MAIN PALversusSTATE OF HARYANA

                      [2010] 11 S.C.R. 336


A                             MAIN PAL
                                   v.
                       STATE OF HARYANA
                (Criminal Appeal No. 1696 of 2010 )
                       SEPTEMBER 07, 2010
B
         [R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]

       Penal Code, 1860 - ss. 452 and 354 - Code of Criminal
  Procedure, 1973 - ss. 211, 212, 215 and 464 - Accused
C charged with having entered the house of PW1 and
  assaulting her with intent to outrage her modesty - Evidence
  however indicated that accused assaulted PW1 's daughter-
  in-law to outrage her modesty - Whether accused could be
  punished, for assaulting and outraging the modesty of PW1 's
D daughter-in-law', even though he was not charged with any
  offence with reference to PW1 's daughter-in-law', on the
  ground that the error or omission in the charge did not
  prejudice the accused or result in failure of justice - Held, No
  - The accused could not be punished for committing an
E offence against PW1 's daughter-in-law when he was charged
  with having committed the offence against PW1 and the entire
  defence of the accused was with reference to charge of having
  committed offence against PW1 - New trial directed after
  charging the accused with the offence of outraging the
  modesty of PW1 's daughter-in-law.
F
         Interpretation of Statutes - Illustrations under a provision
    of a Statute - Held: They offer relevant and valuable
    indications as to meaning and object of the provision and are
    helpful in the working and application of the provision.
G
         The appellant was charged with the offences of
    trespassing into the house of PW1 and attempting to
    outrage her modesty. The appellant pleaded not guilty to
    the said charge and claimed trial. The Magistrate held the
H                                 336
         MAIN PAL v. STATE OF HARYANA                 337


appellant guilty of offences under Sections 452 and 354      A
IPC and sentenced him to rigorous imprisonment for six
months.

    One of the contentions urged by the appellant before
the first appellate court and the High Court was that the 8
charge against him was that he attempted to outrage the
modesty of Prakashi Devi (PW-1) whereas the evidence
was to show that he attempted to outrage the modesty
of Sheela Devi, daughter-in-law of PW1. He contended
that as the charge levelled against him was not proved, C
and as he was not required to defend himself against a
charge that he assaulted and outraged the modesty of
PW1 's daughter-in-law, he ought to have been acquitted.
This was negatived by the appellate court and the High
Court holding that an accused cannot take advantage of
a technical defect in framing the charge. It was held that D
mentioning the name of PW1 instead of the name of her
daughter-in-law in the charge was an error that did not
prejudice the accused-appellant.

     In the instant appeal the question for consideratiori   E
was: When the charge was that the accused assaulted
PW1 and outraged her modesty, but the evidence was
that he assaulted PW1 's daughter-in-law to outrage her
modesty, can the accused be punished, for assaulting
and outraging the modesty of PW1 's daughter-in-law',        F
even though he was not charged with any offence with
reference to PW1's daughter-in-law', on the ground that
the error or omission in the charge did not prejudice the
accused or result in failure of justice.

    Allowing the appeal, the Court                           G

    HELD:1.1. In the instant case, the charge was that the
appellant committed trespass into the house of PW1,
assaulted her and outraged her modesty. The accused
                                                             H
    338      SUPREME COURT REPORTS              (201 O] 11 S.C.R.

A concentrated his cross-examination with reference to the
  said charge and elicited answers showing that he did not
  assault or outrage the modesty of PW1. The evidence of
  PW-1 and PW-2 was that the appellant did not touch or
  tease or abu5e PW1. Their evidence was that he touched/
B caught the hand of PW1 's daughter-in-law and when she
  raised an alarm, he ran away. When the charge was that
  the accused attempted to commit trespass into the house
  of PW1 with intent to outrage the modesty of PW1, the
  conclusion of the appellate court and the High Court that
c there was no failure of justice if he is punished for the
  offence of having assaulted PW1 's daughter-in-law and
  outraging her modesty, is opposed to principles of fair
  play and natural justice embodied in Sections 211, 212,
  215 and 464 of the Code of Criminal Procedure, 1973.
D [Para 11] [352-G-H; 353-A-D]

         1.2. The principles relating to sections 212, 215 and
    464, CrPC, which are relevant to this case, are as follows:

          (i) The object of framing a charge is to enable an
E         accused to have a clear idea of what he is being tried
          for and of the essential facts that he has to meet. The
          charge must also contain the particulars of date, time,
          place and person against whom the offence was
          committed, as are reasonably sufficient to give the
F         accused notice of the matter with which he is
          charged.

          (ii) The accused is entitled to know with certainty and
          accuracy, the exact nature of the charge against him,
          and unless he has such knowledge, his defence will
G         be prejudiced. Where an accused is charged with
          having committed offence against one person but on
          the evidence led, he is convicted for committing
          offence against another person, without a charge
          being framed in respect of it, the accused will be
H
         MAIN PAL v. STATE OF HARYANA                  339


    prejudiced, resulting in a failure of justice. But there A
    will be no prejudice or failure of justice where there
    was an error in the charge and the accused was
    aware of the error. Such knowledge can be inferred
    from the defence, that is, if the defence of the
    accused showed that he was defending himself B
    against the real and actual charge and not the
    erroneous charge.

    (iii) 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. c
    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 D
    chance to defend himself. [Para 9] (351-C-H; 352-A-
    B]

    State of Himachal Pradesh v. Geeta Ram 2000 (7) SCC
452, distinguished.                                           E

     Willie (William) Staney v. State of Madhya Pradesh AIR
1956 SC 116; Gurbachan Singh v. State of Punjab AIR 1957
SC 623; Shamnsaheb M. Multtani vs. State of Karnataka
2001 (2) SCC 577; State of West Bengal vs. Laisal Haque
AIR 1989 SC 129; State of A.P. vs. Thakkidiram Reddy 1998     F
(6) SCC 554; Dalbir Singh v. State of UP 2004 (5) SCC 334;
Dumpala Chandra Reddy vs. Nimakayala Bali Reddy 2008
(8) SCC 339 and Sanichar Sahni vs. State of Bihar 2009 (7)
sec 198, relied on.
                                                              G
    2.1. When the accused is charged with having
entered the house of PW1 and assaulted her with intent
to outrage her modesty and when the accused defended
himself in regard to the said charge and concentrated on
proving that the said charges were not true, he cannot        H
    340    SUPREME COURT REPORTS             [2010] 11 S.C.R.


A   be co.nvicted for having assaulted and outraging the
    modesty of someone else, namely PW1 's daughter-in-
    law. The accused did not have any opportunity to meet
    or defend himself against the charge that he assaulted
    PW1 's daughter-in-law and outraged her modesty. Nor
B   did he proceed with his defence on the understanding
    that he was being charged with having committed the
    offence with reference to PW1 's daughter-in-law. One of
    the fundamental principles of justice is that an accused
    should know what is the charge against him so that he
C   can build his defence in regard to that charge. An
    accused cannot be punished for committing an offence
    against 'Y' when he is charged with having committed
    the offence against 'X' and the entire defence of the
    accused was with reference to charge of having
    committed offence against 'X'. [Para 11] [353-8-G]
0
       2.2. The illustrations under a provision of a Statute
  offer relevant and valuable indications as to meaning and
  object of the provision and are helpful in the working and
  application of the provision. Illustration (e) under section
E 215 of CrPC, as contrasted from illustration (d) under that
  section, throws some light on this issue. Applying the
  guidance offered by the said illustrations and the legal
  principles evolved by this Court, the position will be as
  follows : If PW1 's daughter-in-law alone had been
F present at the house at the time of the incident and the
  accused had assaulted and outraged the modesty of the
  said PW1 's daughter-in-law, but in the charge the name
  of the victim had been erroneously mentioned, say as
  Sushila Devi or Prakashi Devi (though there was no
G person by such name), and the inquiry exclusively
  referred to the assault and outraging the modesty of
  PW1 's daughter-in-law, the court could infer that the
  accused was not misled and the error in the charge was
  immaterial. On the other hand, if two persons were
H present in the house at the time of the incident, namely,
         MAIN PAL v. STATE OF HARYANA                  341


PW1 and PW1 's daughter-in-law and the accused is A
charged with trespassing into the house of PW1, and
assaulting and outraging the modesty of the said PW1,
and the witnesses refer only to the assault and outraging
the modesty of PW1 's daughter-in-law, the court will have
to infer that the accused was prejudiced, if the accused B
had solely concentrated and focused his defence and
entire cross-examination to show that he did not commit
the offences against PW1. [Para 12) [353-G-H; 354-A-F-H;
355-A]

     2.3. The court having charged the accused with the        C
offence of having trespassed into the house of PW1 with
intent to assault her and having further charged him for
having assaulted her by outraging her modesty, convicts
him on the ground that though he did not assault or
outrage the modesty of PW1, he had outraged the                D
modesty of PW1's daughter-in-law, that would lead to
failure of justice. There was a material error in the charge
as it violated the requirement of sub-section (1) of section
212 of CrPC, that the charge shall contain particulars as
to the person against whom the offence was committed.          E
There were two women present at the house at the time
of the alleged incident, namely, PW1 and her daughter-
in-law. In view of the specific charge, the accused
concentrated on showing that the charge was false. He
did not attempt to meet the case made out in the trial that    F
the offence was against PW1 's daughter-in-law. The
accused was thus clearly misled by the error in the
charge which caused prejudice to the accused thereby
occasioning failure of justice. Therefore, there should be
a new trial after charging him with the offence of             G
outraging the modesty of PW1 's daughter-in-law. [Para
13) [355-B-E]

    3. The conviction of the accused-appellant is set
aside and the matter is remitted to the trial court with a
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    342      SUPREME COURT REPORTS             [2010] 11 S.C.R.


A   direction for a new trial after framing a charge by
    substituting the words "her daughter-in-law Sheela Devi"
    for the words "abovenamed Prakashi Devi", in the
    second part of the charge. [Para 14) [355-F-G]

                         Case Law Reference:
B
          AIR 1956 SC 116         relied on            Para 8
          AIR 1957 SC 623         relied on            Para 8
          2001 (2) sec 577        relied on            Para 8
c         AIR 1989 SC 129         relied on            Para 8
          1998 (6) sec 554        relied on            Para 8
          2004 (5) sec 334        relied on            Para 8
D         2008 (8) sec 339        relied on            Para 8
          2009 (7) sec 198        relied on            Para 8
          2000 (7) sec 452       distinguished         Para 10
E       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1696 of 2010.

        From the Judgment & Order dated 16.3.2010 of the High
    Court of Punjab & Haryana at Chandigarh in Criminal Revision
    No. 441 of 2002.
F
        Vikas Sharma, K.M. Gupta, Praveen Swarup for the
    Appellant.

          The Judgment of the Court was delivered by
G         R. V. RAVEENDRAN J. 1. Leave granted.

         2. An FIR was registered on 23.3.1996 on the statement
    of one Prakashi Devi. She stated that on the night of 22/
    23.3.1996, while she and her daughter-in-law Sheela Devi were
H
          MAIN PAL v. STATE OF HARYANA                    343
              [R.V. RAVEENDRAN, J.]
sleeping in her house, around 11.30 PM, the appellant jumped A
over the front wall of her house and broke the bulbs and ran
away; that at that time, no male member was present in the
house except the children; that around 00.30 AM the appellant
again came into her house arid touched her daughter-in-law
Sheela Devi who woke up and raised an alarm; and that the s
appellant immediately ran away. The police investigated into
the said complaint and submitted a report under Section 173
of the Code of Criminal Procedure (for short 'the Code'). On
that basis, the following charge was framed by the Judicial
Magistrate, First Class, Kamal, against t,he appellant -      c
    "That on 23.3.1996, after having made preparation for
    causing hurt or assault, you committed house trespass into
    the house of Smt. Prakashi Devi, and thereby committed
    an offence punishable under section 452 IPC within my
    cognizance. Secondly on the same date, time and place, D
    you assaulted and used criminal force against
    abovenamed Prakashi Devi with intent to outrage her
    modesty and thereby committed an offence punishable
    under section 354 IPC and within my cognizance.
                                                                  E
    And I hereby direct that you be tried on the above said
    charge by this cowt."

                                         (emphasis supplied)

When the said charged was read over and explained to the          F
appellant, he pleaded not guilty to the said charge and claimed
trial.

     3. Prakashi Devi was examined as PW-1. She reiterated
what was recorded in the FIR, that the appellant came into the G
house around 11.30 PM and broke the bulbs, that he came
again around 00.30 AM and touched her daughter-in-law
(Sheela Devi) and when her daughter-in-law woke up and
raised an alarm, the appellant ran away. In her cross-
examination, Prakashi Devi stated that she has five sons; that
                                                                  1-:l
    344     SUPREME COURT REPORTS               [2010] 11 S.C.R.


A only her husband and one son named Mahavir were staying with
  her; that the other four sons were married and were not staying
  with her; that on that night, her husband was away in the fields
  and her son Mahavir was also not present in the house.
  However, when confronted with her statement recorded in the
B FIR, she admitted having stated that when the appellant had
  come first time at around 11.30 PM and broke the outside bulbs,
  her son woke up and went out of the house. She also admitted
  that the appellant did not touch her nor teased her nor abused
  her.· Her daughter-in-law Sheela Devi gave evidence as PW-2
c and stated that she was married to one Jaibir who worked in
  the military services; that at 11 to 11.30 PM the accused scaled
  the door and broke the bulbs in the verandah of her house; that
  when she identified the accused and raised an alarm the
  accused ran away; that again he came around 00.30 AM by
D scaling the door and caught her hand; and that when she raised
  an alarm and when her mother-in-law woke up, he ran away. It
  was elicited in her cross-examination that the accused did not
  go towards her mother-in-law nor say anything to her mother-
  in-law; that she used to come to the village where her in-laws
  were residing, only when her husband came home; and that the
E house of her father-in-law was surrounded by the houses of his
  brothers and their sons. Both PW1 and PW2 stated that the
  house of the accused was at a distance of 15-16 houses from
  the house of Prake1shi Devi; that the accused had never come
  into their house earlier; that their family and the accused were
F not on visiting terms with each other even during functions,
  marriages or death, though they were on visiting terms with
  others in the village. PW 2 also stated that she did not know
  the particulars of the dispute between the accused and her in-
  laws. The investigating officer was examined as PW-3. The
G accused examined a witness Ex-Sarpanch of the village as
  DW-1 and he stated that there was a quarrel between the
  accused and complainant's son Surinder about a water course
  and subsequently he came to know that the quarrel was
  converted into a false case against the accused by registering
H
          MAIN PAL v. STATE OF HARYANA                        345
              [R.V. RAVEENDRAN, J.]
a false allegation that the accused had outraged the modesty         A
of a woman.

     4. The learned Magistrate by judgment dated 2.2.2001,
held the accused guilty of offences under sections 452 and 354
Cr.PC and sentenced him for rigorous imprisonment for six            8
months and a fine of Rs.1,000/- in default thereof simple
imprisonment for one month. The appeal filed by the accused
was dismissed by the Addi. Sessions Judge on 20.2.2002. The
criminal revision filed by the appellant was disposed of by the
High Court on 16.3.2010 upholding the conviction but reducing        C
the sentence from six to four months rigorous imprisonment.
That order is challenged by the accused.

     5. One of the contentions urged by the accused before the
appellate court and High Court was that the charge against him
was that he attempted to outrage the modesty of Prakashi Devi        D
(PW-1) whereas the evidence was to show that he attempted
to outrage the modesty of her daughter-in-law Sheela Devi. He
contended that as the charge levelled against him was not
proved, and as he was not required to defend himself against
a charge that he assaulted and outraged the modesty of Sheela        E
Devi, he ought to have been acquitted. This was negatived by
the appellate court and High Court holding that an accused
cannot take advantage of a technical defect in framing the
charge. It was held that mentioning the name of Prakashi Devi
instead of the name of Sheela Devi in the charge was an error        F
that did not prejudice the accused.

      6. The following question therefore arises for our
consideration: When the charge is that the accused assaulted
 'X' and outraged her modesty, but the evidence is that he
assaulted 'Y' to outrage her modesty, can the accused be             G
punished, for having assaulting and outraging the modesty of
'Y', even though he was not charged with any offence with
 reference to 'Y', on the ground that the error or omission in the
charge did not prejudice the accused or result in failure of
justice.                                                             H
    346      SUPREME COURT REPORTS               [2010] 11 S.C.R.


A       7. Section 211 of the Code relates to the contents of the
  charge. It inter alia provides that every charge under the Code
  shall state the offence with which the accused is charged.
  Section 212 of the Code provides that the charge shall contain
  the particulars as to the time and place of the alleged offence,
B and the person (if any) against whom, or 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. Section 215 of the Code however clarifies that no
  error in stating either the offence or the particulars required to
c 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. Section
  464 of the Code relates to effect of omission to frame, or
  absence of, or error in, charge. Sub-section (1) thereof provides
0
  that no finding, sentence or order of 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 charge,
  unless, in the opinion of the court of appeal, confirmation or
E revision, a failure of justice has in fact been occasioned
  thereby. Sub-section (2) of sec. 464 provides that if the court
  of appeal, confirmation or revision is of opinion that failure of
  justice has in fact been occasioned, it may -

F         (a) in the case of an omission to frame a charge, order
          that a charge be framed and that the trial be
          recommended from the point immediately after the framing
          of the charge;

          (b) in case of an error, omission or irregularity in the
G
          charge, direct a new trial to be had upon a charge framed
          in whatever manner it thinks fit.

       8. In Willie (William) Slaney vs. State of Madhya Pradesh
  [AIR 1956 SC 116] this court explained the concepts of
H "prejudice to the accused" and "fpilure of justice" thus:-
          MAIN PAL v. STATE OF HARYANA                      347
              [R.V. RAVEENDRAN, J.]
    "(6) Before we proceed to set out our answer and A
    examine the provisions of the Code, we will pause to
    observe that the Code is a code of procedure and, like all
    procedural laws, is designed to further the ends of justice
    and not to frustrate them by the introduction of endless
    technicalities. The object of the Code is to ensure that an B
    accused person gets a full and fair trial along certain well-
    established and well-understood lines that accord with our
    notions of natural justice. If he does, if he is tried by a
    competent court, if he is told and clearly understands the
    nature of the offence for which he is being tried, if the case c
    against him is fully and fairly explained to him and he is
    afforded a full and fair opportunity of defending himself,
    then, provided there is 'substantial' compliance with the
    outward forms of the law, mere mistakes in procedure,
    mere inconsequential errors and omissions in the trial are
                                                                   0
    regarded as venal by the Code and the trial is not vitiated
    unless the accused can show substantial prejudice. That,
    broadly speaking, is the basic principle on which the
    Code is based.

    (7) Now here, as in all procedural laws, certain things are     E
    regarded as vital. Disregard of a provision of that nature
    is fatal to the trial and at once invalidates the conviction.
    Others are not vital and whatever the irregularity they can
    be cured; and in that event the conviction must stand
    unless the Court is satisfied that there was prejudice.         F
    Some of these matters are dealt with by the Code and
    wherever that is the case full effect must be given to its
    provisions."

This Court then examined the question as to when a procedure G
adopted could be said to have worked actual injustice to the
accused and held :

    "Except where there is something so vital as to cut at the
    root of jurisdiction or so abhorrent to what one might term
    natural justice, the matter resolves itself to a question of H
    348       SUPREME COURT REPORTS                  [2010] 11 S.C.R.


A         prejudice. Some violations of the Code will be so obvious
          that they will speak for themselves as, for example, a
          refusal to give the accused a hearing, a refusal to allow
          him to defend himself, a refusal to explain the nature of the
          charge to him and so forth.
8
          These go to the foundations of natural justice and would
          be struck down as illegal forthwith. It hardly matters whether
          this is because prejudice is then patent or because it is
          so abhorrent to well-established notions of natural justice
          that a trial of that kind is only a mockery of a trial and not
c         of the kind envisaged by the laws of our land because
          either way they would be struck down at once.

          Other violations will not be so obvious and it may be
          possible to show that having regard to all that occurred no
D         prejudice was occasioned or that there was no reasonable
          probability of prejudice. In still another class of case, the
          matter may be so near the border line that very slight
          evidence of a reasonable possibility of prejudice would
          swing the balance in favour of the accused.
E
          ... The Code is emphatic that 'whatever' the irregularity it
          is not to be regarded as fatal unless there is prejudice."

          "It is the substance that we must seek. Courts have to
          administer justice and justice includes the punishment of
F         guilt just as much as the protection of innocence. Neither
          can be done if the shadow is mistaken for the substance
          and the goal is lost in a labyrinth of unsubstantial
          technicalities. Broad vision is required, a nice balancing
          of the rights of the State and the protection of society in
G         general against protection from harassment to the
          individual and the risks of unjust conviction.

          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
H
     MAIN PAL v. STATE OF HARYANA                    ~349
         [R.V. RAVEENDRAN, J.]
and fair play must be brought to bear when determining a     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     B
clearly and whether he was given a full and fair chance to
defend himself.

If all these elements are there and no prejudice is shown
the conviction must stand whatever the irregularities        C
whether traceable to the charge or to a want of one."

"In adjudging the question of prejudice the fact that the
absence of a charge, or a substantial mistake in it, is a
serious lacuna will naturally operate to the benefit of the
accused and if there is any reasonable and substantial D
doubt about whether he was, or was reasonably likely to
have been, misled in the circumstances of any particular
case, he is as much entitled to the benefit of it here as
elsewhere; but if, on a careful consideration of all the facts,
prejudice, or a reasonable and substantial likelihood of lt, E
is not disclosed the conviction must stand; also it will
always be material to consider whether objection to the
nature of the charge, or .. total want of one, was taken at
an early stage ...... But these are matters of fact which will
be special to each different case and no conclusion on F
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 G
even judges, are sometimes prone to argue and to act as
if there were."

                                     (emphasis supplied)

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    350      SUPREME COURT REPORTS                    [2010] 11 S.C.R.


A        In Gurbachan Singh v. State of Punjab [Al R 1957 SC 623]
    following Willie Slaney, this Court held:

          " ...... in judging a question of prejudice, as of guilt, courts
          must act with a broad vision and look to the substance and
          not to technicalities, and their main concern should be to
B
          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."
c
    In Shamnsaheb M. Multtani vs. State of Karnataka - 2001 (2)
    SCC 577, this Court considered the meaning of the expression
    "failure of justice" occurring in section 464 of Cr.PC. This Court
    held thus:
D
          ''The crux of the matter is this : Would there be occasion
          for a failure of justice by adopting such a course as to
          convict an accused of the offence under section 304-B IPC
          when all the ingredients necessary for the said offence
          have come out in evidence, although he was not charged
E
          with the said offence?

          ... a conviction would be valid even if there is any omission
          or irregularity in the charge, provided it did not occasion a
          failure of justice .... The criminal court, particularly the
F         superior court should make a close examination to
          ascertain whether there was really a failure of justice or
          whether it is only a camouflage.

          One of the cardinal principles of natural justice is that no
G         man should be condemned without being heard, (audi
          alteram partem). But the law reports are replete with
          instances of courts hesitating to approve the contention that
          failure of justice had occasioned merely because a person
          was not heard on a particular aspect. However, if the
          aspect is of such a nature that non-explanation of it has
H
         MAIN PAL v. STATE OF HARYANA                        351
             [R.V. RAVEENDRAN, J.]
    contributed to penalizing an individual, the court should say    A
    that since he was not given the opportunity to explain that
    aspect there was failure of justice on account of non-
    compliance with the principle of natural justice."

      The above principles are reiterated in several decisions
                                                                     8
of this Court, including State of West Bengal vs. Laisal Haque
- AIR 1989 SC 129, State of A.P. vs. Thakkidiram Reddy -
1998 (6) sec 554, Dalbir Singh v. State of UP [2004 (5) sec
334), Dumpala Chandra Reddy vs. Nimakayala Bali Reddy
- 2008 (8) SCC 339 and Sanichar Sahni vs. State of Bihar -           C
2009 (7) sec 198.

    9. The following principles relating to sections 212, 215
and 464 of the Code, relevant to this case, become evident
from the said enunciations:
                                                                     D
    (i) The object of framing a charge is to enable an accused
    to have a clear idea of what he is being tried for and of
    the essential facts that he has to meet. The charge must
    also contain the particulars of date, time, place and person
    against whom the offence was committed, as are                   E
    reasonably sufficient to give the accused notice of the
    matter with which he is charged.

    (ii) The accused is entitled to know with certainty and
    accuracy, the exact nature of the charge against him, and
    unless he has such knowledge, his defence will be                F
    prejudiced. Where an accused is charged with having
    committed offence against one person but on the evidence
    led, he is convicted for committing offence against another
    person, without a charge being framed in respect of it, the
    accused will be prejudiced, resulting in a failure of justice.   G
    But there will be no prejudice or failure of justice where
    there was an error in the charge and the accused was
    aware of the error. Such knowledge can be inferred from
    the defence, that is, if the defence of the accused showed
    that he was defending himself against the real and actual        H
    352       SUPREME COURT REPORTS                    [2010) 11 S.C.R.


A         charge and not the erroneous charge.

          (iii) 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 sho\.Jld be
          to see whether the accused had a fair trial, whether he
B
          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.

c        10. The respondent relied upon the decision of this court
    in State of Himachal Pradesh v. Geeta Ram [2000 (7) SCC
    452). In that case the respondent was chargesheeted for an
    offence under section 376 IPC and section 3 of the Scheduled
    Castes and Scheduled Tribes (Prevention of Atrocities) Act,
D   1989. The Magistrate committed the case to Sessions Court
    which was specified as a special court under the Act. The
    special court framed a charge only for an offence under section
    376 IPC and after trial convicted the respondent under section
    376 IPC and sentenced him to ten years imprisonment. The
E   High Court set aside the conviction on the technical ground that
    the trial court had no jurisdiction as it was a special court
    specified in under the SC & ST (Prevention of Atrocities) Act.
    This Court reversed the decision of the High Court on the
    ground that a special court~under the Act being a sessions
F   court, it continued to have jurisdiction to try the case for the
    offence under section 376 IPC. That matter was considered
    under section 465 of the Code and not relevant on the facts of
    this case.

          11. As noticed above, in this case, the charge was that
G   appellant committed trespass into the house of Prakashi Devi
    for assaulting Prakashi Devi, and assaulted the said Prakashi
    Devi and outraged her modesty. The accused concentrated his
    cross-examination with reference to the said charge and
    elicited answers showing that he did not assault or outrage the
H   modesty of Prakashi Devi. He did not try to challenge the
           MAIN PAL v. STATE OF HARYANA                      353
               [R.V. RAVEENDRAN, J.]
  evidence let in to show that he had tried to outrage the modesty A
  of Sheela Devi, as he was not charged with such an offence.
  The evidence of PW-1 and PW-2 was that the appellant did
  not touch or tease or abuse Prakashi Devi. Their evidence was
  that he touched/caught the hand of Sheela Devi and when she
  raised an alarm he ran away. When the charge was that the B
  accused attempted to commit trespass into the house of
  Prakashi Devi with intent to outrage the modesty of Prakashi
  Devi, the condusion of the appellate court and the High Court
  that there was no failure of justice if he is punished for the
  offence of having assaulted Sheela Devi and outraging her          c
  modesty, is opposed to principles of fair play and natural justice
  embodied in sections 211, 212, 215 and 464 of the Code.
  When the accused is charged with having entered the house
  of Prakashi Devi and assaulted the said Prakashi Devi with
  intent to outrage her modesty and when the accused defended D
  himself in regard to the said charge and concentrated on
  proving that the s~id charges were not true, he cannot be
  convicted for having assaulted and outraging the ,modesty of
. someone else, namely Sheela Devi. The accused did not have
  any opportunity to meet or defend himself against the charge E
  that he assaulted Sheela Devi and outraged her modesty. Nor
  did he proceed with his defence on the understanding that he
  was being charged with having committed the offence with
  reference to Sheela Devi. One of the fundamental principles of
  justice is that an accused should know what is the charge
  against him so that he can build his defence in regard to that F
  charge. An accused cannot be punished for committing an
  offence against 'Y' when he is charged with having committed
  the offence against 'X' and the entire defence of the accused
  was with reference to charge of having committed offence
  against 'X'.                                                       G

      12. The illustrations under a provision of a Statute offer
 relevant and valuable indications as to meaning and object of
 the provision and are helpful in the working and application of
 the provision. Illustration (e) under section 215 of the Code, as   H
    354      SUPREME COURT REPORTS                 [2010] 11 S.C.R.


A   contrasted from illustration (d) under that section, throws some
    light on this issue. The said illustrations are extracted below :

          "(d) A is charged with the murder of Khoda Baksh on the
          21st January, 1882. In fact, the murdered person's name
          was Haidar Baksh, and the date of the murder was the
B
          20th January, 1882. A was never charged with any murder
          but one, and had heard the inquiry before the Magistrate,
          which referred exclusively to the case of Haidar Baksh. The
          Court may infer from these facts that A was not misled,
          and that the error in the charge was immaterial.
G
          (e) A was charged with murdering Haidar Baksh on the
          20th January, 1882, and Khoda Baksh (who tried to arrest
          him for that murder) on the 21st January, 1882. When
          charged for the murder of Haidar Baksh, he was tried for
D         the murder of Khoda Baksh. The witnesses present in his
          defence were witnesses in the case of Haidar Baksh. The
          Court may infer from this that A was misled, and that the
          error was material."

    Applying the guidance offered by the said illustrations and the
E
    legal principles evolved by this Court, the position will be as
    follows : If Sheela Devi alone had been present at the house
    at the time of the incident and the accused had assaulted and
    outraged the modesty of the said Sheela Devi, but in the
    charge the name of the victim had been erroneously mentioned,
F   say as Sushila Devi or Prakashi Devi (though there was no
    person by such name), and the inquiry exclusively referred to
    the assault and outraging the modesty of Sheela Devi, the court
    could infer that the accused was not misled and the error in
    the charge was immaterial. On the other hand, if two persons
G   were present in the house at the time of the incident namely
    Prakashi Devi and Sheela Devi and the accused is charged
    with trespassing into the house of Prakashi Devi, and assaulting
    and outraging the modesty of the said Prakashi Devi, and the
    witnesses refer only to the ~ssault and outraging the modesty
H   of Sheela Devi, the court will have to infer that the accused was
          MAIN PAL v. STATE OF HARYANA                       355
              [R.V. RAVEENDRAN, J.]
prejudiced, if the accused had solely concentrated and focused       A
his defence and entire cross-examination to show that he did
not commit the offences against Prakashi Devi.

      13. The court having charged the accused with the offence
of having trespassed into the house of Prakashi Devi with intent B
to assault her and having further charged him for having
assaulted the said Prakashi Devi by outraging her modesty,
convicts him on the ground that though he did not assault or
outrage the modesty of Prakashi Devi, he had outraged the
modesty of Sheela Devi, that would lead to failure of justice. C
There was a material error in the charge as it violated the
requirement of sub-section (1) of section 212 of the Code, that
the charge shall contain particulars as to the person against
whom the offence was committed. There were two women
present at the house at the time of the alleged incident, namely
Prakashi Devi and her daughter-in-law Sheela Devi. In view of D
the specific charge, the accused concentrated on showing that
the charge was false. He did not attempt to meet the case
made out in the trial that the offence was against Sheela Devi.
The accused was thus clearly misled by the error in the charge
which caused prejudiced to the accused thereby occasioning E
failure of justice. Therefore, we are of the view that there should
be a new trial after charging him with the offerice of outraging
the modesty of Sheela Devi.

     14. The appeal is therefore allowed, the conviction of the      F
accused is set aside and the matter is remitted to the trial court
with a direction for a new trial after framing a charge by
substituting the words "her daughter-in-law Sheela Devi" for the
words "abovenamed Prakashi Devi", in the second part of the
charge.
                                                                     G
B.B.B.                                          Appeal allowed.