JUDGMENT : D.G.R. Patnaik, J. Heard the learned Counsel for the parties. 2. This Cr. Revision application has been filed with a prayer for directing the trial court to frame charge under Sections 302/34 of the I.P.C. against the Opposite Part No. 2 and to try the opposite party No. 2 accordingly. 3. Learned Counsel for the petitioner would explain that under Sections 307 and 302/34 of the Indian Penal Code, vide Sessions Trial No. 368 of 2002, arising out of Jamua P.S. Case No. 29 of 2002 corresponding to G.R. Case No. 255 of 2004, the trial was conducted against several accused persons including the Opposite Party No. 2 but clue to inadvertence, the charge under Sections 307 and 302/34 of the I.P.C. was omitted in respect of the Opposite Party No. 2 and consequently, while recording the judgment, the trial court could not convict the accused/Opposite Party No. 2 for the offences under Sections 302/34 of the I.P.C. Even though, the trial court has found that the death of the deceased was caused pursuant to the assault, conjointly made by the accused persons including the Opposite Party No. 2 in furtherance of their common intention to kill the deceased. Learned Counsel therefore prays that under the provisions of Section 464 of the Cr.P.C., the trial court be directed to try the case against the Opposite Party No. 2 by framing charge for the offences under Sections 302/34 of the I.P.C. against him. 4. Learned Counsel for the Opposite Party No. 2 objects to the very maintainability of this Revision application and submits that the charge against the accused persons at the trail, was framed around eight years ago and the judgment in the case was passed in July, 2009 and during this period, prior to the date of pronouncement of the judgment, the petitioner, being the informant of the case, did not bother to point out any need for modification or alteration in the charge and neither did the trial court find any such necessity during the pendency of the trial to alter the charge before passing the judgment. 5. I have heard the learned Counsel for the parties and I have also gone through the impugned judgment of the court below passed in the aforesaid Sessions Trial No. 368 of 2002. 6. 5. I have heard the learned Counsel for the parties and I have also gone through the impugned judgment of the court below passed in the aforesaid Sessions Trial No. 368 of 2002. 6. It appears that the case was instituted against as many as six accused persons including the Opposite Party No. 2 and on the basis of the chargesheet submitted by the Investigating Officer, cognizance against all the accused persons including the Opposite Party No. 2 by the court below was taken for the offences under Sections 341, 323, 324, 307 and 302/34 of the Indian Penal Code. It also appears that according to the prosecution's case, on the date and time of occurrence, while the members of the informant party were on their way, the accused persons accosted them armed with Lathis, sticks, swords and spears and started assaulting the members of the informant-party including the injured persons Bishun Ram, Guletan Ram and Tahal Ram. On hearing the alarms, the informant Ramdeo Ram came running and wanted to rescue the victims but he was assaulted with Lathi on his leg by the accused Talo Ram and Punit Ram (Opposite Party No. 2). They also assaulted Tahal Ram with Lathis. At that time, the co-accused, Pokhan Ram dealt a spear blow on the abdomen of Gultem Ram (deceased). Similar spear blow was also dealt by the co-accused Ghanshyam Ram on another member of the informant-party, namely, Bishun Ram, as a result of which, he also sustained injuries on his right thigh and left ankle. The prosecution's further case is that besides the informant, Ramdeo Ram, the other persons, namely, Ishwar Ram, Binod Ram and Bhuneshwar Ram had also arrived there and they were the eye-witnesses to the occurrence. The prosecution's further case is that besides the informant, Ramdeo Ram, the other persons, namely, Ishwar Ram, Binod Ram and Bhuneshwar Ram had also arrived there and they were the eye-witnesses to the occurrence. On the basis of the proposed evidences against the individual accused persons, the prosecution had proposed the framing of charge against the accused persons, namely, Narayan Ram, Niranjan Ram, Jiya Ram for the offences under Sections 341, 323, 324/34, 307, 302/34 of the I.P.C. Against the accused persons, namely, Ghanshyam Ram and Talo Ram, the prosecution had proposed framing of charge for the offences under Sections 341, 323, 324/34 307/34, 302/34 of the I.P.C. and against the accused Punit Ram (Opposite Party No. 2) the prosecution had proposed to frame charge under Sections 341, 323, 324/34 of the I.P.C. The proposed charges on being approved by the trial court, the accused persons stood charged accordingly. It also appears from the evidences of the witnesses, as discussed in the judgment of the court below, that in consonance with the charges against the individual accused persons, the witnesses have adduced evidence specifying the role played by each of the accused persons. The evidence of the witnesses, as observed by the trial court, in respect of the injury caused to the deceased, was specifically attributed to the accused Pokhan Ram. Specific evidence was similarly attributed to the co-accused Ghanshyam Ram for causing spear injury to the informant. As against the accused Punit Ram (Opposite Party No. 2), the specific evidence was that he had assaulted the informant with Lathi on the victim's leg. It further appears that after considering the evidences, including the oral and medical evidences, the trial court had come to its finding, on the point of common intention which has been recorded as follows: “It is evident on the record that almost all the accused persons, they had assembled and they have started assaulting the injured as stated above at a time. It is a clear case that accused persons had made a plan to make assault to injured and they were of the view that they had to assault the injured in furtherance of common intention. The trial court has further made the following observations: “The injuries which were inflicted by the accused persons on deceased also suggest that these injuries are sufficient to cause death of Guletan Ram. The trial court has further made the following observations: “The injuries which were inflicted by the accused persons on deceased also suggest that these injuries are sufficient to cause death of Guletan Ram. Keeping in the view accused persons had a common intention to kill Guletan Ram. Since one accused Punit Ram is not facing the trial for the charge punishable u/s 302 I.P.C. or 302/34 I.P.C. that's why, he could not be convicted for the charge punishable u/s 302/34 I.P.C. for the reason that non-framing of the charge u/s 302 I.P.C., he will be prejudiced, if he will be convicted. “...It is well-settled law that accused should be given notice to him for the accusation for which he is going to be tried. The offence u/s 302 of the I.P.C. is a capital offence. It was the primary duty that the prosecution should either alter the charge or take notice in this context. Since no charge is framed against him u/s 302 I.P.C. that's why it is not just and proper to convict him for the charge punishable u/s 302/34 of the I.P.C. and if he is convicted for the charge u/s 302/34 of the I.P.C., he will be prejudiced by non-framing of the charge for that benefit will be given in favour of the accused. 7. Apparently, on the point of common intention, the finding is that the intention commonly shared between the accused was to assault and cause injury to the members of the informant-party. Even if the trial court has proceeded further, on the basis of the fact that a spear-blow on the abdomen of the deceased was given by one of the accused persons, to draw the inference that the common accused intention of the accused persons was to kill the deceased, yet, the earlier observations based on the evidences of the witnesses do confirm that the accused Punit Ram (Opposite Party No. 2), was not the author of the spear injury, sustained by the deceased. 8. 8. The above facts, as appearing in the judgment of the court below have been recorded only for the purpose of assessing as to whether the omission to frame charge u/s 302/34 of the I.P.C. against the Opposite party No. 2, could be intentional or was an inadvertent omission and whether the non-framing of the charge for the aforesaid offence has resulted in failure of justice, as contemplated under the provisions of Section 464 of the Code of Criminal Procedure. 9. As appearing from the allegations in the prosecution's case, though it is alleged that the accused persons variously armed with Lathis and other weapons, had arrived at the place of occurrence and began to assault the informant, the specific allegations against the accused Punit Ram (Opposite Party No. 2), was that he had assaulted the informant with Lathi, causing injury on the informant's leg. No other role has been attributed to him of having participated in the alleged assault on the deceased. In the light of such allegations, it does not appear that the omission to frame charge against the accused Punit Ram (Opposite Party No. 2) for the offence under Sections 302/34 of the I.P.C. was an inadvertent mistake. Rather, the charge appears to have been framed on the basis of the allegations against the individual accused and the trial was conducted, accordingly, against the accused persons. As observed, even in the light of the evidences adduced by the Prosecution witnesses, neither the Prosecution nor the trial court had felt any need to alter the charge or to add the charge for the offence under Sections 302/34 of the I.P.C. against the accused Punit Ram (Opposite Party No. 2). From the facts and circumstances, I do not find that the omission of the charge for the offence under Sections 302/34 of the I.P.C. framed against the accused Punit Ram/Opposite Party No. 2, has resulted in failure of justice. Therefore, there is no sufficient ground to invoke the provisions of Section 464 of the Code of Criminal Procedure. 10. In the light of the above facts and circumstances, I do not find any merit in this application. Accordingly, this Cr. Rev. Application is dismissed. Revision dismissed.