Law:

Section:

(a) Pedal Code (XLV of 1860)----S. 149--Charjes and con­viction under Ss. 302, 307 and 149 by the trial Court-Conviction under Ss. 302 and 307 by the appellate Court-Prejudice to the accused-Ss. 236 and 237 Criminal Procedure Cole not applic­able-Retrial. Where there have been no direct and specific charges against the appellant for the specific offences under sections s02 and 307 of the Penal Code and charges had been framed under sections 302 and 307 read with section 149 of the. Penal Code, can the convictions and sentences under sections 302 and 307 Penal Code be maintained ? Held, that a charge as a member of an unlawful assembly four an offence committed by a member thereof in furtherance of the common object is a substantially different one from a charge against a person for an offence committed by him as a member of such assembly. A charge under section 149 puts the person on notice only of' the facts that the offence was committed by a member of the unlawful assembly in prosecution of the common object or such as was known to be likely to be committed. Section 149 creates a distinct head of criminal liability commonly known as constructive liability-which is not covered by sections 236 and 237 of the Code of Criminal Procedure. (b) Criminal Trial---Ss. 226 and 342 Criminal Procedure Code--No indication of the part assigned in the charge but in the questioning under S. 342 Criminal Procedure Code-. Prejudice, The member of the unlawful assembly responsible for the fatal injury was not named in the charge but the question put to him under section 342 of Code of Criminal Procedure did so indicate. Held, that the very fact that inspite of such questioning the charges did not specify the person responsible for causing death is likely to be mis-leading. It may indicate to the person on trial that he was not called upon to defend himself on the footing of his being responsible for causing death. In a case where a death sentence has been awarded by distinguish­ing the person from all other accused on the ground of individual responsibility the person may have been prejudiced by the absence of specific charges under section 302 and 307 of the Penal Code.…

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