JUDGMENT P.K. Musahary, J. 1. Heard Mr. P. Sarma, learned Counsel for the accused Appellants. Also heard Mr. K. Munir, learned Addl. Public Prosecutor, for the State of Assam. 2. Both these appeals have been preferred against judgment and order dated 05.08.2002 passed by the learned Sessions Judge, Dhubri, in Sessions Case No. 78/2000 convicting the accused Appellants under Sections 448/34 IPC and 366 IPC read with 511/34 IPC and sentencing them to suffer R.I. for 5 years. The case of the prosecution, in brief, is that in the night of 10.10.1999, at around 08.30 p.m., Abdul Syed @ Sayed Ali and 3 others of village Bangirchar attempted/tried to kidnap one Kohinoor Begum, D/o one Shakir Ali, from her house. In the said attempt, the accused Appellants were accompanied by one Abdul Baten, Appellant in Crl. Appeal No. 290 of 2002. The elder brother of the victim girl, who was also present at home at the time of occurrence, lodged an FIR (Ext.- 1) on 19.10.1999 on the basis of which South Salmara Police Station Case No. 147/1999 was registered under Sections 147/448/366/511 IPC. The police, after completion of the investigation, laid charge-sheet on 03.01.2000 against the present accused Appellants under Sections 448/366/511IPC. The case being exclusively triable by the Sessions Court, the same was committed to the Court of Sessions Judge, Dhubri. The learned Sessions Judge, on consideration of the materials, framed charges against the present accused Appellants under Sections 448/366/511 IPC. The charges so framed being read over and explained to the accused Appellants, they pleaded not guilty and claimed to be tried. The prosecution examined, in all, 7 witnesses including the victim girl. The defence, however, examined none. After conclusion of the trial, on hearing the learned Counsel appearing for the parties, the learned Court of Sessions convicted and sentenced the accused Appellants, as stated above. 3. Mr. Sarma, learned Counsel appearing for the accused Appellants, at the very outset, submits that the learned trial Court did not frame any charge under Section 34 IPC against the accused Appellants and as such, any conviction recorded under Section 34 IPC against them, is unsustainable inasmuch as they were not provided opportunity to defend themselves. In other words, his submission is that conviction under this particular section without framing the charge, is a nullity in the eyes of law. In other words, his submission is that conviction under this particular section without framing the charge, is a nullity in the eyes of law. The learned Counsel also submits that the charges against the accused Appellants have not been proved beyond reasonable doubt inasmuch as there are contradictions in the evidence of the eye-witnesses so far the place of occurrence is concerned. The learned Counsel has drawn the attention of the Court to the evidence of P.Ws. 1, 2 and 4, the informant, the victim girl and the mother of the victim girl, respectively. According to him, the identity of accused Appellants was not established or proved inasmuch the existence of any light at the time of occurrence or holding of the lamp by the victim girl was not brought on evidence. Even the prosecution did not seize the lamp which the victim girl was allegedly holding at the time of occurrence. Moreover, it has been submitted that allegations were brought against the accused Appellants out of grudge as the informant could not repay the amount of Rs. 6,000/- which was taken as loan from the accused Abdul Syed @ Sayed Ali. 4. Mr. Munir, learned Addl. Public Prosecutor, on the other hand, submits that the prosecution has been able to prove the case beyond reasonable doubt by adducing evidence of eye-witnesses and the victim herself The contradictions pointed out by the learned counsel appearing for the accused Appellants are minor in nature and the same cannot shatter the entire reliable evidence of the eye-witnesses. 5. Let me now appreciate the evidence of the main witnesses namely, P.Ws. 1, 2 and 4. P.W. 1, who lodged the FIR, is the elder brother of the victim girl. According to P.W. 1, he along with other family members were present at home at the time of occurrence. His sister, the victim girl, lives in a separate house inside the same compound and at the time of occurrence, she came out of her house to take meal in his house and all the 4 (four) accused persons with some other associates attempted to kidnap his sister from near the door of her house by force by gagging her mouth with cloth. Hearing the alarm, he rushed to the house where his mother and victim girl (sister) were living and as soon as he arrived there, the accused persons ran away living his sister at home. As per this evidence, he is not an eye-witness as he has not seen the accused persons with his own eyes. After the incident, as deposed by him, a Bichar was held by the Mahila Samity due to which there was a delay of 9 days in filing the FIR. 6. The victim girl who was examined as P.W. 2, deposed that on the day of occurrence, at about 08-08.30 p.m., she stepped out from her brother's room to her kitchen to take meal and she was encircled by 4 (four) accused persons who attempted to kidnap her from her house. The victim girl caught hold of a post that existed in front of her house in order to prevent the accused persons from taking her away and raised an alarm. The victim girl was holding a lamp and she could identify all the accused persons in the light of the lamp. Hearing her alarm, her brother Surat Jalan Sheikh, mother Sona Bhanu Bewa, came out from their rooms and having seen them, all the 4 (four) accused persons ran away. The brother of the victim girl, Surez Zamal, P.W. 1, deposed that he did not see anything about the holding of lamp by his sister. He further deposed that he also did not see anything about the fact that he could identify all the accused persons in the light of the said lamp allegedly held by the victim girl. Similarly, P.W. 4, mother of the victim girl, deposed that she also did not see anything about the said lamp and as to whether she was able to identify the accused persons in the light of the said lamp. P.W. 7, Balak Ch. Roy, was posted as ASI at Kharuabandha O.P. under South Salmara Police Station and received the FIR from P.W. 1 at 2 p.m. on 10.10.1998 and made G.D. entry. He took up the preliminary inquiry of the case by visiting the place of occurrence and examined the witnesses including the victim girl. P.W. 7, Balak Ch. Roy, was posted as ASI at Kharuabandha O.P. under South Salmara Police Station and received the FIR from P.W. 1 at 2 p.m. on 10.10.1998 and made G.D. entry. He took up the preliminary inquiry of the case by visiting the place of occurrence and examined the witnesses including the victim girl. In his cross-examination, he categorically stated that the victim girl did not state before him that she caught hold of a post in front of her house in order to prevent the accused persons to kidnap her and that she could identify the accused persons in the light of the lamp. The I.O., admittedly, did not seize any lamp from the place of occurrence. 7. The prosecution could not adduce any evidence as regards the existence of a lamp or using/holding of the same by the victim girl in the light of which she could identify all or any of the accused persons. There is no dispute on the time of occurrence that took place at 8.30 p.m. In rural areas, darkness descends late evening at 8.30 p.m. and the villagers normally go to bed at such time. No evidence has been adduced that there was electric light or any electricity connection available at the house of the victim girl to take any view that the accused persons could be identified. The evidence of the victim girl that she could identify the accused persons or any of them in the light of the lamp or electric light, having not been corroborated by other witnesses present at the time of occurrence, it cannot be said that the prosecution has been able to establish the identity of the accused persons. It cannot, therefore, be said or claimed by the prosecution that it has been able to prove its case as regards the presence of the accused persons at the place of occurrence, not to speak of any chance of identifying them by the victim girl or any other family members. 8. It is verified from the records that the police submitted charge sheet against the accused persons under Sections 448/366/511 IPC and the learned trial Court framed charges vide order dated 17.02.2001, as under: 17.02.2001. The accused Abdul Syed @ Sayed Ali, Dwin Islam, Abdul Baten and Amjad Ali are present. Learned Advocate Sri A.U. Ahmed has appeared for the accused. It is verified from the records that the police submitted charge sheet against the accused persons under Sections 448/366/511 IPC and the learned trial Court framed charges vide order dated 17.02.2001, as under: 17.02.2001. The accused Abdul Syed @ Sayed Ali, Dwin Islam, Abdul Baten and Amjad Ali are present. Learned Advocate Sri A.U. Ahmed has appeared for the accused. The learned PP Sri J.K. Sharma, is present for the prosecution. The case came up for consideration of charge. I have heard the learned Counsel of both sides on the matter of the charge. I have also perused the case records and the documents submitted therewith. From all those, it appears that there are prima-facie materials to warrant ground for presuming that the accused persons have committed offence punishable under Sections 448 and 366 r.w. Section 511 IPC. Charge is framed accordingly and read and explained to the accused persons who pleaded not guilty and claimed to be tried.... The accused persons were tried and convicted accordingly under Section 366 read with Sections511/34 IPC. It is indisputable that while submitting the charge sheet, the police did not indicate anything about the existence of common intention of the accused persons in committing the alleged offence. At the time of consideration of charges, the learned trial Court also did not indicate such common intention of the accused persons. The charge was framed without incorporating Section 34 IPC. It does not appear that at the time of explaining the charge, accused persons were hinted that they committed the alleged offence with common intention. No objection was raised by the defence during the trial that the accused persons were prejudicially affected for having been convicted under Sections 448/366/511 and 34 IPC without framing any charge under Section 34IPC. This objection has been taken at the appellate stage by the Appellants and sought quashment of the impugned conviction and sentence. 9. The law, as now established, is that, omission to mention Section 34 IPC in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof. It is also an established law that Section 34 IPC is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done individually. It is also an established law that Section 34 IPC is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done individually. A3-Judge Bench of the Apex Court in B.N. Srikantiyah v. Mysore State, reported in AIR 1958 SC 672 , enunciated the said law with various illustrations. In the said decision, it has also been held that the object of framing a charge is to warn the accused person of the case he is to answer and it cannot be treated as if it was a part of a ceremonial. It is further held that imperfection in the charge is curable provided no prejudice has been shown to have been resulted because of it. It is not necessary to make further discussion on the aforesaid principle of law. The only question that needs to be discussed in this case is whether in the facts and circumstances of the case, the accused Appellants were prejudiced and affected for not framing the charge under Section 34 IPC. If it is to be accepted that the object of the framing a charge is to warn the accused person of the case he is to answer, it is to be verified whether the charge as laid by the police and furnished to the accused persons indicated the commission of the alleged offence with common intention. The nature of allegation made in the FIR as well as the charge sheet made it clear that the accused persons allegedly came together and trespassed into the house of the victim girl and tried to kidnap her. The accused persons were sufficiently informed about the same although the words "common intention" were not mentioned in the charge sheet. It is also indicated in the evidence that the accused persons were seen and identified by the informant brother and mother of the victim girl. It is not a case that the allegation against the accused persons about their "common intention" in committing the offence was taken by surprise just at the time of trial. It is also indicated in the evidence that the accused persons were seen and identified by the informant brother and mother of the victim girl. It is not a case that the allegation against the accused persons about their "common intention" in committing the offence was taken by surprise just at the time of trial. The nature of allegation itself made it clear to them right from the filing of the Ejahar to framing of charges about having their "common intention" in committing the alleged offences although the words "common intention" were not incorporated therein. There is no scope for taking an objection at this stage and challenge the impugned conviction and sentence on that score without showing that they have been prejudiced as they were not given due opportunity to defend their case. In that view of the matter, the submissions made by the learned Counsel for the Appellants are not acceptable and the same are, therefore, rejected. As regards the evidence led by the prosecution, sufficient discussions have been made earlier and it has been found that the prosecution has been able to establish/prove that at least some people entered into the premises of the informant's house on the date and at the time mentioned in the FIR. But the standard of proof, as regards the identification of the accused persons, as found from the evidence of the prosecution witnesses, are not of the standard, required in the trial of the criminal case, which is nothing less than beyond reasonable doubt. The prosecution having not been able to establish the identification of the accused persons, it cannot be said that it has been able to prove the charges against the present accused Appellants beyond reasonable doubt and as such, the impugned judgment and order dated 05.08.2002 passed by the learned Sessions Judge, Dhubri, in Sessions Case No. 78/2000, is liable to be quashed and set aside. The same is accordingly quashed and set aside. The accused Appellants are entitled to get the benefit of doubt and the resultant acquittal. The accused Appellants are accordingly acquitted on benefit of doubt The appeals stand allowed. 10. It is stated at the Bar that the accused Appellants are on bail. Their bail bonds shall stand discharged. The period of detention during investigation, trial and after conviction, if any, shall be set off from the period of imprisonment ordered in the sentence. The accused Appellants are accordingly acquitted on benefit of doubt The appeals stand allowed. 10. It is stated at the Bar that the accused Appellants are on bail. Their bail bonds shall stand discharged. The period of detention during investigation, trial and after conviction, if any, shall be set off from the period of imprisonment ordered in the sentence. 11. Send down the LCRs to the Court below forthwith. Appeal allowed