ISLAM, J. -
(1.) THE appellant, constable Majee Taha, has been convicted under Section 304 Part I, Indian Penal Code, and sentenced to rigorous imprisonment for ten years, by the Deputy Commissioner, Siang District, Along, NEFA. The appellant along with co -accused Lance Naik Pura Tajo, were charged under Section 302/34 of the Penal Code. The appellant was further charged under Section 307 of which he was acquitted. Accused Pura Tajo was also acquitted of his charge. The appellant was also acquitted of the charge under Section 302/ 34 but convicted and sentenced under Section 304 Part I against which the appellant has filed the appeal, and the Deputy Commissioner has made the reference under the provisions of the Assam Frontier (Administration of Justice) Regulation, 1945, for confirmation of the sentence.
(2.) THE prosecution case, in brief, is as follows: -
On 1.4.1969 two constables of the 23rd Battalion, Special Service Bureau (SSB), Yingkiong in Pasighat Sub -Division of the Siang District, were sent by P. W. 9, Jamadar Ram Singh, to bring some jungle posts for repairing the fencing of the camp of the Battalion. These men, while cutting some jungle posts, also cut three canes belonging to one Oken Sitek of Simong village without the permission of the owner. The owner demanded of the constable Rs. 1000/ - as compensation for the three canes. On 3.4.1969 at about 7.30 in the morning, the Bango Secretary, a Gam and five villagers reported to P. W. 9 about the removal of the canes. There some SSB personnel assaulted the Simong villagers who then went for treatment to the local health unit, where they were given treatment by P. W. 1, Dr. S. N. Guha and discharged. In the afternoon P. W. 1, P. W. 2, K. S. T. Rajan and P. W. 7. Kakol Ayum, went to the 23rd Battalion SSB camp and narrated to P. W. 9 the incident of the morning. P. W. 9 assured them that a Kebang for the settlement of the dispute would be held on return of the Head Gam of Simong village from Gete village where he had gone and of the Circle Officer, who had gone on tour. On the following day, April 4, at about 8.45 in the morning some Simong villagers came to Yingkiong to hold a Kebang on the incident of the previous morning. On arrival at Yingkiong village the Simong villagers moved towards the SSB lines, whereupon P. W.s 2, 4, 5, 6, 7, and 9 requested the villagers not to proceed further, but the latter did not pay heed to their request, but continued to proceed. After a short while blowing of whistles followed by firing of rifles was heard by the aforesaid witnesses. They hurried towards the SSB lines and found about 20 Simong villagers inside the perimeter of the SSB camp and a large number outside. The SSB personnel were firing. They fired nearly 200 rounds, when the Simong villagers ran helter -skelter. During this incident the appellant, wearing a red vest, was behaving in a queer manner. He had some bleeding head injuries. He had a dao in a scabbard and a rifle. He appeared to be very angry and was cutting everything in Adi that came his way. He was moving about in the lines and was firing his rifle. P. W.s 6, 7 and 9 requested the Simong villagers to clear up the camp and requested the SSB personnel to stop firing. Some of them stopped firing at their request but others continued. The appellant then ran towards the direction of CRP lines and fired his rifle, which hit Apiop Peyang the deceased, who was one of the Simong villagers. A little earlier P. W. 10, Anong Sibo, ran away from the SSB camp when he was assaulted by some SSB personnel. He went to the Beyak nullah. When he was waiting there he saw his brother, Tani Sibo, fall down at a distance of about 50 feet from him. He approached him and enquired what had happened to him. Tani Sibo reported that a rifle bullet fired by one SSB personnel had hit him. He gave the description of his assailant, as having one stripe on his right arm and a tatoo mark below his lower lip extending up to his chin. Tani Sibo died in Yiong kiong Health Unit later in the afternoon the same day. P. W. 10 identified accused Pura Tajo as the man who had shot and killed his brother, Tani Sibo.
(3.) THE prosecution examined ten witnesses in the case. The two accused pleaded not guilty to the charges. The defence of the appellant is total denial. In his statement under Section 342 of the Criminal Procedure Code, he states that he was on duty in the quarter guard from 8 A. M. to 10 A. M. on 4.4.1969. After finishing his duty he took out his head -gear, shirt and belt and was going to the kitchen to have his morning meal. When he reached the main gate of the kitchen, he saw a crowd of Simong villagers entering into the camp. They were armed with das and sticks. He immediately returned to the barrack in order to collect his shirt and head -gear. He took a dao with him. When he was passing through the Simong villagers who were in front of the quarter guard, he was struck on his head with a dao by some of them. He admits that at that time he was wearing a red vest. He then collected his rifle and put five rounds of magazine into it and altogether fired five rounds, two of which he fired to the ground and two to the air: the fifth round went off automatically. When he was about to enter the quarter guard to collect his rifle, two Simong villagers forcibly entered into the guard room and tried to snatch away the rifles therefrom. They were, however, overpowered by the SSB personnel and confined inside the quarter guard.
The first submission of Dr. Medhi, learned counsel for the appellant, is that after the acquittal of co -accused Pura Tajo, and after himself having been acquitted of the charge under Section 302/34, the appellant, who was charged for constructive liability, cannot be convicted of the substantive offence. The material portion of the charge is as follows: - "That you on the 4th day of April, 1969 at about 10.40 hrs. at Yingkiong in furtherance of common intention, committed murder by intentionally causing the death of two persons of a group of Simong villagers viz: (1) Tani Sibo and (2) Apiop Peyang by firing rifle shots near the Special Services Bureau camp at Yingkiong and thereby committed an offence punishable under Sections 302/34 of the Indian Penal Code and within my cognizance."
The law is well settled that if there be evidence in the case to show that the accused was the person who caused the death, and if no prejudice was caused to the accused during the trial, he can be convicted for the substantive offence, though not charged with it.
In the case of Willie (William) Slaney v. State of Madhya Pradesh, reported in, AIR 1956 SC 116 (1956 Cri LJ 291) the Supreme Court has held:
"In generality of cases the omission to frame a charge is not per se fatal. The very broad proposition that where there is no charge, the conviction would be illegal, prejudice or no prejudice, cannot be accepted as sound" The Supreme Court further held:
" ......The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. 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."
In the instant case although the charge was for constructive liability for intentionally causing the death of two persons of a group of Simong villagers, during trial the prosecution led evidence to prove that the appellant caused bullet injuries to Apiop Peyang who died of such bullet injuries. The defence also directed the cross -examination to disprove that the appellant caused bullet injuries of which Apiop Peyang died. It is therefore, clear that no prejudice has been caused to the appellant.;