Sasidharan Nambiar, J.

1. Can an accused be convicted for an offence under Section 302 of Indian Penal Code independently, in the absence of a charge independently for that offence, when the co-accused were acquitted and the charge was for the offence under Section 302 r/w 34 of Indian Penal Code.

2. The appellant, the first accused in SC No.306/07 on the file of the Sessions Court, Ernakulam, was tried along with two other accused for the offences under Sections 120B, 449 and 302 r/w 34 of Indian Penal Code. The prosecution case was that in furtherance of their common intention to cause the death of Ismail Thankachan, the husband of PW2, Sulekha and father of PW1 Shebin, the three accused hatched a criminal conspiracy and in furtherance of the common intention and the criminal conspiracy, they trespassed into the house of the deceased Ismail Thankachan, in a three cent colony at Kuttamangalam panchayat, at about 2.30 am on 27.06.2004, inflicted injuries and caused his death and thereby committed the offences. PW1, PW2 and deceased Ismail Thankachan were residing in House No.16/374 of Kavalangad panchayat. Ismail Thankachan had earlier voluntarily caused hurt on the first a