JUDGMENT S.L. Kochar, J. This appeal has been directed against the impugned judgment dated 22nd April, 1998, passed by the learned A.S.J., Biaora, District Rajgarh in S.T. No. 4/91 whereby, convicting the appellants u/s 302 of the Indian Penal Code and sentencing to imprisonment for life with fine of Rs. 10,000/- and in default of payment of fine, additional R.I for two years. The learned trial Court, has also directed for paying of Rs. 25,000/- as compensation, out of the fine amount to legal heirs of deceased Narayan Singh. Briefly stated, the prosecution case as unfolded before the trial Court is that there was dispute between the deceased Narayansingh and appellant No. 2 Ramsingh regarding house. Both were the brothers. Appellants No. 1 Dhulya and No. 3 Ghisalal are the real brothers. Their sister is married with appellant No. 2 Ramsingh. On 29-8-1999, in the evening, between 7.00 and 8.00 p.m., Govindram (P.W.9), brother of appellant No. 2 Ramsingh, was to start for taking food in the house of one Prem Narayan, at that moment, Sushilabai (P.W.1 1), daughter of deceased, while weeping, reached to him and gave message that appellant were assaulting her father Narayan. On this information, Govindram (P.W.9) immediately reached at the house of Narayansingh and saw that appellant No. 2 Ramsingh was catching hold of Narayansingh and appellant No. 3 Ghisalal was assaulting Narayansingh by Karpa (sharp edged weapon) whereas appellant No. 1 Dhulya causing injuries by farsi (sharp edged weapon). He objected to the assault of Narayansingh whereupon appellants Ghisalal and Dhulya rushed to assault him. Govindram (P.W.9), because of fear, left the scene of occurrence and reached at the house of village Patel Rodji (P.W.7) and narrated the whole incident to him. They reached on the spot, by that time, appellants had already fled away. They saw the number of injuries on the person of deceased Narayansingh on various parts of the body like abdomen, hands, face etc. and Narayansingh was dead. The wife of Narayansingh, Prembai (P.W.8), was sitting by his side and weeping. The appellants committed murder of Narayansingh on account of inimical terms because of house dispute. The report was not lodged in the night because of fear, by Govindram (P.W.9) and same was lodged the next day in the morning at 8.00 a.m. at Police Outpost, Lakhan was vide Ex.P/6. The appellants committed murder of Narayansingh on account of inimical terms because of house dispute. The report was not lodged in the night because of fear, by Govindram (P.W.9) and same was lodged the next day in the morning at 8.00 a.m. at Police Outpost, Lakhan was vide Ex.P/6. On the basis of this report, at Police Station, Malawar, District Rajgarh, F.I.R. (Ex.P/17) was registered against the appellants u/s 302/34 of the Indian Penal Code. A.S.I. R.D. Patel (P.W.6) reached on the spot and prepared inquest report in presence of witnesses vide Ex.P/3. The dead body was sent with requisition memo (Ex.P/8) for postmortem examination and the same was conducted by Dr. Sanjay Sharma (P.W.14). The Postmortem report is Ex.P/19. Ex.P/9 spot map was prepared by Investigating Officer Ajaysingh Rana (P.W.15). He also effected seizure of blood stained and controlled earth from the spot. Ex.P/4 another spot map was prepared by Patwari. Ex.P/5 is the copy of land record. The appellants were arrested and, on their memorandum statements, blood stained earth and weapons were seized. Seized articles were sent to Forensic Science Laboratory and its report is Ex.P/20. After completion of investigation, appellants were charge-sheeted for commission of offence u/s 302/34 of the Indian Penal Code. The appellants refuted the charges and submitted that because of enmity they have been falsely implicated. They examined defence witness (D.W.1) Rodji in support of their plea of alibi. The learned trial Court, relying upon the prosecution evidence, convicted the appellants as mentioned herein above. We have heard the learned counsel for the parties and also perused the entire record of the case. Learned counsel for the appellants has submitted that F.I.R. was lodged after the lapse of long time and no proper explanation has been given by the prosecution. According to him, the eye-witnesses had not witnessed the incident and reached on the spot later on, thereafter, with the help of village Patel, complainant Govindram (P.W.9), concocted a false case and lodged the report on the next day. According to him, the eye-witnesses had not witnessed the incident and reached on the spot later on, thereafter, with the help of village Patel, complainant Govindram (P.W.9), concocted a false case and lodged the report on the next day. He has also urged that the appellants have been charged for the offence u/s 302 of the Indian Penal Code simpliciter therefore, they could be convicted for their individual act and appellant No. 2 Ramsingh did not cause any injury by any weapon, hence, his conviction u/s 302 of the Indian Penal Code is not sustainable and that all the witnesses are interested as closely related to the deceased. On the other hand, learned counsel for the State has submitted that the incident occurred at the door of deceased Narayansingh, therefore, presence of his wife Prembai (P.W.8) and daughter Sushilabai (P.W.11) was natural and they would not falsely implicate the appellants leaving the real culprit. He has further submitted that the learned trial Court has appreciated the evidence in its proper perspective and there is no flaw in the impugned judgment and all the appellants have been rightly convicted. To appreciate the rival contentions, we have perused the statement of the author of the F.I.R. Govindram (P.W.9), the real brother of the deceased Narayansingh as well as appellant No. 2 Ramsingh. We do not find anything in his statement to hold that he was having any kind of grievance, reason or motive for lodging the false report against his real brother appellant No. 2 Ramsingh arid to give evidence in the Court. This witness has specifically mentioned in the F.I.R. that when he reached on the spot and objected the assault of deceased by the appellants, they rushed towards him to assault him, therefore, because of fear, he ran away to the house Of village Patel Rodji (P.W.7) and gave all information about the incident to him. In the Court also he has stated all these facts. Version of this witness is duly corroborated by Rodji (P.W.7). Govindram (P.W.9) has also stated that because of commission of murder of his brother by the appellants, in the night, he was in fear, therefore, could not come to lodge the report arid on the next day, early in the morning, proceeded for lodging the report and lodged the same in Police Outpost accompanying with Village Kotwar. Govindram (P.W.9) has also stated that because of commission of murder of his brother by the appellants, in the night, he was in fear, therefore, could not come to lodge the report arid on the next day, early in the morning, proceeded for lodging the report and lodged the same in Police Outpost accompanying with Village Kotwar. The police Outpost was situated at the distance of 10 k.m. from the place of incident. In the Court, this witness, in cross-examination paragraph 14, stated that the day of incident was dark night, but he was able to identify the presence of appellants. Nobody was ready to accompany him. It was raining and there was flood in the river. All these facts are not available in the F.I.R (Ex.P/6), but the same cannot be considered as improvement because in Examination-in-Chief, he has not stated all these facts and same have come in cross-examination when questions were put to this witness by the defence. Govindram (P.W.9) has stated that on the date of incident, in the evening, between 7.00 to 8.00 p.m., he was at the house of one Premnarayan, where his niece Sushilabai (P.W.11) reached and informed him about assault of her father by the appellants. He immediately reached on the spot and saw that appellants were assaulting deceased by farsi and karpa. He asked them not to assault, on which, appellants rushed to assault him, therefore, he ran away from the scene of occurrence and reached at the house of village Patel Rodji (P.W.7) and returned back on the spot with Rodji. There he found that Narayansingh was lying dead and appellants had already run away. He saw the injuries on the person of the deceased and, thereafter, lodged the report Ex.P/6. He was also a witness to the inquest report (Ex.P/3). In cross-examination, he admitted about relation with the appellants as well as the deceased. There is no dispute on this question between the parties. When he reached on the spot, Narayansingh was lying dead in front of the house of his door. In cross-examination, nothing substantive has come which may fragile his statement against his own brother appellant No. 2 Ramsingh and close relatives appellant No. 1 Dhulya and No. 2 Ghisalal. There is no dispute on this question between the parties. When he reached on the spot, Narayansingh was lying dead in front of the house of his door. In cross-examination, nothing substantive has come which may fragile his statement against his own brother appellant No. 2 Ramsingh and close relatives appellant No. 1 Dhulya and No. 2 Ghisalal. In cross-examination Paragraph 10, he has denied any kind of quarrel or ill-will with appellant No. 2 Ramsingh and stated specifically that he was having talking terms with Ramsingh. In paragraph 11, he has also denied any kind of inimical terms with appellants No. 1 Dhulya and No. 3 Ghisalal and admitted about talking terms with them. The further say of this witness is that he did not interfere in the quarrel, because of fear of his beating by the appellants. Version of this witness is fully corroborated by Sushilabai (P.W.11), the eye-witness of the incident and daughter of the deceased. Her presence at her house was also natural. In cross-examination, Sushilabai (P.W.11) has stated that she called Govindram (P.W.9) and they reached within two minutes on the spot. In paragraph 3, she denied any kind of tutoring by the police prior to her examination in Court. She was confronted with her case diary statement (Ex.D/2), in which, it is not mentioned that appellant rushed to assault her. On consideration, this omission in her case diary statement is not a material omission. At the time of incident, she was aged about 7-8 years. She has specifically stated that she was knowing the appellants and on the date of incident, appellant No. 2 Ramsingh caught hold of her father Narayansingh whereas appellants No. 1 Dhulya and No. 3 Ghisalal assaulted by karpa and farsi. Immediately she called her uncle Govindram (P.W.9). The statement of this witness is very clear about presence and participation of the appellants and we do not find any material to doubt and discard the version of this witness. The third eye witness is wife of the deceased Prembai (P.W.8). The say of Prembai is that on the date of incident, in the evening, between 8.00 to 9.00 p.m., she was cooking food. At that time, appellants were abusing Dhapubai and Dhapubai requested Prembai's husband Narayansingh to admonish the appellants. The third eye witness is wife of the deceased Prembai (P.W.8). The say of Prembai is that on the date of incident, in the evening, between 8.00 to 9.00 p.m., she was cooking food. At that time, appellants were abusing Dhapubai and Dhapubai requested Prembai's husband Narayansingh to admonish the appellants. Her husband asked the appellants as to why they were abusing Dhapubai and they should take their money on the next day, at which, appellants asked Narayansingh as to why he was taking favour of Dhapubai and appellant No. 2 Ramsingh caught hold of Narayansingh. Thereafter, appellants No. 1 and No. 3 Dhulya and Ghisalal assaulted Narayansingh by ballam and farsi. She immediately sent her daughter Sushilabai (P.W.11.) to call her brother-in-law Govindram (P.W.9) and Govindram (P.W.9) reached oh the spot, and all the appellants also rushed to assault Govindram (P.W.9). Her presence at her house was also natural. Apart from contradiction, in the name of weapon, there is no other material contradiction between the statements of this witness and other witnesses and this difference could occur because of understanding of witness regarding name and nature of weapon, but ultimately the fact remains that appellant No. 3 Ghisalal was present on the spot and caused injuries by sharp edged weapon. The overt acts of appellants No. 1 Dhulya and No. 3 Ghisalal are also fully corroborated by evidence of Dr. Sanjay Sharma (P.W.14), who proved postmortem examination (Ex.P/19). Dr. Sanjay Sharma found as many as about 15 injuries on various parts of the body of the deceased i.e. on both the arms, chest, right iliac crest and abdomen. The loops of the abdomen were coming out. On left shoulder, right and left scapula region, dimensions of the injuries were quite long. On internal examination, he found cut injury to abdominal wall, fracture of mandible bone and according to him, injuries were caused by sharp edged weapon. He also found incised injury on right side of the face going upto the centre of right side of the neck. There was cut of neck blood vessels. Deceased died because of excessive bleeding from the wounds, resulting into shock and respiratory failure. Injuries No. 1 to 6 were sufficient in ordinary course of nature to cause death. The learned counsel for the appellants has not disputed the homicidal death of deceased, same is also fully proved from the medical evidence of Dr. Deceased died because of excessive bleeding from the wounds, resulting into shock and respiratory failure. Injuries No. 1 to 6 were sufficient in ordinary course of nature to cause death. The learned counsel for the appellants has not disputed the homicidal death of deceased, same is also fully proved from the medical evidence of Dr. Sharma. Now the next question for consideration is whether appellant No. 2 Ramsingh can be held responsible for commission of murder of deceased without framing of charge with the aid of section 34 of the Indian Penal Code. Supreme Court in the case of Anil Sharma and Others Vs. State of Jharkhand, has dealt with this legal issue and held that merely absence of charge of section 34 of the Indian Penal Code by itself would not be fatal unless prejudice to the accused is established. In this judgment, the Supreme Court has placed reliance on the earlier Supreme Court judgment passed by the Constitution Bench of Hon'ble 5 Judges, Willie (William) Slaney Vs. The State of Madhya Pradesh, as well as thejudgment rendered in case of Dhanna vs. State of M.P., AIR 1996 SC 2478 . Both the Supreme Court judgments have interpreted sections 535 and 232, sub-seetion (2) of the old Criminal Procedure Code and section 464 of the new Criminal Procedure Code 1973. Section 464 reads as under: 464. Effect of omission to frame. Or absence of or error incharge. -- (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 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 recommended 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 is 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. In view of the aforesaid provisions and Supreme Court dicta, the conviction of the accused cannot be set aside only on the ground of non-framing of, charge. The accused has to establish failure of justice occasioned to him by non-framing of a particular charge. In the instant case, there is no dispute that charge u/s 302/34 of the Indian Penal Code has not been framed by the learned trial Court against the appellants. We have also perused the charge and, ingredients of section 34 of the Indian Penal Code are not mentioned in the charge. In these circumstances, we have to consider whether any prejudice has been caused to the appellants. Looking to the nature of evidence, contents of the F.I.R., eye-witnesses account, it is crystal clear that appellants No. 1 Dhulya and No. 3 Ghisalal used deadly weapon/sharp edged weapon and caused as many as 16 injuries all over on the person of me deceased, out of which, more than six injuries were on vital part of the body like chest, neck, face and abdomen and both were aware of the act of each other, therefore, even if the charge u/s 34 of the Indian Penal Code is not framed, no failure of justice occasioned to them, looking to the injuries caused by them which proved fatal. The deceased died because of excessive bleeding from all the injuries caused by them, total 16 in numbers, which resulted into shock and respiratory failure. Therefore, even without framing of charge against them u/s 302/34 of the Indian Penal Code, they can be held liable for causing these injuries, which resulted into death for holding them liable for commission of substantive offence punishable u/s 302 of the Indian Penal Code. So far as appellant No. 2 Ramsingh is concerned, he was empty handed and has not caused any injury by any weapon to deceased. So far as appellant No. 2 Ramsingh is concerned, he was empty handed and has not caused any injury by any weapon to deceased. Looking to the number and nature of injuries, it would be very difficult to say that he was holding the deceased right from the beginning till end. For holding him liable with the aid of section 34 of the Indian Penal Code, even without framing the charge, to this effect, prosecution has to establish that he was having pre-meeting of mind, premeditation and pre-plan with the appellants No. 1 Dhulya and No. 3 Ghisalal for commission of murder of deceased Narayansingh and in furtherance of the said common intention, he acted on the spot by catching hold of the deceased. There is no evidence in this regard. Therefore, it cannot be said that he was aware of the intention of appellants No. 1 Dhulya and No. 3 Ghisalal and shared their intention by participating in the incident. It is also to be seen that according to Prembai (P.W.8), wife of the deceased, all the three appellants were abusing Dhapubai in front of the house of the deceased and this witness. At that moment, deceased Narayansingh came out from the house and admonished the appellants, only thereafter, they started assaulting them. Therefore, it cannot be said that appellant No. 2 Ramsingh was having knowledge that appellants No. 1 Dhulya and No. 3 Ghisalal would assault by deadly weapon to deceased. In view of all these facts and circumstances of the case, the appellant No. 2 Ramsingh at the most can be convicted for his individual act i.e. catching hold of the deceased punishable u/s 323 of the Indian Penal Code. In the result, on the basis of the above factual and legal discussion, this appeal is allowed in part. Conviction and sentence of appellants No. 1 Dhulya and No. 3 Ghisalal are hereby affirmed as passed by the learned trial Court and conviction and sentence of appellant No. 2 Ramsingh u/s 302 of the Indian Penal Code are hereby set aside, but he is convicted u/s 323 of the Indian Penal Code and sentenced to the period already undergone (8 months) with fine of Rs. 1,000/-, in default of payment of fine, further R.I. for one month. Out of realisation of the total Fine amount of Rs. 1,000/-, in default of payment of fine, further R.I. for one month. Out of realisation of the total Fine amount of Rs. 25,000/-, the same shall be paid to the legal heirs of the deceased Narayansingh. Appellants are on bail. Therefore, appellants No. 1 Dhulya and No. 3 Ghisalal are directed to surrender themselves before the trial Court for serving out the jail sentence. The learned trial Court is directed to send appellants No. 1 Dhulya and No. 3 Ghisalal to jail. In their absence on a given date, take appropriate legal action against them and their sureties under intimation to this Court. The bail bond and surety bond of appellant No. 2 Ramsingh are hereby discharged. Out of the fine amount Rs. 10,000/-, if deposited by appellant No. 2 Ramsingh, Rs. 9,000/- be refunded to him. Final Result : Allowed