1955 (10) TMI 33 - SC - Indian Laws

Issues Involved:
1. Conviction under Section 302 IPC without a specific charge.
2. Applicability of Sections 535 and 537 of the Code of Criminal Procedure.
3. Difference between an "illegality" and an "irregularity" in the trial process.
4. Prejudice caused to the accused due to the absence of a specific charge.
5. Distinction between charges under Section 302 read with Section 34 and Section 302 read with Section 149 IPC.
6. Nature of the offence under Section 302 IPC versus Section 304 IPC.

Detailed Analysis:

1. Conviction under Section 302 IPC without a specific charge:
The appellant was convicted under Section 302 of the Indian Penal Code (IPC) without being specifically charged for that offence. The charge framed was under Section 302 read with Section 34 IPC. The appellant argued that since his co-accused was acquitted, the element of common intention under Section 34 IPC dropped out, and therefore, he could not be convicted under Section 302 IPC.

2. Applicability of Sections 535 and 537 of the Code of Criminal Procedure:
The court examined whether the omission to frame a specific charge under Section 302 IPC could be considered a curable irregularity under Sections 535 and 537 of the Code of Criminal Procedure. These sections state that no finding, sentence, or order shall be deemed invalid due to any error, omission, or irregularity in the charge unless it has occasioned a failure of justice.

3. Difference between an "illegality" and an "irregularity" in the trial process:
The judgment discussed the distinction between an "illegality" and an "irregularity." An illegality is a fundamental defect that vitiates the trial, whereas an irregularity is a less severe error that can be cured if no prejudice is caused to the accused. The court referred to various precedents, including N.A. Subramania Iyer v. King-Emperor and Pulukuri Kotayya v. King-Emperor, to elucidate this distinction.

4. Prejudice caused to the accused due to the absence of a specific charge:
The court emphasized that the real question was whether the absence of a specific charge under Section 302 IPC caused any prejudice to the accused. It was noted that the appellant was aware that he was being tried for murder, as evidenced by the trend of cross-examinations and his examination under Section 342 of the Code of Criminal Procedure. Therefore, no prejudice was found.

5. Distinction between charges under Section 302 read with Section 34 and Section 302 read with Section 149 IPC:
The court highlighted the differences between Section 34 and Section 149 IPC. Section 34 does not create a specific offence but enunciates a principle of joint liability, whereas Section 149 creates a distinct offence of being a member of an unlawful assembly with a common object. The court held that a conviction under Section 302 IPC could be sustained even if the charge was framed under Section 302 read with Section 34 IPC, provided no prejudice was caused.

6. Nature of the offence under Section 302 IPC versus Section 304 IPC:
The court examined whether the offence committed by the appellant fell under Section 302 IPC (murder) or Section 304 IPC (culpable homicide not amounting to murder). It was found that the appellant did not have the intention to kill, and the injury inflicted was only "likely" to cause death, as per the medical evidence. Therefore, the offence was classified under the second part of Section 304 IPC, and the sentence was reduced to five years of rigorous imprisonment.

Conclusion:
The court concluded that the conviction under Section 302 IPC without a specific charge was not an incurable illegality but a curable irregularity, as no prejudice was caused to the accused. The conviction was altered to one under the second part of Section 304 IPC, and the sentence was reduced to five years of rigorous imprisonment.

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