Govlnda Menon, J.
1. These four appeals arise out of the Judgment of the Sessions Judge of Alleppcy in Sessions Case 9 of 1984. Criminal Appeal 155 of 1964 is by the first accused; Criminal Appeal 184 of 1964 is by the second accused; Criminal Appeal 174 of 1964 is by the third accused and Criminal Appeal 154 of 1984 is by the fourth accused. The charge against them was that in furtherance of their common intention to murder Mathen Chacko alias Chimian and to cause hurt to P. Ws. 1 and 2 these four accused attacked them on the Edathwa -- Thiruvalla public road in front of the Edathua telephone exchange office, that the second accused beat deceased Chiunan on his head with a lathi, that the first accused stabbed him, the third accused caused hurt to PwSection 1 and 2 by stabbing them with a knife and accused 2 and 4 beat Pws. 1 and 2 with lathies.
2. Accused 1 and 3 are Head Constables attached to the Edathua police station. Accused 2 and 4 are police constables of the same station. According to P. W. 4 Abraham on the evening of 8-3-64 he saw these four accused in a country boat in the thodu near Kalangara mukku. The boat had capsized and the accused were catching the boat and attempting, to get in. People had gathered and the accused were indulging in obscene words. Accused 5 and 4 then got on to the bank of the thodu and chased the people. After that they again got into the boat and proceeded south. P. W. 4 also went along the pathway on the bank of the thodu. After going for a short distance he found the accused chasing the people. Pw. 4 also stopped to see what it was about. Seeing him the third accused beat him. The fourth accused caught hold of him and pushed him and the first accused hit him on his stomach as a result of which he fell down into the thodu. He swam across to the other side and while going he heard a row and mutual exchange of blows between the accused and the people who had gathered there. P. W. 4 went to his house and after having some hot fomentation for the injuries sustained by him left with his brother to Edathwa dispensary.
P. W. 1 heard that P. W. 4 had been assaulted by the Police and for treatment had been removed to the hospital. He, therefore, proceeded to the hospital, but P. W. 4 bad not reached there. A little before that accused 1, 3 and 4 had gone to the dispensary. The doctor was not there and they sent a man to the doctor's house, but were told that he was not there. P. W. 9 applied some medicine on their injuries. It was when the accused were there that P. W. I reached the hospital. He looked round and not seeing P. W. 4 went out. After seeing P. W. 1 accused 1, 3 and 4 went out of the dispensary.
On the way P. W. 1 met deceased Chinnan and also P. W. 2 who had gone on hearing that P. W. 4 had sustained injuries and had been taken to the hospital. He was also returning home without seeing him. All the three of them then got into the tea shop of one Thommochan near the cinema theatre. After taking tea they proceeded along the road to the east. On reaching near the Telephone exchange they heard the sound of some persons following them. P. W. 1 raised the lighted hurricane lamp which he had, to see who it was and found that it was accused 1 to 4. As they came near, the first accused asked 'Are you the person who want to belt.' Immediately the fourth accused hit at the hurricane lamp and it fell down. P. Ws. 1 and 2 and deceased Chinnan cried out. The second accused then beat deceased Chinnan on his head, on receipt of which he fell down. The first accused then stabbed him twice. The third accused stabbed P. Ws. 1 and 2 with a knife which he had and accused 2 and 4 beat P. Ws. 1 and 2 with the lathies. Accused then ran away from the place. Deceased Chinnan and the other injured were taken to the Government dispensary. Accused 1, 3 and 4 on their way got into the shop of P. W. 9 and had some soda. They proceeded west.
On the deceased reaching the hospital the compounder P. W. 9 sent information to the doctor P. W. 7. By that time accused 1 to 4 also reached the dispensary. P. W. 5 the brother of Chinnan hearing about the incident came to the hospital and the deceased told him that he was stabbed by the first accused. The same night at about 3 a.m. Chinnan succumbed to his injuries.
The doctor first examined P.Ws. 1 and 2 then accused 1, 3 and 4. On the morning of 9-3-64 P W. 14 the Probationary Sub-inspector of the Edathwa Police Station went to the hospital and re-corded a statement Ex. P 18 from the third accused. At 7-15 a.m. he recorded a statement Ex. P 1 from P. W. 1. P. W. 15 the personal Assistant to the D.3.P., Alleppey on hearing about the occurrence came and hold the inquest and questioned among others P. Ws. 1,2 and 5. After the inquest the medical officer P. W. 7 conducted the autopsy. The same day the Circle Inspector of Police P. W. 18 searched the house where all the accused were living and took into custody M. O. 8 series two lathies. The next day he took into custody M. O. 1 light and M. O. 4 broken pieces of glass produced by one Chacko Thomas. The accused were arrested on 10-3-84. After questioning all the witnesses and completing the investigation the accused were charge-sheeted.
3. P. Ws. 1 to 3 were examined in the committal Court and when questioned on their evidence tho first accused stated that knowing that P. Ws. 1 to 3, deceased Chinnan and several others had collected armed with deadly weapons to commit rioting he along with the fourth accused proceeded to inform the Sub-Inspector and on the way were assaulted by the persons gathered there. He stated that he was not armed and had not done anything and the witnesses were all lying. He had registered a case of theft of an electric motor against P. W. 4 and others and on account of that himself and his relations were on inimical terms with him and a false case has been foisted on him. In the Sessions Court also he gave a similar statement. He denied having gone to the hospital prior to the occurrence as deposed to by P. W. 9 and denied having told the doctor that the injuries were sustained earlier.
Second accused stated that he returned from the bus stand duty at 8 p.m. and was sleeping when the incident is alleged to have taken place. He denied his presence at the scene.
The third accused stated that accused 1 and 4 had gone to inform the Sub-Inspector, that a little later on hearing about accused 1 and 4 being assaulted he went up and he was also assaulted. When questioned about the complaint given to P. W. 14 he admitted P. W. 14 having recorded a statement from him, but stated that Ex.P 18 is not that statement and that Ex. P 18 was got signed from him when he was in the hospital. Like the first accused he also stated that what Pws. 7 and 9 deposed is not true. The fourth accused supported the statement of the first accused. All the accused denied the earlier incident spoken to by Pw. 4 and that they denied having sustained any injuries at the earlier incident.
4. The death of Chacko alias Chinnan as a result of the injuries sustained by him on that night is well established and is in fact not disputed. Pw. 7 the Medical Officer attached to the Edathwa Government dispensary conducted the autopsy. The deceased had three antemortem injuries : (1) An oblique incised wound 2 1/2 x 1/4' on the right side of the abdomen above the umbilicus penetrating into the abdominal cavity cutting the anterio superior surface of the stomach; (2) An oblique incised wound 1 1/2' x 1/2' on the left side of the buttock below the hip joint directed obliquely upwards and medialwards under the dorsal surface of the ischium pissing through the pelvic cavity and penetrating the peritouial cavity; (3) A lacerated wound on the right side of the head. Ex. P-2 is the postmortem certificate, According to the doctor injuries 1 and 2 were necessarily fatal and could have been caused by any sharp pointed instrument. Death, according to the doctor, was due to syncope from shock and haemorrhage.
The doctor examined Pw 1. His wound certificate is Ex. P 4. Injuries 1 and 3 were incised injuries and injuries 2, 4 and 5 were abrasions and contusions. The injuries were simple. The wound certificate of Pw. 2 is Ex. P 6. He had one incised injury and the other injuries were contusions and abrasions. One of the injuries was a contusion 2' x 1' on the back side of the left hand above the left wrist. As the doctor suspected that there was a fracture Pw. 2 was sent to the District Hospital, Alleppey for X-ray examination and Pw. 3 the doctor has given evidence that X-ray revealed a fracture of tho lower end of the ulna of the left forearm. In cross-examination the doctor has stated that it is not likely that this fracture could have been caused by a fall and it must have been the result of violence at the site of the injury. Pw. 2, has therefore sustained a grievous injury.
5. Now the first question that arises for deci. sion is whether the prosecution has succeeded in proving that the fatal injuries on the deceased were caused by the first accused. Pws. 1 to 3 are the eye-witnesses, (After narrating the evidence of Pws. 1 and 2, His Lordship continued.) As against these witnesses it was first stated that Pws. 1 and 2 are sons of brothers, that they are distant relations of Pw. 4, that deceased and Pw. 4 were relations and that their evidence being highly interested should on that ground alone be rejected. It is true that Pws. 1, 2, 4 and the deceased are in one way or the other related to each other, but merely because they are relations is no ground to reject their evidence out of hand, if otherwise it is found to be true and reliable. It was then stated that Pw. 4 had been charged in a case of theft along with others by the Edatliwa police, that it was the first accused who had registered the case and had appeared in court and opposed bail being granted and that all these witnesses were thus on inimical terms with the Edathwa police, and particularly with the first accused. This strained relationship might be a reason to scan their evidence with more than ordinary care and caution, but not their outright rejection. Except pointing out certain omissions in their earlier statements and a few verbal contradictions which normally can be expected in a case of this nature we do not find any intrinsic infirmity in their evidence. Both of them had been injured and their presence had been admitted by the accused themselves.
6-7. Pw. 3 is the next witness. (His Lordship considered his evidence and proceeded:) Learned Sessions Judge has elaborately considered their evidence in the light of the various criticisms raised against their acceptability of their evidence and has ightly found that their evidence could with safety 'be' accepted. We find no reasons to disagrees from the conclusions reached by the learned Judge.
8. The evidence of Pws. 1 to 3 is to a certain extent corroborated by the evidence of Pw. 6 who is an equally disinterested witness. He is a small trader near the cinema theatre. (His Lordship reviewed his evidence and then continued.) Nothing has been stated as to why his evidence should not be accepted. He also bears no enmity with the accused.
9-11. Another argument raised against the acceptability of the evidence of the eye-witnesses is that they have not explained the presence of injuries on accused 1, 3 and 4. According to the accused, Pws. 1 to 3 the deceased and several others armed with deadly weapons were collected on the road when accused 1 and 4 were proceeding to the house of the Sub-Inspector of Police, that they were waylaid and assaulted and that the injuries were sustained by them in that encounter. They denied having inflicted any injuries on the deceased and Pws. 1 and 2. According to the prosecution there was an earlier incident and it was in the course of that incident that the accused sustained the injuries and that none of them were injured at this incident.
Apart from the evidence of the eye-witnesses that the accused did not sustain any injuries at the time of the occurrence, we have the evidence of Pws. 4, 9 and 7. (His Lordship considered their evidence and proceeded.)
12. We may at this stage consider the effect of Ex. P 18 the statement given by the third accused before the Sub-Inspector Pw. 14. It was recorded at 6-15 a.m., before even the F. I. R in this case was prepared. Learned Sessions Judge was of the view that Ex. P 18 cannot be used for any purpose against the accused. This view does not appear to be correct. In the statement Ex. P 18 the third accused had admitted that some of the injuries sustained by him had been caused in an incident the previous day at 8 p. in. at the banks of the thodu to the south' of Kalangara bridge. That is the place where Pw. 4 alleged that there was an exchange of blows between the accused and the villagers.
Learned counsel for the appellant would argue that Ex, P 18 is the Bust information given in the case by the accused and he having been subsequently charged as an accused in the case the information given is inadmissible in evidence. In support of this contention reliance is placed on the decision in Nisar Ali v. State of U. P., (S) A I R 1957 S C 388. In that case their Lordships laid down :
'A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157, Evidence Act, or to contradict it under Section 145 of the Act. It cannot be used as evidence against the maker at the trial if he himself becomes as accused, nor to corroborate or contradict other witnesses.'
The decision, as we understand it, lays down that if an investigation starts on the basis of the complaint given by a person who later becomes the accused in the case, that information cannot be used for any purpose. We do not think that the rule laid therein has any application, to the facts of this case. In the instant case, the accused did not lay any complaint in connection with the murder of the deceased. In fact Ex. P 18 does not even refer to the deceased being injured. That complaint relates only to the alleged assault on him.
The report is not a confession by an accused. It is also not a statement made to the police officer during the course of investigation. Section 25 of the Evidence Act and Section 162, Cr. P. C. do not bar its admissibility. The report is an admission by the accused of certain facts which have a hearing on the question to be determined by the Court, namely, whether the earlier incident as spoken to by Pw. 4 had, in fact, taken place and whether the third accused or others had sustained injuries as a result of that incident. It will also help in showing whether the statement of the accused denying altogether the earlier incident is true or not. Admissions of this nature are admissible in evidence under Section 21 of the Evidence Act arid are proveabte against them.
The Privy Council in very similar circumstances held, in Dal Singh v. King-Emperor, A I R 1917 P C 25 such first information reports to be admissible in evidence. At page 27 it is stated :
'It is important to compare the story told by Dal Singh when making his statement at the trial with that what he said in the report he made to the police in the document which he signed, a document which is sufficiently authenticated. The report is clearly admissible. It was in no sense a confession. As appears from its terms, it war, rather in the nature of an information or charge laid against Mohan and Jhunni in respect of the assault alleged to have been made on Dal Singh on his way from Hardua to Jubbulpur. As such the statement is proper evidence against him,..'
This view has been approved in a recent decision of the Supreme Court in Faddi v. State of M. P., A I R 1984 S C 1850, the Privy Council case has been referred to and the earlier decision of the Supreme Court in (S) A I R 1957 S C 366 has been distinguished. Their Lordships stated that a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot be used against a co-accused. In (S) A I R 1957 S G 366, it is not stated that a first information report which is not a confession cannot he used as an admission under Section 21 of the Evidence Act or as a relevant statement under any other provision of the Evidence Act. It was held that admissions of an accused can be proved against him. Ex. P 18, therefore, can be used for the purpose of showing that the prosecution case that there was an earlier incident and that the accused sustained injuries in that encounter is true.
13. We may, at this stage, refer to the case set up by the accused. According to accused 1 and 4 they got information of an intended rioting and were proceeding to inform the Sub-Inspector of Police When and from where the accused got this information is not stated. No entry is seen to have been made in the General Diary of the station. According to the second accused, he was peacefully sleeping at the police station that night. If really the case of accused 1 and 4 were true would they not have told the second accused about the information they had received and if they had told him would he have been peacefully sleeping at the station as he now alleges. The third accused stated that knowing about the assault on accused 1 and 4 he went to the scene and he was also beaten. It is curious that even he did not wake up the 2nd accused and take him also with him.
14. Pw. 14 the Sub-Inspector has produced the G. D. of the station and he had proved the various entries. (His Lordship went through the evidence and proceeded.)
So according to the G. D. and the evidence of the Sub-Inspector these four accused are seen to be not at the station and this would probabilise the case of Pw. 4 that they were together seen in the country boat and the evidence of the other witnesses that they were together seen at the scene of occurrence.
Comment was made about the conduct of Pw. 14. It must be remembered that he is only a probationer. On receipt of the intimation about the occurrence and finding that his men were parties to the incident he must have been much upset and must have lost his balance and did not know how to proceed in the matter. That would account for the delay in record-ing the first information statement from Pw. 1. On a careful and anxious consideration of the entire evidence and the circumstances of the case we entertain no doubt that the incident did take place in the manner set up by the prosecution. From the evidence it is clearly made out that it was the first accused who inflicted the two fatal injuries on the deceased, that it was the second accused who beat the deceased on his head, that the third accused stabbed Pws. 1 and 2 with the knife and accused 2 and 4 beat Pws. 1 and 2 with lathies and caused simple and grievous injuries on them. Learned Judge has stated thai the evidence is not clear whether the fracture of the bone was caused by accused 2 or accused 4.
15. Now the question for decision is what is the offence that is committed by the accused. As far as the first accused is concerned there is overwhelming evidence to establish that it was he who inflicted the fatal injuries on the deceased. From the nature and site of the injury and the weapon used intention to cause death is manifest. lie would, therefore, the plainly guilty of the offence of murder. Coming to accused 2, 3 and 4 they have also been found guilty and convicted for the offence of murder by invoking the provisions of Section 34, I. P. C. Section 34, I. P. C, says :
'When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.'
This section, therefore, requires that there must be a general intention shared by all the persons concerned in the offence, that is to say, when several persons unite with a common purpose to do any criminal offence, all those who assist in the accomplishment of the object would be equally guilty. The inundation of constructive liability is the common intention animating the accused to the doing of the 'criminal act, and the doing of such act in furtherance of such intention. It follows, therefore, that common intention is an intention to commit a crime actually committed and every one of the accused should have participated in that intention.
In Barendra Kumar Ghosh v. Emperor, AIR 1925 PCI, Lord Sumner stated at p. 211 thus :
'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 lower part of the section must include the whole action covered by a 'criminal act' in the first part because they refer to it.'
Thus there will be no liability by reason of Section 54 except in a case where there was a common intention to commit the particular offence which resulted. A similar intention would not be enough to bring the case within the meaning of the section. Suppose several persons, each acting independently of the others, intend to commit a crime and all of them chose the same moment and commit the crime which each of them intended separately, there would be no common intention in such a case. Each of them would be liable for his act, but not vicariously for the act of another or others.
In Mahbub Shah v. Emperor, A I R 1945 P C 118 the Privy Council laid down that Section 34 enacted a principle of joint liability in the doing of a criminal act, that the essence of that liability was 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 and that 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 furtherance o[ the common intention of all.
On that principle it was held that common intention within the meaning of the section implied a prearranged plan and to convict the accused of an offence, it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. Their Lordships of the Privy Council held that the inference of common intention should never be reached unless it was a necessary inference from the circumstances of the case. It was, however, pointed out that although it might be difficult if not impossible to procure direct evidence to prove the intention of an individual and in most cases it had to be inferred from his act or conduct or other relevant circumstances of the case, the inference of common intention within the meaning of Section 34, I. P. C., should never be reached unless it was a necessary inference deducible from the circumstances.
In Pandurang v. State of Hyderabad, (S) AIR 1955 S C 218, Bose, J., summarised the position thus;
'Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done-in furtherance of common intention of all of them--AIR 1945 P C 118 at pp. 120, 121. Accordingly, there must have been a prior meeting of minds, several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill and each can individually inflict it separate fatal blow and yet none would have common intention required by the section, because there was no prior meeting of minds to form a pro-arranged plan.'
In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of murder, however, clearly an intention to kill could be proved in his case. AIR 1925 P C 1 at p. 5 and AIR 1S45 P C 118. As their Lordships say in the latter case 'the partition which divides their bounds is often very thin, nevertheless the distinction is real and substantial and if overlooked will result in miscarriage of justice.'
In a recent case in Krishna Govind v. State of Maharashtra, AIR 1983 S C 1413, Subba Rao, J., stated:
'It is well settled that common intention within, the meaning of the section implied a prearranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a Court can convict a person under Section 302, read with Section 34, of the Indian Penal Code, it should come to a definite conclusion that the said person had prior concert with one or mure other persons, named or unnamed, for committing the said offence.'
16. Bearing these principles in mind we wilt now examine the facts of this case to find out whether the prosecution has succeeded in making out that accused 2, 3 and 4 had a common intention to murder. Learned Sessions Judge has only stated that the facts and circumstances proved in the case clearly would indicate that the accused persons had 'the intention' to murder Chinnan and to cause hurt to P. Ws. 1 and 2. But that is not enough there must be 'a common intention.' What the Facts and circumstances Were, from which the necessary intent could be spelt out has also not been stated. Learned Judge has stated that the prosecution has not placed before the Court the circumstances under which the injuries were caused by the accused persons. In fact, there is no evidence that when the four accused went along the road towards the telephone exchange office they had any knowledge that Chinnan would he there. There is no evidence that the accused had even known the deceased earlier. The utmost that has been proved in the case is thut when P. W. 1 came to the hospital and left, accused 1, 3 and 4 also left the hospital.
There is thus no evidence from which it could be inferred that there was prior planning or any preconcert. There is no evidence of any prior meeting of minds. We.know nothing of what they said or did before the attack. Accused 3 and 4 did not do anything aginst the deceased. It is true that priov concert and arrangement can, and indeed often must, be determined from subsequent conduct, hut there is, in this case, nothing, which could be referable to prior concert and pre-arrangement. In our opinion, therefore, it would not be safe to hold accused 2, 3 and 4 guilty of the offenee under Section 302 read with Section 34, I. P. C, The evidence clearly shows that accused 2 .and 4 had used the lathi which is a deadly weapon and the third accused had used a knife. They can, therefore, be convicted under Section 324, I. P. C., only. Since there is no common intention the conviction of the first accused under Sections 326 and 324 read with Section 34. I. P. C., and the conviction, of accused 2, 3 and 4 of the offence under Sections 325 and 324 read with Section 34, I. P. C., have to be set aside and we do so.
In the result the conviction and sentence of the first accused for the offence under Section 302, I. P. C., are confirmed. The conviction of accused 2, 3 and 4 is altered to one under Section 524, 1. P. C. They are each sentenced to undergo rigorous imprisonment for three years. With these modifications the appeals are dismissed.