JUDGMENT
Shearer, J.
1. This is a reference made by the learned Sessions Judge of Shahabad under Section 374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed by him on two men, Hira Dubey and Shriram Pandey, who have been convicted of the murder of one Radha Pathak. Hira Dubey and Shriram Pandey have appealed against their convictions and sentences, and the appeal has been heard along with the reference. Radha Pathak died in consequence of an assault which was committed on him in the early morning of the 26th of April, 1951. Radha Pathak belonged to Kapasia, but resided in another village Nimia, where he had relations. In the early morning of the 26th of April, 1951, he left his house in Nimia intending to go to Kapasia. According to the prosecution, the two appellants followed and overtook him at a point close to the boundary of Nimia and assault-ed him with lathis. Blood was found by the Sub-Inspector at this point, and it is not suggested that it was not the venue of the occurrence. The post mortem shows that Radha Pathak was struck some six or seven, or possibly more, blows with lathis. One of the blows was on the head, and caused a fracture of the skull to which Radha Pathak succumbed the same day at the police station. When, however, he reached the police station, he was still in a position to give a fairly detailed account of the occurrence. The reason which he then gave for the appellants having attacked him was that about two months earlier he had given evidence for the prosecution, in a case instituted by one Mt. Lakhia, who was a Gareri, against five men, one of whom was a Gareri and the other four of whom were Brahmans. One of these Brahmans was the appellant Hira Dubey and another, Rambaran Pandey was a relation of the appellant Shriram Pandey. Hira Dubey ana Rambaran Pandey were convicted on the 3rd of February, 1951, but an appeal, which was pending when Radha Pathak was Killed, was preferred and was ultimately successful. In order to corroborate the version of the occurrence contained in the dying declaration of Badha pathak the prosecution relied on the evidence of three men, who claimed to have seen it. (Reviewing their evidence his Lordship continued) In any event, the dying declaration of Rada Pathak himself, and the evidence of Ramnath Mahto coupled with the existence of a motive on the part of the appellants, was sufficient to justify their conviction. The only Question of any difficulty that arises in the appeal is as to whether or not the learned Sessions Judge was correct in convicting both men of murder.
2. In a statute the singular is deemed to include the plural, and it is plain that the words at the beginning of Section 34 of the Penal Code “when a criminal act is done by several persons” mean, and can only mean, “when criminal acts are done by several persons”, or to put it more broadly, “when several persons engage in a criminal enterprise”. The acts may be different acts as when several men set out to burgle a house, and one of them keeps watch outside and the others enter the house, and one of the latter uses a fire arm and shoots one of the inmates, or they may be similar acts as where several men combine to assault another. In either case, in order that Section 34 may apply, it is incumbent on the prosecution to show, in the first place, the existence of a common purpose or design or enterprise. If this cannot be shown, each of the accused persons is liable only for what he himself actually did. (‘Mahbub Shah v. Emperor’, 26 Pat L T 229 (P C)). If, on the other hand, the prosecution succeed in showing the existence of a common purpose or design, then each of the accused persons is liable for any act done in pursuance of that common purpose or design. When the acts done are similar, as where a number of blows are struck with lathis, then each of them is liable for every one of the blows struck, and if in the event of every blow having been struck by one man, that man would have been guilty of murder, each of them is guilty of murder, it being immaterial whose blow it was (which?) was the direct and immediate cause of death. Now, even assuming for the moment that Mrs. Dharamshila Lall is correct in saying that the purpose of the appellants was to cause bodily injury to Radha Pathak, and not to kill him, nevertheless, it is clear that the fatal Wow was struck in furtherance of that purpose, and it is also, I think, clear that if there had been one assailant, and not two, the assailant would have been guilty of murder. Radha pathak was knocked down and after he was knocked down he was belaboured with lathis, one of which at least was a particularly formidable lathi. It seems to me impossible to say that if the assault had been committed by one man it would have been culpable homicide not amounting to murder and not murder. It is contended by Mrs. Lall that, in order to convict her clients of murder, it must be shown that each of them intended to kill Radha Pathak. Section 34 lays down a principle of joint liability for acts done by several persons in pursuance of a criminal design or enterprise, and the principle laid down in the section, as originally enacted, was the same principle as is recognised by the common law in England. Under that principle one of several persons who engages in a criminal enterprise or design may be liable for an act done by another which he himself never intended, and perhaps never contemplated; If, for instance, a number of men set out to burgle a house, and entrust one among their number with a fire-arm, impressing on him
that he is not to use it except under circumstances of compelling necessity, and if that man loses his head and shoots one of the inmates of the house,
it would be no defence on the part of his companions to assert that they had never intended him to use his weapon in the way he did. The point is, I think, well illustrated by the decision in ‘Queen v. Salmon Hancock and Salmon’, (1881) 14 Cox C C 494. In that case several members of a volunteer corps went out to practise shooting and put up their target in such a situation that a shot fired by one of them went wide and killed a boy. They were all convicted of manslaughter on the ground that each one of them was ‘answerable for the acts of the others, they all being engaged in one common pursuit.” under Section 34 as it stood originally it seems to me quite clear that each of the appellants would have been guilty of murder. In ‘the Queen v. Gora Chand Gope’, 5 W R Cr 45, a case decided in 1366, Peacock, C. J. observed :
“It is laid down that when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention.”
In that case the question that arose was whether certain persons who had been present when a fatal assault was committed but had not themselves taken any part in it were acting in concert with the actual assailants and whether the beating was in furtherance of the common design of all of them and His Lordship the Chief Justice, without deciding the point as the case was remanded, expressed the opinion that in certain circumstances such an inference might be justifiably drawn. The argument which has been put forward by Mrs. Dharamshila Lall assumes that the fatal blow on the head is, in this particular case, the criminal act referred to at the beginning of Section 34. That act, however, was not an act done by several persons. The act done by several persons was the totality of the blows struck or the beating itself. The only question that could arise under the section as originally enacted was whether or not this fatal blow was struck in pursuance of the purpose of both men, and as to this, there can, clearly, be only one answer. The words, “in furtherance of the common intention of all” were inserted in Section 34 in 1870, and as their Lordships of the Judicial Committee have pointed out in ‘Mahbub Shah’s case’, the words were inserted in order to clarify and not in order to modify the pre-existing law. The result of the amendment made in the section was, at the most, merely this, that if a doubt arose as to whether a particular act was done in pursuance of the common purpose or design, the onus was, in future, on the prosecution to show that it was so done and not on the defence to show that it was not so done. In ‘Mahbub Shah’s case’, after pointing out that Section 34 lays down a principle of joint liability in the doing of a criminal act Sir Madhavan Nair observed :
“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.”
Assuming that the common intention of the appellants was to administer a severe beating to Radha Pathak, it is clear that it was the existence of that intention which led to the fatal blow being struck, and that that blow was struck in furtherance of such intention. Mrs. Lall did not cite any authority in the course of her argument, but she
subsequently asked us to refer to the following decisions: ‘Emperor v. Mujjafar Sheikh’, AIR (28) 1941 Cal 106; ‘Emperor v. Narasingadu’, AIR (24) 1937 Mad 792; ‘In re : Basappa’, AIR (38) 1951 Mysore 1; ‘Emperor v. Mahabh’, 14 Cri L J 241; ‘Zahid Khan v. Emperor’, AIR (26) 1939 Oudh 49; and ‘Queen Empress v. Duma Baidya’, 19 Mad 483. With one exception these decisions were prior to the decision of their Lordships of the Judicial Committee in ‘Mahtaub Shah’s case’, and in ‘Basappa’s case’, AIR (38) 1951 Mysore 1, the facts were not similar to those with which we have to deal here, that being a case in which a murder was committed in the course of a burglary. The learned Government Advocate, on the other hand, referred us to a recent decision of the Allahabad High Court, ‘Nazir v. Emperor’, AIR (35) 1948 All 229, which is directly in point. I respectfully agree with the observations which were made by Raghu-bar Dayal, J., as to the practical difficulty in the way of being satisfied in a case in which several men armed with the same or similar weapons commit a fatal assault that, prior to setting out to commit the assault, they all decided and agreed that no blow likely to cause death should be struck. It appears to me, however, that in such a case speculation of that kind is quite unnecessary. What Section 34 of the Penal Code is aimed at is a criminal act done by several persons which, as I have already said, means each of the acts done by several persons in furtherance of their common intention. It is, I think, quite clear that an act may be done by one of several persons in furtherance of the common intention of them all without each one of them having intended to do the particular act in exactly the same way as an act may be done by one member of an unlawful assembly in prosecution of the common object which the other members of the unlawful assembly did not each intend to be done. In order to determine the common intention and to determine also whether a particular act was done in furtherance of that common intention regard must be had not solely to the particular act, but to all the acts that were done. If two or three of several men proceed to assault another man with their fists, and if suddenly one of the bystanders joins in the affray and pulls out a knife and stabs him fatally, it might well be said that the stabbing was not part of the criminal act in which all of them had joined, but was the individual act of the man who used the knife. Where, however, two men, each armed with lathis set out in pursuit of another and overtake and assault him, each of them striking him several blows, it seems to me quite impossible to argue that any particular blow was not struck in furtherance of the common intention. The appellants were, in my opinion, rightly convicted of murder. The reason presumably why the learned Sessions Judge imposed the extreme penalty of the law was that murderous assaults of this kind in Shahabad have, in recent years, become much too common. There is, however, evidence to show that this attack on Radha Pathak was not premeditated, and that the appellants would not have committed this crime at all unless another man had gone to them and suggested that they should take the advantage of Radha Pathak having gone out unaccompanied to administer a beating to him. I would, therefore, reject the reference and while affirming the conviction, would alter the sentence to one of transportation for life. Subject to this modification, I would dismiss the appeal.
Ahmad, J.
3. I agree.