Shah, J. - (1.) Short question in this appeal is whether some accused could be convicted for the offence punishable under Sections 325 read with 149, when all of them were charged for an offence punishable under Section 302, I.P.C. The appeal is filed against the judgment and order passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1088 of 1992 by which the High Court reversed the judgment and order passed by the Additional Sessions Judge, Mahabubnagar in Sessions Case No. 156 of 1992 acquitting the accused Nos. 1 to 6 for the offence punishable under Section 302, I.P.C. and convicted the accused No. 1 for the offence punishable under Section 304, Part II, I.P.C., accused No. 2 for the offence punishable under Section 325, I.P.C.; and accused Nos. 3 to 6 for the offence punishable under Section 325, I.P.C. read with Section 149. At the time of admission, the appeal filed by the original accused Nos. 1 and 2 was dismissed, leave was granted to the accused Nos. 3 to 6 and they were ordered to be released on bail.
(2.) Before deciding the contention raised by the learned counsel for the parties, it would be necessary to narrate few facts. It is the prosecution story that Accused No. 1, 2, 4 and 5 are brothers. On 17th November, 1989, the accused No. 1 had picked up the quarrel in the morning regarding the usage of passage in the field and thereafter at about 3.30 p.m., accused Nos. 1 to 6 came to the field belonging to the deceased and quarrelled regarding the use of passage and water by the deceased. Deceased was beaten and he fell down. At that time, P.W. 3, younger brother of the deceased went to the rescue but he was prevented by accused Nos. 4 and 5 who held him tight. Accused Nos. 3 and 6 caught hold of the deceased and at that time accused No. 2 gave a stick blow on the head and accused No. 1 stabbed twice the deceased with a barisa on his right flank and all of them ran away. As per the doctor's evidence, who performed post-mortem examination, the deceased was having the following injuries:- 1. Contusion over the right cheek i.e. 3-4" length 1" width. 2. Contusion over the right elbow joint over the lateral posterior part i.e., 3" below the right elbow joint 1" length x 1/2" width. 3. A deep stab injury over the mid scapular region 1" length 1/2" width 4.5" depth. 4. A deep stab injury over the right infro-memory region 1" length x 1/2" width x 4-5" depth. From the evidence of P.Ws. 1 to 4, the Court arrived at the conclusion that the death of the deceased was the result of the injuries inflicted by accused Nos. 1 and 2 and the evidence was corroborated by the injuries caused to the deceased as mentioned in post-mortem examination. The Court also held that prosecution evidence establishes beyond reasonable doubt that accused Nos. 4 and 5 caught hold witness Venkataiah who went to rescue the deceased. Similarly, accused Nos. 3 and 6 caught hold of the deceased and at that time accused Nos. 1 and 2 inflicted injuries. On the basis of the aforesaid evidence led by the prosecution, High Court held that prosecution has made out a case that accused formed an unlawful assembly and during the course of the said unlawful assembly, they caused injuries and so they were liable to be convicted for the offence punishable under Section 148 of the I.P.C. The Court further held that it is true that there is no charge framed by the trial Court for the offence punishable under Section 148 against the accused but since it was found that all participated and the main charge framed against the accused is under Section 302 and as no prejudice is caused to the accused the accused could be convicted for a lesser offence under Section 325 read with 149, I.P.C.
(3.) At the time of hearing of this appeal, learned counsel appearing on behalf of the appellant submitted that the Order passed by the High Court convicting the appellants for the offence punishable under Section 325 read with 149 is on the face of it illegal as no charge under Section 149 was framed against the accused. He contended that all accused were charged only for the offence punishable under Section 302 of I.P.C. for causing injuries to the deceased Itikala Mogulaiah. As against this, learned counsel for the State vehemently submitted that even though it is an error on the part of the Additional Sessions Judge of not framing the charge under Section 302 read with 149 of I.P.C., no prejudice is caused to the accused as relevant facts were placed before the Court and the attention of the accused also was drawn. Further, they are punished for lesser offence, therefore, the order passed by the High Court is justified and legal.;