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Pointing out such errors in the charge and impugned judgment learned advocate for the appellants argued that the entire proceeding is void abinitio and the impugned judgment is bad in law and therefore, liable to be set aside. However, he submitted that the case may be remanded back to the trial Court for de novo trial.

In reply to that arguments learned Additional Public Prosecutor advanced the arguments that the charge which was read over and explained to the accused persons was clearly understandable to them as to why and in respect of which allegation they were being proceeded for trial and so, by misquotation of the Section of the Indian Penal Code did not occasion a failure of justice. He submitted that all along the accused persons defended themselves against the allegation of their committing gang-rape on 'R' and 'S' in the fateful night of 8.4.2001 in the dwelling house of PW 1. According to him, the requisite particulars of Section 212 (1), 213 and 214 of the Code of Criminal Procedure (in short Cr.P.C.) are present in the charge framed against the accused persons. In his usual fairness he submitted that except in mentioning the proper section of law there is no other error in the charge framed against the accused persons but according to him, such an error in mentioning the proper Section of law in the FIR, charge and impugned judgment is unexpected in dealing with a sessions triable grave offence. He claimed that in view of the provisions under Section 464 of the Cr.P.C. the trial in the case under this appeal cannot be said as vitiated and it is not at all a fit case for recommencement of trial only because a wrong Section of law was quoted though there was no failure of justice.

Having considered the materials on record and the arguments advanced before us in this appeal in connection with an offence took place sixteen years back we are convinced to accept the arguments advanced by learned Additional Public Prosecutor in view of the provisions under Section 215 read with Section 465 of the Cr.P.C. also. But we feel it necessary to note that it is not at all expected from an Additional Sessions Judge that he would frame a charge of grave offence punishable with imprisonment for life without going through the Section of Law which was being mentioned in the charge. It is unfortunate to note that the Additional Sessions Judge who has been vested with power to award capital punishment also awarded imprisonment for life carelessly mentioning a Section of law in the impugned judgment which Section does not find place in the law book. Similar mistake was done by the Assistant Sub-Inspector of Police (PW 8) at Sonarpur police station at the time of registering the case on receiving FIR from PW 1 on 09.04.2001. Had there been no mention of the offence as gang-rape in the charge or any remarkable error in mentioning time and place of the commission of the offence and the names of the victims of the crime as required under Section 412, Cr.P.C. and if the accused persons would not defend themselves against the allegations of facts made by prosecution against them this Court of appeal would not have any alternative than to order for recommencement of trial in this sixteen years old matter. However, in the prevailing circumstances we find that the trial is not vitiated due to error in mentioning appropriate Section of law in the charge and impugned judgment. Taking into all relevant factors we find and hold that due to misquotation of Section of law only in the charge as well as impugned judgment the trial is not vitiated and on that ground alone the impugned judgment need not be set aside as there was no failure of justice for that sole reason.