1. This is an appeal by the accused against their conviction for the offence of murder and robbery by the Sessions Judge of Sorath. The accused were charged with having taken with them the deceased Mulji, a boy aged about 15, on the night of 10-2-1952 and then robbed him of gold 'champwas' and 'phools' (ear ornaments) and murdered him on a cart track leading to village Madhopur, at a place about hundred paces from the gate of village Surwa, to which the deceased and the accused belonged. The news of Mulji's death having reached his brother Mohan the next morning information was lodged at the police station at Madhopur. In the course of the investigation that followed accused 2 produced in the afternoon of 12-2-1952 the champwas and phools from his house and shortly thereafter accused 1 produced from a dung-hill in the 'Fall' of his house a 'Pachhedi' having blood stains and a hatchet, which had been concealed behind stones under a roof in his 'Fall' and which also was blood stained. The accused were thereupon tried for the abovesaid offences and were convicted and sentenced to transportation for life. No separate sentence for the offence of robbery was awarded by the learned Judge.
2. There is no doubt that Mulji was robbed of the champwas and phools and murdered on the night of 10-2-1952 and this fact has not been disputed for the defence. The deceased lived with his brother Mohan. He was seen wearing the champwas and phools when he went to Talala with a marriage party to attend the wedding of his paternal aunt's son about a fortnight before the offence and he was wearing them since then. That is proved by Anand Bhima the husband of the paternal aunt and by Mohan brother of the deceased. Since then Mulji had kept on wearing these articles. There is also the evidence of his playmates Natha Bhima, Labhu Vashram and Purshotam Jaram, who are boys of the same age as the deceased, that the deceased was seen wearing the champ-was and phools on the night of the 10th February. After the night meal the deceased had gone out to the bazar in the village which his friends and had there taken 'pan' and smoked cigarettes in their company near a water trough outside the village gate. While they were there accused 1 Bachu had come and had gone from there to answer nature's call. In the meantime the deceased and his companions went into the village and were sitting near the village Kotha. Bachu came there shortly thereafter and they took pan and smoked bidis and it is alleged that Bachu had particularly noticed and admired the champwas and phools which the deceased was wearing. It appears that Bachu had then said something to the deceased and they had fixed an appointment to meet later. The deceased and his companions then left the place and while the others went home, the deceased went back, and he and accused 1 Bachu and accused 2 Govind then met and took tea at the tea shop of one Jivram Jeram at about 8-30 p.m. The three of them left Jivraj's tea shop and some time thereafter they were seen going together by one Mulji Kurji outside the village gate and accused 1 was also seen having an axe. That was the last the deceased Mulji was seen alive.
3.-4. The learned Judge has found, and after going through the evidence on the point we agree with the finding, that the deceased was seen in the company of the two accused at the tea shop of Jivram Jeram on the night of 10th February and was later seen going with the two accused outside the village gate. (After considering the evidence his Lordship concluded:) The evidence in the case, therefore, proves conclusively that both the accused did together rob Mulji of the ornaments in question.
5. But the question is whether they can be convicted of the murder of the deceased. The robbery and the murder appear to have taken place at the same time no doubt, but considering that the champwas and phools were not blood stained in spite of the profuse bleeding caused by the incised wounds on the head of the deceased, the proper inference would be that Mulji was robbed of the ornaments first and then done to death, in all probability in order to avoid detection on a charge of robbery. However this is a case of more than one accused, and there is no evidence as to which of the two accused dealt the axe blows to the deceased. The learned Judge has convicted them on the application of Section 34, Penal Code, holding that the murder had been committed in furtherance of the common intention of both the accused. But in our opinion there is no scope for applying Section 34 in the present case. There is no evidence of common intention to murder, and the fact that one of the accused had an axe will not mean conclusively that they had a common intention and that common intention was to kill Mulji. It is common experience that people in villages do ordinarily move about with an axe, and the fact of accused 1 having the axe will not by itself mean that they had an intention to kill. The common intention was to rob Mulji of the ornaments and at the utmost it may be said that the intention also was to use force if necessary, but for applying the principle of Section 34, it has to be shown that there was a prearranged plan of going to the length of murdering Mulji in the commission of the robbery. There is no evidence of such a prearranged plan. It is not unlikely that after having robbed Mulji of the ornaments it occurred to one of the accused that it was unsafe to keep the boy alive lest they would be involved in a case of robbery, & therefore he suddenly gave axe blows to the deceased which killed him. The killing might not have been the result of any common intention between them and might have happened on the spur of the moment. No doubt accused 1 had the axe with him, but it will be unsafe to infer therefrom that it was he who dealt the blows, and it is equally probable that accused 2 might have taken over the axe from accused 1 and dealt the blows. In the circumstances, therefore, it is not possible to hold that there was a common intention of the two accused to kill and that the murder was committed in furtherance of the said common intention. Nor again, is it possible to find as to which of the two accused did commit the murder. It is true that unlike as in other cases where the accused person is found in possession of the ornaments worn by the deceased at the time of his death, there is here the additional circumstance that the two accused were seen together with the deceased and all of them were seen going together outside the village gate at a place not far from the scene of the offence, and an inference may, therefore, be drawn that the robbery and the murder took place at the same time, and that it took place at the hands of the accused, but unless it can be shown that there was from the outset a common intention to murder Mulji, the accused cannot be convicted under Section 302 read with Section 34, I. P. C. and since there is no evidence to show which of the accused killed Mulji, neither can be convicted of murder.
6. In the circumstances the conviction of the accused under Section 302, I. P. C. cannot be upheld and they must be acquitted of the said Offence. Their conviction for robbery under Section 302. I. P. C. is correct and is confirmed. The robbery had been committed on a highway between sunset and sunrise and the offence is punishable with fourteen years rigorous imprisonment. In view of and having regard to the nature of the offence, we sentence each of the accused to seven years rigorous imprisonment.
7. I agree.