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We have considered rival contentions and have perused trial court record. Considering the objection regarding the charge framed by the trial judge, there is no gainsaying that the said charge is defective. For applicability of section 149 IPC requirement of section 141 IPC has to be satisfied which mandates participation of atleast five accused, whether known or unknown, in the crime. Less that five accused will not be covered within the ambit of section 149 IPC as there will be no unlawful assembly. In the present case participation of only four named accused are alleged. There is no other person who was joined by the prosecution at any stage of the trial but for four named accused. Hence section 149 IPC has no application at all. Trial court while framing charge completely ignored this factual and legal aspect and in an uncared manner framed the charge. We therefore express our displeasure over such a careless attitude of the trial court. Trial courts are advised to be more careful and oblivious of facts of the case and sections to be applied while conducting trials. Accused has a fundamental right to be tried in accordance with the procedure established by law, the natural corollary of which is a procedure sanctified by the procedural statute. Every accused is entitle to a fair and just trial. Digression from prescribed procedure in an unwarranted manner must be attended with caution criticism and warning as trial courts can not be allowed to abdicate their foremost primary responsibility of observing procedure established by law. The primary requirement of a fair procedure is to charge the accused only with those offence which has been committed by him. Framing of charge is not an empty formality but a solemn act. It not only informs the accused for what offence he is being tried and what case he has to meet but also cautions him in preparing his defence. By observing thus we however note that the point of determination here before us is as to whether appeal of the appellant be allowed on the said score and he be acquitted of the charge of murder? In our view this is not possible. Firstly sections 215 in conjunction with section 464 Cr.P.C. mandates that no defect in stating the charge or mentioning of offence shall alone be independently sufficient to alter the conviction, unless it has occasioned in failure of justice and accused has been misled by the said defect. Such is not the present case. From it's inception role of trusting spear has been assigned to the appellant at the date and time specified in the FIR. Prosecution has not deviated from it's such allegation at any point of time and therefore appellant was never misled and had no misconception regarding the case he had to defend. During trial appellant raised no objection in that respect. Even in his statement under section 313 he did not complained about it. Thus it is too late a stage for him to cry foul and argue that he has been prejudiced although in essence no prejudice was caused to him. Since framed charge did not result in failure of justice nor there was any miscarriage of justice, therefore defence argument is unmerited and is hereby repelled. We are fortified in our view by following decisions of the apex court. In Sanichar Sahni versus State of Bihar: (2009) 7 SCC 198 it has been held as follows:-

23. This Court repealed the contention observing as under:
(Thakkidiram case, SCC p. 558, para 10) "10. Sub-section (1) of Section 464 of the Code of Criminal Procedure 1973 ('the Code', for short) expressly provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has infact been occasioned thereby. Sub-section (2) of the said section lays down the procedure that the court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned.