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Emperor Vs. Motilal Mallik - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1935Cal526,157Ind.Cas.829
RespondentMotilal Mallik
Cases ReferredBarendra Kumar Ghose v. Emperor
- patterson, j.1. this reference is for confirmation of the sentence of death passed on one moti lal mallick, on his conviction under section 302 read with section 34, i.p.c. there is also an appeal by the said motilal mallick against his conviction and sentence under the above sections as also against his conviction under certain provisions of the arms act, in respect of which no separate sentences were passed. the trial was before a tribunal composed of three commissioners appointed by the local government under the provisions of the bengal criminal law amendment act of 1925 and this being so, an appeal lies to this court on the facts as well as on questions of law. one kalachand shaha was tried along with motilal mallick, but was acquitted, and although his case is not before us, it may.....

Patterson, J.

1. This reference is for confirmation of the sentence of death passed on one Moti Lal Mallick, on his conviction under Section 302 read with Section 34, I.P.C. There is also an appeal by the said Motilal Mallick against his conviction and sentence under the above sections as also against his conviction under certain provisions of the Arms Act, in respect of which no separate sentences were passed. The trial was before a tribunal composed of three Commissioners appointed by the Local Government under the provisions of the Bengal Criminal Law Amendment Act of 1925 and this being so, an appeal lies to this Court on the facts as well as on questions of law. One Kalachand Shaha was tried along with Motilal Mallick, but was acquitted, and although his case is not before us, it may at once be said that the fact of his acquittal has been urged before us as one of the grounds for not placing complete reliance on the evidence of the prosecution witnesses. It appears that the case against Kalachand failed by reason of certain defects in the evidence of identification. No question of identification, however, arises regarding Motilal Mallick and the defects referred to above are therefore no ground for regarding the evidence of the prosecution witnesses with suspicion so far as the present case is concerned. Having said this I do not propose to refer further to the case of the other accused Kalachand Shala.

2. The allegations on which the charges are based are briefly as follows: The principal persons concerned in the occurrence which gave rise to this case are, with the exception of witness Guljar Shah, residents of a village called Baburail which appears to be either a part, or at any rate on the outskirts of the town of Narayanganj in the district of Dacca. Witness Guljar Shah is a resident of another portion of Narayangunj or its outskirts known as Paikpara but he was well known to the people of Baburail by reason of his close connection with the local mosque. The accused Motilal is a resident of a village called Deobhog, which adjoins Baburail to the west. His house is on a continuation of Baburail Road (which runs from east to west through Baburail) and is only a few hundred yards from the residences of the principal persons concerned in this case. On the night of 9th April 1934, three men of Baburail, namely, Alfajuddin, Ramjan and Sadey Akkas, together with Guljar Shah of Paikpara, decided to sit up at night for the purpose of detecting an intrigue that was said to be going on between the daughter of one Abdul Gani and her brother-in-law Samad. These four men took their seat in the verandah of the house of one Kameruddin Sardar, which is situated just to the north of Baburail Road. Seeing a man enter Abdul Gani's bari which is almost immediately to the west of Kamaruddin's bari, they sent Saday Akkas to Gani's bari in order to keep a closer watch over it, and meanwhile Ramjan was sent to call another neighbour, Muzaffarali by name. Muzaffar came to Kamaruddin's house on being called by Ramjan, and he together with Guljar Shah, Alfajuddin and Ramjan remained seated together on Kamaruddin's verandah. Shortly after 2 a.m. they saw three men dressed in dhotis and shirts, and having no shoes on their feet, going along Baburail Road, from west to east. Their suspicions being aroused, they accosted these three men, and went a short distance along the road with them as far as the house of one Ali. There they all stopped and presently Muzaffar and his companions attempted to seize the men and to search their persons.

3. Two of the men thereupon pulled out revolvers and fired at the two men who had caught hold of them, namely, Ramjan and Muzaffar, while the third man (the present accused) tried to draw a dagger that he had in his waist belt. Muzaffar and Ramjan, on being shot, released their hold and the two men who had shot them then made off towards the east, pursued by Ramjan, while Muzaffar remained on the road at the place where he had been shot. Meanwhile Guljar, seeing that the accused Motilal was attempting to draw a weapon from his waist belt had flung his arms round him, with the result that they rolled down the slope of the road together, and remained their struggling with one another. Just then Ali in front of whose house this occurrence had taken place, came to the spot, together with his immediate neighbour Ismail. Guljar Shah called out to them that the man who was struggling with him had a dagger, and asked them to take it away from him whereupon Ismail, seeing a dagger in the accused's hand, twisted his hand and managed to take it from him. The accused was then tied up and on his person being searched, a knuckle duster was found in his pocket. I ought to have said that at an earlier stage of the proceedings a bundle containing three Balaclava helmets (locally known as 'monkey caps') had fallen to the ground from under the arm of the present accused, and had been picked up by Muzaffar. Thus, immediately after the occurrence, the position was that the accused Moti had been seized by Guljar Shah with the help of Ismail and Ali and that the dagger which he had already drawn, evidently with a view to using it, as well as a knuckle duster, had been found on his person. Muzaffar was still on the road in a wounded condition, and Ramjan and the present accused's two companions had disappeared into the darkness.

4. It should here be remarked that, on hearing the disturbance one Afiruddin whose house is situated a short distance to the south of the place of occurrence, had come to the spot, and on his way there had a shot fired at him by two men whom he saw running away towards the east, obviously Moti's two companions. Saday Akkas who had also come to the spot from Gani's house on hearing the disturbance, was then sent off to the police station (which was only a quarter of a mile off), while the accused Moti, after being searched and tied up, was also sent to the police station, accompanied by Gulzar and others, as well as by two constables who had in the meantime come to the spot. Muzaffar however did not wait for the arrival of the police, but proceeded at once to the hospital, accompanied by Afruddin and some others. He took the bundle containing the three monkey caps with him, and two of these were taken from him by Afruddin either on his way to, or at the hospital, while the third remained with him. The first information given to the police was by Saday Akkas and was recorded by the officer-in-charge Habibar Rahaman at 2-45 a.m. The essential facts were mentioned in this information, namely that Muzaffar and his three companions had challenged three Bhadralog youths on suspicion, and that on their seizing them, two of them had fired at and wounded Muzaffar and Ramjan and that Ramjan had followed these two and had not returned. It was also stated that one of the three assailants had been secured, together with a dagger and a bundle.

5. On receipt of this information the Sub-Inspector immediately proceeded to the place of occurrence, but it so happened that he did not meet Guljar Shah and the other persons who were at that time on their way to the thana bringing the present accused with them, the reason being that there are several ways of getting to the thana from the place of occurrence. Guljar Shah however arrived at the police station at 3-15 a.m., very shortly after the Sub-Inspector had left for the place of occurrence, accompanied by two constables and some local people, and bringing with him the present accused Motilal Mallik, The accused was then taken charge of by a literate constable, named Muhammad Samed Ali, who found a dagger in the hand of the accused and a knuckle duster in his pocket. Meanwhile the Sub-Inspector, on going to the place of occurrence, had searched for Ramjan and had found his dead body lying at a distance of about 60 feet from the place of occurrence and on the south side of a small and shallow khal. He had also been handed the scabbard of a dagger by one Bahij Mia who had found it, as well as a rope in front of Ali's house, on the slope of the road. A torch which is said to have been dropped by the accused and his companions was also found on this part of the road and made over to the Sub-Inspector. After having taken charge of the articles referred to above and taking the necessary steps with regard to Ramjan's dead body, the Sub-Inspector, on learning that Muzaffar had gone to the hospital went there and recorded his statement. That was at some time between 4-30 and 6 a.m. The Sub-Inspector, after recording Muzaffar's statement, took charge of a monkey cap, which the latter produced from under his pillow, as well as of two other monkey caps which were made over to him by Afiruddin.

6. These are the main allegations on which the charges are based, but it should be added that all the witnesses speak of a third shot having been fired, as well as the two shots which wounded Muzaffar and Ramjan. This third shot appears to have been the shot which was fired at Afiruddin on his way to the place of occurrence. It should also be added that on the day following the occurrence, a bullet was found by the side of Ali's bari and was made over to the Sub-Inspector, this bullet being identical with the bullet which was found in the dead body of Ramjan at the post mortem examination. The medical examination discloses the fact that the shots which wounded Muzaffar and killed Ramjan were fired at very close quarters probably from a distance of one to three feet. Ramjan had been shot in the neck and, apparently in a downward direction, and the shot had passed into his body and had injured one of his lungs. The medical officer who held the post mortem examination, was however of opinion that Ramjan might have been able to run some distance after receiving the injury, before he fell down and died. Muzaffar had been shot in the abdomen the shot having penetrated the body from front to back. He was detained in hospital for about a month and was then discharged fully cured.

7. As regards the defence taken by the accused it appears that on being first questioned by the police he remained silent. Later on he made a statement to the police alleging that an attempt had been made to rob him. When examined by the Commissioners at the close of the case he stated that he had been attacked when on his way home from the cinema and had fallen down unconscious and that, on recovering his senses he had found that a large crowd had collected; he had then been taken to the thana. In this statement, as well as in his previous statement to the police, he denied having had a knuckle duster and the dagger in his possession. The defence taken by his pleader in argument at the close of the trial before the Commissioners was that as Moti was returning from the cinema, he had been seized on suspicion of having been concerned in the shooting and taken to the thana and that the dagger and the knuckle duster had been planted on him in order to strengthen the case against him. Before us however the learned advocate appearing on his behalf has taken in the line that there are certain features in the case, and especially in the evidence of Muzaffar which tend the throw suspicion on the whole story, and further that even if the evidence be accepted in its entirety, it is not sufficient to establish the fact of actual participation in the crime nor the existence of any common intention to commit murder.

8. It is not and cannot of course be denied, that the person who shot Ramjan in the neck at close quarters was guilty of murder, and if the evidence be accepted, the only question is whether the circumstances are such as to attract the operation of Section 34, I.P.C., and so to make the present accused also liable for the murder of Ramjan.

9. As regards the actual external facts there is little to be said. It has been contended on behalf of the accused that there is no mention of the monkey caps, the dagger and the knuckle duster having been found in the possession of the accused in the earliest recorded statements, and our special attention has in this connection been drawn to the statement of Muzaffar which was recorded by the Sub-Inspector at the hospital in the early hours of the morning following the occurrence. That statement contains a mention of the monkey caps, but not of the dagger and the knuckle duster nor does it contain any mention of the fact that Ali and Ismail had come to the spot immediately after the occurrence. Our attention has also been drawn to the so called 'dying declaration' of Mazuffar Ali which was recorded in the hospital by a Magistrate at about 8 a.m. on the day following the occurrence. In that statement too the monkey caps are mentioned, but there is no mention of the dagger or of the knuckle duster nor is there any mention of Ali and Ismail having come to the spot. It further appears that in his so called 'dying declaration' Muzaffar stated that he had himself helped to secure this man, the present accused, when he was struggling with Guljar Shah, whereas in his evidence he has denied having done so, or even haying said that he had done so. It seems to me that these are small matters, in respect of which discrepancies are almost bound to occur especially as the deponent was suffering from a severe wound at the time when the statements referred to were recorded.

10. Moreover these statements did not really form the starting point of the investigation. The starting point of the investigation was at 2-45 a.m. when Saday Akkas went on ahead to the thana, and told the Sub-Inspector of what had occurred and in that information mention was made of the man who had been captured having had a dagger and a bundle in his possession, although no mention was made of the knuckle duster. It is moreover clear from the evidence of the Head Constable who was left in charge of the thana when the Sub-Inspector went to the place of the occurrence, that the accused was produced in the thana at 3-15 a.m. by Guljar Shah who is said to have taken the principal part in securing him, and that a dagger and a knuckle duster were produced along with him, the dagger being found in his hand and the knuckle duster in his pocket. In these circumstances it is quite impossible to attach any importance to the omissions referred to above in the earlier statements made by Muzaffar and it is quite impossible to hold that there was any concoction of evidence even if any one had wished to concoct evidence against the present accused. Actually no suggestion has been made as to why any one should wish to concoct evidence against the present accused. It is true he lives at quite a short distance from the houses of some of the principal witnesses, but he is only very slightly known to these witnesses, and there is no suggestion of any enmity existing between him and them. As has been suggested on behalf of the accused that the dagger, the knuckle duster and the monkey caps might not have been with the accused at all but that they might have been left behind by his companions.

11. For the reasons indicated above, namely that there was no motive for the concoction of evidence against the accused and that moreover there was no time for such concoction, I have no hesitation in rejecting this suggestion as being entirely devoid of foundation. So far as the other evidence in the case is concerned no suggestion has been made as to why it should not be believed. That evidence consists mainly of the evidence of two out of the three persons who seized the accused and his two companions namely Muzaffar Ali and Guljar Shah and also the evidence of Alfazuddin who does not however appear to have taken any active part but who was present throughout the occurrence. The third man who seized one of the accused's companions was Ramjan who is dead. So far as what might be called the external facts are concerned, there is therefore the evidence of the three witnesses I have just mentioned and their evidence is corroborated by the evidence of Saday Akkas, Ismail Ali, and Afiruddin who came to the spot immediately after the occurrence, as well as by the evidence of the Sub-Inspector to whom the facts were at once reported, and the evidence of the literate constable before whom the accused and the incriminating articles were produced, very shortly after.

12. I have no hesitation in accepting this evidence in its entirety, and the only question remaining to be considered is whether the circumstances established by that evidence are such as to attract the operation of Section 34, Penal Code. This is indeed the only substantial question that arises for decision in this case, and in order to decide it, it is necessary to consider the facts established by the evidence a little more closely. It appears that when the accused and his companions were first observed by Muzaffar and the other three watchers at Kamaruddin's house, the present accused was a little behind the other two, and that on being challenged, the accused at once stopped and said to Muzaffar: 'Don't you know me, I am Moti. These persons came to have a meal at my house', and so on. In the meanwhile the other two men had moved on in an easterly direction and on being again challenged, one of the two stopped while the third continued to move onwards towards the east. Muzaffar and his friends together with the accused Moti, and the other man who had stopped, followed the third man and all of them finally stopped in front of Ali's house. The evidence is that a torch was then produced and that by its light one of the men was recognized as the present accused Moti, Moti's two companions being found to be complete strangers to the witnesses. Seeing a bundle under Moti's arm, Muzaffar asked what it was Moti said it was nothing. Muzaffar then pulled Moti's arm and the bundle fell on the ground. It was then discovered that it contained three 'monkey caps' which, it may here be observed, are eminently suited for disguise, as they only leave a small portion of the face visible. Seeing these caps, Muzaffar caught hold of the man next to him by the arm, and asked Ramjan to pick up the caps. Guljar at the same time caught hold of Moti, while Ramjan seized the third man. The man whom Muzaffar had seized thereupon drew a revolver, and shot Muzaffar in the abdomen, and the man whom Ramjan had seized shot Ramjan on the neck, while Moti struggled hard to draw the dagger he had in the waist-belt. What happened next has already been described, and it is not necessary to restate it. The question is what inference should be drawn from the facts referred to above. In the first place, it is abundantly clear that Moti and his two companions had set forth together for the purpose of committing some crime involving violence and the use of the weapons with which they were armed.

13. It is also a reasonable inference that their common intention was, if necessary, to commit murder either at the time of the commission of the crime which was the object of their expedition, or in order to enable them to escape in the event of their being interfered with. It has been pointed out that there is no evidence of previous conspiracy between them, but the facts speak for themselves. There must have been an agreement between them before setting forth fully armed, at dead of night, in the manner described by the witnesses. It has further been suggested that each may not have known how the others were armed. It was however vital to the success of their joint enterprise, and essential to the safety of each, that each should know how the others were armed, and that there should be some agreement between them, as to how and in what circumstances their respective weapons were to be used.

14. I however agree with the learned Advocate appearing for the accused in his contention that a mere common intention to commit murder in certain circumstances, might not, of itself, be sufficient to justify a finding that the accused and his companions had, at the time of actual occurrence, the common intention of murdering Ramjan. In order to decide whether or not the accused and his companions had the common intention of murdering Ramjan, it is necessary to consider what happened immediately before Ramjan was shot, and on a consideration of the facts disclosed by the evidence, as set forth above, I have no hesitation in holding that the accused and his two companions acted in concert at that time, and that they all had the common intention of murdering the persons who had seized them, in order to make good their escape. It was only Ramjan's assailant who succeeded in killing his man, while Mozaffar's assailant failed although he did his best to kill him, while the present accused Moti's conduct shows that he would have tried to kill Guljar Shah if he had been able to use his dagger. The dagger in question has been produced before us. It is about a foot in length, and about an inch in width, and is indeed a most murderous weapon. The circumstances under which the murder was committed are therefore such as to leave no doubt in my mind that the accused and his two companions stand in the same common intention, namely the intention of causing the death of the persons who had accosted and seized them.

15. It has been contended on behalf of the present accused that both his own conduct and the conduct of his two companions, immediately before the actual shooting took place, indicate that there was no such common intention, and that if they had any such common intention, it had been abandoned or frustrated so far as Motilal was concerned. It has been pointed out that Motilal had stopped and spoken to Muzaffar and his companions as soon as the latter had accosted them, that there had been no resistance offered when the bundle of monkey caps was snatched from under Moti's arm and that it was only when Moti's companions were seized and an attempt was made to search them, that the firing took place. Moti's conduct, it is suggested, indicates that he had no intention of offering any forcible resistance to the persons who had accosted him, and that if he had any such intention, he had seen that resistance was useless, and had abandoned the idea. It is also contended that the conduct of Moti's companions in not attempting to intervene on Moti's behalf, indicates the absence of any common intention between them and Moti. I am unable to accede to these contentions.

16. It seems to me that the only reasonable explanation of the conduct of Moti and his companions is that Moti was a known man, being a resident of that locality. He knew, and his companions knew, that even if it were possible for him to make good his escape that night, he would inevitably be brought to book later on. His companions, on the other hand, (the men who were armed with revolvers), were complete strangers who, if they could make good their escape at that time, were likely to escape punishment altogether. Moreover the fact that they were armed with revolvers indicates that they were the most important members of the party, and that being so, their main object would naturally be to escape, and Moti's main object would be to enable them to escape. This he at first attempted to do by putting up a false story that they were his friends, that they had come to his house on a visit, that they had dined with him, and so on, thereby seeking to gain time and thus enable them to escape. When however Muzaffar and his companions caught hold of them, and indicated their intention of searching them, Moti's conduct showed that he was in complete unanimity with his two companions, who at once proceeded to use their weapons, with the result that Ramjan was killed and Muzaffar severely wounded, and with the further result that the two principal men, the men armed with revolvers, were able to make their escape. It has been suggested that the circumstances are compatible with the theory that the shooting of Ramjan was an individual act on the part of one of Moti's two companions, and that Moti cannot be held responsible for that act by virtue of the provisions of Section 34, I.P.C. I am unable to accept this contention. The act of the man who fired the fatal shot was, in the eye of the law just as much the act of Motilal, as if the latter had fired the shot with his own hand.

17. Our attention has also been drawn to the fact that Ramjan's dead body was found at a distance of about 60 ft. from the place of occurrence, that is to say from the place where the accused and his companions were seized, and also to the evidence to the effect that Ramjan ran after the two men with revolvers when they were trying to escape. It is suggested that Ramjan may have been shot after going for some distance in pursuit of these two men, and it is contended that, if that were the case, Moti Lal ought not be held responsible for the murder. There would have been great force in this contention, if it were possible to hold that Ramjan may not have been shot at the actual place of occurrence, but at some distance from it, but it is not possible so to hold. The medical evidence shows that the shot which killed Ramjan was fired from very close quarters indeed, and the evidence of all the eye-witnesses is to the same effect. Only two shots were fired at the place where the accused and his companions were seized, and those were the shots that killed Ramjan and wounded Muzaffar. The third shot was fired at some little distance from that place, but it cannot have been that shot that killed Ramjan, for it is stated by Afiruddin, whose evidence there is no reason to disbelieve, that shot was fired at him. This being so, I have no hesitation in holding that the shot that killed Ramjan was fired at very close quarters at the time of the struggle in which the accused and his two companions were simultaneously involved, and after Ramjan had gone in pursuit of Moti's companions. In my opinion, the facts as found above are clearly such as to attract the operation of Section 34, I.P.C. That section runs as follows:

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.

18. This section has been fully discussed by their Lordships of the Privy Council in Barendra Kumar Ghose v. Emperor, 1925 PC 1 in which it has been pointed out that the word 'act' includes a 'series of acts' and that Section 34 contemplates, amongst other things, a series of acts done by several persons, some perhaps by one of those persons and some by another, but all in pursuance of a common intention. At p. 211 of the report it is laid down that

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.

19. Again on p. 217 of the same report we find the following passage:

In other words, a criminal act means that unity of criminal behaviour, which results in something for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence.

20. Applying these principles to the facts of the present case I think it is impossible to come to any other conclusion than that the accused is, by virtue of the provisions of Section 34, to be held to have been guilty of murder and that he has been rightly convicted under Section 302 read with Section 34, I.P.C. On the question of sentence, there are only two things that can be said in the accused's favour (1) that he is very young-his age being about 20 and (2) that his was not the hand that fired the fatal shot. As regards the second contention I am of opinion that in the circumstances of the present case, the accused is not only just as guilty in the eye of the law, but that he is also just as guilty morally, and from every other point of view, as if he himself had fired the shot that killed Ramjan. With regard to the fact that his age is only 20 this fact would not be sufficient to justify in refraining from imposing the maximum penalty prescribed by law, a man of twenty being of a sufficient age to be fully able to realize the nature of his acts. I would accordingly dismiss the appeal, uphold the conviction, and confirm the sentence of death passed by the Commissioners.

Cunliffe, J.

21. I am of the same opinion. The appellant has been convicted and sentenced for the crime of murder by a Special Tribunal on the basis of Section 34, the common intention of the section of the Penal Code. That section is a statutory embodiment of the English common law principle that there is joint responsibility between co-conspirators,-a very old rule. Those who are interested in criminal law know that it goes so far back as Hales' Pleas of the Crown. Now the first point that was considered by the Special Tribunal in regard to this case was whether the crime committed by the unknown absconder was in reality murder. The story which has been detailed by my Lord in his judgment can be briefly referred to again. Three conspirators, of whom the appellant was one, were found on the road at about two in the morning by certain villagers who were sitting up, watching for evidence of a villager intrigue; and the first point that drew the attention of the watchers was that these three well-dressed young men were coming down the road without their footwear. They were stopped. The watchers came down from the open verandah into the street and challenged them. The unknown absconder was in front: the man who was put on his trial under the name of Kalachand Saha was next; and the appellant was bringing up the rear. The villagers who were all Mahommedans, became so suspicious at the answers which were given them by the appellant that each of the three men was seized by the clothes for the purpose of taking them in custody; or at any rate, of holding them until they gave a better explanation of what they were doing. Evidence goes on to show that immediately this was done the unknown leading man (the absconder) whipped out a revolver,-it must have been at a very close range and shot the villager Ramjan on the side of the neck. Then the man who was put on his trial under the name Kala Chand Saha also took out his revolver almost simultaneously and shot the man who was holding him, Muzaffarali by name.

22. The result of both these efforts on the part of the two criminals was that they were enabled to break away and make their escape down the road. Ramzan who died subsequently as a result of his wounds actually pursued them while Muzaffarali stayed where he was as he was badly injured, shot in the stomach. In fact after he was taken to hospital, so serious was his wound thought to be that he made a dying deposition. The conduct of the appellant was different to that of his companions. He was not armed with a revolver, as far as we know; but he was nevertheless armed and heavily armed as my Lord has pointed out, with a dagger and a brass knuckle duster; and before he was seized-because he was seized by one of the villagers (Guljar Saheb)-he was seen putting his hand to the belt which action the villagers suspected was for the purpose of drawing the dagger and making use of it. He was then thrown down on the ground; a struggle took place and two other villagers came up. Finally he was overpowered. During this struggle it was found that his hand had again gone to this handle of the knife to his belt. In fact so apprehensive was Guljar Saheb that when his two friends came to try and assist him he said: 'Take away the dagger before I get up, as I am afraid of some one being stabbed' or words to the effect.

23. Now the primary intention no doubt of these two leading conspirators was not to commit murder, but to disable the two persons who caught hold of them. The criminals knew that, if they could disable and frighten them at the same time, there was a chance of getting away; and so it proved. But in law if a person deals such a grievous hurt to another that death takes place and the person responsible for the act knows that it is likely to take place or should know it unless he is mentally unsound, that he is guilty of murder. This is the effect as I understand it of Clauses 3 and 4 of Section 300, I.P.C. It remains to be decided whether the appellant knew when he started out on this expedition with his two companions that it was their intention to take the course they did if some such circumstances arose such as I have detailed. There is no direct evidence on the point. The evidence against the present appellant was only by way of inference. I have no doubt in my mind that the joint criminal intention of these people when they went out at night together was not only to defend themselves to the utmost with their weapons, if attacked, but in all probability they had another criminal intention to commit some definite robbery under arms. To my mind there can be no other inference to draw from their being together and armed in the way they were armed. From the situation and from the further piece of evidence that they were carrying three disguise caps, it was obvious that they were out on a secret expedition for the commission of some crime of violence. It is little uncertain however just at the moment as to what exactly is the law in relation to homicide in Bengal. Take, for example, the Hill Station dacoity case. There the Court of appeal held that when certain evilly disposed persons, heavily armed, each gunman with an attendant carrying an electric torch, attacked the station for the purpose of robbery, and during the attack a cooly was deliberately shot in the stomach for the purpose of disabling him and he afterwards died of his wound, this was not murder.

24. The Court of appeal gave as their reason for this finding that the man died of peritonitis caused by his wound and they also found that the person who fired could not be supposed to have known that he was doing such a dangerous act as to cause death. I can only say with great respect to the learned Judges who decided that case that I do not agree with them. If criminals are permitted to go about the country killing innocent people in this manner and not be guilty of murder then in my view the criminal Courts might just as well cease to function. Had I been able to agree, I might find perhaps some difficulty in thinking that the action of the unknown absconder in this case was murder. But I have got no such difficulty in saying that I consider both the crime committed in this case and the Hill case to be murder and clear murder within the meaning of the Indian Penal Code. That being so, the only point that remains to be considered is the contention advanced by the defence that the conduct of the appellant was not of such a kind that it was in any way parallel to that of his two companions and his conduct could not be considered to have afforded any assistance to his companions. Mr. Talukdar has asked us to hold that in fact the appellant was surprised and had no knowledge of the extreme course which the two others would adopt and did adopt. It is quite obvious that a criminal, even if he has a criminal intention which is shared by others, can at any moment abandon that criminal intention. He can, for example, when a crisis arises, turn tail and fly. He can even go so far as to render assistance to those who were attacked or he may do something either by his act or words to prevent his companions from carrying out the crime they all had originally contemplated. The appellant did here none of these things. There is no evidence that he tried to prevent his companions from doing what they did. There is no evidence that he tried to run away. The only piece of evidence which at all bears on what happened before shots were fired, as far as his doing was concerned, is that he was seen by those who were surrounding him, putting his hand on his waist belt where lay a dagger.

25. In these circumstances I consider that his responsibility is on the same footing as the responsibility of each of the others would have been if they had been found guilty before a Court. It has been pointed out by the Privy Council that a man who waits outside the door of a house where robbery is committed, keeping guard in a position to give warning of anyone who may disturb his confederates, is just as much responsible for the crime as the person or persons inside; and so far as organised crime in the form of a gang robbery is concerned this is a situation which is frequently encountered. In these circumstances I consider that the appeal should be dismissed and the conviction upheld. I may add that, the sentences passed should be confirmed.

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