Bhashyam Ayyangar, J.
1. The first count against the first and second accused in Sessions Case No. 53 of 1900, as finally amended, runs to the following effect: 'That you the accused Nos. 1 and 2 on or about the 19th March 1899 entered into conspiracy with the ninth accused in the same case and one Subbi Reddi the accused in Sessions Case No. 1 of 1901 to murder the deceased Ranga Reddi and that in pursuance of that conspiracy Ranga Reddi was murdered on 11th June 1900 and that you first and second accused have thereby committed an offence punishable under Sections 302 and 109 of the Indian Penal Code.' The first part of the third count against the ninth accused in Sessions Case No. 53 of 1900 runs to the following effect: 'That you the ninth accused on or about 19th March 1899 entered into a conspiracy with the first and second accused in the same case and one Subbi Reddi, the accused in Sessions Case No. 1 of 1901, to murder Ranga Reddi in consequence of which the said Ranga Reddi was murdered on 11th June 1900.' In Sessions Case No. 1 which was tried by a different Sessions Judge, the first count against Subbi Reddi the accused in that case ran as follows: 'That you the accused on or about 19th March 1899 entered into a conspiracy with the first, second, and ninth accused in Case No. 53 to murder Ranga Reddi in pursuance of which conspiracy Ranga Reddi was murdered on 11th June 1900 and thereby you the accused committed an offence punishable under Sections 302 and 109, Indian Penal Code.'
2. The first and second accused in the former case and the accused in the latter case were also respectively charged with the offence of murder itself and the ninth accused in the former with the offence of abetting that murder by giving information to the first accused in the same case of the movements of Ranga Reddi on the 11th June 1900. The second count in the former case was not drawn with sufficient precision so as to charge first and second accused also with murder along with the accused Nos. 3, 4, 5, 6, 7 and 8. But it is clear that first and second accused were not misled by this inaccuracy and the defect therefore is cured by Section 535(1) of the Criminal Procedure Code. In case No. 53 the accused Nos. 1, 2 and 9 have been acquitted of the so-called charge of conspiracy and the Government has preferred Appeal No. 1028 of 1900 against such acquittal. In Sessions Case No. 1 of 1901 the accused has been convicted not only on the count of murder but also on the so-called count of conspiracy and he has appealed in No. 143 of 1901 against his conviction on both the counts.
3. The count of conspiracy in both the cases proceeds on a misapprehension of the law bearing on the question, as is evident not only from the wording of the count but also from the fact that the first and second accused in Sessions Case No. 53 and the accused in Sessions Case No. 1 are also charged with the substantive offence of murder. The law bearing on the question of conspiracy under Sections 107 and 109, Indian Penal Code, was considered by a Full Bench of this Court in the case of Queen-Empress v. Subrahmania Ayyar Criminal Miscellaneous Petition No. 41 of 1900 (unreported) and I entirely concur with Davies, Benson and Moore, JJ., in their opinion that under the Indian Criminal Law conspiracy is a mere species of abatement when an act or an illegal omission takes place in pursuance of that conspiracy and amounts to a distinct offence for each distinct offence abetted by conspiracy.
4. Under the English law the agreement or combination to do an unlawful thing or to do a lawful thing by unlawful means amount in itself to a criminal offence. The Indian Penal Code follows the English law of conspiracy only in a few exceptional cases which are made punishable under Sections 311 (Thug), 400 (belonging to a gang of dacoits), 401 (belonging to a gang of thieves) 402, (being a member of an assembly of dacoits,) and 121A (conspiring to wage war). In these cases whether any act is done or not or offence committed in furtherance of the conspiracy, the conspirator is punishable and he will also be punishable separately for every offence committed in furtherance of the conspiracy. In all other cases, conspiracy is only one species of 'abetment of an offence' as that expression is defined and explained in Section 108 and stands on the same footing as abetment 'by intentional aiding.' In regard to both these species of abetment an act or illegal omission, in pursuance of the conspiracy or for the purpose of intentional aiding, is essential. If two or more persons conspire, the gist of the offence of abetment by conspiracy is not only the conspiracy but the taking place of an act or illegal omission in pursuance of the conspiracy and in order to the doing of the thing abetted. If a person at one and the same time instigates another to murder ten or more persons or to steal watches in the possession of ten or more persons, he will certainly have abatted ten or more murders and abetted ten or more thefts. It is perfectly immaterial whether the instigation was at one and the same moment of time or at different times. Similarly if two or more persons conspire to commit murder of ten or more persons or to steal the watches belonging to ten or more persons and one or more of them commits the murders or thefts in pursuance of that conspiracy, the others will be guilty of as many abetments of murders or abatements of thefts as have been committed. In my opinion the test is not whether the instigation or conspiracy constituted one act, but whether the act or acts abetted by instigation or conspiracy would, if committed by a person capable in law of committing an offence with the same intention or knowledge as that of the abettor, amount to one offence or more offences than one. In the former case there would be but one offence of abetment, but in the latter case as many offences of abetment as the number of substantive offences.
5. Section 10 of the Indian Evidence Act has, in my opinion, no bearing on the question as to how far conspiracy to commit an offence or actionable wrong is an offence under the Indian Penal Code.
6. It is a startling proposition to say that a man remains chargeable as an abettor by conspiracy or otherwise although he may also be chargeable, and that not in the alternative but cumulatively as haying committed the offence abetted. That is exactly what has been done in both the cases. The first and second accused in Sessions Case No. 53 and the accused in No. 1 have been charged both with the substantive offence of murder on the 11th June and the offence of conspiring to murder the deceased by murdering the deceased on the 11th in pursuance of such conspiracy. You can no more charge a man as an abettor as well as a prepetrator of the offence abetted, and that not in the alternative but cumulatively, than you can charge a man with an attempt to commit an offence and the commission of that very offence. In this connection it will be well to draw attention to Section 114, Indian Penal Code, which provides that whenever any person, who, if absent, would be liable to be punished as an abettor, is present when the act or offence for which be would be punishable in consequence of the abetment is committed, ho shall be deemed to have committed such act or offence. This section provides that ha shall be deemed to have committed the offence itself and not simply that he shall be liable to the same punishment as if he had committed the offence.
7. In Sessions Cases No. 53 and No. 1, the first and second accused in the former and the accused in the latter are alleged to have been present when Ranga Reddi was alleged to have been murdered, and in fact to have taken the most active and leading part in the perpetration of the murder. Under these circumstances it is vary strange that they should have been charged both with the murder of Ranga Reddi and with the abetment of such murder. The Public Prosecutor, when this was pointed out, said that he did not press his appeal against the acquittal or seek to uphold the conviction of the accused in Sessions Case No. 1 of 1901 on the count of conspiracy, the accused Subbi Reddi in that case having been convicted of and punished for both the substantive offence of murder and of abetment of the same by conspiracy, but that he relied on the instances of conspiracy proved with reference to the said count as material evidence in regard to the charge of murder in both the cases and also the charge of abetment of murder against the ninth accused in Sessions Case No. 53 by giving information of Ranga Reddi's movements on 11th June. It is unnecessary to consider the question of misjoinder of offences raised by the learned Counsel for the respondents in Appeal No. 1028. In my opinion Appeal No. 1028 should be dismissed and the conviction of Subbi Reddi in Sessions Case No. 1 on the count of conspiracy quashed.