1. The three appellants before us and one Abdul Latif were dried before (she Additional Sessions Judge of Backargunj and a Jury on various charges. The committing Magistrate framed the following charges, against Abdul Rahim, Abdul Latif and Saripali Khan, first, with having committed muder by causing the death of Mahomed Sikdar punishable under Section 302, Indian Penal Code and secondly that they were member; of a criminal conspiracy to commit this murder, an offence punishable under Section 102 B of the Indian Penal Code. Aiman Bibi was charged with having been member of the criminal conspiracy with the other three accused be commit murder by causing the death of her husband Mahomed Sikdar, an offence punishable under Section 120B, Indian Penal Code. The learned Sessions Judge amended the charges. He struck out the name of Saripali Khan from the charge that had been framed against him jointly with Abdul Rahim and Abdul Latif. The two remaining accused were charged with conspiring together and with Saripali Khan. He added a charge against Saripali Khan charging him in the alternative with having committed murder punishable under Section 302, Indian Penal Code or causing evidence of commission of the murder to disappear punishable under Section 201, Indian Penal Code.
2. The Jury by a unanimous verdict found Aiman Blbi, Saripali Khan and Abdul Rahim guilty of criminal conspiracy to commit murder under Section 302 read with Section 120B. They found Abdul Latif not guilty. They also stated that there was no sufficient evidence that any of these accused committed murder of Mahomad Sikdar. The learned Sessions Judge accepting the unanimous verdict of the Jury sentenced the three appellants to transportation for life.
3. From the above statement of the charges it is apparent that Saripali Khan was convicted of an offence for which no charge bad been framed against him. But we hold that Section 535, Criminal Procedure Code is applicable in the present case. That section provides that no finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed unless in the opinion of the Court of appeal or revision failure of justice has in fact been occasioned thereby. It is contended on behalf of the appellants that this Section is not applicable and only applies to a trial where no charge at all had been framed. In our opinion this contention is not correct and the Section is applicable to a case in which no charge had been framed of the offence of which the appellant has been convicted. We are unable to hold and it has not been contended before us that this appellant Saripali Khan has in fact been prejudiced, or in other words that there has been failure of justice occasioned by the omission of the charge. The learned Sessions Judge in his charge to the Jury stated that all the accused had been charged under Section 302 read with Section 120B, Indian Penal Code. We cannot believe that such a remark would pass unchallenged by the appellant's representative if it had not been understood at the trial that he was being tried on this charge. Further, on the charges as actually framed, the Jury had to determine whether there was in fact a conspiracy in which Saripali Khan took part since in the charges framed both against Abdul Rahim and Abdul Latif and that framed against Aiman Bibi. Saripali Khan is alleged to be one of the conspirators. Having regard to these facts we are unable to hold that a failure of justice has in fact been occasioned by the omission to frame a specific charge of conspiracy against the appellant Saripali Khan.
4. Another point urged on behalf of the appellants relates to certain statements made by two of the appellants Aiman Bibi and Saripali Khan. Ill is contended firstly that these statements should not have been admitted in evidence as against the appellant Abdul Rahim, and secondly, that they were not admissible in evidence at all. So far as the first point is concerned it is clear from the charge that the statements were not treated as evidence against the first appellant. The learned Sessions Judge told the Jury more than once that these statements were not evidence against Abdul Rahim. He has referred to them in parts of his judgment without always respecting this warning but it appears that then he was dealing with the case as against either Aiman Bibi or Saripali Khan, and as against each of them individual statements were evidence which the Jury could consider. It is urged on the authority of Queen Empress v. Bhairab Chunder Chuckerbutty  2 C.W.N. 702, that these statements not being confessions could not be recorded under Section 164, Criminal Procedure Code. A careful examination of this ruling shows that this was not the point that was decided in that case. What was held was that a certain statement of the nature of confession which had not been recorded under Section 164, Criminal Procedure Code could not be admitted in evidence as having been recorded under Section 364, Criminal Procedure Code. So far as the particular point now argued is concerned we are in agreement with the view ex-pressed by a Divisional Bench of this Court in Legal Remembrancer v. Lalit Mohan Singh Roy A.I.R. 1922 Cal. 342, in which it was held that the word 'statement' in Section 164, Criminal Procedure Coda is not limited to a statement by a witness but includes that made by an accused and not amounting to a confession. Here the statements, though of a somewhat incriminating nature, are self-exculpatory and were duly recorded in accordance with the provisions of Section 164, Criminal Procedure Code. On the view we take it is clear that they' were rightly admitted in evidence.
5. We can find no serious misdirection in the charge to the Jury. Reading the charge as a whole it was distinctly in favour of an acquittal rather than of a conviction. It would have been better if the learned Sessions Judge had stated at greater length how he explained the various relevant sections of the Indian Penal Coda to the Jury and did not merely state that these Sections had been read and explained. But we cannot hold that he in fact did not properly explain them. It would also have been better if in explaining these Sections be had done so by applying them to the facts of the case and clearly told the Jury what was necessary for them to find with reference to these facts in order to come to a verdict of guilty on the various charges framed. But we are unable to hold that there was such misdirection as would result in miscarriage of justice. The evidence as against the appellants is not very strong and depends on the evidence of witnesses whose credibility might perhaps be doubted. But the weak points in the case were fully put to the Jury and there was certainly evidence from which they might draw, as they have drawn, the inference that the appellants were members of a conspiracy to murder Mahomed Sikdar.
6. For the above reasons we dismiss this appeal.