Koshi, J.
1. These seven Criminal Appeals arise from Sessions Case No. 19 of 1950 on the file of the Quilon Sessions Court. The appellants were accused Nos. 1 to 5 and 7 and 8 in that case and together with accused No. 6 they were committed by the First Class Magistrate, Karunagappally, to stand their trial before the Quilon Sessions Court for commission of offences punishable under Sections 140 and 301 of the Travancore Penal Code read with Sections 28 and 141. The occurrence complained of took place at Kulasekharapuram. The case against the accused is that on the fore-noon of 21st Meenam 1123 at about 10 A.M. they formed themselves into an unlawful assembly armed with deadly weapons and that in furtherance of the common object of that assembly they caused the death of one Hydrose Kunju by beating him with deadly weapons like iron rod, wooden sticks, etc. and by cutting and stabbing him with sharp and deadly instruments like chopper, dagger, and pen-knife. The learned Additional Sessions Judge who conducted the trial while acquitting accused 6 convicted the remaining seven accused under Section 301 read with Section 28 and sentenced each of them to undergo rigorous imprisonment for life. These appeals are by the seven convicted persons. In Referred Trial No. 19 the sentences passed by the learned Judge came up for confirmation.
2. Some twenty years prior to the occurrence Hydrose Kunju had caused the death of Kasim Pillai, the father of accused 1 and 2. There was a case against Hydrose Kunju and P.W. 17 in this case, in respect of that occurrence. Both of them were convicted. Hydrose Kunju was sentenced to undergo rigorous imprisonment for six years while P.W. 17 was awarded a sentence of four years' rigorous imprisonment. Since Hydrose Kunju came out of the jail after serving out his sentence his relationship with Kasim Pillai's people was anything but cordial. He lived in constant dread of them. In 1117 he had sent petitions to the District Magistrate, Quilon and the District Superintendent of Police that accused 1 and 2 and some of their relations and friends were making plans to end his life. He was originally living at Thazhava, a place not far away from the residence of Kasim Pillai's people. The evidence in this case suggests that he sold away that property and came and settled down at Kulasekharapuram to be away from his enemies. It would appear Kasim Pillai's death at the hands of Hydrose Kunju and his companion P.W. 17 took place on a day fixed for the circumcision ceremony of accused 1 and 2. The prosecution case, as put forward in the Courts below, is that on 21st Meenam 1123 Hydrose Kunju had arranged his daughter's marriage to take place and that the accused party, composed mostly of Kasim Pillai's sons and nephews, chose that day to avenge the death of Kasim Pillai. As already mentioned accused 1 and 2 are Kasim Pillai's sons. Accused 3, 4, 5 and 7 are his nephews and accused 6 and 8 are said to be friends and companions of the remaining accused. They all live at a place known as 'Vellamanal' 4 miles away from Kulasekharapuram. According to the prosecution, on the morning of the date of the occurrence, with the common object of avenging Kasim Pillai's death, the accused came to Kulasekharapuram, armed with weapons such as those mentioned above and on their meeting Hydrose Kunju in front of P.W. 2's shop then and there they done (sic did) him to death by beating him with an iron rod and wooden sticks and cutting him with a chopper and also stabbing him with knives and daggers. The accused left the place when they found Hydrose Kunju was dead.
3. Within two or three hours the Inspector of Police, Karunagappally (P.W. 39), who got information about the occurrence while ho was attending Court work at the Karunagappaliy First Class Magistrate's Court arrived at the place of occurrence and saw the dead body. Three-quarters of an hour or so afterwards he commenced to hold the inquest and the report, thereof was finished by about 6 P.M. The Inspector remained there till next evening conducting further investigation. Strangely enough the first information report was drawn up and sent to the Court and to other authorities only after ho returned to his head-quarters at Karunagappaily on the evening of the 22nd. The inquest report was also sent along with it. These two records show that the investigation conducted so far disclosed that among the eight persons who were subsequently arraigned as accused six of them, viz., accused 1 and 2 and 4 to 7 had actively participated in the commission of the crime. The F.I.R. and the inquest report describe the 8th accused as a fair-complexioned long haired person whose name was not ascertained. These documents describe the third accused as one 'Chura' Kasim belonging to Kolluvila and who had married from Pynammoodu. Subsequently on 25th Meenom 1123 a further report was sent to the Court mentioning the 8th accused by name and also giving further particulars regarding the names and addresses of accused 3, 5 and 6. It has however transpired that the person charged as 3rd accused is not the person whose name occurs in the F.I.R., the inquest report or the report dated 25th Meenom 1123.
4. It is unnecessary for the purpose of these appeals to pursue the course of investigation by referring to the different dates on which the several accused were arrested or the recoveries made pursuant to confessions alleged to have been made to the police or to the several material objects said to have been produced by the accused or even to the judicial confessions the accused would seem to have made soon after their arrest. The learned trial Judge has not chosen to act upon those confessions nor did the learned Public Prosecutor invite us to pronounce upon their acceptability or otherwise. If in the view of the prosecution or of the trial Court the confessions the accused made to the Magistrate are not even worthy to be considered by this Court, we do not think it safe or even lair to the accused to place any reliance on their production, or of the recoveries alleged to have been made pursuant to information supplied by them, of the weapons used for the commission for the crime. Moreover the weapons produced are not such as could not be provided 'ad hoc' so much so the article produced or recovered do not add any corroborative piquancy to the conduct of the accused in producing some weapons or to their confession leading to the discovery of some others. Chemical examination showed that there were traces of human blood only on two of them. No knife or dagger or chopper produced had any blood stains. The learned Judge has chosen to place some reliance on the production or the recovery of these weapons, but in our opinion the prosecution must stand or fall on the evidence of the eye-witnesses to the occurrence. The fact that the principal accused in this case-Kasim Pillai's sons & nephews-had reason to harbour strong feelings of animosity towards the accused is a factor to be taken into account in appraising the worth of that evidence. Before proceeding to discuss the evidence of the eye-witnesses we shall first see how, according to the prosecution the occurrence actually took place and what tangible proof the acts of the assailants left behind in the shape of injuries on the person of the deceased.
4. As for the first, that is, a brief outline of the occurrence, it would suffice for our purpose if we quote here paragraph 2 of the judgment of the learned Additional Sessions Judge; some portion of it would now no doubt look like repetitions of what we have already said, but in fairness to the learned Judge, we shall quote that paragraph as it is without attempting to mutilate it.
5. Para 2 of the learned Judge's judgment 5 reads as follows:
The marriage of the deceased Hydrose Kunju's daughter was arranged to take place on the night of the 21st Meenom 1123. The accused wanted 1o murder Hydrose Kunju on the eve of his daughter's marriage as Kasim Pillai, the father of A-1 and A-2 was murdered by him and P.W. 17 on the eve of the circumcision ceremony of A-2. With the common object the accused conspired together, armed j themselves with deadly weapons like chopper, dagger, knife, iron rod, sticks, etc., formed themselves into an unlawful assembly and lay in ambush in the compounds east and south east of the place of occurrence in this case. The deceased Hydrose Kunju accompanied by P.W. 1 his nephew, wont out at about 10 A.M. to invite P.W. 2 and P.W. 7 for his daughter's marriage, take a mat from the house next to P.W. 7's, get a tobacco box from P.W, 2's shop and purchase some sugar. They went to P.W. 11's tea shop situated west of the place of occurrence and took tea from there. A-5 was also in that tea shop. After taking tea and inviting P.W. 7, the deceased Hydrose Kunju accompanied by P.W. 1 went towards P.W. 2's provision shop on the northern side of the road, east of P.W. 11's tea-shop. These shops are on either side of the public road that goes from Puthentheruvu to Thurayil Kadavoo in the Karunagapalli Taluk. P.W. 2's shop is situated at the south east corner of P.W. 3's compound and has a front on the street on the southern side as well as towards the east. A-5 also followed the deceased Hydrose Kunju and P.W. 1. The deceased Hydrose Kunju went to the eastern front of P.W. 2's shop and. asked the latter whether he had a tobacco box to spare. P.W. 2 said that he had none. After inviting P.W. 2 also for the marriage the deceased Hydrose, Kunju turned to the east and went two or three steps forward, when accused 1, 2 and 4, who were hiding behind an uninhabited hut in the compound east of P.W. 2's shop came towards him. Almost simultaneously accused 3, 6, 7 and 8 also emerged out of the compound on the opposite side of the road and joined accused 1, 2 and 4. Accused 1 was armed with M.O. 1 chopper, accused 2 with M.O. V iron rod, accused 3 with M.O. 11 dagger, accused 4 with another dagger, accused 5 with M.O. VII 'Kanjavu Vadi' accused 6 with an 'Alaku Vadi', accused 7 with M.O. IV dagger like knife, and accused 8 with M.O. III pen knife and M.O. VI bamboo stick. As the accused approached the deceased Hydrose Kunju accused 5 exclaimed, 'Here is the man who murdered our uncle; Kill him'. So saying he himself struck the first blow with the 'Kanjavu Vadi' on the face of the deceased Hydrose Kunju. Before he could strike a second time the deceased caught hold of him round his body. At that moment accused 1 gave a cut with the chopper on the right shoulder of the deceased. When accused 1 raised the chopper to strike again, the deceased knocked the chopper down with his hand and bent down to take it. Accused 2 thereupon tried to wrest it out of the hand of the deceased and in the tug injured his own hand. When accused 2 and the deceased were engaged accused 3, 4, 7 and 8 stabbed the deceased on his back. Then accused 2 and 3 caught him and threw him down flat on his back. Accused 3, 4 and 7 again gave several stabs on his chest and face. Not satisfied with all this accused 1 got the iron rod from accused 2 and gave a few more blows on the chest, face and shoulder of the deceased. The victim was dead by that time. Having thus inflicted all over the body and head of the victim as many as 45 injuries including 20 incised wounds, 10 cuts, one contused wound and a number of blows the accused left the place.
The post-mortem certificate, marked at the trial as Ext. K, and the evidence of the medical witness, P. W. 28, who conducted the autopsy show that the deceased had sustained as many as 45 external injuries and seven internal injuries. This estimate is in fact an understatement in that many of the injuries noted as simple are really multiple injuries. Of the 45 external injuries, 1 to 35 were mostly incised wounds or cuts caused with sharp instruments like chopper, dagger or knife and in some instances there are bone fractures as well. Injuries 36 to 45 are mostly stripe marks and there are one or two contused wounds also. The seven internal injuries consisted of one injury to the heart, three injuries to the lungs, two to the right lung and one to the left, two injuries to the liver, one on either lobe and several injuries to the smaller intestines. The victim is said to have died from syncope due to shock and haemorrhage. Ext. K makes it clear that no part of the body was spared and the injuries leave unmistakeable proof that deadly weapons have been used and that the man has been mercilessly handled regardless of the consequence. External injury No. 17 and internal injury No. 1 would seem to have been caused by a single stab with a sharp instrument and according to P.W. 28 those injuries were fatal. The witness is also definite that cumulatively the internal injuries could have caused death. He has not said that any one injury external or internal was necessarily fatal.
6. P.W. 39, the Inspector of Police, who as mentioned earlier arrived at the scene of occurrence within two or three hours after the incident, saw Hydrose Kunju lying dead in a pool of blood in front of P.W. 2's shop, The occurrence witnesses are P.Ws 1 to 6 and 8 to 12. Of these, the learned Judge has not chosen to place any reliance on P.Ws. 9 and 12 and we, therefore, discard that evidence completely. (His Lordship reviewed the evidence of the remaining witnesses and proceeded:) The learned Judge who had the advantage of seeing all the witnesses in the box and hearing their evidence, has chosen to believe them and we cannot in the circumstances of the case find sufficient justification to brand their evidence as untrue. In other words we agree with the decision of the Court below that the prosecution has made out its case that Hydrose Kunju was done to death by his assailants on the morning of 21st Meenom 1123 in front of P.W. 2's shop and that his assailants had used all kinds of deadly weapons such as chopper, dagger, knife, wooden sticks, iron rod etc., against him.
7-8. There is no reason either to doubt who those assailants are. The prosecution evidence is fairly clear about it, but regard being had to the fact that we are administering a system of criminal law which would rather countenance the escape of nine guilty persons than the conviction of one innocent individual we think it may not be absolutely safe to hold accused 3 or accused 8 to have participated in the occurrence. We are not saying that the prosecution evidence is not true as against them, but the early records create some doubt in our minds as to their complicity. (His Lordship went through the records against these accused and gave them the benefit of doubt and allowed their Criminal Appeals Nos. 90 and 94 respectively.)
19. We have next to consider whether the conviction of the remaining 5 accused under Section 301, I.P.C. read with Section 28 is right. Though all the 8 accused in the case stood charged under Sections 140 and 141 as well, the learned Judge has not said a word in his judgment about the criminal responsibility or otherwise of the accused persons under these sections. When the learned Judge had found that more than five persons had participated in the day's occurrence, all of them are armed with deadly weapons, we are unable to appreciate how the learned Judge could with propriety have remained silent as to whether a case of rioting armed with deadly weapons has or has not been made out on the prosecution evidence in the case and whether all or any of the accused persons should constructively be made liable under Section 141. To use mild language, it is a very unsatisfactory feature of the judgment that it should not state whether the accused are guilty or not, under either or both of these sections. It is not only in this respect that the learned Judge omitted to record a finding relevant to the case. Though the prosecution had placed confessions made by the accused before the Magistrate as part of its evidence the learned Judge has not chosen to commit himself either way with respect to them i.e., whether he is accepting or rejecting those confessions. We wonder why the learned Judge should shirk responsibility in this fashion. If he is satisfied that the confessions in the case form good pieces of evidence he ought to say that; on the other hand if he had the least doubt about their voluntary character or their admissibility or reliability for any other reason, he ought to have said it.
20. Whatever that be, we are at present concerned with the question whether the conviction under Section 301, read with Section 28 can be sustained. For a proper appreciation of the arguments urged on behalf of the appellants on this aspect of the case it is necessary to examine the circumstances under which the party composed of the accused happened to meet Hydrose Kunju on the fore-noon of 21st Meenom 1123. The prosecution evidence has been mentioned earlier is that with the common object of avenging the murder of Kasim Pillai, his sons and nephews chose the day fixed for Hydrose Kunju's daughter's marriage to do away with his life and with that common object they came to Kulasekharapuram armed with deadly weapons. There is considerable difficulty in accepting that case. Admittedly Hydrose Kunju lived more than a mile away from the scene of offence. The prosecution case as seen from the extract of the judgment of the lower Court 'quoted earlier is that the accused were lying in ambush in two uninhabited huts in the compound belonging to P.W. 3. We fail to see what made the accused think that Hydrose Kunju would come to that place that day. The learned Public Prosecutor saw the difficulty of supporting this case and he did not hesitate to concede that it was really a case where the clash occurred when by chance or accident the accused party happened to meet the murderer of Kasim Pillai when they happened to be fully armed and that for a totally different purpose. (His Lordship reviewed the evidence and continued.)
21. We have noticed earlier the extent or enormity of the injuries caused to the deceased. The evidence does not definitely show which injury really proved fatal or as to who caused it, though the medical witness has designated some injuries as fatal. The effect of the evidence of the medical witness, as indicated earlier, is that Hydrose Kunju died as the result of the cumulative effect of the injuries sustained by him and the question for our decision is whether the lower Court went wrong in convicting all those who participated in the occurrence of the offence of murder making one and all of them liable for the said offence by applying the provisions of Section 28.
22. That section is in the following terms:
When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 28 and Section 141 corresponding to Sections 34 and 149 respectively of the Indian Penal Code deal with constructive liability under Penal Law. While Section 28 limits itself to the furtherance of the common intention, Section 141 goes further, inasmuch as it renders every member of an unlawful assembly guilty of the offence when it is likely that such an offence might have been committed in prosecution of the common object. The latter section is certainly wider in its scope and amplitude. On account of this and in view of the absence of definite evidence as to who caused injuries which according to medical opinion may have proved fatal it was contended that as the learned Additional Sessions Judge had not chosen to find any unlawful assembly or rioting the learned Judge could have convicted the persons whom he found to have participated in the occurrence only of the offence of causing hurt with deadly weapons and not for any graver offence. With reference to the applicability of Section 28 the main argument was that in the absence of evidence' as to a prearranged plan to attack Hydrose Kunju, much less to cause his death, the section cannot be invoked to bring home the commission of the offence of murder to those who participated in the occurrence that resulted in his death, or rather that so long as there is no proof that the accused acted in concert pursuant to a pre-arranged plan no common intention within the meaning of the section can be attributed to the accused so as to make them liable for the offence of murder. Reliance was placed for this position on the Privy Council decision reported in - Mahbub Shah v. Emperor AIR 1945 P.C. 118. It was contended that that case ruled out the possibility of the principle of the joint liability in the doing of a criminal act being extended to cases like the present where the attack is sudden and unpremeditated. We are afraid the decision does not justify the argument. In our opinion their Lordships do not rule out the possibility of a common intention being inferred from the conduct of the assailants or their participation in the commission of the crime and from circumstances such as the character of the attack or the nature of the injuries inflicted or from the nature of the weapons employed. Nor do their Lordships say that a common intention cannot be developed in the course of events though it may not have been present to start with. The question whether there was such an intention, or not will in most cases depend on inferences to be drawn from proved facts and not on any direct evidence about a pre-arranged plan which may seldom be available.
23. We feel fortified in taking the above view about the decision - 'Mahbub Shah v. Emperor AIR 1945 PC 118 by the opinion two learned Judges of the Madras High Court expressed about it in - In re Nachimuthu Goundan AIR 1947 Mad. 259. In that case Chandrasekhara Ayyar, J., (now a Judge of the Supreme Court of India) said as follows:
The Privy Council decision reported In 1945 Mad. WN 69 : AIR (32) 1945 P.C. 118 Crl. was pressed into service by the learned' counsel for the appellant to support the argument that as it could not be predicated in this case that there was any common intention on the part of the five accused to kill the police constable and as the learned Sessions, Judge has only found that they must be fixed with knowledge that what they were doing was so imminently dangerous that it must in all probability cause death, the appellants cannot be held guilty of murder as there was only one injury namely the fracture of the forehead which alone according to the doctor, was necessarily fatal and it might have been caused by a stone hit. The decision of the Judicial Committee is warrant only for the proposition that it is not enough to attract the provisions of Section 34, Penal Code, that there was the same intention on the part of several people to commit a particular criminal act or a similar intention but it is necessary before the section could come into play that there must be a pre-arranged plan in pursuance of which the criminal act was done. Their Lordships do not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with, nor do they say that the intention cannot be inferred from the conduct of the assailants. As my learned brother has pointed out the question whether there was such an intention or not will have to depend in many cases on inferences to be drawn from the proved facts and not on any direct evidence about a preconceived scheme or plan which may not be available at all. The question, therefore, is whether on the facts proved in this case we can say that there was such a common intention. If we accept the first information report, Ext. P. 18, corroborated by the testimony of P.W. 10 who gave the information and who was driving the bandy when it was set upon by accused 3, 4 and 5, and also what is stated by Nachimuthu Goundan (accused 3) in his confessional statement (Ext. P. 4) where he tells us that accused 4 exclaimed as soon as they reached the cart 'Beat the policeman and do away with him', there can be no difficulty in saying that the subsequent act of brutal beating administered to the constable, not only when he got down from the cart but after he was pursued to a distance of about 100 yards, was due to a common intention on the part of all to 'kill him'. In taking this view we give full effect to the interpretation given in the judgment of the Privy Council to the words 'common intention' in Section 34, Penal Code, and steer clear of it.
24. The leading judgment in the case was by Kuppuswami Ayyar, J. and to understand the full implications of the comments Mr. Justice Chandrasekhara Ayyar made about the Privy Council decision we should know the facts of the case.
25-26. The head-note to the case sets out the same thus:
On a complaint being made that violence and even murder was feared at the hands of A and B, a constable went in a cart to the village where A and B resided in order to fetch them to the police station. The constable took A and B in his cart, C, D and E intervened but in vain. The cart proceeded towards the police station C, D and E got very much annoyed at their not being able to retain A and B and started towards the cart and overtook it. One of them when they reached the cart said that they will have to give a sound thrashing to the constable and even finish him and it was after this was said that C, D and E along with A and B who-got out of the cart beat the constable and inflicted 27 injuries in consequence of which the constable died on the spot. One of the injuries namely on the head was found to be necessarily fatal. A and B were given the sentence of transportation for life by the Sessions Judge and C, D and E were sentenced to death by him. In appeal before the High Court it was argued that as there was no common intention on the part of the accused to kill the constable and no evidence as to which of them caused the fatal blow Section 34 could not be availed of and none of the accused could be said to be guilty of murder.
These contentions were repelled and the Court held that:
1. The question as to whether there was a common intention was a question of fact and had to be decided with regard to the facts of each case;
2. The words 'finish him' uttered by one of. the accused were indicative of the fact that he wanted to kill the constable and as it was only after his statement that they will have to give a sound thrashing to the constable and-even finish him that all the accused did the acts which resulted in his death the accused must be taken to have acted in pursuance of a common intention to kill and beat the constable in furtherance of that common intention, and therefore Section 34 could be availed of-and ail the accused were guilty of murder,, under Section 302 read with Section 34.
27. In the case on hand evidence is not uniform that accused 5 exclaimed 'kill him'; some say instead what that accused said was 'beat him' and others do not say either way. To us it would appear that in all the circumstances; of the case it makes no difference whether accused 5 said 'kill him' or 'beat him'. It is clear on the evidence that he said 'Here comes the murderer of our uncle'. Immediately Hydrose Kunju was surrounded by his assailants, all armed with deadly weapons of one-form or another and each of them used the-weapon in his hand against the deceased-Against the back-ground of the animosity of Kasim Pillai's sons and nephews towards the deceased, their conduct in attacking him so mercilessly regardless of the consequence cannot be interpreted in any other light than that they all acted with the common intention of causing his death or causing him such bodily injury as they knew to be likely to cause death. Previous animosity together with the character of the weapons and the nature of the attack make the above the only reasonable conclusion possible.
28. It was argued that none of the accused could be presumed to have intended to cause the death of Hydrose Kunju. In answer to it we need only say that it is not necessary that they should have so intended; if they knew death to be the likely consequence of their acts that is sufficient to make them liable for murder. A very early decision reported in - Queen v. Pooshoo 4 W.R. Cr. 33 (Cal), can with advantage be cited in this context. In that case Kemp, J. observed:
It is clear that the deceased was cruelly-beaten by the four prisoners, and that his death was caused by that beating.... When four men set upon another, and beat him unmercifully...it must, I think be admitted they must be presumed to have known that by such acts they were likely to cause death. Now the, offence of culpable homicide is not reduced to that of culpable homicide not amounting to murder by the absence of intention to cause death. There is, as observed by Mr. Justice Loch in the case of - Queen v. Bhadow Poramanick 4 WR Cr. 23 (Cal)) no such exception amongst the five exceptions appended to the Section 300 of the Indian Penal Code as 'want of intention'.
In this case, the acts of prisoners show that they knew that they were likely to cause death; they have, therefore, committed the offence of culpable homicide as defined in Section 299 of the Indian Penal Code.... There is...really nothing to reduce the crime for culpable homicide amounting to murder to culpable homicide not amounting to murder.
29. The learned Counsel for the appellants invited our attention to several decided eases which purport to follow - Mahbub Shah v. Emperor AIR 1945 P.C. 118. We have given our own interpretation as to the meaning and effect of that decision and our view finds support in the Madras case cited namely, - In re Nachimuthu Goundan AIR 1947 Mad 259. As has been repeatedly held it is a question of fact whether common intention within the meaning of Section 28 can be imputed to a group of assailants, and each case must depend upon its own facts. Not much, useful purpose will, therefore, be served in attempting to analyse the facts of the various cases cued by the defence. With great respect we have to state that some of those cases have interpreted the Privy Council Ruling in a very narrow sense and we cannot agree with the view that there can be no common intention within the meaning of the section unless a pre-arranged plan and concerted action pursuant thereto are proved. Common intention may be conceived of, immediately before or at the time of the offence. The precise intention of several persons acting in concert it a matter of inference from their conduct. Sac - Jaimangal v. Emperor AIR 1936 All 437. In that case it was held that where it is proved that the accused attacked with lathis a person belonging to a party with whom they were on inimical terms, as soon as they sighted him, and all of them used their lathis, it can be inferred that al of them became of one mind when they suddenly saw that person and entertained the common intention of beating him with lathis. It was also pointed out there that every one is suppose to intend the probable consequences of his acts This Allahabad case was, no doubt, decided long before the decision in - AIR 1945 P.C. 118 but in our opinion the rules enunciated do not run counter to the principle of the Privy Council ruling.
30. A few salient facts of the case in - Mahbub Shah v. Emperor AIR 1945 P.C. 11 may conveniently be noticed here. The appellant Mahbub and his cousin Wali Shah (the absconder) arrived at the scene of offence hearing the cries for help of Ghulam, another cousin. Ghulam had the worse of on encounter with the deceased Allah Dad and his party and when the appellant and Wali Shah heard Ghulam's cries they were out 'game shooting,' They arrived at the scene with guns in their hands. The deceased and Hamidullah belonging to the party that had the encounter with Ghulam attempted to escape; but the appellant and Wali Shah came in front of them and Wali Shah fired at the deceased who fell down dead and the appellant fired at Hamidullah causing injuries to him. Ghulam, Wali Shah and the appellant were all charged for murder and attempt to murder as active offenders or by virtue of the provisions of Section 34, Wali Shah was not available for trial; Ghulam who was convicted by the trial Court under Sections 302 and 307 read with Section 34 was acquitted by the High Court. The apoellant's conviction under Section 307 and that under Section 302 read with Section 34 were confirmed. The only question raised on the appeal before the Privy Council was whether the conviction of the appellant under Section 302 read with Section 34 was right. Their Lordships pointed out that on their arrival at the scene the appellant and Wali Shah, both no doubt wanted to rescue Ghulam it need be by using the gun and that, in carrying out this intention each did a criminal act of his own. The appellant picked out Hamidullah, for dealing with him and Wali Shah, Allah Dad. The one had no part or lot in the criminal act committed by the other and their Lordships held, there was no common intention within the meaning of the section proved against the appellant with respect to Wali Shah's killing Allah Dad. The position would certainly have been different had they both aimed their shots at one and the same person even if that person was hit by a bullet from one alone. See - Barendra Kumar v. Emperor 52 Cal 197. Likewise had Wali Shah and the appellant both attacked one of the victims of that incident with clubs or knives and had that victim died of the attack, to us it appears it would have been a clear case whore common intention to kill or to cause bodily injuries as were likely to cause death could have been attributed to both even 1 though it was unknown who inflicted the fatal I injury But the facts were otherwise the appellant attacked one & Wali Shah another. Each e attack constituted a criminal act in itself and s one did his part unaided by the other. In our opinion that is the ground on which their Lord ships held that the appellant Mahubub cannot be convicted or punished for Wali Shah's act in killing Allah Dad. In that case the argument that an inference as to common intention should be drawn from the conduct of the two accused persons during the course of the occurrence was negatived not because law did not permit such an inference being drawn from the facts and circumstances of a particular case, but on the ground that the facts of that case did s not warrant it. The last paragraph of the judgment of their Lordships makes this aspect of t the matter clear. From the mere conduct of the appellant and Wali Shah in coming in front of Allah Dad and Hameedullah to prevent their running away their Lordships were not prepared to draw the inference that the appellant and 18 Wali Shah had the common intention to commit the crime that formed the subject of the appeal before them. Their Lordships also say that this piece of conduct on the part of the accused was not relied upon at all by the learned Judges of the High Court.
31. While referring to the law of constructive liability under Section 34, Indian Penal Code, reference to certain passages in the judgment in - Barendra Kumar v. Emperor 52 Cal 197, a case already referred to, may not in our opinion be out of place. At page 206 of the report Lord Sumner who delivered the judgment of the Board said:
The doing to death of one person at the hands of several by blows or stabs, under circumstances in which it can never be known which blow or blade actually extinguished life, if indeed one only produced that result, is common in criminal experience and the impossibility of doing justice, if the crime in such cases is the crime of attempted murder only, has been generally felt. It is not often that a case is found where several shots can be proved and yet there is only one wound, but even in such circumstances it is obvious that the rule ought to be the same as in the wider class, unless the words of the Code clearly negative it.
Again at pages 210 and 211 in discussing the scope and applicability of the section. His Lordship stated as follows:
As soon, however, as the other sections of this part of the Code are looked at it becomes plain that the words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, 'act' includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts, whoever intentionally co-operates in the commission of the offence by doing any one of those acts, either singly or jointly with any other person commits that offence.
Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things 'they also serve who only stand and wait'. By Section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of deterrent offences by means of that act. Read together, these sections are reasonably plain. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the latter part of the section must include 'the whole action covered by 'a criminal act' in the first part, because they refer to it. Section 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. Section 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other.
The result of the foregoing discussion is that we hold the lower Court acted rightly in applying Section 28 to the facts of this case and finding all those that Court found to have participated in the occurrence guilty of the offence of murder. We have however allowed the appeals by accused 3 and 8 (Criminal Appeals Nos. 90 and 94) as in our opinion the evidence does not conclusively show that they participated in the occurrence, and acquitted them. We have further found that no such doubt exists concerning the remaining accused viz., accused 1, 2, 4, 5 and 7. Their appeals (Criminal Appeals Nos. 88, 89, 91, 92 and 93) are accordingly dismissed and we confirm the convictions and sentences passed against them by the trial Court. The answer to the reference (Referred Trial 19 of 1950) will follow the decision of these appeals (Criminal Appeals Nos. 88 to 94).