Judgment RAM NANDAN PRASAD and CHANDRA MOHAN PRASAD JJ. 1. These appeals have been filed against the Judgment and order dated 5.6.2000/ 7.6.2000, passed by 5th Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 193 of 1999 whereby the appellant in Cr. Appeal No. 251 of 2000 and appellants in Cr. Appeal No. 273 of 2000 have been convicted for the offence under Section 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life. Appellant, Umesh Mahto, in Cr. Appeal N. 273 of 2000 has further been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. The appellant in Cr. Appeal No. 354 of 2000 has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. 2. The prosecution "case as has been stated in the first information report is that one Dinesh Prasad gave his fardbeyan on 12.9.1998, at about 8.30 a.m. at the place of occurrence before the officer incharge of the police station that his father Chandeshwar Mahto at about 6 a.m. came out from the house and proceeded towards east through the lane to attend the call, of nature. He, his brother Bhushan Prasad, and his brother-in-law Brijnandan Prasad were going to see their field and were behind his father. When his father reached near the house of Badodi Chaudhary, Bindeshwar Mahto, Umesh Mahto,Mannu Mahto and Shrawan Mahto sons of Baso Mahto surrounded him. Shrawan Mahto and Mannu Mahto caught hold of his father Bindeshwar Mahto, fired on his head from a close range and Umesh Mahto also fired from pistol. His father fell down on the ground. Thereafter, all the four accused persons assaulted with the butt of the pistol and brick-bats on his head. In the meantime, Jagdish Mahto son of Teka Mahto and Shanti Devi daughter of Baso Mahto came. They also assaulted him. On alarm raised by them and on hearing sound of firing the people of the village came and the accused persons ran away. He along with others went near his father and found him dead The blood was oozing out of the injuries. They also assaulted him. On alarm raised by them and on hearing sound of firing the people of the village came and the accused persons ran away. He along with others went near his father and found him dead The blood was oozing out of the injuries. The motive of the occurrence was that the accused persons were trying to take forcible possession of the house for which there was litigation also. 3. On the aforesaid fardbeyan a formal first information report was drawn investigation was taken up and on completion of investigation chargesheet was submitted. On receipt of the chargesheet cognizance was taken and the case was committed to the Court of Sessions for trial The trial Court convicted the appellants as indicated above. 4. The defence of the appellants was that they were innocent and were falsely implicated in the case out of enmity. 5. The prosecution in support of its case examined nine witnesses. PW 1, PW2, PW 3, PW 4, and PW 8 claim to be eye witnesses to the occurrence. PW 5 is informant and he is an eye witness to the occurrence. PW 6 is witness to the seizure of blood stained earth. PW 7 is a doctor, who held post mortem examination over the dead body. PW 9 is the investigating officer. 6. The special feature of the case is that death of Chandeshwar Mahto is not in dispute. The appellants and the witnesses are of the same family which has been admitted by the PW 2 in his evidence. The appellants are sons and daughter of brother of the deceased, namely, Baso Mahto except one Jagdish Mahto, who is grand son of uncle of the deceased, namely, Mangal Mahto. The witnesses are sons and daughter of deceased except PW 8 who is son-in-law of deceased and PW 1 who is cousin son-in-law of the deceased. The motive of the occurrence has been alleged that the appellants were trying to take forcible possession of the house for which there was a litigation. The defence of the appellants was that they have been falsely implicated in the case out of enmity. The contention of the learned counsel for the appellants is that since the witnesses are relations of the deceased and inimical to the appellants, their evidence should be discarded. The defence of the appellants was that they have been falsely implicated in the case out of enmity. The contention of the learned counsel for the appellants is that since the witnesses are relations of the deceased and inimical to the appellants, their evidence should be discarded. In this regard it would not be out of place to mention that it is the well settled rule of law that the evidence of such witness should not be discarded outright rather it should be scrutinised with care and caution. Keeping in mind the aforesaid well settled rule of law, we proceed to examine the evidence of the witnesses. 7. PWs 1 to 5 and PW 8 are eye witnesses to the occurrence. PW 5 is informant. His evidence is that on 12.9.1998, his father came out from the house at about 6 a.m. and was gong towards east to attend the call of nature. He along with PWs 1 and 2 was also going to see his field and was behind his father. His father when reached near the house of Badodi Chaudhary, the appellants Bindeshwar Mahto, Mannu Mahto, Umesh Mahto and Shrawan Mahto surrounded his father. Mannu Mahto and Shrawan Mahto caught his father. Bindeshwar Mahto fired on the head of his father from a close range. Umesh Mahto also fired. His father fell down on the ground. Thereafter, all the four appellants assaulted his father on his head with the butt of their pistol and brick-bats. In the meantime, Shanti Devi and Jagdish Mahto came and they also assaulted him. The appellants thereafter ran away towards east. The appellants had sold their land which they had got in partition and they were trying to grab his land. His father earlier also filed a case against them in which they had been convicted. They appellants also used to threaten him. The police came and recorded his fardbeyan in presence of PW 8, who signed the fardbeyan as a witness. He also proved his signature over fardbeyan. In cross-examination the witness stated that Jhamman Mahto was his grand father who had nine Bighas of land. Jhamman had three sons On partition they got chree Bighas of land each. The partition took place before his birth. The witness gave details about his land. He also stated that the appellants used to loot the crops from his land situated in Dangra Khanda. Jhamman had three sons On partition they got chree Bighas of land each. The partition took place before his birth. The witness gave details about his land. He also stated that the appellants used to loot the crops from his land situated in Dangra Khanda. The appellant, Bindeshwar Mahto, had lodged a case. against his father for the offence under Section 307 in which he has been acquitted. He also admitted that he had filed protest petition against the police, Ext. A. The witness also gave details of the place of occurrence and stated that in the west of the house of Badodi Chaudhary there is one road which connects the Bihar-shariff-Ekangarsarai road. There is also a road in the south of the house of Badodi Chaudhary. The said road is also connected with the Biharshariff-Ekangarsarai road. He used to come out of the house from the eastern side. At the relevant time his father was at a distance of 20-25 steps from his house. He was behind his father. When he proceeded 8-10 steps in the lane his father was surrounded and assaulted. His father fell down after sustaining firearm injury. The appellants ran away towards east. He went near his father and found him dead. Blood had fallen on the ground at the place of occurrence. The road was 15, wide. His father fell down on the northern side of the road. He denied the suggestion that the appellants have been implicated out of enmity. The witness was cross-examined at length but nothing cogent was elicited to doubt his evidence. 8. PWs 1 and 2 were with PW 5. They corroborated the evidence of PW 5 in their evidence. They stated in their evidence that they were with PW 5 and were gong to see their field. Chandeshwar Mahto, the deceased, was going ahead to ease. When he reached near the house of Badodi Chaudhary, he was surrounded by the appellants, namely, Bindeshwar Mahto, Umesh Mahto, Mannu Mahto and Shrawan Mahto. Mannu Mahto and Shrawan Mahto caught hold of him and Bindeshwar Mahto fired on his head from a close range. Umesh also fired from his pistol. He fell down and, thereafter all the four accused assaulted him on his head with the butt of the pistol and brick-bats. In the meanwhile, Jagdish Mahto and Shanti Devi came there. They also assaulted him. He died at the spot. Umesh also fired from his pistol. He fell down and, thereafter all the four accused assaulted him on his head with the butt of the pistol and brick-bats. In the meanwhile, Jagdish Mahto and Shanti Devi came there. They also assaulted him. He died at the spot. The police came and recorded the statement of PW 5 and also prepared inquest report of the deceased. They also signed over the inquest report. On hearing alarm PW 8, PW 3 and PW 4 came at the spot. The witnesses were cross-examined at length on the material points but they stood test of cross- examination. Their evidence is consistent on the point of manner of occurrence the weapon used by the appellants/participation of the appellants in commission of crime. The witnesses were cross-examined at length but nothing cogent could be pointed out to doubt their evidence rather it appears that their evidence is consistent on all material points. 9. PW 3 and PW 4 were in the house. Both the witnesses are daughters of the deceased. PW 3 came one day prior to the occurrence at the house of her father. At the relevant time she was cleaning utensils. PW 4 at the relevant time was cleaning the house. Their evidence is that on hearing alarm raised by PW 2 and PW 5 they, came out from the house and saw that the appellants, Bindeshwar Mahto, Shrawan Mahto Mannu Mahto and Umesh Mahto were surrounding their father near the house of Badodi Chaudhary. Mannu Mahto and Shrawan Mahto caught hold of their father and Bindeshwar Mahto fired on the head of their father Chandeshwar Mahto from a close range. Umesh Mahto also fired from his pistol. Chandeshwar Mahto fell down on the ground, the appellants thereafter assaulted him with butt of pistol and brick bats on his head. They cannot say that the firing made by Umesh Mahto hit their father. Thereafter, appellants Jagdish Mahto and Shanti Devi came and assaulted their father with brick-bats-. Their father died at the spot. In cross-examination PW 3 stated that her sister was ill and she had come to see her. When she came out of her house she found his father surrounded by the accused persons. The people of the village closed their door out of fear. Her father fell down after sustaining fire-arm injury. Their father died at the spot. In cross-examination PW 3 stated that her sister was ill and she had come to see her. When she came out of her house she found his father surrounded by the accused persons. The people of the village closed their door out of fear. Her father fell down after sustaining fire-arm injury. She had stated before the police that she had come one day prior to the occurrence. PW 4, in cross-examination admitted relationship and also stated that she was at the village from before. Her sister, Kunti, was ill and she was being treated by Dr. Shiv Shankar at Biharshariff. She was cleaning the house. She has seen PWs 1,5,2 and 8 when she came out of the house. Her father fell down on sustaining fire-arm injury. The police arrived at the place of occurrence. Many people had assembled there. Her statement was recorded by the police. She had stated before the police that Mannu and Shrawan caught hold of her father and also that Umesh had also fired. The appellants also assaulted with the butt of the pistol and brick-bats on the head of her father. It is, thus, evident that both the witnesses were cross-examined at length and they stood the test of cross-examination. 10. PW 8 is son-in-law of the deceased. His evidence is that at the relevant time he was washing his mouth. On hearing alarm he, PW 3 and PW 4 came out from the house and saw that the appellants, Bindeshwar Mahto, Shrawan Mahto, Mannu Mahto and Umesh Mahto surrounded his father-in-law, Chandeshwar Mahto. Shrawan and Mannu caught hold of his father-in- law, Bindeshwar Mahto fired from pistol on his head from a close range. Umesh Mahto also fired. His father-in-law fell down and thereafter the aforesaid appellants assaulted his father-in-law with the butt of the pistol and brick-bats. Shanti Devi and Jagdish Mahto also came there and they also assaulted his father-in-law. After assault the appellants ran away towards east. They went there and found Chandeshwar Mahto dead. Blood was oozing out from the injury. The occurrence took place because of land dispute between them. The police came in his presence, who recorded the Jardbeyan of PW 5 and he singed over the fardbeyan as a witness. In cross-examination the witness stated that he came to his sasural i.e. P.O. village two days ago. Blood was oozing out from the injury. The occurrence took place because of land dispute between them. The police came in his presence, who recorded the Jardbeyan of PW 5 and he singed over the fardbeyan as a witness. In cross-examination the witness stated that he came to his sasural i.e. P.O. village two days ago. At the relevant time he was washing his mouth. His wife, PW 3, was cleaning utensils in the house. PW 4 was cleaning the house at the relevant time. He heard alarm raised by Dinesh, PW 5. When he came out from the house he saw Dinesh, PW 10 steps behind Chandeshwar Mahto. The road near the house of Badodi Choudhary is 10-12 wide. Chandeshwar Mahto fell down near the door of Badodi Chaudhary. He found 10-20 blood stained brick-bats at the place of occurrence. The blood had also fallen on the ground. The brick-bats were also shown to the police. He cannot say whether any paper was prepared with respect to brick-bats. PW 5 had also gone to the police Station. He was also taken to the police station. He denied the suggestion that since he was accused in docoity case he was taken to the police station. He denied the suggestion that no occurrence took place as he deposed. It is evident from the discussion that this witness also supported the prosecution case and his evidence is consistent to the evidence of other eye witnesses. He was cross-examined at length but nothing could be elicited to doubt his evidence. 11. PW 7 is a doctor, who held postmortem over the dead body on 12.9.1998, at about 1.30 p.m. He found rigor mortis present on the dead body. He found wound of entry on occipital region of the head. The edge of the wound was inverted, surrounding of the injury was black and hair was burnt. He also found wound of exit near the right eye. The edge of wound was everted. He also found 4 lacerated wounds 1/3"xl/3"xl/5" on the head of the deceased and the brain was damaged. The injury Nos. 1 and 2 were caused by fire-arm and those were cause of death. The rest of the injuries were caused by hard blunt substance. Time elapsed since death was 3 to 36 hours. He proved the postmortem, Ext. 4. The death may be instantly by sustaining such injury. The injury Nos. 1 and 2 were caused by fire-arm and those were cause of death. The rest of the injuries were caused by hard blunt substance. Time elapsed since death was 3 to 36 hours. He proved the postmortem, Ext. 4. The death may be instantly by sustaining such injury. In cross-examirtation the witness stated that in case of firing from a close range the inner part of the injury would burn. However, he has not mentioned that he found sign of burning in injury No. 1. He also admitted that he has not mentioned in postmortem report with respect to examination of kidney, spleen, intestine and lungs as examination of those organs was not necessary. The postmortem does not mention whether the deceased had attended call of nature or not. The evidence of the doctor also corroborates the oral evidence of eye witness with respect to the weapon used by the appellants in commission of crime and the manner of occurrence as he found firearm injury and also lacerated wound on the head of the deceased. 12. PW 9 is the investigating officer. His evidence is that on 12.9.1998 he was posted at Dahpar which is under the Noor Sarai police station. On hearing rumour that one person was killed he went to village Makanpur and found that the officer incharge of the police station, namely, Jai Prakash, present there. The officer incharge of the police station recorded the fardbeyan of PW 5 and handed over the investigation to him. He proved formal first information report, Ext. 5, the inquest report Ext. 6, Seizure list is Ext. 7. He recorded further statement of the informant, inspected the place of occurrence and stated that P.O. is near the house of Badodi Chaudhary at village Makanpur. He found the dead body near the house of Badodi Chaudhary in the lane. He found blood beneath the head of the deceased. The house of Rama Mahto is in southern side and the house of Bisheshwar Prasad is in northern side of the place of occurrence at a distance of 10-12 yards. In the western side there is the house of Indradeo Yadav and house of Badodi is in eastern side of the place of occurrence. The house of the appellants is at a distance of 10 yards in the east from the place of occurrence. In the western side there is the house of Indradeo Yadav and house of Badodi is in eastern side of the place of occurrence. The house of the appellants is at a distance of 10 yards in the east from the place of occurrence. He also recorded the statement of the witnesses. He tried to record statement of the people living near the place qf occurrence but out of fear of the appellants they refused "to give any statement. No body was ready to give evidence out of fear. In cross- examination the witness testified that he heard rumour about the occurrence. In the diary he did not mention the distance of the house of Badodi Chaudhary from the place of occurrence where the dead body of the deceased was, found. He did not mention the width of the lane in the diary. He denied the suggestion that he did not make efforts to record the statement of independent witnesses. He admitted that he did not try to know the antecedent of Ram Nandan or he made efforts to record the statement of doctor Shiv Shankar. He stated with respect to some inconsistency in the evidence of the witnesses such as PW 2 stated that he was going to see his field but he did not say that he was going towards east. He did not say that his father was going ahead. Similarly, PW 3 did not say that she had come one day prior to the occurrence to her fathers house, PW 4 did not say that at the relevant time she was cleaning the house. Similarly, PW 8 did not say that all the appellants Were surrounding rather he stated that Shrawan Mahto and Mannu Mahto caught hold of the deceased and Bindeshwar and Umesh Mahto had pistol in their hands. Therefore, it is evidence that he stated with respect to some inconsistencies which have no significance at all as the evidence of the witnesses is consistent on all material points. 13. It is, thus, evident from the discussions of the evidence of the witnesses that though eye witnesses are relations of the deceased and inimical to the appellants but their evidence is consistent on all material points. 13. It is, thus, evident from the discussions of the evidence of the witnesses that though eye witnesses are relations of the deceased and inimical to the appellants but their evidence is consistent on all material points. Their oral evidence is also corroborated by the evidence of the doctor, who held postmortem over the dead body, With respect to the weapon used in commission of crime and the manner of occurrence as he found injury on the head consistent with the prosecution case. The evidence of the investigating officer also corroborates the oral evidence of the eye witnesses as the I.O. has found dead body at the place of occurrence, seized the blood from the place of occurrence and also prepared inquest report which supports the prosecution case with respect to injuries found on the person of the deceased. On careful consideration of the evidence of eye witnesses we do not find any reason to discard their evidence. 14. The submission of the learned counsel for the appellants was that the investigation is faulty as the investigating officer neither examined any independent witness nor he made any efforts to get the blood seized from the place of occurrence chemically examined. In this regard it would be relevant to mention herein that the investigating officer has started in his evidence that he tried to record the evidence of the people living near the place of occurrence but none of them was ready to give statement out of fear of the appellants. The death in this case Was not in dispute, nor there was any dispute that he was killed by fire-arm at the place of occurrence. In such a situation, if the blood seized from the place of occurrence is not chemically examined, we are of the view that it would not affect the prosecution case. 15. In the case of Leela Ram V/s. State of Haryana and another, AIR 1999 SC 3717 , the Apex Court has held that any irregularity or even illegality during investigation would not be a ground to reject the prosecution case. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details. The discrepancies found in ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details. The discrepancies found in ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In the instant case the witnesses examined are relations of the deceased but on careful consideration we have found their evidence trustworthy and consistent on all material points, and as such, we find no substance in the submission of the learned counsel for the appellants. 16. Learned counsel for the appellants criticised the evidence of the doctor, PW 7, who held postmortem over the dead body. It was contended that the eye witnesses have stated that firing was made touching the head but no such injury was found on the person of the deceased. There is nothing in the evidence of the doctor to show that inner part of the injury was found burnt. In this regard it would be pertinent to mention herein that the witnesses are rustic and it is not expected that such witness would say with all mathematical accuracy with regard to distance of use of the weapon. However, the doctor, PW 7, has stated in his evidence that he found inverted injury on the occipital region of the head, one inch around the injury was lacerated, half inch around it was found black and hair burnt with blood smeared. In Modi Medical Jurisprudence (22nd Edition) at page 354 it has been mentioned that if a fire-arm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder of smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. Blackening is found, if a fire arm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet. In the absence of powder residue no distinction can be made between one distant shot and another, as far as distance is concerned. Moreover, these signs may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gunpowder will all follow the track of the bullet in the body. In the instant case there is nothing on the record that fire-arm was pressed on the body and fired. The evidence is that pistol was fired touching/close to the head. It is not expected from the witnesses to give distance with mathematical accuracy. Therefore it is evident from the evidence of the doctor that pistol was fired from close range which is consistent to the oral evidence of eye witnesses. 17. Learned counsel for the appellants also pointed out that the doctor has found rigor mortis present on the dead body and the time elapsed since death has been opined to be 3 to 36 hours which falsifies the prosecution case. In this regard Modis Medical Jurisprudence (22nd Edition) at page 229 says that time of onset varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In India it usually commences in one to two hours after death. Duration In temperate region rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor mortis is twenty four to forty eight hours in winter season, eighteen to thirty-six hours in summer. In this case occurrence took place on 12.9.1998, at 6 a.m.,post mortem was held on the same day at 1.30 p.m. and as such presence of rigor mortis on the dead body does not create any doubt about the prosecution case in view of discussions made above. 18. In this case occurrence took place on 12.9.1998, at 6 a.m.,post mortem was held on the same day at 1.30 p.m. and as such presence of rigor mortis on the dead body does not create any doubt about the prosecution case in view of discussions made above. 18. Learned counsel for the appellants, however, contended that conviction of the appellants, Jagdish Mahto and Shanti Devi under Section 302/149 is bad in law. In this regard it is necessary to discuss the evidence brought on the record. The evidence of all eye witnesses is consistent that the appellants, Bindeshwar Mahto, Umesh Mahto, Mannu Mahto and Shrawan Mahto surrounded Chandeshwar Mahto, the deceased, near the house of Badodi Chaudhary. Shrawan Mahto and Mannu Mahto caught hold of the deceased and thereupon appellant Bindeshwar Mahto fired from pistol touching his head from close range. Umesh Mahto also fired. Chandeshwar Mahto, the deceased, fell down on the ground and thereafter all the four appellant assaulted from the butt of the pistol, brick-bats and stones on the head of the deceased. Thereafter, it was alleged that Jagdish Mahto and Shanti Devi came and they also assaulted. There is no evidence on the record to show that these two appellants came along with the aforesaid four appellants rather evidence is that these two appellants came while the deceased was lying on the ground and four appellants as indicated above were assaulting him on the head. Therefore, it cannot be said that these two appellants had common object to kill Chandeshwar Mahto, the deceased. Furthermore, the evidence of the doctor indicates that only four lacerated wounds were found on the head of the deceased which fits in with the case Of the four appellants. They assaulted the deceased with the butt of the pistol, brick-bats and stones. If this part of the evidence is accepted then it becomes obvious that conviction of the appellants under Section 302/149 cannot be sustained because there is nothing on the record to show that they with common object came along with rest of the four appellants. The allegation of assault by these two appellants is not supported by doctor, PW 7, Therefore, we are of the view that the conviction of these appellants under Section 302/149 Indian Penal Code cannot be sustained. 19. The allegation of assault by these two appellants is not supported by doctor, PW 7, Therefore, we are of the view that the conviction of these appellants under Section 302/149 Indian Penal Code cannot be sustained. 19. Learned counsel for the appellants, in the circumstances, submitted that conviction of Shrawan Mahto, Mannu Mahto and Umesh Mahto cannot be upheld as now after exclusion of the two appellants it does not remain unlawful assembly and as such their conviction under Section 302/149 of the Indian Penal Code would be bad in law. The evidence on record is that appellants, Shrawan and Mannu caught hold of the deceased and appellant, Bindeshwar Mahto fired on the head and the appellant, Umesh Mahto, also fired. Therefore, it is evident from the evidence that all the four accused persons participated in action in commission of the crime. Under Section 149 of the Indian Penal Code participation in action is not necessary if common object is established by the prosecution but in case of Section 34 of the Indian Penal Code actual participation in action is necessary either by words or by physical force. On consideration of the evidence brought on the record it is manifest that these four appellants participated in action in the commission of the crime. Therefore, they can be convicted for the offence under Section 302/34 of the Indian Penal Code. Learned counsel for the appellants, however pointed out that no charge under Section 302/34 of the Indian Penal Code was framed and as such they cannot be convicted in absence of charge. In this regard Section 264 of Criminal Procedure Code is relevant which reads as follows ; 464. Effect of omission to frame, or absence of or error in, charge. (1) 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 charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may : (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge. (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court if of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction." 20. It is, thus, obvious from the aforesaid provision that omission to frame charge, or in absence of, or error in, charge in all cases would not invalidate the judgment and order of conviction and sentence unless the Court of appeal is of the opinion that confirmation or revision would occasion failure of justice. In the instant case, the evidence of the witnesses was recorded in presence of the appellants and their consistent evidence is that all the four appellants participated in action. They were cross-examined at length and as such it cannot be said that in absence of charge any prejudice has caused to the appellants or has occasioned failure of justice. In the case of Lallan Rai and others V/s. State of Bihar, 2003 (3) East Cr C 15 (SC) : 2003 SCC (Cri) 301 the Apex Court has held that non-framing of charge would not vitiate the conviction if no prejudice is caused to the accused.The conviction and sentence under Section 302 of the Indian Penal Code can be maintained by adding Section 302/34 of the Indian Penal Code. 21. Thus, we find that there is no substance in the submission of the learned counsel for the appellants and, accordingly, conviction of the appellants, Shrawan Mahto, Mannu Mahto and Umesh Mahto is converted from Section 302/149 of the Indian Penal Code to Section 302/34 of the Indian Penal Code. 22. Thus, on consideration as discussed above the appeal of Jagdish Mahto of Cr. Appeal No. 251 of 2000 and appeal Of Shanti Devi of Cr. 22. Thus, on consideration as discussed above the appeal of Jagdish Mahto of Cr. Appeal No. 251 of 2000 and appeal Of Shanti Devi of Cr. Appeal No. 273 of 2000 are allowed and order of conviction and sentence of the aforesaid appellants are hereby set aside and they are discharged from the liability of bail bonds. With regard to rest of the appellants we find no merit in the appeals and accordingly Cr. Appeal No. 273/2000 so far it relates to the rest of the appellants and Cr. Appeal No. 354/2000 are dismissed with modification as indicated above. Appeal dismissed with modifications.