Upadhyay.J (CAV):- This appeal is directed against the Judgment dated 31.07.2006 passed by the learned Additional Sessions Judge, Lakhimpur, North Lakhimpur in Sesssions Case No. 47(NL)/2004, whereby all together 12 accused-appellants were convicted under Section 323 read with Section 149 IPC and were sentenced to undergo R.I. for one year and to pay a fine of Rs.500/- each, in default of payment of fine to undergo R.I. for another three months. Further, the appellant, Ajgor Ali, was found guilty for committing offence punishable under Sections 109 read with section 302 IPC and sentenced him to undergo R.I. for life and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo R.I. for further six months and the accused-appellant, Foyaz Ali, was convicted under Section 302 IPC and sentenced to him to undergo R.I. for life and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo R.I. for another six months. 2. The prosecution case, in short, is that on 15.07.2001 Md. Amsor Ali (P.W.3) lodged an Ejahar at Silonibari police outpost disclosing therein that on the same date at around 06-30 O'clock in the morning when Abdul Malek was ploughing in his paddy land, all 12 accused appellants named in the Ejahar forming an unlawful assembly armed with dao, lathi, spear etc. came unitedly and assaulted Abdul Malek and on seeing the occurrence when complainant's son Saharuddin and Jaharuddin, who were also ploughing in a nearby plot, intervened and restrained the accused- appellants, they started assaulting complainant's son Saharuddin and Jaharuddin. At the same time witnessing the accused appellants assaulting complainant's son Saharuddin and Jaharuddin, Amir Ali, Eunus Ali and Abed Ali interfered with the accused appellants, they were assaulted and inflicted with serious injuries on their person. In the said incident Saharuddin was killed at the place of occurrence. 3. On the basis of the aforesaid Ejahar, the officer-in- charge of Silonibari police outpost made an entry in the General Diary and forwarded it to the officer-in-charge of North Lakhimpur Police Station for regiwtering a case. Accordingly, the officer-in- charge of North Lakhimpur Police Station on the basis of the said Ejahar registered North Lakhimpur Police Station case No.597/2001 under Sections 147/148/149/325/326/302 IPC. Sri Premadhar Bora, P.W.11, was entrusted with the investigation of the case. Accordingly, the officer-in- charge of North Lakhimpur Police Station on the basis of the said Ejahar registered North Lakhimpur Police Station case No.597/2001 under Sections 147/148/149/325/326/302 IPC. Sri Premadhar Bora, P.W.11, was entrusted with the investigation of the case. Prior to filing of the written Ejahar, one Abdul Malek had orally informed the in-charge of the outpost at about 07-30 am about the incident and accordingly, G.D. Entry No.203 dated 15.07.2001 was made by the in-charge of the police outpost before proceeding to the place of occurrence for investigation. 4. During the course of investigation, the Investigating Officer examined the witnesses under Section 161 of Cr.P.C. During the inspection of the place of occurrence, the Investigating Officer found a handleless dao lying at the place of occurrence and accordingly, seized it in presence of P.W.3, Md. Amsar Ali. The Investigating Officer also held inquest over the dead body and sent the dead body for post mortem examination. On conclusion of investigation, the Investigating Officer submitted charge-sheet against all the accused-appellants named above. 5. Since the offence alleged against the accused- appellants was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Lakhimpur, North Lakhimpur on receipt of the charge sheet against the accused-appellants committed the case to the court of learned Sessions Judge for trial. The learned Additional Sessions Judge, on appearance of the accused-appellants and finding sufficient materials, framed charge under Sections 148/323/302 read with Section 149 IPC and on read over and explained the charge to all the accused-appellants to which they pleaded not guilty and claimed to be tried. 6. The prosecution in all examined 11 witnesses including the doctor and the Investigating Officer to establish the charge against the accused-appellants. On conclusion of recording of the statement of the prosecution witnesses, statement of the accused- appellants were recorded under Section 313 of Cr.P.C. The defence plea of the accused-appellants was that of total denial. In their defence statement accused Ajgar Ali stated that the complainant and Abdul Malek forcibly took possession of a plot of land belonging to Ajgar Ali and his family members and later on, the said plot of land was sold out for which relation between Ansor and Malek got strained. Over the possession of the plot of land near the house of Ajgar Ali the quarrel had taken place between Amsor and Malek. Over the possession of the plot of land near the house of Ajgar Ali the quarrel had taken place between Amsor and Malek. Accused-appellant Ajgar Ali stated that he heard that a 'marpit' was taking place between Amsor and Malek in which Saharuddin had received injury and succumbed to the injuries sustained by him. Thereafter at the conclusion of the trial the accused-appellants had been convicted and sentenced as aforesaid, giving rise to this appeal. 7. We have heard arguments advanced by Mr. J. Mullah, learned counsel for the appellants as well as Mr. Z. Kamar, learned Public Prosecutor, Assam for the respondent-State. 8. In order to appreciate the arguments advanced by the learned counsel for the appellants as well as the respondent-State, it would be necessary to notice at this stage the core of the evidence adduced by the prosecution. There is no dispute of the fact that the death of Saharuddin is a culpable homicide. P.W.1, Rahila Khatoon, has stated in her deposition that deceased Saharuddin was assaulted in the field by giving dao blow and he died at the place of occurrence itself. P.W.5, Jaharuddin, P.W.7, Amir Ali, P.W.8, Akikul @ Arikul and P.W.3, Amsor Ali stated that Saharuddin received fatal injuries on his person, as a result of which he died on the spot. The evidence of P.W.9, Dr. Prodip Kumar Medak, who conducted the autopsy on the dead body of the deceased, reveals as follows: - "One clean incised wound extending from right ear to the right clevicle measuring 12" x 3" x 3" Great veasels and muscles of right neck detached, Clotted blood present over the wound. Right ear completely detached at the root." In the opinion of the doctor, the injury was ante mortem and deceased died of shock and haemorrhage due to injury sustained. In his cross-examination, P.W.9 stated that though he was not mentioned whether the injury was caused by sharp weapon or not, but he confirmed that the injury was caused by sharp weapon like dao, sword etc. 9. From the medical evidence and the evidence of the witnesses it is apparent that the deceased died instantaneously at the place of occurrence after the incident. 9. From the medical evidence and the evidence of the witnesses it is apparent that the deceased died instantaneously at the place of occurrence after the incident. From the nature of injury sustained by the deceased, it appears that the assailants selected the vital parts of the body of the deceased and gave dao blow with sufficient force which detached the great vessels and muscles of the right neck and right ear at the root, which caused the death of the deceased. In the circumstances, it can be inferred with all certainty that the death of the deceased was culpable homicide amounting to murder. 10. In the said incident P.W.2, Abed Ali, P.W.5, Jaharuddin, P.W.6, Abdul Malek and P.W.7, Amir Ali had also sustained injuries on their person. Among them, Abed Ali, Abdul Malek were examined by a doctor and the reports were also proved by P.W.10, Dr. Tulen Pegu. According to P.W.10, Dr. Tulen Pegu, he examined Md. Abdul Malek on 15.07.2001 and found pain and tenderness over lumbo sacral region. The injury was fresh, simple and caused by blunt object. On the same day he examined Md. Abed Ali (P.W.2) and found multiple wounds over right temporal region measuring2" x 1/2" x 1/2" with pain and tenderness over left palm and both knees. All the injuries were fresh, simple and caused by blunt objects. 11. P.W.2, Md. Abed Ali, who is a co-villagers, stated in his evidence that when he arrived at the place of occurrence, accused- appellant Basiruddin struck him with a lathi on the head and right leg. It is also seen from medical examination report (Ext.5(c)), exhibited by doctor, that lacerated wound over the right temporal region of this witness. P.W.2 has also stated that when Abdul Malek was ploughing in the field Ajgar and his companions went there and started assaulting Malek. On being assaulted, Malek left for his residence. According to him, the persons, who accompanied Ajgar on that day, were Manjur Ali, Basiruddin, Fayez Ali, Taleb Ali, Abdul Mazid, Yusuf Ali, Abdul Aziz, Mohammad Ali, Abdul Hussain and Mamtaz. From the evidence of this witness it is apparent that 11 accused persons were present at the time of incident. In his cross-examination, however, P.W.2 stated that he could not say as to who assaulted whom except confirming that he was assaulted by Basiruddin. 12. From the evidence of this witness it is apparent that 11 accused persons were present at the time of incident. In his cross-examination, however, P.W.2 stated that he could not say as to who assaulted whom except confirming that he was assaulted by Basiruddin. 12. P.W.6, Abdul Malek, deposed that when he was ploughing in the field the accused persons rushed at him and assaulted him from behind on his back. He then ran way towards his home. Doctor, who examined the P.W.6, found pain and tenderness over the lumbar region on his person. 13. P.W.5, Jaharuddin, P.W.7, Amir Ali were also injured in the said incident. P.W.5 stated in his deposition that on the date of occurrence they were ploughing in their field at Pubali Pathar when a commotion took place in the land of Malek. He turned back and saw Malek running and screamed for help. According to him, accused Manjur Ali, Basiruddin, Fayez Ali, Taleb Ali, Abdul Mazid, Yusuf Ali, Abdul Aziz, Mohammad Ali, Abdul Hussain, Sahabuddin and Mamtaz had gone to the plot of land belonging to Malek armed with dao, spear etc. When he went near the place, accused Abdul Hussain, Sahabuddin, Isab Ali, Basir and Taleb assaulted him. According to him, accused Aziz threw a spear directing Saharuddin but it did not hit him. Immediately thereafter accused Ajgar Ali inflicted a dao blow to Saharuddin from behind and Fayez Ali gave him another dao blow on the right side from his front and immediately thereafter Md. Nazir attacked him with a spear. On hearing hue and cry which followed after the incident he came near the place of occurrence when he was assaulted too. P.W.5 stated that he was assaulted by Abdul Hussain, Isab Ali, Basiruddin and Taleb Ali. Accused Sahabuddin had inflicted dao blows on his head, as a result of which he sustained cut injury on the middle of his head. P.W.5 also stated that Taleb Ali also inflicted dao blow on his left hand. Thereafter P.W.5 fell unconscious in the field. He was then taken to civil hospital for treatment of the injuries sustained by him. P.W.5 was hospitalized for 11 days for his treatment. In his cross-examination he was suggested that he was not mentioned the names of all the accused persons, who were in the field of Malek being armed with dao, spear etc. He was then taken to civil hospital for treatment of the injuries sustained by him. P.W.5 was hospitalized for 11 days for his treatment. In his cross-examination he was suggested that he was not mentioned the names of all the accused persons, who were in the field of Malek being armed with dao, spear etc. Defence confirmed this statement while examining the Investigating Officer. P.W.5 also denied the suggestion that he had not stated before the police that Sahabuddin and Basir assaulted him. He also denied the suggestion that he had not stated before the police that Mamtaz and Isab assaulted him with the handle of spear. However, P.W.1, Rahila Khatoon, who was eyewitness of the occurrence had categorically stated that Sahabuddin, Yusuf, Mamtaz Ali and Abdul Hussain assaulted Amiruddin and Jaharuddin. 14. P.W.7, Amir Ali, has stated that on the date of occurrence, when he was working in the field Jaharuddin was ploughing. Deceased Saharuddin was coming to the field with a spade when the uproar took place in the field of Malek. Malek ran away. Accused persons were going towards the land of Malek. When Saharuddin was attacked after being encircled he approached to intervene and save Saharuddin. According to him there were Ajgar Ali, Manju Ali, Abdul masid, Mamood Ali @ Mahammad, Fayaz Ali, Mamtaz Ali, Abdul Hussain, Sahabuddin, Isab Ali, Ajiz, Taleb Ali and Basiruddin. When he intervened he was assaulted by Sahabuddin, Abdul Hussain, Basiruddin and he received injury. He was assaulted by dao and spear. 15. In his cross-examination he has denied that he had not said police that Basiruddin assaulted him. From the evidence of the I.O. it appears that P.W.7 has not stated the name of Basiruddin as his assailant. 16. No injury report of these two witnesses, namely, P.W.5 Jaharuddin and P.W.7 Amir Ali is found in the record. Prosecution has not produced the injury reports of these two witnesses. 7.Be that as it may, it is seen from the evidence of the injured witnesses that P.W.5 and P.W.7 have categorically mentioned the names of all the twelve accused persons who came unitedly to the field. From the evidence of P.W.2, 5 & 7 it appears that Abdul Hussain, Sahabuddin and Basiruddin are implicated in the incident of assault on P.W.2 Abed Ali, P.W.5 Jaharuddin and P.W.7 Amir Ali. They have also stated that the accused persons rushed at Abdul Malek. From the evidence of P.W.2, 5 & 7 it appears that Abdul Hussain, Sahabuddin and Basiruddin are implicated in the incident of assault on P.W.2 Abed Ali, P.W.5 Jaharuddin and P.W.7 Amir Ali. They have also stated that the accused persons rushed at Abdul Malek. P.W.6 Abdul Malek has also stated that accused persons rushed at him when he was ploughing and he was given a blow on his waist. P.W.1, Rahila Khatoon has stated that Saharuddin, Jaharuddin and Amiruddin were assaulted by 11 accused persons except Taleb. 18. P.W.8, Akikul @ Atikul has stated that when the commotion in the field of Malek took place he went to the field and he found Jaharuddin and Amir lying with injury in the field. He had also seen all the accused persons in the field. 19.On proper scrutiny of the evidence of injured witnesses, it is found that although all the accused persons had not caused the injury, they were present at the time of the offence. The injuries found on P.W.2 Abed Ali and P.W.6 malek are simple in nature and caused by blunt object. The injury reports of P.W.5 Jaharuddin and P.W.7 Amir Ali are not found although they claimed to have received cut injuries from sharp weapon. Taking the medical evidence into consideration and the nature of the weapon used on the injured person, it can be held that the common object of the unlawful assembly was to cause hurt. Although the witnesses have stated that the accused persons were armed with dao, lathi and spear there is nothing on record to show that any of the injured received any cut or piercing or grievous injuries caused by dangerous weapon. None of the injured witnesses received any grievous injuries. At least the prosecution could not establish it through cogent evidence. Accused persons cannot be said to have any common object to cause grievous hurt. Although in the evidence of the prosecution witnesses there are few minor omission and contradictions the entire evidence of these witnesses cannot be thrown away. 20. The evidence found in the record shows that the accused persons were members of an unlawful assembly with common object of committing hurt to the injured persons and accordingly they in prosecution of the common object of the assembly voluntarily caused hurt to the injured persons. 20. The evidence found in the record shows that the accused persons were members of an unlawful assembly with common object of committing hurt to the injured persons and accordingly they in prosecution of the common object of the assembly voluntarily caused hurt to the injured persons. They are, therefore, found guilty of committing an offence punishable under section 323 read with Section 149 IPC. So, they are convicted under section 323 read with Section 149 IPC. 21. According to P.W.1 Rahila Khatoon seven accused persons caught hold of Saharuddin and accused Ajgar dealt do blows on him. Rayez Ali also dealt dao blow on Saharuddin. Accused Mohammad and Abdul Mazid pierced him with spear when he fell down. This witness has not named the seven accused persons who apprehended deceased Saharuddin. P.W.2 Abed Ali named 11 accused persons who went to the field including accused Ajgor. P.W.3 Jaharuddin is an injured eyewitness and besides stating about his own injury he was stated that on the date of occurrences all the twelve accused persons armed with dao and spear went towards the field of Malek. Deceased Saharuddin went towards Malek telling him to stop. Malek came running. Ajgar and the others went to the Malek's field. Saharuddin went near Malek but Malek ran away. On seeing Malek running away, accused Ajgar directed the others to apprehend Saharuddin and not spare him and the other accused persons encircled Saharuddin. According to the evidence of P.W.5, accused Ajizur at first threw spear at Saharuddin but it missed the target. Then Ajgar gave dao blow from behind and Foyez Ali also gave dao blow from the right front side. Immeditely Mohammad and Mazid thrusted Saharuddin with spear. 22. In cross-examination he has denied that he had not stated before police that accused directed the other accused persons to apprehend Saharuddin and not to spare him. The I.O. in his cross-examination has confirmed that this witness had not stated these facts before him. 23. P.W.7 Amir Ali is also examined as an eyewitness with regard to the murder of Saharuddin. According to P.W.7 on the date of occurrence, when Saharuddin was proceeding to the field in the morning there was a commotion in the field of Malek and Malek went away. Accused persons were proceeding towards the field of Malek and started raising hue and cry. According to P.W.7 on the date of occurrence, when Saharuddin was proceeding to the field in the morning there was a commotion in the field of Malek and Malek went away. Accused persons were proceeding towards the field of Malek and started raising hue and cry. As soon as Saharuddin had reached the field, accused persons also arrived at the field and encircled Saharuddin and started assaulting him with dao, lathi and spear. He then moved towards Saharuddin to save him. He named all the twelve accused persons who were present at that time. According to him, Saharuddin was assaulted both from front and back side. Ajgar slashed him from behind and Foyaz from the front side. Mamud and Mazid assaulted with spear. When he intervened he was also assaulted. 24. Substance of the evidence of P.W.8 Akikul is that on the date of incident in the morning when he went to wash his f ace in the pond he saw a marpit in the field of Malek. He saw the accused persons in the field whom he knows well. According to him, Ajgar gave dao blow on Saharuddin from behind. Saharuddin was proceeding towards his brother Jaharuddin for ploughing. When the commotion went high he went there with a piece of bamboo, but on his arrival accused persons went away. 25. P.W.1, Rahila Khatoon, in her evidence stated that accused appellant Ajgor Ali hack Saharuddin with a dao and Foyez Ali gave a dao blow. P.W.3, -stated that Saharuddin sustained severe injury in his back and dao injury on his head. According to P.W.5, Jaharuddin, accused Ajgar Ali inflicted a dao blow to Saharuddin from behind and Fayez Ali gave him another dao blow on the right side from his front side. P.W.7, Amir Ali, corroborated the testimony of P.W.5. According to P.W.8, Akikul @ Atikul, accused appellant Ajgar Ali hacked a Dao blow from back side. But interestingly doctor, who conducted post mortem examination on the dead body of Saharuddin found only one clean incised wound extending from right ear to the right clevicle measuring 12" x 3" x 3" on the person of the deceased. In his cross-examination P.W.9 clarified that the single blow on the person of the deceased must have been given from the front side by the assailants. In his cross-examination P.W.9 clarified that the single blow on the person of the deceased must have been given from the front side by the assailants. P.W.9 stated that he did not find any other injury except the said injury on the dead body of the deceased. 26. On appreciation of evidence exaggeration and embellishment testimony of witnesses cannot be ruled out. From the evidence of the witnesses it appears that accused Ajgar Ali directed the other accused to intercept the deceased Saharuddin and incited them not to spare him. From the account of the eyewitnesses it clearly transpires that it was the accused Foyaz Ali, who dealt Dao blow on the person of the deceased. Doctor also found one single injury extending from right ear to the right clevicle measuring 12" x 3" x 3" on the person of the deceased. Therefore, from the evidence of the medical witnesses and the evidence of the eyewitnesses account it clearly transpires that the deceased sustained the injury due to assault caused by the accused Foyaz, who dealt him with a dao blow from the front side. However, the evidence of the witnesses that accused Foyaz assaulting the deceased by dao is not trustworthy. The learned Additional Sessions Judge has categorically held that there is no evidence to show that any overt act was done by each of the accused persons for causing the death of Saharuddin. Therefore, there is no scope for this court to analyse and decide the complicity of the accused persons for commission of offence of causing death of Saharuddin. 27. Learned counsel for the accused appellants submitted that on the date of occurrence a quarrel took place between the P.W.6, Abdul Malek and P.W.3 Amsor Ali and his man on the other side in which Saharuddin sustained injury and died on the spot. Drawing the attention of this court to a decision of the Hon'ble Supreme Court in the case of Pohlu V. State of Haryana, reported in (2005) 10 SCC 196 , the learned counsel for the appellants submitted that certain change of target of assault by the accused appellants is very relevant factor. Therefore, the concoction in the case cannot be ruled out. The relevant extract of the decision is quoted herein below: - "9. Therefore, the concoction in the case cannot be ruled out. The relevant extract of the decision is quoted herein below: - "9. So far as motive is concerned, it is settled law that failure to prove motive is not fatal to the case of the prosecution if there is reliable evidence to prove the case of the prosecution. However, there is substance in the submission urged on behalf of the appellants that there was really no reason for the appellants to assault Sukhdei, and for that purpose to go to her house, even if they bore a grudge against Hukam Chand, the deceased. It is not understood as to why the appellants went to the house of Sukhdei and assaulted her when it was really Hukam Chand who was their target and who was living separately from Sukhdei. Moreover, the election took place on 19-12-1994 and thereafter for about 18 days nothing untoward happened. There is no reason why suddenly the appellants decided to assault Sukhdei. It was therefore, contended that the real genesis of the occurrence has not been disclosed by the prosecution, and that probabilises the defence case that in a different occurrence, and in a different manner, the informant and the deceased were assaulted." However, on careful analysis of the facts and circumstances of the case, it spears that the story projected by the appellants is not at all relevant and the decision cited by the learned counsel for the appellants cannot be placed into service in the instant case. 28. Though D.W.1, accused Ajgar Ali, stated in his evidence that the land in which Malek was ploughing there was a proceeding under Section 145 of Cr.P.C. in respect of the land in question but the said proceeding was later on withdrawn by the accused. The evidences laid by D.W.1 do not reflect that there was any land dispute between the P.W.6, Abdul Malek and the complainant. D.W.1 in his evidence tried to project that the complainant in order to take the land of the accused and his family filed this case falsely. However, the defence could not establish any existing land dispute between the parties. Very surprisingly the defence tried to project the story that the deceased Saharuddin died as a result of the injuries caused by P.W.6 and others over ploughing a plot of disputed land, but the defence could not establish such a plea. However, the defence could not establish any existing land dispute between the parties. Very surprisingly the defence tried to project the story that the deceased Saharuddin died as a result of the injuries caused by P.W.6 and others over ploughing a plot of disputed land, but the defence could not establish such a plea. 29. Learned counsel for the appellants submitted that the accused Ajgar Ali has been found guilty for committing an offence under Section 109 read with Section 302 IPC without framing of proper charges under the aforesaid Section of law and without affording any opportunity to him to take appropriate defence against the aforesaid charges. In support of his contention, learned counsel for the appellants has relied on the decision of the Hon'ble Supreme Court reported in AIR 1970 SC 436 (Madan Raj Bhandari V. State of Rajasthan), wherein it has been held as follows: - "14. The learned Counsel for the appellant challenged the conviction of the appellant on yet another ground. As mentioned earlier he was charged and tried for the offence of abetting Mst Radha to cause abortion of the child in the womb of the deceased but curiously enough he was convicted for abetting the deceased to cause miscarriage. Abetment as defined in Section 107 of the IPC, can be by instigation, conspiracy or intentional aid. If the abetment was that of Mst Radha, it could have been only by instigation or conspiracy but if it was an abetment of the deceased, it could either be by instigation or by conspiracy or by intentional aid. Throughout the trial the accused was asked to defend himself against the charge on which he was tried. At no stage he was notified that he would be tried for the offence of having abetted the deceased to cause miscarriage. It is now well settled that the absence of charge or an error or omission in it is not fatal to a trial unless prejudice is caused - see Willie (William) Slaney v. State of Madhya Pradesh2. Therefore the essential question is whether there is any reasonable likelihood of the accused having been prejudiced in view of the charge framed against him. From what has been stated above one can reasonably come to the conclusion that the accused was likely to have been prejudiced by the charge on the basis of which he was tried. Therefore the essential question is whether there is any reasonable likelihood of the accused having been prejudiced in view of the charge framed against him. From what has been stated above one can reasonably come to the conclusion that the accused was likely to have been prejudiced by the charge on the basis of which he was tried. From the cross-examination of the prosecution witnesses, it is seen that the principal attempt made on behalf of the appellant was to show that he had nothing to do with the co-accused, Mst Radha. He could not have been aware of the fact that he would be required to show that he did not in any manner abet the deceased to cause miscarriage. The facts of this case come within the rule laid down by this Court in Faguna Kant Nath v. State of Assam3. The case of Gallu Sah v. State of Bihar4 relied by the High Court is distinguishable. Therein Gallu Sah was a member of an unlawful assembly. He was said to have abetted Budi to set fire to a house. One of the members of the unlawful assembly had set fire to the house in question though it was not proved that Budi had set fire to the house. Under those circumstances this Court held that the offence with which Gallu Sah was charged was made out. As observed by Calcutta High Court in Umadasi Dasi v. Emperor5 that as a general rule, a charge of abetment fails when the substantive offence is not established against the principal but there may be exceptions. Gallu case was one such exception." 30. As rightly contended by the learned counsel for the appellants that through out the trial the accused appellant Ajgar Ali was asked to defend himself against the charge on which he was tried and at no stage he was notified that he would be tried for the offence of having abetted the deceased to cause death of Saharuddin. Apparently, charge under Section 302 read with Section 109 IPC vest on different substantive offence. Therefore, one can reasonably come to the conclusion that the accused was likely to have been prejudiced for convicting him without framing of formal charge under Section 109 IPC. Apparently, charge under Section 302 read with Section 109 IPC vest on different substantive offence. Therefore, one can reasonably come to the conclusion that the accused was likely to have been prejudiced for convicting him without framing of formal charge under Section 109 IPC. Though Section 464 Cr.P.C. provides that the accused cannot be acquitted for any omission to frame charge unless the court is of the opinion a failure of justice has in fact been occasioned thereby. However, in the facts and circumstances discussed above, without framing of appropriate charge under Section 109 IPC, it would be improper to convict the accused person for commission of offence under Section 109 read with Section 302 IPC without a formal charge being framed would occasion a failure of justice since the accused did not get opportunity to defend himself for the substantive offence alleged against him. Furthermore, the evidences of the witnesses do not support the story of accused Ajgar Ali inflicting blow on the person of the deceased Saharuddin from behind. 31. Evidence laid by the witnesses clearly depict that all the accused appellants assembled in prosecution of their common object of committing an offence under Section 323 read with Section 149 IPC along with Ajgar Ali and Foyaz. Therefore, the learned Additional Sessions Judge rightly convicted the accused appellants for commission of offence under Section 323 read with Section 149 IPC. 32. Learned counsel for the appellants strenuously submitted that the evidence of the witnesses are full of contradictions and cannot be relied upon to convict them for the offence alleged against the accused appellants. However, accepting the full of contradiction and embellishment which is obvious and acceptable in the testimony of the witnesses are but natural. The occurrence took place in broad day light, therefore, the testimony of the eyewitnesses with minor contradictions cannot be rejected to acquit the accused persons for the commission of offence alleged against them. Learned counsel for the appellants further submitted that the FIR, Exbt.-1, was recorded much after the progress of investigation and, as such, it is hit by Section 161 and 162 of Cr.P.C.. In support of his argument, he has relied upon the decisions in the cases of State of Arunachal Pradesh V. Puniti Ramulu, reported in 1993 Cri.L.J.3684 and Masaddar Ali and another V. The State of Assam, reported in (1990) 2 GLR 11. In support of his argument, he has relied upon the decisions in the cases of State of Arunachal Pradesh V. Puniti Ramulu, reported in 1993 Cri.L.J.3684 and Masaddar Ali and another V. The State of Assam, reported in (1990) 2 GLR 11. As rightly pointed out by the learned counsel for the appellants, it is apparent from the evidence of P.W.3 that the investigation was started prior to the receipt of the written Ejahar. The FIR was lodged at about 09-00 pm of the date of occurrence. From the evidence of I.O. it is clear that immediately after the occurrence on the basis of oral information received at 07-20 am, a G.D. Entry was made in the General Diary of the Outpost vide G.D.Entry No. 203. In connection with the aforesaid G.D.Entry primarily investigation of the case was carried out including holding of inquest and the written Ejahar, Exbt.-1, was received at 09-00 pm in the evening. Therefore, Exbt.1 cannot be treated as the FIR. However, the G.D.Entry No.203 dated 15.07.2001 which was made by the I.O. at about 07-20 am in the morning immediately after the occurrence has to be treated as FIR in the instant case. Learned counsel for the appellants has pointed out that since the G.D.Entry No.203 dated 15.07.2001 was not exhibited by the prosecution, the investigtion made by the prosecution is improper and not sustainable in law. However, on careful peruisal of the materials on record even if the FIR has not been proved it cannot be a ground for acquittal of the accused unless it has occasioned the failure of justice. 33. Having regard to the facts and circumstances of the case, the irregularities projected by the learned counsel for the appellants did not prejudice the accused appellants in taking appropriate defence in the case and in no way occasioned the failure of justice. Therefore, we do not consider it to be appropriate to disturb the findings only because of the reason that the G.D.Entry No. 203 dated 15.07.2001 was not proved by the prosecution. In this regard the decisions of this Court in 1998 - GLR 135 and 1991 Cri.L.J. 2211, K. V. Subathan V. State of Kerala clearly depict that even if the FIR is hit by Section 162 Cr.P.C. it would not cause any hindrance to advance the cause of justice. 34. In this regard the decisions of this Court in 1998 - GLR 135 and 1991 Cri.L.J. 2211, K. V. Subathan V. State of Kerala clearly depict that even if the FIR is hit by Section 162 Cr.P.C. it would not cause any hindrance to advance the cause of justice. 34. In view of the above discussion, we are of the opinion that the prosecution side has failed to establish the charge under Section 109 read with Section 302 IPC against the accused Ajgar Ali and, as such, he deserves to be acquitted. Accordingly, accused appellant Ajgar Ali is acquitted from the aforesaid charge and set him at liberty. However, we do not find any sufficient ground to interfere with the findings of the learned Additional Sessions Judge in respect of the other accused appellants and the conviction and sentence recorded by him. 35. Accordingly, we partially allow the appeal in respect of the accused appellant Ajgar Ali and dismiss the appeal filed on behalf of the other accused appellants above named. The accused appellants, who are on bail, are directed to surrender before the learned Additional Sessions Judge, North Lakhimpur to suffer the sentence of imprisonment passed by the learned Additional Sessions Judge, North Lakhimpur in Sessions Case No. 47(NL)/2004. Send down the lower court records immediately. State of A.P. v. Punati Ramulu, 1993 Cri.L.J. 3684 5. According to the evidence of PW 22, Circle Inspector, he had received information of the incident from police constable No. 1278, who was on 'bandobast' duty. On receiving the information of the occurrence, PW 22 left for the village of occurrence and started the investigation in the case. Before proceeding to the village to take up the investigation, it is conceded by PW 2 in his evidence, that he made no entry in the daily diary or record in the general diary about the information that had been given to him by constable 1278, who was the first person to give information to him on the basis of which he had proceeded to the spot and taken up the investigation in hand. It was only when PW 1 returned from the police station along with the written complaint to the village that the same was registered by the Circle Inspector, PW 22, during the investigation of the case at about 12.30 noon, as the FIR, Ex. P-1. In our opinion, the complaint, Ex. It was only when PW 1 returned from the police station along with the written complaint to the village that the same was registered by the Circle Inspector, PW 22, during the investigation of the case at about 12.30 noon, as the FIR, Ex. P-1. In our opinion, the complaint, Ex. P-1, could not be treated as the FIR in the case as it certainly would be a statement made during the investigation of a case and hit by Section 162 CrPC. As a matter of fact the High Court recorded a categorical finding to the effect that Ex. P-1 had not been prepared at Narasaraopet and that it had "been brought into existence at Pamaidipadu itself, after due deliberation". Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues. Though we agree that mere relationship of the witnesses PW 3 and PW 4, the children of the deceased or of PW 1 and PW 2 who are also related to the deceased, by itself is not enough to discard their testimony and that the relationship or the partisan nature of the evidence only puts the Court on its guard to scrutinise the evidence more carefully, we find that in this case when the bona fides of the investigation has been successfully assailed, it would not be safe to rely upon the testimony of these witnesses either in the absence of strong corroborative evidence of a clinching nature, which is found wanting in this case. Trustees of Gordhandas Govindram Trust v. CIT AIR 1973 SC 623 13. Now, let us turn to the other question viz. whether the trust in question can be considered as a trust created for public purposes of a charitable or religious nature. As seen earlier, the trust in question was created primarily for the benefit of members of the family of Gordhandas Govind-ram Seksaria. Now, let us turn to the other question viz. whether the trust in question can be considered as a trust created for public purposes of a charitable or religious nature. As seen earlier, the trust in question was created primarily for the benefit of members of the family of Gordhandas Govind-ram Seksaria. That is clear from the title given to the Trust as well as from the various provisions to which we have made reference earlier. Therefore, it is not possible to hold that the Trust in question is a Trust for any public purpose. It is clearly a private Trust. The character of the Trust in question came to be considered by the Bombay High Court in Trustees of Gordhandas Govindram Family Charity Trust v. CIT6 under Section 4(3)(i) of the Indian Income Tax Act. After examining the various provisions, the High Court opined that it was not a trust for charitable purpose within the meaning of Indian Income Tax Act, 1922. It was held that the primary purpose of the settlor was to benefit the members of the family and remotely and indirectly to benefit the general public. We agree with that conclusion. The decision in the above case came up for consideration by this Court in Trustees of the Charity Fund v. CIT7. This Court did not differ from the view taken by the High Court but distinguished the same. Madan Raj Bhandari v. State of Rajasthan AIR 1970 SC 436 14. The learned Counsel for the appellant challenged the conviction of the appellant on yet another ground. As mentioned earlier he was charged and tried for the offence of abetting Mst Radha to cause abortion of the child in the womb of the deceased but curiously enough he was convicted for abetting the deceased to cause miscarriage. Abetment as defined in Section 107 of the IPC, can be by instigation, conspiracy or intentional aid. If the abetment was that of Mst Radha, it could have been only by instigation or conspiracy but if it was an abetment of the deceased, it could either be by instigation or by conspiracy or by intentional aid. Throughout the trial the accused was asked to defend himself against the charge on which he was tried. At no stage he was notified that he would be tried for the offence of having abetted the deceased to cause miscarriage. Throughout the trial the accused was asked to defend himself against the charge on which he was tried. At no stage he was notified that he would be tried for the offence of having abetted the deceased to cause miscarriage. It is now well settled that the absence of charge or an error or omission in it is not fatal to a trial unless prejudice is caused - see Willie (William) Slaney v. State of Madhya Pradesh2. Therefore the essential question is whether there is any reasonable likelihood of the accused having been prejudiced in view of the charge framed against him. From what has been stated above one can reasonably come to the conclusion that the accused was likely to have been prejudiced by the charge on the basis of which he was tried. From the cross-examination of the prosecution witnesses, it is seen that the principal attempt made on behalf of the appellant was to show that he had nothing to do with the co-accused, Mst Radha. He could not have been aware of the fact that he would be required to show that he did not in any manner abet the deceased to cause miscarriage. The facts of this case come within the rule laid down by this Court in Faguna Kant Nath v. State of Assam3. The case of Gallu Sah v. State of Bihar4 relied by the High Court is distinguishable. Therein Gallu Sah was a member of an unlawful assembly. He was said to have abetted Budi to set fire to a house. One of the members of the unlawful assembly had set fire to the house in question though it was not proved that Budi had set fire to the house. Under those circumstances this Court held that the offence with which Gallu Sah was charged was made out. As observed by Calcutta High Court in Umadasi Dasi v. Emperor5 that as a general rule, a charge of abetment fails when the substantive offence is not established against the principal but there may be exceptions. Gallu case was one such exception. Masaddar ali and another v. The State of assam (1990) 2 GLR 11 13. With these infirmities indicated above in the dying declaration (Ext. 2), we have doubt if it can be accepted as a reliable piece of evidence for sustaining a conviction for under charge. Gallu case was one such exception. Masaddar ali and another v. The State of assam (1990) 2 GLR 11 13. With these infirmities indicated above in the dying declaration (Ext. 2), we have doubt if it can be accepted as a reliable piece of evidence for sustaining a conviction for under charge. (A.I.R 1958 SC 22; A.I.R. 1972 SC 1796; A.I.R. 1976 SC 1975 and A.I.R. 1983 SC 554 are relied on point of dying declaration).