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2011 DIGILAW 689 (GAU)

Titan Dey v. State of Tripura

2011-08-12

A.C.UPADHYAY, MADAN B.LOKUR

body2011
JUDGMENT A.C. Upadhyay, J. 1. The present appeals are filed against a common judgment and order passed by the learned Sessions Judge, South Tripura, Udaipur, in Case No.S.T.22(ST/S)2004, convicting all the accused-appellants above named and sentencing them- (i) to suffer rigorous imprisonment for ten years and also to pay a fine of Rs. 5,000/- by each of them and in default of payment of fine to undergo simple imprisonment for five months for the offence under Section 364read with Section 511 IPC, (ii) to suffer rigorous imprisonment for ten years and also to pay a fine of Rs.5,000/- by each of them and in default to payment of fine to suffer simple imprisonment for five months for commission of offence under Section 307 read with Section 34 IPC, (iii) to suffer rigorous imprisonment for life and also to pay a fine of Rs.5,000/- by each of them and in default of payment of fine to undergo simple imprisonment for five months for commission of offence under Section 302 read with Section 34 IPC, and (iv) to undergo rigorous imprisonment for six months for commission of offence under Section 27 of the Arms Act. All the sentences were directed to run consecutively. 2. Before us, four criminal appeals have been filed by each of the convict-appellants. Criminal Appeal No. 46 of 2008 has been filed by Sri Subhash Das, Criminal Appeal No. 80 of 2009 has been filed by Sri Uttam Basak, Criminal Appeal No. 57 of 2005 has been filed by Sri Titan Dey and Criminal Appeal No. 37 of 2008 has been filed by Sri Mannan Miah. 3. Since all these appeals arise out of the common judgment and order dated 12.05.2005, passed in Case No.S.T.22(ST/S)/2004, we have taken up the hearing together and proposed to dispose of by this common judgment. 4. The prosecution case, in short, is that at about 10.30 p.m. at night on 01.06.2003, the first informant, Apurba Basak, P W. 1 after returning home from the market, was enjoying cinema in a C.D player. At that time he heard a sound of knocking at the door by somebody. When P.W.1 enquired, as to who was knocking the door, Titan Dey replied from the outside the door. Titan was also known by another name, i.e., Chhutu. When PW. At that time he heard a sound of knocking at the door by somebody. When P.W.1 enquired, as to who was knocking the door, Titan Dey replied from the outside the door. Titan was also known by another name, i.e., Chhutu. When PW. 1 opened the door, suddenly, accused-Subhash Das entered into the room and wrapped his neck, with the help of a napkin(Gamcha). Another two persons also entered into the room together with Subhash Das and dragged PW.1 from the room. Alerted by the sound of dragging, the parents and sister of PW.1 came out from their rooms. By this time the miscreants dragged away PW.1 towards the gate of the house, with the help of napkin. 5. The parents of PW.1 asked the miscreants to let him free. However, PW. 1, himself could disengage the tie of the napkin put on him by the accused-persons and slipped away from the place of occurrence, and hid himself on the left side of the room. 6. PW. 1 heard sounds of firing. In the meanwhile, when one of the accused attempted to strike PW. 1 with a 'dao', PW.1 forcibly snatched away the 'dao' and gave a blow with it on the body of the accused. However, PW. 1 could not recollect the name of the accused, whom he could injure by striking 'dao' blow. PW.1 also saw a 'kiris' (a sharp cutting weapon) and a napkin in the hands of accused Subhas Das, and one AK 47 in the hands of Accused Titan. In the meanwhile, the miscreants fled away by firing gun shorts and PW.1 found his parents and sister were lying down on the ground with gun shots injuries. 7. After the incident, PW.1 with the help of other neighbours took his parents and sister to the hospital in a 'thela'. However, after a while his father succumbed to the injuries in the hospital. Thereafter, the mother and sister of PW.1 were admitted in the hospital for treatment. However, on the third day of the incident, mother of P W.1 also succumbed to her injuries in GB. Hospital, Agartala. PW.1 stated that the accused persons had fired from their guns on the bodies of his parents and sister. Sister of PW. 1 also sustained gun shot injuries on her lower abdomen. His parents had sustained bullet injuries on different part of their bodies. 8. Hospital, Agartala. PW.1 stated that the accused persons had fired from their guns on the bodies of his parents and sister. Sister of PW. 1 also sustained gun shot injuries on her lower abdomen. His parents had sustained bullet injuries on different part of their bodies. 8. An FIR came to be lodged with the Officer In-Charge, Sabroom P.S. on 01.06.2003, which was registered as Sabroom P.S. Case No. 16/2003, dated 02.06.2003, under Section 396 IPC and under Section 27 of the Arms Act. On the basis of the FIR, the police launched investigation and on completion of investigation, the investigating police officer submitted charge sheet against the accused-appellants alleging commission of offences under Sections 364/511/34/307/396 IPC and under Section 27 of the Arms Act. 9. Since the offence alleged was triable by the court of Sessions, the learned S.D.J.M., Sabroom committed the case to the court of learned Sessions Judge, South Tripura, Udaipur for trial. Learned Sessions Judge, framed formal charges against the above named accused-appellants, for alleged commission of offence, punishable under Section 364/511 IPC read with Section 34 IPC, U/Ss 307/396 IPC and also under Section 27 of the Arms Act. On reading over and explaining the charges as aforesaid, the accused-appellants pleaded not guilty and claimed to be tried. 10. During trial, learned Sessions Court recorded the evidence of 14 prosecution witnesses. On completion of recording the statements of the prosecution witnesses, learned trial Court recorded the statement of the accused-appellants under Section 313 Cr.P.C. The accused-appellants in their statements under Section 313 Cr.P.C. took the stand of total denial and desired to adduce evidence in their defence. The accused, in defence adduced the testimony of four defence witnesses. Accused Subhash Das and Titan Dey pleaded to be juveniles at the time of commission of offence, and accordingly, adduced defence witnesses in support of their claim. 11. Learned trial Court, on completion of the trial and after considering the evidence on record came to the finding that the prosecution has successfully established the charges levelled against the present accused-appellants and accordingly convicted and sentenced them as aforesaid, giving rise to these appeals. 12. We have heard Mr. R. Datta and Mr. A. Bhowmik, learned counsel for the accused-appellants, and Mr. D. Sarkar, learned Public Prosecutor with Mr. R.C. Debnath, learned Special Public Prosecutor, representing the respondent-State. 13. Mr. 12. We have heard Mr. R. Datta and Mr. A. Bhowmik, learned counsel for the accused-appellants, and Mr. D. Sarkar, learned Public Prosecutor with Mr. R.C. Debnath, learned Special Public Prosecutor, representing the respondent-State. 13. Mr. A. Bhowmik, learned counsel for the appellants submitted that the accused-appellants were identified by Sri Narayan Chandra Basak(PW.2), Sri Babul Basak(PW5), Miss Anindita Basak(PW6) and Sri Ranjan Basak(PW. 11), for the first time in the Court. The identification in the dock, for the first time in the Court is inherently a weak piece of evidence and such evidence cannot be relied upon to convict the accused appellants. He further pointed out that the accused-appellants were arrested just after the occurrence and the prosecution side could have conducted a Test Identification Parade (TIP) to confirm the identities of the accused-appellants. However, the TIP was not carried out during investigation, therefore, evidence of the eyewitnesses are not reliable. 14. Learned counsel for the accused-appellants vehemently submitted that since the TIP was not carried out, identification of the accused-appellants by the witnesses, for the first time in the Court, cannot be accepted and relied on, for convicting of the accused-appellants. Learned counsel for the accused-appellants further submitted that conviction of Uttam Basak and Titan Dey, under Section 302 IPC is totally improper as the witnesses PW.2, PW.6 and PW.11 had categorically stated that accused Titan shot the daughter, Anindita Basak(PW.6), who did not die and later on deposed as PW.6. Learned counsel for the appellants further pointed out that according to the prosecution story Uttam Basak, shot Gita Chakraborty, the mother of PW. 1, who received bullet injury in her right buttock. But the Medical Officer (PW.9), who carried out postmortem of Gita Chakraborty, had stated that the injury was non-fatal and death was caused two days after the incident, i.e., on 03.06.2003, as a result of brain stroke, mental agony and pain. Further, PW.9 opined that had there been proper medical attention Gita Chakraborty would have survived. 15. Mr. R. Datta, learned counsel for the appellants submitted that accused-appellant, Subhash Das was a juvenile at the time of occurrence, therefore, he could not have been tried and convicted with the other accused persons by the learned trial Court. 16. Mr. R.C. Debnath, learned Spl. 15. Mr. R. Datta, learned counsel for the appellants submitted that accused-appellant, Subhash Das was a juvenile at the time of occurrence, therefore, he could not have been tried and convicted with the other accused persons by the learned trial Court. 16. Mr. R.C. Debnath, learned Spl. P.P. refuting the arguments advanced by the learned counsel for the convicts appellants submitted that the impugned judgment and order passed by the learned trial Court is perfectly justified, since the prosecution has been able to establish the charges against the accused beyond all reasonable doubt. Learned Spl. P.P. further submitted that the accused appellants hailed from the same locality and were known to the witnesses from before, therefore, holding Test Identification Parade (TIP) was not necessary in the circumstances. Learned Spl. P.P. has taken us through the oral evidence of the eyewitnesses of the incident, as well as the evidence of the doctors, who carried out the postmortem examination of the deceased and imparted medical treatment to the injured PW.6. Learned Special P.P. further submitted that learned trial Court has rightly appreciated oral testimonies of the eyewitnesses, to convict accused-appellants. He has further pointed out that the plea of juvenility on behalf of accused appellants is an afterthought. Learned special P.P. pointed out that on bare perusal of materials on record, as well as the documents relating to juvenility, it appears that all these documents were forged, misleading, and not at all believable and authentic, for placing reliance to extend the benefit of juvenility to the accused-appellants. Therefore, submitted that appellants' conviction and sentence, looking into the evidence on records of the case, are justified and proper. 17. We have examined the records of the proceedings in the context of the rival submissions made by both the sides. The case of the prosecution is mainly based on oral testimonies of PW. 1, PW.2, PW.6 and PW. 11. 18. PW. 1 is the first informant, as well as the victim of occurrence. According to him, his parents, uncle-Narayan Basak(PW.2) and sister(PW.6) and grand mother were residing in the same house. Guest accommodation was there in the grandmother's room. On the date of occurrence his uncle Ranjan Basak(PW. 11) was also present in the house. The occurrence took place on 01.06.2003, at about 10.30 p.m. 19. According to PW. According to him, his parents, uncle-Narayan Basak(PW.2) and sister(PW.6) and grand mother were residing in the same house. Guest accommodation was there in the grandmother's room. On the date of occurrence his uncle Ranjan Basak(PW. 11) was also present in the house. The occurrence took place on 01.06.2003, at about 10.30 p.m. 19. According to PW. 1 On that fateful night, after returning from the market at about 09.00 pm, he was enjoying cinema in a CD. player. At that time he heard a sound of knocking at the door and enquired who it was. A reply came from accused Titan. Accordingly, he opened the door, as accused Titan was previously known to him. P W. 1 found that accused Subhash suddenly entered into the room and tied him by his neck with a napkin(Gamcha). Close on the heels, other two persons also entered into his room and dragged him outside the room. Being attracted by the sound of dragging, his parents and sister came out. The miscreants took him near the gate of the house by dragging with the help of napkin(Gamcha). At that time his parents were asking the miscreants to release him. However, PW.1 somehow managed to free himself from the accused persons, and took shelter on the left side of their room. P.W. 1 heard the sounds of some gun firings and found that one of the miscreants was attempting to strike him with a 'dao'. He snatched away the 'dao' from him and returned 'dao' blow on the body of the said miscreant. PW. 1 also saw a 'kiris' and one napkin(Gamcha) in the hands of accused and one AK 47 rifle in the hands of accused Titan. 20. Learned counsel for the appellants submitted that the complainant, P.W.1 did not mention the names of accused Titan in the FIR and accused Uttam was not identified by him. P.W.1 was the victim of the occurrence, who had a hair breath escape from clutch of death in the incident. However, evidence of PW. 1 categorically spelt out that he was not witnessing the entire occurrence, as he could manage to flee away from the place of occurrence by getting himself released from the miscreants. Therefore, it is probable that PW. 1 could not have seen the entire occurrence. However, evidence of PW. 1 categorically spelt out that he was not witnessing the entire occurrence, as he could manage to flee away from the place of occurrence by getting himself released from the miscreants. Therefore, it is probable that PW. 1 could not have seen the entire occurrence. However, he confirmed of having heard gun shots fired by the accused and also confirmed to have seen AK 47 in the hands of accused Titan. 21. P.W.1 also confirmed to have escaped from the accused, who were trying to take him away from his house. Though the name of accused Titan was not mentioned in the FIR, as a matter of fact, it cannot be treated as an unacceptable piece of evidence, since the Investigating Officer(PW.12), who had recorded the FIR, as being told by P.W.1, was not cross examined by the defence to prima-facie show that in fact P.W.1 had not stated the name of Titan Dey at the time of drawing up FIR. Therefore, non-mentioning the name of the accused-Titan in the FIR cannot be said to be fatal to the prosecution case. 22. PW.2 Narayan Ch. Basak, was present in the house on the night of occurrence. At about 10 pm, PW.2 heard that the wife of Chakradhan was shouting for help. He came out from his room and hid himself behind a tree and witnessed what was happening in the compound. He saw the accused pulling out his brother's son Apurba(PW. 1) from the living room with the help of napkin(Gamcha). The accused were dragging him towards the gate to take him out from the house. PW.2 identified accused Uttam, Titan, Manik and Subhash and some others, committing the crime. In the meantime, PW.2 saw Apurba (P.W. 1) managing to free himself from accused persons and fleeing away. According to PW.2, miscreants had fire arms with them and Uttam fired from his gun to Gita Chakraborty, the mother of PW. 1. 23. PW.5, Babul Basak was working in the field in the evening on 01.06.2003. At that time he found Uttam, Manik, Titan were coming and going very frequently in the locality. PW.5 also shared his knowledge regarding accused Uttam, Manik and Titan having some secret business in Bangladesh. At about 4/4.30 pm in the evening, PW.5 found Titan was carrying Manik Das in his bicycle and they got down from it just near PW.5. At that time he found Uttam, Manik, Titan were coming and going very frequently in the locality. PW.5 also shared his knowledge regarding accused Uttam, Manik and Titan having some secret business in Bangladesh. At about 4/4.30 pm in the evening, PW.5 found Titan was carrying Manik Das in his bicycle and they got down from it just near PW.5. They requested P.W.5 to give his bicycle to go to Sabroom. PW.5 took out his bicycle from his house and handed it over to Manik Das. Thereafter, accused Titan had gone towards Bangladesh and accused Manik Das accordingly had gone to Sabroom. After sometime, at about 7.00 p.m., one Arun Basak came to return back his bi-cycle in the market, and told him that accused Manik had handed over the cycle to him, to return it to PW.5. In the confessional statement accused Titan corroborated the fact of taking the bicycle from PW.5 on the date of occurrence. 24. At about 9/9.15 pm, when PW.5 was returning home from the market, on his way, he found Titan Dey, Uttam Basak, Subhash Das, Manik Das, Tuta Miah, Bachhu Miah, Mannan Miah and some others going towards the house of Chakradhan Basak(deceased). PW.5 did not talk to them and went home straightway. PW.5 categorically confirmed that accused persons Titan, Manik and Uttam Basak had fire arms with them and accused Subhash Das had a 'kiris' in his hand. At about 10/10.30 pm, PW.5 heard hue and cry including the sound of firing from the house of Chakradhan. At that time people were shouting and asking to call police immediately over telephone. 25. P.W.5 informed the police as well as the fire brigade. PW.5 found Chakradhan, his wife and daughter had bullet injuries and they were taken to the hospital in a 'thela'(push cart). Immediately thereafter, PW.5 went to the house of accused, Titan and found that Titan was not available at his residence. PW.5 accordingly came to the residence of Chakradhan and narrated, as to what he had seen in the evening, before the occurrence. PW.5 identified all the accused persons in the dock. 26. PW 6, Anindita Basak is one of the victims of the occurrence. She deposed that when the occurrence took place in heir house on 01.06.2003 at night, she was lying in her bed. PW.5 identified all the accused persons in the dock. 26. PW 6, Anindita Basak is one of the victims of the occurrence. She deposed that when the occurrence took place in heir house on 01.06.2003 at night, she was lying in her bed. On hearing a noise outside their house she came out from the room and found her parents also had come out from their room. At that time she saw that one of the miscreants placed one weapon like 'kiris' on the throat of her father and some other miscreants tied on neck of her brother (P.W. 1) with napkin(Gamcha) and dragged him out from the house. PW.6 specifically confirmed to have seen Titan Dey, Subhash Das, Uttam Basak and some others at the place of occurrence. They took her brother(P W. 1) near the gate of the house by pulling him by wrapping a napkin(Gamcha). Suddenly, P.W.6 saw that her brother(P W. 1) could manage to release himself from the clutch of the accused and fled away. While she was trying to leave the place, accused - Subhash asked his associates to fire upon her. Titan Dey, then, suddenly fired the shot on her, for which she fell down on the ground due to gunshot injury. 27. Accused Titan Dey gave his confessional statement. Confessional statement made by Titan reaffirmed that he is also a resident of the same village, namely, Kathalchari. 28. PW.8 and PW.9 are the Medical Officers, who deposed to confirm the injuries sustained by the injured as well as the deceased. 29. PW.8, Dr. Partha Pratim Majumder, in his deposition proved the postmortem examination of Chakradhan Basak, and stated as follows: Mainly two bullet injuries were found. One at the right side of the chest and other is around the left thigh. In my opinion the person died due to hemorrhage and shock due to bullet injury. Exit and entry wound were also there, in the body. 30. PW.9, Dr. Ranjit Kumar Das, in his deposition proved the postmortem report of deceased Gita Chakraborty. The relevant extract of the evidence of PW.9 reads as follows: I found anti mortem injuries-fire arm entry would 2 cm in radius with abrasion colar around the skin margin, present over upper outer quadrant of right buttock-2 cm below iliac crest. 30. PW.9, Dr. Ranjit Kumar Das, in his deposition proved the postmortem report of deceased Gita Chakraborty. The relevant extract of the evidence of PW.9 reads as follows: I found anti mortem injuries-fire arm entry would 2 cm in radius with abrasion colar around the skin margin, present over upper outer quadrant of right buttock-2 cm below iliac crest. A track is established with a direction from above downwards and then made an exit wound measuring 6 cm in radius with irregular and averted skin margin on the lower part of buttock-6 cm below the entry wound injury mussels soft tissue. Duration of injury is about 40 to 48 hours." In my opinion the cause of the death is shock due to resulting from intra cerebral hemorrhage consequent upon cerebra vascular accident, a natural cause in a case of fire arm injury, right buttock injury is not fatal. 31. PW. 11, Ranjan Basak is the brother of Chakradhan Basak. He was working in the police Department as Habildar. On the date of occurrence he had been to his house at Sabroom and reached there in the evening at around 6/6.30 pm and took his meal at about 9.30 pm. After having his supper when P.W.11 was walking near his house and he suddenly found accused Uttam Basak, Mannan Miah, Titan Dey, Subhash Das, Manik Das, Tuta Miah and some others moving towards the house of Uttam. Thereafter, he returned home and went to sleep with his mother in the adjoining room, where his brother Narayan Basak used to reside with his wife and children. According to P.W11, deceased Chakradhan used to reside in the southern 'viti', (hut) which is about 3 cubits away of Narayan Barak's (P.W.2) hut. On the date of occurrence at about 10.15 pm, PW.11 heard some sound of whispering and the sound of pulling some persons on the ground. On hearing the sound P.W.11 opened the door of his house and was about to come out. At that time P.W.11 heard a sound from the courtyard of Gita Chakraborty (deceased), who was shouting by saying "Uttam tere chharlina"(Uttam, have you not released him as yet). Coming out from the hut, PW. 11 saw Uttam, Manik, Titan and some others having small fire arms like A.K. 47 in their hand and PW. 1 Apurba was caught by the miscreants. Coming out from the hut, PW. 11 saw Uttam, Manik, Titan and some others having small fire arms like A.K. 47 in their hand and PW. 1 Apurba was caught by the miscreants. Suddenly P.W.11 saw that PW.1 could release himself from the clutch of the miscreants and started running away. In the meanwhile, accused Manik Das fired gun shot at Chakradhan Basak. Accused Subhash Das directed to shoot at P W.6, Anindita. Suddenly accused Titan shot gun fire on PW.6, Anindita. Immediately thereafter, the miscreants fled away from the place of occurrence. PW.11 categorically confirmed that since the house was near the Indo-Bangladesh border, a 100 watt electric bulb was kept lit during the night. 32. From the evidence of the P. Ws. 1, 2, 5, 6 and 11, it clearly transpires that the accused Subhash Das, Uttam Basak, Titan Dey and Mannan Miah with some others had entered into the house of PW. 1 with clear intension to abduct him. The motive behind the crime is spelt out by the accused Titan clearly in his confessional statement. Their action and moves very well reflected that they had the intention to abduct Apurba(PW.1) from his house to demand ransom and to kill him after securing ransom. 33. All the accused persons having been armed with either fire arms or some deadly weapons clearly reveal that they had designed to kill the inmates in order to achieve their diabolical design. When PW.1 managed to escape from the accused by severely injuring one of them by firearm. Apparently, the design of the accused persons to abduct PW1, was shattered. Reaction of the accused in the scene of occurrence, as stated by the witnesses, clearly reflects that the escaping of PW.1 enraged them to indiscriminately shoot at the inmates of the house, who came to resist them. When a person is shot at by a fire arm like AK 47 intentionally, unless otherwise stabilized, no other intention can be interpreted other than to kill the person. The deposition of the witnesses also clearly reveals that the accused persons were known to the witnesses being resident of the nearby locality and they could witness the incident with the help of 100 watt electric light, which was kept lit in the premises, where the occurrence took place. The deposition of the witnesses also clearly reveals that the accused persons were known to the witnesses being resident of the nearby locality and they could witness the incident with the help of 100 watt electric light, which was kept lit in the premises, where the occurrence took place. Therefore, the doubt expressed on behalf of the appellants regarding probability of not having seen the incident by the witnesses at night is baseless. 34. The confessional statement given by accused appellant Titan Dey @ Chhuto, which was recorded by PW.7 (Judicial Magistrate, 1st Class), categorically reveals the entire details leading to the incident. Accused-Titan in his confessional statement (Exbt.9) categorically implicated himself in the design and conspiracy to commit the incident and stated that it was hatched in the back side of the grocery shop of Nurulam Hoque in the market at Balturam village, situated in Bangladesh. According to the confessional statement of accused Titan Dey, it was settled there that Apurba Basak would be abducted and as a measure of punishment, he would be taken to Bangladesh and be killed there after collecting Rs.20,000/- ransom from his mother. Accused-appellant Titan Dey, also clearly and categorically narrated the incident in details, as to how they collected fire arms from the B.D.R. (Bangladesh Rifles) on payment of Rs.5,000/- and how they entered into the house of Apurba and how they tried and failed to abduct him from the place of occurrence. Accused Titan Dey (A-3) in his confessional statement, apart from naming all the accused-appellants as his partner of the crime also stated that after having arranged everything for the incident, first of all he called Apurba (P.W.1) by entering into the house of Chakradhan Basak. When Apurba opened the door, Tuta Miah, Manik Das and Bachhu Miah entered into the room and they tied him with napkin by his neck. However, Apurba untied himself and snatched away the dao from the hand of Bachhu Miah and gave a 'dao' blow on Bachhu Miah and thereafter he fled away. 35. From the sequence of events as narrated by accused-appellant-Titan in his confessional statement though he did not indicate that he had fired the gun shot but accused had categorically confessed to have conspired with the accused appellants and collected fire arms to abduct PW.1, together with the other accused for the purpose of killing him. 35. From the sequence of events as narrated by accused-appellant-Titan in his confessional statement though he did not indicate that he had fired the gun shot but accused had categorically confessed to have conspired with the accused appellants and collected fire arms to abduct PW.1, together with the other accused for the purpose of killing him. Accused in his confessional statement corroborated the foundation of the prosecution case. However, their attempt to abduct P.W.1, did not succeed, but in the process the accused appellants devastated a happy family, by maiming the poor girl and by killing both her parents, who were teachers by profession in the local school. 36. Though the learned counsel for the appellants submitted that Titan Dey and Subhash Das both were juveniles at the time of the commission of offence, but the defence witnesses DW.1, DW.2 adduced in this regard could not prove that they were juveniles at the time of commission of offence. 37. According to the school certificate, date of birth of accused Subhash Das is 25.01.1987. Sri Manik Lal Malakar, D.W. 2, who was the Headmaster of Ludhuya High School (Primary Section), came to depose in the Court as defence witness with the admission register. However, the admission register was apparently tampered with. The learned trial Court found the Headmaster, D.W. 2, tampering the school register by writing something sitting in the Ejlash, while deposing in the Court. Said action of the witness was noted down by the learned trial Court with the following words, "there is no seal under signature of the teacher just below of his signature but an impression of seal is there after a long gap and another seal was impressed over lapping the previous seal. This portion of the Register is specially marked as Exbt. J for reference". The witness denied the suggestion that the column was blank and he has consequently made the entry. Subsequently, the Court also made an observation that 'the date has been noted 11.05.95 and there is over writing on the figure 94 and it appears/looks 1993 also. The similar thing is there against the subsequent two entries. In all other signatures of the teacher-in-charge the year has not been noted, when the date was noted under the signature, but only in three cases the date has been noted with year i.e. entry against Subhash Das, Uma Roy and Mamata Das". The similar thing is there against the subsequent two entries. In all other signatures of the teacher-in-charge the year has not been noted, when the date was noted under the signature, but only in three cases the date has been noted with year i.e. entry against Subhash Das, Uma Roy and Mamata Das". Against the entry of Subhash Das in column No. 10 something like Anganwadi was noted down. DW.2 stated that such entries were made by some other teachers. Though the word 'Anganwadi' was written in his own hand writing, but he could not recollect as to why and when the word was written by him. The witness also admitted to have noted in the document while sitting in the Court room. Such manipulated admission Register, which was the only source of information to prove the juvenility of the accused, was found to be tempered with some motive behind. Apparently, the Headmaster of the School, who came to depose in the Court was over interested and manipulated the document even in presence of the trial Court, to establish that Subhash Das as a juvenile. Consequently, the inquiry made by the Court below regarding juvenility of the accused Subhash Das, clearly shows that the claim is not authentic and no reliance can be put on the sole testimony of the Headmaster, DW.2 with the fabricated document to prove the juvenility of the accused. 38. To establish the juvenility of accused Titan Dey the defence adduced evidence. The defence also collected the school certificate wherein it is shown that the date of birth according to his Admission Register is 10.09.1986 A.D. The relevant Register was exhibited and the teacher was also examined. But it has been observed that the basis of noting such a date of birth of accused Titan has not been mentioned. The original document on the basis of which the date of birth was noted has not been produced. Neither it was available in the school. In the relevant Register nothing has been written in the remarks column as to on what basis the date of birth has been noted in the Register. There was seal and signature against every entry except, in the entry of name of Titan Dey. The witness could not ascertain with certainty whether the signature of the Head Master was there or not. There was seal and signature against every entry except, in the entry of name of Titan Dey. The witness could not ascertain with certainty whether the signature of the Head Master was there or not. It appears that the document, submitted to establish the juvenility of accused Titan was tampered with. Further, it has been observed by the trial court that though in the State of Tripura Birth and Death Register has been maintained by the Panchayat or Nagar Panchayat, but in the instant case such Birth Certificates could not be produced by the accused Titan to prove his age. 39. Learned counsel for the appellants relying on the decision reported in Munshi Singh Gautam Vs. State of M.P., (2005) 9 SCC 631 has submitted that, if the accused appellants were known to the witnesses from before, they should have revealed the names of the accused in the previous statement recorded by the police. 40. In Munshi Singh Gautam Vs. State of M.P., (supra) Hon'ble Supreme Court observed that as a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad Vs. Delhi Admn., Vaikuntam Chandrappa Vs. State of A.P, Budhsen Vs. State of U.P. and Rameshwar Singh Vs. State of J&K.) 41. Learned counsel for the appellants submitted that the prosecution, by failing to conduct a Test Identification Parade, could not confirm the identity of the accused, and has thus failed to prove the truthfulness of the prosecution witnesses and this is a serious lapse on the part of the prosecution and conviction cannot be based on the first time identification by the witnesses in the Court. In support of his contention, learned counsel for the appellants relied on the decision of the Supreme Court reported in SC/0103/1970 : (1970) 2 SCC 128 : Budhsen &Anr. Vs. State of U.P. 7. Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. (emphasis given) 42. Mr. A. Bhowmik, learned counsel for the appellants submitted that a hypothetical situation could arise, for failing to carry out the test identification parade (i) either the prosecution witnesses had prior acquaintance with the accused persons or they were not known to the prosecution witnesses. Learned counsel submitted that if the witnesses were not acquainted with the accused persons, in that event the first time identification in the dock without a test identification parade can not be admissible in evidence in terms of the decision of the Hon'ble Supreme Court reported in SC/0964/2004 : (2005) 9 SCC 631 : Munshi Singh Gautam (D) & Ors. Vs. State of M.P. 16. The evidence of Rajkumar (PW-12) and Jawahar (P W-14) relate to separate facets of the incident. The latter speaks about the accused-appellants having taken the deceased along with them after mid-night of 19th June, 1984. Rajkumar (PW-12) spoke of the assaults made inside the police station. Admittedly there was no test identification parade. 17. As was observed by this Court in Matru Vs. State of U.P.SC/0141/1971 : SC/0141/1971 : 1971 Cri.LJ. 913 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain 1973 Cri LJ 176). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain 1973 Cri LJ 176). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 43. However, learned counsel for the appellants pointed out that if the witnesses were known to the accused persons even prior to the occurrence, they should have stated so in their statement before the police. Learned counsel for the appellants further pointed out that the P.W.1 in his chief stated that he knew the name of the accused Titan and P.W.2, prior to the occurrence, saw the accused persons gossiping in the area and P. W.5 stated to have given his bi-cycle to one Manik in the evening of the date of occurrence. Learned counsel for the appellants further pointed out that the P.W.1 in his chief stated that he knew the name of the accused Titan and P.W.2, prior to the occurrence, saw the accused persons gossiping in the area and P. W.5 stated to have given his bi-cycle to one Manik in the evening of the date of occurrence. However, according to the learned counsel for the appellants, the aforesaid witnesses did not disclose those facts in their previous statement before the O/O. Unfortunately, such previous statement of the prosecution witnesses were not proved and established by the defence, in accordance with law, to render assistance to the aforesaid defence stand. 44. In support of his contention, learned counsel for the appellants relied upon the decisions of the Hon'ble Supreme Court reported in : (1988) 1 SCC 40 : Hari Nath & Anr. Vs. State of U.P. 14. What emerges from the evidence is that, at least, Kamla Prasad Yadav (PW 1) could reasonably be expected to have known some of the appellants, as residents of villages in close vicinity, and as students of the same institution is a Stat able probability and that his feigned ignorance of any prior familiarity with their identity becomes irreconcilable with what are incidents of ordinary human intercourse. The omission to disclose their identity in the F.I.R. would raise a reasonable doubt about their complicity in the crime. The following observations of this Court in Bali Ahir and Ors. v. State of Bihar SC/0085/1983 :SC/0085/1983 : 1983 CriLJ 434 are apposite: ...This indicates that all was not well with the identification. The fact that the appellants belong to the neighbouring village at a distance of less than a mile, that the witnesses who came to identify the appellants had seen the accused from behind while escaping, that PW 2 had known Bali Ahir from before, yet he did not name him in the First Information Report and went to identify him when he fully knew Bali Ahir, that the identification of the two of the appellants took place after a gap of four days after their arrest, without explaining the cause for the delay, speaks for itself. 15. Even on the premise that there was no such prior acquaintance the evidence establishing the identity of the culprits assumes particular materiality in a case, as here, of a dacoity occurring in the darkness of the night. 15. Even on the premise that there was no such prior acquaintance the evidence establishing the identity of the culprits assumes particular materiality in a case, as here, of a dacoity occurring in the darkness of the night. The evidence of the test identification would call for a careful scrutiny. In a case of this kind where the eve witnesses, on their own admission, did not know the appellants before the occurrence, their identification of the accused persons for the time in the dock after a long lapse of time would have been improper. In Helsbury's Law of England (IV Edn. Volume II, para 363) this passage occurs and is worth re-calling: It is undesirable that witnesses should be asked to identify a defendant for the first time in the dock at his trial; and as a general practice it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out. 16. In such cases, it is needless to say, the test identification at an identification parade to test the power of recollection of the witnesses assumes added significance. Prosecution has, therefore, relied upon the result of the test identification (Exhibit 30) where the appellants were picked out by P.W.1, P.W. 2, and P.W. 4. 45. The witnesses met accused persons in the evening of the incident. PW.5 categorically stated that he had seen accused persons going towards the house of the victims. PW.5 had given the bicycle to one of the accused persons in the evening. Witnesses also checked up immediately after the occurrence, at the residence of Titan. Titan himself admitted of having taken the bicycle from PW.5, in his confessional statement, so also PW. 11, who identified all the accused appellants precisely. PW.11 confirmed in his deposition that accused Mannan Miah was always seen loitering in Sabroom Bazar by him. Furthermore, there is no inkling in the evidence on record or the cross-examination of the prosecution witnesses to show that the accused persons were not known to the witnesses from before. Therefore, in our opinion the plea of the appellants regarding withholding of the T.I.P during investigation is not fatal to the prosecution case. Furthermore, there is no inkling in the evidence on record or the cross-examination of the prosecution witnesses to show that the accused persons were not known to the witnesses from before. Therefore, in our opinion the plea of the appellants regarding withholding of the T.I.P during investigation is not fatal to the prosecution case. Moreover, the accused appellants, who were local residents, were known to the witnesses and they were seen by the witnesses in the place of occurrence while committing the crime. 46. Though learned counsel for the convicts-appellants vehemently submitted that first time identification by the witnesses in the dock is a weak piece of evidence, but from the evidence of the witnesses, it is clear that the appellants were the residents of the locality and they were known to each other. More so, one of the witnesses immediately after the occurrence visited the house of the appellant Titan Dey, but did not find him. Further, there is no evidence on record to distantly suggest that the accused persons were not previously known to the witnesses. In the cross-examination of any of the witnesses, it was not even remotely suggested that the accused appellants were residents of different locality and not known to the witnesses. Therefore, the question of first time identification in the dock by the witnesses cannot be an issue in the present case. What's more, in the present case, the occurrence took place in a place well lit with a 100 watt electric bulb unlike Hari Nath & Anr. Vs. State of U.P. (supra). 47. But in the instant case, the accused as well as the prosecution witnesses were residents of the similar locality and they were known to each other. The prosecution could very well prove that occurrence took place and two deceased were murdered during the episode. The evidence shows that the two deceased were murdered. At the trial, evidence was led to show that accused committed murder. Besides, though the learned counsel for the appellants pointed out that the witnesses did not state about the identification of the appellants in their previous statement, but such facts were not established by the defence by putting specific question to the 1/ 0, who had recorded the statement of the witnesses during investigation. Besides, though the learned counsel for the appellants pointed out that the witnesses did not state about the identification of the appellants in their previous statement, but such facts were not established by the defence by putting specific question to the 1/ 0, who had recorded the statement of the witnesses during investigation. Therefore, since the previous statement made by the witnesses before the I/O has not been proved in the manner it is provided in law, any reference to such statement cannot be of any help to the appellants. 48. In Budhsen and Anr.(supra), Hon'ble Supreme Court clarified that Test Identification Parade is required to be conducted, when the accused persons are strangers and are not previously known to the witnesses. In Hari Nath & Anr.(supra), Hon'ble Supreme Court emphasized on the requirement of Test Identification Parade, when an occurrence takes place in darkness of night and the witnesses on their own admission did not know the appellants before. However, in the instant case, both the situations as stated above in both Dudhsen & Anr.(supra) and Hari Nath & Anr. (supra) are not available. 49. Though learned counsel for the convicts-appellants vehemently submitted that there were contradictions in the evidence of the witnesses, however, on careful perusal of the evidence of the Investigating Officer, we have noticed that the omissions and contradictions in the statement of the witnesses sought to be established by the appellants' counsel were not proved in the manner as provided in Tahsildar Singh Vs. State of U.P., SC/0053/1959 : 1959 Sapp. (2) SCR 875 : AIR 1959 SC 1012 . Hon'ble Supreme Court clearly laid the law as to how a contradiction is required to be proved. Unfortunately the contradictions sought to be established by the defence were not proved by putting specifically such contradictory statement to the witnesses as well as the I/O, who had recorded such statements under Section 161 Cr.P.C, to enable the court to draw some adverse inference, from such contradictions, as sought to be established. 50. As a matter of fact, even if the statements of the witnesses recorded under Section 161Cr.P.C are not similar to the statements made in the Court, it cannot be said that the witnesses are totally unreliable and unworthy of credence. 50. As a matter of fact, even if the statements of the witnesses recorded under Section 161Cr.P.C are not similar to the statements made in the Court, it cannot be said that the witnesses are totally unreliable and unworthy of credence. In fact, each difference in statements of the witnesses recorded before the police and by the Court cannot be said to be a fatal error in the prosecution case. Mere difference in narrating the fact coupled with a minor omission or exaggeration not touching the merit of the case cannot help the defence 51. Mr. A. Bhowmik, learned counsel for the accused Titan Dey and Uttam Basak submitted that accused above named could not have been convicted for commission of offence under Section302 of IPC. Learned counsel for the appellants pointed out that even assuming the prosecution story being true, the statement of the P.W.2,6 and 11 confirmed that the accused Titan had shot the daughter, Anindita Basak, who did not die and subsequently she was examined as P. W.6. Therefore, accused Titan could not have been convicted for the offence under Section 302 of IPC. According to the prosecution, accused Uttam had fired the shot at Gita Chakraborty and she received bullet injury in her right buttock, which according to P.W.9 is not a fatal injury. Death of the deceased occurred after two days of the incident as a result of brain stroke, mental agony and pain. It was further opined by the doctor that if proper medical attention would have been given she would have survived. In support of his contention learned counsel for the appellants relied on the decision of the Hon'ble Supreme Court reported in Jarnail Singh Vs. State of Punjab,SC/1025/1996 : (1996) 1 SCC 527 , which reads as follows: 9. It was lastly contended by Mr. Lalit that even it the prosecution case was accepted in its entirety the appellant could not be, consequent upon the acquittal of Sukhwinder Singh by the High Court, convicted under Section302 IPC simpliciter as neither the death of Sukhdev Singh nor that of Surjit Singh could be attributable to the injuries caused by him. To appreciate this contention of Mr. Lalit it will be necessary to refer to the relevant evidence on record, particularly, that of Dr. Harish Chand Vaid (PW 5) who had had conducted the post-mortem examination. To appreciate this contention of Mr. Lalit it will be necessary to refer to the relevant evidence on record, particularly, that of Dr. Harish Chand Vaid (PW 5) who had had conducted the post-mortem examination. As has been already noticed, according to the prosecution case, as detailed through PW 4 and PW 6, Surjit Singh was fired at only by the absconding accused Joginder Singh resulting in his death. The appellant, therefore, cannot at all be liable for that murder. So far as Sukhdev Singh is concerned, P.W.4 & P.W. 6 testified that the appellant shot at his back and Sukhwinder Singh at his shoulder. Since, however, Sukhwinder Singh stands acquitted, Section 34 IPC would have no application whatsoever and the appellant will be liable only for his act, namely, causing injuries No. 2 and 3, which was the result of one shot, and, by themselves, did not cause the death of Sukhwinder Singh. Resultantly, the appellant cannot be convicted for the offence under Section302 IPC, but as he had fired at Sukhdev Singh with rifle he cannot escape his conviction for the attempt to commit', his murder. The last contention for Mr. Lalit, therefore, must-be accepted. 52. As we can summarize from the confessional statement made by accused Titan and from facts proved by the eye witnesses to the occurrence, vis-a-vis the modus operandi of the crime that the accused persons had designed to abduct P.W.1, for ransom. The appellants came fully prepared armed with firearms like AK 47 and other deadly weapons and committed the offence in furtherance of their common intention. 53. Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi @ Sukhdev Singh Vs. State of Punjab : SC/0071/1991 : (1991) 1 SCC 519 ). 54. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi @ Sukhdev Singh Vs. State of Punjab : SC/0071/1991 : (1991) 1 SCC 519 ). 54. Another facet, which the Court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case, like in the present case all the appellants came together to the place of occurrence as is evident from the statement of the witnesses, they not only came to the residence of the victim in body, but also committed a crime and went to the extent of killing two of the inmates of the house mercilessly to carry out their design. Accused Manik fired gun shot over and over again on the defenceless inmates, puncturing vital part of the body. Chakradhan Basak was killed on then spot. Another Victim Gita Chakraborty also succumbed to her injuries after a few days. Fortunately, gunshot fired by the appellants did not find any vital part of the body of P.W.6, which maimed her for rest of the life. There would not be any divergence of opinion that the gun shots fired on PW.6 was not aimed by the accused on the vital part of the body, instead, fortunately, the gunshot fired by the assailants missed the vital part of the body of PW.6. Of course, if the gunshot would have found the vital part of the body of PW.6, the story would have been different. But for the participation and design of the accused appellants and a clear frame of mind to kill the deceased, two innocent lives were lost. The role attributable to each one of the appellants, thus, clearly demonstrates common intention and common participation to achieve the object of killing the deceased. In other words, the criminal act was done with the common intention to kill the deceased. More so, when assailants go armed with firearms, and instantly shot the inmates and killed them, the intrinsic intention is writ large. In other words, the criminal act was done with the common intention to kill the deceased. More so, when assailants go armed with firearms, and instantly shot the inmates and killed them, the intrinsic intention is writ large. No different intention can be interpreted. The trial court has rightly noticed in its judgment that all the accused persons coming together in the night time and causing such serious injuries with active participation shows a common intention to murder the deceased. In these circumstances, the conclusions arrived at by the trial Court would not call for any interference. 55. Mr. Bhowmick, learned counsel for the appellants strenuously urged that it is not open for us to convict the appellants for the offence under section 302 I.P.C., because they were not charged for the said offence. We regret that we do not find any merit in her submission. 56. In our view since the offence under Section 302 is a minor offence in relation to the offence under section 396 IPC, and all the ingredients of the latter offence are in it, the absence of a formal charge under section 302 IPC would not prejudice the appellants. 57. Our view is founded on the provisions contained in section 222(2) Cr.P.C, which read thus: 222. When offence proved included on offence charged.--(1)..... (2) When a person is charged with an offence and facts are proved which reduced it to a minor offence he may be convicted of the minor offence although he is not charged with it. (3). . . (4). . . 58. Our view is fortified by the provisions contained in section 464(1) Cr. P.C. 1973. The said section reads thus: 464. Effect of omission to frame, or absence of, or error in, charge.--(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 charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. 59. 59. A perusal of the above provision would show that if a conviction is recorded in respect of an offence for which no charge was framed it would only be vitiated if "failure of justice has in fact been occasioned thereby." In the instant case on account of non-framing of charge for under section 302 IPC, no failure of justice has resulted. 60. In UP/1714/2004 Rafiq Ahmad @ Rafi Vs. State of U.P. a division Bench of Allahabad High court observed that Sections 302 and 396 IPC are cognate offences. The relevant extract of the decision can be gainfully depicted herein below: 37. We do not find any force in the submission. It was held by the Hon'ble Supreme Court in Sangaraboina Sreenu v. State of Andhra PradeshSC/0816/1997 : 1997 CriLJ 3955 that under Section 222 Cr.P.C. a person who was charged under Section 302 of the Penal Code cannot be convicted under Section 306 I.P.C. on the ground that offence punishable under Section 306 I.P.C. is minor in comparison to the offence of murder. The reason is that two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 I.P.C. is homicidal death and under Section 306 I.P.C. the abetment of suicidal death is punishable. Therefore, this decision does not help the appellant. Similarly, reliance placed in the case of Bala Seetharamaiah v. Perike S. Rao and Ors. SC/0270/2004 :2004 CriLJ2034 is misplaced and is also of no help to the appellant. 38. Section 302 I.P.C. prescribes punishment to the offender who is found guilty for committing murder. Section 396 I.P.C. prescribes punishment for those who are found guilty for committing dacoity coupled with murder. It is, therefore, obvious that the offence of dacoity as well as murder in the course of dacoity has been made punishable under Section 396 of the Penal Code. In the instant case, the appellant was charged for having committed dacoity along with murder of Jagdish Chandra punishable under Section 396 I.P.C. In our view, the offences punishable under Sections 302and 396 I.P.C. are cognate offences. Therefore, in view of clear provisions of Sections 221 and 222 Cr.P.C. the appellant could be convicted under Section 302 of the Penal Code without amending the charge. Therefore, in view of clear provisions of Sections 221 and 222 Cr.P.C. the appellant could be convicted under Section 302 of the Penal Code without amending the charge. Further, Section 464 Cr.P.C. provides in clear words 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 unless, in the opinion of the Court of appeal, a failure of justice has in fact been occasioned thereby. In the instant case, it was clearly mentioned in the charge that the appellant along with others committed dacoity in the Ambassador Car in which the deceased (Jagdish Chandra) was travelling and he was murdered in the course of dacoity. Moreover, the second charge under Section 201 I.P.C. further clarified and gave notice to all the accused, including the appellant that they had caused disappearance of the evidence (by throwing the dead body of Jagdish Chandra in the sugarcane field). In this view of the matter, it is obvious that the appellant knew it very well that he was being tried for committing murder of Jagdish Chandra also and no failure of justice was caused. The accused, in our opinion, was not prejudiced in any manner. We are, therefore, not inclined to accept the contention of the appellant's learned counsel that the appellant could not be convicted under Section 302 I.P.C. without amending the charge. 61. Similar is the ratio in Anshad & Ors. Vs. State of Karnataka, SC/0733/1994 : 1994 4 SCC 381 : JT 1993 (3) SC 324. There five accused were tried for offences punishable under Sections 396, 449, 395 and 307, IPC and were convicted. In the light of the factual position, the Court held that conviction of accused Nos. 1, 2 and 3 could be altered to one under Section 302read with Section 34, IPC, Section 394 read with Section 34, IPC and Section 379 read with Section 34, IPC. 62. In the present case, appellants jointly piloted the whole episode in furtherance of their common intention. This has been categorically spelt out in the confessional statement of appellant Titan. The scheme was formulated in Bangladesh in presence of all the appellants. Appellants borrowed AK 47 rifle from BDR and carried such weapons with them and used them in the crime. In the present case, appellants jointly piloted the whole episode in furtherance of their common intention. This has been categorically spelt out in the confessional statement of appellant Titan. The scheme was formulated in Bangladesh in presence of all the appellants. Appellants borrowed AK 47 rifle from BDR and carried such weapons with them and used them in the crime. Original plan was to abduct P. W.1 and after extracting ransom from his mother for his release, kill him. However, the diabolical scheme of the appellant misfired. In the process the appellants in furtherance of their common intention killed innocent, unarmed and helpless parents of P.W.1, by using deadly arms like AK 47. Though deceased Gita Chakraborty died two days after the incident, but deceased Chackradhan Basak was brutally killed on the spot by the accused in furtherance of their common intention. The evidence on record clearly indicates that the accused appellants were responsible for the offence committed by them in furtherance of their common intention. Attempt to kill P. W.6 did not materialize since the bullet missed the vital part of her body. The evidence of all the witnesses read together, in conjunction with the nature of the offence committed and weapon used and taking into consideration, the incriminating circumstances against the accused persons as established by the witnesses vis-a-vis confessional statement of the accused Titan immediately after the occurrence. Looking into the motive behind the crime coupled with the complicity of all the appellants in the commission of the offence alleged, in furtherance of their common intention, in our considered opinion, prosecution has been able to prove the charge beyond all reasonable doubt. 63. In view of the legal and factual position noted above, the irresistible conclusion is that the accused appellants have been rightly found guilty by the learned trial court under Section364/511/307/302/34 IPC for causing the offences alleged and sentence passed by the learned trial Court do not warrant any interference. 64. In the result, we dismiss all afore-noted Criminal Appeals. Send back the lower court records together with a copy of this judgement.