JUDGMENT Roy, J.
1. This is an appeal by Babu Lal, Rameshwar and Ram Chand who have been convicted by the learned Sessions Judge of Agra under Sections 302/34, 324/34 and 323/34 I. P. C. and each sentenced to imprisonment for life under Section 302/34, to one year's rigorous imprisonment under Section 324/34 and to six months' rigorous imprisonment under Section 323/34 I. P. C., the sentences to run concurrently.
2. The case for the prosecution as set out in the first information report made by Natha P. W. 1 supported by the oral testimony of the witnesses was as follows: On the morning of 22-9-1957 Ramvir son of Natha was returning from Tundla. Ram Chand accused met him near the Dharamshala of Pokhpal, He asked Ramvir to give him the cane which he had with him. Ramvir refused to part with his cane. Ram Chand then slapped him. Ramvir went home and some time later in the day told his father Natha and his grand father Bharat Singh as to what had happened. Natha and Bharat Singh went along with Ramvir to Ram Chand to remonstrate him for his conduct. This was on the evening of 22-9-1957. Ram Chand did not listen to reason and he started abusing them.
Meanwhile Rameshwar and Babu Lal accused accompanied by one Balbir came up and they joined with Ram Chand in- giving a few slaps to Natha Singh and Bharat Singh. They also tore away the kurta of Bharat Singh. The matter ended there. On the following morning, that is on 23-9-1957, Natha Singh P. W. 1. Shyam Lal P. W. 4 and Sobha Ram deceased were smoking on the chabutra of Natha Singh. The three appellants came there, abused Natha Singh and remarked: "You made a report yesterday against us, we will see you today." Ram Chand had the ballam Ex. 4, Rameshwar had the knife Ex. 3 and Babu Lal had the lathi Ex. 1 with them. Natha Singh asked the accused not to abuse him.
The accused then said "Mar do sale ko jan se." Ram Chand gave a spear blow to Sobha Ram who fell down after struggling for two or three steps. Rameshwar Rave two knife blows to Natba Singh; and Babu Lal gave certain lathi blows to Shyam Lal. Natha Singh snatched the lathi Ex. 1 from Babu Lal accused and used it in self defence and caused certain injuries to Babu Lal and Rameshwar accused. On seeing that the condition of Sobha was grave the accused ran away. They were chased upto a certain distance by Munni Lal P. W. 3, Babu Lal P. W. 2 and Bhopi Chowkidar P. W. 6, who arrived there when the assault was going on. Ram Chand and Rameshwar threw away the spear and the knife in the field of Umrao from where they were picked up by Bhopi Chowkidar who produced them at police station, Tundla. Sobha Ram was being taken on a cot to police station Tundla, but he expired while on the way.
3. The report of the occurrence was lodged by Natha Singh P. W. 1 at police station Tundla at 7-40 a. m. Sub-Inspector Shamsher Singh, Second Officer, was deputed by the Station Officer to arrest the accused and at about 3 p. m. they were arrested while concealing themselves in the cemetery. The accused were brought to the place of occurrence; and Sub Inspector Surat Singn, the S. O. of that police station, 'removed the blood stained clothes of Rameshwar and Babu Lal from their person.
4. After the inquest over the dead body of Sobha Ram had been held, the body was sent for post mortem examination. The post mortem examination was conducted on 23-9-1957 and only one incised penetrating wound 2" x 3/4" x 2 3/4" in the lower part of the left armpit, transverse, going towards the thorax in between second and third ribs, with margins irregular and torn, had been found. A tear was present in the second left intercostal space 1 3/4" x 3/4" corresponding to the external injury. A tear was also found to the extent of 1 1/2" x 1/2" in the upper lobe of the left lung.
Death, according to Dr. K. N. Saxena, who had conducted the post mortem examination, was due to shock and haemorrhage following the tear of left lung consequent to stab wound on the left armpit. Dr. K. N. Saxena was of the opinion that the injury to Sobha Ram could have been caused by spear Ex. 4. A question was put to Dr. Saxena as to whether that injury was also possible by a long knife with a blade of 5." Dr. Saxena was of the opinion that it was possible, but it was not likely. Dr. Saxena was not asked the question whether that injury could have been caused by the knife Ex. 3. The question becomes important because at the last stage of the case, namely, in the court of session, that injury to Sobha Ram was alleged to have been caused by Rameshwar by the knife Ex. 3. Since that part of the case had not been put to Dr. Saxena, the inference is irresistible that the injury to Sobha Ram could not have been caused by the knife Ex. 3,
5. Natha Singh P. W. 1 and Shyam Lal P. W. 4 were medically examined on the 23rd of September 1957 by Dr. B. M. L. Kapur of the S. N. Hospital, Agra. Two incised wounds were found on Natha Singh and they were caused by a knife. Two parallel bruises on the right arm of Shyam Lal were found, and there was also a diffused swelling on the right elbow joint. These injuries according to the medical evidence were caused by lathi.
6. When the three accused were admitted to the District Jail on 24-9-1957, it was observed by Dr. H. K. Thakur, the Medical Officer of that jail, that Babu Lal accused had a contused wound 2 3/4" x 1/3" scalp deep over left parietal region; and Rameshwar had four abrasions, one on the parietal region, two over the back of left fore-arm, and one over the top of left shoulder. These injuries according to Dr. Thakur were caused by a blunt weapon like a lathi. Dr. Thakur was of opinion that the head injury of Babu Lal must have bled a little. It may be stated here that no injury was found on the person of Ram Chand accused.
7. In the Court of the Committing Magistrate the accused did not come forward with any definite story in defence, and they had only denied the charge that had been levelled against them. In the court of sessions Ram Chand accused denied participation in the occurrence and came forward with the story that he was not present on the scene of occurrence. The other two, namely, Babu Lal and Rameshwar accused admitted their participation but they gave an altogether different version of the story. Babu Lal said that on the 23rd of September 1957 at about 7 a. m. he was going from the house of his brother-in-law to the bazar and when he came near neem tree, he saw five or six men sitting on the chabutra of Natha Singh P. W. 1.
Those persons stopped him from proceeding. They reprimanded him and they said they would take revenge for the occurrence which had taken place on the previous day. Babu accused stated that he asked them not to do so. He further stated that Natha gave a lathi blow on his head and he started bleeding, upon which he lost consciousness and he did not know what happened subsequently. His statement further was that he re-gained consciousness in the lock-up on the next ay and that the Sub Inspector had removed his clothes from his person and had given him certain other clothes to put on. Rameshwar's defence in the court of sessions was to the following effect.
After he woke up in the morning, he heard an outcry. Ho saw that Babu Lal accused was lying with a deep injury. He, namely, Rameshwar asked Natha Singh, Bharat Singh, Sobha Ram and others to refrain from beating Babu Lal but they began to beat him also. Bharat Singh, father of Natha P. W. 1, according to him, had a knife in his hand which he was going to use. Rameshwar thought that Bharat Singh would kill him. He therefore snatched the knife Ex. 3 from the hands of Bharat Singh and used it twice in self-defence, once striking Natha Singh P. W. 1 and for the second time striking Sobha Ram. Sobha Ram continued plying his lathi.
The injuries on Sobha Ram and Natha had been bleeding. The marpit did not end. Natha gave a lathi blow on the hand of Rameshwar and the knife fell down from his hand. Rameshwar contended that thereafter when he went to the Thana to lodge a report, the Sub Inspector asked him to wait and that about half an hour later the corpse of Sobha Ram was brought to the Thana and it was there that Babu Lal and Rameshwar had been put into the lock up.
8. In support of the prosecution story relianca was placed upon the testimony of Natha Singh P. W. 1, Babu Lal, P. W. 2, Munni Lal P. W. 3, Shyam Lal P. W. 4, Narain Gadarya P. W. 5, Bhopi Chowkidar P. W. 6 and Shiv Lal P. W. 7. Bhopi Chowkidar was not a witness to the actual occurrence. He was attracted to the scene of occurence when the outcry was raised and he saw the accused running away and he gave them a chase when Ram Chand and Rameshwar threw away the spear and the knife held by them and made good their escape, and Babu Lal also escaped.
Of the witnesses stated above two, namely, Natha Singh P. W. 1 and Shyam Lal P. W. 4 got injured and their presence at the scene of occurence cannot for a moment be doubted. Upon the defence story itself these two persons had in fact been present. Babu Lal P. W. 2 was going to his Karkhana in Tundla and Munni Lal P. W. 3 was going to the bazar and Narain Gadarya P. W. 5 had been cutting fodder on another chabutra of Natha Singh when this occurrence took place.
We have looked into their evidence and we see no reason to doubt their testimony. They are natural and probable witnesses and what they have stated fits in with the prosecution story and gains support from medical evidence. The belated story set out in defence in the court of sessions did not find favour with the learned Sessions Judge, and we think that he was perfectly justified in rejecting it. In fact, the medical evidence did not sup-port the view that Sobha Ram deceased received is injury by a knife, much less by the knife Ex. 3. The medical evidence did not also support Babu Lal and Rameshwar accused in respect to the nature and extent of the injuries received by them. The defence witness, namely Babu Lal came forward with a version which not only went against the version given by Rameshwar and Babu Lal, but also against the medical evidence in regard to the injuries found on Rameshwar and Babu Lal.
9. The garments which were taken from the dead body of Sobha Ram, the ballam and knife and the lathi which were the instruments of attack, the blood stained earth taken from the spot, the blood-stained garment of Natha Singh P. W. 1, the blood-stained dhoti and banyan of Babu Lal accused and the blood-stained shirt, banyan and knickers of Rameshwar accused which were taken possession of by the police and kept under proper sealed condition, were sent to the Chemical Examiner and to the Scrologist to Government and they reported that they were all stained with human blood. The version of the prosecution story therefore not only found support from the medical evidence and from the two reports of the Chemical Examiner and the Serologist to Government, but they were fully corroborated by the witnesses who were produced on behalf of the prosecution.
10. The most important question which arises for our consideration is what offence was made out and against whom. In this connection our attention was drawn to the charges framed by the learned Magistrate and to the amended charge that had been framed against these accused by the learned Sessions Judge. The learned Magistrate charged all the three appellants under Section 802/34 I. P. C. and also under Sections 324/34 I. P. C. and 323/34 I. P. C. The Sessions Judge amended the charge against all of them and the amended charge stood as follows:
"I ........hereby charge you Ram Chand, Rameshwar and Babu Lal as follows: That you, Ram Chand on the 23rd day of September, 1957 at about 7.15 a.m. at Tundla, P. S. Tundla did commit murder by intentionally causing the death of Sobha Ram by, striking him with a ballam, and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of this Court.
11. That you, Rameshwar on the same date, time and place, did stab Natha Singh with a knife and caused hurt with such intention, under such circumstances, that if by that act you had caused the death of Natha Singh, you would have been guilty of murder and thereby committed an offence punishable under Section 307 I. P. C. and within the cognizance of this court.
12. That you, Babu Lal, on the same date, time and place voluntarily caused hurt to Natha and Shyamlal with a lathi and thereby committed an offence punishable under Section 323 I. P. C. and within cognizance of this court.
13. That you, Rameshwar along with tho other two accused, viz., Ram Chand and Babu Lal, on the same date, time and place, did stab Natha With a knife and caused hurt in furtherance of tho common intention of all with such intention and under such circumstances that if by that act death had been caused of Natha you all would have been guilty of murder and thereby committed an offence under Section 307, read with Section 34, I. P. C."
14. It would be therefore fairly obvious from the amended charge which we have quoted above that Ram Chand alone was charged by the learned Sessions Judge for the murder of Sobha Ram under Section 302 I. P. C. simpliciter. The other accused persons were not at all charged by the learned Sessions Judge for the murder of Sobha Ram. Rameshwar was charged under Section 307 I. P. C. simpliciter and alternatively under Section 307/34 I. P. C. for making a murderous assault on Natha Singh P. W. 1. And Babu Lal alone was charged under Section 323 I. P. C. simpliciter for causing hurt to Natha and Shyam Lal with a lathi. The learned Sessions Judgs obviously overlooked what was contained in tho amended charge framed by him on 10-2-1958 quoted above and it was under that mistake Or misapprehension that he started the judgment by saying:
"The accused Ramchand, Rameshwar and Babu Lal stand charged as under: Ram Chand under Section 302 I. P. C. and under Sections 307 and 323 read with Section 34 I. P. C., Ramsehwar under Section 307 I. P. C, and sections 302 and 323 read with Section 34 I P. C and Babu Lal under Section 323 I. P. C. and Sections 307 and 303 read with Section 34, I. P. C."
15. The question therefore is whether the conviction and sentence of the appellants under the sections under which they were not charged cam be sustained. Before we proceed to consider that aspect upon its factual part, namely, whether the evidence in the case justifies a conviction of all the appellants under Sections 302/34 I. P. C., 324/34 I. P. C. and 323/34 I. P. C. we may consider the legal aspect bearing upon the question. The relevant sections of the Cr. P. C. bearing on the requirement of charge, the omission of a charge and the effect thereof, may be looked into. Section 233 of the Code provides as follows:
"For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 234, 235 230 and 239."
16. The power to alter or add to any charge at any time before judgment is pronounced, is conferred on a court under Section 227. Sections 228 to 231 provide for the steps to be taken consequence on such alteration. Section 225 shows what would be the effect of any error in the framing of a charge. It runs as follows:
"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."
17. Section 232(1) of the Code refers more specifically to the effect of such error where an appellate court or a High Court in revision or in confirmation proceedings notices such an error and is to the following terms:
18. "If any Appellate Court, Or the High Court in the exercise of its powers of revision or of its powers under Ch. 27, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit."
19. Then we have Section 237 dealing with a case where an accused charged with one offence for which he might have been charged under the provisions of Section 236, could be convicted of a different offence. This applies only to cases where it is doubtful which of several offences the facts which can be proved will constitute.
"(1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommended from the point immediately after the framing of the charge."
21. Section 537 of the Code runs as follows: "537. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Ch. XXVII or an appeal or revision on account-
(a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial on in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the charge, including any misjoinder of charge, including any misjoinder of charges, or
(c) of the omission to revise any list of jurors ... in accordance with Section 324, or
(d) of any misdirection in any charge to a jury unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice.
Explanation: In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
22. The case of complete absence of a charge is covered by Section 535, whereas an error or omission in a charge is dealt with by Section 537. The consequences seem to be slightly different. Where there is no charge, it is for the court to determine whether there is any failure of justice. But in the latter, where there is mere error or omission in the charge the court is also bound to have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
23. The question which we have to consider on this part of the case was considered by their Lordships of the Supreme Court in Willie (William) Slaney v. State of M. P., AIR 1956 SC 116 and it was observed at page 136 of the report that:
"We are unable, therefore to accept as sound the very broad proposition advanced for the appellants that where there is no charge, the conviction would be illegal, prejudice or no prejudice. On the other hand, it is suggested that the wording of Section 535 Cr. P. C. is sufficiently wide to cover every case of 'no charge.' It is said that it applies also to the case of a trial in which there has been no charge of any kind even from the very outset.
We are unable to agree that Section 535 Cr. P. C. is to be construed in such an unlimited sense. . ."
24. Their Lordships after considering the scope of Section 535 gave certain illustrations bearing upon the subject and quoted from the observations of Lord Penzance in Howard v. Bodington, 1877-2 PD 203 and came to the conclusion that those observations applied mutatis mutandis to cases where there is no charge at all, and that the gravity of the defect will have to be considered to determine if it falls within one class or the other. They observed: "Is it a mere unimportant mistake in procedure or is it substantial and vital?" and they said that the answer will depend largely on the facts and circumstances of each case. They further observed that ''if it is so grave that prejudice will necessarily be implied or imparted, it may be described as an illegality, and if the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established." Their Lordships further cautioned the courts by observing:
"This judgment should not be understood by the subordinate courts as sanctioning a deliberate disobedience to the mandatory requirements of the Code, or as giving any license to proceed with trials without an appropriate charge. The omission to frame a charge is a grave defect and should be vigilantly guarded against. In some cases, it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted.
In the main, the provisions of Section 535 would apply to cases of inadvertence to frame a charge induced by the belief that the matter on record is sufficient to warrant the conviction for a particular offence without express specification, and where the facts proved by the prosecution constitute a separate and distinct offenee but closely relevant to and springing out of the same set of facts connected with one charged."
25. The amended charge that was framed in the present case by the learned Sessions Judge indicted the three accused for the principal offences respectively committed by each. In framing the amended charge the Judge cannot be said to have acted inadvertently by failing to mention that they were also vicariously liable by the application of Section 34 of the Code to the principal offences punishable under Sections 302 and 324 and 323. In fact the vicarious liability contained in the charges framed by the Magistrate in regard to all the three offences had been consciously omitted by the Sessions Judge in the charge refrained by him. The omission cannot therefore be availed of by the prosecution in its own favour for the application of Section 535 of the Code. The prosecution cannot be heard to say that the omission to frame a charge was not a grave defect or that it does not prejudicially affect the accused when they have been convicted for all the three offences by the application of Section 34 I. P. C.
26. Now coming to the facts of the present case, the prosecution alleged that specific acts had been done by the three accused persons separately, (a) Ram Chand accused having speared Sobha Ram to death: (b) Babu Lal accused having caused simple hurt by lathi to Shyam Lal; and (c) Rameshwar accused having caused two incised wounds by knife to Natha Singh. (P. W. 1). The act of the one had no connection with the act of the other. The only collaboration which was alleged to have existed between the three was to this extent, and no more viz., that when they came to the Chabutra of Natha Singh they told him: "you made a report yesterday against us. We will see you." When that report was given by them, the prosecution contended that they abused Natha Singh and Natha Singh asked them not to do so and it was then that all the three accused said "mar do sale ko jan se." If those words signified any common intention of the three it was an intention to kill Natha Singh.
No common intention had been expressed by them, either by word or by action, either to attack Sobha Ram or to kill Sobha Ram or to attack Shyam Lal and cause simple injuries to him. Wo doubt very much whether a joint or common intention had been expressed by all the three to kill Natha Singh because if such an intention was there we should have found injuries on Natha Singh of a nature altogether different from those found on him. We should have expected injuries not only caused by Rameshwar with the knife as found on him but also by Ram Chand with the spear and by Babu Lal with the lathi That, however, was not the case. Consequently it is clear enough that Section 34 cannot at all be applied to the case. It is also clear that the appellants can be held responsible for their own individual acts. The injury that was caused by Ram Chand to Sobha Ram by the spear was on a vital part of the body and it was given with, such force that it went deep into his body cutting into the lung. Ram Chand who was charged with Section 302 I.P.C. simpliciter must therefore be convicted under Section 302; and in view of what we have said above we are of opinion that a sentence of life imprisonment awarded by the Sessions Judge under that section was sufficient to meet the ends of the case. Babu Lal must be convicted under section 323 I.P.C. simpliciter for having caused simple hurt to Shyarn Lal. He cannot be held guilty under Section 302/34 or under Section 324/34 I.P.C. For similar reasons Rameshwar should be convicted under Section 324 I.P.C. simpliciter. He cannot be held guilty under Section 302/34 or Section 323/34 I.P.C.
27. In the result, we allow the appeal to this extent that we maintain the conviction of Ram Chand under Section 302 I.P.C. and the sentence of life imprisonment under that section, and we further maintain the conviction of Babu Lal under Section 323 I.P.C. and the sentence of six months rigorous imprisonment thereunder, and we also maintain the conviction of Rameshwar under Section 324 I.P.C. and the sentence of one year's rigorous imprisonment thereunder. We set aside the conviction and sentences of these three appellants under the other sections under which they have been convicted and sentenced by the court below.