya Pradesh, (1955) 2 SCR 1140; Kammari
E Brahmaiah and Ors. v. Public Prosecutor, High Court of A.P., JT (1999) I
SC 25 and Narinder Singh v. State of Punjab, (2000) 4 SCC 603, relied on.

4. As regards the conviction under Section 307 IPC, be it noted that
upon consideration of the injury report as sustai~d by PWlO~ PW7 and
F PW 9, the factum of causing grievous hurt though established but
conviction under Section 307134 IPC in the interest of justice ought to be
altered to under Section.326/34 IPC. (20~-E-FJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
93-95 of 2001.
G
From the Judgment and Order dated 10.5.2000 of the Patna High Court
in Crl. A. Nos. 102/1994, 158/1994 and 189/1994.

P.S. Mishra, S. Chandra Shekhar, Ms. T. Swarupa Reddy, Vishnu
Sharma, Upendra Mishra, Tathagat Harsh Vardhan, Ms. Monika Tripathy
H and Himanshu Shekhar, for the Appellants.
LALLAN RAI v. STATE OF BIHAR [BANERJEE, J.] 191

B.B. Singh and Kumar Rajesh Singh, for the Respondent. A
The Judgment of the Court was delivered by

BANERJEE, J. Four decades ago, the Constitution Bench in Mohan
Singh Mohan Singh v. State of Punjab, (1962] Supp. 3 SCR 848 has been
rather lucid in its expression as regards differentiation between Section 149 B
and Section 34 of the Indian J:>enal Code. In Mohan Singh this Court stated:

." .......... Like Section 149, Section 34 also deals with cases of
constructive criminal liability. It provides that where a criminal act is
done by several persons in furtherance of the common intention of
all, each of such persons is liable for that act in the same manner as C
ifit were done by him alone. The essential constituents of the vicarious
criminal liability prescribed by Section 34 is the existence of common
intention. If the common intention in question animates the accused
persons and if the said common intention leads to the commission of
the criminal offence charged, each of the persons sharing the common D
intention is constructively liable for the criminal act done by one of
them. Just as the combination of persons sharing the same common
object is one of the features of an unlawful assembly, so the existence
of a combination of persons sharing the same common intention is
one of the features of Section 34. In some ways the two sections are
similar and in some cases they may overlap. But, nevertheless, the E
common intention which is the basis of Section 34 is different from
the common object which is the basis of the composition of an unlawful
assembly. Common intention denotes action-in-concert and necessarily
postulates the existence of a pre-arranged plan and that must mean a
prior meeting of minds. It would be noticed that cases to ·which F
Section 34 can be applied disclose an element of participation in
action on the part of all the accused persons, The acts may be different;
may vary in their character, but they are all actuated by the same
common intention: It is now well-settled that the common intention
required by Section 34 is different from the same intention or similar
intention. As has been observed by the Privy Council in Mahbub G
Shah v. Emperor, (1945) L.R. 72 I.A. 148, common intention within
the meaning of Section 34 implies a pre-arranged plan, and to convict
the accused of an offence applying the section it should be proved
that the criminal act was done in concert pursuant'to the pre-arranged
plan and that the inference of common intention should never be
H
192 SUPREME COURT REPORTS [2002] SUPP. 4 -~.C.R.

A reached unless it is a necessary inference deducible from the
circumstances of the case."

Four decades later, however, a Three-Judge Bench of this Court in
Suresh Suresh and Anr. v. State of UP., [2001] 3 SCC 673 had the following
to state pertaining to Section 34 of the Indian Penal Code.
B
"Section 34 of the Indian Penal Code recognises the principle of
vicarious liability in criminal jurisprudence. It makes a person liable
for action of an offence not committed by him but by another person
with whom he shared the common intention. It is a rule of evidence
and does not create a substantive offence. The Section gives statutory
c recognition to the commonsense principle that if more than two persons
intentionally do a thing jointly, it is just the same as if each of them
had done it individually. There is no gainsaying that a common
intention presupposes prior concert, which requires a prearranged
plan of the accused participating in an offence. Such preconcert or
D preplanning may develop on the spot or during the course of
commission of the offence but the crucial test is that such plan must
precede the act constituting an offence. Common intention can be
formed previously or in the course of occurrence and on the spur of
the moment. The existence of a common intention is a question of
fact in each case to be proved mainly as a matter of inference from
E the circumstances .of the case.

The dominant feature for attracting Section 34 of the Indian Penal
Code (hereinafter referred to as "the Code") is the element of
participation in absence resulting in the ultimate "criminal act". The
"act" referred to in the later part of Section 34 means the ultimate
F criminal act with which the accused is charged of sharing the common
intention. The a~cused is, therefor~, made responsible for the ultimate
criminal act done by several persons in furtherance of the common
intention of all. The section does not envisage the separate act by all
the accused persons for becoming responsible for the ultimate criminal
G act. If such an interpretation is accepted; the purpose of Section 34
shall be rendered infructuous.

Participation in the crime in furtherance of the common intention
cannot conceive of some independent criminal act by all accused
person~, besides the ultimate criminal act because for that individual

H act law takes care of making such accused responsible under the
LALLAN RAI v STATEOFBIHAR [BANERJEE, J.] 193

other provisions of the Code. The word "act" used in Section 34 A
denotes a series of acts as a single act. What is required under law is
that the accused persons sharing the common intention must be
physically present at the scene of occurrence and be shown not to
have dissu.!ded themselves from the intended criminal act for which
they shared the common intention. Culpability under Section 34 cannot B
be excluded by mere distance from the scene of occurrence. The
presumptiofi of constructive intention, however, has to be arrived at
only when the court can, with judicial servitude, hold that the accused
must have preconceived the result that ensued in furtherance of the
common intention. A Division· Bench of the Patna High Court in
Satrughan Patar v. Emperor, AIR (1919) Pat 111 held that it is only C
when a court with some certainty holds that a particular accused must
have preconceived or premeditated the result which ensued or acted
in concert with others in order to bring about that result, that Section
34 may be applied."

What th~n is the fact situation said to have been proved in the present D
case ? It is in this context the factual score thus ought to be noticed at this
juncture.

On the factual score, it appears that 14 accused persons were charged
under Sections 302/149 and 307/34 !PC for committing the murder of
Bindeshwari Rai on 19th March, 1992 at 8.00 p.m. All the 14 accused persons E
were held guilty for the murder by the learned Sessions Judge : whereas
accused Rajendra Rai, Uma Shankar Rai, Sheo Bachan Rai, Shila Nath Rai,
Dharrn Nath Rai, Satyendra Sahni alias Satyendra Kumar Sahni and Bankey
Rai have been convicted under Section 302 !PC and sentenced to undergo
rigorous imprisonment for life. All the 14 accused persons, namely Rajendra F
Rai, Lallan Rai son of Rajendra Rai, Ur1a Shankar Rai, Prithvi Rai, Ram
Janarn Rai, Sudarshan Rai, Sheo Bachan Rai, Sipar Rai, Birendera Rai, Dharrn
Nath Rai, Bankey Rai, Shila Nath Rai, Lallan Rai son of Bankey Rai and
Satyendra Sahni alias Satyendra Kumar Sahni have been held guilty under
Section 302/149 !PC and have been convicted thereunder. Each of them has
been sentenced to undergo imprisonment for life under Section 302/149 !PC. G
All the convicts are, however, presently on bail.

The convict> Uma Shankar Rai, Ram Janam Rai, Sudarshan Rai, Prithvi
Rai, La!lan Rai son of Rajendra Rai have been held guilty under Section 307/
34 !PC and they have been convicted thereunder. Each of them has been H
194 SUPREME COURT REPORTS [2002) SUPP. 4 S.C.R.

A sentenced to undergo R.I. for five years under Section 307/34 IPC.
The High Court, however, on appeal on I 0th May, 2000, confirmed the
conviction and sentences passed by the learned Sessions Judge under Section
302 IPC against Rajendra Rai, Uma Shankar Rai, Shila Nath Rai, Bankey
Rai, Dharm Nath Rai and Sheo Bachan Rai but passed an order for acquittal
B for the accused Satyendra Sahni of the charge under Section 302 IPC.

As regards Uma Shankar Rai, Ram Janam Rai, Sudarshan Rai, Prithvi
Rai and Lallan Rai, the High Court also confinned the conviction and sentences
under Section 307 read with Section 34 IPC. The High Court however,
C acquitted all the accused persons convicted and sentenced under Section 302/
149 IPC and hence the appeal before this Court upon the grant of leave.

At this juncture, it would be convenient to advert to the prosecution
case briefly, so as to appreciate the contentions raised. The case of the
prosecution, as would appear from tl1c rardbeyan of Birendra Rai (PW.9), in
D short, is that on the day of Holi festival i.e. 19.3.1992 at ab.out 8 p.m., he
along with his brothers Bindeshwari Rai, Ruplal Rai and Ram Dahin Rai was
returning from Taraiya Bazar. When they reached their village, they saw all
the 14 accused persons sitting at the house of appellant Rajendra Rai variously
armed with weapons. It is alleged that on the instigation of appellant Rajendra
Rai, all the accused persons encircled the informant and his companions.
E Thereafter appellant Rajendra Rai, Satyendra Sahni and Uma Shankar Rai
inflicted injuries with sword on. the head of Bindeshwari Rai. Thereupon,
appellant Shila Nath Rai also gave a sword blow on his head. Like the above
named appellants, other appellants Bankey Rai and Dharm Nath Rai assaulted
deceased Bindeshwari Rai with 'farsa' .. When Bindeshwari Rai became
F senseless while appellant Sheo Bachan Rai caused injury with Bhala, the
other accused persons caused injuries with their respective weapons. The
informant further stated that when he wanted to save his brother, appellant
Uma Shankar Rai attacked him with sword but the blow was warded off.
When P. Ws. Ram Dahin and Ruplal tried to intervene, appellant Lallan Rai
son of Rajendra Rai fired his pistol causing· injury to Ruplal Rai. It has been
G further alleged that the accused persons after committing the murder of
Bindeshwari Rai, threw his body in a maize field, which was situated adjoining
north to the road: The informant and the other witnesses have claimed to
have identified the accused persons in the moonlit night. On the basis of the
aforesaid statement, Officer Incharge of Taraiya Police Station took up
H investigation and ultimately having found a prima facie case, submitted charge

,.
LALLANRA!v. STATEOrBIHAR [BANERJEE,J.] 195

sheet. Thereupon, the Chief Judicial Magistrate took cognizance of the offence A
and committed the case to the Court of Session calling upon the appellants
to face trial. The records depict that one Dr. Dharamnath Singh (PW. I I) held
the post-mortem examination on the dead body of Bindeshwari Rai and he
found the following ante-mortem injuries on the person of the body :

(i.) Multiple incised wounds about eight in number of varying B
dimension on the scalp, more on left side than on the right side,
mid-portion.
(ii) Incised wound about 3" x Y." bone deep on the left cheek.

(iii) Incised wound about I" x W' skin deep on the back of the neck. C
(iv) Multiple bruises of varying dimension on the back of chest wall
on both sides.
(v) Penetrating wound about W' in diameter muscle deep on the
right side on the back of waist.
(vi) Incised wound about 3" x I" bone deep on the right side of chin. D
On dissection, there were multiple fractures of scalp bone, laceration of
underlying membranes and brain matter with collection of clotted blood in
immediate vicinity of the injured parts. On further dissection fract"re of the
right side of ramus of the mandible was disclosed. Rigor mortis was present
on all the hmbs. E
The doctor's evidence reveals that the death of Bindeshwari Rai was
caused due to haemorrhage and shock as a result of injuries to vital organs
like brain and mandible caused by sharp cutting weapon as also by sharp
penetrating weapon such as Bhala. The post-mortem examination was F
conducted within 24 hours. Incidentally, there is nothing in the cross-
examination of the Doctor to discredit the evidence of the prosecution with
regard to the nature of injuries as also to the manner of assault.

It is on this state of the situation that Mr. PS Mishra, learned Senior
Advocate, appearing for the appellants with his usual eloquence rather strongly G
contended that in view of the findings recorded for charges under Section
302/149 IPC by the High Court against which no appeal is preferred in this
Court, it is clearly a case where the appellants are supposed to have been
convicted for their individual acts and acts done in furtherance of the common
intention of all, which developed, if at all, in course of the assault on
Bindeshwari Rai. In the absence of any appeal against the said acquittal for H
196 SUPREME COURT REPORTS [2002) SUPP. 4 S.C.R.

A the offence under Section 302/149 IPC it will not be legal to go by the
evidence of existence of any pre-planning etc.

Though there is evidence that appellants who are convicted under Section
302 IPC caused injury upon deceased Bindeshwari Rai by lethal weapons on
the head and various other parts of his body, the medical evidence is clear
B that death was caused due to haemorrhage and shock caused by the injuries
to vital organs like brain and also mandible caused by sharp-cutting weapons
may be Farsa and sword and also sharp cutting penetrating weapon such ~s
a Shala.

In the absence of evidence as to who caused fatal injury or which
C injury in particular was fatal, conviction under Section 302 IPC of as many
as six appellants (one of whom who was charged to have hit on the head of
the victim by sword has been acquitted by the High Court) is not sustainable
at all.

D It is well settled that culpable homicide is genus and murder is the
species and that all murders are culpable homicide but not vice-versa. A
combined reading of the provisions in Chapter XVI of the IPC with respect
to offences affecting the human body and the exceptions and illustrations
would show that without ascertaining as to who caused the death or that one
of many injuries inflicted by a certain person alone was the cause of death,
E no one can be, much less ~ number of persons together, be convicted for their
acts under Section 302 IPC simpliciter. More than one person together can
be convicted only with the aid of Section 149 IPC (if their number is more
than five) or Section 34 IPC if they act in furtherance of common intention.
Since the appellants, however are acquitted under Section 302/149 IPC, the
F High Court could not have convicted as many as six persons under Section
302 IPC.

Mr. Mishra further contended that it is settled law that several persons
may have similar intention yet they may not have the common intention in
furtherance of which they participated in action. Elaborate discussion of the
G principles and dominant features for attracting Section 34 IPC are well
discussed and explained in one of the latest pronouncements of this Court in
Suresh (supra).

In para 44 of the judgment in Suresh (supra) this Court (the majority
view) stated:
H
LALLAN RAJ v. STATE OF BIHAR [BANERJEE.I.] 197

"Approving the judgments of the Privy Council in Barendra Kumar A
Ghosh, AIR (1925) PC I and Mahbub Shah, AIR (1945) PC I 18
cases a three-Judge Bench of this Court in Pandurang v. State of
Hyderabad, AIR (1955) SC 216 held that to attract the applicability
of Section 34 of the Code the prosecution is under an obligation to
establish that there existed a common intention which requires a B
prearranged plan because before a man can be vicariously convicted
for the criminal act of another, the act must have been done in
furtherance of the common intention of all. This Court had in mind
the ultimate act done in furtherance of the common intention. In the
absence of a prearranged plan and thus a common intention even if
several persons simultaneously attack a man and each one of them by C
having his individual intention, namely, the intention to kill and each
can individually inflict a separate fatal blow and yet none would have
the common intention required by the section. In a case like that each
would be individually liable for whatever injury he caused but none
could be vicariously convicted for the act of any or the other. The
Court emphasised the sharing of the common intention and not the D
individual acts of the persons constituting the crime. Even at the cost
of repetition it has to be emphasised that for proving the common
intention it is necessary eith.er to have direct proof of prior concert or
proof of circumstances which necessarily lead to that inference and
"incriminating facts must be incompatible with the innocence of the E
accused and incapable of explanation or any other reasonable
hypothesis". Common intention, arising at any time prior to the
criminal act, as contemplated under Section 34 of the Code, can thus
be proved by circumstantial evidence."

In Suresh (supra) this Court while recording the dominant feature for F
attracting Section 34 has the following to state:

"The dominant feature for attracting Section 34 of the Indian
Penal Code (hereinafter referred to as "the Code") is the element of
participation in absence resulting in the ultimate "criminal act". The
"act" referred to in the later part of Section 34 means the ultimate G
criminal act with which the accused is charged of sharing the common
intention. The accused is, therefore, made responsible for the ultimate
criminal act done by several persons in furtherance of the common
intention of all. The section does not envisage the separate act by all
the accused persons for becoming responsible for the ultimate criminal H
198 SUPREME COURT REPORTS [2002) SUPP. 4 S.C.R.

A act. If such an interpretation is accepted, the purpose of Section 34
shall be rendered infructuous."

For true and correct appreciation of legislative intent in the matter of
engrafting of Section 34 in the Statute Book, one needs to have a look into
the provision and as such Section 34 is set out as below:
B
"34 -Acts done by several persons in furtherance ofcommon intention-
when a criminal act is done by several persons in furtherance of the
common intention of all, each of such persons is liable for that act in
the same manner as if it were done by him alone."

C A plain look at the Statute reveals that the essence of Section 34 is
simultaneous consensus of the mind of persons participating in the criminal
action to bring about a particular result. It is trite to record that such consensus
can be developed at the spot. The observations above oJ>tain support from the
decision of this Court in Ramaswami Ayyangar and Ors. v. State of Tamil
D Nadu, AIR (1976) SC 2027.

In the similar vein the Privy Council in Barendra Kumar Ghosh v.
King Emperor, AIR (1925) PC 1: 26 Cri. LJ 431 stated the true purport of
Section 34 as below:

"The words of Section 34 are not to be eviscerated by reading them
E in this exceedingly limited sense. By Section 33 a criminal act in
Section 34 includes a series of acts and, further, 'act' includes omission
to act, for example, an omission to interfere in order to prevent a
murder being done before one's very eyes. By Section 37, when any
offence is committed by means of several acts whoever intentionally
p cooperates in the commission of that offence by doing any one of
those acts, either singly or jointly with any other person, commits
that offence. Even if the appellant did nothing as he stood outside the
door, it is to be remembered that in crimes as in other things 'they
also serve who only stand and wait."

G The above discussion in fine thus culminates to the effect that the
requirement of statute is sharing the common intention upon being present at
the place of occurrence. Mere distancing himself from the scene cannot absolve
the accused though the same however depends upon the fact-sitUation of the
matter under consideration and no rule steadfast can be laid down therefor.

H Turning attention to the factual score, once again, be it noticed that the
LALLANRA!v. STATEOFBIHAR [BANERJEE,.!.] 199

High Court has rendered the submissions of the defence as regards the A
witnesses being on inimical terms as totally hypothetical guesswork de hors
the realities and in justification thereof stated-"Simply because another
passage was available for the prosecution party to go to their houses, it would
be difficult to hold that they were not going through the road in question
where occurrence took place." Incidentally, the evidence of PW.7 Ram Dahin B
Rai, PW.9 Birendra Rai and PW. I 0 Ruplal Rai, the informant, stand out to
be in full corroboration of the prosecution's case that no sooner Bindeshwari
Rai and his companions arrived at the place of occurrence, Rajendra Rai
exhorted to kill and thereafter assaulted him with sword. The High Court on
appreciation of the factual situation recorded the same and further stated that
Uma Shankar Rai also caused injury on the head of BindeshWari Rai by C
sword and when the latter fell down in a maize field, Shila Nath Rai assaulted
him with sword and Bankey Rai with Farsa on his neck. It is on this score
the High Court in fine concludes as regards the appreciation of evidence to
the effect: "Thus in view of the consistent evidence of the injured eye witness,
there appears no reason to interfere with the findings of the trial court so far
it is with respect to those appellants who have been convicted under Section D
302 IPC."

The next issue seems to be rather important and we think it expedient
to quote paragraph 13 of the judgment impugned for its proper appreciation:

"The next question, however, arises whether the conviction and E
sentence against all the accused persons under Section 302 read with
Section 149 IPC can sustain. At the very outset it may be noticed
although the trial court has convicted these appellants under this count
but no finding has at all been recorded whether the appellants were
the members of unlawful assembly and that such unlawful assembly p
had the knowledge that the main accused persons had the common
object to commit the murder of Bindeshwari Rai. Because as would
appear from the case of the prosecution, the accused persons were
sitting at the Baithaka of appellant Rajendra Rai and this was nothing
unusual since it was the day of Holi festival. This is not the case of
the prosecution that these accused persons had the knowledge or any G
such information that deceased Bindeshwari Rai and his companion
would return from Taraiya Bazar to the village through that very path
and at that very time. Rather the above fact would show that the
occurrence in case took place all of a sudden. Unless and until there
is any evidence of the prosecution that all the accused persons had H
200 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A assembled at the place of occurrence with a common object to commit
the murder of Bindeshwari Rai, it would not be proper to hold them
guilty under Section 302 read with 149 IPC. Therefore, the conviction
against such appellants can at best be recorded under Section 324/
149 IPC. Because the evidence on record suggests that it was the
individual act of appellants Rajendra Rai, Uma Shankar Rai, Shila
B Nath Rai, Bankey Rai,. Dharm Nath Rai and Shiv Bachan Rai, who
had committed the murder of Bindeshwari Rai with their respective
weapons."

It is on the basis of the observations as above, the High Court came to
C a finding that the appeal on behalf of the appellants Rajendra Rai, Uma
Shankar Rai, Shila Nath Rai, Bankey Rai, Dharam Nath Rai and Sheo Bachan
Rai ought to be dismissed and their conviction and sentence under Section
302 of the Indian Penal Code as recorded by the trial court stood confirmed.
As regards the case for appellants Uma Shankar Rai, Ram Janam Rai,
Sudarshan Rai, Prithvi Rai and Lallan Rai, the High Court did place strong
D reliance on the evidence of the injured witnesses ascribing them to be most
acceptable and trustworthy evidence and as such confirmed the sentence
under Section 307 read with Section 34 of the Indian Penal Code.

It is the conviction under Section 302 which is said to be not in
accordance with law and as such Mr. Mishra has been rather vocal and
E emphatic on that direction. It is axiomatic that procedural law is the hand-
maid of justice and the Code of Criminal Procedure is no exception thereto.
Its incorporation in the Statute Book has been to sub-serve the ends of justice
and non-observance of the technicalities does not and cannot frustrate the
concept of justice since technicality alone would not out-weigh the course of
F justice.

We, however, hasten to add that in the event, however, there being
prejudice leading to a failure of justice, it cannot but be treated to. be an
illegality, which is otherwise incurable in nature. In one of the early decisions
of this Court (Willie (William) Slaney v. The State ofMadhya Pradesh, [ 1955]
G 2 SCR 1140, the Full Bench declared and settled the law on this score and
it seems for all times to come. This Court in a rec.ent decision· Kammari
Brahmaiah and Ors. v. Public Prosecutor, High Court of A.P., JT (1999) I
SC 259 once again reiterated the law so settled by Willie Slaney (supra) in
the similar vein and same tune. Incidentally, Willie Slaney (supra) was decided
H in the year 1955 and on the basis of the then existing Code of 1898, whereas
LALLANRA!v. STATEOFBIHAR [BANERJEE,!.] 201

Brahmaiah (supra) has considered the new Code of 1973 and after adumbrating A
the observations of Willie Slaney, this Court in Brahmaiah observed :

"The aforesaid discussion leaves no doubt that non-framing of
charge would not vitiate the conviction if no prejudice is caused
thereby to the accused. As observed in the aforesaid, the trial should
be fair to the accused, fair to the State and fair to the vast mass of B
the people for whose protection penal laws are made and administered.
Criminal Procedure Code is a procedural law and is designed to further
the ends of justice and not to frustrate them by the introduction of
endless technicalities. In the present case, accused were tried on the
prosecution version that all of them went at 3.30 p.m. in the field of C
the deceased; they picked up the quarrel with him, inflicted injuries
to the deceased as narrated by the prosecution witnesses, accused
no.3 to 6 participated as stated above; the statements were recorded
under Section 313 of the Cr.P.C. and the questions were asked to the
effect that they jointly came at 3.30 p.m. and caused injuries to the
deceased as stated by the prosecution witnesses and the role assigned D
to accused no.3 to 6 was also specifically mentioned. Hence, it is
apparent that no prejudice is caused to the accused who were charged
for the offence under Section 302, by not framing the charge for the
offence punishable under Section 302 read with 149. In this view of
the matter, the conviction of the accused no.3 to 6 for the offence
punishable under Section 325 read with 149 cannot be said to be E
anyway illegal which require to be set aside."

It is in this context Section 464 Cr.P.C. ought to be noticed at this
juncture. Section 464 Cr.P.C. reads thus :

"464. Effect of omission to frame, or absence of, or error in, charge- F
(I) 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 G
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 H
202 SUPREME COURT REPORTS [2002) SU!'P. 4 S.C.R.

A 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;
B
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."

As regards the interpretation of Section 464 this Court has the following
C to state in Kammari (supra) at•paragraph 7:

"The aforesaid Section is in mandatory terms and specifically
provides what is to be done in cases where charge is not framed or
there is an error, omission or irregularity in framing of the charge.
From the unequivocal terms of the section, it can be stated that finding,
D sentence or order could be set aside only in those cases where the
facts are such that no valid charge could be preferred against the
accused in respect of the facts proved. Secondly, if the facts are such
that charge could be framed and yet it is not framed, but there is no
failure of justice, has in fact been occasioned thereby the finding,
sentence or order of the Court of competent jurisdiction is not to be
E set aside on that ground. Thirdly, ifthere is failure of justice occasioned
by not framing of the charge or in case of an error, omission ·or
irregularity in charge re-trial of the case is to be directed under sub- .
section (2)."

Incidentally, Section 464 corresponds to the provisions contained in
F
Sections 232(2), 535 and 537(6) of the old Code.

It is in this context the law laid down by this Court in Kammari (supra)
ought also to be noticed. This Court in paragraph 14 of the report stated as
below:-
G 14. "The aforesaid discussion leaves no doubt that non-framing of
charge would not vitiate the conviction if .no prejudice is caused ,.
thereby to the accused. As observed in the aforesaid, the trial should
be fair to the accused, fair to the State and fair to the vast mass of
the people for whose protection penal laws are made and administered.
H Criminal Procedure Code is a procedural law and is designed to further
LALLAN RA! v. STATE OF BIHAR [BANERJEE,!.] 203

the ends of justice and not to frustrate them by the introduction of A
endless technicalities."·

Similar is the observation of this Court in Narinder Singh v. State of
Punjab, [2000] 4 SCC 603 recording therein that if the ingredients of the
Section are present, conviction in regard thereto can be sustained.
B
The evidence availabk on record in particular that of injured eye
witnesses, namely, PWs.7, 9 and 10 and the "Fardbayan" which was recorded
without any loss of time to the effect that all the accused persons encircled
the informant and other witnesses and inflicted injuries on Bindeshwari Rai
(deceased) by deadly weapons resulting into his death it is trustworthy and
acceptable and question of decrying the evidentiary value thereof does not C
and cannot arise, more so, having regard to the corroborative evidence available
on record by the doctor who conducted the post-mortem. The entire gamut
of the matter in issue leaves no manner of doubt the concerted action by
reason of simultaneous conscious mind of persons participating in the action
to bring about the death of Bindeshwari Rai and it is this piece of evidence D
, which brings in the element of Section 34 even though no charge was framed
thereunder. This conviction and sentence under Section 302 of the Indian
Penal Code can be maintained by adding Section 34 of the Iildian Penal Code
thereto that is to say under Section 302/34 of the Indian Penal Code.

As regards the conviction under Section 307 of the Indian Penal Code, E
be it noted that upon consideration of the injury report as sustained by Ruplal
Rai (PW.JO), Ram Dahin Rai (PW.7) and Birendra Rai (PW.9), the factum
of causing grievous hurt though established but conviction under Section
307/34 of the Indian Penal Code in the interest of justice ought to be altered
to under Section 326/34 of the Indian Penal Code. It is ordered accordingly. F
The sentence, however, be also altered to a period of two years without
however imposition of any fine.

The appeals thus stand disposed of in the manner indicated above. The
appellants be taken into custody to serve out their respective sentences and
in the event they have already served out their sentence, their bail bonds shall G
stand discharged .
•
S.K.S. Appeals disposed of.