K.S.TIWANA, J. - (1.) DES Raj and his co-accused Makhan Singh, son of Bakar Singh, residents of village Ojhanwali, were tried by the learned Sessions Judge, Ferozepore, for the murder of Smt. Chhindo Bai in the area of village Baghewala on 28th November, 1985, at about 4.00 p.m. At the trial Des Raj and Makhan Singh were charged under Section 302 read with Section 34, Indian Penal Code, for the offence, to which they pleaded not guilty.
(2.) THE prosecution examined Karnail Singh, PW-2, as an eye-witness and also relied upon the statement made by Smt. Chhindo Bai to Sub Inspector Harbhaj Ram at 7.15 p.m. on 28th November, 1985, which, after her death, was relied on by the prosecution as her dying declaration. The learned trial Judge after trial acquitted Makhan Singh, accused of the charge, but convicted Des Raj, accused, under Section 302 Indian Penal Code, for the murder of Smt. Chhindo Bai and sentenced him to death. Murder, Reference No. 1 of 1986, under Section 366, Code of Criminal Procedure, arises out of that conviction, which is before us. Des Raj accused appellant, filed Criminal Appeal No. 284-DB of 1986. The State of Punjab challenged the acquittal of Makhan Singh, accused, through Criminal Appeal No. 338-DBA of 1986. As all the cases arise out of the same case and judgment we propose to dispose of all these through a common judgment, recorded in Murder Reference No. 1 of 1986.
(3.) WE are not referring to the facts of the case and the prosecution evidence in detail because, in our opinion, the illegality of conviction of Des Raj for the substantive offence has vitiated the trial. The purpose of framing charge in a criminal trial is to apprise the accused of the accusation he is expected to meet at the trial and for which he is tentatively charged so that he could be convicted of the offence in the case the prosecution is able to furnish evidence to support of the charge to the satisfaction of the Court. If the accused, who is jointly tried along with other person, is charged with vicarious liability with the aid of Section 34 or Section 149 of the Indian Penal Code, then the Court at the initial stage of trial intimates the accused that he is likely to be convicted of that offence in case that is proved against him. The trial of the case starts after the framing of the charge and when it is read out to the accused and his plea is obtained. If the Court deviates from that charge and ultimately convicts him for the substantive offence in place of the vicarious liability, then the accused has a legitimate right to say that he is prejudiced in his defence, as he was not expected to meet the charge, which was never drawn against him with about which the Court never apprised him before conviction. Nank Chand v. State of Punjab, AIR 1955 Supreme Court 274 is an authority in support of this proposition.;