JUDGMENT : J.B.PARDIWALA, J. 1. As all the three captioned Criminal Appeals arise from a common judgment and order of conviction and sentence passed by the trial court, those were heard analogously and are being disposed of by this common judgment and order. 2. The appellants (original accused persons) call in question the legality and validity of the judgment and order of conviction and sentence passed by the Additional Sessions Judge, 9th Fast Track Court, Godhra, Panchmahals, dated 11th October 2005 in the Sessions Cases Nos.54 and 184 of 2004 respectively. 3. The appellants were put on trial in the court of the learned Additional Sessions Judge, 9th Fast Track Court, Godhra, Panchmahals, for the offences punishable under Sections 395, 435, 436, 120B of the Indian Penal Code and Section 135 of the Bombay Police Act. 4. On conclusion of the trial, the trial court convicted all the appellants for the offences enumerated above. 5. For the offence punishable under Section 395 of the Indian Penal Code, the appellants came to be sentenced to undergo 10 years of rigorous imprisonment with fine of Rs.5,000=00 each, and in default of payment of fine, to undergo further 6 months of rigorous imprisonment. 6. For the offence punishable under Section 435 of the Indian Penal Code, the appellants came to be sentenced to undergo 5 years of rigorous imprisonment with fine of Rs.4,000=00 each, and in default of payment of fine, to undergo further 5 months of rigorous imprisonment. 7. For the offence punishable under Section 436 of the Indian Penal Code, the appellants came to be sentenced to undergo 10 years of rigorous imprisonment with fine of Rs.5,000=00 each, and in default of payment of fine, to undergo further 6 months of rigorous imprisonment. 8. For the offence punishable under Section 120B of the Indian Penal Code, the appellants came to be sentenced to undergo 6 years of rigorous imprisonment with fine of Rs.2,000=00 each, and in default of payment of fine, to undergo further 3 months of rigorous imprisonment. 9. For the offence punishable under Section 135 of the Bombay Police Act, the appellants came to be sentenced to undergo 6 months imprisonment with fine of Rs.1,000=00 each, and in default of payment of fine, to undergo further 2 months of imprisonment. CASE OF THE PROSECUTION : 10. The case of the prosecution may be summarised as under : 11. For the offence punishable under Section 135 of the Bombay Police Act, the appellants came to be sentenced to undergo 6 months imprisonment with fine of Rs.1,000=00 each, and in default of payment of fine, to undergo further 2 months of imprisonment. CASE OF THE PROSECUTION : 10. The case of the prosecution may be summarised as under : 11. For an incident which had occurred on 28th February 2002, an FIR was lodged (Exh.64) on 21st March 2002 at the Kalol Police Station, District Panchmahals, by one Ahmed Haji Mohmad (PW1) for the offences punishable under Sections 395, 436, 435, 120B of the Indian Penal Code and under Section 135 of the Bombay Police Act. The FIR reads thus : “Date: 21/03/2002 Sessions Case No.54/2004 Mark-34/1 Date: 28/09/2004 Sd/- (Illegible) Additional Sessions Judge Sessions Case. No.54/2004 Mark-A Date: 28/09/2004 Sd/- (Illegible) Additional Sessions Judge Sessions Case No.54/2004 Exhibit-64 Date: 04/01/2005 Sd/- (Illegible) Additional Sessions Judge Kalol Police Station, C.R. No. I-47/2002, As per Sections-394, 436, 435, 120B of the IPC and Section 135 of the B.P. Act Date and Time of Occurrence of Offence: Date: 28/02/2002, 23:00 hours Date and Time of Declaration of Offence: Date: 21/03/2002, 21:15 hours Place of Offence Mouje: Karoli Village, 25 k.m. East Adadara Outpost Accused Persons: (1) Vikrambhai Vechatbhai (2) Gulabbhai Pratapbhai (3) Vakhatbhai Chhatrabhai (4) Vijaybhai Vakhatbhai (5) Bakabhai Vakhatbhai (6) Mangalbhai Ratnabhai (7) Kalabhai Ganpatbhai (8) Ganpatbhai Kabhbhai (9) Kiranbhai Shankerbhai All residing at: Sherpura, Ta. Ghoghamba My name is Ahemad Haji Mohamad Hathida, Muslim, Aged 33 Years, Occupation: Agriculture & Business, Residing at: Karoli, Taluka: Kalol, Permanent Resident : B/h. Octroi Naka, Gondhara, Taluka: Godhara. I personally lodge my complaint that I reside at the above-mentioned address and earn my livelihood by doing agricultural work and also running a fair price shop in the name of my father Haji Mohamad Abdul Sattar Hathida. I am also having a pakka house at village Karoli. A call for 'Gujarat Bandh' was given on 28/02/2002 in connection with the incident which had occurred at the Godhra Railway Station on 27/02/2002. I was at my home in the evening on 28/02/2002 chatting with my brothers – Yakubbhai Haji Mohamad Hathida and Mehbubbhai Haji Mohamad Hathida. At that time at around 11 O'clock in the night, a mob of around 200 to 250 persons armed with deadly weapons came in the locality screaming and shouting. I was at my home in the evening on 28/02/2002 chatting with my brothers – Yakubbhai Haji Mohamad Hathida and Mehbubbhai Haji Mohamad Hathida. At that time at around 11 O'clock in the night, a mob of around 200 to 250 persons armed with deadly weapons came in the locality screaming and shouting. Myself and my brothers all ran away and hid ourselves in a nearby hillock. There were tube-lights surrounding my house, therefore, I could see in the lights that Vikrambhai Vechatbhai, Gulabbhai Pratapbhai, Vakhatbhai Chhatrabhai, Vijaybhai Vakhatbhai, Bakabhai Vakhatbhai, Mangalbhai Ratnabhai, Fulabhai Ganpatbhai, Ganpatbhai Kaliyabhai, Kiranbhai Shankarbhai and Ramanbhai Vechatbhai, all residing at: Sherpura, Ta. Ghoghamba, were present in the mob. They along with other persons cornered and started damaging my house. They vandalized the household items in my house and set them on fire. They looted grocery from my fair price shop including 9 bags of sugar, 9 bags of rice, 9 bags of wheat, 4 tins of palmoline, etc. The household items and the roof tiles of my another house were also vandalized. A big machine having 10 HP engine and other articles etc. were also vandalized and set on fire. We, all the three brothers, got scared, therefore, we ran away to Godhara in the night. No injuries were caused to us. My house and shop were vandalized and set on fire, resulting into damage of Rs.3 lakh. A Government shop at the Kadapaya street of Karoli was also looted and set on fire. Some shops, houses and a flour mill in at the Malvan street were also vandalized and set on fire. Few houses and shops belonging to our community people in the Mirapuri street were also looted and set on fire. I lodge my complaint to investigate the same. My witnesses are the persons mentioned in the complaint and others found during the investigation. As per my say, the aforesaid complaint is true and correct. Sd/- Ahmed Mohamad Hathida Before me, Sd/- (Illegible) Police Station Officer, Kalol” 12. Thus, it appears that this prosecution has something to do with the Godhra carnage which had occurred on 27th February 2002. On account of the incident which had occurred on 27th February 2002 at the Godhra Railway Station, a call for 'Gujarat Bandh' was given on 28th February 2002. 13. Thus, it appears that this prosecution has something to do with the Godhra carnage which had occurred on 27th February 2002. On account of the incident which had occurred on 27th February 2002 at the Godhra Railway Station, a call for 'Gujarat Bandh' was given on 28th February 2002. 13. It is the case of the prosecution that the appellants herein ransacked the houses of the minority community residing in the area and also caused extensive damage to their movable and immovable properties by setting them on fire. 14. It is the case of the prosecution that the accused persons were armed with deadly weapons. It is also the case of the prosecution that the household articles were taken away by the accused persons and those were ultimately destroyed. 15. In such circumstances, the FIR came to be registered for the offences of dacoity, criminal conspiracy and mischief by fire and other explosive substance with the intention to destroy the residential houses. 16. All the appellants herein came to be arrested in connection with the FIR registered at the Kalol Police Station vide I-CR No.47 of 2002 for the offences enumerated above. 17. The investigation was undertaken, and at the end of the investigation, the charge-sheet came to be filed in the court of the Judicial Magistrate, First Class, Kalol. The filing of the charge-sheet culminated into registration of the Criminal Case No.14 of 2003. As the offences were exclusively triable by the Sessions Court, the Judicial Magistrate, in turn, in exercise of his powers under Section 209 of the Code of Criminal Procedure, committed the case to the Court of Sessions Judge, Panchmahals at Godhra. The committal, ultimately, culminated into the Sessions Case No.54 of 2004. 18. It appears that as some of the appellants were arrested later in point of time, a separate charge-sheet was filed against them and the same led to registration of the Sessions Case No.184 of 2004. 19. It appears that both the Sessions Cases were ordered to be tried together. 20. 18. It appears that as some of the appellants were arrested later in point of time, a separate charge-sheet was filed against them and the same led to registration of the Sessions Case No.184 of 2004. 19. It appears that both the Sessions Cases were ordered to be tried together. 20. The trial court, vide order dated 24th August 2004, framed the following charge vide Exh.4 : “Common Charge in the Sessions Cases Nos.54 of 2004 and 184 of 2004 : CHARGE : I, F.U. Malek, Additional Sessions Judge, Sixth Fast Track Court, Panchmahals, Godhra, frame the charge against you, the accused persons in the Sessions Case No.54 of 2004 namely, (1) Mangabhai Chhelabhai Nayak, aged 42 years; (2) Saburbhai Chunabhai Nayak, aged 52 years; both residing at Meerapuri Faliya at Karoli, Taluka Kalol; (3) Ganpatbhai Kabhsinh Parmar, aged 34 years; (4) Kiranbhai Shankarbhai Jadav, aged 38 years; both residing at Sherpura, Taluka Ghoghanba, and the accused persons in Sessions Case No.184 of 2004 namely (1) Mangalbhai Ratnabhai Parmar, aged 40 years, residing at Sherpura, Taluka Ghoghamba; (2) Gulabbhai Pratapbhai Parmar, aged 28 years, residing at Sherpura, Taluka Ghoghamba; (3) Zenabhai Kalubhai Nayak, aged 40 years, residing at Rayaniya Faliya, Karoli, Taluka Kalol; (4) Kalyansinh Dalsinh Gohil, aged 42 years, residing at Navi Karoli, Taluka Kalol; (5) Himmatsinh Gulabsinh Gohil, aged 41 years, residing at Navi Karoli, Taluka Kalol; (6) Mahipatsinh Kalubhai Chauhan, aged 45 years, residing at Chalali, Taluka Kalol; (7) Bhimsinh Keshrisinh Chauhan, aged 25 years, residing at Karoli Faliyu, Taluka Kalol; (8) Vakhatsinh Chhatrasinh Parmar, aged 48 years, residing at Sherpura, Taluka Ghoghamba; (9) Rangitsinh Andarsinh Chauhan, aged 38 years, residing at Chalali, Taluka Kalol; (10) Vijaysinh Dhansukhbhai Chauhan, aged 32 years, residing at Chalali, Taluka Kalol; (11) Samantsinh Sukabhai Chauhan, aged 45 years, residing at Chalali, Taluka Kalol; (12) Vinodbhai Dhansukhbhai Chauhan, aged 28 years, residing at Chalali, Taluka Kalol; (13) Madhavsinh Kalubhai Chauhan (abated); (14) Vijaysinh Vakhatsinh Parmar, aged 19, residing at Sherpura; (15) Vikramsinh Vechatbhai Baria (Parmar), aged 39 years, residing at Sherpura, Taluka Ghoghamba; (16) Zerabhai Revabhai Nayak, aged 46 years, residing at Karoli-nu-Faliya, Rayaniya, Taluka Kalol; (17) Udesinh Amarsinh Bamthiya, aged 46 years, residing at Morapuri-nu-Faliyu, Dhunadar; (18) Jagatsinh Amarsinh Bamniya, aged 48 years, residing at Morapuri-nu-Faliyu, Dhunadar; (19) Somabhai Lakshmanbhai Bariya, aged 35 years, residing at Meerapur, Taluka Kalol; (20) Nansinh Lakshmanbhai Bariya, aged 37 years, residing at Meerapur, Taluka Kalol; (21) Ramsinh Kalubhai Chauhan, aged 65 years, residing at Chalali; (22) Karansinh alias Kala Ganpat Parmar, aged 25 years, residing at Sherpura, Taluka Ghoghamba; (23) Ramesh alias Ramesh Vechat Parmar, aged 33 years, residing at Sherpura, Taluka Ghoghamba that...... On 27/02/2002, the incident of Sabarmati Express Train Carnage took place at Godhra. Pursuant to the said incident, communal riots flared up, and on 28/02/2002 at around 23:00 hours, all of you (accused), armed with deadly weapons, hatched a criminal conspiracy, thereby vandalized and looted the houses of the witnesses and set on fire the cabins, shops etc. at Mouje Karoli, Meerapur, Malvan, Chalali, Kadaviya villages and caused loss of Rs.10,63,000/-. All of you (accused), armed with deadly weapons, violated the notification of prohibition to keep arms issued by the District Magistrate, thereby committed the offence punishable under Sections 395, 435, 436, 120-B of the Indian Penal Code and 135 of the B.P. Act in the territorial jurisdiction of this Court. This Court has jurisdiction to try the aforesaid offences. Therefore, it is hereby ordered to hold a trial of the aforesaid offence against you in this Court.” 21. The accused persons pleaded not guilty to the aforesaid charge and they claimed to be tried. CASE OF THE PROSECUTION : 22. The prosecution examined the following witnesses in the course of the trial : Sr.No. Name of the Witness Exhibit 1. Complainant Ahmed Haji Mohmad Hathida 35 2. Panchwitness Kanubhai Laxmanbhai Nayak 36 3. Panchwitness Bhemabhai Sukabhai Nayak 38 4. Witness Jaitunbibi Ismail Ranta 39 5. Witness Shabbir Abdul Hakim Dat 48 6. Witness Ahmed Sikander Dat 49 7. Witness Ahmed Hussain Kanjariya 50 8. Witness Mohmad Yakubhai Vhora 52 9. Witness Yakubbhai Taherali Vhora 53 10. Witness Siraj Mohmadali Khatuda 54 11. Witness Ibrahim Ismail Pittal 55 12. P.S.O. Rumalbhai Varsingbhai 63 13. A.S.I. Babubhai Fulabhai 67 14. Witness Kanaksinh Mohansinh 71 15. Witness Laxmansinh Ranchhodsinh Parmar 74 16. Witness Dalpatbhai Punabhai Nayak 75 17. Panchwitness Narendrasinh Bhalji Chauhan 81 18. Panchwitness Shivsinh Chhatrasinh Chauhan 83 19. Witness Lalabhai Tersingbhai 84 20. Panchwitness Vijaybhai Vitthalbhai Gohil 85 21. Panchwitness Arjunsing Shabhsing 88 22. Panchwitness Keshrisinh Bharatsinh 89 23. Investigating Officer P.S.I. Ramanbhai Patil 101 24. P.S.I. Hiralal Mansurbhai Vala 114 23. The prosecution also led the following pieces of documentary evidence in support of its charge : Sr.No. Description of the Documents Exhibit 1. Panchnama of the place of offence 37 2. Arrest panchnama of accused Mangalbhai Shivabhai 40 3. Arrest panchnama of accused Gulabbhai Parmar 41 4. Panchnama of the person of accused Ramesh Vechat 42 5. The prosecution also led the following pieces of documentary evidence in support of its charge : Sr.No. Description of the Documents Exhibit 1. Panchnama of the place of offence 37 2. Arrest panchnama of accused Mangalbhai Shivabhai 40 3. Arrest panchnama of accused Gulabbhai Parmar 41 4. Panchnama of the person of accused Ramesh Vechat 42 5. Panchnama of the person of accused Manga Ghela and Sabur Chuna 43 6. Panchnama of the person of accused Ganpatsinh Kabhsinh and Karansinh 44 7. Original complaint of the complainant 64 8. Letter written to make investigation into the crime 65 9. Arrest panchnama of accused Samant Suka and Madhavsinh Kalu 72 10. Arrest panchnama of accused Vijaysinh Vakhatsinh Parmar 73 11. Arrest panchnama of accused Kalyansinh Gohil 76 12. Recovery panchnama of the muddamal 77 13. Arrest panchnama of accused Mahipatsinh and Vijaysinh 82 14. Arrest panchnama of accused Jena Kalu 86 15. Arrest panchnama of accused Himmatsinh Gohil 87 16. Panchnama of recovery of stick from accused Karansinh 90 17. Summary papers 102 18. Letter written by P.S.I. Kalol to the P.S.I. Rajgadh 106 19. Copy of Public Notice 115 24. The trial court framed the following points for the determination : “1. Whether the prosecution proves beyond reasonable doubt that the accused vandalized and set on fire the houses of the complainant - witnesses located at Mouje Villages - Karoli, Meerapuri, Malvan, Chalali and Kadaviya and also hatched criminal conspiracy to loot and set on fire the houses, cabins and shops at around 23:00 hours on 28/02/2002 ? 2. Whether the prosecution proves beyond reasonable doubt that the accused, in collusion with others, armed with deadly weapons, threatened the complainant witnesses and looted some of their properties and committed dacoity at Mouje Villages Karoli, Meerapuri, Malvan, Chalali and Kadaviya at around 23:00 hours on 28/02/2002 ? 3. Whether the prosecution proves beyond reasonable doubt that the accused, in collusion with others, armed with deadly weapons, vandalised and destroyed the properties of the complainant – witnesses by setting them on fire at Mouje Villages Karoli, Meerapuri, Malvan, Chalali and Kadaviya villages, vandalised and thus committed the offence at around 23:00 hours on 28/02/2002 ? 4. 3. Whether the prosecution proves beyond reasonable doubt that the accused, in collusion with others, armed with deadly weapons, vandalised and destroyed the properties of the complainant – witnesses by setting them on fire at Mouje Villages Karoli, Meerapuri, Malvan, Chalali and Kadaviya villages, vandalised and thus committed the offence at around 23:00 hours on 28/02/2002 ? 4. Whether the prosecution proves beyond reasonable doubt that the accused, in collusion with others, armed with deadly weapons set on fire the houses of the complainant witnesses at Mouje Villages Karoli, Meerapuri, Malvan, Chalali and Kadaviya and caused loss of Rs.10,63,000/-, thereby committed the offence at around 23:00 hours on 28/02/2002 ? 5. Whether the prosecution proves beyond reasonable doubt that the accused violated the Notification of prohibition to keep arms issued by the District Magistrate, by gathering and armed with deadly weapon at Mouje Villages Karoli, Meerapuri, Malvan, Chalali and Kadaviya, thereby committed the offence at around 23:00 hours on 28/02/2002 ? 6. What final order?” 25. The aforesaid points for the determination came to be answered as under : “1. In the affirmative. 2. In the affirmative. 3. In the affirmative. 4. In the affirmative. 5. As per the final order.” 26. Ultimately, upon appreciation of the oral as well as the documentary evidence on record, the trial court held all the appellants herein guilty of the offences they were charged with and they came to be sentenced accordingly as stated above. 27. Being dissatisfied and aggrieved with the judgment and order of conviction and sentence passed by the trial court, the appellants come up before this Court with their respective appeals. 28. We have heard Mr.S.V.Raju, the learned senior counsel appearing for the appellants of the Criminal Appeal No.2189 of 2005 and Mr.Vijay Patel, the learned counsel appearing for the appellants of the Criminal Appeal No.2531 of 2005. We have also heard the learned APP appearing for the State. SUBMISSIONS ON BEHALF OF THE APPELLANTS : 29. The learned counsel appearing for the appellants vehemently submitted that the trial court committed a serious error in holding the accused persons guilty of the offences of dacoity, criminal conspiracy and mischief by fire and other explosive substance with the intention to destroy the residential houses. 30. The principal argument canvassed by the learned counsel appearing for the appellants is with regard to the charge framed by the trial court. 30. The principal argument canvassed by the learned counsel appearing for the appellants is with regard to the charge framed by the trial court. It is submitted that the charge is so defective that on this ground alone the conviction deserves to be quashed and set-aside. It is submitted that in the entire charge, there is not a whisper of formation of any unlawful assembly or a whisper as regards the common object of such unlawful assembly. However, according to the learned counsel appearing for the appellants, the trial court proceeded on the footing as if the accused persons had formed an unlawful assembly and the common object of such unlawful assembly was to commit the offences enumerated above. 31. It is vehemently submitted that unlike Section 34 of the IPC, Section 149 constitute a distinct offence. In other words, it is submitted that Section 149 of the IPC is a substantive offence and failure to frame charge by the trial court of any substantive or distinct offence is not mere irregularity but it could be termed as an illegality going to the root of the matter. 32. It is submitted that such an approach could be termed as absolutely erroneous and illegal and grave prejudice could be said to have been caused to the accused persons on account of the serious defect in the charge. 33. It is submitted that in the absence of any specific charge for the offences punishable under Sections 147, 148 and 149 of the Indian Penal Code, the trial court could not have fastened vicarious liability upon each of the accused persons. 34. It is submitted that even if the entire case of the prosecution is believed or accepted to be true, the conviction for the offence of dacoity is not sustainable in law. According to the learned counsel, the intention of the accused persons was not to commit dacoity. Even according to the case of the prosecution, the incident had occurred on account of the incident which had occurred on the previous day at the Godhra Railway Station. The incident in question could be said to be the outcome of the communal tension on account of the Godhra carnage. 35. It is submitted that by any stretch of imagination, it cannot be said that the accused persons committed dacoity. 36. The incident in question could be said to be the outcome of the communal tension on account of the Godhra carnage. 35. It is submitted that by any stretch of imagination, it cannot be said that the accused persons committed dacoity. 36. It is further submitted that there is not an iota of evidence to even remotely suggest that a criminal conspiracy was hatched by the accused persons to commit the offences enumerated above. 37. It is also submitted that there may be some evidence to indicate that the movable and immovable properties of the witnesses were destroyed or extensive damage was caused or the houses were set on fire, but there is nothing to indicate as regards any particular overt act of the accused persons. In the absence of any charge under Section 149 of the Indian Penal Code, all the accused persons could not have been convicted as if they were all the members of the unlawful assembly and the common object of the unlawful assembly was to commit the offences enumerated above. 38. The learned counsel appearing for the appellants submitted that the conviction is substantially based on the oral evidence of the original first informant PW1 (Exh.35), PW4 (Exh.39) (eye-witness), PW5 (Exh.48) (eye-witness) and PW7 (Exh.50) (eye-witness). 39. It is also submitted that the FIR was lodged after a delay of almost one month. 40. In the last, it is submitted that although the eye-witnesses claim to have witnessed the destruction of the houses, etc., yet their evidence would indicate that they all had fled away at a far off place and in such circumstances they could not have been in a position to witness anything or even identify so many persons in the mob. 41. In such circumstances referred to above, the learned counsel appearing for the convicts pray that there being merit in their appeals, those be allowed and the judgment and order of conviction be quashed and set-aside. SUBMISSIONS ON BEHALF OF THE STATE : 42. The learned APP appearing for the State vehemently submitted that the case on hand is very serious. The case on hand, according to the learned APP, is one of communal riots. SUBMISSIONS ON BEHALF OF THE STATE : 42. The learned APP appearing for the State vehemently submitted that the case on hand is very serious. The case on hand, according to the learned APP, is one of communal riots. It is submitted that no error, not to speak of any error of law, could be said to have been committed by the trial court in holding the accused persons guilty of the offences they were charged with. 43. It is also submitted that the eye-witnesses are absolutely reliable witnesses and there is nothing in their evidence on the basis of which it could be said that they had no occasion to witness the incident. It is further submitted that some of the accused persons were known to the eye-witnesses as one of the accused persons was the Sarpanch of the village and the other accused persons were also residents of the very same village where the incident had occurred. 44. The learned APP would submit that all the necessary ingredients to constitute the offence of dacoity could be said to be constituted from the oral evidence of the witnesses. 45. It is submitted that the panchnamas drawn by the Investigating Officer would indicate that the houses were extensively damaged and some of the houses were set on fire. 46. It is submitted that the incident had occurred only on account of the Godhra carnage, and with a view to seek revenge, the attack was launched on the members of the minority community. 47. The learned APP would submit that mere defect in the charge without anything more is not sufficient to quash and set aside the conviction. The accused persons have not been able to demonstrate or point out any serious prejudice which could be said to have been caused to them on account of the defect in the charge. 48. It is submitted that the accused persons were given to understand that they all together had laid an attack on the members of the minority community. In such circumstances, according to the learned APP, each of the accused persons in the mob could be said to be jointly liable. 48. It is submitted that the accused persons were given to understand that they all together had laid an attack on the members of the minority community. In such circumstances, according to the learned APP, each of the accused persons in the mob could be said to be jointly liable. The learned APP would submit that even if no overt act is imputed to a particular accused, when the charge itself makes it clear about the formation of the unlawful assembly with a common object, the presence of the accused persons as part of the unlawful assembly is sufficient for conviction. 49. The learned APP in the last submitted that assuming for the moment that the charge was not framed properly or in accordance with law, the same at the best could be termed as an irregularity and not an illegality. The accused persons ought to have raised this issue before the trial court at the earliest. 50. The learned APP vehemently submitted that Section 149 of the IPC does not constitute a substantive offence. Unlike Section 34 of the IPC which attributes common intention, Section 149 of the IPC merely attributes vicarious liability, and in such circumstances, the failure on the part of the trial court to frame charge under Section 149 of the IPC is just an irregularity and not an illegality going to the root of the matter. 51. In such circumstances referred to above, the learned APP prays that there being no merit in the appeals, those be dismissed and the judgment and order of conviction and sentence be affirmed. 52. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the trial court committed any error in holding the accused persons guilty of the offences they were charged with. UNLAWFUL ASSEMBLY AND COMMON OBJECT : 53. The provisions of Chapter VIII of the Indian Penal Code deal with the “Offences against the Public Tranquility”. Section 141 of the IPC defines “Unlawful Assembly” as an assembly of five or more persons with a common object. Such common objects are specified in the section, and what would be applicable in this case would be the third aspect, i.e. “to commit any mischief or criminal trespass, or other offences”. Section 141 of the IPC defines “Unlawful Assembly” as an assembly of five or more persons with a common object. Such common objects are specified in the section, and what would be applicable in this case would be the third aspect, i.e. “to commit any mischief or criminal trespass, or other offences”. Section 142 of the IPC provides that a person who, being aware of the facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly, while Section 143 of the IPC provides the punishment for being part of such an unlawful assembly. Section 144 of the IPC deals with joining an unlawful assembly, armed with deadly weapon, which is likely to cause death; Section 146 of the IPC deals with rioting; Section 147 of the IPC deals with punishment for rioting, while Section 148 of the IPC deals with rioting, armed with deadly weapon. Section 149 of the IPC reads as under : “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” 54. The Supreme Court, in Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel and others, reported in (2018)7 SCC 743 , has discussed the concept of vicarious liability. The concept of vicarious liability, as a result of which a large number of accused constituting an unlawful assembly can be held guilty, has been discussed, to hold that it is not necessary that each of the accused inflict fatal injury or any injury at all; the mere presence of an accused in such an assembly is sufficient to render him vicariously liable under Section 149 of the IPC, for causing the death of the victim of the attack, provided that the accused are told that they are to face the charge, rendering them so vicariously liable. The principle of this vicarious liability, under Section 149 of the IPC has been set out in para 28 of the judgment and reads as under : “Section 149 propounds a vicarious liability [Shambhu Nath Singh v. State of Bihar, AIR 1960 SC 725 : 1960 CriLJ 1144] in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly, and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object.” 55. The concept of unlawful assembly under Section 149 of the IPC was, thus, as per para 31 of the aforesaid decision, opined to have two elements : “(i) The assembly should consist of at least five persons; and (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein.” 56. In that context, in paras 32 & 33, it has been observed as under : “32. For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 or (ii) vicariously liable under Section 149 for some other offence, it must first be proved that such person is a member of an “unlawful assembly” consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under Section 141 IPC. 33. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. 33. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non-fatal.” 57. In Dev Karan @ Lambu v. State of Haryana (Criminal Appeal No.299 of 2010, decided on 6th August 2019), the argument before the Supreme Court was that unless there is infliction of punishment under Section 143 of the IPC, as a sequitur to forming an unlawful assembly under Section 141 of the IPC, there could be no cause to apply Section 149 of the IPC. The submission was that the significance of not invoking Section 141 of the IPC is that the very substratum of constituting an unlawful assembly did not exist. The Supreme Court negatived such contention holding as under : “17. To support the aforesaid line of reasoning, a reference was also made to the earlier judgment in Dani Singh v. State of Bihar, (2004)13 SCC 203 , wherein, in para 11 it has been observed as under: “11. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word “object” means the purpose or design and, in order to make it “common”, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression “in prosecution of common object” as appearing in Section 149 has to be strictly construed as equivalent to “in order to attain the common object”. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly.” 18. In order to appreciate the significance of specifically invoking Section 141 of the IPC, it would be appropriate to refer to the judgment of this Court in Mahadev Sharma v. State of Bihar, (1966)1 SCR 18 . This Court opined that for application of Section 149 of the IPC, there must be an unlawful assembly. The scheme of the provisions was explained as under : “9. The fallacy in the cases which hold that a charge under Section 147 is compulsory arises because they overlook that the ingredients of Section 143 are implied in Section 147 and the ingredients of Section 147 are implied when a charge under Section 149 is included. An examination of Section 141 shows that the common object which renders an assembly unlawful may involve the use of criminal force or show of criminal force, the commission of mischief or criminal trespass or other offence, or resistance to the execution of any law or of any legal process. Offences under Sections 143 and 147 must always be present when the charge is laid for an offence like murder with the aid of Section 149, but the other two charges need not be framed separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under Section 147 or Section 148, and Section 147 is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is under Section 149 read with an offence under the Indian Penal Code.” 19. It is thus that Section 143 is not used when the charge is under Section 147 or Section 148, and Section 147 is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is under Section 149 read with an offence under the Indian Penal Code.” 19. Thereafter, it has been opined that if charges framed against the appellant contain all the necessary ingredients to bring home to each of the member of the unlawful assembly, the offence, with aid of Section 149 of the IPC, and the prosecution proves the existence of an unlawful assembly with a common object, which is the offence, as also the membership of each appellant, nothing more is necessary. The effect of these observations is that Section 141 of the IPC only defines what is an unlawful assembly and in what manner the unlawful assembly conducts itself, and in what cases the common object would make the assembly unlawful is specified in the Sections thereafter, inviting the consequences of the appropriate punishment in the context of Section 149 of the IPC. 20. In Kuldip Yadav v. State of Bihar, (2011)5 SCC 324 , it has been opined in para 36 that a clear finding regarding the nature of the common object of the assembly must be given and the evidence discussed must show not only the common object, but also that the object was unlawful, before recording a conviction under Section 149 of the IPC. What is required is that the essential ingredients of Section 141 of the IPC must be established. 21. On examination of the aforesaid aspect, we are unable to come to a conclusion that there was any fatal flaw in the non-inclusion of Section 141 of the IPC while framing charges, as would render the complete trial illegal, or that it can result in a finding that there would be no occasion to invoke Section 149 of the IPC. Learned counsel appears not to have appreciated the judicial pronouncements in the correct perspective, as what is necessary for invoking Section 149 of the IPC has been set out in these judgments. It has nowhere been said that Section 141 of the IPC should be specifically invoked or else the consequences would be fatal. Learned counsel appears not to have appreciated the judicial pronouncements in the correct perspective, as what is necessary for invoking Section 149 of the IPC has been set out in these judgments. It has nowhere been said that Section 141 of the IPC should be specifically invoked or else the consequences would be fatal. As long as the necessary ingredients of an unlawful assembly are set out and proved, as enunciated in Section 141 of the IPC, it would suffice. The actions of an unlawful assembly and the punishment thereafter are set out in the subsequent provisions, after Section 141 of the IPC, and as long as those ingredients are met, Section 149 of the IPC can be invoked.” 58. The offences under Sections 147 and 148 are distinct offences. Section 149 of the IPC creates a separate offence by declaring the vicarious liability of all the members of an unlawful assembly in certain circumstances. 59. It was held by a three-judge bench of the Supreme Court in the case of Shambhu Nath Singh & Others v. State of Bihar, AIR 1960 SC 725 , thus : “Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object.” (emphasis supplied) 60. The aforesaid three-judge Bench decision of the Supreme Court in the case of Shambhu Nath Singh (supra) was taken note of by the Supreme Court in a recent pronouncement in the case of Vinubhai Ranchhodbhai Patel (supra). Relying on Shambhu Nath Singh (supra), a two-judge Bench of the Supreme Court took the view in Vinubhai Ranchhodbhai Patel (supra) that Section 149 of the IPC is not a substantive offence. In other words, the Bench took the view that Section 149 of the IPC does not constitute a distinct or a substantive offence. In Vinubhai Ranchhodbhai Patel (supra), the Supreme Court observed in para-14 as under : “14. In other words, the Bench took the view that Section 149 of the IPC does not constitute a distinct or a substantive offence. In Vinubhai Ranchhodbhai Patel (supra), the Supreme Court observed in para-14 as under : “14. It was held by a three-judge bench of this Court in Shambhu Nath Singh & Others v. State of Bihar, AIR 1960 SC 725 : “Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object” However, there are benches of a lesser smaller strength which have observed that Section 149 creates a specific and distinct offence. In view of the fact that decision in Shambu Nath Singh was decided by a larger bench, the law declared therein must be taken to be declaring the correct legal position. With utmost respect, we may also add that the same is in accord with the settled principles of the interpretation of the statutes having regard to the language of Section 149 and its context.” 61. The aforesaid statement of law in Vinubhai Ranchhodbhai Patel (supra) that Section 149 of the IPC is not a substantive offence could be termed as per incuriam. It appears that the attention of Their Lordships was not drawn to its earlier decision in the case of Nanak Chand v. State of Punjab, reported in AIR 1955 SC 274 . Nanak Chand (supra) is a decision rendered by a three-judge Bench. In Nanak Chand (supra), the Supreme Court took the view that Section 149 of the IPC is a substantive offence. The failure on the part of the trial court to frame appropriate charge for the offence under Section 149 of the IPC is a serious lapse and may vitiate the conviction. There are many other decisions of the larger bench of the Supreme Court taking the view that Section 149 of the IPC creates a specific and distinct offence. That being the position, a specific charge under this section must also be framed along with the substantive section. There are many other decisions of the larger bench of the Supreme Court taking the view that Section 149 of the IPC creates a specific and distinct offence. That being the position, a specific charge under this section must also be framed along with the substantive section. An accused person is entitled to know with certainty and accuracy the exact value of the charge brought against him, whether he is sought to be implicated for the acts not committed by himself but by others with whom he was in company. 62. Section 34 of the IPC is in Chapter II, General Explanations, and Section 149 of the IPC is in Chapter VIII, Of Offences Against The Public Tranquility. For attracting Section 34 of the IPC, participation in some way or the other in a crime is necessary, whereas under Section 149 of the IPC the mere membership of an unlawful assembly at the time of committing the offence will fasten the liability on all the members of that assembly of the offence committed. Under the former section participation in some action with the common intention of committing the crime is necessary, whereas under the latter mere membership with common object of an unlawful assembly which committed the crime is the basis. Although all the members of the unlawful assembly might not have committed the crime, yet each one of them shall have to be held responsible as a member. On behalf of the appellants, it was conceded and rightly, that even if no charge is framed under Section 34 of the IPC along with the substantive section, on the basis of the materials on record a person may be convicted, if no prejudice is caused. It was held by the Privy Council in Barendra Kumar Ghosh v. Emperor ( AIR 1925 PC 1 ) : (26 Cri LJ 431) that Section 149 of the IPC creates a specific and a distinct offence. This was approved by the Supreme Court in a number of cases, a few of which are: Pandurang v. State of Hyderabad (AIR, 1955 SC 216): (1955 Cri LJ 572); Nanak Chand v. State of Punjab ( AIR 1955 SC 274 ) : (1955 Cri LJ 721); and Lakhan Mahto v. State of Bihar ( AIR 1966 SC 1742 ) : (1966 Cri LJ 1349). If Section 149 of the IPC created specific and distinct offence, then a charge under that head must be framed. In Pandurang's case (supra) of course the Supreme Court observed as follows:- “In Pandurang's case we are left with the difficult question about S.84 of the I.P.C. But before we deal with that, we will set S.149, I. P. C. aside. There is no charge under S.149 and, as Lord Sumner points out in 'Barendra Kumar Ghosh v. Emperor' ((1925) 26 Cri LJ 431 (PC)), Section 149, unlike S.34 creates a specific offence and deals with the punishment of that offence alone. We would accordingly require strong reasons for using S.149 when it is not charged even if it be possible to convict under that Section in absence of specific charge, a point we do not decide here.” 63. The Supreme Court, therefore, in Pandurang's case (supra) did not decide as to whether in the absence of a charge under Section 149 of the IPC a person can be convicted under the substantive section. No case was brought to our notice which has held that although no specific charge was framed under Section 149 of the IPC along with the substantive section, yet a person can be convicted for the substantive offence read with Section 149 of the IPC. 64. In Bhajan Singh and others v. State of U.P., reported in 1974 Cri.L.J. 1029, a bench of three-judges observed in para-13 as under : “Section 149, I.P.C. constitutes, per se, a substantive offence although the punishment is under the section to which it is tagged being committed by the principal offender in the unlawful assembly, known or unknown. Even assuming that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well-knit with what followed as the dangerous finale of, call it, the beating. This is not a case where something foreign or unknown to the object has taken place all of a sudden. It is the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the five accused.” (See also K.C. Mathew v. The State of Travancore-Cochin, (1955) 2 SCR 1057 : ( AIR 1956 SC 241 : 1956 Cri LJ 444)) 65. It is the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the five accused.” (See also K.C. Mathew v. The State of Travancore-Cochin, (1955) 2 SCR 1057 : ( AIR 1956 SC 241 : 1956 Cri LJ 444)) 65. In Sunil Balkrishna Bhoir v. State of Maharashtra, reported in 2007 Cri.L.J. 3277, the Supreme Court, after an exhaustive review of its various earlier decisions, has observed in para-17 as under : “Section 149 per se constitutes a substantive offence. The object of this section is to make clear that an accused person whose case falls within its terms cannot put forward the defence that he did not, with his own hand, commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Unlawful assembly was formed originally to assault and something might have happened all of a sudden.” 66. We are not impressed by the submission canvassed by the learned APP on behalf of the State that as it is not necessary to make a reference of Section 34 of the IPC in the charge along with the substantive offence, in the same manner, there is no necessity or requirement to make a reference of Section 149 of the IPC along with the substantive offence. When a person is charged with an offence read with Section 149 of the IPC, he is only put on notice of two facts that he was a member of the unlawful assembly and that an offence was committed in prosecution of the common object or he knew that an offence was likely to be committed. He is, therefore, called upon to meet only the points mentioned above and is not called upon to show that he has not committed any individual act. Section 149 of the IPC creates a distinct offence, at any rate, a distinct head of liability. So a person charged with constructive liability cannot be convicted for a substantive offence. It is not the case with Section 34 of the IPC which does not purport to create an offence but only lays down a rule of law. DISTINCTION BETWEEN SECTION 34 AND SECTION 149 OF THE INDIAN PENAL CODE 67. So a person charged with constructive liability cannot be convicted for a substantive offence. It is not the case with Section 34 of the IPC which does not purport to create an offence but only lays down a rule of law. DISTINCTION BETWEEN SECTION 34 AND SECTION 149 OF THE INDIAN PENAL CODE 67. The following are the distinction between Sections 34 and 149 of the IPC : (i) Section 34 does not by itself create any specific offence, whereas Section 149 does so; (ii) Some active participation, especially in crime involving physical violence, is necessary under Section 34, but Section 149 does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in preparation and commission of the crime; (iii) Section 34 speaks of common intention, but Section 149 contemplates common object which is undoubtedly wider in its scope and amplitude than intention; and (iv) Section 34 does not fix a minimum number of persons who must share the common intention, whereas Section 149 requires that there must be at least five persons who must have the same common object. 68. Chapter XVII of the Code of Criminal Procedure deals with “charges” in a criminal case. Sections 211 to 213 deal with the particulars which are required to be contained in a charge in a criminal trial. These provisions are made to ensure a fair procedure by which a person accused of an offence should be tried – a procedure in compliance with the requirement of the mandate of Article 21 of the Constitution of India. The accused are entitled in law to know with precision what is the charge on which they are put to trial. It was held by the Supreme Court in Esher Singh v. State of Andhra Pradesh, (2004)11 SCC 585 , thus: “It is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. A charge is not an accusation made or information given in the abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it. A charge is not an accusation made or information given in the abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. A charge is formulated after inquiry as distinguished from the popular meaning of the word as implying inculpation of a person for an alleged offence as used in Section 224 of the IPC.” [emphasis supplied] 69. By definition of the offences covered under Sections 147 and 148, a person cannot be charged simultaneously with both the offences by the very nature of these offences. A person can only be held guilty of an offence punishable either under Section 147 or Section 148. 70. In cases like the one on hand where a large number of accused constituting an “unlawful assembly” are alleged to have attacked the members of the minority community and are alleged to have committed the offence of dacoity and set the houses on fire, it is not necessary that each of the accused persons should participate in the act. The invocation of Section 149 is essential in such cases for punishing the members of such unlawful assemblies on the ground of vicarious liability even though they are not accused of having participated in the actual act of rioting, etc. The mere presence of the accused persons in such an “unlawful assembly” is sufficient to render them vicariously liable under Section 149 of the IPC for the alleged offence provided that the accused are told that they have faced a charge rendering them vicariously liable under Section 149 of the IPC for the offence punishable under Section 436 of the IPC. The failure to appropriately invoke and apply Section 149 at times may enable large number of offenders to get away with the crime. 71. The Supreme Court in Bala Seetharamaiah v. Perike S.Rao, (2004)4 SCC 557 , held as under : “8. Unfortunately, the Sessions Judge did not frame charge against the accused persons for offence punishable under Section 302 IPC read with Section 149 IPC. 71. The Supreme Court in Bala Seetharamaiah v. Perike S.Rao, (2004)4 SCC 557 , held as under : “8. Unfortunately, the Sessions Judge did not frame charge against the accused persons for offence punishable under Section 302 IPC read with Section 149 IPC. It is also important to note that the relevant prosecution allegations so as to bring in the ingredients of the offence punishable under Section 302 IPC read with Section 149 IPC also were not incorporated in the charge framed by the Sessions Judge. The accused were not told that they had to face charges of being members of an unlawful assembly and the common object of such assembly was to commit murder of the deceased and in furtherance of that common object murder was committed and thereby they had a constructive liability and thus they committed the offence punishable under Section 302 IPC read with Section 149 IPC. Of course the mere omission to mention Section 149 may be considered as an irregularity, but failure to mention the nature of the offence committed by them cannot be said to be a mere irregularity. Had this mistake been noticed at the trial stage, the Sessions Judge could have corrected the charge at any time before the delivery of the judgment. In the instant case, the accused were told to face a charge punishable under Section 302 simpliciter and there was no charge under Section 302 IPC read with Section 149 IPC. Therefore, it is not possible to reverse the conviction of the accused under Section 326 IPC and substitute the conviction for the offence punishable under Sections 302/149 IPC as there was no charge framed against them for such offence.” 72. When a large number of people gather together (assemble) and commit an offence, it is possible that only some of the members of the assembly commit the crucial act which renders the transaction an offence and the remaining members do not take part in that ‘crucial act' - for example in a case of murder, the infliction of the fatal injury. It is in those situations, the legislature thought it fit as a matter of legislative policy to press into service the concept of vicarious liability for the crime. 73. It is in those situations, the legislature thought it fit as a matter of legislative policy to press into service the concept of vicarious liability for the crime. 73. In the case of Ram Gope v. State of Bihar, AIR 1969 SC 689 , in para-5 of the judgment, the Supreme Court held as under : “...When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence.” 74. Section 149 IPC is one such provision. It is a provision conceived in the larger public interest to maintain the tranquility of the society and prevent the wrong doers (who actively collaborate or assist the commission of offences) from claiming impunity on the ground that their activity as members of the unlawful assembly is limited. 75. The responsibility of the prosecution and/or of the court (in a case like the one at hand where large numbers of people (5 or more) are collectively accused to have committed various offences and subjected to trial) - in examining whether some of the members of such group are vicariously liable for some offence committed by some of the other members of such group - requires an analysis. Such analysis has two components – (i) the amplitude and the vicarious liability created under Section 149 of the IPC; and (ii) the facts which are required to be proved to hold an accused vicariously liable for an offence. 76. To understand the true scope and amplitude of Section 149 of the IPC, it is necessary to examine the scheme of Chapter VIII (Sections 141 to 160) of the IPC which is titled “Of the offences against the public tranquility”. Sections 141 to 158 deal with the offences committed collectively by a group of 5 or more individuals. 77. 76. To understand the true scope and amplitude of Section 149 of the IPC, it is necessary to examine the scheme of Chapter VIII (Sections 141 to 160) of the IPC which is titled “Of the offences against the public tranquility”. Sections 141 to 158 deal with the offences committed collectively by a group of 5 or more individuals. 77. Section 141 of the IPC declares an assembly of five or more persons to be an ‘unlawful assembly’ if the common object of such assembly is to achieve any one of the five objects enumerated in the said section. (see Yeshwant and others v. State of Maharashtra, (1972)3 SCC 639 ) 78. One of the enumerated objects is to commit any offence. As per Section 40, “offence” means “Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word “offence” denotes a thing made punishable by this Code. 79. In the case of Manga alias Man Singh v. State of Uttarakhand, (2013)7 SCC 629 , the Supreme Court held as under : “The words falling under section 141, clause third “or other offence” cannot be restricted to mean only minor offences of trespass or mischief. These words cover all offences falling under any of the provisions of the Indian Penal Code or any other law.” 80. The mere assembly of 5 or more persons with such legally impermissible object itself constitutes the offence of unlawful assembly punishable under Section 143 of the IPC. It is not necessary that any overt act is required to be committed by such an assembly to be punished under Section 143 of the IPC. (see Dalip Singh and others v. State of Punjab, AIR 1953 SC 364 ) 81. If force or violence is used by an unlawful assembly or any member thereof in prosecution of the common objective of such assembly, every member of such assembly is declared under Section 146 to be guilty of the offence of rioting punishable with two years imprisonment under Section 147. To constitute the offence of rioting under Section 146, the use of force or violence need not necessarily result in the achievement of the common object. (see Yeshwant and others v. State of Maharashtra, (1972) 3 SCC 639 ) 82. To constitute the offence of rioting under Section 146, the use of force or violence need not necessarily result in the achievement of the common object. (see Yeshwant and others v. State of Maharashtra, (1972) 3 SCC 639 ) 82. In other words, the employment of force or violence need not result in the commission of a crime or the achievement of any one of the five enumerated common objects under Section 141. 83. Section 148 declares that rioting armed with deadly weapons is a distinct offence punishable with the longer period of imprisonment (three years). There is a distinction between the offences under Sections 146 and 148. To constitute an offence under Section 146, the members of the ‘unlawful assembly’ need not carry weapons. But to constitute an offence under Section 148, a person must be a member of an unlawful assembly, such assembly is also guilty of the offence of rioting under Section 146 and the person charged with an offence under Section 148 must also be armed with a deadly weapon. (see Sabir v. Queen Empress, (1894)ILR 22 Cal 276; In re Choitano Ranto and others, AIR 1916 Mad 788) 84. Section 149 propounds a vicarious liability in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object. The scope of Section 149 of the IPC was enunciated by this Court in Masalti v. State of U.P., AIR 1965 SC 202 as under : “The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this court in the case of Baladin assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence, and that emphatically brings out the principle that the punishment prescribed by section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.” 85. It can be seen from the above, that Sections 141, 146 and 148 of the IPC create distinct offences. Section 149 of the IPC only creates a vicarious liability. However, Sections 146, 148 and 149 contain certain legislative declarations based on the doctrine of vicarious liability. The doctrine is well known in civil law especially in the branch of torts, but is applied very sparingly in criminal law only when there is a clear legislative command. To be liable for punishment under any one of the provisions, the fundamental requirement is the existence of an unlawful assembly as defined under Section 141 made punishable under Section 143 of the IPC. 86. The concept of an unlawful assembly as can be seen from Section 141 has two elements: (i) The assembly should consist of at least five persons; and (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein. 87. 86. The concept of an unlawful assembly as can be seen from Section 141 has two elements: (i) The assembly should consist of at least five persons; and (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein. 87. For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 or (ii) vicariously liable under Section 149 for some other offence, it must first be proved that such person is a member of an ‘unlawful assembly’ consisting of not less than five persons irrespective of the fact whether the identity of each one of the five persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the five enumerated objects specified under Section 141 of the IPC. 88. The common object of the assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non fatal. 89. For mulcting liability on the members of an unlawful assembly under Section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. 89. For mulcting liability on the members of an unlawful assembly under Section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. For example, if five or more members carrying deadly or dangerous weapons collectively attack a victim and cause his death by fatal injuries, the fact that one or two of the members of the assembly did not in fact wielded their weapons does not mean that they did not have the knowledge of the fact that the offence of murder is likely to be committed. 90. The identification of the common object essentially requires an assessment of the state of mind of the members of the unlawful assembly. Proof of such mental condition is normally established by inferential logic. [see Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel and others] DEFECTIVE CHARGE : 91. One basic requirement of a fair trial in the criminal jurisprudence is to give precise information to the accused as to the accusation against him. This is vitally important to the accused in the preparation of his defence. In all trials under the Criminal Procedure Code the accused is informed of the accusation in the beginning itself. In case of serious offences the Code requires that the accusations are to be formulated and reduced to writing with great precision & clarity. This "charge" is then to be read and explained to the accused person. Charge serves the purpose of notice or intimation to the accused, drawn up according to specific language of law, giving clear and unambiguous or precise notice of the nature of accusation that the accused is called upon to meet in the course of trial. 92. The legal consequences of framing defective charges or omission in charges was considered by the Supreme Court in Dalbir Singh v. State of U.P., (2004)5 SCC 334 , and the Supreme Court held as follows: “Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. 92. The legal consequences of framing defective charges or omission in charges was considered by the Supreme Court in Dalbir Singh v. State of U.P., (2004)5 SCC 334 , and the Supreme Court held as follows: “Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Subsection (1) of this section provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any 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.” 93. It is obvious from the above that an erroneous or irregular or even absence of a specific charge shall not render the conviction recorded by a court invalid unless the appellate court comes to a conclusion that failure of justice has in fact been occasioned thereby. 94. The Supreme Court in Nanak Chand v. State of Punjab, reported in AIR 1955 SC 274 , held that Section 149 of the IPC creates a specific offence but Section 34 of the IPC does not, and they both are separate and distinguishable. 95. In Suraj Pal v. State of Uttar Pradesh, reported in AIR 1955 SC 419 , a Bench of three Judges had to consider a case where 19 accused stood charged under Sections 147, 148, 323 of the IPC read with Section 149, 307 read with Sections 149 and 302 of the IPC read with Section 149 of the IPC. All were convicted by the Sessions Judge. In appeal the High Court held that there was no common object to commit murder or to attempt murder and therefore Section 149 did not apply. But on the finding that it was the appellant who fired the shots which injured one and killed the other, the High Court convicted him under Section 302 of the IPC simpliciter and acquitted the others under Section 302 of the IPC read with Section 149 of the IPC and Section 307 of the IPC read with Section 149 of the IPC. The Supreme Court was of the opinion that though the absence of a charge under Section 302 of the IPC simplicter was a serious lacuna, the real question was whether it had prejudiced the accused. On facts, it was held that the appellant had been seriously prejudiced and consequently his conviction was quashed. 96. These decisions came up for consideration before a Bench of five Judges of the Supreme Court in W.Slaney v. State of M.P. ( AIR 1956 SC 116 ). The two decisions were distinguished and explained. Dealing with Nanak Chand's case ( AIR 1955 SC 274 ) in the leading judgment of Bose J. for himself and on behalf of S.R. Das, Acting C.J., it was observed as follows: “Now it is true that there are observations there which, without close examination, would appear to support the learned counsel for the appellant. But these observations must be construed in the light of the facts found, the most crucial fact being that patent prejudice was disclosed. It was found that the appellant there was in fact misled in his defence and one of the factors taken into consideration as indeed must always be the case, was that when he was told that he was to be tried under S.302 read with S.149 of the Penal Code, 1860 that indicated to him that he was not being tried for a murder committed by him personally but that he was only being made vicariouly liable for an act that another had done in prosecution of the common object of an unlawful assembly of which he was a member. But that was only one of the matters considered and it does not follow that every accused will be so misled. It all depends on the circumstances. The entire evidence and facts on which the learned Judges founded are not set out in the judgment but there is enough to indicate that had the appellant's attention been drawn to his own part in the actual killing he would probably have cross-examined the doctor with more care and there was enough in the medical evidence to show that had that been done the appellant might well have been exonerated. xxx xxx xxx (55) Now having reached the conclusion that there was prejudice, the learned Judges were of the opinion that the irregularity, if it can be so called when prejudice is disclosed, was incurable and from that they concluded, that an incurable irregularity is nothing but an illegality: a perfectly possible and logical conclusion when the word "irregularity" and "illegality" are not defined. xxx xxx xxx As there was prejudice in that case, the decision was invalid and being invalid it was illegal. We do not say that is necessarily so but it is a reasonably plausible conclusion and was what the learned Judges had in mind. xxx xxx xxx We agree that some of the expressions used in the judgment appear to travel wider than this but in order to dispel misconception we would now hold that the true view is the one we have propounded at length in the present judgment.” 97. In dealing with Suraj Pal's case ( AIR 1955 SC 419 ), it was observed as follows by Bose, J. : “This court held that the omission to frame a charge is a serious lacuna but despite that the real question is whether that caused prejudice. The learned Judges then proceeded to determine the question of prejudice on the facts of that case. The conclusion reached on the facts was that prejudice was disclosed, so an acquittal was ordered.” 98. In the leading judgment of Bose, J., the law has been laid down thus : “......Therefore, when there is a charge and there is either error or omission in it or both, and whatever its nature, it is not to be regarded as material unless two conditions are fulfilled both of which justice. xxx xxx xxx .........In the end, it all narrows down to this: some things are "illegal", that is to say, not curable, because the Code expressly makes them so; others are struck down by the good sense of Judges who, whatever expression they may use do so because those things occasion prejudice and offend their sense of fair play and justice........ …......Chapter XIX deals comprehensively with charges and Ss.535 and 537 cover every case in which there is a departure from the rules set out in that chapter. …......Chapter XIX deals comprehensively with charges and Ss.535 and 537 cover every case in which there is a departure from the rules set out in that chapter. Such departures range from errors, omissions and irregularities in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. In all these cases the only question is about prejudice. We say this because the Code repeatedly says so in express and emphatic terms and because that is the foundation on which mies of procedure are based ....... But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one. (45) In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total what of one, was taken at an early stage.” 99. In Suraj Pal's case Chandrasekhara Aiyar, J. speaking for himself and Jagannadhadas J. concurred with the views expressed above and summarised the law in paragraph 86 as follows: “(86) Ss. In Suraj Pal's case Chandrasekhara Aiyar, J. speaking for himself and Jagannadhadas J. concurred with the views expressed above and summarised the law in paragraph 86 as follows: “(86) Ss. 34, 114 and 149 of the Penal Code, 1860 provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out.” 100. The same principle has been laid down in Karnail Singh v. State of Punjab ( AIR 1954 SC 204 ); Mathew v. T.C. State ( AIR 1956 SC 241 ); Srikantiah v. State of Mysore (AIR 1959 SC Reports 496); Venkatadri v. State of A.P. ( (1971) 3 SCC 254 : AIR 1971 SC 1467 ); Bhoor Singh v. State of Punjab ( (1974) 4 SCC 754 : AIR 1974 SC 1256 ) and Ishwer Singh v. State of U.P. (1976 SCC (Cri) 629). All the above decisions stress the aspect that trial is vitiated only if prejudice is made out. 101. In Dhari and others v. State of Uttar Pradesh, AIR 2013 SC 308 , the Supreme Court re-considered the issue whether the appellants therein could be convicted under Sections 302 read with Section 149 of the IPC, in the event that the High Court had convicted three persons among the accused and the number of convicts had thus remained less than five which is in fact necessary to form an unlawful assembly as described under Section 141 of the IPC. The Supreme Court considered the earlier judgments in Amar Singh v. State of Punjab, AIR 1987 SC 826 ; Nagamalleswara Rao (K) v. State of A.P., AIR 1991 SC 1075 , Nethala Pothuraju v. State of A.P., AIR 1991 SC 2214 ; and Mohd. The Supreme Court considered the earlier judgments in Amar Singh v. State of Punjab, AIR 1987 SC 826 ; Nagamalleswara Rao (K) v. State of A.P., AIR 1991 SC 1075 , Nethala Pothuraju v. State of A.P., AIR 1991 SC 2214 ; and Mohd. Ankoos v. Public Prosecutor, AIR 2010 SC 566 , and came to the conclusion that in a case where the prosecution fails to prove that the number of members of an unlawful assembly are five or more, the court can simply convict the guilty person with the aid of Section 34 of the IPC, provided that there is adequate evidence on record to show that such accused shared a common intention to commit the crime in question. (see also: Jivan Lal v. State of M.P. (1997) 9 SCC 119 ; Hamlet v. State of Kerala, AIR 2003 SC 3682 ; Fakhruddin v. State of M.P., AIR 1967 SC 1326 ; Gurpreet Singh v. State of Punjab, AIR 2006 SC 191 ; and S.Ganesan v. Rama Raghuraman and Ors. (AIR 2011 SC (Cri) 419). 102. In Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786 , the Supreme Court considered the issue and held: “Therefore, .….unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory.” 103. In Darbara Singh v. State of Punjab, AIR 2013 SC 840 , the Supreme Court considered the similar issue and came to the conclusion that the accused has to satisfy the court that if there is any defect in framing the charge it has prejudiced the cause of the accused resulting in failure of justice. It is only in that eventuality the court may interfere. It is only in that eventuality the court may interfere. The Supreme Court elaborated the law as under: “The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465, CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s). "Failure of justice" is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be "failure of justice"; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over-emphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the court.” (Vide: Rafiq Ahmed alias Rafi v. State of U.P., AIR 2011 SC 3114 ; Rattiram v. State of M.P., AIR 2012 SC 1485 ; and Bhimanna v. State of Karnataka, AIR 2012 SC 3026 ) 104. Thus, the dictum as laid in all the aforesaid decisions of the Supreme Court is, unless the convict is able to establish that the defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend properly, no interference is required on mere technicalities. The order of conviction should be tested on the touchstone of the theory of prejudice. The mere imperfection in the charge is not enough by itself for the purpose of setting aside the conviction. In a case in which the accused are fully aware of the case against them and had full opportunity of rebutting the evidence given against them, it must be held that no prejudice has been caused to them by the defect or imperfection in the charge. 105. The essence of the matter is not a technical formula of words but the reality. If any issue with regard to error or omission in framing the charge comes up before the appellate court, then as explained by the Supreme Court in Willie (William) Slaney (supra), the court must ask itself the following questions : (1) Whether the accused was told ? (2) Was it explained to him ? (3) Did he understood ? (4) Was it done in a fair way ? 106. The trial court should also keep in mind the aforesaid four aspects while framing the charge : 107. In the case on hand what was exactly told by the trial court to the accused persons while framing the charge ? (3) Did he understood ? (4) Was it done in a fair way ? 106. The trial court should also keep in mind the aforesaid four aspects while framing the charge : 107. In the case on hand what was exactly told by the trial court to the accused persons while framing the charge ? Whether the accused persons could be said to have understood the charge clearly ? 108. In the case on hand what was brought to the notice of the accused persons were the following aspects : 109. The first thing that was brought to the notice of the accused persons was with regard to the incident of Godhra carnage dated 27th February 2002. The second thing which was brought to the notice of the accused persons was the fact that in connection with the incident of the Godhra carnage communal riots flared up and on 28th February 2002 at 23:00 hours in the night, all the accused together armed with deadly weapons hatched a criminal conspiracy, and as a part of the criminal conspiracy, the houses of the witnesses were set on fire and the household articles and other articles in the houses were looted and damaged. This is all that was told to the accused persons in the charge. There is no doubt that the accused persons were not clearly told or conveyed or were given to understand that they all formed an unlawful assembly and the common object of the unlawful assembly was rioting, arson, dacoity, etc. It was also not conveyed to the accused persons that each of the accused persons, being members of the unlawful assembly whose common object was to commit the aforesaid offences, was vicariously liable for the alleged offences. ORAL EVIDENCE ON RECORD : 110. The FIR Exh.64 came to be lodged by Ahmed Haji Mohammad (PW1). The PW1 has been examined by the prosecution vide Exh.35. The first informant has deposed that he is a resident of village Karoli. His house is situated at village Karoli and also his agricultural field. His father resides with him and he is having his own business. The first informant is running a shop in the name of Mohmad Abdul Sattar Hathida. He has deposed that the incident had occurred on 28th February 2002 at around 11 O'clock in the night. His house is situated at village Karoli and also his agricultural field. His father resides with him and he is having his own business. The first informant is running a shop in the name of Mohmad Abdul Sattar Hathida. He has deposed that the incident had occurred on 28th February 2002 at around 11 O'clock in the night. He has deposed that he was chatting with his brothers after the dinner and at that point of time, a mob of around 200 to 250 persons came in the locality. The mob was screaming and shouting. He has deposed that he himself and his brothers ran away to a nearby hill. He has also deposed that there are tube-lights surrounding his house. In such circumstances, he was able to identify some of the persons who were present in the mob. He has deposed that the persons who were present in the mob set his house on fire and looted the articles from his shop. His shop was also set on fire. According to him, he was able to identify ten persons from the mob. The first informant identified Vikrambhai Vechatbhai Bariya in the court-room. Vikrambhai Vechatbhai has been named as the accused no.1 in the FIR. The first informant also identified Ramanbhai Vechatbhai. Ramanbhai Vechatbhai has not been named in the FIR. The first informant also identified Ganpat Kabhsinh Parmar. Ganpatbhai Kabhsinh has been named in the FIR as the accused no.7. Kiranbhai Shankerbhai Jadav has also been named in the FIR as the accused no.9. He thereafter identified Bakabhai Vakhatbhai. Bakabhai Vakhatbhai has also been named in the FIR as the accused no.5. Thereafter, he identified Mangalbhai Ratnabhai Parmar. Mangalbhai Ratnabhai has been named in the FIR as the accused no.6. Thereafter, he identified Vijaysinh Vakhatsinh Parmar. Vijaysinh Vakhatsinh has also been named in the FIR as the accused no.4. He thereafter identified Kiransinh @ Kala Ganpat Parmar. Kiransinh Ganpat has been named in the FIR as the accused no.22. The first informant thereafter identified Vakhatsinh Chhatrasinh Parmar and also accused no.20, namely Kanti Laxman. 111. The first informant thereafter deposed that there was a cycle, a hand lorry, a fan and an electric motor which can be installed on the Well inside the house. On account of the house and the shop being destroyed in the fire, the first informant suffered monetary loss of about Rs.3 lakh. 112. 111. The first informant thereafter deposed that there was a cycle, a hand lorry, a fan and an electric motor which can be installed on the Well inside the house. On account of the house and the shop being destroyed in the fire, the first informant suffered monetary loss of about Rs.3 lakh. 112. In his cross-examination, he has deposed that the incident had occurred on 28th February 2002 in the night hours. He has deposed that on the next day in the morning he reached at the place of occurrence. He thereafter telephonically informed the Mamlatdar as well as the police. He has deposed that he had visited the police station two to three times but his FIR was not registered. He has deposed that thereafter on 31st March 2002 his complaint was taken by the police. He has deposed that the police had not conducted any identification parade. NOTE : As we are discussing the evidence of the first informant PW1 (Exh.64), it is relevant to take note of para-5 of the evidence of the PW13 Babubhai Fulabhai, A.S.I. Buckle No.1384 (Exh.67) (Investigating Officer). In para-5, the Investigating Officer has deposed as under : “5. Ahmed Hussain Kanzariya has stated in his police statement recorded by me that as the mob was approaching towards his house, he ran away to save his life and hid himself in the nearby agricultural field. He has stated that he saw Bhimsinh Kesharisinh Chauhan, Himmatsinh Gulabsinh of village Karoli with sticks in their hands, as well as Kalyan Dalsing Jadav, Zenabhai of village Rayaniya, Kalu Nayak and other unidentified persons with 'dhariya' in their hands vandalizing his shop as well as house and robbing the household articles from his house. He deposed that they also burnt some of his household articles as well as two water motor machines.” 113. The prosecution has examined the PW4 Jaitunbibi Ismail Musa Ranta at Exh.39. This witness is also one of the eye-witnesses. The PW4 has deposed that at the time of the incident, she was residing at the village Meerapuri, Takuka Kalol. She has deposed that at around 11 O'clock in the night on 28th February 2002, she was at her residential house at Meerapuri. She has deposed that the accused persons came at that place screaming and shouting. According to her, she along with her son ran away from her house. She has deposed that at around 11 O'clock in the night on 28th February 2002, she was at her residential house at Meerapuri. She has deposed that the accused persons came at that place screaming and shouting. According to her, she along with her son ran away from her house. From a distance, she witnessed that one Udesing Amarsing, Manga Chhela, Saburbhai Chunabhai, Jagatsinh Amra, Nansing Laxman and Somabhai Laxman were to be seen near her house. She has deposed that all those persons set the wood stored in her house on fire. According to her, she could identify the above-named persons in the light of the fire. She has deposed that the door of her house was broken open and the articles were looted away. She has deposed that she suffered a loss of around Rs.2,50,000=00. NOTE : As we are discussing the evidence of the PW4 Jaitunbibi Ismail Musa Ranta Exh.39, it is relevant to take note of para-8 of the evidence of the PW13 Babubhai Fulabhai, A.S.I., Buckle No.1384 (Exh.67). In para-8, the Police Officer has deposed as under : “In the present case, I personally recorded the statement of the witness Jaitunbibi Ismail. In her police statement before me, she stated that a mob of Hindu people surrounding the Meerapur village had come with deadly weapons screaming and shouting. Therefore, I got scared and to save my life, I locked the house and ran away. She has not stated in the statement about the fact that the incident took place on 28th and that the door was broken.” 114. The prosecution has also examined the PW5 Shabbir Abdul Hakim Dat (Exh.48). The PW5 has deposed that at the relevant point of time he was residing at village Chalali. He has deposed that he owns agricultural land. He has further deposed that in connection with the incident of Godhra carnage, a mob marched into his locality in the evening hours on Friday. At that point of time, the PW5 was at his residence along with his mother, uncle, brother, etc. The persons in the mob had sticks in their hand including other weapons like spear, sickle, etc. As the mob was administering threats, he along with his family members ran away. He has deposed that at the time of the incident, he hid himself beneath a tree standing nearby his locality. The persons in the mob had sticks in their hand including other weapons like spear, sickle, etc. As the mob was administering threats, he along with his family members ran away. He has deposed that at the time of the incident, he hid himself beneath a tree standing nearby his locality. He has deposed that standing beneath the tree he noticed the persons, namely Mahipatsinh Kalu, Rangitsinh Andarsinh, Vijay Dhansukh, Samant Suka and Ramsing Kalu. He has deposed that all these persons named in the FIR are present in the court-room. He has also deposed that Mohan Gala, Deputy Sarpanch and Raman Andar Koya were also present in the mob. He has deposed that all these persons were causing damage to his property and were setting the articles on fire. Many people from the mob took away many articles and all these articles were thereafter burnt in the nearby river. He has deposed that his father was picked up and was flunged in the river. Thereafter, the father was again picked up from the river and flunged in one agricultural field. He has deposed that Vinod Dhansukh and Vijay Dhansukh were yelling to kill us and the others. 115. In his cross-examination, he has deposed that the village Chalali is at a distance of 3 kms. from the village Karoli. He has deposed that he knows Ahmed Hathida of the village Karoli. He has deposed that all the accused whom he identified in the court room were never put in the identification parade by the police. NOTE : As we are discussing the evidence of the PW5 Shabbir Abdul Hakim Dat (Exh.48), it is relevant to take note of para-9 of the evidence of the PW13 (Exh.67) Babubhai Fulabhai, A.S.I. Buckle No.1384 (Investigating Officer). In para-9, the Investigating Officer has deposed as under : “9. I recorded the statement of Shabbir A.Rahim. He disclosed given the names of the accused persons in the statement made before me, however, he has not named Mohan and Andar Bhala. In the statement made before me, he had not stated that the mob had picked up his handicapped father and flunged him in the river and from there again his father was picked up and flunged in the agricultural field. The witness had not stated that Vijay Dhansukh and Vinod Dhansukh were yelling to kill him. In the statement made before me, he had not stated that the mob had picked up his handicapped father and flunged him in the river and from there again his father was picked up and flunged in the agricultural field. The witness had not stated that Vijay Dhansukh and Vinod Dhansukh were yelling to kill him. The witness had not stated that the incident had occurred at 7 O'clock.” 116. The prosecution has examined the PW6 Ahmed Sikander Dat (Exh.49). This witness also claims to be one of the eye-witnesses to the incident. The PW6 has deposed that at the time of the incident he was residing at the village Chalali. He has deposed that a huge mob came at his village at around 7:30 in the evening. At the time of the incident, he was at his residence. There was a mob of around 250 to 300 persons armed with deadly weapons. He has deposed that he could identify Rama Kalu, Mahipat Kalu, Samant Suka and Vinod Dhansukh to be present in the mob. He has deposed that Vijay Dhansukh and Mohan Gala were not present in the court room. He has deposed that the persons in the mob started looting his house and they were forced to run away from their house. NOTE : As we are discussing the evidence of the PW6 Ahmed Sikander Dat (Exh.49), it is relevant to take note of para-10 of the evidence of the PW13 (Exh.67) Babubhai Fulabhai, A.S.I. Buckle No.1384 (Investigating Officer). In para-10, the Investigating Officer has deposed as under : “10. I recorded the statement of Ahmed Sikander Dat. In the statement made before me, he had stated that “when the mob approached, he as well as his family members ran away. In the statement made before me, he had not stated that hiding themselves they fled away to Godhra in the night. The witness had not stated that they were standing outside when the mob came.” 117. The prosecution has examined the PW7 Ahmed Hussain Kanjariya. This witness came to be declared as a hostile witness. However, in the cross-examination by the prosecution, he has deposed according to his police statement. The following chart would make the picture further clear : Witness No. Ex No Pg. The prosecution has examined the PW7 Ahmed Hussain Kanjariya. This witness came to be declared as a hostile witness. However, in the cross-examination by the prosecution, he has deposed according to his police statement. The following chart would make the picture further clear : Witness No. Ex No Pg. No. Name Place of Incident Time Accused named in deposition Particulars Contradictions/Comments PW1 35 295 Ahmad Haji Mahmmad Hathida Rayaniya 11pm 10 accused P10, P14, P1, P2, P3, P9, P13, P7 Identifies 10 accused persons : P10, P14, P1, P2, P3, P9, P13, P7. Was at his house and ran away to the hill and saw accused persons as there were tubelights around their house. Says that his house and shop were looted and then burnt and that there were cycle, hand lorry, fans, well-motor, etc in his house – loss of 3L. Cross : Says his house is in Rayaniya (fariyu of Karoli) Says he went to the place of incident on the next day in the morning. Says he informed at Adadara out police station and also has visited the police station two-three times but FIR was not registered. Says that Madhuben Chaganbhai Christian who stays at Chalali has informed him that loss of Rs.80,000 was incurred, otherwise he has not seen anyone and has given complaint on this knowledge. Names 9 accused persons in FIR : P10, P4, P5, P9, P3, P13, P1, P2, P14. Distance of 100 ft. (Exh.37, Pg.313) Says destroyed (todfod) and burnt in FIR PSO – PW12 (Exh.63, Pg.399) says that no one came to give FIR prior to 31.03.2002. No specific role attributed to any accused/ on no specific weapons identified with any accused. PW2 Panch POO (H) * 36 303 Kanubhai Laxman Nayak Rayaniya (Karoli) and Malvan Fariyu PW3 Panch POO (H) * 38 339 Bhemabhai Sukabhai Nayak Rayaniya (Karoli) and Malvan Fariya PW4 EW 39 345 Jetunbibi Ismail Ranta Mirapuri 11pm 6 accused Says she and her son were in their house and then they ran away from their house. Says she recognised accused persons with the help of light from the fire set by the accused. Also accepts that she had given false complaint in the past. PW5 EW 48 371 Shabbir Abdul Hakim Dat Chalali Fri evening 9 accused P6, P8, P12 Says he was in his house with father, mother, uncle, brother and they ran away. Says she recognised accused persons with the help of light from the fire set by the accused. Also accepts that she had given false complaint in the past. PW5 EW 48 371 Shabbir Abdul Hakim Dat Chalali Fri evening 9 accused P6, P8, P12 Says he was in his house with father, mother, uncle, brother and they ran away. He hid behind a tree in the vada Says that the mob also took away big things and destroyed and burnt small items. Says that they threw his father in the river and then dragged from there and threw him on the farm. He gave an application to the police regarding the incident and in that he had named Kanu Mohan, Mohan Gala, Pravin Prabhat and Tina Shah only, names of other people not mentioned. No specific role is attributed. PW6 EW 49 379 Ahmad Sikandar Dat Chalali Fri 7.30 pm. 10 accused P12, P6, P8 Says that he was at his house and upon hearing the crowd, he took his mother and father out and was standing outside when the crowd approached. He also says that the crowd drove them away. No specific role is attributed. Suggests that the crowd didn't want to hurt/injure them and that there was no element of fear. PW7 EW (H) * not brib ed 50 385 Ahmad Hussain Kanjaria Malvan 7pm 5 accused P11, P5 Says that he was in Malvan, however he was away from the place of incident (not specified where) and did not recognise anyone. PW8 52 389 Mahamad Yakubbhai Vohra Was not present at the time of the incident – deposes that he went to his shop after 2 months of the incident and found that his shop was looted. PW9 53 391 Yakubbhai Taherali Vohra Chalali Note present at the time of incident – says that he was called when panchnama of his shop was to be done and that his shop was looted and motorbike was burnt. PW 10 (H) 54 393 Siraj Mahmadali Khatuda Malvan Fri 7pm PW 11 (EW) 55 397 Ibrahim Ismail Pittar Malvan After 4pm Says that he saw crowd approaching in tempo (with cloth covering their faces), tractor, jeep and thereafter ran away Not present thereafter. No one else has mentioned anything about the vehicles. PW 12 63 399 Rumalbhai Varsingbha PSO Says that no complaint was made before 21.03.02 that was refused. No one else has mentioned anything about the vehicles. PW 12 63 399 Rumalbhai Varsingbha PSO Says that no complaint was made before 21.03.02 that was refused. PW 13 67 413 Babubhai Fulabhai IO Says did not make any arrests No muddamal was recovered by him No apparatus that could have been used to set fire was found Also says that as it was an offence related to vigitation – he did not have authority to investigate. Separate offences and therefore no reason to investigate together. PW 14 Panch ROM (H) * 421 Kanaksinh Mohansinh Exh-72 and 73 73 – P9 - Stick Says that he was called to the police station and there were P6 and P8 were present but nothing was produced by them. PW 15 Panch ROM (H) * 74 433 Laxman Ranchhod Parmar Exh-72 and 73 73 – P9 - Stick Says that he was called to the police station and P9 was present but nothing was produced by him. PW 16 Panch ROM (H) * 75 437 Dalpatbhai Punabhai Nayak Exh-76 and 77 – P11 – Dhariyu Sign taken on blank paper PW 17 Panch ROM (H) * 81 451 Narendra Bhalji Chauhan Exh-82 P6-Stick P8-Stick P7-Stick Says signed on blank paper PW 18 Panch ROM (H) * 83 461 Shivsinh Chatrasinh Chauhan Exh-82 P6-Stick P8-Stick P7-Stick Says he has not signed PW 19 Panch ROM (H) * 84 463 Lalabhai Tersing Exh-76 and 77 77-P11 Dhariya Sign taken on blank paper PW 20 Panch ROM (H) * 85 465 Vijaybhai Vitthal Gohil Exh-86 and 87 86-P5 Dhariyu Sign taken on blank paper PW 21 Panch ROM (H) * 88 475 Arjunsing Shabhsing Exh-86 and 87 86-P5 Dhariya Says he has not signed PW 22 Panch ROM (H) * 89 477 Kesarsinh Bharatsinh Exh-90 P13 – Stick Says he signed on blank paper PW 23 101 483 Ramanbhai Jayram Patil (IO) He filed the A-summary report (Exh.102) PW 24 114 501 Hiralal Mansur Vara (PI) He says that the offences occurred separately and should have been registered as separate offences KEY : PW Prosecution Witness EW Eye Witness H Hostile POO Place of Occurrence ROM Recovery of Panchnama * Hostile Pws denied that they have changed their statement to support accused. 118. We take notice of the fact that none of the panch-witnesses supported the case of the prosecution and had to be declared hostile. 118. We take notice of the fact that none of the panch-witnesses supported the case of the prosecution and had to be declared hostile. 119. We also take notice of the fact that, in all, the charge was framed against 27 accused persons. 120. In the evidence of the PW1 Ahmed Haji Mohamad Hathida, claiming to be an eye-witness to the incident, he has named the following accused persons to be present in the mob : Accused No. Name of the accused. 3 Ganpat Kabhai Parmar (Sessions Case No.54 of 2004) 4 Kiran Shankerbhai Jadav (Sessions Case No.54 of 2004) 1 Mangal Ratnabhai Parmar (Sessions Case No.184 of 2004) 8 Vakhatsinh Chhatrasinh (Sessions Case No.184 of 2004) 14 Vijay Vakhatsinh Parmar (Sessions Case No.184 of 2004) 15 Vikrambha Vechatbhai (Sessions Case No.184 of 2004) 20 Nansing Laxman (Sessions Case No.184 of 2004) 22 Karansinh @ Kala Ganpat (Sessions Case No.184 of 2004) 23 Ramesh @ Raman Vechat (Sessions Case No.184 of 2004) 121. In the evidence of the PW4 Jaitunbibi Ismail Musa Ranta, claiming to be an eye-witness to the incident, she has named the following accused persons to be present in the mob : Accused No. Name of the accused. 1 Manga Chhelabhai Nayak (Sessions Case No.54 of 2004) 2 Sabur Chunabhai Nayak (Sessions Case No.54 of 2004) 17 Udesinh Amarsinh (Sessions Case No.184 of 2004) 18 Jagatsinh Amarsinh (Sessions Case No.184 of 2004) 19 Somabhai Laxmanbhai (Sessions Case No.184 of 2004) 20 Nansinh Laxman (Sessions Case No.184 of 2004) 122. In the evidence of the PW5 Shabbir Abdul Hakim Dat, claiming to be an eye-witness to the incident, he has named the following accused persons to be present in the mob : Accused No. Name of the accused. 6 Mahipat Kalubhai Chauhan (Sessions Case No.184 of 2004) 9 Rangitsinh Andarsinh (Sessions Case No.184 of 2004) 10 Vijaysinh Dhansukhbhai (Sessions Case No.184 of 2004) 11 Samantsinh Sukabhai (Sessions Case No.184 of 2004) 21 Ramsinh Kalubhai (Sessions Case No.184 of 2004) 123. In the evidence of the PW6 Ahmed Sikander Dat, claiming to be an eye-witness to the incident, he has named the following accused persons to be present in the mob : Accused No. Name of the accused. In the evidence of the PW6 Ahmed Sikander Dat, claiming to be an eye-witness to the incident, he has named the following accused persons to be present in the mob : Accused No. Name of the accused. 6 Mahipat Kalubhai Chauhan (Sessions Case No.184 of 2004) 11 Samantsinh Sukabhai (Sessions Case No.184 of 2004) 12 Vinodbhai Dhansukhbhai (Sessions Case No.184 of 2004) 14 Vijaysinh Vakhatsinh (Sessions Case No.184 of 2004) 21 Ramsinh Kalubhai (Sessions Case No.184 of 2004) 124. The following accused persons have not been referred to by any of the eye-witnesses in their oral evidence : Accused No. Name of the accused in the Sessions Case No.184 of 2004 2 Gulabbhai Pratapbhai Parmar 3 Zenabhai Kalubhai Nayak 4 Kalyansinh Dalsinh Gohil 5 Himmatsinh Gulabsinh Gohil 7 Bhimsinh Keshrisinh Chauhan 16 Zerabhai Revabhai Nayak RELEVANT PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE, 1973, TO BE KEPT IN MIND FOR THE PURPOSE OF FRAMING APPROPRIATE CHARGE : 125. A reference to the various sections of the Code of Criminal Procedure at this stage is necessary to elucidate the point of defect or lacuna in the charge framed by the trial court. 126. Section 211 of the Code which is one of the sections dealing with the form of charges runs as follows : “211. Contents of charge.- (1) Every charge under this Code shall state the offence with which the accused is charged. (2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. (3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written in the language of the Court. (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written in the language of the Court. (7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed.” 127. A perusal of the various clauses of the above section would indicate that it only makes the mention of an offence or its definitive provisions necessary in a charge. Section 34 of the IPC being not itself creative or definitive of an offence would, therefore, fall outside the purview of the ingredients required to be mentioned in the charge under this section. However, Section 149 of the IPC being a distinct offence, the same needs to be mentioned in the charge. 128. Illustration (a) appended to Section 211 of the Code would show that when A is charged with the murder of B, this would be an equivalent to a statement that A's act fell within the definition of murder. Section 34 of the IPC being of an interpretative nature would, therefore, have to be read along with the statement of the offence in the charge. 129. Section 212 of the Code, which deals with the particulars of time, place and person to be mentioned in the charge, is as follows : “212. Particulars as to time, place and person.- (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. Particulars as to time, place and person.- (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other moveable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219: Provided that the time included between the first and last of such dates shall not exceed on year.” 130. This section specifies the facts necessary to be mentioned in the charge. It shows that all of them relate only to the particulars of the 'offence' committed, namely, the time of the offence, the place of the offence and the person against whom or the thing in respect of which the offence is committed. Section 34 of the IPC does not create an offence and is, therefore, not touched by it. 131. Section 213 of the Code reads as follows : “213. When manner of committing offence must be stated.- When the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed a will be sufficient for that purpose.” 132. Illustration (a) appended to Section 213 of the Code shows that where an accused is charged with the offence of theft, the charge need not set out the manner in which the theft was committed. Illustration (e) shows that where A is accused of the murder of B at a given time and place, the charge need not state the manner in which A murdered B. 133. Illustration (e) shows that where A is accused of the murder of B at a given time and place, the charge need not state the manner in which A murdered B. 133. It is not possible in every case of murder to mention the exact manner of the commission of the offence in the charge. There may, for example, be cases in which the evidence may be merely circumstantial. In such cases the manner of the commission of the murder would be known to the accused only. 134. Section 214 of the Code reads as follows : “214. Words in charge taken in sense of law under which offence is punishable.- In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.” 135. This section would again import the definitive and the interpretative provisions relating to all offences in the statement of the offence or offences mentioned in the charge thereby making its explicit mention in the charge unnecessary. 136. Even if Sections 34 or 149 as the case may be of the IPC were to be regarded as a part of the offence or a necessary particular required to be stated in the charge, then Section 215 of the Code, which deals with the effect of such an error, has made an adequate provision for condoning such defects by providing as follows :- “215. Effect of errors.- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.” 137. Illustration (b) appended to Section 215 of the Code shows that even where the charge contains an erroneous statement regarding the date of the offence and the name of the murderer the defect would be condoned, if the evidence in the case which was adduced before the accused and heard by him clearly disclosed the correct date and name. 138. Illustration (b) appended to Section 215 of the Code shows that even where the charge contains an erroneous statement regarding the date of the offence and the name of the murderer the defect would be condoned, if the evidence in the case which was adduced before the accused and heard by him clearly disclosed the correct date and name. 138. It further indicates that the clarity of evidence in the case could be seen for the purpose of determining the question whether the accused was misled, and that even an obviously serious error of the nature of a positive misstatement in the charge would be treated as immaterial, if the evidence on the point was so clear as to make it obvious that the accused was not misled thereby. 139. Section 216 of the Code authorises a court to alter or add to any charge at any time before judgment is pronounced, or, in the case of trials before the Court of Session or High Court, before the verdict of the jury is returned or the opinions of the assessors are expressed. Where such a step is taken, Section 216(3) entitles the court to proceed with the trial as if the new or altered charge had been the original charge if, in the opinion of the court, such alteration or addition is not likely to prejudice the accused or the prosecution. 140. It is only if the court is of opinion that such alteration or addition is likely to prejudice either party that the Court is required either to direct, a new trial or to adjourn the trial for such period as may be necessary [vide Section 216(4)]. 141. Section 218 of the Code reads as follows : “218. Separate charges for distinct offences.- (1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person. (2) Nothing in sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223.” 142. (2) Nothing in sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223.” 142. If Section 149 of the IPC is to be treated as a distinct offence, a separate charge in respect of it would be necessary under this section, but not in respect of Section 34 of the IPC which, as mentioned above, does not create a distinct offence at all. The provisions of Section 221 are applicable to the offences only. Strictly speaking, therefore, they would be applicable to cases under Section 149 of the IPC but not to cases under Section 34 of the IPC. Even presuming Section 34 to be creative of a distinct offence for the purpose of applying the principles underlying the aforesaid sections, it would appear that the conviction of the accused would not be vitiated thereby. 143. Section 221 of the Code reads as follows : “221. Where it is doubtful what offence has been committed.- (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.” 144. Section 222 of the Code reads as follows : “222. When offence proved included in offence charged.- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.” 145. Strictly speaking when a person is charged with a substantive offence following the provisions of Section 34 of the IPC, the ingredients of the substantive offence remain the same. The only difference is that instead of a single person 'A' having committed an offence, the charge states that a number of other persons say 'B' and 'C' also joined 'A' in the commission of the same offence with a common intention. 146. In such a situation, Section 34 of the IPC, lays down a special principle of criminal liability and says that where a number of persons join together in committing the same offence with a common intention, each of them becomes liable to an enhanced penalty which is attachable in law to the result of the joint acts of all. 147. Where the case under Section 34 of the IPC fails and the prosecution is able to establish its case only against a single offender, the prosecution cannot be said to have failed to prove the ingredients of the offence, but all that it can be said to have failed to prove is the fact that some persons who are also alleged to have joined the accused with a common intention are not proved to have done so. 148. The effect, therefore, of mentioning Section 34 of the IPC is that the prosecution takes upon itself the responsibility of proving some additional facts with a view to make the accused liable for an enhanced punishment. 148. The effect, therefore, of mentioning Section 34 of the IPC is that the prosecution takes upon itself the responsibility of proving some additional facts with a view to make the accused liable for an enhanced punishment. If, therefore, the charge in respect of Section 34 of the IPC fails because the prosecution is unable to prove those additional facts or particulars, there should be no reason why the conviction of the accused for the substantive offence should not be recorded where the prosecution has been able to prove all the facts needed to support the conviction of a single individual for the substantive offence. 149. The effect of such a failure will only be to take the case out of the purview of the joint or enhanced liability principle and to substitute therefore what may be termed as the individual or reduced liability principle. The effect of taking Section 34 of the IPC to the charge is as it were, to add the hands of all others charged with the aid of Section 34 to the hands of the accused. The result of cutting off Section 34 from the charge is that all the extra hands attached to the body of the accused fall off, but his own hands still remain. 150. It may, however be noted that strictly speaking Section 222 is not applicable to a case where Section 34 has to be eliminated from the charge, for the offence in such a case need not always be reduced to a minor offence. If, for example, the specific act or acts proved against a particular accused are by themselves enough to bring about the resultant offence which was the subject-matter of charge, the offence would not be reduced to a minor offence at all nor would the liability of the accused thereunder reduced in any manner. 151. The principle behind Section 222 however, appears to be that where the prosecution undertake in the charge to prove a number of facts involved in an offence, their failure to prove all the facts should be no bar to the conviction of the accused on such facts out of them as the prosecution have succeeded in proving. 152. 151. The principle behind Section 222 however, appears to be that where the prosecution undertake in the charge to prove a number of facts involved in an offence, their failure to prove all the facts should be no bar to the conviction of the accused on such facts out of them as the prosecution have succeeded in proving. 152. This is based on the obvious principle that the whole includes the part and if the accused has notice of the former, he cannot be heard to make a grievance in respect of the latter. The reference to Section 222, therefore, in this connection is only by way of analogy. 153. Finally, the provisions of Section 464 of the Code in this regard are significant. Section 464 of the Code provides as follows : “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 mis-joinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may— (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge. (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit : Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.” 154. The aforenoted section is very widely worded. It would apply not only to a trial where no charge at all has been framed in respect of any offence but also to a case in which no charge has been framed in respect of the particular offence of which the accused is convicted. The aforenoted section is very widely worded. It would apply not only to a trial where no charge at all has been framed in respect of any offence but also to a case in which no charge has been framed in respect of the particular offence of which the accused is convicted. According to it, even in cases of offences, a failure to frame a charge in respect of the particular offence of which an accused is convicted could be supported by the curative provisions of this section, if the accused was not prejudiced thereby. 155. The principle would apply with much greater force to a case under Section 34 of the IPC which is not creative of any offence at all. In this section, the Code has made provision in respect of a case where no charge has been framed at all. There may, however, be cases in which a charge has been framed, but there has been an error, omission or irregularity in respect of it. 156. In Subrahmania Ayyer v. King-Emperor, 25 Mad 61 (PC) (L), Their Lordships of the Privy Council held that the provisions of the above section cannot apply to non-compliance with a mandatory provision of law relating to a mode of trial. These observations were construed by their Lordships of the Privy Council in the case of Abdul Rahman v. King-Emperor, AIR 1927 PC 44 (M), as limited to illegalities or to cases where the procedure adopted was one which the Code positively prohibited and to cases which might have resulted in actual injustice to the accused. 157. The above examination of the relevant provisions of the Code indicates that the non-mention of Section 149 of the IPC in the charge may, in a given case, be considered to be an illegality. 158. A reference to some of the decided cases would also support the same conclusion. The first case that may be cited is Nanak Chand (supra). In this case one Nanakchand, who was the appellant before Their Lordships, was charged under Section 302/149 of the IPC and Section 148 of the IPC along with others. The Additional Sessions Judge held that the charge of rioting was not proved. He, accordingly, found Nanakchand and three others guilty under Section 302/34 of the IPC. The remaining accused were acquitted. The Additional Sessions Judge held that the charge of rioting was not proved. He, accordingly, found Nanakchand and three others guilty under Section 302/34 of the IPC. The remaining accused were acquitted. On an appeal being preferred by the convicted persons, the High Court found that the provisions of Section 34 of the IPC did not apply. It accordingly, convicted the appellant Nanakchand under Section 302 of the IPC simpliciter confirming the sentence of death passed on him and altered the conviction of the other appellants to Section 323 of the IPC. Nanakchand appealed before the Supreme Court and the principal question of law that was urged before Their Lordships was, whether the appellant, who was charged under Section 302/149 of the IPC, could be legally convicted under Section 302 of the IPC simpliciter when he was not charged with it. In that connection, Their Lordships emphasised the distinction between Section 149 and Section 34 of the IPC that should be borne in mind in determining this question. Referring to Section 34, Their Lordships observed : “This section is merely explanatory ........ This section does not create any specific offence.” (p. 277). 159. Their Lordships then referred to Section 149 of the IPC and observed that - “There is a clear distinction between the provisions of Ss. 34 and 149, I. P. C., and the two sections are not to be confused.” (p. 277). 160. Their Lordships then referred to the divergence of opinion that existed between the decisions of the Calcutta High Court on the one hand and of the Madras and Allahabad High Courts on other. On behalf of the appellant reliance was placed on the Calcutta cases viz., - 'Panchu Das v. Emperor', 34 Cal 698 (O); - 'Reazuddi v. King-Emperor', 16 Cal WN 1077 (P); and - 'Emperor v. Madan Mondal', AIR 1915 Cal 292 (Q). On the other hand, the prosecution relied upon a Full Bench decision of the Madras High Court in - 'In re Theethumalai Gounder'. AIR 1925 Mad 1 (R), which followed the view of Sir John Edge in the Allahabad case reported in - 'Queen Empress v. Bisheshar', 9 All 645 (S). 161. On the other hand, the prosecution relied upon a Full Bench decision of the Madras High Court in - 'In re Theethumalai Gounder'. AIR 1925 Mad 1 (R), which followed the view of Sir John Edge in the Allahabad case reported in - 'Queen Empress v. Bisheshar', 9 All 645 (S). 161. Their Lordships of the Supreme Court agreeing with the view expressed by the Privy Council in ' AIR 1925 PC 1 (C)', held that the view taken in the Calcutta cases was correct and that Section 149 of the IPC, in contradistinction to Section 34 of the IPC, did create a specific offence. In this connection they observed. “A charge for a substantive offence under S. 302, or S. 325, I.P.C., etc., is for a distinct and separate offence from that under S.302 read with S.149 or S. 325, read with S.149 etc., and to that extent the Madras view is incorrect............ Section 149 creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty.” (p. 278). 162. They finally laid down the law on the point in the following words : “After an examination of the cases referred to on behalf of the appellant and the prosecution we are of the opinion that the view taken by the Calcutta High Court is the correct view namely, that a person charged with an offence read with S. 149 cannot be convicted of the substantive offence without a specific charge being framed as required by S. 233, Criminal P. C.” (p. 279). 163. It would, therefore, appear that the reason given by Their Lordships of the Supreme Court for holding that the conviction of an accused under Section 302 of the IPC, when he was actually charged under Section 302/149 of the IPC, meant his conviction for an offence different from that of which he was charged. This procedure, clearly contravened the provisions of Section 218 of the new Code and, therefore, constituted an illegality. 164. Their Lordships of the Supreme Court held in that very judgment that Section 34 of the IPC was unlike Section 149 of the IPC in this regard. 165. This procedure, clearly contravened the provisions of Section 218 of the new Code and, therefore, constituted an illegality. 164. Their Lordships of the Supreme Court held in that very judgment that Section 34 of the IPC was unlike Section 149 of the IPC in this regard. 165. It is significant to note that even in this case the matter was not viewed as altogether independent of the question of prejudice as their Lordships further observed : “Assuming, however, for a moment that there was merely an irregularity which was curable, we are satisfied that, in the circumstances of the present case, the irregularity is not curable because the appellant was misled in the absence of a charge under S. 302, I.P.C.” (p. 280) 166. It was further found by Their Lordships in this case that the defect in the charge in this regard had actually misled the appellant in his defence. After discussing the evidence in the case they held : “It is difficult to hold in the circumstances of the present case that the appellant was not prejudiced by the non-framing of a charge under S. 302, I. P. C.” (p. 280 Col.2) 167. At the stage of framing a charge, the judge has no evidence before him. The only materials on which he can act are the statements recorded by the police and the documents produced by them. It is agreed on all hands, and settled by authority, that the judge must, at this stage, assume that the statements recorded by the police are true and the documents produced by them are genuine. (see State of Maharashtra and others v. Som Nath Thapa, AIR 1996 SC 1744 ) He must then ask himself what offence or offences, if any, would be constituted if those assumptions are fulfillled, and either discharge the accused or frame the appropriate charge or charges. Obviously, there is no other basis on which a judge could, at this stage, conceivably proceed. In framing the charges he must remember Section 218(1) of the Code, which requires that 'For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately'. 168. But it may happen that, even making those assumptions, the offence or offences for which the accused should be charged may not be sure or clear. 168. But it may happen that, even making those assumptions, the offence or offences for which the accused should be charged may not be sure or clear. The Criminal Procedure Code shows awareness of that possibility and makes provision for such a case. Section 221(1) envisages a case of such a nature that it is doubtful which of several offences the facts which can be proved will constitute'. The solution it provides is that 'the accused may be, charged with having committed all or any of such offences, and any number of such offences may be tried at once; or he may be charged in the alternative with having committed some one of the said offences'. 169. The lesson to be drawn from Section 221(1) is that when there is a doubt as to which of the several offences will be constituted on the fact's which can be proved, charges should be framed in respect of all, either cumulatively or alternatively. 170. Then, the Code goes further. It proceeds to safeguard against an omission to use Section 221(1) when it ought to have been applied. Sub-sections (2) of that section validates the conviction of an accused for an offence with which he might have been charged under the first subsection, notwithstanding that, in fact, he was not so charged. Clearly, the purpose is to prevent the failure of a case on account of the neglect, inadvertence or mistake of the judge. 171. In choosing the charge, the various subsections of Section 222 must also be borne in mind. Particularly relevant to the present case, are subsections (1) and (2). They read as follows : “(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence. and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with if. (2) When a person is charged with an offence and facts arc proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with if.” 172. These subsections would suggest to the judge that it is wiser to charge for the most serious offence that can be constituted by the allegations of the prosecution. That way, the options remain open. These subsections would suggest to the judge that it is wiser to charge for the most serious offence that can be constituted by the allegations of the prosecution. That way, the options remain open. The accused may be convicted of the offence charged or the minor offence, depending on what is ultimately proved at the trial. But there is no provision in the Criminal Procedure Code stating the converse of the propositions in these two subsections. Therefore, if the accused is only charged with the minor offence, he cannot be convicted of the more serious offence despite the evidence at the trial taking the case that far. (see Willie (William) Slaney v. State of Madhya Pradesh) 173. The principle underlying these subsections is that a charge for the more serious offence gives notice also of the facts constituting the minor one, and the accused is not prejudiced in his defense. Hence, the prerequisite that the minor offence should be of the nature described by the subsections. 174. In a case covered both by Section 221(1) as also Section 222, it is a simple deduction that separate charges need not be framed for the various offences. If the 'several offences', respecting which shere is a 'doubt' within the meaning of section 221(1), are so related as to come within any of the first three subsections of section 222, the accused can always be convicted of the minor offence though he is charged only with the more serious one. A charge for the minor offence is thus redundant. 175. Naturally, it should be the endeavor of a judge to so conduct' a proceeding that it will not be rendered futile because of a technical flaw. The procedure of framing a charge is intended to warn the accused of the case he has to meet, and obtain his plea. 176. He can, therefore, justly complain of being taken by surprise if it is sought to convict him of an offence with which he was not charged. 177. As we have already mentioned, section 218(1) requires that there must be a separate charge for every distinct offence. But, because of the uncertainties which exist at the stage of framing a charge, and the impossibility of knowing how exactly the evidence will shape at the trial, sections 221 and 222 provide means to attain a margin of safety. 177. As we have already mentioned, section 218(1) requires that there must be a separate charge for every distinct offence. But, because of the uncertainties which exist at the stage of framing a charge, and the impossibility of knowing how exactly the evidence will shape at the trial, sections 221 and 222 provide means to attain a margin of safety. In doubtful cases, prudence would tell the judge to take advantage of those sections. Having regard to what they enact, and the situation in which he is called to make a decision, the judge would be well advised: (i) to frame charges, for all the possible offences capable of being constituted by the materials produced by the prosecution, and (ii) frame a charge for the more serious offence rather than the minor one. We would regard these as two important guidelines emanating from the Code. THE EFFECT OF OMISSION TO FRAME CHARGE FOR THE OFFENCE UNDER SECTION 149 OF THE IPC ALONG WITH THE MAIN OFFENCE OF DACOITY PUNISHABLE UNDER SECTION 395 OF THE IPC : 178. It would be relevant to advert to the relevant law on the subject. Chapter XVII (Sections 378 to 462) of the Indian Penal Code, 1860, deals with offences against property. Sections 378 to 382 of the IPC relate to theft, Sections 383 to 389 of the IPC concern offences of extortion and Sections 390 to 402 of the IPC deal with robbery and dacoity. 179. For the sake of convenience, Section 391 of the IPC, which defines ‘dacoity’ is reproduced as under:- “391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".” 180. The term ‘conjointly’ indicates jointness of action and understanding. Every one acts in aid of other. ‘Conjointly’ means to act in joint manner, together, ‘unitedly by more than one person. ‘Conjoin’ means ‘join together’, as per the Oxford Large Print Dictionary. According to the Corpus Juris Secundum, ‘Conjointly is explained as ‘together’, the one with knowledge, consent and aid of the other and pursuant to an agreement or understanding or ‘unitedly’. In the ‘Words and Phrases’ ‘Vol. ‘Conjoin’ means ‘join together’, as per the Oxford Large Print Dictionary. According to the Corpus Juris Secundum, ‘Conjointly is explained as ‘together’, the one with knowledge, consent and aid of the other and pursuant to an agreement or understanding or ‘unitedly’. In the ‘Words and Phrases’ ‘Vol. 8 A’, published by ‘West Publishing’, same meaning is adopted as in Corpus Juris Secundum. It explains that ‘conjoint robbery’ is where the act is committed by two or more persons. According to Webster’s New International Dictionary ‘conjoint’ means ‘united’, ‘connected’ associated or to be in conjunction or carried on by two or more in combination. The use of word ‘conjointly’ in Section 391 IPC indicates that five robbers act with knowledge and consent and in aid of one another or pursuant to an agreement or understanding, i.e., unitedly. That is the spirit of their ‘conjoint’ action. Thus, in most of the dacoities, the robbers would be acting with a common object to loot with use of violence. At least in some cases of dacoities, the robbers act and use force in pursuance of their common intention and in all cases they act in prosecution of a common object. The word ‘conjointly’ means uniform intention along with unified or united or concerted action. This word, because of its deep rooted meaning, has been deliberately preferred over the word ‘jointly’. 181. From bare reading of the provisions of the aforesaid Section, it is clear that when five or more persons conjointly commit a robbery or they conjointly attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt amount to five or more, every person who is so committing, attempting or aiding is said to commit ‘dacoity’. Therefore, robbery or attempted robbery by at least five persons is dacoity. It is not necessary that all the five persons must commit or attempt to commit robbery. If the total number of those who are committing or attempting to commit or are present and aiding such commission or attempt is at least five, all of them are guilty of dacoity. 182. It is not necessary that all the five persons must commit or attempt to commit robbery. If the total number of those who are committing or attempting to commit or are present and aiding such commission or attempt is at least five, all of them are guilty of dacoity. 182. In other words, those who commit robbery and those who attempt to commit the same, and those who are present and aiding such commission or attempt are all counted, and if their number is five or more all of them would be guilty of committing dacoity. Moreover, it is not necessary for their conviction that their attempt must succeed. If the attempt does succeed it is a dacoity, and if the attempt fails even then the offence is dacoity. 183. Section 395 IPC provides punishment for dacoity. The same reads as under:- “395. Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 184. In the case of The State of Maharashtra v. Joseph Mingel Koli and others, 1997 (1) BomCR 362 , after perusing Section 395 IPC, the Bombay High Court held as under:- “29..........When robbery is either committed or an attempt to commit it is made by five or more persons then all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity.” 185. It is not out of place to mention here that a similar situation arises in dealing with cases of 'unlawful assembly' as defined in Section 141 of the IPC and the liability of every member of such unlawful assembly for an offence committed in prosecution of common object under Section 149 of the IPC. Section 141 of the IPC indicates that an assembly of five or more persons can be said to be 'unlawful assembly', if common object of the persons comprising such assembly is as mentioned in the said Section. Section 149 of the IPC declares that if an offence is committed by any member of unlawful assembly in prosecution of common object of that assembly, every member of such assembly is guilty of that offence. 186. Section 149 of the IPC declares that if an offence is committed by any member of unlawful assembly in prosecution of common object of that assembly, every member of such assembly is guilty of that offence. 186. In Dalip Singh and others v. State of Punjab, 1954 SCR 145 , it was held that if the prosecution fails to establish that the appellants were five or more in number, Section 149 of the IPC cannot be applied. But the court held that it is not essential that five persons must always be convicted for invocation of the said provision. Where it is possible to conclude that though five or more persons were 'unquestionably' at the place of offence and the identity of one or more was in doubt, conviction of less than five persons with the aid of Section 149 of the IPC, would be legal and lawful. Speaking for the Court, Bose J., stated: “Before Section 149 can be called in aid, the court must find with certainty that there were at least five persons sharing the common object. A finding that three of them "may or may not have been there" betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation. This is not to say that five persons must always be convicted before section 149 can be applied. There are cases and cases. It is possible in some cases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt. In that case, a conviction of the rest with the aid of section 149 would be good. But if that is the conclusion it behaves a court, particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death, to say so with unerring certainty. Men cannot be hanged on vacillating and vaguely uncertain conclusions.” 187. The Supreme Court in Ram Bilas Singh and others v. The State of Bihar, 1964 (1) SCR 775 , while dilating on the scope and purport of Section 149 IPC had held:- “What has been held in this case would apply also to a case where a person is convicted with the aid of s.149, Indian Penal Code instead of s.34. Thus all the decisions of this court to which we have referred make it clear that it is competent for a court to come to the conclusion that there was an unlawful assembly of five or more persons, even if less than that number have been convicted by it if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and evidence led to prove this is accepted by the court; (b) or that the first information report and the evidence shows such to be the case even though the charge does not state so, (c) or that though the charge and the prosecution witnesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons provided, in cases (b) and (c), no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had also participated in the offence.” 188. The first and the most important aspect which needs to be kept in mind is that Sections 34 and 149 respectively of the IPC have no applicability to a case covered by Section 391 of the IPC. The only question, therefore, that falls for consideration is as to which out of the appellants before us have been proved to have participated in the rioting or in the dacoity or in both. The learned Sessions Judge has said that since the rioting and dacoity have formed part of the same transaction and the two have been done at the one and the same time, the accused persons liable for rioting will become liable for dacoity as well and vice-a-versa. Such assumption is not necessarily correct. The persons who are members of the unlawful assembly and are guilty of rioting under Section 148 would not all of them be necessarily guilty of the offence of dacoity. That would be so, only if robbery and dacoity are also the common object of the unlawful assembly and the offence of dacoity was committed in prosecution of the said common object of which there is no charge or reliable evidence. That would be so, only if robbery and dacoity are also the common object of the unlawful assembly and the offence of dacoity was committed in prosecution of the said common object of which there is no charge or reliable evidence. The fact that the unlawful assembly, rioting and dacoity form one transaction would not be enough to make persons who were not actually participants in the dacoity liable unless the common object of dacoity is made out and the case falls within the purview of Section 149 of the IPC. In fact, if the accused are charged for the offence of dacoity punishable under Section 395 of the IPC, then they need not be charged for the offence under Section 149 of the IPC. 189. We are of the view that it was not at all necessary for the trial Judge to have framed a charge under Section 149/395 of the IPC because an offence under Section 395 of the IPC comes into existence only when an act of dacoity is committed by five or more persons jointly and, therefore, the question of applying Section 395 of the IPC is a mere surplusage. 190. In the aforesaid context, we may refer to and rely upon a decision of the Supreme Court in the case of Musakhan v. State of Maharashtra, reported in 1977(1) SCC 733 , wherein the Supreme Court observed in para-13 as under : “13. So far as A-20 Saber Ali Khan and A-22 Mohd. Azam Khan are concerned they have been expressly named by P.Ws. 1 and 16 as being members of the mob which attacked the Bharat Lodge and which actually participated in stealing away the cash box. Both these accused had attacked the counter along with two others and had forcibly removed the cash box containing few hundred rupees and, therefore, they cannot escape conviction under Section 392, I.P.C. even if the charge under Sections 149/395 fails. We might like to mention that it was not at all necessary for the learned Additional Sessions Judge to have framed a charge under Sections 149/395, I.P.C. because an offence under Section 395, I.P.C. comes into existence only when an act of dacoity is committed by five or more persons jointly, and, therefore, the question of applying Section 149, I.P.C. is a mere surplusage. At any rate, since the number of persons who have been proved to have stolen the cash box is less than five, the charge under Section 395, I.P.C. as also that under Sec. 149, I.P.C. must necessarily fail. We, therefore, alter the conviction of A-20 Saber Ali Khan and A-22 Mohd. Azam from that under Sections 149/395, I.P.C. to that under Section 392, I.P.C. simpliciter and reduce their sentence under this section to one year's rigorous imprisonment each while maintaining the fine imposed on them by the Trial Court. The convictions and sentences on other counts are set aside.” 191. In view of the aforesaid, the omission on the part of the trial Judge in not framing the charge for the offence under Section 149 so far as the substantive offence of dacoity punishable under Section 395 of the IPC is concerned, would not prove to be fatal to the prosecution and the accused persons cannot be said to have been prejudiced in any manner. WHETHER THE OFFENCE OF DACOITY PUNISHABLE UNDER SECTION 395 OF THE IPC IS CONSTITUTED IN THE CASE ON HAND : 192. The case on hand is one of rioting. The evidence on record indicate that the incident of rioting occurred on account of the incident that had occurred on the previous day at the Godhra Railway Station, i.e. the Godhra carnage. The members of the Hindu community wanted to seek revenge on the members of the minority community. It is the case of the prosecution that a mob of around 300 persons gathered and attacked the houses of the members of the minority community. The case is one of outright rioting. Unfortunately, the trial court did not even bother to frame charge under Section 148, which makes rioting armed with deadly weapons a punishable offence. 'Rioting' is defined under Section 146 of the IPC. However, it is the case of the prosecution that in the course of rioting, the accused persons also committed the offence of dacoity. The understanding of the prosecution is that the articles which were looted from the respective houses of the prosecution witnesses, i.e. the members of the minority community, would constitute the offence of dacoity. We are afraid, the conviction of the appellants for the offence of dacoity is not sustainable in law for the reasons we shall record herein after. 193. The understanding of the prosecution is that the articles which were looted from the respective houses of the prosecution witnesses, i.e. the members of the minority community, would constitute the offence of dacoity. We are afraid, the conviction of the appellants for the offence of dacoity is not sustainable in law for the reasons we shall record herein after. 193. Section 390 of the IPC explains what is robbery. Section 390 of the IPC reads as under :- “390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted. Explanation.-The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. Illustrations (a) A holds Z down, and fraudulently takes Z's money and jewels from Z's clothes, without Z's consent. Here A has committed theft, and, in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery. (b) A meets Z on the high road, shows a pistol, and demands Z's purse. Z, in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery. (c) A meets Z and Z's child on the high road. A takes the child, and threatens to filing it down a precipice, unless Z delivers his purse. A has therefore committed robbery. (c) A meets Z and Z's child on the high road. A takes the child, and threatens to filing it down a precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z. (d) A obtains property from Z by saying-"Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees". This is extortion, and punishable as such: but it is not robbery, unless Z is put in fear of the instant death of his child.” 194. Section 391 is with regard to 'dacoity'. Section 391 of the IPC reads as under :- “391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".” 195. Theft amounts to 'robbery', if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc. for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc. for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc., had been caused. If hurt etc. is caused at the time of the commission of the theft but for an object other than the one referred to in sec. 390, I. P. Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in Section 390 of the IPC, must always be satisfied before theft can amount to robbery and this has been explained in Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476, in the following words: “The words 'for that end' in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances.” [See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol. II) GLR 678] 196. In the case of Karuppa Gounden v. Emperor AIR 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi 5 C.W.N. 372 and King Emperor v. Mathura Thakur 6 C.W.N. 72, it has been observed at page 824 as follows : “Now it is our duty to give effect to the words `for that end'. It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The public Prosecutor has been forced to argue that `for that end' must be read as meaning `in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly words `in those circumstances' would widen the application of the section and we are not permitted to do that. The public Prosecutor has been forced to argue that `for that end' must be read as meaning `in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly words `in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v. Kafiluddi Manjhi 5 C.W.N. 372. Their Lordships put the question in this way: “It seems to us that the whole question turns upon the words 'for that end'. Was any hurt or fear of instant hurt, that was caused in the present case, cause for the end of 'the commission of the theft? We think not. It seems to us that whatever violence was used was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time.” The language used in another case reported as King Emperor v. Mathura Thakur 6 C.W.N. 72 is as follows: “The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested.” Those judgments in my opinion state the obvious intention of the Section and we are bound no give effect to it and I therefore follow the decisions in those two cases. Ordinarily, if violence or hurt etc. is caused at the time of theft, it would be reasonable to infer that violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in evidence to show that hurt or violence was caused not for this purpose but for a different purpose. [See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol. II) GLR 678] 197. But, there may be something in evidence to show that hurt or violence was caused not for this purpose but for a different purpose. [See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol. II) GLR 678] 197. We quote an extract from Ratanlal & Dhirajlal's Law of Crimes, 24th Edition, at page 1891 on the phrase 'For that end' : “The essence of the offence is that the offender for the end of committing theft, or carrying away or attempting to carry away properties obtained by theft, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. Death, hurt, or wrongful restraint, must be caused in committing theft, or in carrying away property obtained by theft. The words “for that end” cannot be read as meaning “in those circumstances” as that would widen the application of the section. The hurt contemplated must be a conscious and voluntary act on the part of the thief for the purpose of overpowering resistance on the part of the victim quite separate and distinct from the act of theft itself. The use of violence will not convert the offence of theft into robbery unless the violence be committed for one of the ends specified in this section. Where the accused abandoned the property obtained by theft and threw stones at is pursuer to deter him from continuing the pursuit, it was held that the accused was guilty of theft and not of robbery. It is not sufficient that in the transaction of committing theft, hurt, etc. has been caused. If hurt, etc. is caused at the time of the commission of the theft but for an object other than the one referred to in this section, theft would not amount to robbery. Thus where the accused were armed and were removing crops from the land of complainant, on protest from the complainant, they threatened that in case the complainant attempted to enter the land in future he would be done to death and chased him with lathis, it could not be said that offence of robbery was made out.” 198. Thus where the accused were armed and were removing crops from the land of complainant, on protest from the complainant, they threatened that in case the complainant attempted to enter the land in future he would be done to death and chased him with lathis, it could not be said that offence of robbery was made out.” 198. The Supreme Court, in the case of Venu @ Venugopal and others v. State of Karnataka, (2008)3 SCC 94 , has observed in para-10 as under : “The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.” 199. The aforesaid discussion is sufficient to take the view that the conviction of the appellants for the offence of dacoity is not sustainable in law. The common object of the members of the unlawful assembly was not to commit dacoity. The common object of the unlawful assembly was rioting. The riots flared up on account of the Godhra carnage. As noted above, the members of the Hindu community wanted to seek revenge over the members of the minority community. It is in this background that the rioting took place, and in the process, household articles and other articles of the members of the minority community were destroyed. SECTION 436 OF THE IPC : 200. The aforesaid now takes us to the second question, whether the conviction of the appellants for the offence punishable under Section 436 of the IPC in the absence of any specific charge of rioting, arson, formation of unlawful assembly and the common object of such unlawful assembly is sustainable in law ? 201. The oral evidence of the witnesses referred to and discussed above would indicate that there is no clarity as to which particular accused committed the offence of mischief by fire or explosive substance. The allegations are quite vague and general. In fact, the moot question which we need to look into is, whether the so-called eye-witnesses had the chance or the occasion to identify the accused persons indulging in the act of alleged arson and rioting. The allegations are quite vague and general. In fact, the moot question which we need to look into is, whether the so-called eye-witnesses had the chance or the occasion to identify the accused persons indulging in the act of alleged arson and rioting. We are saying so, because the eye-witnesses have testified to the effect that no sooner they saw the mob marching towards their locality, they all ran away. One witness has testified that he, along with his brother, ran away and hid themselves on a hillock. There is nothing in the evidence to indicate as to how far this hillock is from the locality or from the house of the witness. Some of the eye-witnesses have deposed that they could identify some of the accused persons present in the mob as there were tube-lights surrounding their houses. Be that as it may, the conviction of all the 27 accused is on the basis as if they all committed the offence punishable under Section 436 of the IPC simpliciter. 202. We are first examining the issue, whether the conviction of all the accused for the offence punishable under Section 436 of the IPC simpliciter is sustainable in law. We proceed on the footing as if the charge is defective. 203. The Sessions Judge did not frame charge against the accused persons for the offence punishable under Section 436 of the IPC read with Section 149 of the IPC. It is also important to note that the relevant prosecution allegations so as to bring in the ingredients of the offence punishable under Section 436 of the IPC read with Section 149 of the IPC also were not incorporated in the charge framed by the Sessions Judge. The accused were not able to understand that they had to face charge of being member of the unlawful assembly and the common object of such unlawful assembly was rioting and arson, and in furtherance of that common object, rioting was committed along with mischief with fire and explosive substance and thereby they had the constructive liability and thus they committed the offence punishable under Section 436 of the IPC read with Section 149 of the IPC. Of course, the mere omission to mention Section 149 of the IPC may be considered as an irregularity but failure to mention the nature of the offence committed by them cannot be said to be a mere irregularity. In the instant case, the accused were told to face a charge punishable under Section 436 of the IPC simpliciter and there was no charge under Section 436 of the IPC read with Section 149 of the IPC. However, the judgment of the trial court does not proceed on the footing as if the accused persons are guilty of the offence of mischief with fire and explosive substance being members of the unlawful assembly whose common object was arson and rioting. This issue goes to the root of the matter. 204. In the aforesaid context, our attention was invited to the decision of the Supreme Court in the case of Bala Seetharamaiah v. Perike S.Rao and others, reported in 2004 Cri.LJ 2034, wherein the Supreme Court observed as under : “Unfortunately, the Sessions Judge did not frame charge against the accused persons for offence punishable under S.302, I.P.C. read with S.149, I.P.C. It is also important to note that the relevant prosecution allegations so as to bring in the ingredients of the offence punishable under S.302, I.P.C. read with S.149, I.P.C. also were not incorporated in the charge framed by the Sessions Judge. The accused were not told that they had to face charge of being member of the unlawful assembly and the common object of such assembly was to commit murder of the deceased and in furtherance of that common object murder was committed and thereby they had the constructive liability and thus they committed the offence punishable under S.302, I.P.C. read with S.149, I.P.C. Of course the mere omission to mention S.149 may be considered as an irregularity, but failure to mention the nature of the offence committed by them cannot be said to be a mere irregularity. Had this mistake been noticed at the trial stage, the Sessions Judge could have corrected the charge at any time before the delivery of the judgment. Had this mistake been noticed at the trial stage, the Sessions Judge could have corrected the charge at any time before the delivery of the judgment. In the instant case, the accused were told to face a charge punishable under S.302 simpliciter and there was no charge under S.302, I.P.C. read with S.149, I.P.C. Therefore, it is not possible to reverse the conviction of the accused under S.326, I.P.C. and substitute the conviction for the offence punishable under Ss.302/149, I.P.C. as there was no charge framed against them for such offence.” 205. As against the aforesaid decision of the Supreme Court relied upon by the learned counsel appearing for the appellants, the learned APP invited our attention to the decision of the Supreme Court in the case of Kammari Brahmiah and others v. Public Prosecutor, reported in (1999)1 SCR 361 . The learned APP has placed reliance on the following observations : “....what is to be done in cases where charge is not framed or there is an error, omission or irregularity in framing of the charge. From the unequivocal terms of the section, it can be stated that finding, sentence or order could be set aside only in those cases where the facts are such that no valid charge could be preferred against the accused in respect of the facts proved. Secondly, if the facts are such that charge could be framed and yet it is not framed but there is no failure of justice, has in fact been occasioned thereby, the finding sentence or order of the Court of competent jurisdiction is not to be set aside on that ground. Thirdly, if there is failure of justice occasioned by not framing of the charge or in case of an error, omission or irregularity in charge re-trial of the case is to be directed as provided under sub-section (2). 7. In the present case, the facts are clear. It established beyond reasonable doubt that because of the morning quarrel between the accused No. 1 and the deceased, the accused Nos. 1 to 6 went at the field of the deceased at about 3.30 p.m. They picked up the quarrel and inflicted injuries on the deceased. 7. In the present case, the facts are clear. It established beyond reasonable doubt that because of the morning quarrel between the accused No. 1 and the deceased, the accused Nos. 1 to 6 went at the field of the deceased at about 3.30 p.m. They picked up the quarrel and inflicted injuries on the deceased. In view of these facts, the learned counsel for the appellant was not in a position to point out any prejudice caused to the accused by not framing of the charge under Section 148 or for the offence punishable under Section 302 read with Section 149 except by stating that by not framing charge properly accused have lost an opportunity of leading rebuttal evidence. He relied upon the decision rendered in the case of Pandurang v. State of Hyderabad, AIR 1955 SC 216 , wherein the Court has observed that Section 149 unlike Section 34 creates a specific offence and deals with punishment of that offence alone; hence, strong reasons for using Section 149, when it is not charged even if it be possible to convict under that section in the absence of any specific charge, is required and the Court has left the point undecided. 8. In our view, this question is concluded by the decision rendered in the case of Ramkrishan v. State of Rajasthan, (1997) 7 SCC 518 : (1997 AIR SCW 3935) wherein the Court has relied upon the decision of this Court in the case of Willie (William) Slaney v. State of M. P., (1955) 2 SCR 1140 : ( AIR 1956 SC 116 ) and held that omission to mention Section 149, I.P.C. specifically in the charge is only an irregularity and since no prejudice is shown to have been caused to the accused by that omission, it could not affect their conviction. The Court in that case from the established facts and circumstances convicted the accused under Section 304, Part II, I.P.C. read with Section 149, I.P.C. and not under Section 302, I.P.C. even though no specific charge indicating the applicability of Section 149, I.P.C. was framed. 9. The Court in that case from the established facts and circumstances convicted the accused under Section 304, Part II, I.P.C. read with Section 149, I.P.C. and not under Section 302, I.P.C. even though no specific charge indicating the applicability of Section 149, I.P.C. was framed. 9. Further, at this stage it would be worthwhile to refer to some discussions on the question involved from the case of Willie (William) Slaney v. State of Madhya Pradesh, (1955) 2 SCR 1140 : ( AIR 1956 SC 116 ) wherein the larger Bench has elaborately discussed the provisions of Sections 232, 233, 237, 238, 535 and 537 of the Criminal Procedure Code 1898 (Sections 232, 535 and 537 are combined as Section 464 in Criminal Procedure Code 1973) and observed that "the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based." After considering the various decisions, the Court further observed that "the swing of the pendulum has been away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered." 10. Thereafter, Court examined the scheme of relevant sections as well as Sections 535 and 537 and held that : "Section 535 uses the words "shall be deemed invalid" which indicate that a total omission to frame a charge would render the conviction invalid but for Section 535 which serves to validate it when that sort of "irregularity" has not occasioned a "failure of justice". Section 537 does not use any of these expressions but merely says that no conviction or sentence "shall be reversed or altered" unless there has in fact been a failure of justice." The Court thereafter negatived the contention that total omission to frame the charge would not be covered by Section 535 or 537 and held as under; "Chapter XIX deals comprehensively with charges and Sections 535 and 537 cover every case in which there is a departure from the rules set out in that Chapter. Such departures range from errors, omissions and irregularities in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. In all these cases the only question is about prejudice. We say this because the Code repeatedly says so in express and emphatic terms and because that is the foundation on which rules of procedure are based. We say it because that accords with logic and principle and reason and because it touches the deep varieties on which the structure of justice is erected and maintained." The Court pertinently further observed, "We are unable to find any magic or charm in the ritual of a charge. It is the substance of these provisions that count and not their outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent. It is the substance of these provisions that count and not their outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent. We agree that a man must know what offence is he being tried for and that he must be told in clear and unambiguous terms and that it must all be "explained to him" so that he really understands (Section 271(1) in sessions trials, Section 255 (1) in warrant cases) but to say that a technical jargon of words whose significance no man not trained to the law can grasp or follow affords him greater protection or assistance than the informing and the explaining that are the substance of the matter, is to base on fanciful theory wholly divorced from practical reality; and the same applies to the vast bulk of jurors who attend our Courts. They are none the wiser because of a formal charge except in a vague and general way that is of no practical account. The essence of the matter is not a technical formula of words but the reality. Was he told? Was it explained to him? Did he understand? Was it done in a fair way?" 11. Thereafter, Court dealt with not framing the charge under Section 34 or 149 and held that "endeavour was made in the argument to draw a distinction between cases falling under Section 34 of the Indian Penal Code and those under Section 149 of the Indian Penal Code. It was contended that even if no separate charge is necessary when Section 34 is called in aid because Section 34 does not create a separate offence, one is essential for a conviction under Section 149 and that there, at any rate, the absence of a separate charge is fatal. This is not a case under Section 149 of the Indian Penal Code so the question does not really arise but it is necessary to advert to the argument because, on the view we take of Sections 225, 535 and 537, it is immaterial what the offence is and whether there is a charge at all. The only question is whether the irregularity occasioned prejudice. "The Court further held" it is to be observed that Section 535 of the Code is mandatory in its terms, just as mandatory as Section 233. The only question is whether the irregularity occasioned prejudice. "The Court further held" it is to be observed that Section 535 of the Code is mandatory in its terms, just as mandatory as Section 233. If it be accepted that an absence of a charge would, but for its provisions, render a conviction invalid, this section cures such an invalidity when there is, in fact, not in theory but in fact, no failure of justice." Dealing with the facts in the case, the Court further held as under ( AIR 1956 SC 116 at P. 132) :- "Put at its highest, all that the appellant can urge is that a charge in the alternative ought to have been framed, which in itself imports that it could have been so framed. As was said by the Privy Council in Begu v. King-Emperor ( AIR 1925 PC 1 30) and also by this Court in Lachman Singh v. State ( AIR 1952 SC 167 at P. 170). "A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. That is what happened here............... They were not charged with that formally, but they were tried on evidence which brings the case under Section 237(1). The variation between murder and concealing evidence after the crime is no more than the variation between killing a man jointly with another, sharing his intention, or allowing the other to do the actual killing with the same common intention." 12. In a differing judgment, Chandra-sekhara Aiyar, J. observed that "Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant." 13. The aforesaid discussion leaves no doubt that non-framing of charge would not vitiate the conviction if no prejudice is caused thereby to the accused. As observed in the aforesaid case, the trial should be fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered. Criminal Procedure Code is a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. In the present case, accused were tried on the prosecution version that all of them went at 3.30 p.m. in the field of the deceased; they picked up the quarrel with him, inflicted injuries to the deceased as narrated by the prosecution witnesses, accused Nos. 3 to 6 participated as stated above; the statements were recorded under Section 313 of the Cr. P.C. and the questions were asked to the effect that they jointly came at 3.30 p.m. and caused injuries to the deceased as stated by the prosecution witnesses and the role assigned to accused Nos. 3 to 6 was also specifically mentioned. Hence, it is apparent that no prejudice is caused to the accused who were charged for the offence under Section 302, by not framing the charge for the offence punishable under Section 302 read with S. 149. In this view of the matter, the conviction of the accused Nos. 3 to 6 for the offence punishable under Section 325 read with S. 149 cannot be said to be anyway illegal which requires to be set aside.” 206. In Kammari Brahmiah (supra), the Supreme Court has referred to and relied upon Anna Reddy Sambasiva Reddy and others v. State of Andhra Pradesh (Criminal Appeal No.408 of 2007, decided on 21st April 2009). In Kammari Brahmiah (supra), the Supreme Court has referred to and relied upon Anna Reddy Sambasiva Reddy and others v. State of Andhra Pradesh (Criminal Appeal No.408 of 2007, decided on 21st April 2009). In the said decision, the Supreme Court has observed as under : “...The offence, in the established facts and circumstances of the case, under Section 302 read with section 149 IPC is implicit and applying the dictum laid down by the Constitution Bench of this Court in Willie (William) Slaney, the omission to mention Section 149 IPC specifically in the charge nos. 4 and 5 cannot affect their conviction. In no way their conviction is rendered bad as the appellants had assembled together armed with axes and eathapululu (sickle) and were parties to the assault on D-1 and D-2 and others. In a situation such as this it was not obligatory upon the prosecution to prove which specific overt act was done by which of the accused.” 207. Thus, the dictum of law discernible from the above is, that omission to mention Section 149 of the IPC specifically in the charge is only an irregularity and the accused should point out the prejudice caused to him by such omission affecting the conviction. It is true that in the case on hand this issue as regards the defect in the charge or the omission to frame charge under Section 149 of the IPC has been raised for the first time in this appeal. All throughout the trial, such objection was not raised at any point of time. 208. Thus, the perusal of the charge in the case on hand reveals that the trial court proceeded on the footing that each of the accused herein had committed the offence of mischief by fire and explosive substance, and in such circumstances, the charge under Section 436 of the IPC (simpliciter) was framed. At the cost of repetition, we state that no ingredient of Section 149 of the IPC has been put in the charge to the accused-appellants. Whether the accused persons could have been convicted for causing mischief by fire under Section 436 of the IPC (simpliciter) when they were not charged with Section 149 of the IPC. The reply to this question, in our opinion, is simple. Whether there is any direct evidence against the accused-appellants that they had set the fire ? Whether the accused persons could have been convicted for causing mischief by fire under Section 436 of the IPC (simpliciter) when they were not charged with Section 149 of the IPC. The reply to this question, in our opinion, is simple. Whether there is any direct evidence against the accused-appellants that they had set the fire ? Whether the eye-witnesses have said in their evidence that they had seen them doing so ? If the aforesaid two questions are to be answered in the affirmative, then probably the conviction under Section 436 of the IPC (simpliciter) may be sustainable in law without the aid of Section 149 of the IPC. 209. At the cost of repetition, we state that the trial Judge has not appreciated or discussed the evidence as if all the accused persons had formed an unlawful assembly and the common object of such unlawful assembly was to commit the offence of mischief by fire and explosive substance. 210. In the overall view of the matter, we have reached to the conclusion that the accused persons cannot succeed only on the argument with regard to the defect in the charge. The trial court has held each of the accused persons guilty on the premise that there is evidence with regard to the overt act of each of the accused so far as the offence punishable under Section 436 of the IPC is concerned. In such circumstances, the conviction of all the accused persons for the offence under Section 436 of the IPC (simpliciter) could be said to be sustainable in law. Of course, subject to the finding, whether the evidence of the eye-witnesses is reliable or not. It would have been altogether a different case if the trial court would have convicted the accused persons with the aid of Section 149 of the IPC. Such conviction of the accused persons with the aid of Section 149 of the IPC would definitely have vitiated the conviction on the test of prejudice. 211. We now look into the matter proceeding on the footing that there is no defect in the charge and even if there is one, the same could not be said to have caused prejudice to the accused thereby vitiating the judgment and order of conviction and sentence passed by the trial court. 212. 211. We now look into the matter proceeding on the footing that there is no defect in the charge and even if there is one, the same could not be said to have caused prejudice to the accused thereby vitiating the judgment and order of conviction and sentence passed by the trial court. 212. We may not be understood to imply that the charge as framed by the trial court is satisfactory. In the decisions quoted by us, the Supreme Court has repeatedly pointed out the duty of the trial court in taking care to frame proper charges. Framing of charge is not an empty formality. It is of vital import in the conduct of a trial. The task of framing the charge should not be approached lightly. This is evident from the provisions of Chapter XVIII of the Code. Section 226 of the Code requires that when an accused appears or is brought before the Sessions Court, the prosecutor shall open his case by describing the charge framed against the accused and referring to the evidence proposed to be adduced. This has to be followed by consideration of the records and documents of the case and hearing the submissions of both the sides. If the accused is not discharged at that stage, a charge has to be framed under Section 228 of the Code. Charge is to be framed when a Sessions Judge is of the opinion that the accused has committed an offence exclusively triable by a Sessions Court. This conclusion is to be arrived at only after consideration of the records of the case and documents and hearing the submissions of both the sides. Section 228(2) of the Code requires that where the Judge frames a charge, the charge must be read and explained to the accused and his plea is to be taken. These provisions emphasise the deliberation with which the task of framing of charge is to be undertaken by a Sessions Court. Mere copying of the police charge is wholly unwarranted, not only because police charge is invariably a jumbled up charge, but more because law requires a Judge to apply his mind on the records and documents before framing a charge. Authoritative text books on the Penal Code, 1860, provide model charges, in particular, we refer to the model charges contained in the law of Crimes by Ratanlal. Authoritative text books on the Penal Code, 1860, provide model charges, in particular, we refer to the model charges contained in the law of Crimes by Ratanlal. The courts would do well to seek guidance from these model charges before framing charges in criminal cases. We emphasise the need for the judges themselves bestowing their personal attention to the framing of charges to avoid prejudice and also allegations of prejudice to the defence. 213. Generally speaking, the criminal law does not depend on the quantity of witnesses, it is the quality of the evidence that matters. In cases involving offence(s) committed by an unlawful assembly, particularly where the number of members of such assembly is quite large, the courts have struggled to arrive at the satisfaction as to the complicity of the persons brought to trial on account of the proof showing their presence at the scene of the incident. In this context, a bench of four Hon'ble Judges of the Supreme Court in case reported as Masalti vs. The State of Uttar Pradesh, AIR 1965 SC 202 , had devised what has come to be known as a “mechanical test”, the relevant observations of the court reading thus:- “16. ... it is true that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it cannot be treated as irrational or unreasonable. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a mechanical test... 17. ... In a sense, the test may be described as mechanical; but it cannot be treated as irrational or unreasonable. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a mechanical test... 17. ... That the mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142 IPC cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. An assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.....” 214. In Binay Kumar Singh vs. State of Bihar, (1997) 1 SCC 283 , the principles were reiterated, albeit referring to the “mechanical test” of Masalti (supra) as one of prudence, observing thus:- “31... There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. All the same, when the size of the unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting.....” 215. In State of U.P. vs Dan Singh & Ors., (1997) 3 SCC 747 , the rule of Masalti (supra) was again followed, the challenge before the court being summed up thus:- “32. This brings us to the next question as to who were the persons who were members of this unlawful assembly. In State of U.P. vs Dan Singh & Ors., (1997) 3 SCC 747 , the rule of Masalti (supra) was again followed, the challenge before the court being summed up thus:- “32. This brings us to the next question as to who were the persons who were members of this unlawful assembly. It is no doubt true that some of the villagers may have been present at the time of the occurrence who were mere spectators and could not be regarded as being members of the unlawful assembly. It also happens, when people are killed during a riot, there may be a possibility of the incident being exaggerated or some innocent persons being named as being part of the assailants' party. This may happen wittingly or unwittingly. But just because there may be some inconsequential contradictions or exaggeration in the testimony of the eyewitnesses that should not be a ground to reject their evidence in its entirety. In cases of rioting, where there are a large number of assailants and a number of witnesses, it is but natural that the testimony of the witnesses may not be identical. What has to be seen is whether the basic features of the occurrence have been similarly viewed and/or described by the witnesses in a manner which tallies with the outcome of the riot, viz., the injuries sustained by the victims and the number of people who are attacked and killed.” 216. The above has been the consistent approach on the subject over the years and for this reference may also be made to Banwari Ram & Ors. vs. State of U.P., (1998) 9 SCC 3 and Inder Singh & Ors. vs. State of Rajasthan, (2015) 2 SCC 734 . 217. When omnibus allegation is made by the witnesses against several persons named and unnamed, having participated in the crime, one of the tests to determine who among them actually participated in the crime is whether their names were mentioned in the FIR. Though the test is not conclusive but it lends assurance regarding their participation in the crime. 218. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. Though the test is not conclusive but it lends assurance regarding their participation in the crime. 218. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : ( AIR 1983 SC 753 ), Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP ( AIR 1959 SC 1012 )]. 219. We find it too risky and difficult to place implicit reliance on the testimony of the four eye-witnesses referred to above and discussed. We take notice of the contradictions in the form of material omissions in the evidence of the eye-witnesses very much relevant under Section 11 of the Evidence Act. The first and the foremost thing we are not ready to believe is the assertion on the part of the eye-witnesses that they were able to identify the accused persons herein from a mob of around 250 persons in the light of the fire. One of the eye-witnesses has stated that he could identify the accused persons as there were tube-lights near his house. The evidence of all the eye-witnesses indicates one thing that they all had ran away as soon as they saw the mob approaching their locality. One says that he ran away along with his family members and hid himself somewhere in a hillock and from there he could identify the accused persons. One witness says that he ran away to an agricultural field and from the field he could identify the accused persons. This evidence does not inspire any confidence. There is no ring of truth in the testimony of any of the eye-witnesses examined by the prosecution. One witness has deposed that his father was picked up by the mob and was flunged in a river and once again from the river he was picked up and flunged in an agricultural field. This fact has not been stated by him in his police statement. One witness has deposed that his father was picked up by the mob and was flunged in a river and once again from the river he was picked up and flunged in an agricultural field. This fact has not been stated by him in his police statement. This contradiction in the form of material omission has been brought on record by the defence through the evidence of the Investigating Officer. The omissions of important facts in the FIR and the police statement of the eye-witnesses to the occurrence must be taken serious note of as has been held by the Supreme Court in the case of Ramkumar Pande v. State of Madhya Pradesh, reported in AIR 1975 SC 1026 . The omissions of important facts affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. 220. At this stage, we may also highlight one another important aspect as reflected from the evidence of the Investigating Officer PW13 (Exh.67). In para-7 of his deposition, the Investigating Officer has testified that in the course of his investigation of the entire offence, no muddamal could be recovered or discovered. He has further deposed that in the course of the investigation, no instruments or weapons of any nature by which mischief could be played by fire were found. There was no recovery or discovery of any sticks, spears, etc. 221. We may refer to a decision of this High Court in the case of Dhruvkumar Nanjibhai Damor v. State of Gujarat, 1993 Cri.L.R. (Guj) 425, wherein this Court has observed as under : “The criminal trial means testing the evidence of the witness and finding out whether it inspires any confidence in the mind of court or not. 221. We may refer to a decision of this High Court in the case of Dhruvkumar Nanjibhai Damor v. State of Gujarat, 1993 Cri.L.R. (Guj) 425, wherein this Court has observed as under : “The criminal trial means testing the evidence of the witness and finding out whether it inspires any confidence in the mind of court or not. The credibility of the witness therefore is always a matter of confidence that it inspires regarding its intrinsic genuineness and truthfulness of its overall dependability beyond any manner of doubt and this doubtless dependability of the witness in turn depends upon the answers to the questions like (i) Is the prosecution story probable?, (ii) Does it suffer from any patent infirmities like enmity between the parties?, (iii) Does it suffer from any vital contradiction which cuts at the very root of the prosecution case, and (iv) Whether reading the evidence of the prosecution-witness as a whole, does it inspire the confidence of the court? etc. etc. Ignoring the above guiding principles, if the mechanical, general and the abstract test as suggested by the learned APP is to be applied viz. 'that witness has no earthly reason to falsely implicate the accused', then the court is bound to commit some mistake which may ultimately result into serious miscarriage of justice. Whether any prosecution witness has any ulterior motive to falsely implicate any accused person or not, is indeed always difficult to find out, as such motives are never writ large on the face of witnesses to be easily marked. Howsoever heinous and revolting in nature the crime may be, creating emotional turmoil in the heart and mind of the Judge, the same cannot be permitted to blinden the judicial vision from objectivity appreciating the case in its proper perspective by seeing whether apart from the heinousness of the crime, there was any credible evidence worth the name to connect the accused with the crime alleged against him. Between the allegations of the heinousness of the crime, on the one hand, and the accused on the other hand, before any conclusion as to the guilt of the accused is reached in between the two, there is a definite gap which is required to be bridged only by the cogent and convincing reliable prosecutions evidence. Between the allegations of the heinousness of the crime, on the one hand, and the accused on the other hand, before any conclusion as to the guilt of the accused is reached in between the two, there is a definite gap which is required to be bridged only by the cogent and convincing reliable prosecutions evidence. This gap cannot be bridged by some answer to by the abstract hypothetical question like the one raised by the learned APP in the instant case as to why the prosecutrix or for that purpose any other prosecution witness should falsely implicate any innocent person as the accused and that too on some serious charge ?” CRIMINAL CONSPIRACY : 222. The accused have also been convicted by the trial court for the offence of criminal conspiracy punishable under Section 120B of the IPC. In the entire judgment of the trial court, there is only one paragraph which deals with the charge of conspiracy. In para-61, the trial court has observed as under : “At the time when the offence in the present case occurred, two or more persons have been involved. The witnesses of the present case have clearly stated that a mob of around 200 to 250 persons had came. Therefore, two or more persons were involved. The act of the mob was to destroy the houses and cabins of the complainant witnesses by vandalizing, looting and setting them on fire. The circumstantial evidence in this regard corroborates the presence of the accused armed with weapons. In this regard, if the deposition of the complainant witness Ahmed Sikander Dat is considered, he has specifically mentioned in his cross-examination that the incident was not occurred at 4 O'clock. The witness has stated that the meeting was held at 4 O'clock. It was also not that the mob had came at 4 O'clock and the loot was committed. On considering the statement of the aforesaid witness, it is undisputed that before the incident the mob had prior meeting of minds to commit criminal act. This is a circumstantial evidence. It is an undisputed fact that the accused of the present case have committed offence of criminal conspiracy by destroying and looting the properties of the complainant witnesses and by setting them on fire. This is a circumstantial evidence. It is an undisputed fact that the accused of the present case have committed offence of criminal conspiracy by destroying and looting the properties of the complainant witnesses and by setting them on fire. In such circumstances, it is proved beyond doubt that the accused have committed the offence punishable under Section 120B of the IPC, which has been alleged against them.” 223. The line of reasoning assigned by the trial court for the purpose of holding the accused persons guilty of the offence of criminal conspiracy is that as the accused were found to be present at the time of the incident armed with weapons; the same would indicate that there was meeting of minds, and as a part of the conspiracy, the offences were committed. 224. In our opinion, there is not an iota of evidence even to infer criminal conspiracy from the circumstances on record. Some of the broad principles governing the law of conspiracy as explained by the Supreme Court in the case of State of Tamil Nadu v. Nalini and others, reported in AIR 1999 SC 2640 , may be summarised as under : “1. Under Section 120A, IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed. 2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder. 3. 2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder. 3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. 4. Conspirators may, for example, be enrolled in chain 'A' enrolling 'B', 'B' enrolling 'C', and so on and all will be members of the single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella-spoke enrollment, where a single person at the centre doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. 5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. 6. It is not necessary that all conspirators should agree to the common purpose at the same time. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. 6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. 7. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the Court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy Court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficult in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed to Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders". 8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. It is the unlawful agreement, which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. 9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies. 10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the other but the conspiracy into effect, is guilty though he intends to take no active part in the crime.” 225. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the other but the conspiracy into effect, is guilty though he intends to take no active part in the crime.” 225. Applying the aforesaid broad principles to the facts of the present case, more particularly, the evidence on record, we are of the view that the conviction of the accused persons for the offence of criminal conspiracy is not sustainable in law. 226. Upon re-appreciation and re-evaluation of the entire evidence on record, oral as well as documentary, we have reached to the conclusion that the trial court committed a serious error in holding the accused persons guilty of the offences charged with. 227. In view of the aforesaid discussion, the Criminal Appeals Nos.2189 of 2005 and 2531 of 2005 respectively are allowed. The impugned judgment and order of conviction and sentence passed by the Additional Sessions Judge, 9th Fast Track Court, Godhra, Panchmahals, dated 11th October 2005 in the Sessions Cases Nos.54 of 2004 and 184 of 2004 respectively is quashed and set aside and the appellants are acquitted of the offence punishable under Sections 395, 435, 436 and 120(B) of the Indian Penal Code, 1860, and under Section 135 of the Bombay Police Act. The appellants-original accused have been released on bail by this Court pending the final disposal of the Criminal Appeals. As their Appeals are allowed and they have been ordered to be acquitted, the bail bond furnished by them stand discharged. The appellants to furnish Bail Bond and surety bond of Rs.10,000=00 (Rupees Ten Thousand Only) each afresh before the trial court as prescribed under Section 437(A) of the Code of Criminal Procedure, 1973. Appeals allowed.