JUDGMENT : VINIT KUMAR MATHUR, J. 1. The present appeal under Section 374(2) Cr.P.C. has been preferred by the accused-appellants against the judgment dated 22/04/2013, passed by learned Sessions Judge, Jalore in Sessions Case No. 31/2011, whereby they have been convicted and sentenced as under:- Offence Sentence Fine In default 460 IPC Five Years SI Rs.1,000/- 6 months’ S.I. 302 IPC Life Imprisonment Rs.5,000/- 2 Years SI 307 IPC Ten years SI Rs.2,000/- 1 Year S.I. 326 IPC Five Years SI Rs.1,000/- 6 months’ S.I 324 IPC One year S.I. Rs.500/- 3 months S.I 323/34 IPC Six Months S.I. Rs.100/- 10 days S.I. 2. The prosecution story as disclosed in the written report (Ex. P.1) lodged by Shokinnath (PW. 1) at Police Station, Jalore on 03/04/2010 shows that on 02/04/2010 at around 9 p.m., his father Juhaarnath @ Jawaharnath (hereinafter referred to as ‘Jawaharnath’) and mother Sua were sleeping in the courtyard (Gawadi) of their residence. He and his wife Kamla were sleeping in the courtyard (Chowk) of their house. His uncle’s son Jeetnath was sleeping in the Gawadi of their house. His sister Rekha and brother-in-law Modnath were sleeping on the first floor. On 03/04/2010 at around 3 a.m., he heard some noise from the Gawadi of their house. All the inhabitants of the house woke up. He and his wife Kamla saw Joshnath, Nennath, Bheemnath sons of Ramnath having axes (kulharis) in their hands assaulting his mother and father. Joshnath inflicted an axe blow on the head of his father just above the left ear. Nennath inflicted an axe blow on the right hand of his father. Bheemnath inflicted injury by axe on the left jaw region of his mother. When the complainant saw them, they ran away from the house. He tried to catch the accused but could not succeed. His father died at the spot. He called 108 ambulance and took his mother to the Government Hospital at Jalore. All the occupants of the house identified the three assailants. On the evening of 02/03/2010, Joshnath telephoned him and enquired for the whereabouts of his mother and father and asked as to why the money due to him was not being repaid. He replied that his mother and father are at home and immediately thereafter the phone was disconnected. All the occupants of the house identified the three assailants. On the evening of 02/03/2010, Joshnath telephoned him and enquired for the whereabouts of his mother and father and asked as to why the money due to him was not being repaid. He replied that his mother and father are at home and immediately thereafter the phone was disconnected. About three months prior to the date of incident, Joshnath had misbehaved with his wife Kamla at his house whereupon, he had beaten up Joshnath. Because of this grudge, Joshnath, Nennath and Bheemnath assaulted his mother and father by axes (kulharis) with the intention to kill them. Ramnath, father of the assailants is the brother of his father. 3. On the aforesaid report, a formal FIR No. 98/2010 was registered against the accused for the offences under Sections 458, 302, 307, 323/34 IPC at the Police Station Jalore, District Jalore. 4. After completion of the investigation, police filed a charge-sheet against the accused-appellants for the offences under Sections 460, 302, 307, 326, 324 and 323/34 IPC. 5. Learned Trial Court framed, read over and explained the charges for the above offences to the accused-appellants who denied the same and sought trial. 6. During the trial, the prosecution examined as many as 16 witnesses and exhibited as many as 28A documents in support of its case. 7. The accused-appellants were examined under Section 313 Cr.P.C. and they were confronted with the evidence adduced against them during the course of trial which they denied and stated that they were innocent and had been falsely implicated in this case. 8. Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, convicted and sentenced the accused-appellants as above vide judgment dated 22/04/2013. Hence this appeal. 9. We have heard the arguments advanced by learned counsel for the appellants and the learned Public Prosecutor and have carefully and threadbare perused the entire evidence available on record. 10. Learned counsel for the appellants has fervently submitted that there exist material contradictions and omissions in the testimony of the prosecution witnesses examined before the trial Court. The appellants who are closely related to the complainant have been falsely implicated as the complainant was bearing enmity with Joshnath for the reason that he had allegedly misbehaved with Smt. Kamla W/o. Shokinnath. The appellants who are closely related to the complainant have been falsely implicated as the complainant was bearing enmity with Joshnath for the reason that he had allegedly misbehaved with Smt. Kamla W/o. Shokinnath. To settle the scores, they have been falsely implicated in this case. 11. Learned counsel further contended that as per the prosecution story itself, the allegation against Bheemnath is limited to causing injury to Smt. Sua and, therefore, his case is distinguishable from the case of Joshnath and Nennath. He, therefore, may be acquitted of the charges levelled against him. 12. He further contended that the learned trial court committed a grave factual and legal error while convicting and sentencing the accused-appellants for the alleged offences as above vide Judgment dated 22/04/2013, which deserves to be set aside in appeal and the accused-appellants may be acquitted of the charges levelled against them. 13. On the contrary, learned public prosecutor has vehemently supported the judgment of learned trial Court dated 22/04/2013 convicting the appellants for the offences alleged therein. He submitted that in view of the testimony of the eye witnesses i.e. PW.1 Shokinnath, PW.2 Smt. Sua, PW.3 Kamla, PW.4 Modnath, PW.5 Jeetnath and PW.7 Rekha, the prosecution has been able to prove the allegations levelled against the appellants beyond all reasonable doubt. PW.2 Smt. Sua being the wife of deceased Jawaharnath and being an injured eye witness has given cogent and clinching evidence implicating the accused and there is no reason to doubt her testimony. The ocular evidence which has come on record is corroborated from the medical evidence as PW.6 Dr. Ramesh Chauhan who conducted autopsy upon the dead body of the deceased Jawaharnath stated that the cause of death was head injury which was sufficient to cause death in the ordinary course of nature. The postmortem report (Ex. P.12) also shows the cause of death as “coma due to head injury” fully corroborating the ocular evidence. The recoveries of the weapons of offences i.e. axes and the FSL Report complete the chain of circumstances leading to the only conclusion that the appellants were the assailants. Since the appellants being brothers of the complainant went to his house in the dead of the night and assaulted Jawaharnath and his wife with sharp edged weapons i.e. axes which clearly shows their common intention to commit murder of Jawaharnath. 14. Since the appellants being brothers of the complainant went to his house in the dead of the night and assaulted Jawaharnath and his wife with sharp edged weapons i.e. axes which clearly shows their common intention to commit murder of Jawaharnath. 14. He further contended that motive behind the incident is also writ large in the present case because there was prior enmity between the families as Joshnath had misbehaved with Kamla three months prior to the date of incident for which he had been reprimanded. He, therefore, submitted that no interference is warranted in the judgment of conviction dated 22/04/2013. 15. We have considered the submissions made at bar and have closely scrutinized the entire material available on record. 16. The testimony of PW. 1 Shokinnath, the first informant shows that while he and his other family members i.e. PW.2 Smt. Sua (mother of the complainant), PW.4 Modnath, PW.5 Jeetnath and PW.7 Rekha were sleeping, the appellants came to their house armed with axes and assaulted his mother and father. The grievous indiscriminate blows inflicted by all the three persons resulted into a large number of injuries to his mother Smt. Sua as is evident from Injury Report Ex. P.9 and fatal injuries to his father Jawaharnath (PMR No. Ex. P12). On hearing the hue and cry coming from the Gawadi of his house, he ran towards the three assailants but all of them fled from the place of incident. Thereafter, 108 ambulance was called and his mother was taken to the Government Hospital and report was lodged at the Police Station. During the course of investigation, he affixed his thumb impressions on the memos prepared by the police. Nothing significant was elicited during the cross-examination of this witness so as to doubt the credibility or veracity of the deposition made by him in the examination-in-chief. 17. The injured PW.2 Smt. Sua being the wife of deceased Jawaharnath stated that while they were sleeping in their Gawadi, all the three accused came around and launched an assault. Joshnath inflicted axe blow on the head of her husband Jawaharnath. Nennath inflicted axe blow on the hand of her husband and Bheemnath inflicted injury with axe on her left jaw region. Shokinnath, Kamla, Rekha, Modhnath, Jeetnath all came and intervened. Thereafter, the appellants ran away from their house. Joshnath inflicted axe blow on the head of her husband Jawaharnath. Nennath inflicted axe blow on the hand of her husband and Bheemnath inflicted injury with axe on her left jaw region. Shokinnath, Kamla, Rekha, Modhnath, Jeetnath all came and intervened. Thereafter, the appellants ran away from their house. Nothing significant was elicited during the cross-examination of this witness so as to doubt the credibility or veracity of the deposition made by her in the examination-in-chief. 18. PW.3 Kamla (wife of first informant Shokinnath), PW.4 Modhnath, PW.5 Jeetnath and PW.7 Rekha deposed in their testimony regarding the incident as has been narrated in the statement of PW.1 Shokinnath. 19. PW.6 Dr. Ramesh Chauhan who examined the injuries of Smt. Sua (PW.2), mentioned about the dimensions and location of injuries suffered by her. He conducted the autopsy upon the dead body of the deceased Jawaharnath on 03/04/2010 and while describing the injuries noticed, he stated that the cause of death was head injury caused by a sharp weapon which was sufficient to cause death in the ordinary course of nature. He further stated that the injuries were caused by sharp edged weapon. 20. PW.15 Anand Singh was the Police Officer, who conducted the investigation of the matter and stated that he prepared site plan, recorded statements of the witnesses, effected recoveries as prescribed under the law and submitted the charge sheet before the competent criminal Court. 21. Injury report of Smt. Sua (PW.2) is Ex. P.9. The postmortem report of deceased Jawaharnath is Ex. P.12 wherein the cause of death is shown as “coma due to head injury”. Recovery memos of weapon of offences are Ex. P.13 and Ex. P.15. FSL Report is Ex. P.27 as per which, the exhibits sent for FSL were found to be stained with “B” Group blood. 22. The eye witnesses including the injured eye witness PW.2 Smt. Sua gave unflinching evidence describing the entire incident and alleging that the appellants who were armed with sharp edged weapons i.e. axes etc, trespassed into their house in the night time and assaulted Jawaharnath and Smt. Sua with intention to kill them. The testimony of the eye witnesses as discussed above clearly shows that the appellants came to their house with a common intention to take revenge and assault Jawaharnath and Smt. Sua. The testimony of the eye witnesses as discussed above clearly shows that the appellants came to their house with a common intention to take revenge and assault Jawaharnath and Smt. Sua. Jawaharnath was inflicted fatal blow on the vital part i.e. head with such a force that he succumbed to the injuries on the spot. Smt. Sua was inflicted with injuries and could barely save herself by raising alarm as a result of which occupants of the house woke up and rushed to the Gawadi. Still, she sustained a number of injuries and had to be taken to the Government Hospital, Jalore for providing treatment. The identification of the accused-appellants was not very difficult as all the three accused-appellants are closely related being sons of Ramnath, real brother of deceased Jawaharnath. It has come on record that all the eye witnesses i.e. PW.1 Shokinnath, PW.2 Smt. Sua, PW.3 Kamla, PW.4 Modnath, PW.5 Jeetnath and PW.7 Rekha have identified the appellants. Since the appellants and the complainants were known to each other, therefore, names of the appellants have been mentioned in the written report itself. The nature, number and location of the injuries sustained by Jawaharnath and Smt. Sua as described in the evidence of PW.6 Dr. Ramesh Chauhan and the postmortem report (Ex. P.12) completely fortifies and corroborates the statements of the eye witnesses. The recoveries and the FSL Report put a seal on the culpability of the appellants who committed the murder of Jawaharnath and inflicted grievous injuries to Smt. Sua in the intervening night of 2/3.04.2010. 23. The motive for commission of the incident on the part of the appellants is also present in the case as they have gone to the house of deceased after the midnight, carrying sharp-edged weapons i.e. axes to settle the score. The rivalry was on account of Shokinnath had assaulted Joshnath for the reason that he had misbehaved with his wife Kamla. 24. There is no reason for us to take a different view in case of the appellant Bheemnath for the simple reason that he inflicted axe-blow to PW.2 Smt. Sua and in the wee hour of night and thus, we have no doubt in our minds that he accompanied his brothers Joshnath and Nennath with the common intention to kill parents of the complainant. 25. 25. It is a fact that no charge was framed by learned trial Court against the accused-appellants under Section 302/34 IPC. But it is a fact that while framing the charges against the appellants, they were explained in detail the act done by them for which they were going to face trail. A conjoint reading of the charges framed against the appellants and the testimony of prosecution witnesses shows that the appellants were completely made aware of the acts attributed to them for which they were put up for trial. In our opinion, the omission or defect in framing of charge under Section 34 in this case will not cause any failure of justice nor would it prejudice the accused if this charge is now applied at the appellate stage by exercising the powers under Section 385(2) read with 386 Cr.P.C. Our reasoning is also getting support from the sequence of facts mentioned below leading to the only conclusion that the appellants shared common intention for the commission of the offences:- (a) the appellants are real brothers; (b) the appellants were armed with sharp edged weapon i.e. axes (c) the appellants went to the house of complainant at around 3 a.m. on the intervening night of 2/3.4.2010 armed with deadly weapons. (d) the appellants were close family members of deceased (e) the motive in the case was the rivalry between the two families on account of Joshnath having misbehaved with Smt. Kamla W/o. Shokinnath (PW.1). 26. Therefore, the multiple injuries having caused to deceased Jawaharnath and his wife Smt. Sua clearly depict the fact that the appellants shared common intention in committing murder of Jawaharnath. 27. In Barbara Singh vs. State of Punjab, (2012) 10 SCC 476 , the Hon’ble Supreme Court came to the conclusion that the accused has to satisfy the court that there is presence of any defect in framing the charge which has prejudiced the cause of the accused resulting into failure of justice. It is only in that eventuality the court may interfere. The Hon’ble Supreme Court elaborated the law as under:- “20. It is only in that eventuality the court may interfere. The Hon’ble Supreme Court elaborated the law as under:- “20. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 Cr.P.C., 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 charges. 21. ‘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 overemphasised 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 Ahmad alias Rafi v. State of U.P. (2011) 8 SCC 300 , SCC p. 320, para 36; Rattiram and Others v. State of M.P. Through Inspector of Police (2012) 4 SCC 516 and Bhimanna v. State of Karnataka (2012) 9 SCC 650 )” (Emphasis supplied) 28. In Bhimanna vs. State of Karnataka, AIR 2012 SC 3026 , the Hon’ble Supreme Court held as under:- 15. In Hasanbhai Valibhai Qureshi v. State of Gujarat, AIR 2004 SC 2078 , this Court held: “Therefore, if during trial the Trial Court, on a consideration of broad probabilities of the case, based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate.” 16. Such power empowering alteration/addition of charges, can also be exercised by the appellate court, in exercise of its powers under Sections 385(2) and 386 Code of Criminal Procedure. In Kantilal Chandulal Mehta v. State of Maharashtra & Anr., AIR 1970 SC 359 , this Court while dealing with the power of the appellate Court under the earlier Code held: “The power of the Appellate Court is set out in Section 423 of the Code of Criminal Procedure and invests it with very wide powers. A particular reference may be made to Clause (d) of sub-section (1), as empowering it even to make any amendment or any consequential or incidental Order that may be just or proper. A particular reference may be made to Clause (d) of sub-section (1), as empowering it even to make any amendment or any consequential or incidental Order that may be just or proper. Apart from this power of the Appellate Court to alter or amend the charge, Section 535 Code of Criminal Procedure, further provides that, no finding or sentence, pronounced or passed shall be deemed to be invalid merely on the ground that no charge has been framed unless the Court of Appeal or revision thinks that the omission to do so, has occasioned failure of justice, and if in the opinion of any of these courts a failure of justice has been occasioned by an omission to frame a charge, it shall order a charge to be framed and direct that the trial be recommenced from the point immediately after the framing of the charge.” 17. Thus, we are of the considered opinion that the trial court committed a grave error in acquitting Yenkappa (A-l) and Suganna (A-3) for the offence of causing injuries to the deceased, in spite of there being sufficient evidence on record against them in this respect, simply for the reason that the police did not file a charge-sheet in relation to such offences committed by them. Thus, the trial court should have altered/added the requisite charges and proceeded with the case in accordance with law. 18. In such a fact-situation, a question also arises as to whether a conviction under any other provision, for which a charge has not been framed, is sustainable in law. The issue is no longer res integra and has been considered by the Court time and again. The accused must always be made aware of the case against them so as to enable them to understand the defence that they can lead. An accused can be convicted for an offence which is minor than the one, he has been charged with, unless the accused satisfies the Court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused. (Vide : Amar Singh v. State of Haryana, AIR 1973 SC 2221 ). (Vide : Amar Singh v. State of Haryana, AIR 1973 SC 2221 ). Further the defect must be so serious that it cannot be covered under Sections 464/465 Code of Criminal Procedure, 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 charges, has led to a failure of justice, this 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 charges. 19. This Court in Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786 , while considering the issue placed reliance upon various judgments of this Court particularly in Topandas v. State of Bombay, AIR 1956 SC 33 ; Willie (William) Slaney v. State of M.P., AIR 1956 SC 116 ; Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 ; State of A.P. v. Thakkidiram Reddy, AIR 1998 SC 2702 ; Ramji Singh & Anr. v. State of Bihar, AIR 2001 SC 3853 ; and Gurpreet Singh v. State of Punjab, AIR 2006 SC 191 , and came to the following conclusion: “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.” A similar view has been reiterated in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 .” 29. Conviction order in fact is to be tested on the touchstone of prejudice theory.” A similar view has been reiterated in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 .” 29. Nothing has been brought to our notice which shows that irregularity in framing the precise charge under Section 34 IPC has led to a failure of justice or the appellants have been prejudiced on this account, rather we feel that a fair and reasonable opportunity was granted to the appellants for defending themselves during the trial with all ingredients of the offence under Section 34 IPC being incorporated in the formal charge and also in the evidence of the eye witnesses. 30. In this view of the matter, we have no hesitation in holding the appellants guilty of the offence under Sections 460/34, 302/34, 307/34, 326/34, 324/34 and 323/34 of IPC in the present case. The impugned judgment dated 22/04/2013 is modified to this extent. 31. Resultantly, the criminal appeal fails and is dismissed as such. The appellants stand convicted for the offences under Sections 460/34, 302/34, 307/34, 326/34, 324/34 and 323/34 IPC. The record of the trial court be returned forthwith.