In Re: Sorna Velayutham Pillai and Others

Venkataraman, J.—This is an appeal by the three accused who were tried by the learned Sessions Judge of Tirunelyeli, in connection with

an occurrence in the course of which one Arunachalam pillai was murdered, and his father-in-law (P.W. 1) was injured. The occurrence is alleged

to have taken place at about 3 p.m. on 29th July, 1972 (Saturday) within the limits of Pattalurani Village. Accused 2 and 3 are the sons of the first

accused. Accused 1 and 3 are residents of Pattalurani Village. The second accused was employed in the Police Department in Bhopal and had

come down on leave.

P.W. 1 is the father of P.W. 3 Andaperumalammal. Arunachalam Pillai (murdered person) and P.W. 3 were married about eleven years before.

Arunachalam Pillai was employed in the Malaria Office in Tuticorin, about fifteen miles away and was residing there while his wife, P.W. 3 was

residing in Pattalurani village in a house belonging to her father (P.W. 1). The house of the three accused is next east of that house. P.W. 1 was

living in another house in the southern part of the village. About four and a half months before the occurrence, there was a quarrel between P.W. 3

on the one hand and accused 1 and 3, the wife of the first accused and the daughter of the first accused on the other on the allegation that sullage

water ran from the house of P.W. 3 to the front of the house of the accused. The four persons averred that P.W. 3 had let out the water purposely

and beat her. She gave a complaint to the Police at Pudukottai. P.W. 9, the then Sub-Inspector filed a charge-sheet (Exhibit P. 16) against the four

person''s in the Court of the Honorary First Class Magistrate, Tuticorin. They were convicted. Exhibit P-17 dated 22nd March, 1972 is the

judgment. It shows that accused 1 and 3 were fined Rs. 20 each and the Wife and daughter of the first accused Were fined Rs. 15 each.

P.W. 3 says that the four persons were creating trouble to her by uttering threats and inviting her to quarrel. She gave a notice Exhibit P-5 dated

15th April, 1972 through a lawyer (P.W. 5) to the said four persons claiming a sum of Rs. 250 as damages for the hurt and insult caused to her by

the said four persons. P.W. 3 would say that thereafter the first accused was threatening that on the arrival of the second accused, he would

exterminate her family.

P.W. 3 proceeding states that the second accused came on leave to the village on 28th July, 1972. He came to her house and abused her. Out

of fear she went to her father''s residence. When she was there, about 10-30 p.m. the three accused came to the house of P.W. 1 (and this is also

spoken to by P.W. 1) and said:

You have given notice claiming damages for the loss of the honour of P.W. 3. We shall not leave without cutting you.

The neighbours, including P.W. 6, pacified them, and the accused went away. P.W. 6 merely says that accused 1 to 3 were talking loudly and he

does not speak to the threat of the accused.

In view of the above quarrel P.W. 1 went in the morning on 29th July, 1972 and brought in his son-in-law, Arunachalam Pillai from Tuticorin to

the village. They came in a bus and got down at the bus stop near their village. They had to proceed in the northern direction; their village was

about seven furlongs north of the bus stop.

At the bus stop, Muthia Pillai (P.W. 2), one Perumal Pillai (not examined) and the third accused were there. P.W. 2 was a teacher in

Anjaperunallur School about three miles away from the bus stop. Because it was Saturday the school had closed at 1 p.m. He came by walk to

Pattulurani. He reached the bus stand about 2-15 p.m., and because it was hot, he stood there for a while under the shade of a tree. He found the

third accused and Perumal Pillai (not examined) standing there already. He further says that within a few minutes of his reaching the bus stop, P.W.

1, and his son-in-law, Arunachalam Pillai, came there by bus from Tuticorin.

The evidence of P.Ws. 1 and 2 is that, on seeing the third accused, Arunachalam questioned him why the previous night he had tried to attack

his father-in-law and suggested to him that he could go over to the village where they could talk it over. P.W. 1 says that the third accused retorted

: ""You come to the village. We shall commit murder"". So saying, the third accused went away northwards. P.W. 2, however, merely says that

there was an exchange of words between the third accused and Arunachalam Pillai. He does not say that the third accused uttered a threat of

murder.

P.W. 1, his son-in-law Arunachalam Pillai, P.W. 2 and Berumal Pillai stood under the shade of a tree in the bus stop for about quarter of an

hour after the third accused had left, and then they proceeded towards Pattulurani. After going some distance northwards, Perumal Pillai went

straight north on the regular road (see also the sketch Exhibit P. 25), while P.W. 1, Arunachalam Pillai and P.W.2 took a short cut which branches

off north-eastwards at a particular point. The short-cut Was a narrow path. After proceeding for about three-fourths furlong on that short-cut, they

saw the three accused hiding themselves in the dry filed of Senthattia Pillai on the west. The first accused (who was a dismissed Police Constable)

had a lathi in his right hand and a bichuva, (M.O. 1), on the right side of his waist The second accused had an aruval. The third accused had a pen

knife. P.W. 2 was proceeding first; behind him there was P.W. 1, and behind him there was Arunachalam Pillai. The first accused gave a blow

with his lathi on the head and left flank of P.W. 1. Arunachalam intervened. The first accused gave a blow with the lathi on the head of

Arunachalam. Arunachalam wrested the lathi from the first accused and gave a blow with it on the head of the first accused, as a result of which the

lathi broke into two pieces. M.O. 2 is the larger portion and the smaller broken portion is M.O. 7.

When Arunachalam dealt that blow on the head of the first accused, the second accused gave a cut with his aruval on the head of Arunachalam.

P.W. 1 tried to prevent it. At that juncture the second accused gave cuts to P.W. 1 with the aruval on his head and right palm. The first accused

(who had been beaten on the head by Aruna-chalam) stabbed Arunachalam on the right chest and left chest, with the bichuva (M.O. 1). On

receiving the stabs Arunachalam ran south crying, ""He has stabbed"". He ran about 8 yards and fell down, face downwards. P.W. 1 also ran south.

His dhoti (M.O. 3) got stuck up in the thorns by the side of the foot path. Hence he discarded the dhoti and ran south clad only in his towel. At

that juncture the third accused gave a stab with the penknife on the back of Arunachalam who had already fallen down. P.W. 2 was entreating the

accused not to indulge in violence, but the accused did not heed him. The accused then ran away.

The accused went near Arunachalam, but found that life Was extinct. Leaving P.W. 2 at the spot, P.W. 1 went to report the matter to P.W. 7

the Village Headman living in Naickenpatti abdut a mile away from the scene of occurrence. P.W. 7 says that P.W. 1 came to him and reported

the matter at 4 p.m. Taking his Thalayari, he went to the scene with P.W. 1. He saw the corpse. He recorded a statement (Exhibit P-l) from P.W,

1 at the spot, P.W. 2 attested it. Exhibit P-1 contains a full account of the present prosecution version.

P.W. 7 prepared his covering reports, Exhibits P-6 and P-7, and also a copy of Exhibit P-1, viz., Exhibit P-8. He sent Exhibits P-1 and P-6 to

the Pudukottai Police Station and Exhibits P-7 and P-8 to the Sub-Magistrate at Tuticorin, through his Thalayari, Subbiah Naicker, P.W. 7

remained at the spot.

P.W. 12, the Sub-Inspector of Police, Pudukottai Police Station, says that the Thalayari brought Exhibits P-1 and P-6 at 8-30 p.m. P.W. 1

also had come with him. P.W. 1 had injuries. P.W. 12 registered a case of murder (Exhibit P-22) and sent express reports to his superiors. He

sent P.W. 1 to the Government Hospital at Tuticorin with a memo (Exhibit P-23) for examination and treatment.

P.W. 1 seems to have been examined by Dr. Balasubramaniam at 11-50 p.m. He was not available for examination in Court, because he had

gone to the United Kingdom. The wound certificate issued : by him has been marked as Exhibit P-4 through another doctor, P.W. 4, who knows

the handwriting of Dr. Balasubramaniam. The document can be admitted u/s 32 (2) of the Evidence Act, if it can be said that it was memorandum

made by the doctor, in the discharge of his professional duty and since the injuries are noted even in the accident register maintained for the

purpose, and Exhibit P-4 is only a copy thereof, it would be admissible. But even if it is not admitted, it does not matter, because the evidence of

P.Ws. 1 and 2 shows that P.W. 1 sustained Injuries. Actually, Exhibit P-4 mentions the following injuries.

Incised wound 2"" X i"" scalp deep on the front Of forehead region.

Incised wound 2 1/2 X 1/4 "" scalp deep on the back of right side scalp.

Incised wound on the ball of right thumb 2"" X 1/4"" muscle deep.

Diffused contusion left chest.

According to the prosecution, injuries Nos. l and 4 were caused by the first accused with the lathi, and injuries Nos. 2 and 3 by the second

accused with his aruval.

P.W. 12, after registering the case left the station at 10 p.m. and reached the scene of occurrence at about 11 p.m. P. W. 13 the Inspector of

Police received the copy of the first information report at Pudukottai at 10-30 p.m. He reached the scene at 11-30 p.m. He took P.W. 7 and

proceeded to Perumalnaicker, Oorani, north-west of Pattalurarii) and arrested the first accused. He questioned the first accused. The first accused

made a statement in the course of which he stated that he had buried the knife on the tank bund of Pottal Kulam. Exhibit P.9 is the relevant portion.

R. 15. P.W. 13 came to the scene of occurrence and prepared an observation mahazar; Exhibit 10.

Item No. 2 therein refers to a small broken end of a lathi with a ferrule. It was by the right side of the corpse. Item No. 3 therein is the other

broken lathi about twenty feet north of the corpse. Item No. 5 therein refers to drop of blood on the cart-track for that distance of seven feet. Item

No. 6 therein refers to the eight-cubit dhoti (M.O. 3) in the thorns on the eastern side of the footpath. That has been identified by P.W. 1 as his

dhoti. Item No. 7 was a pair of chappals (M.O. 5 series) belonging to the deceased. Item No. 8 Was a pair of chappals belonging to P.W. 1.

Exhibit P-1 further states that items 2 and 3 were placed together and found to be parts of the same stick which had recently broken. M.O. 2

is the larger piece and M.O. 7 is the broken end.

P.W. 13 then held the inquest from 1 a.m. to 4 a.m. on 30th July, 1972. He examined P.Ws. 2, 3, 6 and others and the first accused. He had

sent the corpse for autopsy. He recovered M.Os. 2, 3 and 5 to 8 at the scene under a mahazar Exhibit P-12. In pursuance of the information given

in Exhibit P-9 the first accused took him and others to the northern bund of Pottal Kuiam Tank and from the eastern extremity took out the blood

stained bichuva (M.O. 1) which he seized under Exhibit P-43.

He then searched the house of the first accused and recovered, inter alia, Exhibits P-5 and P-14.

Exhibit P-14 is a letter alleged to have been written by the second accused from Bhopal to his brother the third accused, and his mother, at

PottalKulam. P.W. 8, the President of the Panchayat of Ellanaickenpatti, residing at Pattalurani, says that he is familiar with the handwriting of the

second accused and he identifies the handwriting of the second accused in Exhibit P-14. The prosecution relies on the last portion of the letter,

wherein, he says:

I am always prepared to sacrifice my life for the sake of you who brought me up. I shall come soon to wipe out your tears. Don''t be anxious. I

shall come on 27th July, 1972 or 28th July, 1972. I shall definitely come.

This last portion is said to refer to P.W. 3 and may be translated thus:

Tell the barren woman Andal (P.W. 3) that your son would be coming to give her the boon of a son. I think that God has willed it that I should

make her pregnant and beget a son which she wants.

As though the trials of destiny and God are not enough, mankind is also testing us. Destruction is its end. Rest in person.

The post-mortem examination on the corpse of Arunachalam was conducted by Dr. Sundaram (P.W. 4) at 11-30 a.m. on 30th July, 1972. He

found the following injuries:

Incised wound 2 1/2"" X 3/4th"" in the left parietal region of a scalp close to midline bone deep. On dissection there Was no fracture of the skull.

Punctured wound 1""X 1/2"" on the right side of back along the medial margin of right scapula.

On dissection 1"" deep echymosis in the underlying tissues was seen.

Punctured wound 1* X 3/4"" just below the right nipple 1"" lateral to the right nipple. On dissection....

There was a punctured wound in the fourth right intercostal space corresponding to the external wound. There Was a punctural penetrating wound

on the right, middle lobe of lung 1"" in diameter, depth 2"".

Punctured wound 1"" X 1/2"" in diameter, 3* above the left nipple.

On dissection echymosis in the underlying tissues. There was a punctured wound in the third left intercostal space corresponding to the external

wound. There was a punctural penetrating wound on the anterior surface of the left lung. Upper lobe 1 X 1/2"" x 1 1/2 depth extending on to the

anterior surface entering right ventricular cavity of the heart.

Injury No. 3 was necessarily fatal, and so also was injury No. 4. Injuries Nos. 1 and 2 were simple. Injury No. 1 could have been caused with an

aruval. Injury No. 2 could have been caused with a pen knife, and injuries Nos. 3 and 4 could have been caused with a bichuva like M.O. 1.

According to the prosecution, injury No. 1 Was caused by the second accused with the aruval. Injury No. 2 was caused by the third accused

with the pen knife; and the injuries Nos. 3 and 4 were caused by the first accused with the bichuva (M.O. 1).

P.W. 4 examined the first accused about 9 a.m. on 31st July, 1972 and found on him a linear incised wound in the scalp in the ceutre 1 1/2 "" X

1/2 X 1/4""-Exhibit P-3 is the wound certificate. He supports the allegation of the prosecution that it could have been caused by a blow with a lathi

about 3 p.m. on 29th July, 1972 but he adds that the first accused told him that the injury was caused to him on account of his being beaten with a

leather belt on 29th July, 1972. In cross-examination the doctor says that the injury could also have been caused by a sharp-edged weapon.

The evidence of P.W. 11 the Head Clerk of the Sub-Magistrate''s Court shows that M.Os.''1 and 8 to 11 were sent for eheraical examination

and that human blood was found in each of these items.

The Inspector says that accused 2 and 3 were absconding. Later the second accused was arrested at Bhopal and the third accused

surrendered before the Sub-Magistrate, Tuticorin on 1st August, 1972.

In the committal Court the first accused denied that he quarrelled with P.W. 1 on 23rd July, 1972. Regarding the incident on 29th July, 1972

he stated that he alone was there. Accused 2 and 3 Were not there. He was cutting thorns for fencing his garden. At that time Arunachalam came

suddenly and gave a cut forcibly with an aruval on the first accused. He aimed a second cut which the first accused warded off with his lathi as a

result of which the lathi broke. Arunachalam came to cut him a third time. The first accused became afraid that Arunachalam might kill him and in

self-defence he stabbed Arunachalam with his pen-knife.

The second accused also denied the quarrel with P.W. 1 on the night of 28th July, 1972. He stated that he came to Pattulurani only about 9-

15 p.m. on 28th July, 1972 and left the village at 8 a.m. the next day for Rajapalayam and other places to see his relatives. He had been on leave

only for fourteen days and six days had to be spent in travel to and fro.

The third accused completely denied the evidence.

In the Court of Session the first accused adhered to his previous statement and added that at 4-30 p.m. on 29th July, 1972 he himself went to

the house of the village Headman (P.W. 7) and complained that Arunachalam had cut him on the head. P.W. 7 immediately took him to the Police

Station.

The second accused while sticking to his statement in the Committal Court, admitted that Exhibit P-14 was written and signed by him but he

denied that P.W. 8 knew his handwriting. The third accused stuck to his denial in the Committal Court. The accused did not adduce any defence

evidence.

The learned Sessions Judge accepted the prosecution case, rejected the defence and convicted the first accused of the murder of Arunachalam

on the first charge u/s 302 of the Indian Penal Code, and sentenced him to imprisonment for life. He convicted accused 2 and 3 u/s 302 read with

Section 34 of the Indian Penal Code, for the murder of Arunachalam on the second charge and sentenced them to imprisonment for life. On the

third charge he convicted the first accused u/s 323 of the Indian Penal Code, for causing hurt to P.W. 1 (by beating him with a lathi) and sentenced

him to rigorous imprisonment for one year. On the fourth charge he convicted the second accused u/s 324 of the Indian Penal Code, for causing

hurt to P.W. 1 with an aruval and sentenced him to rigorous imprisonment for two years the sentences to run concurrently.

Before us, Thiru N.T. Vanamamalai, learned Counsel for the appellants contended for the defence, in particular he contended that the injury on

the head of the first accused was an incised injury and should have been caused only with an aruval and that we could not accept the prosecution

case that it was caused by Arunachalam wresting the lathi from the first accused and giving a blow with it on his head. I may at once say that the

defence cannot be accepted and that subject to the question whether accused 2 and 3 can be convicted on the second charge u/s 302 read with

Section 34 of Indian Penal Code, the prosecution evidence must be substantially accepted. P.Ws. 1 and 2 have given consistent evidence about

the occurrence. P.W. 2 is a disinterested witness. The present prosecution version was put forth in Exhibit P-1 without any delay. P.W. 2 has

attested it. There is no reason to doubt the evidence of P.W. 7 that P.W. 1 came and reported the matter to him at 4 p.m. and that he went to the

scene and recorded Exhibit P-1 at 5 p.m. He had denied the suggestion of the first accused that the first accused came to his house and. took him

to the scene of occurrence. P.W. 12 has also denied the suggestion that Exhibit P-1 was prepared at the Police Station. If the first accused alone

was there and accused 2 and 3 Were not there, it is difficult to imagine that a lengthy report like Exhibit P-1 was prepared in such a short time

implicating accused 2 and 3 and concocting a story merely from imagination. The injuries found on the person of Arunachalam by the doctor and

the injuries found on P.W. 1 by Dr. Balasubramaniam and on the first accused by P.W. 4 also fit in with the prosecution case. In particular, I am

satisfied that the injury on the head of the first accused Was caused only by Arunachalam wresting the lathi (M.O.2) from the hands of the first

accused and giving a blow with it on his head. Because it was on the head where the skin was taut the blow with the lathi might have caused an

incised looking injury and the doctor might have described it as an incised Wound. It is note-Worthy that the doctor says that it could have been

caused with a lathi. It is also not without significance that the first accused told the doctor that the injury was caused by a leather belt and not by an

aruval as alleged later in Court. Thiru Vanamamalai, however, relies on the endorsement Exhibit D-2 of the Sub-Magistrate to whom the first

accused was sent for remand on 1st July, 1972 at 11 a.m. The endorsement reads:

Accused produced at 11 a.m. No complaint of ill-treatment by police. The accused having a bandage to his head. He states that he was cut with

an aruval by Arunachalam Pillai.

The learned Counsel argues that if at 11 a.m. on 31st July, 1972 the first accused had told the Magistrate that the injury on his head had been

caused with an aruval it was unlikely that at 9 a.m. on 31st July, 1972 he told the doctor that the injury was caused by a blow with a leather belt.

However there is no reason to disbelieve the evidence of P.W.4. We cannot exclude the possibility of the first accused having given two

inconsistent versions, one to the doctor and another to the Sub-Magistrate because neither of them was true and the truth Was that the injury had

been caused by a blow With a lathi.

Further if the deceased was armed! with an aruval and aimed it at the first accused the probabilities are that he would have succeeded in

inflicting more serious injuries on the first accused than the single simple injury which Was found, on his head and he Would not have allowed

himself to be worsted by the first accused. Altogether, I am satisfied that the case of the prosecution is true and that the sequence of events of the

occurrence was as summarised already. The first accused would clearly be liable for murder and u/s 302 of the Indian Penal Code, on the first

charge for the two stabs which he inflicted on Arunachalam (injuries Nos. 3 and 4 in the post-mortem certificate). Similarly on the third charge the

first accused would clearly be guilty u/s 323 of the Indian Penal Code, for the simple hurt which he caused to P.W. 1 by beating with a lathi

(injuries Nos. 1 and 4 in the wound certificate Exhibit P-4). Similarly on the fourth charge the second accused would be guilty u/s 324 of the Indian

Penal Code, for causing simple hurt to P.W. 1 with an aruval (injuries Nos. 2 and 3 in the wound certificate Exhibit P-4). There remains the

second charge u/s 302 read with Section 34 of the Indian Penal Code, against accused 2 and 3. It reads:

That you accused 2 and 3 at the same time and place and in the course of the same transaction in furtherance of the common intention you have

formed along with accused 1 in causing the death of Arunachalam Pillai you accused 2 and 3 caused injuries to the said Arunachalam Pillai by you

accused 2 cutting him with an aruval and you accused 3 by stabbing him with a pen-knife when accused 1 stabbed him with a pen-knife (as

mentioned in charge 1 supra) in furtherance of the said common intention and you thereby committed an offence punishable u/s 302 read with

Section 34 of the Indian Penal Code, and within my cognizance.

On this charge the second accused would certainly be guilty u/s 324 of the Indian Penal Code for his individual act of causing an incised injury

(No. 1 in the post mortem certificate) on the head of Arunachalam Pillai with an aruval. Similarly the third accused would certainly be guilty u/s 324

of the Indian Penal Code, for the simple injury which he caused on the back of Arunachalam with a pen-knife (injury No. 2 in the post mortem

certificate). But the all-important question is whether accused 2 and 3 or either of them can be convicted u/s 302 read with Section 34 of the

Indian Penal Code. On this question a number of decisions have been cited before us on either side of the line in some of which Section 34 has

been held to apply and in some others it has been held not to apply. But it is unnecessary to refer to them in detail because in the last resort the

answer to the question must depend upon the facts and circumstances of this particular case. One thing however is clear that since it is the

prosecution who wants the Court to convict Accused 2 and 3 for the offence of murder itself by invoking Section 34 of the Indian Penal Code, it is

for the prosecution to prove the common intention beyond reasonable doubt and it is more so particularly where there is no direct evidence of the

common intention it is only a matter of inference from the circumstances. Examining the evidence from this point of view I feel that it cannot be said

with reasonable certainty that accused 2 and 4 had necessarily a common intention with the first accused to murder Arunachalam Pillai. The most

important evidence on this question must be the actual manner of the attack. It is necessary to recall the exact sequence of events. P.W. 12 was

going in front. Behind him P.W. 1 was going, and behind him Arunachalam was going. Accused 1, 2 and 3 were waiting about twenty feet north of

them. The first accused had a lathi in his right hand and a bichuva (M.O. 1) in the right side of his Waist. The second accused had an aruval, and

the third accused had a pen-knife. First accused dealt two blows on P. W. 1 with the lathi, one on his head and the other on his left flank.

Arunachalam intervened. Thereupon, the first accused. gave a blow on the head of Arunachalam with the lathi. Arunachalam wiested the lathi from

the first accused and gave a blow with it on the head of the first accused. The lathi broke into two pieces M.Os.'' 2 and 7.

The second accused gave a cut on the head of Arunachalam with his aruval P.W. 1 prevented it. The second accused gave cuts to P.W. 1 on

his head and'' right palm. The first accused stabbed Arunachalam on the right side of his chest and the left side of his chest with M.O. 1. Upon

receiving the stabs Arunachalam ran eight to ten yards; southwards, crying. ''''He has stabbed,"" and then fell down face downwards. P.W. 1 also

ran south. His dhoti (M.O.3) got stuck up in the thorns, discarding it, he ran south, clad in his towel. At that time, the third accused inflicted a stab

on the back of Arunachalam with a penknife. The accused then ran away north-west with their weapons.

The question for determination is whether on the above evidence it can be-said with certainly that accused 2 and 3-had the common intention

to murder Arunachalam. It maybe noted that it was P.W. 1 who was attacked first and not Arunachalam and even then the first accused gave a

blow only with a lathi, which was not comparatively a deadly weapon. It was only when Arunachalam intervened that the first accused, attacked

Arunachalam, and even then, he only gave a blow with his lathi on the head of Arunachalam. He did not use the knife on Arunachalam immediately.

Further, the second accused chose to attack Arunachalam only after Arunachalam had given a blow on the head of the first accused with the

lathi which he had Wrested from the first accused. The second accused did not choose to attack Arunachalam earlier. Moreover, the second

accused caused only a simple injury to Arunachalam. If he had any intention kill to Arunachalam. he could easily have caused more serious and

deadly cuts himself even. at that stage. Instead, the second accused turned his attention to P.W. 1. I was only after this that the first accused

inflicted fatal stabs on. Arunachalam. It is true that the third accused inflicted a stab even after Arunachalam had fallen -down, but that Was again a

simple injury.

If accused 2 and 3 had any common intention to murder Arunachalam, they could have inflicted more serious injuries on Arunachalam who

was absolutely at their mercy.

Further, there was no particular reason for murdering Arunachalam and allowing P.W 1 to escape. The evidence of P.Ws. 1, 3 and 6 shows

that it was only with P.W. 1 that accused 1, 2 and 3 quarrelled on the preceding night 29th July, 1972 saying that he had issued a lawyer''s notice

claiming damages and that they would not leave without cutting him. Arunachalam himself was (sic) the man at the spot and was employed in

Tuticorin. It is true that P.W. 5 says that he issued the notice (Exhibit P-5) on instructions from P.W. 3 and her husband, Arunachalam. But the

notice was dated 15th April, 1972 and for over three months, the accused did not choose to cause any harm to Arunachalam. It is a fair inference

in favour of the prosecution that after the second accused''s visit to the village on short leave, the accused raised up the matter. But then, it was to

P.W. 1 they went on the night of 28th July, 1972. P.W. 5 says that after his intervention the accused went ;away peacefully. No hurt was caused

to P.W. 1 or to P.W. 3 on the night of 28th July, 1972. If we were to assume that accused 1, 2 and 3 had a common intention to murder

Arunachalam, we must further assume logically that they had a common intention to murder P.W. 1 as Well. yet they allowed P.W. 1 to escape. It

should not have been a difficult matter for them to prevent P.W. 1 from escaping and to murder him. All these circumstances together suggest that

they had been waiting there only to cause whatever hurt each could to P.W. 1, and to Arunachalam, if he intervened, and that the murder was

unexpected. The evidence is quite consistent with this view. Even if We were to assume for the sake of argument, and argument alone, that two

views are possible, the view more favourable to the accused should be taken; since the burden of proof is on the prosecution who wants to fasten

the liability for murder on accused 2 and 3 vicariously. It may be noted that even the first accused used the knife (M.O. 1) only after Arunachalam

had beaten him on the head with the lathi. The first accused was evidently provoked by that act of Arunachalam and it was on that provocation that

he inflicted the stabs. He does not seem to have had any premeditated intention himself to stab Arunachalam. There is no evidence of any prior

concert among the three accused that they should murder Arunachalam. We cannot exclude the possibility of there not having been any specific

talk among themselves, and the common intention being only matter of inference from the evidence. If we are asked to infer that, the material must

be strong enough. It is quite probable that the third accused, after the remark of the deceased to him as the bus stop, informed his father and

brother, and. that Was how they came to be waiting by the side of the footpath expecting P.W. 1 and the deceased to come along that way. But,

merely from that circumstance, we cannot jump to the conclusion that they had a common intention to murder Arunachalam. We must take into

account the manner of the occurrence as I have done above. It may also be noted that, though according to the evidence of P.W. 1, the third

accused, when he left the bus stop, uttered a threat ""you come to the village. We shall commit murder"", that important averment is not spoken to

by P.W. 2, nor does it find place in Exhibit P-1, which is otherwise very detailed. It is, obviously an exaggeration on the part of P.W. 1, and it is

not true.

It may be noted that even the learned Sessions Judge, who says in paragraph 27 of his judgment that the three accused had the common

intention of causing the death of Arunachalam, observes in paragraph 28 as follows:

Regarding the sentences, it is to be stated that accused 1 to 3 do not deserve the extreme penalty provided by law for the offence of murder since

accused 1 caused injury Nos. 3 and 4, detailed in Exhibit P-2. to the deceased, and accused 2 and 3 caused injury Nos. 1 and 2 detailed in

Exhibit P-2 to the deceased, after the deceased beat on the head of accused 1 with M.O. 2 which was snatched by him from the hand of accused

1 after accused beat on the head of the deceased with M.O. 2. In the circumstances I think that the ends of justice will be met if accused 1 is

sentenced to imprisonment for life for the offence under 302, Indian Penal Code, and accused 2 and 3 are sentenced to imprisonment for life u/s

3C2, read with Section 34, Indian Penal Code.

The words underlined by me for the purpose show that even the learned Sessions Judge felt that it was not a premeditated murder and that the

first accused inflicted the fatal injuries only because Arunachalam gave a blow on the head of the first accused with M.O. 2 and that was the reason

why accused 2 and 3 also caused injuries to Arunachalam, and they Were simple injuries. The reason which the learned Sessions Judge has given

in paragraph 28 of his judgment for awarding the lesser sentence should have logically led him to conclude that there was no premeditated intention

to murder Arunachalam and that no common intention to murder Arunachalam was developed at the spot, and, in my opinion the evidence does

not warrant such an inference of common intention developing at the spot.

My main endeavour in the above discussion has been to show that no common intention to murder Arunachalam has been made out, and in the

course of the discussion, I have proceeded on the view that, though the accused had gathered together and were Waiting, they had no specific

common intention and that each merely wanted to inflict whatever injury he could. But I am conscious that from the circumstances that the were

waiting together with some weapons, it is possible to infer that they had a common intention to cause some hurt. The only question is what is the

extent of that hurt ? If the common intention was only to cause simple hurt, it would only be an offence u/s 324, read with Section 34 of the Indian

Penal Code, and for practical purposes, it would not make any difference, if accused 2 and 3 were convicted u/s 324 read with Section 34 instead

of their being convicted specifically u/s 324. I have considered the question whether it is possible to infer that the common intention was to cause

grievous hurt, i.e., Section 326 read with Section 34. Here again, the difficulty which I find is that if we were to hold that there was a common

intention to cause grievous hurt to Arunachalam we must logically postulate that there Was a common intention to cause grievous hurt to P.W. 1

also. But actually, only simple hurt Was caused to P.W. 1. Hence it is not possible to hold that in the case of Arunachalam the common intention

extended to causing grievous hurt.

Thiru Kulandaivel, arguing for the learned Public Prosecutor, strongly relied on Exhibit P-14 as disclosing the intention of the second accused

to murder Arunachalam. I think, however, that this is a far -fetched inference from Exhibit P-14. In Exhibit P-14, the wish of the second accused

to cause pregnancy to P.W. 3 merely discloses very bad taste and ill-feeling against P.W. 3, but would not be sufficient to show that he intended to

murder Arunachalam. If that Was his intention, he could easily have caused fatal injuries himself to Arunachalam with the aruval when Arunachalam

was at his mercy.

P.W. 3 no doubt says in chief examination that after she issued the lawyer''s notice, the first accused was threatening. ""Let my son (second

accused) come. I shall exterminate your family, root and branch."" The actual sequence of events which resulted in the death of Arunachalam does

not warrant the view that even the first accused had any premeditated intention to kill Arunachalam, and certainly, the evidence is not sufficient to-

show that accused 2 and 3 shared any common intention with the first accused.

The decisions cited by Thiru Vanamamalai for his contention that Section 34 of the Indian Penal Code, cannot apply are these : AIR 1945 118

(Privy Council) where is was observed:

In their Lordships'' view, 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.

Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, : where the above observations were quoted with approval, and it was further

observed:

But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of

case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to

determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert or proof of circumstances which

necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, the incriminating facts must be incompatible with the

innocence of the accused and incapable of explanation on any other hypothesis.

Unreported judgment of the Supreme Court in Amrik Singh v. Stale of Punjab C.A. No. 62 of 1969 dated 17-12-1971, Devi Lal and Another

Vs. The State of Rajasthan, , Shri Kishan and Others Vs. State of U.P., , where the convictions u/s 302 read with Section 34 of the Indian Penal

Code were altered to Section 325, read with Section 34; Satrughan Patar v. Emperor 50 I.C. 337, Fateh Khan v. Emperor AIR 1930 Lah. 950.

On behalf of the State, the following decisions were cited Barendra Kumar v. Emperor , Karnail Singh and Another Vs. The State of Punjab, ,

Mathurala Adi Reddy Vs. The State of Hyderabad, , Wazir Singh Vs. State of Punjab, , Ram Chandra and Another Vs. State of Uttar Pradesh, ,

where the charge of murder was held not proved, but Section 34 was applied for the offence of kidnapping and extortion under Sections 364 and

386 of the Indian Penal Code; Bharwad Mepa Dana and Another Vs. The State of Bombay, ; Peria-swami v. State (1960) M.W.N. 130, State

of Rajasthan Vs. Kartar Singh, , Hethubha alias Jithuba Madhuba and Others Vs. The State of Gujarat, ; Thangaraj, In re (1972) L.W. 170; Ram

Tahal v. State of. Uttar Pradesh (1973) L.W. 110.

The learned Public Prosecutor, with fairness, cited also other decisions, wherein the charge of murder u/s 302 read with Section 34 was held

not established, for example; Chikkarange Gowda and Others Vs. State of Mysore, , Sheoram Singh and Another Vs. The State of U.P., .

Reference was also made to Dalip Singh and Others Vs. State of Punjab, , Afrahim Sheikh and Others Vs. State of West Bengal, where it was

held that Section 34 could be applied to an offence under the second part of Section 304 involving only knowledge but not intention. My learned

brother also referred to a decision of this Court in Nagappan and Ors. v. The State of Tamil Nadu R.T. No. 85 of 1969, and the judgment of the

Supreme Court on appeal therefrom in C.A. No. 78 of 1971.

In the result, I confirm the conviction of the first accused of the murder of Arunachalam u/s 302 of the Indian Penal Code on the first charge

and the sentence of imprisonment for life. I also confirm the conviction of the first accused u/s 323 of the Indian Penal Code, on the third charge

and the sentence of rigorous imprisonment for one year, which will run concurrently with the other sentence. I set aside the conviction of the

second accused u/s 302 read with Section 34 of the Indian Penal Code, on the second charge, and convict him, instead, u/s 324 of the Indian

Penal Code, and sentence him to undergo rigorous imprisonment for three years. I confirm his conviction u/s 324 of the Indian Penal Code, on the

fourth charge, and the sentence of rigorus imprisonment for two years. This sentence will run after the sentence on the second charge is over; in

other words, the sentence will run consecutively. I set aside the conviction of the third accused on the second charge u/s 302 read with Section 34

of the Indian Penal Code and convict him instead, u/s 324 of the Indian Penal Code, and sentence him to undergo rigorous imprisonment for three

years.

K.N. Mudaliyar, J.

The three appellants (A-1 to A-3) appeal against their convictions for offences u/s 302, Indian Penal Code (A-1 only), 302 read with Section

34, Indian Penal Code (A-2 and A-3 only), Section 323 Indian Penal Code (A-1 only) and 324, Indian Penal Code (A-2 only) and the various

sentences imposed on them.

(The discussion of facts is omitted--]

In his well reasoned judgment, the learned Trial Judge has given findings which I shall describe here below. The learned Trial Judge believed

the evidence of P.Ws. 1,3 and 6 regarding the motives for the occurrence. The learned Trial Judge acted on the admission of A-1 and A-3 in

regard to the receipt of Exhibit P-5 sent by and testified by P.W. 5 on behalf of P.W. 3 and her husband deceased Arunachalam Pillai. The

learned Trial Judge noticed that A-2 has admitted that he sent the inland letter Exhibit P-14 dated 17th July, 1972 to A-3 and his mother, and that

in Exhibit P-14, A-2 has written to the effect that he would wipe out the tears of his mother and teach a proper lesson to P.W 3 after his arrival in

the village

[The discussions of facts and circumstances omitted.]

The learned Trial Judge did not choose to accept the contents of Exhibit D-2 in view of his unhesitating acceptance of the testimony of P.Ws. 1

and 2. The learned Trial Judge found in effect that P.W. 1 and the deceased were not the aggressors and that A-1 had no right of self-defence

when he stabbed the deceased with a knife. The learned Trial Judge further found that A-1 to A-3 were lying in wait at the place marked A in

Exhibit P-25 and that all the three accused were armed with lethal weapons. After describing the various overt acts of A-1 to A-3, the learned

Trial Judge found that P.W. 1 and the deceased were not the aggressors, but on the contrary A-1 to A-3, Were the aggressors, and it was A-1

who attacked P.W. 1 and the deceased first with M.O. 2. In paragraph 25 of his judgment the learned Trial Judge rejected the plea of A-1

regarding the right of self-defence. The learned Trial Judge further considered the pleas of A-1 and A-3 in particular and also the plea of A-1 and

concluded that the deceased did not attack A-1 suddenly with an aruval. On the contrary he found that A-1 to A-3 attacked the deceased and

caused all the four injuries as described in Exhibit P-2.

The learned Counsel for the appellants argued that there was no meeting or confrontation between P.W. 1 and his son-in-law Arunachalam

Pillai (deceased) and A-3 and that the wordy altercation between them is a mere introduction of a false thing by P.W. 1 and that there was no

need for them to stay on talking at the junction bus stop for about 45 minutes. Remembering the anterior history of enmity between P.Ws. 1 and 3

and P.W. 3''s husband and the members of the family of A-1, A-2 and A-3 and the two incidents in which A-2 abused P.W. 3 with the result that

she left for her father''s home and the later incident in which A-1 to A-3 went to the house of P.W. 1 aggressively and started a quarrel at about

10-30 p.m. on the night of 28th July, 1972, there is little wonder that A-3 should have been out for watching the movements of P.W. 1 and his

son-in-law, Arunachalam Pillai who were returning from Tuticorin. Probably A-3 wanted to make sure of their victim, for A-1 to A-3 must have

arrived already and lying in wait at point ''A'' in Exhibit P-25 for their quarry. There is nothing extraordinary for the rural people like P.Ws. 1, 2

and Perumal Pillai (not examined) and Arunachalam Pillai (deceased) to have hibernated at the bus stop for some time before they started walking

to Pettaloorani, particularly in the wake of the unseemly reply probably given in a bellicose mood by A-3 on his being questioned by Arunachalam

Pillai (deceased). The learned Counsel further argued that all the three accused would not be armed with the weapons which are now ascribed to

them if they Were lying in wait for their victim. I am unable to see any force in this argument. The weapons with which all the three accused were

armed are dangerous weapons which could be used with lethal and mortal effect on the victims. If only P.W. 2 did not run for safety even leaving

behind his dhothi M.O. 3, he would have also been cut to death. Fortunately, he escaped when his son-in-law fell a victim to the murderous attack

of the three accused.

[The discussion of facts and circumstances omitted.]

The only serious argument, in my view submitted by the learned Counsel is that there was no common intention to murder the deceased

Arunachalam Pillai on the part of A-2 and A- 3, because Arunachalam Pillai (deceased) was not necessarily the target of the attack by A-1 to A-

After all, Arunachalam Pillai was living in Tuticorin. Therefore, there was a preconcert on the part of A-1 to A-3 in respect of the attack of

P.W. 1 only, and not against Arunachalam Pillai (deceased). The sequence of the murderous assault Would not support the preconcert against

Arunachalam Pillai (deceased). Therefore, common intention cannot be attributed to A-2 and A-3. In Exhibit P-1, only threat by A-3 is averred

and it may be that the common intention on the part of A-2 and A-3 is the cause of grievous injury. I am afraid, this argument proceeds on the

basic misapprehension of the evidence that P.W. 1 was responsible for the issue of Exhibit P-5. A perusal of the testimoney of P.W. 5 would

show that on 15th April, 1972 on instructions from P.W. 3 and her Husband P.W. 5 (an Advocate) issued the notice to A-1, his wife Pechi

Ammal, her son A-3, and his daughter Annalakshmi Ammal. P.W. 5 was not cross-examined at all. Therefore, the assumption that P.W. 1 was

responsible for the issue of Exhibit P-5 falls to the ground. It referred to the notice Ex. P-5 and the consequential animosity arising from the claim

for damages is only between the family members of the accused and Arunachalam Pillai (deceased) and his wife P.W. 1. To my mind, A-1 and A-

2 and A-3 were for the blood of Arunachalam Pillai (deceased) or even may be for the blood of his wife P.W. 3''. They even went and created

gallata in the house of P.W. 1 wherein P.W. 3 sought shelter on the night of 28th July, 1972 after she was humiliated by the filthy abuse from A-2.

That only shews that they were always tracking her foot-steps or her husband''s. Getting a scent of the move by P.W. 1 to get his son-in-law to the

village of Pottaloorani from Tuticorin A-3 was making sure of their intended victim and he must have given. the material information of the arrival of

Arunachalam Pillai (deceased) to A-1 and A-2 at point ''A'' in Exhibit P-25. I have no doubt in my mind that undoubtedly the target was only the

murdered victim Arunachalam Pillai (deceased). The second accused admitted in his statutory explanation (when questioned u/s 342, Criminal

Procedure Code) that the contents of Exhibit P-14 are in his handwriting--not merely that he admitted having signed the letter, Exhibit P-14. It is

extracted here below for the purpose of gathering his murderous intention against P.W. 3 and her husband even as early as 17th February, 1972,

barely within 12 days :--his simmering indignation would not die down immediately on his arrival in the village.

[Discussion of facts omitted.]

The author of Exhibit P-14 (A-2) must have been capable of uttering the most slanderous and unutterable language particularly when he saw

P.W. 3 in the village next to his house. A-3 being a young and inflammable youth of '' 29'' years must have seen his revengeful father armed with

two weapons and certainly when he was armed with a pen knife his intention was to murder Arunachalam Pillai (deceased). P.W. 1 cannot be the

target at all, for, he did nothing that would rouse the enmity or animosity of A-1 to A-3 against P.W. 1. The entile recorded evidence would show

that P.W. 1 gave shelter to his daughter P.W. 3 only during the night of 28th July, 1972. The entire quarrel resulting from the sullage water flowing

in front of the house of P.W. 3 and the consequential assault on P.W. 3 and resultant complaint ending in the sentence of fine : vide Exhibit P-17,

and the further claim for damages by P.W. 3 and her husband through Exhibit P-5 as testified by P.W. 5 Would only show that Arunachalam Pillai

(deceased) alone was the principal target for their attack. I am unable to see any other way of concluding from the sequence of attack that

Arunachalam Pillai and Arunachalam Pillai alone was the only target for the murderous assault committed by A-1 to A-3. There has been a catena

of cases cited by the learned Public Prosecutor and the learned Counsel for the appellants, and it is unnecessary for me to extract the relevant

portions from the various decisions cited from the bar.

The following decisions have been cited by the learned Counsel for the appellants and the learned Public Prosecutor : Satrughan Patar v.

Emperor (1919) 50 I.C. 377; Barendra Kumar v. Emperor , Fakkkhan v. Emperor AIR 1950 Lah. 950; AIR 1945 118 (Privy Council) . In Re:

Nachimuthu Goundan and Others, , Kripal and Others Vs. State of Uttar Pradesh, ; Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, ;

M. A. Reddy v. State of Hyderabad AIR 1956 S.C. 117, Chikkarange Gowda and Others Vs. State of Mysore, ; Wazir Singh Vs. State of

Punjab, ; Ram Chandra and Another Vs. State of Uttar Pradesh, ; Bharwad Mepa Dana and Another Vs. The State of Bombay, ; Periaswami v.

State 1960 M.W.N. 130; Dalip Singh and Others Vs. State of Punjab, ; Karnail Singh and Anr. v. State of Punjab 1954 S.C.J. 269 : AIR 1954

S.C. 204, Afrahim Sheikh and Others Vs. State of West Bengal, ; Amriksingh and Ors. v. State of Punjab C.A. No. 62 of 1969 (S.C.) :

Hethubha alias Jithuba Madhuba and Others Vs. The State of Gujarat, ; Gaya Prasad Ramlal Vs. State of Maharashtra, ; Devi Lal and Another

Vs. The State of Rajasthan, ; Ram Lal Vs. Delhi Administration, Karivadai alias Periaiwamy, In re (1972) L.W. S.N. 14; State by Public

Prosecutor and Nagammal Vs. Karuppanna Thevar and Others, ; Ram Tahal and Others Vs. The State of U.P., ; Shri Kishan and Others Vs.

State of U.P., ; Sheoram Singh and Another Vs. The State of U.P., ; Thangaraj, In re (1972) L.W. 170.

I would like to bear in mind the principles enunciated in some of the leading decisions cited before the Court. I now make the relevant

gleanings 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 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

the re 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 had 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 of 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 mot

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 of 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 Kils, 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 whole 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 himself alone, is precisely not the act 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, absurd it is and absurd it must remain. ""Where two men have done a man to death"", said the learned Counsel (Record 127), your Lordships

will not inquire into the individual effect; of each blow, but the point I am insisting or 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 reality 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 than 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 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 older 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 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 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 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 as ""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 alliterative to one punishment for one offence whether the persons engaged of

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 Beng. L.R. 359, and then, the doing of 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. AIR 1945 118 (Privy Council) that Section 34, Indian Penal Code lays down a principle of joint

liability in the doing of a criminal act. The section does not say ""the common intention 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 prearranged 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 prearranged 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 contents is often very thin, 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 Indian Penal Code as expounded in the decision in AIR 1945 118 (Privy Council) two learned

Judges of this Court held. In Re: Nachimuthu Goundan and Others, , that the decision of the Privy Council in AIR 1945 118 (Privy Council) is

warrant only for the prosecution that it is not enough to attract the provisions of Section 34 of the Indian 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 that it is necessary before the section could come

into play that there must be 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 inferences to be drawn from the proved facts and not on any direct evidence about a pre-conceived

scheme or plan which may not be available at all.

Their Lordships of the Supreme Court in Hethubha alias Jithuba Madhuba and Others Vs. The State of Gujarat, , observed as follows :--�

This Court in the case Shankarlal Kachrabhai and Others Vs. State of Gujarat, said that a mistake by one of the accused as to killing X in place of

r would not displace the common intention if the-evidence showed the concerted action in furtherance of prearranged plan.. The dominant feature

of Section 34 is the element of participation in action. The participation need not in all. cases be by physical presence. Common intention implies

acting in concert. There is a pie-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 Indian Penal Code. The existence of common intention is to be basic

for liability. That is why the prior concert and the prearranged plan is the foundation of a 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 accuser! to commit offences. All

the accused were lying in wait to attack the party of Amarji, Vaghji, Pabhaji and Panchanji. Amarji was in the forefront. The accused attracked

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 prearranged plan and participation of all the accused in furtherance of common intention of them all without

each of them having intended to do the particular act is 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 Thanvaroj, In re (1972) L.W. 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, Indian Penal

Code, 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, Indian Penal

Code, 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, Indian Penal Code 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 Afrahim Sheikh and Others Vs. State of West Bengal, , Thus it is clear that in order

to invoke Section 34, Indian Penal Code, 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, each of the four accused Was 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, Indian Penal Code. The

First Earl of Birkenhead, Lord Chancellor of England 1919--1922 in This ""Famous Trials"" (published by Hutchinson and Company 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 any house-holder who suddenly disturbs him, then 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

had no intention to bring about.

Mrs. Thompson therefore was not guilty unless Bywaters 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 principles to the facts of the present, case, I now hold that the following facts : that A-1 to A-3 are the members of the same

family, that A-1 is the father of A-2 and A-3, that all the three accused were inimical towards the deceased Arunachalam Pillai and his wife, P.W.

3, that there was a quarrel ending in P.W.3 being beaten by A-1, A-3 and the wife and daughter of A-1, that A-1, A-3 and the wife and daughter

of A-1 were sentenced to pay fine, that P.W. 3 and her husband caused the issue of Exhibit P-5 notice as testified by P.W. 5 to A-1, A-3 and the

wife and the daughter A-1, that enraged by the representations received from his home A-2 should have ventilated his outbursts of fury and

indignation against P.W. 3 and her husband in Exhibit P-14 dated 7th July, 1972, that A-2 abused P.W. 3 during the day of 28th July, 1972 in

such a filthy language that she got frightened and went away to her father''s home for safety on the night of 28th July, 1972, that A-3 should have

seen and encountered Arunachalam and his father-in-law P.W. 1 at the junction bus-stop at about 2-30 p.m. on 29th July, 1972, that A-1 to A-3

were lying in wait at point ''A'' in Exhibit P-25 that in the course of the attack on Arunachalam Pillai (deceased) A-1 caused the two fatal injuries,

that even after he fell down at point ''B'' in Exhibit P-25, A-3 should have gone and stabbed the felled, prostrate, injured and dying Arunachalam

Pillai (deceased), that A-2 armed with aruval should have cut the victim with the background of vindictive revenge against Arunachalam Pillai

(deceased) and his wife, that all the three accused should have left the scene towards northwards at one and the same time, would impel me to

hold that A-2 and A-3 were actuated by the common intention to murder Arunachalam Pillai (deceased) within the meaning of Section 34, Indian

Penal Code read with Section 302, Indian Penal Code. The learned Trial Judge observed as follows:

Inasmuchas A-2 caused injury No. 1 on the head of the deceased by cutting with an aruval and as A-3 caused injury No. 2 on the back of the

deceased by stabbing with a penknife at the time of occurrence, as spoken to by P.Ws. 1 and 2, it can be said that A-2 and A-3 had common

intention along with A-1 to cause the death to the deceased and A-1 to-A-3 had prior concert to do away with the deceased. If A-1 to A-3 had

no prior concert, A-2 would not have caused injury No. 1 with aruval and A-3 would not have caused injury No. 2 with a pen-knife in addition to

fatal injuries caused by A-1.

The reasoning of the learned Trial Judge is irreproachable and I affirm his finding in toto in regard to the common intention that actuated A-2 and

A-3 to murder Arunachalam Pillai. A-1 pleaded that he was cutting thorns for the purpose of putting up fence in his garden and that Arunachalam

Pillai (deceased) suddenly gave a cut forcibly on his head with an aruval. If he Was really cutting thorns there roust have been found at the scene of

crime some thorns cut and gathered by him. It was not even suggested to P.W. 13 (who prepared the observation mahazar Exhibit P-10) that

there were thorns cut by A-1 either bundled or not bundled in or near about the scene of crime. It is impossible for me to imagine that just before

he started cuttings single thorn, just at that crucial point of time Arunachalam Pillai (deceased) Was so aggressive as to cut A-l. The pica of A-1

does not account for. the injuries of P.W. 1 Who is eye-witness to the occurrence, corroborated by P.W. 2. Apart from the injuries sustained by

P.W. 1, there is the recovery of M.O. 3, the dhoti caught, in the thorny bush when he ran for his life, after receiving the injuries from A-1 and A-2.

I repel the circumstances pleaded by A-1 for invoking his right u/s 100, Indian Penal Code. I accept the evidence of P.Ws. 1 and 2 in regard to

the overt acts attributed against A-1 inflicting injury numbers 3 and 4 on Arunachalam Pillai (deceased) which are proved to be fatal individually.

I confirm the conviction of A-1 for an offence punishable u/s 302, Indian Penal Code. Regarding the question of sentence, there are very

strong grounds for awarding death sentence against A-l. All the circumstances culminating in the murder of Arunachalam Pillai (deceased) furnish

strong reasons for awarding death sentence against A-l. But unfortunately the State or learned Public Prosecutor has not filed a revision petition for

the enhancement of sentence against A-l. Had the State filed the criminal revision petition for the enhancement of sentence, I would have had no

hesitation in enhancing the sentence of imprisonment for life to one of death. In these circumstances I cannot but help confirming the sentence of

imprisonment for life.

I have already found that A-2 and A-2 Were actuated by common intention along with their own father A-1 to commit the murder of

Arunachalam Pillai (deceased). Therefore, while I have no hesitation in affirming the reasoning and finding of the learned Trial Judge in regard to the

guilt of A-2 and A-3 for the offence punishable u/s 302, Indian Penal Code, read with Section 34, Indian Penal Code, I confirm their conviction

for offence punishable u/s 302 read with Section 34, Indian Penal Code, and the sentence of imprisonment for life awarded against him.

I also confirm the conviction of A-1 for an offence u/s 323, Indian Penal Code, under charge No. Ill and also the sentence of one year rigorous

imprisonment. I also confirm the conviction of A-2 for an offence u/s 324, Indian Penal Code, under charge No. IV and the sentence of two years

rigorous imprisonment. I also direct that the sentence of imprisonment imposed on A-1 and A-2 under charges 3 and 4 to run concurrently with the

sentence imposed on A-1 under charge No. 1 and A-2 under charge No. 2.

The Criminal Appeal is dismissed.

Venkataraman, J.

In view of the difference of opinion between us, this case will be laid before another Judge u/s 392 of the Criminal Procedure Code.

K.N. Mudaliyar, J.

While agreeing with my learned brother, I would suggest the setting up of a convention in view of the proviso to Section 392, Criminal

Procedure Code, that in an appeal when two Judges are divided in their opinion the relevant appeal may be re-heard and decided by a larger

Bench of Judges. I would commend the example of the British Courts where three Judges sit in the Court of Appeal (Criminal Division) hearing

any appeal from the Judgment of a Single Judge of the High Court.

ORDER

P.S. Kailasam, J.

On a difference of opinion between two learned Judges of this Court, the appeal has been placed before a Full Bench on the orders of the

learned Chief Justice.

At the outset, the learned Counsel for the appellants as well as the Public Prosecutor expressed a doubt as to the-legality of the posting of the

appeal before the Full Bench. Mr. Vanamamalai, the learned Counsel for the appellants pointed out that under the amended Section 392 of the

Criminal Procedure-Code, proviso to the section enables one of the Judges constituting the Bench to. require the appeal to be re-heard and

decided by a larger Bench of Judges. This proviso is applicable to cases that are heard under the new Code. The present appeal was pending at

the time when the new Code came into force, and, therefore, according to Section 484 of the Criminal Procedure Code, 1973, the appeal shall be

disposed of in accordance with the provisions of the Criminal; Procedure Code, 1898, which was in force immediately before the commencement

of the new Code. This would imply that Section 429 of the Criminal Procedure Code, 1898, is applicable. In Section 429 of the Criminal

Procedure Code, 1898, there is no proviso, which would enable one of the Judges to require the re-hearing of the appeal before a larger Bench of

Judges. Further, the learned Counsel also referred us to the wording of the opinion of the Judge, who desired the posting of the matter before a

Full Bench that he agreed with the referring order of Venkataraman, J., wherein he has directed the matter to be placed before the third Judge u/s

392 of the Criminal Procedure Code. This, according to the learned Counsel for the appellants, does not clearly indicate the desire of K. N.

Mudaliyar, J., to have the matter placed before a Full Bench. It is unnecessary for us to go into the question raised, for the learned Chief (Justice,

after consideration of the entire matter has directed the appeal to be heard by a Full Bench. The validity of the order of the learned Chief Justice

cannot be questioned, for, under Rule 6 of the Appellate Side Rules, High Court, Madras, notwithstanding anything contained in the Rules, the

Chief Justice may direct that any application, petition, suit, appeal, or reference shall be heard by a Full Bench as defined in these rules. The order

of the learned Chief Justice puts an end to the doubts that are expressed at the bar. There could be no valid objection to the Full Bench dealing

with the appeal.

(Then the Full Bench heard the appeal on merits).

P.S. Kailasam, J.

Three accused, the father and his two sons were tried by the learned Sessions Judge of Tirunelveli for the offence of causing the death of one

Arunachalam Pillai on the 29th of July, l972 at about 3 P.M. at Pattalooram village and found guilty of the offences under Sections 302 and 323,

Indian Penal Code (against A-l), Sections 302 read with Section 34, and Section 324, Indian Penal Code (against A-2) and Section 302 read

with Section 34, Indian Penal Code (against A-3) and sentenced to imprisonment for life. There were four charges framed against the accused.

The first charge against the first accused was for an offence u/s 302, the second against A-2 and A-3 for an offence u/s 302 read with Section 34,

the third was against A-1 for an offence u/s 323, and the fourth was against A-2 for an offence u/s 324, Indian Penal Code, for causing simple hurt

with dangerous Weapon.

The case of the prosecution briefly is, that there was enmity between P.Ws. 1 to 3 and the deceased on the one side, and Accused 1 to 3 on

the other, due to some trouble over the draining of sullage water.

[His Lordship discussed the evidence and held.]

On a careful consideration of the entire evidence, we are not satisfied that A-2 and A-3 shared a common intention to cause the death of the

deceased. On the other hand, we agree that they took part in the attack and caused simple injuries with dangerous weapons to the deceased, as

well as P.W. 1, and they would be guilty of an offence u/s 324, Indian Penal Code for the, injuries they caused to the deceased. A-1 will be guilty

of an offence u/s 324, Indian Penal Code, for causing hurt to P.W. 1, and the sentence of 2 years rigorous imprisonment is confirmed. Regarding

the injuries caused to the deceased, A-2 and A-3 will be sentenced u/s 324, Indian Penal Code to rigorous imprisonment for three years. So far as

injury caused to P.W. 1 is concerned, the conviction of A-1 and A-2 under Sections 323 and 324 is confirmed.

In the result, we confirm the conviction u/s 302, Indian Penal Code, and the sentence of imprisonment for life imposed on A-1 conviction u/s

323, Indian Penal Code, and the sentence of rigorous imprisonment for one year is also confirmed, but the sentences to run concurrently.

Regarding A-2 and A-3 they are acquitted of the offence u/s 302, Indian Penal Code, read with Section 34, Indian Penal Code but instead, found

guilty u/s 324, Indian Penal Code, and they are sentenced to rigorous imprisonment for a period of three years. The sentences imposed on A-2 will

run concurrently.

With these modifications the Criminal Appeal is dismissed.