LexSURAJ PAL versus THE STATE OF UTTAR PRADESH.
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'955 The Collector of Bombay v. Nusserwanji Rattanji Mislri and others Venkatarama Ayyar J. 1955 March I 1332 SUPREME COURT REPORTS [1955] by the respondents are not within the saving clause. In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the res- pondents. We accordingly allow the appeal, set aside the judgments of the Courts below, and dismiss both the suits instituted by the respondents with costs through- out. Appeal allowed. SURAJ PAL ti. THE STATE OF UTTAR PRADESH. [VIVIAN BosE, JAGANNADHADAS and B. P. SINHA JJ.J Indian Penal Code (Act XLV of 1860), ss. 302, 307-Charges and conviction by trial court under s. 302 read with s. 149 and under s. 307 read with s. 149 of the Code-Conviction by the appellate couri under ss. 302 and 307 of the Code-Legality-Code of Criminal Procedure (Act V of 1898), ss. 236, 237-Applicability-Retrlal. Where a person has been charged along ·with others under ss. 302 and 307 of the Indian Penal Code each, only as read with sec- tion 149 of the Code, his convictions and sentences for the sub· stantial offences under ss. 302 and 307 of the Code are erroneous. The absence of specific charges in this. behalf is a serious lacuna in the proceedings, inasmuch as the framing of a specific and distinct charge in respect of every distinct head of criminal liability consti· tuting an offence is the foundation for a conviction and sentence cherefor. The conviction in these circumstances under ss. 302 and 307 of the Code and sentences of death and transportation for life -cannot be maintained unless the Court is satisfied, on the facts of the case, that the accused has not been prejudiced in his trial. Whe· · ther or not in such a situation the questioning of the accused during the course of his examination under s. 342 of the. Code of Criminal Procedure in relation to the offences under sections 302 and 307 of the Indian Penal Code can be relied upon as obviating the likelihood of prejudice has to be determined \Vith reference to the facts and ircumstances of each case. All the circumstances of the case and the evidence and materials on the record should be looked into· on the question arising in such a situation as to whether a retrial should be ordered or not .. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 139 of 1954. T - ·s.C.R. SUPREME COURT REPORTS 1333 , Appeal by Special Leave from the Judgment and •Order dated the 29th April 1954 of the Allahabad High Court in Criminal Appeal No. 1101 of 1953 and Referred No. 111 of 1953 arising out of the Judgment . and Order dated the 3rd September 1953 of the Court of the Sessions Judge at Fatehpur in Sessions Trial · / · No. 50 of 1953. + . Sadhan Chandra Gupta and Janardhan Sharma, : for the appellant. K. B. Asthana and C. P. Lal, for the respondent. 1955. March 1. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an appeal by special leave from the judgment of the High Court at Allaha- . bad. The sole appellant before us has been convicted · by the Sessions Court under sections 148, 307 and 302 · of the Indian Penal Code, and sentenced to rigorous . imprisonment for two and a half years under section 148, to transportation for life under section 307, and · to death under section 302. These convictions and sentences have been confirmed by the High Court. . At the trial there were 19 other accused along with this appellant. All of them were convicted and sen- . tenced by the trial court under various sections. of the Indian Penal Code. On appeal ten out of them were · acquitted by the High Court. In respect of the re- maining nine besides this appellant, the convictions and sentences were partially modified. But this ap- peal is not concerned with them. The incident in -the course of which these offences are said to have been committed took place in the evening of the 4th January, 1953, shortly before sun set in a village called · Sonari in the district Fatehpur, Uttar Pradesh. During that incident two persons, Bisheshwar and Surajdin, are alleged to have received gun-shot wounds. Bisheshwar survived but Surajdin died on the spot. · The back-ground for this incident was as follows : In the village of Sonari there were two factions between ·whom there was prior history of enmity resulting ' in criminal prose
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