JUDGMENT IMTIYAZ MURTAZA and K.N. PANDEY, 1. Impugned herein is the judgment and order dated 2.3.2009 rendered by Addl. Sessions Judge Court No.6 Allahabad (Court No.6) in S.T. No. 393 of 2007 State v. Ram. Samujh and others whereby the appellant was convicted under section 302 IPC and punished with death penalties together with a fine of Rs. 5000/- attended with their conviction under section 201 IPC and sentence of imprisonment for seven years. 2. It would appear from the record that the initial report was made by Ram Nath, father of Ram Samujh on 11.9.2006 at 9.30 a.m. to the effect that Urmila and her daughter Soni had gone for easing themselves in the morning and when they did not return, search was made and after assiduous search, their bodies were noticed to be floating in the village pond at about 7 a.m. It is further stated in the report that it appeared that the deceased Urmila slipped into the pond while cupping her hands for water from the pond for washing. The Information was noted in G.D report No. 15 at 9.30 a.m. and the police party rushed to the spot and fished out dead bodies from the pond and thereafter, prepared panchnama which commenced at 9.30 a.m. Subsequently, the bodies were sealed and sent for post-mortem examination. On objection being raised by the Medical officer to the effect that the inquest report had not been processed by a Magistrate, the Station officer Baharia took steps and made request to Sub Divisional officer Phulpur to do the needful. The S.D.M acting on the request, deployed Tileshwar Prasad Naib Tahsildar on 13.9.2006 for preparing the inquest and on direction of the S.D.M the Naib Tahsildar visited the mortuary and prepared the inquest report. In the inquest report, he mentioned the factum of autopsy being conducted by a panel of two doctors. The autopsy on the dead bodies as it would appear was done by a penal of two doctors. 3. In the post-mortem report of the deceased Urmila Devi, the Doctor found ligature mark all over neck of the dimension of 33 cm x 1 cm. The Doctor opined that causative factor of the death was strangulation. On the body of deceased Soni, the Doctor found ligature mark 22 cm x 1 cm. The Doctor opined that the death was as a result of strangulation. 4. The Doctor opined that causative factor of the death was strangulation. On the body of deceased Soni, the Doctor found ligature mark 22 cm x 1 cm. The Doctor opined that the death was as a result of strangulation. 4. On the other hand the mother of the deceased namely Kamla Devi lodged the report on 14.9.2006 at P.S. Baharia. As a prelude it is stated in the F.I.R that her daughter namely Urmila Devi had been tied in nuptial knots with Ram Samujh resident of Village Kamaipur according to Hindu rites in May 2000 and she was given dowry befitting the parental financial status but the bride-groom's side put forth demand of more dowry including gold chain and motor cycle and when the demand of more dowry could not be fulfilled, the accused persons subjected the deceased to brutal treatment and assault by way of physical beating. It is further stated that when the deceased happened to come back to her parental house, she unravelled the entire details of her ill-treatment at the hands of in-laws. Subsequently, the matter of ill treatment was taken up with the in laws of the deceased who it is further alleged, assured that ill-treatment would not be repeated and on their assurance, the deceased went to her matrimonial house. In between the period, the deceased gave birth to a baby child; On the day of Raksha Bandhan, when the deceased carne to her parental house, she again gave out precise details of maltreatment and repeated incident of beating and had articulated apprehension that she could be done to death. On 10.9.2006, the accused persons murdered Urmila Devi and her daughter Soni and their bodies were thrown into adjacent village pond. In the morning, their bodies were found floating in the pond. It is alleged that the information about the death was conveyed to her relative, Pappu Yadav. It is further alleged that upon receiving the information, she rushed to the village Karnaipur alongwith her brother Kashi Prasad Yadav and other co villagers and witnessed that the body of her grand daughter Soni had already been fished out from the pond while the body of her daughter was told to be mired in the pond. It is further alleged that upon receiving the information, she rushed to the village Karnaipur alongwith her brother Kashi Prasad Yadav and other co villagers and witnessed that the body of her grand daughter Soni had already been fished out from the pond while the body of her daughter was told to be mired in the pond. It is alleged that the body of the deceased was fished out from the pond in the presence of the police and subsequently, the bodies of the deceased were sent to funeral pyre for cremation. On the basis of the said report, the F.I.R. was lodged on 14.9.2006 at 10.30 a.m. naming the accused persons at case crime No. 42 of 2006 under sections 499-A, 304-B, 302 and 201 IPC and section 3/4 of the Dowry Prohibition Act. 5. The investigation of the case was taken over by Circle officer Police Phulpur. Consequent upon taking over investigation, Sri Munna Lal the Investigating Officer recorded the statements of the witnesses, inspected the spot of occurrence and prepared the site plan. Subsequently, the investigation came to be transferred to Sri Vijai Tripathi Circle officer police on account of Sri Munna Lal getting busy in the recruitment of police constables. Again, the investigation was taken over by Munna Lal on 17.10.2006 and after completion of investigation, he submitted charge-sheet in the case on 7.11.2006 under sections 499-A. 304-B, 302 and 201/149 IPC and section 3/4 of the Dowry Prohibition Act. The prosecution in support of its case examined P.W.1 Smt. Kamla Devi, P.W. 2 Brijlal, P.W. 3 Dr. Om Srivastava, P.W.4 Dr. Bhupendra Nath, P.W.5 Sri Tileshwar Prasad, P.W. 6 Constable Rama Sahai Pal, P.W.7 S.I. Shivkesh Singh Yadav, P.W. 8 Constable Indra Narain Shukta and P.W. 9 Sri Munna La1. 6. We have heard learned Counsel for the parties and have also been taken through the record. The learned Counsel appearing for the appellants raised the issue having complexion of preliminary issue to the effect that in the case, the accused persons were charged for prosecution in three counts one under sections 304-B and 498-A, for the murder of deceased Urmila Devi and then under sections 302/149 and 201/149 IPC for the murder of Km: Soni and also under section 3/4 of the Dowry Prohibition Act. It is canvassed that in ultimate analysis, the Sessions Judge acquitted the accused persons under sections 498-A and 304-B and also section 3/4 of the Dowry Prohibition Act and instead convicted only appellant under sections 302/149 and 201/149 IPC. It is substantially argued that once the accused have been purged of the charges under sections 498-A and 304-B IPC sections 302/149 IPC and 3/4 of the Dowry Prohibition Act and appellant cannot be convicted under sections 302 and 201 IPC simpliciter in the absence of any specific charge. 7. In the context of above arguments, we have scanned the record. It would transpire that the Sessions Judge framed charges against the appellant Ram Samujh and four others under section 498-A IPC and 3/4 of the Dowry Prohibition Act, 304B IPC, 302/149 IPC and 201/149 IPC. The charge No.3 relates to murder of deceased Urmila Devi and Charge No.4 is about murder of Km. Soni. The learned Counsel for the appellants canvassed that the learned Sessions Judge has wrongly convicted the appellant under sections 302 and 201 IPC in the absence of any specific charge attended with further submission that it has occasioned serious prejudice to the appellant as he stands deprived of fair trial. Substantially, it is argued that failure of justice has been occasioned to him. 8. In connection with the above submission, it would be useful to acquaint ourselves with the charges framed by the learned Sessions Judge. The charges framed are excerpted below. HINDI TYPE 9. It brooks no dispute that there is no specific charge under section 302 IPC for the murder of deceased Urmila Devi. The appellant it would appear, was charged under section 304-B IPC for committing murder of Urmila Devi. He was also charged under section 302 IPC with the aid of section 149 IPC for the murder of Km. Soni. Sub section (1) of section 222 envisages that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and as such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not• charged with it. Sub section (1) of section 222 envisages that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and as such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not• charged with it. Sub section (2) of section 222 envisages that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. It bears no dispute that section 222 Cr.P.C is in the nature of general provision which empowers the Court to .convict for a minor offence even though the charge has been framed for major offence. However, there is a separate Chapter in the Code of Criminal Procedure namely Chapter XXXV which deals with irregular proceedings and their effect. Section 464 Cr.P.C. deals with the effect of omission to frame, or absence of, or error in, charge. Sub section (1) of this section enumerates 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 mis-joinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. This clearly shows that any error, omission or irregularity in charge including any misjoinder of charges shall not result in invalidating the conviction or order of a competent Court unless the appellate or revisional Court comes to the conclusion that a failure of justice has in fact been occasioned thereby. 10. In Willie Slaney v. State of Madhya Pradesh, I a Constitution Bench examined the question of absence of charge in considerable detail. The observations made in paras 6 and 7, which are of general application, are being reproduced below: "6. Before we -proceed to set out our answer and examine the provisions of the Code; we will pause to observe that the Code is a Code of Procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. Before we -proceed to set out our answer and examine the provisions of the Code; we will pause to observe that the Code is a Code of Procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions." 11. After analysing the provisions of sections 225, 232, 535 and 537 of Code of Criminal Procedure, 1908 which correspond to sections 215, 464 (2),464 and 465 of 1973 Code, the Court held as under in para 44 of the report: "Now, as we have said, sections 225, 232,535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is 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. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one." 12. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one." 12. This question was again examined by a three-Judge Bench in Gurbac1um Singh v. State of Punjab in which it was held as under: 1957 CriLJ 1009 "In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance 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." In order to ascertain whether failure of justice has been occasioned, it would be worthwhile to get grasp of whether the accused was aware of basic ingredients of the offence for which he has been convicted and whether main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. 13. The learned Sessions Judge, it would appear from the record, examined the accused at prolix length. The only relevant question put to the accused under section 313 Cr.P.C is excerpted below. "~1 6-~ ~ Jt i3W-TI ~ T$ ~ t ~\3Wfc=r~m~~~~ ~q,lif ~ or i5Wtt ~ ~ ~~ qjf ~ ~ ~~T qm- if mre ~ Jt ~ ml ~ ~ t,~ if \3Wf qjf <1m ~ ~? \3ffi' - l"J(i'R'f ~ I " It would appear that the only relevant question relating to charge under section 302 IPC is question No. 6 which show that the appellant alongwith other co-accused committed the murder of Urmila Devi and her daughter Poonam alias Soni and threw their bodies in the nearby pond. There is no specific charge either under section 302 or section 201 IPC. The other accused are I already acquitted by the Sessions Judge and appellant was not charged under section 302 and 201 IPC simpliciter. 14. There is no specific charge either under section 302 or section 201 IPC. The other accused are I already acquitted by the Sessions Judge and appellant was not charged under section 302 and 201 IPC simpliciter. 14. In Subran v. State of Kerala the Apex Court held that a person charged for an offence under section 302 IPC read with section 149 cannot be convicted of the substantive offence under section 302 IPC without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified, because an accused might be misled in his defence by the absence of the charge for the substantive offence under section 302 IPC. Accused appellant 1 was never called upon to meet a charge under section 302 IPC simpliciter and, therefore, in defending himself, he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross examination of the prosecution witnesses. Therefore, the conviction of the first appellant for an offence under section 302 was not permissible." 15. In the instant case also, the appellant was charged under section 304-B IPC alongwith other accused who have been acquitted by the Trial Court for committing murder of deceased Urmila Devi. The ingredients of offence under section 304-B are quite distinct from the ingredients of section 302 IPC. Similarly, the appellant was charged alongwith other co-accused persons for committing murder of Km. Soni with the aid of section 149 IPC. There was no simpliciter charge under section 302 IPC. The ingredients of offence under section 304-B are quite distinct from the ingredients of section 302 IPC. Similarly, the appellant was charged alongwith other co-accused persons for committing murder of Km. Soni with the aid of section 149 IPC. There was no simpliciter charge under section 302 IPC. In view of the above, we are therefore of the view that the serious error has been committed by the Trial Court and prejudice has been caused and therefore in view of section 464 (2) Cr.P.C which envisages that 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 it the Trial Court is directed to frame proper charges accordingly. 16. In view of the above discussed the appeal is allowed and the judgment and order impugned herein are set aside. The matter is remanded to the Trial Court to frame charges afresh and commence trial of the case afresh from the stage of framing of charge. The exercise aforesaid, it is directed, shall be taken to completion within a period not exceeding four months. Reference made to this Court in so far as appellant is concerned is disposed of in terms of the above.