Deka, J.
1. This appeal is on behalf of Julia alias Abdur Rahman against his conviction under Section 302 read with Section 34, Penal Code, and sentence to transportation for life. The accused was tried with the help of a jury by the learned Additional Sessions Judge, L. A. D., and agreeing with the unanimous verdict of the jury, the learned Judge found the accused guilty and sentenced him as aforesaid.
2. The case for the prosecution was that on the date of occurrence, Rajab Ali of Madarguri was proceeding on a bicycle from the house of his brother Asori Moral who lived in the village Chitalmari and before he had covered about half a mile, he was waylaid by some persons including the present accused, Julia. Two of Asori Moral's sons, Mofizuddin and Ramjan Ali, also proceeded to the same destination as Rajab Ali but by a slightly different route - Rajab Ali having proceeded by a path which was convenient for the purpose of biking and his companions had gone by a short-cut none too distant from this path, - by the side of the river known as Latori. The two persons who accompanied Rajab Ali heard a 'halla' near the house of Asan Fakir which was situated in village Chitalmari on the northern bank of the stream Latori and they could see that Asan Fakir attacked Rajab Ali with a prong (kocha) on his back, accused Julia alias Abdur Rahman gave several blows on his head with a dao when he fell down and then other persons including Sadat Ali dealt several blows on Rajab Ali who lay prostrate and after the man was thus murdered, his body was removed to the southern bank of the stream by accused Julia and another person by the name of Momruz.
The occurence is alleged to have taken place on 5-3-49 at about 2 P.M. Rajab Ali and his party having proceeded from Asori Moral's place after the midday meal. Mofiz and his brother Ramjan were also chased and threatened by some of the assailants of Rajab Ali and they made good their escape towards their home but could see from a distance of about 40 cubits the dead body of Rajab Ali being removed to the other side of the stream. Thereafter, the accused persons dispersed when Mofizuddin and some other persons went near the dead body and information was lodged at the Thana at 4-30 P.M. that very day. The police started investigation and had the dead body of Rajab Ali sent for post-mortem examination. The police after completion of the investigation sent up twelve persons for trial of which the accused is one.
The case came to the High Court on a previous occasion and the case was sent back for trial against three persons, Hasan Ali, Julia and Badat Ali but in the second trial the Jury returned a verdict of not guilty against the other two accused and found Julia alone guilty under Section 302 read with Section 34, I. P. C. The medical evidence discloses that there were as many as eighteen incised injuries on the person of Rajab Ali and the three head injuries which were all cut injuries were fatal, each of them having cut into the brain. The medical evidence further supports that Rajab Ali died of the injuries sustained on his head.
3. The accused persons including Julia pleaded not guilty and their defence inter alia was that they were implicated falsely only out of grudge.
4. The only point of law pressed by the learned Advocate for the appellant is that Section 34, I. P. C., was not properly explained to the Jury and his contention was that the learned Judge was obviously wrong in explaining that Section 34, I. P. C.,' would be applicable even if the persons attacking the injured had the common intention only at the time of the commission of the crime. The learned Advocate urged that it ought to have been definitely pointed out to the jury that there should be something to indicate that the common intention was formed before the offence was actually committed, and in support of this contention, he relied on a decision of this Court reported in - Muklesur Rahman v. The King AIR 1950 Assam 98 (A). The learned Advocate drew our attention to the following passage occurring in the judgment delivered by Thadani C. J.-
It is to be observed that the common intention contemplated by Section 34 is anterior in time to the commission of the crime and does not refer to the time when the act is committed ....
The identical point had been considered at length by my Lord the present Chief Justice in the case of Toporam Deka v. State of Assam it being Cri Appeal No. 45 of 1951 (Assam) (B) and there, this case was also considered along with the Privy Council case reported in - Mahbub Shah v. Emperor AIR 1945 PC 118 (C). His Lordship in connection therewith referred to the decision of the Madras High Court in Re : Nachimuthu Goundan AIR 1947 Mad 259 (D) wherein the observation occurring in the Privy Council judgment referred to above has been discussed and his Lordship finally concludes his decision on the point in the following lines :
The question, therefore, which is material in all such cases, is to see whether on the facts proved in the case, it could be held that there was a common intention ....
and the requirement of the section is that the offence should be done in furtherance of this common intention.
5. The circumstance in each case has to be examined and if in the said circumstance, it could be safely found that such a common intention existed and the crime was committed in furtherance of this common intention, it is unnecessary either to prove that there was a previous conspiracy for committing the offence or exactly at what moment the common intention started and how much earlier in point of time. In this case, from the facts it would appear that the assault was abrupt but premeditated because the man was waylaid by a group of persons who were armed with some deadly weapons like daos and spears and there was direct evidence to show that Julia took part in the assault and gave repeated cuts on the head of the injured person who died on the spot. It therefore does not require much imagination to realise that the accused and other assailants had assembled with a view to commit the offence at that particular time and against the particular individual.
6. The passage occurring in the charge objected to by Mr. Sen for the appellant runs as follows :
These three persons have been charged together and roped in with Section 34, Penal Code. If you find that at the time of inflicting the injuries on Rajah each had the common intention, then all of them might be roped in together. Then again, if you happen to find that the evidence against any one of them is definite and specific then he might be found guilty for the substantive offence under Section 302, I. P. C., i.e., he would be responsible for the particular crime he committed.
In our opinion, there is no flaw in this passage because in another place in the charge, the learned Judge has explained that the crime should be committed by the accused in combination and in pursuance of the common intention of all. Reading the two passages together, we do not think that the learned Judge failed to give proper direction on the contents of Section 34 and this objection therefore raised on behalf of the appellant has not much force.
The second contention raised by Mr. Sen was that there are materials in the record to show that Rajah Ali had some money in his possession along with a wrist watch and a ring, - and the common intention of his assailants might have been to rob him of the money as well as of other precious articles that he had with him. This was, however, never hinted at in the course of the trial in the Court of Session and the Judge cannot be expected to give directions on hypothetical points not raised in the Court and therefore in our opinion, there was no obvious irregularity or omissions worth the name in not directing the Jury that the assailants of Rajab Ali might have had some other intention apart from committing the assault on him.
The evidence was very direct on the point and practically no effective challenge had been made as to the story given by these two witnesses Mofizuddin and Ramjan except to say that the place of assault was screened by some plantain groves. Further, the few discrepancies that have been there are pointed out by the learned Judge to the Jury. Mr. Sen could point out no other misdirection in the charge nor did he press any other point for consideration. The only objection was with regard to the interpretation of Section 34, I. P. C., which in our opinion was correctly done and we see no reason to interfere with the unanimous verdict of the Jury, the evidence being very clear on the point and the charge sufficiently fair and exhaustive. The result is that the appeal fails and the conviction and sentence are upheld.
Sarjoo Prosad, C.J.
7. I agree.