Motia @ Motilal Shaw and Others vs The State

N.C. Talukdar, J.—This, is a Reference dated 2.7.69 by Sri S.R. Roy, Additional Sessions Judge, 3rd Court, Alipore u/s 374 of the Code of Criminal Procedure for confirmation of the sentence of death passed by him on the three accused-appellants, Motia alias Motilal Shaw, Jagannath Prosad and Ram Prosad Shaw in Sessions Trial No. 1 of May 1969 of the 3rd Court of the Additional Sessions Judge, 24-Parganas at Alipore. The accused-appellants have also preferred an appeal against the order dated the 26th June, 1969 passed by the learned Additional Sessions Judge, convicting all of them under sections 302/34 I.P.C. (on three counts), 307/34 I.P.C. (on five counts) as well as u/s 148 I.P.C. and sentencing them to death u/s 302/34 I.P.C. but passing no separate sentences under the other charges; and further convicting the accused-appellant No. 1, Motia alias Motilal Shaw u/s 27 of the Arms Act. 1959 but passing no separate sentence thereunder; while acquitting the accused-appellant No. 3, Ram Prosad Shaw u/s 27 of the Arms Act and the two co-accused, Kartic Das and Gouranga Roy, of all the charges framed against them on a benefit of doubt. The prosecution case inter alia is that on 22.11.67 at about 1-45 a.m. a jeep driven by Dinanath Singh and carrying; Sukdeo Singh, Harendranath Singh, Jit Singh, Dharamnath Singh, Gour Chandra Basu, Sudhir Kumar Ghosh and Surya Kumar Chatterjee alias Nanu was proceeding alter a night round, along Nalini Bose Road and nearing its junction with Nakari Mondal Road, Kanchrapara, P.S. Bijpur, 8 or 10 men, including the accused on trial, stood at the time at the junction of the said road. A bomb was hurled on the jeep which swerved as a result thereof and got stuck up in the drain by the side of the road on the west of Nakari Mondal Road. The assailants surrounded the jeep and shots were fired on the men seated therein from small-sized revolvers or pistols. The accused Motia alias Motilal Shaw and another person dragged down the driver Dinanath Singh from the jeep and thereafter Motia shot him and threw him into the drain. Finding Harendra Nath Singh in the jeep, Motia exclaimed that he had new got the prey and will take revenge for Jugal and then fired shots on Harendra from his pistol or revolver, dragged him out of the jeep shot him again and threw him over the body of Dinanath Singh into the same drain. Finding then Sukdeo Singh in the jeep, accused Motia exclaimed that Sukdeo was also there and fired shot at once from his pistol or revolver on the back of his head. In the mean time either Bibha or Deomoni went to the right side of the jeep and fired shot at Jit Singh and thereafter all the miscreants armed with pistols or revolvers went to the rear side of the jeep and indiscriminately and recklessly fired shots at the four other occupants viz., Dharamnath Singh, Sudhir Kumar Ghosh, Gour Chandra Basu and Nanu. The entire occurrence took place within 4 or 5 minutes and before anybody could come to the rescue, the miscreants made good their escape along Nalini Bose Road. S.I.P.K. Banerjee the O.C. of the Bijpur P.S., who was on patrol duty at the relevant time with his officers and force, was attracted by the explosion of bombs and the sound of gun shots and at once proceeded to that direction in the police van. P.W. 42 Harish Chandra Singh was then coming and was taken into the van, On arriving at the place of occurrence at about 1-50 a.m. in the night, the party found the jeep lying with its two front wheels inside the drain on the western side of Nakari Mondal Road near the crossing in question with head lights on. Inside the drain they saw the dead bodies, one over the other. The body lying underneath was identified by Harish Chandra Singh as that of the driver Dinanath Singh and the one lying above it was identified by him as the dead body of his elder brother Harendra Nath Singh. The third dead body was found lying on the front seat with the lower portion hanging out and it was identified by the same witness to be the dead body of Jit Singh. Dharamnath Singh had already left for his home and the police party found 4 of the injured persons viz., Sukdeo Singh, Gour Chandra Basu, Sudhir Kumar Ghosh and Surya Kumar Chatterjee alias Nanu and sent them to the Kanchrapara Railway Hospital for treatment. Before being sent to the hospital Sukdeo''s statement was recorded by S.I.P.K. Banerjee (P.W. 52) and his L.T.I. was taken therein. The statement was sent to the P.S. with a direction to treat it as the F.I.R. and A.S.I. Gopinath Sen (P.W. 40) who was at the time in charge of the P.S., drew up the formal F.I.R. (Ext. 20) on the basis thereof. In course of the investigation that followed statements were recorded, T.I. parade was held and ultimately a charge-sheet was submitted against 8 accused persons under sections 302/34and 307/34 I.P.C.

Two of the accused persons viz, Motia alias Motilal Shaw and Jagannath Prosad were found absconding and the three others viz., Ram Prosad Shaw, Gouranga Roy alias Subodh Chandra Roy and Kartick Das were produced and faced an enquiry under Chapter VIII of the Code of Criminal Procedure before Shri S.K. Chakraborty, Magistrate, 1st Class, Barrackpore under sections 302/34 307/34, 148 I.P.C. and section 27 of the Arms Act, 1959. Six witnesses were examined, of whom P.W. 6 is an eyewitness and the five others are police officers, who executed the proclamation and arrest order against the absconding accused persons. On a perusal of the evidence and statements the learned enquiring magistrate, by his order dated the 1st March, 1969, committed the three accused viz., Ram Prosad Shaw, Gouranga Roy and Kartick Das to the court of Sessions to stand their trial under sections 302/34 I.P.C. (on three counts); u/s 307/34 I.P.C. (on five counts); u/s 148 I.P.C.; and the accused Ram Prosad Shaw also u/s 27 of the Arms Act, 1959. After the two absconding accused Motia alias Motilal Shaw and Jagannath Prosad were apprehended and produced before the court on 7.4.69, the learned enquiring magistrate perused the statements of the witnesses u/s 161 Criminal Procedure Code and other records and by his order dated 19.4.69 committed all the accused to the court of sessions to stand their trial under sections 302/34 I.P.C., on three counts, 307/34 I.P.C. on five counts; 148 I.P.C.; and the accused Motia alias Motilal Shaw also u/s 27 of the Arms Act, 1959. The learned Additional Sessions Judge, 3rd Court, 24-Parganas, thereafter held a joint trial of the five accused persons on charges referred to above. The defence case inter alia is that the accused are not guilty; that they had nothing to do with the occurrence; and that they have been implicated out of enmity and grudge. 53 witnesses were examined on behalf of the prosecution and several exhibits were proved on behalf of both the sides. As a result of the trial the learned Additional Sessions Judge by his order dated the 26th June, 1969, convicted and sentenced the three accused-appellants as stated above and acquitted the two co-accused Kartick Das and Gouranga Roy. A reference u/s 374 of the Code of Criminal Procedure was also made to the High Court for confirming the sentence of death passed on the three accused. The said order of conviction and sentence has been impugned and forms the subject-matter of the present appeal.

Mr. Ajit Kumar Dutt, Advocate (with Mr. Chittaranjan Das, Advocate) appearing in support of the accused-appellant No. 3, made a three-fold submission. The first contention of Mr. Dutt is procedural and relates to a defect in the proceedings because of the nonconformance to section 7 of the Explosive Substances Act, 1908 whereunder the consent of the Central Government has to be obtained before proceeding with the trial under the said section, and although no charge was framed ultimately u/s 5 of the said Act, a considerable body of evidence, otherwise inadmissible was let in the absence of such consent u/s 7 of the Act--both during the committal proceedings and at the trial; the maintainability of the order of committal dated 1.3.69 on the ground of non-conformance to the provisions of section 207A(4) to (10) of the Code of Criminal Procedure; and the legality of the Sessions Trial based on a cognizance taken u/s 193 of the Code of Criminal Procedure on the basis of such a commitment. Mr. Dutt next contended about the maintainability of the charges, including the compatibility of the charges under sections 302/34 on three counts and 307/34 I.P.C. on five counts. The third and last submission of Mr. Dutt is on merits based upon the appraisal of evidence which according to him gives the benefit of doubt to the accused-appellant. Mr. Nalin Chandra Banerjee, Advocate (with Mrs. Jyotirmoyee Nag, Advocate) appearing on behalf of the two other accused-appellants Motia alias Motilal; Shaw and Jagannath Prosad adopted the line of arguments put forward by Mr. Dutt in support of the appeal. He further submitted that there was no legal enquiry in accordance with the procedure laid down under Chapter XVIII of the Code of Criminal Procedure inasmuch as the two accused-appellants were straightway committed to the court of sessions on 19.4.69, after production in Court and that the joint trial in the sessions court of the three accused-appellants based on two different orders of commitment, is also bad and improper. Mr. Sambhunath Banerjee, D.L.R. with Mr. Sourendra Prosad Talukdar appearing on behalf of the State joined issue. The learned Deputy Legal Remembrancer contended in the first instance that the irregularity complained of during the enquiry under Chapter XVIII caused no prejudice to the accused persons and in any event a full fledged trial having taken place in the court of sessions and no objection having been taken by the accused persons in course thereof, the same is belated and not maintainable in law. As to the objection taken on account of the joint trial, the learned D.L.R. submitted that section 239(1) Criminal Procedure Code is a complete answer thereto. Mr. S. Banerjee further urged that the objection based on section 7 of the Explosive Substances Act, 1908 is more technical than real inasmuch as the enquiry did not proceed under the said section and there was even no charge thereunder framed by the committing court or in the court of session. As to the charges, Mr. S. Banerjee submitted that there is no illegality on that count and the irregularity, if any, has been cured u/s 537 of the Code of Criminal Procedure. On merits, the learned Deputy Legal Remembrancer submitted that the evidence is clear and clinching and does not leave any loop-hole for retreat for the accused-appellants.

As regards the procedural defects, urged on behalf of the defence, there is no force behind the first branch of Mr. Dutt''s contention relating to the purported non-conformance to section 7 of the Act No. 6 of 1908 rendering a considerable body of evidence let in, inadmissible and vitiating the ultimate trial. Section 7 of the Explosive Substances Act, 1908 undoubtedly provides that "no court shall proceed to the trial of any person for an offence against this Act except with the consent of the Central Government". A reference to the records of the present case would however make it abundantly clear that there was even no charge-sheet u/s 5 of the Explosive Substances Act, 1908; no charge framed in the committing court under the said section; and also no such charge in course of the trial before the Court of Session. Mr. Dutt has contended that no charge has been framed in order to avoid the bar to the trial of such an offence under section. 7 of the Explosive Substances Act, 1908 and the same is but a colourable, pretence. He depended on the case of (1) Basir-Ul-Haq and anr., appellants v. The State of West Bengal on the complaint of Dhirendranath Bera, respondent reported in AIR 1953 Supreme Court page 293 wherein Mr. Justice Mahajan (as His Lordship then was) delivering the judgment of the court observed at page 296 that "though in our judgment, s. 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it is also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages". Apart from the nun-applicability to the facts of the present case, it is also pertinent to refer to a later decision of the Supreme Court in the case of (2) Chandrika Sao and ors. v. The State of Bihar, respondent reported in AIR 1967 SC 170 wherein Mr. Justice Mudholkar delivering the judgment of the court observed at page 173 that "in choosing to prosecute the appellant for a graver offence under the general law, the prosecution cannot be regarded as having acted colourably". In any event the provisions of section 7 of the Explosive Substances Act, 1908 refer to a trial and such a trial in the present case having taken place in the court of session where there was no such charge as alleged or at all, the resultant trial has not been vitiated in any way. As to the reception of a considerable body of evidence on that count we do not find that the same is also sustainable. The contention of Mr. Dutt therefore that the prosecution had proceeded under the general law to avoid the restriction laid down u/s 7 of the Explosive Substances Act, 1908 to the trial of such an offence, is not sustainable in law or on merits. It appears however that there has been a nonconformance to section 207A(4) to (10) of the Code of Criminal Procedure by the learned Enquiring Magistrate in passing both the orders of commitment. The offence involved are grave ones and all the witnesses to the actual commission of the offence have not been produced by the prosecution. No explanation has also been given for the same. This non-conformance to sub-section (4) has set in a cycle of irregularity. The liberty given under sub-section (4) to examine "the witness" has been denied resulting in a non-conformance to the provisions of sub-section (6) viz., "the evidence referred to in sub-section (4) having been taken" inasmuch as the said evidence could not be taken fully. The language of sub-section (7) again is "upon such evidence being taken". But in view of the non-conformance to sub-section (4), all such evidence could not be taken resulting thereby in an irregularity. Sub-section (8) to section 207A provides that as soon as "such charge has been framed", it shall be read and explained to the accused. This is dependant on the previous sections. The enquiring magistrate further erred in not conforming to sub-section (9) by calling upon the accused "at once to give in orally or in writing a list of persons, if any, who may wish to be summoned to give evidence on his trial". Sub-section (10) again comes into operation when the conditions laid down in sub-section (9) have been fulfilled and lead on to a valid order of commitment. There is accordingly an apparent non-conformance to the provisions of Chapter XVIII of the Code of Criminal Procedure in a committal proceeding. Those defects could have been the subject-matter of an order for quashing, if prayed for at the proper stage but no such prayer or even objection was taken after the order of commitment and during the whole gamut of the sessions trial and as such the contentions raised now in this behalf are belated, unwarranted and untenable.

As to the other objection relating to the validity of the sessions trial, because of a non-conformance to section 193 of the Code of Criminal Procedure, the provisions of the said section enjoin that "no court of Session shall take cognizance of any offence as a court of original jurisdiction unless the accused has been committed to it by a magistrate duly empowered in that behalf". Mr. Dutt contended and the said argument was adopted by Mr. Banerjee that there having been a non-conformance to the mandatory provisions of Chapter XVIII of the Code of Criminal Procedure, there was not a proper committal and a consequent defect in cognizance by the court of session. The words used in section 193 are significant enough viz., "duly empowered in that behalf". It cannot be held in this case that the learned enquiring magistrate was not "duly empowered". It is only in course of the enquiry under Chapter XVIII which the said enquiring magistrate was "duly empowered" to hold that he made some non-conformance to the mandatory provisions of section 207A(4) to (10) resulting in irregularity. Therefore the first essential ingredient of section 193 is wanting. The objection at best relates to the absence of a proper cognizance u/s 193 of the Code of Criminal Procedure. It cannot however be overlooked that a full fledged sessions trial took place and no objection at all was taken on account of a purported non-conformance to section 193 of the Code of Criminal Procedure. In view of the nature of the objection and in view of the stage when it is taken, we hold that the purported non-conformance to section 193 of the Code of Criminal Procedure has not resulted in a mistrial and in any event the same cannot be taken into consideration now for setting aside the order of conviction and sentence ultimately passed in the trial, if the same be not found otherwise unsustainable in law or on merits

The other branch of the objection to the maintainability of the sessions trial as taken by Mr. Nalin Chandra Banerjee appearing on behalf of the accused-appellants Nos. 1 and 2 is not any the stronger. The steps of Mr. Banerjee''s reasoning in this behalf are that there have been two different orders of commitment by the learned enquiring magistrate viz., one on the 1st March, 1969 whereby the accused-appellant No. 3, Ram Prosad Shaw, was sent up for trial and the other one on the 19th April, 1969 whereby the two other accused-appellants, who are Mr. Banerjee''s clients, were committed; that these two different cases of commitment based on two different orders were amalgamated in the court of session in one trial; and that it has accordingly resulted in a mistrial, vitiating the ultimate order of conviction and sentence. There is no force however behind the said submission. It is one incident wherein the three accused persons were placed on an enquiry under Chapter XVIII of the Criminal Procedure Code. The two other accused who could not be apprehended earlier were not sent up for trial in the court of session by the first order of commitment and when they could be apprehended later on and placed before the learned enquiring magistrate, they were also sent up by a subsequent order passed by the self-same learned magistrate. These two orders of commitment accordingly do not cover two different incidents relating to different accused persons. Apart from the merits, the position in law also does not lend assurance to the contentions of Mr. Banerjee. The learned D.L.R. appearing on behalf of the State, referred to the provisions of section 239(a) of the Code of Criminal Procedure. It enjoins that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. We hold on ultimate analysis that the three appellants are accused of the same offence, committed in the course of the same transaction, and there is no legal bar to their being charged and tried together. We accordingly hold that there is no illegality, as alleged or at all, in holding the joint trial by the learned Additional Sessions Judge, 3rd Court, Alipore, 24 Parganas and the objection taken in this behalf by the defence is neither maintainable in law nor on merits.

We will now proceed to consider the cases cited. Mr. Ajit Kumar Dutt referred to the unreported case of (3) Mujibar Rahaman alias Gora, appellant v. State, respondent (Criminal Appeal No. 327 of 1957 decided on 22.5.59) wherein N.K. Sen and D.N. Dasgupta JJ. sot aside the order of conviction and sentence and remanded the case to the court below for a trial in accordance with the provisions of Chapter XXIX of the Code of Criminal Procedure on the ground that there was no valid cognizance taken by the learned Magistrate and the proceeding adopted had also been bad in the facts of that case. The learned magistrate proceeded with the trial u/s 251A of Chapter 21 of the Code of Criminal Procedure. There was no valid cognizance of the case and a reliance was placed on the decision in Manik Chand Chowdhury and Others Vs. The State, as also an unreported decision holding that the Calcutta Police had no jurisdiction to make an investigation u/s 155 and 156 of the Code of Criminal Procedure and as such the procedure followed has been bad in law and improper. The learned advocate appearing on behalf of the State also supported the defence contention. The position however in the present case is different and the principles laid down in the aforesaid case will not apply. Mr. Dutt also relied on an unreported decision dated 28.9.61 by H.K. Bose, C.J. and Debabrata Mukherjee J. in (4) Durgadas Gupta v. The State Criminal Appeal No. 6 of 1958. Mr. Dutt contended that in the aforesaid case also there was a non-conformance to the provisions of section 207A Criminal Procedure Code resulting in a Sessions Trial which ended in the conviction of the accused. The High Court set aside the conviction and sentence on the ground of such non-conformance at the committal stage even after the sessions trial was over. The facts of the two cases are, however, clearly distinguishable and the High Court ultimately entered into evidence in some details to satisfy itself whether this was a proper case for directing a new proceeding for commitment in accordance with section 208 and the succeeding sections of the Code of Criminal Procedure. The decision by the Supreme Court in the case of (5) H.N. Rishbud and Inder Singh Vs. The State of Delhi, , wherein it has been laid down that the test of prejudice depends on the State when such objections are taken, also appears to have been not referred to and considered. In the instant case the objection is belated and has been taken much after the commitment and the trial, which ultimately ended in conviction and sentence. The principles laid down in the aforesaid case therefore will not help Mr. Dutt in his present submissions. Mr. Nalin Chandra Banerjee appearing on behalf of the accused-appellants Nos. 1 and 2, Motia and Jagannath, referred to the case of (6) Nagendra Nath Sarkar, accused-petitioner v. Emperor, opposite Party reported in 36 C.W.N. 926 and relied on the findings by Mallick and Remfry JJ. that "the failure of the magistrate to hold an enquiry under Chapter XVIII would be to the petitioner''s prejudice", and in that view set aside the order of commitment made by the learned magistrate and directed him to proceed according to law as enjoined under Chapter XVIII before passing any order of commitment in the case. The facts of the said case are also quite distinguishable. In that case the accused was convicted under sections 19 (f) and 20 of the Indian Arms Act and sentenced under the latter section, without any separate sentence being awarded under the former. On appeal the Sessions Judge set aside the order of conviction u/s 20 on the ground that the magistrate had no jurisdiction to try the charge under that section and the accused was acquitted with the observations that the magistrate might commit him to the court of session if he desired to proceed further in the matter and the accused was thereafter committed under both the charges Against that order of commitment, the Rule was issued by the High Court. It is abundantly clear therefore that the objection taken therein was on the ground of jurisdiction and further that the order of commitment had not culminated in a full-fledged sessions trial, in courser whereof no objection was taken. The principles laid down in the said case therefore cannot lend assurance to the present contentions of the learned defence advocates. Mr. Banerjee then referred to the case of (7) Chhadami Lal Jain and Others Vs. The State of Uttar Pradesh and Another, wherein Mr. Justice K.N. Wanchoo (as His Lordship then was) delivering the judgment of the court observed that the words "under the provisions hereinbefore contained" in section 347(1) of the Code of Criminal Procedure mean that if the magistrate decides at some stage of the trial to commit the accused, he has to follow the provisions contained in Chapter XVIII of the Code of Criminal Procedure. Mr. Banerjee relied on the observations of the Supreme Court made at page 46 that "if the accused is denied the opportunity of leading that evidence which he has right to do under S. 208, it seems to us that the denial of such a right is sufficient to cause prejudice to the accused and s. 537 would have no application to a case of this kind". The facts again are distinguishable and the objection to the procedure in the said case was taken in the first blush and no trial in the court of session had taken place. In the instant case, however, there was no prayer for quashing the order of commitment and a full-fledged sessions trial was held and it is only after the ultimate order was passed therein that the objection to the commitment orders, or the ground of absence of a proper cognizance u/s 193 of the Code by the court of session, has been taken. Mr. Nalin Chandra Banerjee thereafter referred to the case of (8) Noor Khan Vs. State of Rajasthan, wherein the Supreme Court held that the failure to supply copies of statements u/s 161 of the Code of Criminal Procedure to the accused did not vitiate the trial in the absence of any prejudice caused to the accused. The principles laid down in the above case therefore do not help the present contentions made on behalf of the defence advocates. The learned Deputy Legal Remembrancer appearing on behalf of the State referred also to a number of decisions. The earliest one viz., In the matter of the (9) impress v. Khamir reported in ILR 7 Cal 662 lays down some material principles. It was held by Morris and Tottenham JJ. that a sessions court has no power u/s 296 of the Code of Criminal Procedure to direct the commitment of a person discharged by Deputy Magistrate without giving the said person an opportunity of showing cause against the same but when a trial on such a commitment has been duly held, and no actual failure of justice has been caused by the error of the sessions Judge, section 283 of the Code of Criminal Procedure would be a bar to the reversal of his judgment. Mr. S. Banerjee relied on the observations of the Division Bench at page 664 that "these are, no doubt, serious irregularities and more especially the first, which is a direct transgression of the law and if they had been brought to the notice of this Court before the trial had taken place, the commitment would properly have been quashed; but as the trial has been held and we do not consider that any actual failure of justice has been caused by the errors, we are disposed to hold that s. 283 Cr.P.C. is a bar to the reversal of the judgment on these grounds". The said observations apply directly to the facts of the present case and we respectfully agree with the same. The trial having taken place and in course thereof there being no defect, rendering the same to be a mistrial, the present objection to the order of commitment, is belated, unwarranted and untenable. The objection u/s 193 of the Code of Criminal Procedure is also an ancillary objection, very much dependent on the determination of this point. Quite apart from the position that a final order passed in a properly held trial cannot be set aside merely on the ground of absence of cognizance, the position in fact also is different because in the present case there is no defect in territorial jurisdiction, which can be urged at any stage. Mr. S. Banerjee then referred to the case of (10) State Vs. Abdul Rahaman Mandal, . In that case there was a non-compliance with the provisions of sections 211 and 212 Criminal Procedure Code and it was held by Guha Roy and Debabrata. Mukherjee JJ. that such a non-compliance did not vitiate the trial. Their Lordships observed at page 795 that "the trial will be vitiated only if the commitment is totally invalid in law, for, in that case there will be no basis for the committal of the accused to the court of session or the High Court, as the case may be; but if the commitment is not totally invalid in law, the trial can hardly be held to be vitiated". Mr. S. Banerjee relied on particularly on the observations of the Division Bench made at page 796 that "the remedy for quashing a commitment is available to the aggrieved party only before a trial is over and, not after the trial is over". The learned Deputy Legal Remembrancer next referred to the case of (5) H.N. Rishbud and Inder Singh Vs. The State of Delhi, and relied on the observations of Their Lordships at pages 203 and 204 that "a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial........If, therefore, cognizance is in fact taken on a police report, vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice". We respectfully agree with the said observations and we hold that such illegalities, as complained of, do not affect the competence and the jurisdiction of the sessions court for trial. A reference was also made to the case of (11) Willie (William) Slaney Vs. The State of Madhya Pradesh, wherein it was observed by Mr. Justice Vivian Bose (on behalf of himself and S.R. Das, acting C.J.) at page 121 that "if he does and if he is tried by a competent court; if he is told and clearly understood the nature of the offence for which he is being tried; if the case against him has been fully and clearly explained to him and he is afforded full and fair opportunity of defending himself; then, provided there is ''substantial'' compliance with the outward forms of the law, mere mistake in procedure, some inconsequential errors and omissions in the trial are regarded as penal by the court and the trial is not vitiated unless the accused can be said to be substantially prejudiced". We have looked in vain to find such substantial prejudice and agreeing with the basic principle referred to above, we hold that the errors pinpointed are inconsequential errors and omissions and in any event the trial having been held otherwise in accordance with law, apart from the question of cognizance u/s 193 of the Code of Criminal Procedure as raised, the trial by the court of session has not been vitiated in any way. The learned D.L.R. further referred to the case of (12) Ananta Kumar Karan Vs. The State, wherein Mr. Justice P.B. Mukharji (as His Lordship then was) and Mr. Justice N.K. Sea observed at page 432 that "it is to be seen that in view of the provisions contained in section 532 of the Code of Criminal Procedure, the present order of commitment cannot now be challenged at this stage". It was ultimately held that there was no prejudice caused to the accused even if it be assumed that he was committed to trial by a magistrate following the procedure which he should not have followed. In this context a reference may also be made to the case of (13) Gurbachan Singh Vs. State of Punjab, wherein Their Lordships following the decisions in the case of (11) Willie (William) Slaney Vs. The State of Madhya Pradesh, and the case of (14) K.C. Mathew v. State of Travancore Cochin reported in AIR 1956 S.C. 341 ultimately observed on the question of prejudice that "Courts must act with a broad vision and look to the absence and not to technicalities, and their 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 chance to defend himself". We have given our anxious consideration to the objection on the ground of procedure and the consequent prejudice to the accused-appellants, and we ultimately find that they had a fair trial, knowing what they were tried for and what was sought to be established against them and a full and fair chance to defend themselves was not denied to them. We accordingly hold that the order of commitment to the court of session and the subsequent joint trial there, based on a cognizance u/s 193 on the said order of commitment, cannot be quashed at this stage after a full-fledged trial. The first contention raised by the defence, relating to procedure accordingly fails.

The second contention raised on behalf of the defence relates to the maintainability of the charge in general and in particular of the two sets of charges framed under sections 302/34 (3 counts) and 307/34 I.P.C. (5 counts). The charges framed are u/s 302/34 I.P.C. on three counts for committing murder, by knowingly or intentionally causing the death of Jiat @ Jit Singh, Harendra Singh and Dinanath Singh; u/s 307/34 I.P.C. against the self-same accused-appellants on five counts for attempting to commit murder of Sukdeo Singh, Gour Chandra Bose, Sudhir Kumar Ghose, Surya @ Suryati Chatterjee @ Nanu @ Sarju and Dharmnath Singh and u/s 148 I.P.C. framed against the three accused-appellants, as also two others, for committing the offence of rioting with deadly weapons as members of an unlawful assembly for the prosecution of the common object of such assembly to murder Harendra Singh, Dinanath Singh Jit Singh @ Jiat Singh, Sukdeo Singh, Gour Chandra Bose, Sudhir Kumar Ghosh, Surya @ Suryati Chatterjee @ Nanu @ Sarju and Dharmnath Singh. Besides the same, there is another charge u/s 27 of the Arms Act, 1959 against the co-accused Ram Prosad Shaw. Mr. Dutt has contended that in view of the multiplicity of the charges against different accused persons and relating to different victims, the same is bad and incomprehensive and has prejudiced the accused-appellants; that the three counts of charges u/s 302/34 I.P.C. and the five counts of charges u/s 307/34 I.P.C. for having common intention to commit murder of three persons and also to attempt to commit murder of five others, are also incompatible; that two different common intentions have been introduced along with two different preconcerts envisaged viz., (a) to murder three persons and (b) to attempt to commit murder of five others; that section 34 should not have been tagged on to the section 307 I.P.C. in any event as there cannot be any common intention to attempt to commit murder; and that in view of the specific charge u/s 148 I.P.C. this is clearly bad. Apart from incompatibility, as Mr. Dutt further submitted there is no evidence of any preconcert, or even of any previous knowledge on the part of the accused that the complainant''s party would come to the place of occurrence at the material time, ruling out thereby a charge u/s 34 I.P.C. by which alone the three accused-appellants could be roped in together. Mr. Dutt finally submitted that the concepts of common object and common intention are also irreconcilable in view of the charges under sections 34 and 148 I.P.C. vitiating ultimately the trial. The learned D.L.R. joined issue and submitted that apart from the fact that there to no incompatibility or incongruity relating to the charges framed, there is also evidence of preconcert, participation and also of motive and therefore the order of conviction and sentence cannot be set aside on the ground of maintainability of the charges. Several cases were referred to by the learned defence advocates in support of the defence contention. As to the maintainability of the charge of common intention u/s 34 I.P.C. a reference was made to the case of (15) Mahbub Shah, appellant and King Emperor, respondent reported in 72 IA 148. The learned defence advocates relied on the observations of Sir Madhavan Nair, delivering the judgment of the Judicial Committee at page 153 that "Section 34 lays down a principle of joint liability in the doing of a criminal act......common intention within the meaning of the section implies a prearranged 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". It was further observed at page 154 that "care must be taken not to confuse same or similar intention with common intention; the participation which divides ''their bounds'' if often very thin; nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of justice". In this context a reference was also made to the case of (16) Ghreekantiah Ramayya Munnipath and another, appellants v. State of Bombay, respondent reported in A.I.R 1955 SC 287. The learned defence advocates pinpointed the observations of Mr. Justice Vivian Bose delivering the judgment of the court, in paragraphs 23, 24 and 25 of the said judgment that "The emphasis in S. 34 is on the word ''done''........It is essential that they join in the actual ''doing'' of the act and not merely in planning its perpetration". In this context the observations by Lord Sumner in the case of (17) AIR 1925 1 (Privy Council) , that participation in action is the leading feature of section 34, were approved of. It was further held that "it is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character". Mr. Dutt appearing on behalf of the accused-appellant No. 3 emphasised that there is not only no evidence of any preconcert which is the sine qua non of a charge u/s 34 I.P.C. but that the same is ruled out by the materials on record, which do not establish any knowledge on the part of the accused that at the material time the complainant''s party would pass by the way where they were waiting and where: ultimately the incident took place. Mr. N.C. Banerjee also contended that apart from the said incongruity, common object and common intention were both charged against the accused persons in the same incident relating to the murder of three persons and also the attempt to murder five others. In the context of the maintainability of the charges u/s 307/34 I.P.C. a reference was made to the case of (18) Matiullah Sheikh Vs. The State of West Bengal, . The learned defence advocates contended that although it was ultimately held in that case that a charge u/s 307 read with section 34 is sustainable, the said finding was based on the facts of that particular case and depended on certain circumstances clearly referred to therein. Mr. Justice K.C. Dasgupta delivering the judgment of the court observed at page 134 that "It may, in many cases, be difficult to decide whether the criminal act in question has been done by several persons in furtherance of the common intention of all. But once it is decided that the act is so done by a number of persons in furtherance of the common intention of all, the legal position that results is that each person shall be held to have committed the entire criminal act". The learned advocates, appearing on behalf of the defence, contended that apart from the inherent difficulties of such a proposition, as pointed out by the Supreme Court, a charge u/s 307/34 I.P.C. would only be sustainable when it could be held that the act is so done by a number of persons in furtherance of the common intention of all. We have given our anxious consideration to the facts of the present case but the same does not warrant the charges u/s 307/34 I.P.C. (5 counts). The contentions of the learned Deputy Legal Remembrancer again that there is no incongruity, incomprehensiveness or incompatibility in the charges as framed, are neither borne out by the principles referred to above nor the materials on the record. On the contrary there is a considerable force behind the submissions made in this behalf by the defence and we ultimately hold that the heads of the charges, as framed under sections 302/34 I.P.C. (3 counts), 307/34 I.P.C. (5 counts), along with the charges under sections 148 I.P.C. and 27 of the Arms Act, 1959, against the accused persons, are not maintainable.

We have therefore to enter into the evidence and find out in the first instance as to whether the accused-appellants are entitled to acquittal. If not, two alternatives clearly arise viz., (a) whether on the evidence on record the three accused-appellants can be convicted on specific offences under sections 302 and 307 I.P.C. on the different counts while maintaining the conviction u/s 148 I.P.C.; or if not so (b) whether the conviction of the accused-appellants u/s 302/34 I.P.C. (3 counts) and 307/149 I.P.C. (5 counts) can be altered to under sections 302/149 I.P.C. (3 counts) and 307/149 I.P.C. (5 counts).

The evidence on the record does not however establish either of the two alternatives so far as the accused-appellant Ram Prosad Shaw is concerned. The evidence on the point is that of P.Ws. 5, 6, 9, 11, 14, 16, 18 and 22. Of them P.Ws. 6, 9, 11, 14, 16 and 18 are eye-witnesses. P.W. 5, Sew Kahar is a rickshaw-puller. Although he identified the accused Ram Prosad Shaw in court he failed to identify him at the first identification parade held on 20.1.68 by P.W. 22, B.N. Das, Magistrate, 2nd Class, Barrackpore. This is inspite of his evidence that he knew him from before for about 6 or 7 years. In his cross-examination although he stated that on the first day of the T.I. Parade, besides the accused Gouranga, the accused Ram Prosad Shaw was also placed in the T.I. Parade, he was contradicted materially by P.W. 22, Shri B.N. Das, Magistrate, 2nd J. Barrackpore who held the T.I. Parade. P.W. 22 stated that on 20.1.68 Sew Kahar only identified the suspect Gouranga and that the accused Gouranga stated that he was known to Sew Kahar from before as he was the neighbour of the witness Sudhir Kumar Ghosh. He further stated that the accused Ram Prosad Shaw also stated that he was known to the six witnesses from before as he carried on business at Kanchrapara. At the second test identification parade held on 25.5.68, P.W. 5 could only identify the suspect Kartick Chandra Das. The evidence of identification of Ram Prosad therefore is not helpful, as he failed to identify Ram Prosad on either of the two test identification parades although on his own admission he knew him for 6 or 7 years. This is not all. He admitted in his cross-examination that "since Wednesday and till my examination by the police, I did not tell the name of the accused Ram Prosad to anybody as none asked me about it. The incident in question was being discussed by everybody for quite a few days after the incident" although in his examination-in-chief he stated that "about 3 weeks after the incident I was examined by the I.O. at City Bazar. The I.O. did not come to me before that". P.W. 6, the next witness, is Suryati Chatterjee alias Nanu alias Sarjoo. In his examination-in-chief he did not mention Ramprosad to be the man standing at the crossing as throwing a bomb aiming at his jeep and later on though he identified the accused Ramprosad in court as the man who had hurled the bomb striking the bonnet of the jeep, he again changed his version stating that "a man like Ramprosad hurled the bomb" and finally stated that he "is not sure whether the accused Ramprosad hurled the bomb". In the test identification parade held on 25.5.68 before P.W. 22 the witness identified the accused Ramprosad. P.W. 22 however stated in his evidence that Ramprosad had stated that he was known to the witness Suryati Chatterjee from before as he used to take food from the hotel where the witness Suryati Chatterjee was an employee. In his cross-examination P.W. 22 further stated that "he did not think it necessary to sign the second sheet or to take the signature of the witness on that sheet, as the second sheet was a continuation of the first sheet". P.W. 9 Dharamnath Singh does not implicate Ramprosad and ascribe any part to him. He admitted in his cross-examination that "I did not tell before the police that Ramprosad hurled the bomb. In the T.I. Parade I could not identify the accused Ramprosad". P.W. 11, Sudhir Kumar Ghosh, a resident of Chandmari Road at Kanchrapara, stated that he knew the accused including Ramprosad since 4 or 5 years before the incident. In his examination-in-chief he stated that "it seemed to me that the bomb was thrown by Ramprosad" who was identified by him on the dock. In the T.I. Parade held on 20-1-68 before P.W. 22, the witness identified Ramprosad as the man who threw the bomb on the jeep. P.W. 22 stated in his evidence that Ramprosad stated that he was known to the six witnesses from before as he earned on business at Kanchrapara. In his evidence P.W. 11, however, admitted that "after I identified Gouranga the T.I. Parade magistrate asked me to show if there was any one else in the line and thereafter I identified Ramprosad". When Ramprosad was already known, he should have been identified in the first blush and the manner of his identification has not been satisfactory and beyond reasonable doubt. The next witness is P.W. 14, Gour Chandra Bose a resident of Ichapur, P.S. Noapara. He stated that the bomb "was hurled by a fat black complexion man". This is contradicted by P.W. 18, Sukdeo Prasad Singh that "the man who threw the bomb was a bit healthy and a bit taller than average person". P.W. 14, who identified the accused Ramprosad on the dock, admitted that he never saw him before the date of occurrence. In his cross-examination he admitted that "since about a month before the occurrence, I had been residing in the house of my friend Nanu at Kanchrapara". The identification of the accused at the T.I. Parade held on 20.1.68 before P.W. 22 is wholly unsatisfactory and does not establish the identity beyond reasonable doubt. Apart from the statements made by the accused before the magistrate that he is known to the six witnesses of identification from before as he carried on business at Kanchrapara, it cannot also be over-looked that the accused Ramprosad was produced on three different occasions in the court below before the test identification parade was held and as such the test identification by P.W. 14 on 20.1.68 is not helpful. P.W. 16 Nihar Kumar Sarkar @ Balai, the next witness on the point is a resident of Nakarimandal Road, Kanchrapara. On his own statement he could not have seen the occurrence because of the delay he made in coming out. He stated that he could recognise Ramprosad and he identified him on the dock. He also found Ramprosad driving away the rickshaw-wala and throwing out a man from the jeep. He however, admitted that although the police arrived within 5 or 7 minutes at the spot, he "did not go and report the incident to the police out of the fear for the miscreants". He did not also tell anything to the other immates of the house out of fear. He further admitted that he attended the T.I. Parade at the D,m Dum Central Jail where he failed to identify any one of the accused including Ramprosad who was placed for identification. He further admitted in cross-examination that he had attended the T.I. Parade six or seven months after the occurrence and that he attended it on being asked by Ajit Babu. P.W. 18 is Sukdeo Prasad Singh. The description he gave of the man throwing the bomb is one who did wear white trousers and a bit healthy and a bit tall than average person. This description does not fit in with that of the accused Ramprosad. Moreover, in view of his admission in his cross-examination that he used to know the accused Ramprosad from before the occurrence for about 10 years, he could have clearly mentioned the name of Ramprosad as having thrown the bomb instead of referring to an unknown man in white trousers and of a particular description. The last relevant witness is P.W. 22, the magistrate before whom the test identification parades were held and his statement in cross-examination on behalf of the accused Ramprosad and Kartick has already been referred to viz., that "I did not think it necessary to sign the second sheet or to take the signature of the witness on that sheet, as the second sheet was a continuation of the first-sheet. The second sheet is the concluding sheet". His statements that the I.P. produced the list of witnesses as well as the witness 10 or 15 years before the T.I. Parade so far as he recollected or that he did not remember whether the I.D. met him before he left for the jail on 20.1.68, are not borne out by P.W. 53, S.I. Ajit Kumar Banerjee, who was the investigating officer. He stated in his evidence that "on 19.1.68 I filed a petition before Shri B.N. Das, Magistrate, Barrackpore stating which particular witnesses should be sent for identifying which particular accused. I prayed that in the T.I. Parade of the accused Ramprosad to be held on 20.1.68, Gour Bose, Suryati Chatterjee alias Nanu and Sukdeo Singh should be the identifying witnesses". He further stated that on 20.1.68, he made a further prayer for holding the T.I. Parade of the suspects Ramprosad and Gouranga Roy. In the F.I.R. (Ext. 20) lodged by Sukdeo (P.W. 18), the name of Ramprosad if not mentioned although Sukdeo knew him for over 10 years. In his evidence also P.W. 18 did not implicate him. There is also no reference to Ramprosad in Ext. 1211. The learned Judge relied on the evidence of P.Ws. 5, 11 and 14 and partly on P.Ws. 18 and 22 for holding Ramprosad guilty. On an analysis of the evidence however, we are not satisfied that the same establishes any offence beyond the shade or shadow of a doubt, against any accused Ramprosad. The evidence of test identification again as noted above is quite unsatisfactory and cannot form the basis of a legal conviction. We accordingly hold that any offence has not been established, cither specifically or otherwise, against the accused-appellant No. 3, Ramprosad Shaw, and he is therefore entitled to acquittal.

The evidence on the record, however, does not entitle the other two accused-appellants, Motia alias Motilal Shaw and Jagannath Prosad to acquittal. It must be held on the evidence that it does not establish against them the first alternative referred to above for specific offences under sections 302 and 307 I.P.C. on any one of the different counts. The relevant evidence on the point viz., that of P.Ws. 5, 6, 9, 11, 14, 16 and 18 together with the medical evidence and the expert''s evidence of P.Ws. 13, 15 and 25 bear testimony to the same. The evidence on the first count u/s 304/34 I.P.C. relating to the victim Jit Singh is as follows : P.W. 6 refers to firing by Bibha; P.W. refers to firing by Deomoni and Motia; P.W. 11 refers to firing by Deomoni and Bibha; P.W. 14 refers to Motia only as having fired; and P.W. 18 refers to Deomoni as having fired. As to the second count relating to the victim Harendra Singh, the evidence is as follows; P.W. 6 refers to firing by Motia; P.W. 9 refers to both Motia and Deomoni as having fired; P.W. 11 stated that Motia fired; P.W. 14 stated that Motia and another fired; and P.W. 18 deposed that Motia fired shots. As to the third count relating to the victim Dinanath Singh the evidence is as follows : P.W. 6 refers to shots by Motia; P.W. refers to firing by Deomoni and Motia; P.W. 11, stated that at first Motia fired and then Deomoni fired; and P.Ws. 14 and 18 stated that Motia fired. With regard to the charges under sections 307/34 I.P.C., so far as the first count relating to Sukdeo Singh is concerned, the evidence is as follows: P.W. 6 stated that Motia and Bibha fired; P.W. 11 stated that Motia fired, and P.Ws. 14 and 18 stated that Motia fired. As to the second count relating to Gour Chandra Bose the evidence is as follows : P.W. 6 stated that the occupants of the rear seats were shot at by Motia and Bibha; P.W. 9 stated that the other three occupants of the rear seats of the jeep were also fired at but he could not exactly say by whom; P.W. 11 stated that all the four persons armed with revolvers came to the rear side of the jeep and started firing at them; P.W. 14 stated that Motia and some other persons started firing shots from the revolvers at him and two other occupants of the rear seats besides Nanu; and P.W. 18 stated that the four miscreants armed with revolvers went to the rear side of the jeep and fired shots at those who were occupying the rear seats. As to the third count relating to Sudhir Kumar Ghose, the evidence is as follows : P.W. 6 stated that the occupants of the rear seats were shot at by Motia and Bibha; P.W. 9 stated that the accused Deomoni and Motia also fired shots at the persons sitting by the side of Harendra Singh in the jeep while the other three occupants of the rear seats of the jeep were also fired at but by whom he could not say; P.W. 11 stated that after the firing at Jit Singh by the accused Motia and Bibha all the four accused persons armed with revolvers came to the rear side of the jeep and started firing at the witness and others; P.W. 14 deposed that Motia and some other persons started firing shits at the witness and the two other occupants of the rear seats; and P.W. 18 stated that after Motia fired a shot, all the four miscreants went to the rear side of the jeep and fired shots at those who were occupying the rear seats. As to the fourth count relating to Suryati alias Nanu the evidence of P.W. 6 is that shots were fired by Motia and Bibha; P.W. 9 stated that the other three occupants of the rear seats of the jeep were also fired at but he could not exactly say by whom; P.W. 11 also stated that all the four persons armed with revolvers came to the rear side of the jeep starting firing at the witness and two others; P.W. 14 referred to firing by Motia; and P.W. 18 stated that after Motia''s firing all the four miscreants armed with revolvers went to the rear side of the jeep and fired shots at the occupants of the rear seats. As to the fifth count relating to Dharam Nath Singh, P.W. 6 stated that the occupants of the rear seats were shot at by Motia and Bibha; P.W. 9 referred to firing by Motia; P.W. 11 referred to all the four persons armed with revolvers coming to the rear side of the jeep and starting firing; P.W. 14 referred to firing by Motia and others while P.W. 18 referred to all the four miscreants firing at the occupants of the rear seats. This evidence is to be considered along with the evidence of P.Ws. 13, 15 and 25. P.W. 13, Dr. N.L. Chatterjee Assistant Medical Officer, attached to the Kanchrapara Railway Hospital, stated that on examining D.N. Singh he found two gun-shot injuries viz., injuries Nos. 2 and 3; on examining the patient Sarju Chatterjee he found gun-shot injuries viz., injuries Nos. 1, 2 and 3; on examining; Sukdeo he found one gun-shot injury viz., injury No. 2; on examining Gour Chandra Bose he found six gun-shot injuries; and on examining the patient Sudhir Kumar Ghose he found 3 gun-shot injuries. P.W. 15 Dr. Basak who held the post-mortem examination stated that he found four gun-shot injuries on the dead body of Harendra Singh and that death in his opinion was the result of the injuries; on examining the dead body of Dinanath Singh he found one gun-shot injury and death in his opinion was due to shock and haemorrhage as a result of the injuries. He further admitted in cross-examination that the injury found on the person of Dinanath seems to have been caused from behind and to some extent from his left side. This position therefore is not explained by the evidence on the record. On examining the dead body of Jit Singh he found two gun-shot injuries and in his opinion death was due to the cumulative effect thereof. P.W. 25 Dr. R.N. Mukherjee is an arms expert-cum-scientific officer. He found that the six chambered Webley patent revolver was of .38" calibre and in the packet B he found one ringless live cartridge of .45" calibre. In packet C he found two fired bullets of .38" calibre. In packet D he found one fired bullet of .38" calibre and in packet E he also found one fired bullet of .33" calibre. The phial labelled by him as F contained one fired bullet of .45" calibre. In his cross-examination he stated that revolvers of .45" or .38" calibre are normally six-chambered and in some cases they are five chambered. In answer to the court he stated that a pistol magazine may contain 6, 7 or 8 cartridges according to different types. He further stated that he did not examine the jeep car in connection with this case. The said evidence therefore rules out any specific offence under sections 302 and 307 I.P.C. We accordingly hold that the evidence on the record does not make out any specific offences under sections 302 I.P.C. (3 counts) and 307 I.P.C. (5 counts) against the accused-appellants Nos. 1 and 2, Motia and Jagannath Prosad.

We will now proceed to consider the other alternative as to whether any conviction of these two accused-appellants can be sustained by altering the same to one u/s 302/149 I.P.C. (3 counts) and 307/149 I.P.C. (5 counts). It is pertinent therefore to consider in this context the relevant evidence of P.Ws. 5, 6, 7, 9, 11, 14, 16 and 18. The evidence of P.W. 5, inter alia is that when he came to the junction of Nakari Mondal Road and Nalini Bose Road he saw Motia, Deomoni, Jagannath, Bibha, Ramprosad Shaw, Lal Chand Shaw and 3 or 4 others standing near a pucca water tank. He again stated that the aforesaid persons were standing in a group and not in a line. His further statement is that the accused persons were found standing on the eastern side of the tank. P.W. 6, Suryati Chatterjee stated that when he reached near the crossing of Nalini Bose Road and Nakari Mondal Road he found about 7 or 8 persons standing at the junction of the two roads and that suddenly one of the persons standing at the crossing threw a bomb aiming at their jeep. His evidence further is that at that time gun shots started coming from all sides. The witness further stated that on seeing Harendra Singh the accused Motia told that "Shikar mil gaya. Ab Jugalka Badla lega". P.W. 7, Muneswar Pashwan stated that he saw Motia, Jagannath, Bibha, Deomoni, Ramprosad, Lal Chand and 3 or 4 other persons standing there, when he came to the crossing of Nalini Bose Road and Nakari Mondal Road. This he also stated before the magistrate. P.W. 9, Dharam Nath Singh stated that before he and his companions reached the crossing of the two roads, 7 or 8 persons were seen at the crossing in the light of the headlamps of the jeep as well as the street lights. He recognized Motia, Bibha, Jagannath and Deomoni. He further stated that as soon as the jeep fell down in the drain 7 or 8 persons who were found standing there surrounded the jeep and started shooting at them. The accused Motia and Jagannath were amongst them. He proceeded to state that Deomoni and Motia first fired shots at Dinanath and thereafter Motia and Deomoni fired shots at Harendra. Motia thereafter fired three shots at the witness from his pistol and the accused Deomoni and Motia also fired shots at the persons sitting by the side of Harendra Singh in the jeep. 3 other occupants on the rear seats were also fired at but the witness could not exactly say who did it. He further did not see which particular person hurled the bomb at the jeep. The miscreants escaped after firing. P.W. 11, Sudhir Kumar Ghosh stated that when he and his party reached near the crossing of Nalini Bose Road and Nakari Mondal Road they found 7 or 8 persons standing at the crossing. He recognized amongst them Motia, Bibha, Jagannath, Deomoni, Lal Chand and Ramprosad all of whom he knew from 4 or 5 years before. According to him shots were fired by Motia, Deomoni, Bibha and subsequently all the four persons armed with revolvers came to the rear side of the jeep and started firing at the witness and others. The next witness P.W. 14, Gour Chandra Bose, also stated that when he and his party were about 20 or 25 yards away from the crossing of Nalini Bose Road and Nakari Mondal Road they saw about 8 or 10 persons standing at the crossing of the two roads. He referred to firings by Motia and some other persons at himself and the two other occupants on the rear seats besides Nanu. He also recognized amongst the miscreants, Kartick. P.W. 16, Nihar Kumar Sarkar stated that he noticed about 8 or 10 persons surrounding the jeep and out of them he could recognize Motia, Bibha, Deomoni, Jagannath, Ramprosad and Gouranga. He further stated that he found Motia and Ramprosad driving out a man from inside the jeep and firing at him. They also dragged out another man from inside the jeep and before he was so dragged, Motia fired at him. His evidence further is that after driving away the rickshaw-walla the accused Motia, Ramprosad and some others who were also armed with revolvers went to the rear side of the jeep and from there fired some shots inside the jeep. P.W. 18, the last witness in this group is Sukdeo Prosad Singh. He stated that when the jeep proceeded towards the Nakari Mondal Road along Nalini Bose Road, in the headlights of the jeep he and his party saw 5 or 6 persons standing at the crossing and out of them he recognized Motia, Jagannath, Bibha and Deomoni whom he used to know from before. He further stated that all the miscreants armed with revolvers went to the rear side of the jeep and fired shots at those who were occupying the rear seats, and that he could not recognize them as they did not belong to Kanchrapara. It is abundantly clear therefore from an appraisal of the evidence on the record as mentioned above, that offences under sections 302/149 I.P.C. (3 counts) and 307/149 I.P.C. (5 counts) have been made out. The point that now remains for consideration is whether the conviction can at this stage be altered to one under sections 302/149 I.P.C. (3 counts) and 307/149 I.P.C. (5 counts). A protracted argument took place as to whether at this stags the conviction can be so altered and several cases were cited. In order to determine the point at issue it cannot be over-looked that the facts of a case may be such that the elements of both sections 34 and 149 I.P.C. may exist. The common object charged may be identical with the common intention and the evidence to prove both may be the same. A reference in this context may be made to the case of (19) Bharwad Mepa Dana and anr. appellants v. The State of Bombay, respondent reported in AIR 1960 Supreme Court page 289. It was held therein that in the absence of prejudice, no complaint can be made of any defect in the charge. Ultimately the conviction of the accused both u/s 302/34 and u/s 302/149 was upheld. A reference may also be made to the case of (20) Jagir Singh Vs. State of Punjab, wherein the Supreme Court relied on the earlier decision reported in AIR 1950 SC 289. There are some cases again where there was an alteration of the charge by the High Court from section 149 to section 34 I.P.C. A reference may be made to the case of (21) Lachman Singh and Others Vs. The State, . It was held by Mr. Justice Fazl Ali, delivering the judgment of the court, that where the facts of a case are such that the accused could have been charged alternatively, whether u/s 302 read with section 149 or u/s 302 read with section 34, the conviction of the accused u/s 302 read with section 149 can be altered by the High Court in appeal to one u/s 302 read with section 34. A reference may also be made to the case of (22) Khacheru Singh and Others Vs. State of Uttar Pradesh, wherein 11 accused were charged under sections 148, 323, and 326 read with section 149 I.P.C. The High Court held in revision that as a result of the Session Judge''s judgment, the three accused who were convicted, could not be so convicted under sections 148 or section 323 and section 326 read with section 149 as the ingredients to establish the existence of an unlawful assembly were absent but could be convicted under sections 323 and 326 read with section 34 I.P.C. It was ultimately held by the Supreme Court that the provisions of section 34 were applicable and therefore the accused could be convicted under sections 323 and 326 read with section 34 I.P.C. He relied on amongst others, the earlier decision reported in Lachman Singh and Others Vs. The State, . Charges under sections 302/34 and 307/34 are not incompatible and incongruous and the Supreme Court altered a conviction under sections 302/149 and 307/149 to one under sections 302/34 and 307/34. A reference may be made to the case of (23) Kartar Singh, appellant v. State of Punjab, respondent reported in AI.R. 1961 SC 1787. It was held by Mr. Justice Raghubar Dayal, delivering the judgment of the court, that the conviction under sections 302 and 307 read with section 149 I.P.C. can be converted into one under sections 302 and 307 read with section 34 I.P.C. A reference may also be made to the case of (24) Karnail Singh and another, appellants v. State of Punjab reported in AIR 1954 SC 204. It was held therein that though there is substantial difference between sections 34 and 149 I.P.C., the sections also to some extent overlap and it is a question to be determined on the facts of each case whether the charge u/s 149 overlaps the ground covered by section 34. If the facts to be proved and the evidence to be adduced with reference to the charge u/s 149 I.P.C. establish the same if the charges were u/s 34 I.P.C. then failure to charge the accused u/s 34 could not result in any prejudice and in such cases the substitution of section 34 for section 149 must be held to be a formal matter. It was ultimately held that the conviction of the accused u/s 302 read with section 34 when they were charged only u/s 302 read with section 149, was not illegal. The learned Deputy Legal Remembrancer referred to a decision of the Supreme Court wherein the Supreme Court upheld the High Court''s order altering the conviction of the accused u/s 302 read with section 34 I.P.C. to one u/s 326 read with section 149 I.P.C. The reference is to the case of (25) Tilkeshwar Singh and Others Vs. The State of Bihar, . It was contended in that case that the charge on which the appellants were tried was one u/s 302 read with section 34 I.P.C. and the Judges of the High Court erred in convicting them ultimately u/s 326 read with section 149. It was submitted that there was no power in the Court to substitute section 149 for section 34 I.P.C. Mr. Justice Venkatarama Ayyar delivering the judgment of the court observed at page 241 that "the question has since been considered by this Court in Karnail Singh v. State of Punjab, AIR 1954 S.C. 204 (F); and Willie (William) Slaney Vs. The State of Madhya Pradesh, . It is conceded by Mr. Umrigar that in view of these decisions, the question is no longer open. It must be answered adversely to the appellants". The learned Advocates appearing on behalf of the defence contended that it is really a finding on concession. In view of the clear terms of the order passed by the Supreme Court we are unable to agree with the same and we hold that this is a clear finding made by the Supreme Court on the point at issue. Having gone through the evidence on the record in this case, in the light of the observations made in the above-mentioned decisions with which we respectfully agree, we have no doubt that charges under sections 302/149 I.P.C. (3 counts) and 307/149 I.P.C. (5 counts) have been established against the two accused-appellants Motia alias Motilal Shaw and Jagannath Prosad beyond reasonable doubt and their conviction can be altered to one under the said section. It is to be noted that there is in fact a charge u/s 148 I.P.C. which the accused-appellant had to face and there is no question of any prejudice. We hold accordingly that the conviction of the two accused-appellants can be sustained by altering the same to one under sections 302/149 I.P.C. (3 counts) and 307/149 I.P.C. (5 counts). In the result, the order of conviction and sentence of the accused-appellant No. 3, Ramprosad Shaw is set aside, and he is acquitted of the charges, and we direct that he is to be set at liberty forthwith; but we uphold the conviction of the accused-appellants Nos. 1 and 2, Motia alias Motilal Shaw and Jagannath Prosad, u/s 148 I.P.C. and alter that under sections 302/34 I.P.C. (3 counts) and 307/34 I.P.C. (5 counts) to one under sections 302/149 I.P.C. (3 counts) and 307/149 I.P.C. (5 counts) and we sentence them to imprisonment for life on the first count u/s 302/149 I.P.C., passing no separate sentence on the other two counts thereof or under sections 307/149 I.P.C. (5 counts) and 148 I.P.C.

The reference u/s 374 of the Code of Criminal Procedure and the connected appeal are disposed of accordingly.

K.J. Sengupta, J.

I agree.