JUDGMENT : Deepak Kumar Tiwari, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘Cr.PC’), the present criminal appeal has been preferred by the appellant, calling in question the legality, validity and correctness of the judgment dated 17.3.2005 passed by the Additional Sessions Judge, Janjgir, Sessions Division, Bilaspur (CG) in Sessions Case No.171/2004, by which, the appellant has been convicted and sentenced as under :- Conviction Sentence Under Section 307 of the IPC RI for 5 years and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for one year. Under Section 323 of the IPC RI for 3 months and to pay a fine of Rs.500/-, in default of payment to fine, to further undergo RI for one month Under Section 25(1-B) of the Arms Act RI for one year and to pay a fine of Rs.500/-, in default of payment of fine, to undergo further RI for one month 2. Case of the prosecution, in brief, is that on 7.1.2004, Tirtharam (PW-10) provided information at Police Station Janjgir at about 4:30 p.m., which was recorded in Daily Diary No.374/2004, stating that near his house, co-accused Bundram had a quarrel with Balaram Kashyap (PW-6). Thereafter, he reached the spot to pacify the dispute between the parties, where the present appellant, who was in possession of a knife, assaulted Balaram on his head. The said incident was witnessed by Phool Bai (PW-9) and others. Subsequently, Roznamcha Sana (Ex.P/11-A) was recorded. 3. It is further the case of the prosecution that while victim -Balaram was at his home having lunch at about 3:15 p.m., his sister, Phool Bai, informed him that co-accused Ramdulari was abusing him in filthy language. When Balaram reached the spot with the intention of stopping her, the present appellant, along with seven other co-accused persons, began assaulting him, and the present appellant assaulted him on the head with a knife. One juvenile (R) also assaulted him by means of knife on his abdomen. In the said incident, Tirtharam (PW-10) also sustained a head injury. He was medically examined by Dr. R.D. Gupta (PW-12) vide Ex. One juvenile (R) also assaulted him by means of knife on his abdomen. In the said incident, Tirtharam (PW-10) also sustained a head injury. He was medically examined by Dr. R.D. Gupta (PW-12) vide Ex. P/13, who found two lacerated wounds — one in the left parietal region measuring 2cm x 0.5 cm x 0.5 cm, and another in the left occipital region measuring 2 cm × 0.5 cm x 0.5 cm, both of which were opined to be simple in nature. The juvenile in conflict with law was also medically examined vide Ex. P/14. The appellant sustained injuries as well and was medically examined vide Ex. P/15. Further, injured Balaram was medically examined by Dr. Arvind Dwivedi (PW-5), who gave his report vide Ex. P/4, wherein he opined that Balaram had sustained an incised wound on the left parietal region measuring 5 cm × 0.75 cm × bone deep, and a stab wound measuring 2.5 cm × 0.75 cm × full thickness of the anterior abdominal wall. After receipt of the medical examination report, an FIR (Ex.P/10) was registered under Section 307 of the IPC against eight accused persons. In response to a query (Ex. P/7), Dr. Arvind Dwivedi (PW-5) opined that if the stab injury sustained by victim Balaram on his abdomen had not been treated, it would have resulted in his death. The Bed Head Ticket of Balaram (Ex.P/5) was obtained. He was admitted to the District Hospital, Janjgir, on 07.01.2004 and discharged on 24.01.2004. Pursuant to the memorandum of the present appellant, a knife was seized vide Ex.P/2. 4. The statements of the witnesses were recorded. After completion of the investigation, the charge sheet was filed, and the present appellant along with other co-accused persons were tried under Sections 148, 307 read with Section 149, and 323 read with Section 149 of the IPC. The present appellant was additionally charged with the offence under Section 25 (1-B) of the Arms Act. 5. The appellant and other accused persons abjured their guilt and claimed to be tried. In order to prove its case, the prosecution examined as many as 14 prosecution witnesses and exhibited 24 documents vide Ex.P/1 to P/24. 6. In the statement recorded under Section 313 of the Cr.P.C., the appellant and other accused persons stated that they have been falsely implicated. In defence, two witnesses were examined. 7. In order to prove its case, the prosecution examined as many as 14 prosecution witnesses and exhibited 24 documents vide Ex.P/1 to P/24. 6. In the statement recorded under Section 313 of the Cr.P.C., the appellant and other accused persons stated that they have been falsely implicated. In defence, two witnesses were examined. 7. After evaluating the evidence, the trial Court acquitted the other co-accused persons namely Lalaram, Bundram, Ramlal, Nanhu, Ramdulari, Chamru @ Santosh and Bajranglal. However, the appellant was convicted and sentenced as mentioned in paragraph 1 of this judgment. 8. Learned counsel for the appellant would submit that the conviction of the appellant under Sections 307 and 323 of the IPC, simpliciter for the injuries sustained by Balaram (PW-6) and Teerath Ram (PW-10), is bad in law. He would submit that the charge under Section 149 of IPC is distinct from direct liability, and in the absence of direct charges for the substantive/main offences under Sections 307 and 323 of IPC against the appellant in his individual capacity, the charge framed under Section 149 is vague, as it does not specify as to who committed the particular act. This has caused serious prejudice to the rights of the appellant, and therefore, the impugned conviction is not sustainable. To buttress his submissions, he would place reliance on judgment rendered in the matter of Dalchand Vs. The State , [1982 Cri.L.J. 1477] 9. Learned counsel for the appellant would submit that in certain type of defence, the Court may, in an appropriate case, may send the case back for retrial. Nonetheless, he would further submit that the prosecution case also lacks on merit, as Dr. Arvind Dwivedi (PW-5), in response to a query (Ex.P/7), categorically opined vide Ex.P/8 that the injury caused on the abdomen of the victim was dangerous to life. He specifically mentioned about the abdominal stab injury for which Balaram (PW-6) was hospitalised and underwent surgery, and opined that if no treatment had been provided for the said injury, it would have been dangerous to life. Learned counsel for the appellant would further submit that since the head injury sustained by the victim – Balaram, allegedly caused by the present appellant, was not serious enough to endanger life, the conviction of the appellant under Section 307 (attempt to murder) as also under Section 323 (voluntarily causing hurt) of the IPC is unsustainable. Learned counsel for the appellant would further submit that since the head injury sustained by the victim – Balaram, allegedly caused by the present appellant, was not serious enough to endanger life, the conviction of the appellant under Section 307 (attempt to murder) as also under Section 323 (voluntarily causing hurt) of the IPC is unsustainable. With regard to the defect in the charges, which is contended to be fatal, learned counsel for the appellant places reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Suraj Pal v. The State of Uttar Pradesh , (1955) AIR (SC) 419 , decided by a Three-Judge Bench, the Hon’ble Supreme Court identified a similar defect and, considering the factual situation, did not find it appropriate to order a re-trial. Consequently, the convictions recorded under Sections 307 and 302 of the IPC in the said case were set aside. 10. Learned counsel for the appellant would next submit that he is not challenging the conviction under Section 25(1-B) of the Arms Act, as the appellant has already undergone imprisonment for about 16 months. Although the trial Court had sentenced the appellant to one year of imprisonment and imposed a fine of Rs. 100/– for the said offence, the fine amount has already been paid. Hence, he prays that the appeal be allowed to the above extent. 11.On the other hand, learned counsel for the State would support the impugned judgment passed by the trial Court and submits that the same is well-merited and does not call for any interference. 12. Heard learned counsel for the parties and also perused the record with utmost circumspection. 13. It is well settled that where an accused is charged with various offences, but no specific and separate charge is framed for the substantive offence, and the charge is framed only in respect of vicarious liability under Section 149 of IPC, a conviction recorded for the substantive offence, without framing a charge for the same may cause serious prejudice to the accused, particularly when the charges framed under Section 149 IPC are vague as to who committed the specific act. 14. In Suraj Pal (supra) , the Hon’ble the Supreme Court has categorically held that absence of a specific charge is a very serious lacuna in a criminal proceeding. The relevant portion from paragraph 5 is extracted below: “ 5 . 14. In Suraj Pal (supra) , the Hon’ble the Supreme Court has categorically held that absence of a specific charge is a very serious lacuna in a criminal proceeding. The relevant portion from paragraph 5 is extracted below: “ 5 . xxx xxx xxx When the charge was so pointedly vague, no accused was bound to direct his attention in his defence to the question as to whether he or somebody else was the person who fired the pistol which brought about the gun shot wounds. xxx xxx xxx Finally, in the concluding para, their Lordships observed the following : xxx xxx xxx we are satisfied that the absence of specific charges against the appellant under Section 307 and 302, Indian Penal Code has materially prejudiced him. We must accordingly set aside the convictions and sentences of the appellant under Sections 307 and 302 of the Indian Penal Code.” 15. In the matter of Willie (William) Slaney Vs. State of M.P., (1955) 2 SCC 340 (Five Judges Bench) , it was materially observed as follows : “97. In a criminal trial innocence of an accused is presumed, unless there is a statutory presumption against him, and the prosecution must prove that the accused is guilty of the offence for which he is being tried. The prosecution is in possession of all the evidence upon which it relies to establish its case against the accused. It has the privilege to ask the Court to frame charges with respect to the offences which it wishes to establish against the accused. On the Court itself a duty is cast to frame charges for offences which, on the evidence, appear to it prima facie to have been committed. If in spite of this, a charge under Section 302 read with 149 of the Indian Penal Code only is framed against an accused person and not under Section 302 of the Indian Penal Code, it will be reasonable to suppose that neither the prosecution nor the Court considered the evidence sufficient to prove that murder was committed by the accused and the omission to frame a charge under Section 302 must be regarded as a deliberate act of the Court by way of notice to the accused that he was not being tried for that offence. It would not be a case of mere omission to frame a charge. It would not be a case of mere omission to frame a charge. If, therefore, the accused is convicted under Section 302, I would consider his conviction as invalid, as he was misled in his defence.” 16. Furthermore, in Dalchand (supra) , the following was held in para 10, 11 & 12 : “(10) The seeming conflict of view between Nanak Chand v. State of Punjab and Suraj Pal v. State of Uttar Pradesh came upon a reference before a five Judges Bench of the Supreme Court in Willie (Willam) Shaney v. State of Madhya Pradesh MANU/SC/0038/1955 : 1955CRiLJ291. It was emphasised by S. R. Das, Acting Chief Justice and Bose, J. that the object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction, if therefore the necessary information is conveyed to him in other ways and there is no prejudice, a trial 'is not invalidated by a mere fact that the charge was not formally reduced to writing. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Chandrasekhara, J. speaking for himself and on behalf of Jagannadhadas, J however, sounded a note of caution in the following words : "THE omission to frame a charge is a grave defect and should be vigilantly guarded against. In some cases, it may be so serious that by itself it would vitiate a trial and render it 'illegal, prejudice to the accused being taken for granted." (11) So having regard to the peculiar facts and circumstances of the case, the conviction of the appellant was sustained although the nature of offence was converted from one under Section 302, Indian Penal Code to that under Section 304 Part Ii of the Indian Penal Code. Ilam Singh & others v. State of U.P., 1976 Scc 630 , is another case having almost identical facts, in that the accused numbering five in all were charged under Section 302 read with Section 149 and no specific charge under Section 302 was framed against anyone of them. However, one of the accused persons, namely, Ishwar Singh was convicted under Section 302, Indian Penal Code and sentenced to death by the Sessions Judge. However, one of the accused persons, namely, Ishwar Singh was convicted under Section 302, Indian Penal Code and sentenced to death by the Sessions Judge. A contention was raised that conviction of Ishwar Singh for the said offence could not be sustained in the absence of a distinct and separate charge and the said illegality vitiated the trial. . . The Supreme Court spurned the contention with the observations that : “THE F.I.R. mentions that Ishwar Sigh "gave a thrust with the ballam" to Chauhal Singh which killed him. The eyewitnesses repeat this story. Also, no grievance appears to have been made in the High Court that Ishwar Singh was prejudiced in his defense by being convicted of an offence with which he was not charged. The point was raised for the first time here before us. Considering all the relevant circumstances, we do not think it could be said that the accused was prejudiced in his trial." (12) It is crystal clear that no hard and fast rule or guidelines can be laid in this respect and every case must depend on its own merit, the problem being essentially one of prejudice to the accused resulting from omission to frame a specific charge.” 17. In view of the aforesaid, admittedly, it is the duty of the trial Court to ensure that the charges are clearly stated, specifying as to which of the accused is charged with the main offence simpliciter and who is vicariously liable under Section 149 IPC for the said offence. However, in the present case, no specific charge for the substantive offence has been framed. 18. Moreover, Dr. Arvind Dwivedi has categorically opined in his query report (Ex.P/8) that the injury caused on the victim’s abdomen was dangerous to life, which was allegedly inflicted by juvenile (R). On the other hand, the injury caused by the present appellant to the victim’s head was not sufficient to endanger his life. Therefore, in view of the observations made in the matter of Suraj Pal (supra) & Willie (William) Slaney (supra) , the conviction under Sections 307 as well as 323 of the IPC would not be sustainable. 19. On the other hand, the injury caused by the present appellant to the victim’s head was not sufficient to endanger his life. Therefore, in view of the observations made in the matter of Suraj Pal (supra) & Willie (William) Slaney (supra) , the conviction under Sections 307 as well as 323 of the IPC would not be sustainable. 19. Having regard to the facts and circumstances of the case, particularly the absence of specific charge(s), the fact that the incident occurred 20 years ago, and further taking into account other infirmities as well as the acquittal of other accused persons by the trial Court on a similar set of evidence, I do not consider that the interest of justice requires any retrial. Accordingly, it is directed that there shall be no retrial. 20. In the result, the conviction and sentence(s) imposed on the appellant under Sections 307 and 323 of the IPC are hereby set-aside and he is acquitted of the said charges. 21. Furthermore, the appellant has not challenged his conviction under Section 25(1-B) of the Arms Act. In view of the evidence available on record, the said conviction is affirmed, and the appellant is sentenced to the period already undergone by him. 22. The appellant is reported to be on bail. He need not surrender. The bail bonds furnished by him shall remain in operation for a period of 6 months in view of the provisions contained under Section 437-A of the Cr.P.C. 23. Consequently, the Appeal is allowed in part.