The central legal point established in the judgment is the interpretation of the provisions related to robbery, causing hurt, and vicarious liability under the Indian Penal Code, and the significance of questioning under S.313 of the Code of Criminal Procedure in ensuring a fair trial.

1. In CC 441 of 1981 the Judicial First Class Magistrate, Kanjirappally tried three accused for offences punishable under S.394 and 109 read with S.34 of the Indian Penal Code. Third accused was acquitted. Accused 1 and 2 were convicted for the offence under S 394 IPC and each of them was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- with a default sentence of rigorous imprisonment for two months.

2. Crl. A. 80/83 filed by the second accused was allowed by the Sessions Judge, Kottayam and he was acquitted. Crl. A. 81/83 filed by the first accused was partly allowed altering the conviction under S.394 to one under S.379 IPC and reducing the sentence to rigorous imprisonment for two years.

3. Crl. A. 377/84 was filed by the State challenging the acquittal of the second accused and alteration of the head of conviction as well as reduction of sentence as against the 2nd accused. Crl. RP 57/84 was filed by the first accused against his conviction and sentence by the Sessions Judge. Both were heard together.

4. Pw.2 is the victim. He is running a tea shop. Accused 1 and 2 belong to the adjacent village. They have no acquaintance or association with pw.2. Neither the prosecution nor the defence has got a case that there was any ill will between them or any motive for the accused to attack pw.2 other than in order to commit theft of the money with him.

5. The prosecution case is that on 1-8-1981 at about 8 p.m. when Pw.2 was returning home with Rs.5,018/- in hand accused 1 and 2 followed him with the common intention of robbing him of the amount and in furtherance of that common intention and in order to commit theft the first accused beat him on his head with a rod and when he fell down unconscious the accused committed theft of the amount.

6. Though the prosecution examined 17 witnesses, proved 18 documents and got identified 14 material objects, we are mainly concerned with only the evidence of pws.1 to 4 in deciding the guilt or innocence of accused 1 and 2. Second accused was charge-sheeted only with the aid of S.34 IPC. The only evidence against him is that pws. 2 and 3 saw him in the company of the first accused going ahead of pw.2 just before the incident. pw.2 further said that when he flashed his torch and identified the persons both the accused retreated to a side of the road. Regarding the subsequent incident namely the attack we have got only the evidence of pw.2 the victim. He only said that on proceeding further when he heard foot-steps and looked back he was beaten by the first accused on his head and he fell down unconscious. He did not mention the presence of 2nd accused at that time along with the first accused. Thus the direct evidence regarding participation of 2nd accused is only his presence along with the first accused prior to the incident. That evidence by itself without proof of presence at the time of commission of the offence or participation in it cannot prove common intention on the part of the 2nd accused id order to make him vicariously liable for the offence committed by the first accused.

7. The other items of evidence consist of the depositions of pws. 5 to 12,15 to 17 and the documents proved by them evidencing some recoveries under S.27 the Evidence Act consequent on information given by the accused and also some purchases made by them presumably with the money obtained by robbery. These items of evidence were accepted by the Magistrate as against accused 1 and 2 and by the Sessions Judge as against the first accused alone.

8. Both the Magistrate and the Sessions Judge lost sight of the fact that these items of evidence were not at all put to the accused when questioned under S.313 of the Code of Criminal Procedure. The Magistrate seems to have understood the questioning under S.313 only as an empty formality and therefore he thought that a show of questioning is sufficient. Though the questioning under S.313(1)(a) is discretionary, the questioning