Judgment :- 1. This Appeal arises from the judgment in Sessions Case No. 33 of 1981 of the Court of Sessions, Kozhikode Division, acquitting the accused of the charges under S.143,147,148,323,447 and 302 read with S.149 of the IPC. 2. The alleged incident took place at 2 P. M. on 16-9-1980 at Karuvanthirutbimedu which is an island in the middle of a river running through Kadalundi, Calicut. The deceased Moideen Kutty and the accused were fishermen like all the others on that island who were in all about ten families. Moideen Kutty died as a result of a stab inflicted on him by the first accused. 3. The case of the prosecution is that at about 6 A. M. on 16-9-1980 Mammed Kutty pelted stones at the bouse of Moideen Kutty. At that time Moideen Kutty's wife pw. 4 was alone in the house. She reported the incident to her husband and son when they came back after fishing at about 11 A. M. At about 12 noon Mammed Kutty and his brother Abdulla Kutty went past the house of Moideen Kutty. When Moideen Kutty saw them, he asked them about the incident in the morning. They told him that they did not pelt stones. At about 2 P. M. Moideen Kutty was sitting with his wife (Pw. 4), his son Ashraff, pws.1 to 3 and some others on the varandah of his house. Accused 1 to 4 and another person by name Mohammed (from Morayur) came into the courtyard of Moideen Kutty's bouse and challenged biro to come out if he wanted to beat Mammed and Abdulla. Hearing this, Moideen Kutty stepped out into the courtyard and requested them by a sign with his hand not to create a scene. At this time accused 1 and 2 beat Moideen Kutty on his hand. Then Moideen Kutty raised his hand to beat them back. At this time, the first accused pulled out a dagger from his loine and stabbed Moideen Kutty on the upper part of his chest below the left shoulder and above the arm pit. Moideen Kutty ran towards the house of Pw.l a few yards away, and fell on the varandah. pw. 3 in the meantime held the hand of the first accused to stop him from doing any further harm. The first accused releasing himself ran towards the river and escaped. Moideen Kutty ran towards the house of Pw.l a few yards away, and fell on the varandah. pw. 3 in the meantime held the hand of the first accused to stop him from doing any further harm. The first accused releasing himself ran towards the river and escaped. The other accused also ran away towards the river and escaped. The victim was removed to the Medical College Hospital, Calicut. He was examined by pw. 9 immediately on his arrival and issued Ext. P8 wound certificate, but a few minutes later be expired. pw. 2 declared him dead. pw.1 went to the Foroke Police Station and gave Ext. P1 First Information Statement which was recorded by the Sub Inspector of Police, pw. 10, who issued Ext. P1(a) F.I.R. Autopsy was conducted by pw. 8. Ext. P7 is the post-mortem certificate. Inquest was held by Pw.11 who issued Ext. P9 inquest report and conducted the investigation. 4. On the side of the prosecution, 11 witnesses were examined, 10 documents marked and four material objects produced. On the side of the defence two witnesses were examined and 11 documents marked. When questioned under S.313 of Crl. P. C. the accused denied the allegations. 5. The prosecution case in all its details has been spoken to by pws.1 to 4. pws.1 to 3 and others were sitting on the varandah of the house of Moideen Kutty when the accused came there and challenged him. These persons who lived on the island knew each other very intimately. The incident took place in broad day light. pws.1 to 3 saw the incident at very close quarters. Despite severe cross-examination, their evidence in chief-examination does not seem to have been shaken even a little bit. pw. 4, the wife of the deceased, who was also present at the scene, spoke almost identically. The evidence of these witnesses is fully corroborated by the medical evidence. Ext. P7 refers to the injury thus: "Incised, penetrating wound, 3.3 x 1.7 cm. vertically placed, on the front of left shoulder, the upper rounded end, 4.5. cm. below the top of shoulder, the lower sharp end, 6.5 cm. above the left armpit with tailing 6cm. in length running downwards from the lower sharp end. The wound continues deep and cuts the left axillary artery at its beginning with bleeding into tissues around (5 x 4cm). cm. below the top of shoulder, the lower sharp end, 6.5 cm. above the left armpit with tailing 6cm. in length running downwards from the lower sharp end. The wound continues deep and cuts the left axillary artery at its beginning with bleeding into tissues around (5 x 4cm). The wound has a total depth of 7.8 cm. and is directed backwards, downwards, and inwards." The doctor, pw. 8, says in chief-examination that the injury was necessarily fatal. However, in cross-examination he says: "The man died because the artery was cut. This injury became dangerous only because it cut the artery ......... 6. The defence examined Dws.1 and 2. dw.1 is Dr. Venugopal, who had already testified as pw. 9. He was allowed to be examined as dw.1 although the defence had not furnished any list of witnesses. Dr. Venugopal had issued Ext. P8 out patient ticket and Ext. D11 accident-register-cum-wound certificate in respect of one Abdulla aged 35. Ext. D11 shows that Abdulla had stated before the doctor that be had been assaulted with a wooden stick on 16-9-1980 at Thiruthu at 1.30 P. M. by Abdul Rahiman. Abdul Rahiman was not examined as a witness in this case nor was any case initiated against him. There is no evidence as to whether Abdul Rahiman and Abdulla were present at the time of the incident in question here. There is no evidence where the incident involving Abdul Rahiman and Abdulla had taken place, apart from the reference to Thiruthu which is the whole Island. Strangely enough Dr. Venugopal, speaking as dw. 1, was called upon to identify Abdulla who happened to be present in court at that time. dw. 2 is the other witness who was, as we stated earlier, examined by the defence without furnishing a list of witnesses. He was also called upon to identify Abdulla on the day following the day on which Dr. Venugopal was examined. dw. 2 says in chief-examination that he was present in court on the previous day when Abdulla was identified -by Dr. Venugopal as dw. 1, but he admits in cross-examination that he was at that time away at. the place of his duty where he was engaged as an employee of the Port. A perusal of the testimony of dw. 2 leaves no doubt that it contains no iota of truth. Venugopal as dw. 1, but he admits in cross-examination that he was at that time away at. the place of his duty where he was engaged as an employee of the Port. A perusal of the testimony of dw. 2 leaves no doubt that it contains no iota of truth. We are indeed shocked that the learned judge allowed the defence to examine witnesses without filing a list of witnesses and thus taking the prosecution by surprise. We are even more shocked that the learned judge allowed these witnesses to identify a person who happened to be present in the court hall as one of the spectators. No attempt was made by the defence to examine Abdulla who was twice identified by the defence witnesses. The prosecution thus had no chance to cross-examine Abdulla. Identification of Abdulla was, in our view, a totally irrelevant fact and an inadmissible piece of evidence which could not be relied on by the learned Judge. But this is precisely what he did. 7. The learned judge has relied on two circumstances to acquit the accused. He says that the injury inflicted by the first accused was a simple injury. He further says: "...Unfortunately, the prosecution witnesses have not stated as to how Abdulla the brother of A3 bad sustained such injuries on the day, time and place of the incident.... When there is a case and counter, the prosecution is bound to give explanation of the injuries sustained by the brother of the third accused..." On the basis of these two suppositions, the learned judge came to the conclusion thai the prosecution failed to prove the case against the accused beyond reasonable doubt. In our view, these two suppositions are totally without any foundation in evidence 8. In the first place, there is no evidence to indicate that the injury sustained by the deceased was simple. On the other hand the evidence is to the contrary. The doctor, pw. 8, categorically states in chief-examination that the injury was necessarily fatal. In cross-examination the doctor however says that the injury became fatal because the artery was cut implying that the victim would not have died had the artery not been cut. From that evidence, the learned judge, in our view, was totally unjustified in coming to the conclusion that the injury inflicted was a simple injury. In cross-examination the doctor however says that the injury became fatal because the artery was cut implying that the victim would not have died had the artery not been cut. From that evidence, the learned judge, in our view, was totally unjustified in coming to the conclusion that the injury inflicted was a simple injury. It was certainly an injury which did cause death, and it was sufficient in the ordinary course of nature to cause death. The learned judge observes that the first accused could not be expected to be knowledgeable about the position of the artery and therefore no intention to kill could be imputed to him merely because the artery happened to be cut. This is a wrong approach. The injury inflicted was on a vital part of the body. It was on the upper part of the chest below the left shoulder and above the armpit. The weapon used was deadly. The force applied was indeed strong as is seen from the medical evidence. The injury was 7.8 cros. deep. Moideen Kutty was unarmed and he was sitting on the varandah of his house talking, with the members of his family and friends The first accused went to the house armed with a dagger and accompanied by the other accused and challenged Moideen Kutty to come out. When he came out to pacify them, accused 1 and 2 beat him on his hand. As he then raised his hand against them, he was stabbed resulting in his death. These circumstances clearly fix the first accused with the intention of causing such bodily injury as would fall within S.300 of the IPC see B. N. Srikantiah v. Mysore State. AIR. 1958 SC. 672. The evidence on record warrants the conclusion that the injury inflicted by the first accused was not a simple injury, but necessarily a fatal injury. 9. The learned judge observed that Abdulla, the brother of the third accused, was injured during the same incident in question here. This observation is totally without evidence. There is no reliable evidence that Abdulla was the brother of the third accused. The only person who says this is dw.2 whose evidence we have already referred to as one without an iota of truth. This observation is totally without evidence. There is no reliable evidence that Abdulla was the brother of the third accused. The only person who says this is dw.2 whose evidence we have already referred to as one without an iota of truth. Assuming that Abdulla is the brother of the third accused, there is no evidence whatever to show in which incident and when and where Abdulla was injured Nobody saw him at the time and place of the incident in question. There is no whisper to support the conclusion arrived at by the learned judge that the incident took place at the house of the third accused. The learned judge came to that conclusion merely because a suggestion to that effect had been made by the cross-examining counsel, but totally denied by the witnesses. 10. Neither Ext. D8 nor Ext. D11 would show where exactly the incident involving Abdulla took place. Neither Abdulla nor his alleged assailant, Abdul Rahiman, was examined. Ext. D9 and Ext. D10 were relied on by the court below to connect Abdulla with the incident. Ext. D9 is only an acknowledgement receipt issued by the Postal Authorities for a cover addressed to the Circle Inspector of Police, Pw 11, but the cover and its contents had not been summoned to be produced. One does not know what exactly Ext. D9 acknowledged. Ext. D10 is a copy of a petition alleged to have been sent by Abdulla to the police authorities but Ext. D10 was produced only subject to proof by production of the original But the original. . was not produced and pw. 11 denied any knowledge of having received Ext. D10 said to be a copy of the original. Assuming that Ext. D10 was the true copy of the original addressed by Abdulla to the DIG. of Police, even so Ext. D10 does not give any detail to connect the alleged incident with the incident in question here The observation of the learned judge that there was a counter case is totally uncalled for, for admittedly there has been no such case. D10 was the true copy of the original addressed by Abdulla to the DIG. of Police, even so Ext. D10 does not give any detail to connect the alleged incident with the incident in question here The observation of the learned judge that there was a counter case is totally uncalled for, for admittedly there has been no such case. The further observation that the prosecution had an obligation to explain the injury sustained by the brother of the third accused is totally uncalled for not only because there Is no reliable evidence as to the alleged relationship of Abdulla with the third accused, but particularly because there is no evidence whatsoever to connect the incident in question here with the alleged incident involving Abdulla. For all these reasons the finding that Abdulla was injured in the same transaction in which the deceased was injured is wrong and perverse. 11. On a perusal of the totality of the evidence in this case, we are satisfied that the learned judge was totally unjustified in reaching the conclusion which he did. 12. Shri. P. Ramakrishnan Nair appearing for the defence submits that there is no evidence to involve accused 2 to 4 assuming that the case against the first accused was proved beyond reasonable doubt. He says that the overt act alleged against accused 2, namely, beating, is not supported by pw. I, and pw. 2 is equivocal on that question. He further says that in any view no overt act has been alleged against accused 3 and 4 In the absence of any evidence to support conviction under S.149 or S.34 of the IPC., the finding of the learned judge at any rate in regard to accused 2 to 4, he says, should not be disturbed. He further points out that charges are defective for a conviction under S.302 as there is no separate charge for the substantive offence under that Section. 13. ft is true that a conviction under S.149 is unsustainable in this case for there are only four identified accused and the necessary ingredient to attract that Section is absent. But that does not mean that, if the evidence warranted, a conviction is not possible under S.302 read with S.34. 13. ft is true that a conviction under S.149 is unsustainable in this case for there are only four identified accused and the necessary ingredient to attract that Section is absent. But that does not mean that, if the evidence warranted, a conviction is not possible under S.302 read with S.34. As stated by the Supreme Court, the conviction of the accused under S.302 read with S.34, when they had been charged only under S.302 read with S.149, would not be illegal: see Karnail Singh v. State of Punjab. AIR. 1954 SC 204. Mere omission to mention S.34 of the IPC. in the charge does not affect the case unless prejudice is proved to have resulted in consequences thereof: see B N. Srikantiah v. Mysore State AIR. 1958 SC. 672, 675. As stated by the Supreme Court in W. Slaney v. State of M. P., AIR. 1956 SC. 116: "We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials. We are unable to find any magic or charm in the ritual of a charge. It is the substance of these provisions that count and not their outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent." The imperfection of the charge is therefore curable so long as no prejudice is shown to have resulted from it. This principle applies with equal force to negative the further contention that the charges are irregular for conviction under S.302 by reach only of the fact that the first accused has not been separately charged for the substantive offence under S 302. This contention has no merit so long as it is not shown that any injustice has resulted from the omission to mention that provision separately in respect of the first accused. 14. The evidence in our view does not support any conviction under S.34, for the common intention of the accused has not been established. There is no evidence that accused 2 to 4 bad been aware that the first-accused had been armed with a weapon or that he was likely to use it against the victim. 14. The evidence in our view does not support any conviction under S.34, for the common intention of the accused has not been established. There is no evidence that accused 2 to 4 bad been aware that the first-accused had been armed with a weapon or that he was likely to use it against the victim. Their mere presence at the time and place of the incident without more does not warrant the conclusion that they shared in common with the first accused an intention to kill. In the. circumstances, in the absence of any allegation of overt acts against accused 3 and 4, and the only allegation against the second accused being one of simple hurt, neither accused 2 nor accused 3 or 4 can be roped in with the first accused for conviction under S.302. 15. The evidence against the second accused is clear and categoric. pws. 3 and 4 have stated that he beat the deceased almost at the very same time that the first accused beat him. The circumstances in which that incident took place clearly show that the second accused intended to cause a simple hurt to the deceased. It is true that pw.1 stated that the second accused only aimed at the deceased but be did not actually beat him. May be in the midst of all that occurred, pw.1 could not remember that comparatively far less significant act. It is also true that, perhaps for the same reason, pw. 2 was not unequivocal about the overt act of the second accused. But we have no reason to disbelieve that was positively spoken to by pws. 3 and 4. There is no reason to think that either of them had any reason to wrongly implicate the second accused. In the circumstances we convict the second accused for the offence punishable under S.323 IPC. and sentence him to pay a fine of Rs. 250/-, in default of payment of which, he shall suffer simple imprisonment for a term of one month. 16. For the reasons stated by me, the charge against the first accused stands proved beyond reasonable doubt. The testimony of the eye witnesses as regards the overt act alleged against him is fully corroborated by the medical evidence. The first accused is accordingly convicted under S.302 IPC. and sentenced to undergo imprisonment for life. 17. 16. For the reasons stated by me, the charge against the first accused stands proved beyond reasonable doubt. The testimony of the eye witnesses as regards the overt act alleged against him is fully corroborated by the medical evidence. The first accused is accordingly convicted under S.302 IPC. and sentenced to undergo imprisonment for life. 17. The order of the court below acquitting accused 1 and 2 is set aside and the appeal is ordered accordingly.