- (1.) This appeal was referred to a Bench of Five Judges in order to determine whether there was a conflict of view between - 'Nanakchand v. State of Punjab', (S) AIR 1955 SC 274 (A) and - 'Surajpal v. State of U.P., AIR 1955 SC 419 (B) and if so, to determine it.
(2.) The appeal is against a conviction for murder in which the lesser sentence was given. The main ground is that the appellant was charged under section 302 of the Indian Penal Code read with section 34. His co-accused was acquitted, so, it was urged, the element of common intention drops out and accordingly section 34 cannot be called in aid. But the Courts below hold that the appellant inflicted the fatal blow and have made him directly liable for the murder. He contends that as he was not charged with having murdered the man personally he cannot be convicted under section 302. He relies on certain observations in (S) AIR 1955 SC 274 (A) and contends that the conviction is an illegality which cannot be cured and claims that he must either be acquitted or, at the most, be retried, though he adds further that in the circumstances of this case the Court should not in the exercise of its discretion order a retrial. As against this it is contended for the State that an omission to frame as separate charge in the alternative under section 302 simpliciter is a curable irregularity provided there is no prejudice to the accused. Therefore, the only matter for determination is a question of fact whether there was prejudice in this case.
(3.) The charge was as follows : "That you, on or about the 12th day of February 1953, at Civil Lines, Jabalpur went with your brother Ronnie Slaney to the house of Mrs. Waters (P. W. 20) at about 7 P.M. and in furtherance of the common intention did commit murder by intentionally or knowingly causing the death of her brother D. Smythe and thereby committed an offence punishable under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code.......";