JUDGMENT : B.P. Das, J. - This revision application is directed against the order passed by the 2nd Addl. Sessions Judge, Cuttack, in Criminal Appeal No. 5 of 1994 (50 of 1993) remanding the case to the Asst. Sessions Judge, Jagatsinghpur, for retrial after framing a specific charge u/s 326 of the Indian Penal Code ('I.P.C.' in short) against the Petitioner. 2. The present Petitioner and 17 co-accused were tried on the charges under Sections 148, 307, 326,324 read with Section 149 of the I.P.C. for committing rioting being members of an unlawful assembly and being armed with deadly weapons like sword, Bhujali, Knife, Farsa, Bhalla, lath is, etc. and for voluntarily causing grievous hurt to the injured persons and for attempting to commit murder to them. 3. The case of the prosecution, in brief, is that on 27.3.1989 at about 8.30 P.M. the informant-Sang ram Samantray of village Jayasola orally reported to the Officer-in-charge of Jagatsinghpur Police Station that at about 5 P.M. of that day while he was moving on the village road near his house, he heard hullah from the house of Chittaranjan Samantray and thought that the Beherasahi people might be creating trouble on the kine?house affair and while he was going to his house out of fear, he found the accused persons marching towards his street by forming an unlawful assembly being armed with sword, Farsa, Bhala, Bhujali, lathis etc. Birabar Behera dealt a Farsa blow on his head; Bhabagrahi dealt a blow with a Bhala on his right hand and Madan gave a lathi blow on his leg. Madhusudan Pradhan, Baishnab Charan Swain, Maheswar Swain, Sudhakar Pradhan, Padma Charan Sahu, Sarat Chandra Sahu, Bata Krushna Sahu and Ors. of the village, who came to his rescue, were also assaulted. While the informant was lying with injuries, his mother Kanchanbal a Samantray, who had been to the house of Bimala Sethi to purchase rice-bran, came to the house with severe bleeding injuries and fell down in the house saying that accused Ajay Kumar Behera dealt a sword blow on her hands and saying 50, she became unconscious. On the basis of the aforesaid report, a case was registered and investigation followed, on completion of which charge?sheet was submitted against the present Petitioner and the 17 other co accused persons. The plea of the defence is one of complete denial. 4. On the basis of the aforesaid report, a case was registered and investigation followed, on completion of which charge?sheet was submitted against the present Petitioner and the 17 other co accused persons. The plea of the defence is one of complete denial. 4. In order to bring home the charge, the prosecution examined 18 witnesses. None was examined from the side of the defence. Several documents were exhibited. 5. The learned Asst. Sessions Judge scrutinising the evidence on record came to hold that the prosecution had failed to prove its case beyond reasonable doubt and accordingly acquitted the co-accused persons of the Petitioner of all charges. He also acquitted that Petitioner of the charges under Sections 148, 307 and 324 of the I.P.C. He, however, held that the prosecution had proved its case beyond reasonable doubt against the present Petitioner-Ajay Kumar Behera for the offence u/s 326, I.P.C., convicted him thereunder and sentenced him to undergo R.I. for four years and to pay a fine of Rs. 2,000/-, in default, to undergo R.I. for one year more. 6. Against the aforesaid order of the trial Court, the Petitioner preferred an appeal being Criminal Appeal No. 5/50 of 1994/1993 and the learned 2nd. Addl. Sessions Judge, Cuttack, after hearing, has held that the conviction as well as the sentence awarded against the Petitioner u/s 326, I.P.C. cannot be sustained inasmuch as no separate charge u/s 326, I.P.C. was framed against the Petitioner and the charges framed by the trial Court were shocking to the judicial conscience because the weapons were stated to be the common object of the unlawful assembly in the charge u/s 148, I.P. C. The lower appellate Court has further held that the victims were not named in any of the charges framed under Sections 148, 326, 307 and 324, I.P.C., nor had the aid of Section 149, I.P.C. been taken to rope in all the members of the unlawful assembly while framing the charges under Sections 326, 324, 307, I.P.C.; though Section 149, I.P.C. is an enabling provision, the trial Court framed an independent charge thereunder which, according to the lower appellate Court, makes no head and tail. While passing the impugned order, the lower appellate Court also took notice of Section 464 of the Code of Criminal Procedure ('Code of Criminal Procedure, in short) which provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. 7. On the basis of the aforesaid findings, the lower appellate Court, while allowing the appeal preferred by the present Petitioner by setting aside his conviction and sentence u/s 326, I.P.C., held that it was a fit case for re-trial u/s 464 (2) of the Code of Criminal Procedure and accordingly remanded the matter to the trial Court for re-trial after framing a specific charge u/s 326, I.P.C. against the Petitioner, keeping it open to the trial Court to frame charges on other counts, which it may deem necessary under law having regard to the allegations made by the prosecution in the charge-sheet u/s 173, Code of Criminal Procedure and other relevant documents. 8. This revision application is directed against the aforesaid appellate order directing re-trial of the case. 9. Shri D.P. Dhal, Learned Counsel appearing for the Petitioner, submits that 18 accused persons were put on trial before the learned Asst. Sessions Judge, out of whom 17 were acquitted and the present Petitioner was convicted u/s 326, I.P.C. and sentenced to undergo R.I. for four years and to pay a fine of Rs. 2000/- with a default sentence. The State did not prefer any appeal against the order acquitting the other co-accused persons but the present Petitioner-Ajay Kumar Behera preferred and appeal challenging the order of his conviction and sentence u/s 326, I.P.C.. Since the appellate Court allowed the appeal and set aside the order of conviction and sentence passed against the present Petitioner, it was not proper to remand the case to the trial Court for a fresh trial.. 10. Since the appellate Court allowed the appeal and set aside the order of conviction and sentence passed against the present Petitioner, it was not proper to remand the case to the trial Court for a fresh trial.. 10. On going through the records of the Courts below, I find that the trial Court framed the charges totally in a sloven manner for which the lower appellate Court deprecated the action of the trial Court in framing charges by observing that the charges framed by the leaned Asst. Sessions Judge are shocking to the judicial conscience inasmuch as the weapons have been stated to be the common object of the unlawful assembly in the charge u/s 148, I.P.C. The lower appellate Court also deprecated the action of the trial Court in not naming the victims in any of the charges framed under Sections 148, 326, 307 and 324, I.P.C. and in not taking the aid of Section 149, I.P.C. to rope in all the members of the unlawful assembly while framing the charges under Sections 326, 324 and 307, I.P.C. The aforesaid conduct transpires lack of fundamental and basic knowledge of Criminal Procedure on the part of the learned Asst. Sessions Judge. The lower appellate Court placing reliance. on a decision of the Apex Court in the case of the Kantilal Chandulal Mehta Vs. The State of Maharashtra and Another while allowing the appeal and setting aside the conviction as well as the sentence of the Petitioner, came to the conclusion that it is a fit case for re-trial and accordingly remanded the same for re-trial. 11. Shri D.P. Dhal, Learned Counsel for the Petitioner, submits that here is a case where apart from the alleged defects/discrepancies in the framing of charges, the trial Court recorded the finding that the prosecution witnesses had. not explained the injuries on the accused and there were number of discrepancies in the evidence of the prosecution witnesses in regard to the weapons held by particular accused and the manner of assault. Further, each witness had given a different version in regard to the assault. That apart, no independent witness had been examined in the case, and the witnesses examined were highly interested for the prosecution. The aforesaid findings have been recorded in para 8 of the judgment of the trial Court. Further, each witness had given a different version in regard to the assault. That apart, no independent witness had been examined in the case, and the witnesses examined were highly interested for the prosecution. The aforesaid findings have been recorded in para 8 of the judgment of the trial Court. Be that as it may, it is a fact that the lower appellate Court has already acquitted the Petitioner of the charge u/s 326, I.P.C. on the ground that the charge is defective and has set aside the conviction and sentence on that count. I am of the opinion that the lower appellate Court has rightly arrived at the aforesaid conclusion and the same needs no interference by this Court. 12. Now, the question arises whether the second part of the order of the learned lower appellate Court directing re-trial of the case is correct or not. At this moment, I cannot overlook the fact that the incident had occurred in the year 1989 and in the meantime 13 years have elapsed. If at this stage a fresh trial is conducted, it would not serve any purpose inasmuch as the witnesses may not be forthcoming, even the witnesses coming to the court may not be able to give correct account of the prosecution case, and the prosecution may get an opportunity to fill up its lacunae. 13. It is true that in Kantilal Chandulal Mehta's case (supra), which was relied upon by the lower appellate Court, the Apex Court observed that: If the Court of appeal or revision thinks that the omission to do so has occasioned failure of justice, by an omission to frame charge, it shall order a charge to be framed and directed for trial to be commenced from the point immediately after framing of charge. It is also well settled that recourse to Section 464, Code of Criminal Procedure is to be invoked sparingly and in a case where no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact occasioned thereby. (See The Stale of Orissa Vs. B. Khalli Patro, . (See The Stale of Orissa Vs. B. Khalli Patro, . However, in the case at hand, admittedly charge had not been framed u/s 326, I.P.C. for which the Petitioner was convicted. It is also seen that charges were framed in contravention of the provisions of law. In the absence of any specific charge, the entire trial, so far as the Petitioner is concerned, has been vitiated. This has occasioned due to the lack of the judicial mind of the learned Asst. Sessions Judge. But at the same time looking into the findings of the trial Court, I do not agree with the lower appellate Court that it is a fit case for remand. Accordingly, while affirming the order of acquittal of the Petitioner, I set aside the order of the appellate Court directing re-trial of the case. 14. In the result, the criminal revision is allowed. Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little. tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life. and keeping in mind the fact that there is a long time gap between the date of the murder and conviction now by us and particularly when in the intervening period there is an order of acquittal in favour of the Respondent, we do not think it is expedient to award the capital sentence upon the Respondent, therefore, we reduce the sentence to life imprisonment while upholding the conviction given by the Sessions Court. The appeal is allowed accordingly. If the Respondent is on bail, the same shall stand cancelled and he shall surrender forthwith to serve out his sentence in accordance with law. 15. Before we part with this case, we place on record our appreciation of the valuable assistance rendered by Shri P. v. Dinesh as amicus curiae. Final Result : Allowed