Code of Criminal Procedure, 1973–Sec. 313–Penal Code, 1860–Sec. 302/34–Non-compliance of the provisions of Sec. 313–Effect–Conviction of appellant is not u/s. 302 IPC, simpliciter but he was charged with the allegations that he caught hold the deceased and other accused inflicted the knife blows on deceased–Further, allegation that he extorted the other accused to kill the deceased–Circumstances viz pertaining to the exhortation by appellant and catching hold the deceased to enable the other accused to stab on his chest repeatedly were not put before him–Slight difference in the oral testimonies of prosecution witnesses–Conclusion of Trial Court that the appellant shared the common intention to commit murder of deceased was based on the aforesaid two incriminating circumstances which were not put before him–Appellant was materially prejudiced and it has resulted in blatant miscarriage of justice–Above failure is not a curable defect and it is a patent illegality vitiating the trial qua the appellant–Conviction of appellant cannot be sustained.
