ABDUL RAHIM Vs. KING-EMPEROR

JUDGEMENT

(1.) The three appellants before us and one Abdul Latif were dried before (she Additional Sessions Judge of Backargunj and a Jury on various charges. The committing Magistrate framed the following charges, against Abdul Rahim, Abdul Latif and Saripali Khan, first, with having committed muder by causing the death of Mahomed Sikdar punishable under Section 302, Indian Penal Code and secondly that they were member; of a criminal conspiracy to commit this murder, an offence punishable under Section 102 B of the Indian Penal Code. Aiman Bibi was charged with having been member of the criminal conspiracy with the other three accused be commit murder by causing the death of her husband Mahomed Sikdar, an offence punishable under Section 120B, Indian Penal Code. The learned Sessions Judge amended the charges. He struck out the name of Saripali Khan from the charge that had been framed against him jointly with Abdul Rahim and Abdul Latif. The two remaining accused were charged with conspiring together and with Saripali Khan. He added a charge against Saripali Khan charging him in the alternative with having committed murder punishable under Section 302, Indian Penal Code or causing evidence of commission of the murder to disappear punishable under Section 201, Indian Penal Code.

(2.) The Jury by a unanimous verdict found Aiman Blbi, Saripali Khan and Abdul Rahim guilty of criminal conspiracy to commit murder under Section 302 read with Section 120B. They found Abdul Latif not guilty. They also stated that there was no sufficient evidence that any of these accused committed murder of Mahomad Sikdar. The learned Sessions Judge accepting the unanimous verdict of the Jury sentenced the three appellants to transportation for life.

(3.) From the above statement of the charges it is apparent that Saripali Khan was convicted of an offence for which no charge bad been framed against him. But we hold that Section 535, Criminal Procedure Code is applicable in the present case. That section provides that 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 failure of justice has in fact been occasioned thereby. It is contended on behalf of the appellants that this Section is not applicable and only applies to a trial where no charge at all had been framed. In our opinion this contention is not correct and the Section is applicable to a case in which no charge had been framed of the offence of which the appellant has been convicted. We are unable to hold and it has not been contended before us that this appellant Saripali Khan has in fact been prejudiced, or in other words that there has been failure of justice occasioned by the omission of the charge. The learned Sessions Judge in his charge to the Jury stated that all the accused had been charged under Section 302 read with Section 120B, Indian Penal Code. We cannot believe that such a remark would pass unchallenged by the appellant's representative if it had not been understood at the trial that he was being tried on this charge. Further, on the charges as actually framed, the Jury had to determine whether there was in fact a conspiracy in which Saripali Khan took part since in the charges framed both against Abdul Rahim and Abdul Latif and that framed against Aiman Bibi. Saripali Khan is alleged to be one of the conspirators. Having regard to these facts we are unable to hold that a failure of justice has in fact been occasioned by the omission to frame a specific charge of conspiracy against the appellant Saripali Khan.