iminal Appeal No100 of 1967
Appeal from the judgment and order dated March 131967 of the Gujarat High Court in Criminal Appeal No 566 of 1965
J L Hathi K L Hathi and K N Bhat for the appellant
section K Dholakia Badri Das Sharma and section P Nayar for the respondent
The Judgment of the Court was delivered by Ray J
This is an appeal from the judgment of the High Court of Gujarat
The appellants were charged with offences under sections 302 and 323 read with section 34 of the Indian Penal Code
Accused Nos 1 and 2 were charged for the individual offences under sections 302 and 323 of the Indian Penal Code for intentionally causing death of Amarji and for causing simple hurt to Vaghji Mansangji
The deceased Amarji was the brother in 
law sister s husband of Vaghji Mansangji
Two important eyewitnesses were Pabaji Dajibha and Pachanji Kesarji
Amarji 33 was Pabaji s mother s sister s son
Pachanji is the first cousin of Vaghji Mansangji
Accused No 3 Mulubha is the maternal uncle mother s bro ther of accused No 2 Ranubha Naranji and accused No 1 Hethubha alias Jitubha is the son of another maternal uncle of accused No 2
Accused No 2 was residing at Bhalot
Vaghji also resided there
About two months prior to the date of the occurrence on 26 January 1965 at 8 pm there was a quarrel between the children of the house of accused No 2 Ranubha and the children of the house of Vaghji
There was exchange of words between the members of the two families
Accused No 2 Ranubha and his father Naranji assaulted the wife of Vaghji
Vaghji then filed a complaint
Ultimately the complaint was compounded on the intervention of accused No 3 Mulubha
The prosecution case is that because of the behaviour of accused No 2 Ranubha towards the wife of Vaghji Ranubha had to leave his own village of Bhalot and had to go to reside with his maternal uncles at Bhuvad
The further prosecution case is that the relations of Ranubha thereafter went to village Bhalot for fetching the goods of Ranubha and at that time they had threatened Vaghji and others that Ranubha had to leave the village and Vaghji and others would not be able to continue to reside in the village
On 26 January 1965 Amarji Pabaji Vaghji and Pachanji took their carts of fuel wood for selling it in the village Khedoi which is about 7 miles from Bhalot
They left Bhalot at about 10 am and reached Khedoi at about 1 pm
The cart loads of fuel wood were sold in Khadoi by about 5 pm
They made some purchases and then left Khedoi at about 7 pm
While returning home Amarjis cart was in the front and Pabaji Pachanji and Vaghji followed him in
that order
There was not much distance between each cart
When the carts had gone about 2 miles from Khedoi and they were about to enter village Mathda the three accused persons were noticed waiting on the roads
All of them caught hold of Amarji and attacked him who was in the first cart
In the meantime accused No 3 Mulubha caught hold of the hand of Pabaji and prevented him from going near Amarji
Mulubha was armed with an axe
Accused Nos 1 and 2 dealt knife blows to Amarji
The prosecution suggested that the accused persons realised their mistake that instead of Vaghji they had attacked Amarji and so both the accused Nos 1 and 2 left Amarji and went to the cart of Vaghji and gave blows with sticks to Vaghji
On seeing the attack on vaghji Pabaji intervened and asked the accused to desist from attacking Vaghji any 34 longer as they had already killed Amarji
Thereupon the accused stopped attacking Vaghji
By this time Amarji had come staggering to the spot where Pabaji was standing
Then Amarji was placed in one of the carts and Vaghji was made to sit in that cart
Pachanji drove his cart first and the two carts without any drivers which had been formerly driven by Vaghji and Amarji were kept in the middle and Pabaji with the two injured men in his cart was driving his cart last
The carts were taken to village Khedoi
It is the prosecution case that the three accused persons followed these carts up to a certain distance and then accused Nos 
1 and 2 left while accused No 3 disappeared near Khari Vadi
Pabaji took the carts to Moti khedoi and saw police head constable Banesing who had come to Khedoi for patrolling work
Banesing was attached to the police outpost at Bhuvad
Banesing directed these persons to take Amarji to the Khedoi hospital
By that time Amarji had died
Banesing left Khedoi with Pabaji for Anjar police station which is about 8 miles from Khedoi
They reached Anjar at about 11 pm and Pabaji s FIR was recorded before police sub inspector Khambholja
The police sub inspector then preceded to Khedoi hospital
Amarji was declared to be dead
The police sub inspector recorded the statements of Vaghji and Pachanji and then took steps in the investigation of the case
At the trial all the three  accused denied having committed the offence
 The Sessions Judge acquitted all the three persons under section 302 read with section 34
He however convicted all the accused for the offence punishable under section 304 Part II readwith section 34 and sentenced them to suffer rigorous imprisonment for five years
Accused Nos 1 and 2 were convicted for the offence under section 323 and accused No 3 was convicted for the offence under section 323 read with section 34 of the Indian Penal Code
Accused Nos 1 and 2 were sentenced to suffer rigorous imprisonment for three months while accused No 3 was sentenced to suffer rigorous imprisonment for two months
All the sentences were to run concurrent All the accused filed appeals against their convictions
Before the Division  Bench in the High Court of Gujarat Divan J held that accused No 1 alone was responsible for the fatal injury on Amarji and he was found guilty for the offence under section 302 while accused Nos 2 and 3 were found guilty for the offence under section 324 read with section 34
Shelat J was of the view that all the accused must acquitted because he  was not satisfied with the evidence and proof of the identity of the accused
The case was then placed under Section 429 of Criminal  Procedure Code before Mehta J who held that accused No 1 35 must be Convicted for the offence under section 302 while accused Nos 2 and 3 must be convicted for the offence under section 302 read with section 34 and all of them should be sentenced to suffer rigorous imprisonment for life
The conviction of accused Nos 1 and 2 under section 323 and of accused No 3 under section 323 read with section 34 was upheld
The conviction of all the accused under section 304 Part 11 was altered by convicting accused No 1 under section 302 and accused Nos 2 and 3 under section 302 read with section 34 of the Indian Penal Code
Counsel for the appellants contended first that the third learned Judge under section 429 of the Criminal Procedure Code could only deal with the differences between the two learned Judges and not with the whole case
The same contention had been advanced before Mehta J in the High Court who rightly held that under section 429 of the Criminal Procedure Code the whole case was to be dealt with by him
This Court in Babu and Ors
vs State of Uttar Peadesh 1 held that it was for tic third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit
Mehta J here dealt with the whole case
Section 429 of the Criminal Procedure Code states that when the Judges comprising the Court of Appeal are equally divided in opinion the case with their opinion thereon shall be laid before another Judge of the same Court and such Judge after such hearing if any as he thinks fit shall deliver his opinion and the judgment or order shall follow such opinion
Two things are noticeable first that the case shall be laid before another Judge and secondly the judgment and order will follow the opinion of the third learned Judge
It is therefore manifest that the third learned Judge can or will deal with the whole case
The second and the main contention of counsel for the ap pellants was that there was no common intention to kill Amarji
The finding of fact is that the attack the three accused was a concerted one under prearranged plan
Amarji Was attacked by mistake but whosoever inflicted injury in the region of the collar bone of Amarji must be held guilty of murder
under section 302
Amarji was further found to have been attacked by accused Nos 1 and 2 and accused No 3 who was armed with an axe caught hold of the hand of Pabaji
The injury on Amarji was an incised wound 1 34 34 over the left side of the neck neck just above the left collar bone
The direction of the wound was was towards right and downwards
The other injury was incised 1  36 wound 1  12  12 over the chest right side near the middle line between the 6th and 7 ribs
The evidence establishes these features first that all the accused were related secondly they were residing at Bhuvad at the relevant time thirdly all the three accused made sudden appearance on the scene of the occurrence fourthly they started assault as soon as the carts arrived at the scene of the offence fifthly the way in which Amarji was attacked by accused Nos 1 and 2 and stab wounds were infficted on him and the manner in which accused No 3 held up Pabaji would show that the three accused were lying in wait under some pre arranged plan to attack these persons when they were returning to Bhalot
It therefore follows that the attack took place in pursuance of the pre arranged plan and the rapidity with which the attacks Were made also shows the pre concerted plan
The attack by accused Nos 1 and 2 on Amarji and the holding up of Pabaji by accused No 3 all prove common intention participation and united criminal behaviour of all and therefore accused No 3 would be equally responsible with accused Nos 1 and 2 who had attacked Amarji
This Court in the case of Shankarlal Kachrabhai and Ors
vs State of Gujarat1 said that a mistake by one of the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerted action in furtherance of pre arranged plan
The dominant feature of section 34 is the element of participation in actions
This participation need not in all cases be by physical presence
Common intention implies acting in concert
There is a pre arranged plan which is proved either from conduct or from circumstances of from incriminating facts
The principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code
The existence of common intention is to be the basis of liability
That is why the prior concert and the pre arranged plan is the foundation of common intention to establish liability and guilt
Applying these principles to the evidence in the present case it appears that there was pre arranged plan of the accused to commit offences
All the accused were lying in wait to attack the party of Amarji Vaghji Pabaji and Pachanji
Amarji was in the forefront
The accused attacked him
Vaghji was also attacked and prevented from going to the relief of Amarji
The plea that Amarji was mistaken for Vaghji would not take away the common intention established by pre arranged plan and participation of all the accused in furtherance of common intention
The act might be done by one of the several persons in furtherance of the common intention of them all without each one of them having intended 1  37 to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be done
In view of the evidence that Amarji was killed in furtherance of the common intention of all the accused the appellants are guilty of murder In Shankarlal s case1 this Court said that if the common intention was to kill A and if one of the accused killed B to wreck his private vengeance it could not be possibly in furtherance of the common intention for which others can be liable
But if on the other hand he killed B bona fide believing that he was A and the common intention was to kill A the killing of B was in furtherance of the common intention
All the three accused in the present case were lying in wait and assaulted the driver of the first cart and stabbed him in pursuance of their prearranged plan Therefore all the three accused including the appellant must share the liability of murder under section 302 read with section 34 of the Indian Penal Code
Further in view of the finding that the the concerted plan was to cause injuries to the intended victim with dangerous weapons with which the assailants were lying in wait the liability of the appellant is established
The conclusion of Mehta J is correct
The appeal there fore fails and is dismissed
The accused must surrender to the bail and serve out the sentences


Summary:
The three appellants were charged with offences under sections 302 and 323 read with section 34 of the Penal Code and appellants 1 and 2 were charged with the individual offences under sections 302 and 323 for intentionally causing the death of A mistaking him for V and for causing simple hurt to V The Sessions Judge acquitted all the three accused under section 302 read with section 34 but convicted them under section 304 Part 11 read with section 34 and sentenced them to suffer rigorous imprisonment for five years
Appellants 1 and 2 were also convicted for the offence under section 323 and appellant 3 was convicted for the offence under section 323 read with section 34
All three were sentenced for these convictions to rigorous imprisonment for terms
to run concurrently
On appeal to a Division Bench of the High Court one learned Judge held that the first appellant alone was responsible for the fatal injury on A and found him guilty under section 302 while the second and third appellants were found guilty under section 324 read with section 34
The second learned Judge was of the view that all the accused must be acquitted as he was not satisfied with the evidence and proof of the identity
of the accused
The case was then placed before  a third learned Judge under section 429 Cr
PC who held that the first appellant must be convicted under section 302 while the second and third appellants must be convicted under section 302 read with section 34 and all of them must be sentenced to suffer rigorous prisonment for life
The conviction of the first and second appellants under section 323 and of the third appellant under section 323 read with section 34 was upheld
In appeal to this Court it was contended i that the third learned Judge under section 429 Cr PC could onlydeal with the differences between the two learned Judges and not with the whole case and ii that there was no comnmittee intend on within the meaning of supp IPC on the part of the three appellants to kill A as he was attacked by mistake
HELD  Dismissing the appeal
i Section on of the Criminal Procedure Codestates that when the judges comprising the Court of Appeal are equally divided in opinion the case with their opinion thereon shall be laid before another Judge of the same Court and such Judge after hearingif any as he thinks fit shall deliver his opinion and the judgment or order shall follow such before another Judge and secondly the Judgment and order will follow the opinion of the third learned Judge
It is therefore manifest that the third learned Judge can or will deal with the whole case
35 D F 32 Babu and Ors
vs State of Uttar Pradesh 1965 2 SCR 771 referred to
ii The plea that A was mistaken for V would not take away the common intention established by a pre arranged plan and participation of all the accused in furtherance of common intention
The act might be done by one of the several persons in furtherance of the common intention of them all without each one of them having intended to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be don 
36 H On the facts it was clear that the attack took place in pursuance of a pre arranged plan
 The attack by appellants 1 and 2 on A and the evidence showing that appellant 3 held back P during the attack all proved common intention participation and united criminal behaviour of all appellant 3 was therefore equally responsible and guilty with appellants 1 and 2 who had attacked A Shankarlal Kachrabbhai and Ors
vs State of Gujarat   referred to
The dominant feature of section 34 is the element of participation in actions
This participation need not in all cases be by physical presence
Common intention implies acting in concert
There is a pre arranged plan which is proved either from conduct or from circumstances or from incriminating facts
The principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code
The existence of common intention is to be the basis of liability
That is why the prior concert and the pre arranged plan is the foundation of common intention to establish liability and guilt
36 E