In Re : Jothi alias Moses

Paul, J.—R.T. No. 4 of 1974 is for confirmation of the sentence of death meted out to the second accused in S.C. No. 23 of 1973 on the file of the Court of Sessions, Kanyakumari Division at Nagercoil, for the offence of murder punishable u/s 302, I.P.C. of which the second accused stands convicted. The accused have filed a criminal appeal, the first accused against his conviction for an offence punishable u/s 302, read with Section 34, I.P.C. in respect of the same murder and the sentence of imprisonment for life meted out to him and the second accused against his conviction for an offence punishable u/s 302, IPC, and the sentence of death meted out to him.

Both the accused were brothers and were residing at Ettamadai. P.W. 6 Rajamani and his father the deceased Sodalamadan were also residents of the same village. According to the prosecution there bad been long standing enmity between P.W. 6 and his father Sudalamadan on the one hand and the accused on the other.

[The discussion of facts is omitted. Ed.]

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The further facts which emerge from the evidence adduced on the side of the prosecution are as follows: On the morning of 17th February, 1973 Sodalamadan left in his cart for Darisanamcope for bringing some straw and returned in the evening for food and at that time witnessed the aforesaid fight between his son P.W. 6 and the deceased and after that incident was over and P.W. 6 had told him all the details of it, the deceased told P.W. 6 that he (P.W. 6) should not come driving the cart, for if he did so the accused would beat him, and then the deceased started driving the cart to go to Darisanamcope while P.W. 6 stayed behind at home.

P.W. 1 Kali used to purchase straw and supply it to P.W. 8 Ponnayyan; and on the first of Masi, P.W. 1 went to Ettimadai and the next day be went to Darisanamcope and purchased some straw for P.W. 8 and sent word to P.W. 8 to bring men to bundle up the straw and also carts for transporting the straw he engaged the cart of the deceased and on the 6th which was a Saturday he went from Ettimadai to Darisanamcope to load the straw. There P.W. 8, P.W. 4, and P.W. 5 met him at 6 a.m. and a little later P.W.2''s cart and the cart driven by the deceased came there at about 7 a.m. and in each of the carts 8 bundles of straw were loaded. Then at 6 p.m. the two carts laden with straw started. The cart driven by P.W. 2 was going ahead followed by the cart belonging to the deceased but which was being driven by P.W. 5. P.W. 4 was walking behind the cart driven by P.W. 2 while P.W. 1 and the deceased were walking behind the deceased''s cart which was driven by PW.5. Underneath each of these two carts a lantern had been tied. At about 9 p.m. the (sic) reached Thadikarankonam and thereafter P.Ws. 1, 2, 4 and 5 and the deceased had had their meals and rested for sometime. The carts again started at about mid-night. At about 3 a.m. when the carts were at a place called Natchukkala and were near the sixth furlong stone, the first accused came running there armed with a stick and locked at the first cart to see who was driving it and then he came running to the second cart and on seeing the deceased said to him and so saying the first accused beat the deceased on the left side of his forehead and over the left eye brow with the stick. The second accused Jothi also came running there armed with a stick and beat the deceased with the stick M.O. 1 on the left side of the head whereupon the deceased Sodalamadan fell down and both the accused ran away towards the east. P.W. 1 and 2 supported the deceased with their shoulder and helped him to walk up to a place called Mukkambala in Kulasekharam which they reached at about 4 a.m. and there the deceased expressed a desire to lie down as he could not walk further. Hence P.Ws. 1 and 2 made the deceased lie on a mat M.O. 6 which was in front of the petty shop of one Sasi. Half an hour later, the deceased expired. After leaving P.Ws. 2, 4 and 5 there, P.W. 1 went to Ettimadai, 5 miles away, to give information of P.W. 6, the son of the deceased, but while P.W. 1 was about a mile from that village he learnt that P.W. 6 had already received information about his father''s death and had gone there. P.W. 6 had received information that morning at 5 or 5-30 a.m., while he was in his house, from some rice smugglers that a man who had taken a cart from Ettimadai had been murdered at Mukkambala and hence he had proceeded there. P.W. 1 then returned to Mukkambala to about 8 a.m. and there he saw P.W. 6. After telling P.W. 6 about the occurrence P.W. 1 went to the Kulasekharam Police Station in a bus reaching there at 9.30 a.m. and there he gave the report Ex. P-1 to the Head Constable P.W. 14 who reduced it to writing. After obtaining P.W.1''s thumb impression on Ex. P. 1, P.W. (sic) registered a case in Crime No. 83/73 u/s 302 I.P.C. after preparing the FIR. Ex. P.16 and sent the original F.I.R. to the Additional First Class Magistrate of Padmanabhapuram and express reports to his superiors and sent a P.C. to guard the scene of the occurence. He then gave information about the occurrence by phone to the Sub Inspector P.W. 15 who was participating in a meeting held at Nagercoil.

P.W. 15 then went to the scene of the occurrence at 11.30 a.m. and there P.W. 14 met him with the F.I.R. P.W. 15 after inspecting the place where the dead body was lying prepared the observation mahazar Ex. P 5 and held the inquest over the dead body between 11-30 a.m. to 3-30 p.m.

X X X X

[The discussion of facts is omitted.--Ed.]

The autopsy on the dead body was conducted by P.W. 16 at 8 a.m. on 19th February, 1973. She found on the dead body (1) a lacerated injury 1" x 1/4" x 1/4" over the left eye brow with clotted blood present over it; (2) a lacerated injury 2" x 1/2" x 1/2" on the left parietal region; (3) diffused contusions over the left side of the face, neck and frontal region of the scalp. On dissection she noticed haematoma present in the left parietal, eccipital and right parietal regions of he subcutaneous region of the scalp; for blood clots over the right temporal and frontal regions of the brain on the subdural region; and there was a lacerated injury 1" x 1/2" in the right temporal lobe of the brain. The doctor opines that the deceased appears to have died of subdural haemorrhage and injury to the brain and that the injury to the temporal lobe of the right side of the brain and the subdural haemorrhage on the right side are fatal. She further opined that external injuries 1 and 2 were the cause of the injury to the temporal to be of the right side of the brain and the subdural haemorrhage on the right side and those internal injuries were contre-coup injuries and they were sufficient in the ordinary course of nature to cause death. She further opined that the haematoma in the left parietal and left occipital region could have been caused by external injuries 3 and 2, and that external injury No. 2 could have been caused by a stick like M.O.1 and injuries 1 and 3 could have been caused at about 3 a.m. on 18th February 1973 and that the diffused confusion on the left side of the neck in external injury No. 3 could have been caused when the deceased fell on the road or a rough surface while external injuries 1 and 3 could have been caused by a single blow with a stick. She further opined that the deceased would have, died about half an hour after receiving the fatal blows.

The witnesses to the occurrence are P.Ws. 1, 2, 4 and 5. The learned trial Judge characterised their evidence as ''very strong and trustworthy'' and on the basis of that evidence which was fortified by the medical testimony of P.W. 16, she learned trial Judge found that both the accused attacked Sedalamadan with stick and caused his death and and found the second accused guilty and convicted him of an offence punishable u/s 302, I.P.C. and found the first accused guilty and convicted him of an offence punishable u/s 302, read with Section 34, I.P.C. and sentenced the first accused to imprisonment for life and the second accused to the extreme penalty of the law.

After careful consideration of the evidence adduced in this case we entirely agree with the findings of the learned trial Judge and we find that the guilt of the accused has been proved beyond a shadow of doubt.

x x x x

Therefore we find that this prior incident has been clearly proved and it has furnished a motive for the occurrence in this case.

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The witnesses to the occurrence have consistently testified that there was bright moonlight at the time of the occurrence. It is not suggested to any of them that it was so dark that they could not identify the assailants. Moreover, there was the identification parade held by P.W. 5, the sub Magistrate. At that identification parade, P.Ws. 2 and 5 correctly identified both the accused. P.W. 4 identified A-1 correctly but did not identify the second accused in the first instance and for a second time he identified the first accused correctly and only alter some hesitation he identified A-2. However, the fact that P.Ws. 2 and 5 identified these accused correctly at the identification parade lends assurance to the identification of these accused by those witnesses in Court as the persons who participated in the occurrence. We have therefore no hesitation whatsoever in finding that it has been proved beyond a shadow of doubt that these two accused attacked the deceased Sodalamadan with sticks and dealt blows at his head with those sticks and as a result of it Sodalamadan sustained fatal injuries and died within a couple of hours thereafter.

On the question as to what offence has been disclosed by the aforesaid facts which have been established, the learned Counsel Mr. N.T. Variamamalai has addressed elaborate arguments and has endeavoured to show that there is a doubt as to which of the two accused dealt the fatal injury and as such the convictions of the second accused for an offence punishable u/s 302, IPC, and the first accused of an offence punishable u/s 302 read with Section 34, I.P.C. cannot be sustained, but that the accused could only be convicted at the most of an offence u/s 325, I.P.C. read with Section 34, I.P.C. The learned Counsel derives support for this argument from certain statements which the doctor P.W. 16 who conducted the autopsy on the dead body of Sodalamadan had made in her testimony. We note that this doctor is aged only 26 years. Apparently she is quite fresh from the Medical College. She found three injuries on the dead body; (1) a lacerated injury 1 " x 1/4" x 1/4" over the left eye brow with clotted blood present over it; (2) a lacerated injury 2 x 1/2" x 1/2" an the left partial region; and (3) diffused contusion present over the left side of the face, neck and frontal region of the scalp. According to the testimony of the eye witnesses P.Ws. 1, 2, 4 and 5, the first accused beat the deceased on the left forehead and over the left eye-brow. From this, it could be inferred that the first mentioned injury was caused by the first accused. Then according to the eye witnesses, the second accused beat the deceased on the left side of the head. From this it could be inferred that injury No. 2 mentioned above resulted by that blow. According to the eye-witnesses, A-1 beat the deceased on the left forehead also and from this it could be inferred that injury No. 3 was also caused by A-1. It appears from the evidence of the doctor that on dissection, haematomas were found present in the left parietal, occipital and right parietal regions of the subcutaneous regions of the scalp and four blood clots were present over the right temporal and frontal regions of the brain in the subdural region, and a lacerated injury 1" x 1/2" was noticed in the right temporal lobe of the brain. It must be noted that there were no external injuries on the right temporal or right parietal regions of the head. In fact, there were no external injuries at all either on the right side of the head of the deceased or on the right side of his face. Therefore, it is clear that the internal injuries, namely, the injury to the temporal lobe of the right side of the brain and the subdural haemorrhage on the right side, which are fatal injuries were contre-coup injuries. The question is whether those contre-coup injuries which were the fatal injuries were the result of the blow struck by A-1 or the result of the blow struck by A-2. The doctor, apparently on account of her lack of experience, could not say definitely if the external injury No. 2 could have caused the contre-coup injuries and she says that external injury No, 1 may or may not have caused those internal injuries. The learned Counsel for the Appellants has, therefore, argued that since it cannot be predicted with any amount of certainty that it was the blow struck by A-2 that resulted in these fatal contre-coup injuries, the conviction of A-2 of an offence punishable, u/s 302 and that of A-1 of an offence punishable u/s 302, read with Section 34, I.P.C. cannot be sustained.

At page 307 of Taylor''s Principles and Practice of Medical Jurisprudence, 11th Edition it is stated that ''contre-coup lesions always lie in the line of the force of impact. Thus, if a man falls upon the back of his bead, striking the ground with his occiput a little to the right of the middle line, the lesions occur over the left frontal and temporal poles; the right frontal and temporal poles may also be affected, but to a less degree;"

Therefore, in order to decide whether the contre-coup injuries in this case were due to the blow struck by A-1 or due to the blow struck by A-2, we have to know in which direction the blow was dealt. We are deprived of that data in this case. Therefore as has been rightly contended by the learned Counsel for the Appellant either the blow struck by A-1 or the blow struck by A-2 could have caused the contre-coup injuries and it cannot be predicated with any amount of certainty that it was the blow struck by A-2 which alone caused the contre-coup injuries. But we are unable to agree with the learned Counsel for the Appellant that in view of that uncertainty neither the second accused nor the first accused could be convicted of an offence punishable u/s 302, read with Section 34, I.P.C. but could only be convicted of an offence u/s 325 read with Section 34, I.P.C. Both A-1 and A-2 had beaten the deceased on the left side of the head with stout sticks and as a result of such beating fatal injuries were sustained by the deceased. That the accused dealt those blows with the intention of causing the death of the deceased can be certainly legitimately inferred from the fact that they used stout sticks in dealing the blows and dealt the blows with considerable force and that too on the head. Therefore even if it is doubtful which of the two blows caused the fatal injuries, there will be no difficulty in convicting the Appellants of an offence punishable u/s 302, read with Section 34, I.P.C.

The learned Counsel for the Appellants has referred to the decision in Ram Lal Vs. Delhi Administration, in support of his argument that in this case A-1 and A-2 can only be convicted of an offence u/s 225, read with Section 34, I.P.C. In that case, the Appellant Ramlal along with three others-Lekh Ram, Tek Chand and Mohar Singh, was committed to the Court of Session on two separate charges. One charge was u/s 302, read with Section 34, I.P.C. for the murder of deceased Harlal and the other charge was u/s 325 read with Section 34, I.P.C. for voluntarily causing grievous hurt to one Budh Ram. The additional Sessions Judge noticing that the lathi blow which proved to be fatal was given by Ram Lal framed a substantive charge u/s 302, I.P.C. against the Appellant Ram Lal After trial the Appellant Ram Lal, Lekh Ram and Tek Chand were convicted u/s 302, read with Section 34, I.P.C. and sentenced to undergo imprisonment for life for the murder of Har Lal; and the Appellant and Tek Chand were also convicted u/s 325 read with Section 34 for the grievous hurt caused to Budh Ram. On appeal, however, the High Court, convicted the Appellant Ramlal for an offence u/s 302, I.P.C. for the murder of Har Lal but Tek Chand and Lekh Ram were convicted in respect of that assault u/s 325 read with Section 34 IPC. The High Court came to the conclusion that so far as the attack on the deceased Har Lal was concerned he was assaulted with lathis or sticks by the Appellant. Tek Chand and Lekh Ram and it also came to the conclusion that their common intention was not to cause death but only grievous hurt and on that finding the conviction of all the three could have been only u/s 325 read with Section 34, I.P.C. But the reason why Ram Lal was convicted u/s 302, I.P.C. was that the High Court held that though all the three bad the common intention of causing grievous hurt it was the Appellant Ramlal who gave the blow on the head of the deceased with his lathi which proved fatal and hence the Appellant was liable to be convicted u/s 302, IPC. Their Lordships of the Supreme Court observed.

It was essential in this case, in order to bring home the offence of murder to the Appellant, that the lathi blow given by him on the head had proved fatal. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the Appellant, the benefit of doubt must go to him. In these circumstances, the Appellant''s conviction u/s 302, I.P.C. was plainly incorrect. He and his companions had the common intention to cause grievous hurt and hence be can be convicted only u/s 325 read with Section 34.

The facts of the case which is now before us are entirely different; and in the case now before us two blows were dealt and one of them or both of them might have caused contre-coup injuries and as we have already pointed out the blows were with stout sticks and were death on the head and with considerable force and as such there is no difficulty in finding that both the accused had the common intention of causing the death of the deceased. We cannot find, under the circumstances, that the common intention of the accused was only to cause grievous hurt.

In Devilal and Anr. v. The State of Rajasthan AIR 1971 S.C. 1414 their Lordships of the Supreme Court have pointed out that:

Under Section 34 when a criminal act is done by several persons to 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; and the words "in furtherance of the common intention of all" are a most essential part of Section 34 of the I.P.C. It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of the crime Common intention means a prearranged plan.

In Ram Tahal and Others Vs. The State of U.P., it has been pointed out by the Supreme Court that--

A common intention should be anterior in time to the commission of the crime showing a prearranged plan and prior concert and though it is difficult in most cases to prove the intention of an individual it has to be inferred from the act or conduct or other relevant circumstances of the case and the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused bad a common intention to commit an offence with which they could be convicted. It was further pointed out by the Supreme Court that the pre-arranged plan may develop on the spot during the course of the commission of the offence but the crucial circumstance is that the said plan must precede the act constitution of the offence. Therefore before a Court can convict a person u/s 302 read with Section 34 of the I.P.C. it should come to a definite conclusion that the said person had a prior concert with one or more persons named or unnamed for committing the offence. It was further pointed out that the inference can be gathered by the manner in which the accused arrived on the scene and mounted attack, the determination and concert with which the beating was given or injuries caused by one or some of them, the acts done by others to assist those causing the injuries the concerted conduct subsequent to the commission of the offence for instance that all of them had left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention.

In Hethubha alias Jithuba Madhuba and Others Vs. The State of Gujarat, the facts established by the evidence namely that all the accused were related: secondly, they were (sic) Bhavad at the relevant time; thirdly, all the three accused made sudden appearance on the scene of the occurrence; fourthly, they started the assault as soon as the (sic) arrived at the scene of the offence; fifthly, the way in which the deceased was attacked by accused 1 and 2 and stab wounds were inflicted on him and the manner in which A 3 held up another person were held to indicate that the three accused people were lying in wait under some pre-arranged plan to attack these persons when they were returning to Bhalot: and it therefore followed that the attack took place in pursuance of the pre-arranged plan and the rapidity with which the attacks were made also showed the prearranged plan.

In the case now before it is seen that when the carts came to the place called Natchukala at about 3 a.m. in the morning both the accused were lying in wait and came running there armed with sticks and both of them started attacking the deceased and with rapidity dealt blows, aiming the blows on his head and face and then both of them ran away towards the east; and the blows dealt upon the deceased by both the accused were dealt with considerable force, of the external injuries two were lacerated injuries and the others were contusions. There was also haematoma on the left parietal, occipital and right parietal regions of the subcutaneous regions of the scalp and there were blood clots over the right temporal and frontal regions of the brain in the subdural region and there was a lacerated injury on the right temporal lobe of the brain. The internal injuries indicate the force with which the blows had been dealt. Both the accused are brothers and both of them harbonred enmity towards the deceased. In State by Public Prosecutor and Nagammal Vs. Karuppanna Thevar and Others, the facts that all the four accused belonged to the community of Thevars and at least some of the relations of some of the accused were aggrieved at the pending civil and criminal proceedings or the past proceedings and there was a faction between Chettiars and Thevars and all the four accused were found seated in the mandhai just prior to the occurrence were held to be indicative of a pre-concerted plan. The emergence of the accused and their appearance on the scene of the occurrence, the participation of all the four accused in the murderous attack, the infliction of injuries by all the accused which resulted in multiple fractures, at least one of which was necessarily a fatal injury were held to be facts and circumstances which would constitute indubitable proof of the common intention which actuated the four accused to commit the murder of Andar Chettiar.

Therefore, we have no hesitation in concluding that the attack on the deceased was in pursuance of a pre-concerted plan. Hence we find both the accused guilty of an offence punishable u/s 302, read with Section 34, I.P.C. We therefore alter the conviction of the second accused and convict him of an office punishable u/s 302 read with Section 34 IPC and we confirm the conviction of the first accused for an offence punishable u/s 302 read with Section 34 IPC; and we set aside the sentence of death meted out to the second accused and sentence him to undergo imprisonment for life. With these modifications, the appeal preferred by the accused is dismissed.

K.N. Mudaliyar, J.

While I respectfully agree with the reasons and the conclusion found in the judgment of my learned brother, I would like to add a few words.

I would like to bear in mind the principles enunciated in some of the leading decisions. I now make the relevant pleadings from some of the said leading decisions. Their Lordships of the Privy Council in Barendra Kumar v. Emperor observed as follows:

The Appellant''s argument is, in brief, that in Section 34 ''a criminal act'' in so far as murder is concerned, means an act which takes a life criminally within Section 302 because the section concludes by saying ''is liable for that act in the same manner as if the act were done by himself alone, and there is no act done by himself alone, which could make a man liable to be punished as a murderer, except an act done by himself and fatal to his victim. Thus the effect is that, where each of several persons does something criminal, all acting in furtherance of a common intention, each is punishable for what he has done, as if he bad done it by himself. Such a proposition was not worth enacting, for, if a man has done something criminal in itself, he must be punishable for it, and none the less so that others were doing other criminal acts of their own at the same time and in furtherance of an intention common to all. It follows from the Appellant''s argument that the section only applies to cases where several persons (acting in furtherance of a common intention) do some fatal act, which one could do by himself. Criminal action, which takes the form of acts by several persons, in their united effect producing one result, must then be caught under some other section and, except in the case unlawful assembly, is caught under attempts or abetment. By way of illustration it may be noted, that in effect, this means, that, if three assailants simultaneously fire at their victim and lodge three bullets in his brain, all may be murderers, but, if one bullet only grazes his ear, one of them is not a murderer and, each being entitled to the benefit of the doubt, all must be acquitted of murder, unless the evidence inclines in favour of the marksmanship of two or one.

This argument evidently fixes attention exclusively upon the accused person''s own act. Intention to kill and resulting death accordingly are not enough, there must be proved an act, which kills, done by several persons and corresponding to, if not identical with, the same fatal act done by one. The answer is that, if this construction is adopted, it defeats itself, for several persons cannot do the same act as one of them does. They may do acts identically similar, but the act of each is his own, and because it is his own and is relative to himself, it is not the act of another, or the same as that other''s act. The result is that Section 34 construed thus, has no content and is useless. Before the High Court the Appellant''s Counsel put an illustration of their own, which may be taken now, because, the range of feasible illustrations being extraordinarily small, this one is equally exact in theory and paradoxical in practice. Suppose two men tie a rope round the neck of a third and pull opposite ends of the rope till he is strangled. This they said really is an instance of a case u/s 34. Really it is not. Obviously each is pulling his own end of the rope, with his own strength, standing in the position that he chooses to take up, and exerting himself in the way that is natural to him, in a word in a way that is his. Let it be that in effect each pulls as hard as the other and at the same time and that both equally contribute to the result. Still the act, for which either would be liable, is done by the other person. There are two acts, for which both actors ought to suffer death separately done by two persons but identically similar. Let us add the element that neither act without the other would have been fatal; so that the fatal effect was the cumulative result of the acts of both. Even this does not make either person do what the other person does, it merely makes the act, for which he would be liable if done by himself alone, an attempt to murder and not an act of murder, and accordingly the case is not an illustration of Section 34. To this the reply was made before the High Court, that, in a case where death results from the cumulative effect of different acts, each actor must be deemed guilty of murder, though whether because it cannot be shown that it was not his act alone which took the victim''s life, or because the absurdity of the argument had to be disclaimed somehow, it is not easy to determine. Yet absured it is, and absured it must remain. "Where two men have done a man to death" said the learned Counsel (Record 127, "Your Lordships will not inquire in) the individual effect of each blow but the point I am insisting on is that the doing to death must have been the joint acts of both. This concession rational enough in itself, is another way of saying that the section really means ''when a joint criminal act has been done by the acts of two persons in furtherance of a common intention each is liable for that joint criminal act as if he had done it all by himself.'' On the other hand, if it is read as the Appellant reads it, then, returning to the illustration of the rope, if both men are charged together but each is to be made liable for his act only and as if he had done it by himself, each can say that the prosecution has not discharged the onus for no more is proved against him then an attempt which might not have succeeded in the absence of the other party charged. Thus both will be acquitted of murder and will only be convicted of an attempt, although the victim is and remains a murdered man. If on the other hand, each were tried separately by different juries, either jury or both, taking the view that the violence used by the man before them killed the man, whom they knew to be dead, might return unimpeachable verdicts of murder, and then both men would be justly hanged....

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 83 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 that offence by doing any one of those acts, either singly or jointly with any other persons, 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 different 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 at 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 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 other part of the Appellant''s argument rests on Sections 114 and 149, and it is said that if Section 34 bears the meaning adopted by the High Court, these sections are otiose. Section 149, however, is certainly not otiose, for in any case it creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or more persons having a common object, viz., one of those named in Section 141 R. v. Sabed Ali 11 Ben. L.R. 359 and then the doing of the acts by members of it in prosecution of that object. There is a difference between object and intention, for, though their object is common, the intentions of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action which is the leading feature of Section 34, is replaced in Section 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus, they have a certain resemblance and may to some extent overlap, but Section 149 cannot at any rate relegate Section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all.

Their Lordships of the Privy Council held in Mahbub Shah v. The King Emperor (1945) M.W.N. Cr. page (sic) that "Section 34 I.P.C. lays down a principle of joint liability in the doing of a criminal act. The section does not say ''the common intentions of all nor does it say ''an intention common to all'' Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, the common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is difficult, if not impossible, to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bounds is often very thing; nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of justice The inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case".

While interpreting the scope of Section 34 of the I.P.C. as expounded in the decision in Mahbub Shah v. Emperor (1945) M.W.N. Cr. page (sic) two learned Judges of this Court held in In re Nachimuthu Gounden and Ors. ILR (1947) Mad. 425 : 59 L.W. 455 that the decision of the Privy Council in Mahbub Shah v. Emperor (1945) M.W.N. Cr. page (sic) is warrant only for the proposition that it is not enough to attract the provisions of Section 34 of the I.P.C that there was the same intention on the part of several people to commit a particular criminal act or a similar intention but that 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 assailants. "The question whether there was such an intention or not will have to depend in many cases on inference to be drawn from the proved facts and not on any direct evidence about a preconceived scheme or plan which may not be available it all."

Their Lordships of the Supreme Court in Hethubha v. State of Gujarat (sic) L.W. Crl. 245 observed as follows:

This Court in the case of Shankarlal Kachrabhai and Others Vs. State of Gujarat, said that a mistake by one of the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerned action in furtherance of pre-arranged plan. The dominant feature of Section 34 is the element of participation in action. The participation need not an all cases be by physical presence. Common intention implies acting in concert. There is a pre-arranged plan which is proved either from conduct or from circumstances or from incriminating facts. The principle of joint liability in the doing of a criminal act is embodied in Section 34 of the I.P.C. The existence of a common intention is to be basic liability. That is why the prior concert and the pre-arranged plan is the foundation of common intention to establish liability and guilt:

Applying these principles to the evidence in the present case it appears that there was pre-arranged plan of the accused to commit offences. All the accused were lying in wait to attack the party of Amaraji, Vaghji, Pabaji and Panchanji. Amarji was in the forefront. The accused attacked him. Vaghji was also attacked and prevented from going to the relief of Amarji. The plea that Amarji was mistaken for Vaghji would not take away the common intention established by pre-arranged plan and participation of all the accused in furtherance of common intention. The Act might be done by one of the several persons in furtherance of common intention of all them without each one of them having intended to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be done.

Venkataraman and Ganesan, JJ. in Thangaraj, In re (1972) L.W. Cri. 170 held that the notion that the injuries should normally be on what the layman considers to be the vital parts of the body in order to constitute murder in law is not correct Under Clause 3 of Section 300 I.P.C. in particular, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. When Section 34 I.P.C. speaks of a criminal act, it embraces all the series of acts by which the injuries were inflicted. This is clear enough from a reading of Sections 33 and 34, I.P.C. but, it has also been made clear by Their Lordships of the Privy Council in Barendra Kumar v. Emperor and that has been referred to by their Lordships of the Supreme Court in Maharaj Kumar Tokendra Bir Singh Vs. Secretary to the Government of India, Ministry of Home Affairs and Another, Thus it is clear that in order to invoke Section 34, I.P.C. what must be determined is whether all the injuries taken cumulatively were inflicted in furtherance of a common intention of all. It was further held that on the facts, that each of the four accused is liable for all the injuries cumulatively in the same manner as if all of them were caused by him alone. In other words, each of them would be guilty u/s 302 read with Section 34, I.P.C. The first Earl of Birkenhead Lord Chancellor of England 1919-1922 in his "Famous Trials" (published by Hutchinson & Co. Ltd , London) at page 349 states the relevant principle of law with unsurpassed brilliance in the following language:

It is necessary therefore to digress somewhat to explain the rules which govern joint responsibility for a criminal act committed by one person. It is not necessary either in law or in reason that the actual deed shall have been done by an accused person. When he acts alone, that act may be done by him or by an innocent agent. If several unite in a criminal design, the act of one in furtherance of that design is imputable to all. If A, B and C, acting in concert meet D, and A jostles him, and B, thereby enabled to pick his pocket, takes his purse and hands it to C, then the theft is committed by B alone in the sense that it is he who does the felonious taking. But it is obvious that all three are, and ought to be equally guilty of the theft. Again, if two men set out to commit a burglary, one to stand outside and watch and the other to break in and steal, both are equally guilty of burglary. But if the marauder kills the householder who suddenly disturbs him, than the watcher is not guilty of murder; unless it can be shown that there was a common plan to overcome opposition by force. In other words, a man cannot be held guilty of an act which he did not plan and bad no intention to bring about.

Mrs. Thompson therefore was not guilty unless By waters was acting in concert with her Mr. Justice Shearman said to the jury: "You will not convict her unless you are satisfied that she and he agreed that this man should be murdered when he could be, and she knew that he was going to do it, and directed him to do it, and by arrangement between them he was doing it.

Applying these legal principles to the facts of this case, it would be clear that A-1 and A2 were actuated by common intention to murder Sodalamadan (deceased). There was undoubtedly a preconcerted plan on the part of both the accused to kill Sodaiamadan (deceased). P.Ws. 1, 2 and the deceased Sodalamadan were returning from Darisanamcope to Ettamadai after loading the (sic) in the two carts. They halted at Thadikarankonam at about 9 p.m. on their return journey. After resting, the two carts again started at about mid-night. At about 3-00 a.m. when the two carts were at a place called Natchukkala, Sodalamadan (deceased) was beaten by both the accused who are brothers. Both the accused ran away towards east with the stick. I express my total agreement with the finding of my learned brother that the attack on the deceased was in pursuance of a pre-concerted plan. We confirm the conviction of A.1 for an offence punishable u/s 302 read with Section 34, I.P.C. and also the sentences imposed on him. The conviction of A-2 is altered into one punishable u/s 302 read with Section 34 and the sentence of death is altered into one of imprisonment for life. The appeals are dismissed subject to the modification indicated above.