Judgment :- 1. Sri. Mynattil Mathai, alias Johny alias Sunny alias Babu, aged 27, son of Poulose, hereinafter referred to as Al Sunny, was the 1st accused in Sessions case No.50 of 1980 on the file of the Sessions Judge, Tellicherry; he is the appellant in Crl. Appeal No. 475 of 1980. Sri. Manachirakkal Mathew, alias Appachan, alias M. T. Babu, alias joy, aged 25, son of Thomas, hereinafter referred to as A2 Babu, was the 2nd accused in that Sessions Case; he is the appellant in Crl. Appeal No. 9 of 1981. 2. The charges against them as framed by the learned Sessions Judge are as extracted below: "First, that you, accused 1 and 2, on the 12th day of November 1979, at about 15.30 Hours, at house No. 356, Ward No. 6 is Kolikkadavu in Payam amsom desom did commit the murder of Cicily Mathew w/o Mathew, by stabbing her with a dagger with the intention to cause her death or with knowledge that if such is done by you, it would have caused the death of said Cicily, in furtherance of the common intention of both of you, and thereby committed an offence punishable under S.302 r/w S.34 of the Indian Penal Code and within my cognizance; Secondly that on the same day, time and place and during the course of the same transaction, that you 2nd accused robbed the gold chain worn by the deceased and thereby committed an offence punishable under S.392 of the Indian Penal Code and this act was done in furtherance of the common intention of both the accused, and thereby both of you have committed an offence punishable under S.392 r/w S.34 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried before me on the said charges." The trial before the Sessions Judge having ended is their conviction and sentence to imprisonment for life under S.302 read with S.34 and to five years rigorous imprisonment under S.392 read with S.34 of the Indian Penal Code, these appeals have been preferred by them. 3. And I hereby direct that you be tried before me on the said charges." The trial before the Sessions Judge having ended is their conviction and sentence to imprisonment for life under S.302 read with S.34 and to five years rigorous imprisonment under S.392 read with S.34 of the Indian Penal Code, these appeals have been preferred by them. 3. The background of the case as presented by the prosecution could be briefly stated as follows:- Smt. Cicily Mathew (43), hereinafter referred to as the deceased, was residing with her daughter pw.1 Leena (54) and son Joshi (10) in her house built almost in the middle of a compound, nearly, 4 acres in extent. On 5-11-1979 Al Sunny and A2 Babu had approached her for being engaged as mazdoors. She engaged Al Sunny as a temporary domestic servant, and directed A2 Babu to pw. 7 Sri Padmanabhan who was looking after the rubber garden in the neighbouring compound. pw. 7 could not oblige A2 Babu, nor could pw. 3 whom he (A2 Babu) met at his instance, as neither of them had any suitable work to be offered to him. Occasionally, however, he used to visit Al Sunny who was residing in the house of the deceased. On the morning of 12-11-1979 by about 9 a.m., Pw.l Leena, studying in the 9th Standard in Iritty High School, 3 to 4 k. ms. away from her house, started for the school with her brother Joshi who was studying in another school; at that time the deceased, Al Sunny and pw. 6 Madhavi (their maid-servant) were in their house. Pw.l Leena returned home that day by about 5.15 p. m. She found the front door of their house closed; on opening the door, and entering the house, to her dismay she found her mother lying on the floor in the interior room with bleeding injuries. Having found that she was dead, she cried aloud. People in the neighbourhood went running to the house. By about 5.45 p. m pw.5 Sri M. J. Devassia informed the Iritty Police Station about the incident over the telephone. pw. 28, the Sub Inspector of Police in charge of the Police Station, at once proceeded to the scene of occurrence in a jeep; and at 6 p. m. be questioned Pw.l Leena, and recorded her statement, Ext. By about 5.45 p. m pw.5 Sri M. J. Devassia informed the Iritty Police Station about the incident over the telephone. pw. 28, the Sub Inspector of Police in charge of the Police Station, at once proceeded to the scene of occurrence in a jeep; and at 6 p. m. be questioned Pw.l Leena, and recorded her statement, Ext. P-1, on the basis of which Crime No. 258/79 was registered under S.302 and 392 read with S.34 IPC. against Al Sunny and A2 Babu, Ext. P-43 being the F.I.R. At 8.30 p. m. that day, pw. 29 Circle Inspector of Police took over the investigation. He conducted the inquest from 7 a. m. to 9 a.m. on 13-11-1979, Ext. P-2 being the inquest report attested by pw. 3 Sri. Balakrishna Kurup and pw. 4 Sri. Varkey. Under Ext. P-3 mahazar attested by pws. 3 and 4 M.O.10 dagger and M. 0.13 plastic sheath were recovered from the compound of the house in which the deceased was residing. M. 0.1 is the portion of the gold chain (Thara Mala) found lying near the body of the deceased, taken into custody as per Ext. P-2 inquest report. During the inquest M. 0.4 spectacles, M.O.5 false teeth, M. Os. 6 to 9 wearing apparels used by the deceased and M.O.11 blood stained earth also were taken into custody. pw. 25 Dr. K. Jayalakshmi, Assistant Surgeon, Government Hospital, Kuthuparamba, conducted the postmortem over the body of the deceased, commencing from 1.05 p. m. on 13-11-1979. Ext. P-36 postmortem certificate, the material portion which has been extracted in Para.7 of the judgment under appeal, showed that the deceased had sustained five incised wounds, all on different parts of the chest. In Ext. P-36 pw. 25 opined that the death was due to severe internal haemorrhage and shock due to multiple stab wounds, involving vital organs. She had also opined that the injuries in the normal course were fatal, and that death might have occurred about less than 24 hours prior to the commencement of the postmortem examination, thereby indicating that the time of death was after 1 p. m. on 12-11-1979. A2 Babu was arrested at Koottupuzha at 8p.m. on 24-11-1979; and at 10 p.m. that day, as per Ext. P6 mahazar attested by pw. A2 Babu was arrested at Koottupuzha at 8p.m. on 24-11-1979; and at 10 p.m. that day, as per Ext. P6 mahazar attested by pw. H Sri Mohanan, M.O.14 shirt and M. O.15 lunki, alleged to have been worn by him at that time were taken into custody. Pursuant to the information received from Ext. P-44 statement given by A2 Babu, Al Sunny was arrested from House No. 539 in Kuttiadi Panchayat on 25-11-1979 at 4 a.m.; on information (from Ext. P-45 (a)) furnished by him (Al Sunny) M.O.2, weighing 8 grams, which, with M.O.1, made up the gold chain stated to have been worn by the deceased at the time of the incident, pledged with the Thiruvambadi Service co-operative Bank for Rs.400/-through pw. 18, Mariam, his mother, under Ext. P-21 receipt dated 19-11-1979, and Ext. P-24 (b) extract from Ext. P-24 gold loan register were recovered as per Ext. P-25 mahazar prepared at 14-15 hours on 28-11-1979 and attested by pw. 21 Sri Shanmugham, the Secretary of the said Bank. Under Ext. P-22 mahazar, attested by pw. 19 Sri Ravi and pw. 20 Sri Poulose, Ext. P-21 receipt referred to above was taken into custody from the house of pw. 18 Mariam. As per Ext. P-26 mahazar dated 29-11-1979, attested by pw. 22 Sri Kunhiraman, M.O. 17 lunki, M.O.18 armed baniyan and M.O.19 shirt, alleged to have been worn by Al Sunny at the time of the commission of the offence, were recovered from the house of Manikkam, the aunt of his wife Nalini, P-w. 14, pursuant to the information furnished by him after his arrest on 25-11-1979. On the information furnished by him (Al Sunny), under Ext. P-16 mahazar dated 28-11-1979 Ext. P-14 register maintained by Udaya Traders, Mokeri and Ext. P-9 printed loan sanctioning form on pledge of ornaments with Udaya Traders, Mokeri, and Ext. P-15 receipt dated 25-5-1979 issued by the Udaya Traders, Mokeri to Al Sunny for having pledged an ornament weighing 5.500 grams for Rs. 300/-were taken into custody. Ext. P-9 (a) is his signature on Ext. P-9 for having received the amount of Rs. 300/-on pleading the ornament, Ext. P-9 (b) his signature declaring his ownership to the ornament pledged; and Ext. P-9 (c) his signature for having received back the ornament on payment of Rs. 318.50 (Rs.300 towards the principal and Rs.18.50 towards interest). Pw-9 Laly, the daughter of pw. P-9 for having received the amount of Rs. 300/-on pleading the ornament, Ext. P-9 (b) his signature declaring his ownership to the ornament pledged; and Ext. P-9 (c) his signature for having received back the ornament on payment of Rs. 318.50 (Rs.300 towards the principal and Rs.18.50 towards interest). Pw-9 Laly, the daughter of pw. 10 Annamma who is the sister of Mathew, the husband of the deceased who is stated to have died about 8 year's prior to the time of incident, had identified M.O.2 to be the part of the'Thara Mala', weighing about 11/2 sovereigns, purchased from Fashion Jewellery, Ernakulam, which she had given to the deceased in exchange of the one she was originally having. On information furnished by Al Sunny M. 0.16, the sheath of M.O.10 dagger, which originally belonged to pw. 12 Sri T. K. Appanna, was taken into custody as per Ext. P-7 mahazar dated 27-11-1979 from his house in Peroor, Pallamavatty in Coorg. 4. On completion of the investigation a final report as per S.173 of the Code of Criminal Procedure charge sheeting Al Sunny and A2 Babu for offences punishable under S.302 and 392 read with S.34 I. P. C. was submitted by pw.29 Inspector of Police. Both the accused pleaded not guilty to the charges. Before the Sessions Court Pws.l to 29 were examined, Exts. P-1 to P-45(c) proved, and M.Os.1 to 19 marked. At the close of the evidence on the side of the prosecution, the accused were questioned under S.313 Cr. P.C. Both the accused reiterated their plea of innocence; and A2 Babu also stated that he was away in Wynad with his uncle, and that he was arrested from a textile shop in Iritty in which he was previously employed. Accepting the prosecution evidence the learned Sessions Judge convicted and sentenced the appellants-accused as aforesaid. 5. We may first take up for consideration the contentions raised by A2 Babu, the appellant in Crl. Appeal No.9 of 1981. It is argued on his behalf that he was implicated without any evidence whatsoever, and his conviction and sentence under S.302 and 392 with the aid of S.34 IPC. could not be sustained either in law or on facts. This is a case in which the prosecution relies entirely on circumstantial evidence to establish its case. Appeal No.9 of 1981. It is argued on his behalf that he was implicated without any evidence whatsoever, and his conviction and sentence under S.302 and 392 with the aid of S.34 IPC. could not be sustained either in law or on facts. This is a case in which the prosecution relies entirely on circumstantial evidence to establish its case. So far as A2 Babu is concerned, all that is spoken to about him by pws.1 and 2 (the children of the deceased), pw. 6 (the maid-servant of the deceased) and pws. 7 and 8 (the employees in the neighbouring rubber garden) is confined to their having witnessed his physical presence at the scene or thereabout, with or near Al Sunny, at some time or other during the one week from 5-11-1979 to the noon (2.30 or 3 p.m.) on 12-11-1979. The prosecution has not led any evidence to establish that there was a preplanning by and between Al Sunny and A2 Babu for the purpose of committing the offences; nor did the prosecution even attempt to prove any overt act on the part of A2 Babu. The vicarious or constructive liability under S.34 of the Code could arise only where the two conditions stand fulfilled. (1) the mental element, called the intention to commit the criminal act conjointly with another or others; and (2) Actual participation in one form or the other in the commission of the offence. The accused is not liable to be punished under S.34 IPC. for what another or others did by himself or themselves; but only for what he did in furtherance of the common intention to commit the offence conjointly with another or others. Neither the entertaining of the common intention for the commission of the criminal act by itself, nor the participation in the commission of the offence by itself, would render the accused liable to be punished under S.34 IPC. which lays down: "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." It has to be borne in mind that S.34 does not by itself create an offence; it only lays down a rule of law without creating a definite head of criminality. To convict an accused under S.34 it should be proved that the criminal act was done in concert, pursuant to the prearranged plan. No doubt, often than not, direct evidence in regard to the intention might not be easy to obtain; it might be necessary to infer it from the act or conduct of the accused concerned or other relevant circumstances of the case. 6. Assuming, as spoken to by the witnesses in this case, that he had been to the bouse of the deceased with Al Sunny on or about the 5th November 1979, that thereafter occasionally he used to go to the house of the deceased to see Al Sunny, and that even on the fateful day at about 2.30 or 3 p.m. he was seen on the verandah or the courtyard of the said house while Al Sunny was in the house, would these circumstances be sufficient to hold that he had participated in the commission of the offence? The only other piece of evidence relied on by the learned Sessions Judge to implicate A2 Babu is the one found in Ext. P-39 report of the Chemical Examiner, inasmuch as therein it is shown that M. 0.14 shirt and M. 0,15 lunki, purported to be the wearing apparels found on his person, when he was arrested at Koottupuzha on 24-11-1979, contained stains of human blood. For one thing, it is difficult to believe the story of the prosecution that after having participated in the murder he went about in the same shirt and lunki for about 12 days so that he was in the very same dress when he was arrested, and for another thing, pw. H who attested Ext. P6 mahazar under which M. Os. 14 and 15 are stated to have been taken into custody, did not depose in Court that he witnessed the taking of those clothes from the person of A2 Babu, what he stated was that he (A2 Babu) was in the lock-up, and M. Os. 14 and 15 were brought by a Police Constable stating that they were the clothes worn by A2 Babu at that time. There is absolutely no acceptable evidence to prove that M. Os. 14 and 15 were the clothes worn by him either at the time of the alleged commission of the offence or at the time when he was arrested. There is absolutely no acceptable evidence to prove that M. Os. 14 and 15 were the clothes worn by him either at the time of the alleged commission of the offence or at the time when he was arrested. That the result of the Chemical examination of M.0s.14 and !5 (shown as items 8 and 9 therein) was that they were stained with human blood by itself, without anything more, in the light of the facts stated above, could not in any way fasten criminal liability for the murder or the robbery on A2 Babu. In this case no inference regarding the sharing of the common intention for commission of the offence between Al Sunny and A2 Babu is possible to be drawn from the material available on record; nor is there any evidence regarding bis participation in any form in the commission of the criminal act. It has, therefore, to be held that the attempt of the prosecution to rope in A2 Babu by invoking S.34 of the Code has necessarily to fail. 7. We have now to take up for consideration Crl. Appeal No. 475 of 1980 filed by Al Sunny. pws.1 and 2, the daughter and son of the deceased, had deposed that he was engaged as a temporary domestic servant in the house of the deceased from 5-11-1979; he was residing in her house; when Pw.l left for school on 12-11-79 at about 9 a. m., he was in her house; when pw. 6 finished her work for the day and went home at 2.00 or 2.30 p. m. that day, the deceased and he alone were in the house. At about 2.30 p m pws. 7 and 8 had seen him on the verandah or the courtyard of the house of the deceased. At about 3pm. pw. 8 had seen him coming out of the house of the deceased. When Pw.l and her brother Joshi returned home at about 5.15 p.m., he was not in the house and his whereabouts had not been known till he was arrested by pw, 29 from House No. 539 in Kuttiadi Panchayat in the early hours of 25-11-1979. Ext. P-39 report of the Chemical Examiner showed that M.O.17 lunki, M..O.18 banyan and M.O.19 shirt, items 10 to 12 therein, contained stains of human blood. M.0s.17 to 19 were recovered as per Ext. P-26 mahazar dated 28-11-1979 attested by pw. Ext. P-39 report of the Chemical Examiner showed that M.O.17 lunki, M..O.18 banyan and M.O.19 shirt, items 10 to 12 therein, contained stains of human blood. M.0s.17 to 19 were recovered as per Ext. P-26 mahazar dated 28-11-1979 attested by pw. 22 from the house of Manikkam, the aunt of pw. 14, Nalini, his wife. Ext. P-39 also showed that M.O.10 (item 7 therein) dagger contained stains of human blood. pws.12 and 13 were examined to prove the manner in which he came into possession of that dagger. On information furnished by him M.O.16 leather sheath of M 0.10 dagger was taken into custody from pw. 12 as per Ext. P-7 mahazar dated 27-11-1979. Pw.12 stated inter alia that it was a knife which he obtained from Punjab when he was in the Military service and pw. 13 deposed that some time early in November that year for two days he (Al Sunny) had worked for them and it was during that time M.O.10 dagger without M.O. 16 sheath happened to be handed over to him. M. 0.2. which, with M.O.1 recovered from the side of the body of the deceased, made up the chain, was recovered from Thiruvambadi Service Co-operative Bank under Ext. P-25 mahazar dated 28-11-1979 attested by the Secretary pw. 21 Sri Shanmugham pursuant to the information furnished by him. It was pledged by pw. 18 Mariam, his mother, for a sum of Rs. 400/- on 19-11-1979. Ext. P-21, taken into custody under Ext P-22 mahazar, along with Ext. P-24(b), which is the extract of the relevant entry in the gold loan register, showed that the application for pledging M.O.2 was signed by pw.18. Ext P-9 form of application for loan shows that on 25-5-1979 pledging a gold ornament (ear ring) weighing 5.500 gms Al Sunny had taken a loan of Rs. 300/- from Udaya Traders, Mokeri; and Ext P-14 (a) is the relevant entry thereof in Ext. P 14 loan register. It also contained bis signature for having redeemed it on 20-11-1979 paying a sum of Rs. 318.50, Rs 300/-representing the principal and Rs. 18.50 representing the interest. This is stated to be the ornament belonging to his wife Nalini pledged in May, about four months after their marriage. pw. 17 Sri. P 14 loan register. It also contained bis signature for having redeemed it on 20-11-1979 paying a sum of Rs. 318.50, Rs 300/-representing the principal and Rs. 18.50 representing the interest. This is stated to be the ornament belonging to his wife Nalini pledged in May, about four months after their marriage. pw. 17 Sri. V. P. K. Kumaran had deposed inter alia that early in 1979 it was when Al Sunny was employed in his Sree Krishna Restaurant in Kuttiadi bazaar that he (Al Sunny) married pw 14 Nalini. According to pw. 15 Sri Achuthan he was having a tea shop in Pallamavatti in Coorg and for eight or ten days just before November 1979 he (Al Sunny) had stayed in the upstairs of his hotel building. 8. The recovery of M 0.2 from Thiruvambadi Service Co-operative Bank is of great significance. The death due to stabbing, and the missing of M. 0.2 in this case happened some time between 2.30/3 p. m and 5.15 p.m. on 12-11-1979; the pledging of M. 0.2 for Rs. 400/-by pw. 18, mother of Al Sunny, is on 19-11-1979, the redemption of the ear ring of pw. 14 Nalini by Al Sunny paying a sum of Rs 318.50 is on 20-11-1979; and the recovery of M.O.2 by the Police on information furnished by Al Sunny is on 2811-1979. Al Sunny has no explanation to offer as to how he came into possession of M.O.2. No doubt, the drawing of the inference under illustration (a) of S.114 of the Evidence Act is in the option of the Court, but the silence of the accused who is found to be in recent possession of the article could be taken into account with the other circumstances appearing in the case in deciding the question. May be that the mere possession by the accused of an article, which was on the person or in the custody of a murdered person, without an explanation would not by itself lead to an inference that he took part in the murder or he was a party to it. Where, however, there is found to exist some other evidence or circumstance to connect the accused to the crime of murder, recent and unexplained possession of M.O.2, as in the present case, would invite the inference that the accused was guilty of murder and robbery which form part of the same transaction. Where, however, there is found to exist some other evidence or circumstance to connect the accused to the crime of murder, recent and unexplained possession of M.O.2, as in the present case, would invite the inference that the accused was guilty of murder and robbery which form part of the same transaction. 9. In this case the recovery of M 0.10 dagger from the compound of the deceased is also an important link in the chain of circumstances pointing to the guilt of the accused By the evidence of pws.12 and 13 it is proved that M 0.10 dagger was in the custody of Al Sunny. It was found to contain stains of human blood in terms of Ext. P-39 Chemical Examiner's report. It is, therefore, quite clear that M 0.10 dagger was used by Al Sunny for committing the murder of the deceased by inflicting the injuries mentioned in Ext P-36 postmortem certificate on the person of the deceased. pw 25 in her oral evidence before Court has stated that all the injuries noted in Ext. P-36 postmortem certificate were ante-mortem: they could be caused by a weapon like M.O.10 dagger; and that all the injuries are in the normal course fatal pw 23 who proved Exts. P-27 and P-28 reports of the Experts has deposed that M Os.1 and 2 had come out of one and the same chain; and that they were stained with human blood. These circumstances are consistent only with the hypothesis of the guilt of the accused; the chain of evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. Where the proved circumstances are of an incriminating character and they provide a complete chain, there being no missing link, pointing unequivocally to the guilt of the accused, and excluding any hypothesis consistent with his innocence, it has to be held that the prosecution has proved the guilt of the accused beyond all reasonable doubts. In our opinion, the chain of circumstances proved against Al Sunny in this case is such that it leads to the irresistible conclusion that the prosecution has established by cogent, succinct and reliable evidence that he (Al Sunny) is guilty of the offences with which he was charged. 10. In our opinion, the chain of circumstances proved against Al Sunny in this case is such that it leads to the irresistible conclusion that the prosecution has established by cogent, succinct and reliable evidence that he (Al Sunny) is guilty of the offences with which he was charged. 10. Sri Alexander Scaria, the counsel for Al Sunny, raised a contention that the charge against his client, so far as the murder was concerned, was under S.302 read with S.34 IPC.; once A2 Babu was acquitted he should be presumed not to have participated in the commission of the criminal act; and it should, therefore, follow that the charge as against Al Sunny should automatically fall to the ground, as no offence evidently was committed by him in furtherance of their common intention as stated in the charge. In support of this contention reliance was placed by him on the decision of the Supreme Court in Sawal Das v. State of Bihar (AIR 1974 S.C. 778) wherein, speaking for himself and Bhagawati J. who constituted the Bench, Beg J., (as he then was) in Para.11 at page 782 of the report, has observed as follows: "As the learned counsel for the appellant has rightly pointed out after the acquittal of Kalawati and Jamuna Prasad for murder, by the use of S.34 Indian Penal Code, the individual and not the conjoint liability of the appellant has to be established by the prosecution before the appellant could be convicted under S.302 Indian Penal Code simpliciter." We are of the opinion that far from strengthening Sri Scaria's argument that Al Sunny was entitled to an automatic acquittal on the acquittal of A2 Babu, it lends support to the proposition that even though the charge is under S.302 read with S.34 IPC, if there was acceptable evidence to show that the individual acts of the non acquitted accused are such as to attract S.302 IPC., the non-acquitted accused could be convicted for the substantive offence of murder under S 302 IPC. Even in a case where, out of the four accused charged for murder under S.302 read with S.34 IPC, three were acquitted, the Supreme Court has taken the view that it would be legal to convict the sole non acquitted accused provided his participation in the criminal act was established. Even in a case where, out of the four accused charged for murder under S.302 read with S.34 IPC, three were acquitted, the Supreme Court has taken the view that it would be legal to convict the sole non acquitted accused provided his participation in the criminal act was established. (Vide the observations of Krishna Iyer J. in Para.8 of the decision of the Supreme Court in Harshadsingh v. State of Gujarat (AIR. 1977 SC.710): "The proposition is plain that even if some put of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Therefore, it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision." 11. The evidence in this case is so clear and complete that it admits of no doubt that it was Al Sunny who by stabbing with M.O.10 dagger inflicted on the person of the deceased the fatal injuries noted by pw. 25 the Doctor in Ext. P-36 postmortem certificate, to which she succumbed; and he did so with intention to cause her death or with the knowledge that the injuries inflicted by him were such as would result in her death. The fact that the prosecution attempted, but failed, to rope in A2 Babu also by framing the charge under S.302 read with S.34 IPC. would not prevent the Court in these circumstances from convicting the accused for the criminal act committed individually by him; and the decision of the Supreme Court in Sawal Das v. State of Bihar (AIR. 1974 SC 778) itself is sufficient authority that conviction is possible under such circumstances. The accused had a fair and complete trial. He had been definitely told that the charge against him was that he had inflicted stab injuries on the deceased with intention to cause her death or with the knowledge that the injuries inflicted by him were such that they would result in her death. No prejudice is shown to have been caused to him. In regard to the trial there was no illegality; and irregularity, if any, is framing the charge is such as it could be cured under S.464 of the Code of Criminal procedure. No prejudice is shown to have been caused to him. In regard to the trial there was no illegality; and irregularity, if any, is framing the charge is such as it could be cured under S.464 of the Code of Criminal procedure. We, therefore, reject the contention of Sri Scaria that for the reason that the charge was framed under S.302 read with S.34 I.P.C., once the co-accused is acquitted, the other accused also is entitled to acquittal. 12. Sri Scaria further contended that in any event the conviction and sentence under S.392 read with S.34 IPC, in so far as it relates to Al Sunny, is not sustainable either in law or on facts stated. We notice, as pointed out by him, shorn off the details, the substance of the second charge so far as it related to Al Sunny was that it was in furtherance of the common intention of himself and A2 Babu, that A2 Babu committed robbery of M.O.2 and, therefore he was liable to be punished under S.392 read with S.34 IPC. It is needless to say that the fact that a person entertained an intention to commit an offence by itself would not attract the vicarious liability under S.34 IPC.; he would be liable for the substantive offence only if in furtherance of the common intention he participated in the criminal act in some form or the other conjointly with the co-accused. S.226 of the Code of Criminal Procedure required the Public Prosecutor to open the case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused; and S.228(1)(b) provides that where the offence is exclusively triable by the Sessions Court, the Sessions Judge shall frame in writing a charge against the accused. Sub-section (2) of S.228 Cr. P. C. is to the effect that charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the charge framed or claims to be tried. It is difficult for us to believe that the mistake was due to oversight on the part of the Presiding Officer. If that be so, it would have certainly been detected when he read and explained the charge to the accused who are merely mazdoors. 13. It is difficult for us to believe that the mistake was due to oversight on the part of the Presiding Officer. If that be so, it would have certainly been detected when he read and explained the charge to the accused who are merely mazdoors. 13. We do not find our way to accept the plea of the Government Pleader that in this case also the defect could be cured under S.464 Cr. P.C. No doubt, S.464 provides a safety valve for the prevention of miscarriage of justice which might otherwise result out of defects which are technical in nature in the matter of framing charge. It should not, however, be overlooked that the paramount consideration is the dispensation of justice, and nothing which would result in prejudice to the accused would or could be condoned by resort to S.464 Cr. P.C. This is an enabling provision to be invoked sparingly and in exceptional circumstances, not as a matter of course. It would be wrong to assume that S.464 Cr. P.C is meant to cover up every carelessness, omission or mistake on the part of the judge in framing the charge. In this case, in terms of the charge, the accused was not asked to stand his trial on an allegation that he had committed robbery; he was only told that A2 Babu had committed robbery in furtherance of the common intention of himself and A2 Babu. It cannot, therefore, be said fiat by the framing of the charge in this manner no prejudice was caused to the accused in his defence. We, therefore, accept the contention of Sri Scaria that the conviction and sentence passed by the learned Sessions Judge against Al Sunny under S.392 read with S.34 IPC. is liable to be set aside. For the foregoing reasons we allow Crl. Appeal No. 9 of 1981 setting aside the convictions and sentences passed against A2 Babu. He is acquitted of all the charges for which he was tried; he shall be set at liberty forthwith. We allow Crl. Appeal No. 475 of 1980 in part; we set aside the convictions sentences passed by the court below as against Al Sunny; and we convict him for the murder of Smt. Cicily Mathew under S.302 IPC. and sentence him thereunder to imprisonment for life.