Kuppuswami Ayyar, J.
1. The referred trial relates to the sentence of death imposed on accused 3 to 5 in Sessions Case No. 22 of 1946 on the file of the Court of Session of the Coimbatore division. Criminal Appeal No. 287 of 1946 is by accused Nos. 1 to 3 of whom accused 1 and 2 had been sentenced to transportation for life for the murder of the deceased Abdul Kassim Sahib, a constable attached to the Tiruppur police station. The third accused was given the sentence of death for the same murder. The other two appeals are appeals by accused 4 and 5 who have been sentenced to death for the murder of the said Kassim Sahib.
2. P.W. 5 is the father of accused 1 and 2. The third accused is a nephew of P.W. 5. The fourth accused is a brother of P.W. 5 and the fifth accused is a brother-in-law of the fourth accused. Unfortunately, the relationship between the father (P.W. 5) and the two sons (accused 1 and 2) was not happy. A couple of months prior to the occurrence accused 1 and 2 happened to leave the house taking with them about Rs. 200. They returned home and there was a quarrel between the father and the sons about the return of the money which they had taken away. P.W. 5, the father, and P.W. 6 went to the police station at Trippur and gave a report to the Sub-Inspector Ex. P-16 on 1st December, 1945. Therein P.W. 5 stated that he feared violence and even murder at the hands of accused 1, 2 and 4 and therefore wanted police bundobust. The Sub-Inspector deputed the deceased Abdul Kassim. Sahib, a constable attached to his station to go and fetch accused 1 and 2. The deceased accompanied by P.Ws. 5 and 6 came in a cart to the village to which P.W. 5 and his sons (accused 1 and 2) belonged and wanted the first and second accused to go with him to the police station at Trippur. P.W. 10 is the bandy-man who is said to have driven the cart in which the three people went. The third accused who is a cousin of accused 1 and 2 asked the constable to leave the boys as it was only a minor quarrel but he would not. He wanted bail but there was no one to give bail. Accused 4 and 5 also subsequently came and tried to intercede but in vain. The two young men, accused 1 and 2 accompanied by the constable, went in the cart driven by P.W. 10, towards Trippur. They went as far as Kovilvali. In the meanwhile accused 3, 4 and 5 who were disappointed in their not having been able to retain the two young men in the village got very much annoyed and started towards the bandy in spite of the fact that they were advised not to go and interfere. They were able to overtake the bandy. One of them accused 3 or accused 4 is said to have stated that he would give a sound thrashing to the constable and finish him and take the two boys. The bandyman was attacked and after receiving some injuries got down. Then accused 1 and 2 got down from the bandy. The deceased also got out of the bandy and was belaboured. He fell down; and attempted to escape. Then all the five of them chased him and beat him with sticks and stones, some of the stones being of the size of a man's hand. The deceased died and the assailants went away. This is said to have been witnessed by P.Ws. 14, 15 and 16. P.W. 10, after the deceased fell down, ran to the police station and gave information that the constable was being badly handled by these assailants. It was about 9-45 p.m. when this information was given by P.W. 10. The police thereupon went to the place made an investigation and arrested the third accused who gave the confessional statement (Ex. P-4). Accused 4 and 5 were subsequently arrested and they too gave confessional statements (Exs. P-7 and P-6) on the 8th December, 1945. Accused 1 and 2 were later on arrested and they gave statements (Exs. P-9 and P-10) on nth December, 1945.
3. All these accused in their statements admitted that accused 1 and 2 were taken by the constable (the deceased) to the station in the cart driven by P.W. 10, that they all beat the constable and that he died. Besides the confessional statements of these five accused, there is the evidence of P.W. 10, and P.Ws. 14 to 16, who are said to have witnessed the occurrence. The learned Sessions Judge accepting the evidence of the eye witnesses and also the confessional statements-which statements though they were not admitted in the committing Magistrate's Court were admitted in the Sessions Court-found all of them guilty of an offence punishable under Section 302 read with Section 34 of the Indian Penal Code for the murder of the deceased Abdul Kassim Sahib and sentenced accused 1 and 2 to transportation for life and the other accused to the extreme penalty of law.
4. Before us the fact that these accused beat the deceased and caused him injuries and he died in consequence, and the fact that these accused made these confessional statements are not disputed. Apart from the evidence of P.Ws. 14 to 16 and the evidence of the cartman, P.W. 10, there is the evidence furnished by these confessional statements which completely go to prove that the constable did take accused 1 and 2 in the cart driven by P.W. 10 towards the police station, that accused 3 to 5 subsequently came with a view to rescue these two boys and that all of them joined together and caused injuries as a result of which the deceased died. But what is urged before us is that this is not a case to which the provisions of Section 34 of the Indian Penal Code can be applied and that it cannot be said that there was any common intention to kill justifying a finding that all these accused are guilty of murder. The medical evidence shows that though there were as many as 27 injuries on the person of the deceased and several of them were serious injuries, there was only one injury which was necessarily fatal, namely, the injury to the head. There is no evidence to show which of these accused it was that caused the particular injury. It is therefore urged since there is no evidente that the fatal injury was caused by which of these accused and if the provisions of sec-lion 34 of the Indian Penal Code can be availed of, none of these accused could be said to be guilty of the offence of murder. It is true there is no specific direct evidence to prove that all these five accused set out with a pre-arranged understanding that they should kill the deceased and that it was in pursuance of such common understanding that the deceased was killed. But we have evidence in this case, about the truth of which there is no dispute before us, namely, that after accused 1 and 2 were taken in the cart by the deceased, leaving accused 3 to 5 in the village, the latter three persons subsequently went towards the cart and overtook the cart, that one of these three persons at the time when they reached the cart said that they will have to give a sound thrashing to the constable and even finish him and it is after this was said all the accused belaboured the deceased and even after the deceased fell down all the five of them beat him and left him only after he was dead. From these circumstances it is urged for the prosecution that it is clear that all these persons who belaboured the deceased chased him and caused him as many as 27 injuries, and did so in pursuance of what was stated by one of the accused, namely, that they should belabour the deceased and finish him. The words ' finish him ' is clearly indicative of the fact that he wanted the deceased to be killed and it was only after he had given this direction that all the accused did the acts which resulted in the death of the deceased. These circumstances are enough to indicate that all the accused acted in pursuance of a common intention to kill and that all these acts were done as the result of a common intent to kill; and when that was so, this is a case to which the provisions of Section 34 could be availed of by the prosecution. The case reported in Mahbub Shah v. Emperor (1945) 2 M.L.J. 144 : L.R. 72 IndAp 148 has no application to the facts of this case. There, there was nothing to indicate that there was a common intention. The question as to whether there was a common intention is a question of fact and has to be decided with regard to the facts of each case. In this case the conduct of the assailants and the direction given by one of these accused that they should give a sound thrashing and finish the deceased just before the others took part in the attack, go to show that there was a common intention and it was in furtherance of that common intention that they beat the constable who died as a result of such beating. It is true the doctor deposed that he could not state if the deceased would have died if the fatal injury to the forehead had not been caused. But the fact that none others except these accused were the e and they could have caused that injury is clear from the evidence. Therefore it must have been one of those accused who had caused the injury and if he was one of the persons who shared the common intention to kill and they all did various acts and if the act of one resulted in the death of the deceased then all the accused would be guilty of the offence of murder. We, therefore, agree with the learned Sessions Judge that this is a case in which we will be justified in finding that all the accused are guilty of an offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
5. Then the only other question is as regards the sentence. Accused 1 and 2 who were as much responsible as the others who went to the relief of the former two, have been given the sentence of transportation for life by the learned Sessions Judge evidently on account of their youth. With regard to the others it is true, they are elderly persons who ought to have behaved better, but then it must be remembered that there is evidence to show that at the time when they left the village and started on this errand to rescue the two boys they had no other idea except to rescue the boy. This is clear from the evidence of the Asari (P.W. 12). The learned Sessions Judge also points out that it was only subsequently when they went, that the murderous intent must have got into their minds; and when three of them were acting in a frenzied manner and did the various acts, they cannot be said to be pre-meditated acts. The learned Judge also finds that the fatal injury must have been caused by one of the assailants but that it cannot be said which of them caused that injury. In these circumstances we think this is a case in which the lesser sentence should be imposed on accused 3 to 5 as well. We accordingly confirm the conviction and sentence on accused 1 and 2 but while confirming the conviction of accused 3 to 5 reduce the sentence on each of them to one of transportation for life.
Chandrasekhara Aiyar, J.
6. I agree with the conclusions reached by my learned brother in his iudgment just now pronounced but wish to add one or two words on the anplicability of Section 34 of the Indian Penal Code. The Privy Council decision reported in Mahbuh Shaw v. Emperor (1945) 2 M.L.J. 144 : L.R. 72 IndAp 148 was pressed into service by the learned Counsel for the appellant to support the argument that as it could not be predicated in this case that there was any common intention on the part of the five accused to kill the police constable and as the learned Sessions Judge has only found that they must be fixed with knowledge that what they were doing was so imminently dangerous that it must in all probability cause death, the appellants cannot be held guilty of murder as there was only one injury, namely, the fracture of the forehead which alone according to the doctor, was necessarilv fatal and it might have been caused by a stone hit. The decision of the Judicial Committee is warrant only for the proposition 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 it is necessary before the section could come into play that there must be a pre-arranged plan in pursuance of which the criminal act was done. Their Lordships do not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with, nor do they say that the intention cannot be inferred from the conduct of the assailants. As my learned brother has pointed out 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. The question, therefore, is whether on the facts proved in this case we can say that there was such a common intention. If we accept the first information report, Ex. P-18, corroborated by the testimony of P.W. 10 who gave the information and who was driving the bandy when it was set upon by accused 3, 4 and 5, and also what is stated by Nachimuthu Goundan (3rd accused) in his confessional statement (Ex. P-4), where he tells us that the fourth accused exclaimed as soon as they reached the cart ' Beat the policeman and do away with him,' there can be no difficulty in saying that the subsequent acts of brutal beating administered to the constable, not only when he got down from the cart but after he was pursued to a distance of about 100 yards, was due to a common intention on the part of all to ' kill him.' In taking this view we give full effect to the interpretation given in the judgment of the Privy Council to the words ' common intention ' in Section 34 of the Indian Penal Code, and steer clear of it.