Criminal Appeal No 191 of 1962
Appeal by special leave from the judgment and order dated April 9 10 and 12 of 1962 of the Gujarat High Court in Criminal Appeal No 426 of 1961
A section R Chari and R A Gagrat for the appellants
H R Khanna R H Dhebar and B R G K Achar for the respondent
The Judgment of the Court was delivered by Subba Rao J
This appeal by special leave raises an interesting question involving the construction of section 34 read with section 301 of the Indian Penal Code
The appellants who are 11 in number were accused Nos 1 to 10 and 12 in the Sessions Court Mehsana
The case of the prosecution may be stated thus  In the village of Aithor there are about 300 houses of Kadva Patidars and about 15 to 20 houses of Leva Patidars
On January 16 1961 at about 8 Pm seven persons who are Leva Patidars came to the chowk where there is a pan shop cabin of Girdhar Shanker
These seven persons were Rama Bhupta Lakha Madha Hira Punja Jetha Nagar Parshottam Prabhuva Manor Madha and Gova Shiva
At the same time the 12 accused also came to that place
Accused 1 to 6 were each armed with a muzzle loading gun accused 7 288 8 11 and 12 were armed with sticks accused 9 and 10 were armed with dharias
Accused I to 4 fired their guns and Rama Bhupta fell down and died near the door of the cabin of Girdhar
Accused 5 and 6 fired their guns and Lakha Madha was injured
Accused I fired his gun again and Jetha Nagar received injuries
Accused 5 and 6 fired again and Hira Punja was injured
Accused 7 to 12 were inciting accused 1 to 6 to kill all these persons
Other specific acts were attributed to some of the accused
The learned Sessions Judge held that Rama Bhupta was killed as a result of the firing by accused 1 to 4 that Lakha Madha was injured by the firing by accused 5 and 6 that Jetha Nagar was injured by the firing by accused 1 that Hira Punja was injured by the firing by accused 5 and 6 that accused 12 caused stick injuries to Lakha and that accused 8 caused injury on the tongue of Parshottam Prabhuva
The Sessions Judge also held that the 12 accused constituted an unlawful assembly but their common intention was not to kill Rama Bhupta but only Madha who was not present in the chowk
He acquitted all the accused under section 302 read with section 149 of the Indian Penal Code but convicted accused I to 4 under section 302 read with section 34 of the Indian Penal Code and sentenced them to imprisonment for life and to a fine of Rs 2000 each lie convicted all the accused under section 324 read with section 149 of the Indian Penal Code for causing injuries to Hira Punja and others
Accused 5 to 12 were also convicted under section 326 read with section 34 and section 324 read with section 149 and section 148 of the Indian Penal Code and they were sentenced to various periods of imprisonment and fine
The accused preferred different appeals against their convictions and sentences and the State of Gujarat filed appeals against the acquittal of accused 5 to 12 under section 302 read with section 149 of the Indian Penal Code
The State of Gujarat also filed a criminal revision for enhancing sentences passed against all the accused but it did not file any appeal against the acquittal of accused I to 4 on the charge under section 302 read with section 149 of the Indian Penal Code
The High Court convicted accused I to 4 under section 302 read with sections 301 and 34 of the Indian Penal Code and confirmed the sentence of life imprisonment passed on them but set aside the fine imposed on them
So far as the other accused ie accused 5 to 12 are concerned they were convicted under section 302 read with sections 301 and 34 of the Indian Penal Code and also under section 302 read with section 149 of the said Code
In the result the High Court sentenced all the accused to imprisonment for life for the said offences
289 It is common case that if the conviction of accused 1 to 4 tinder section 302 read with section 34 and section 301 of the Indian Penal Code was set aside all the accused would have to be acquitted in regard to the major offences
It is also not disputed that if the conviction of accused I to 4 under the said sections was confirmed the appeal filed by the other accused would fail
The only question therefore is whether the conviction of accused I to 4 under section 302 read with sections 34 and 301 of the Indian Penal Code was correct
In the appeal Mr Chari learned counsel for the appellants contends that accused I to 4 could not be convicted under section 302 read with section 34 of the Indian Penal Code as there was no common intention to kill Rama but Rama was killed under the mistake that he was Madba
l A mistake by one or other of the accused the argument proceeds cannot possibly be in furtherance of the common intention of the accused
He further argues that the provisions of section 301 of the Indian Penal Code cannot be invoked in the circumstances of the case
To appreciate the argument of the learned counsel it would be convenient at this stage to note exactly the finding given by the High Court
The High Court found that the common intention of the accused was to kill Madha that accused 1 to 4 shot at Rama mistaking him for Madha as Rama had dressed himself in the habiliments similar to those in which Madha used to dress himself and therefore the accused shot at Rama under the mistaken belief that be was Madha
Section 34 of the Indian Penal Code reads 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 Section 34 was subject of judicial scrutiny in innumerable cases
The expression in furtherance of the common intention of all was not in the original section but was inserted in the section by section 1 of Act XXVII of 1870
The Judicial Committee in Barendra Kumar Ghosh vs Emperor1 defined the expression criminal act in the said section thus A criminal act means that united criminal behaviour which results in something for which an individual 1 Cal
197 PC  LR 52 IA 40 290 would be punishable if it were all done by himself alonethat is in a criminal offence
 The Judicial Committee in Mahbub Shah vs King Emperor1 laid down the following conditions for its application To invoke the aid of section 34 successfully it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all if this is shown then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone
This being the principle it is clear to their Lordships that common intention within the meaning of the section implies a pre arranged plan and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre arranged plan
As has been often observed it is difficult if not impossible to procure direct evidence to prove the intention of an individual in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case
 It is therefore clear that the criminal act mentioned in section 34 of the Indian Penal Code is the result of the concerted action of more than one person if the said result was reached in furtherance of the common intention each person is liable for the result as if he had done it himself
The question is what is the meaning of the expression in furtherance of the common intention
The dictionary meaning of the word furtherance is advancement or promotion
If four persons have a common intention to kill A they will have to do many acts in promotion or prosecution of that design in order to fulfill it
Some illustrations will clarify the point
Four persons intend to kill A who is expected to be found in a house
All of them participate in different ways
One of them attempts to enter the house but is stopped by the sentry and he shoots the sentry
Though the common intention was to kill A the shooting of the sentry is in furtherance of the said common intention
So section 34 applies
Take another illustration
If one of the said accused enters the room where the intended victim usually sleeps but somebody other than the intended victim is sleeping in the room and on a mistaken impression he shoots him
The shooting of the wrong man is in furtherance of the common intention and so section 34 applies
Take 1 LR 72 IA 148 153
291 a third variation of the illustration
The intended victim has a twin brother who exactly resembles him and the accused who is entrusted with the part of shooting the intended victim on a mistaken impression shoots the twin brother
The shooting of the twin brother is also in furtherance of the common intention
Here also section 34 applies
If that much is conceded we do not see any justification why the killing of another under a mistaken impression of identity is not in furtherance of the common intention to kill the intended victim
When the accused were shooting at Rama believing him to be Madha they were certainly doing a criminal act in furtherance of the common intention which was to kill Madha
They killed Rama because they believed that they were shooting at Madha
Mr Chari argues how can a mistake committed by one of the accused be in furtherance of a common intention  For it is said that to commit a mistake was not a part of the common intention of the accused
But the question is not as we have pointed out whether the committing of a mistake was a part of the common intention but whether it was done in furtherance of the common intention
If the common intention was to kill A and if one of the accused kills B to wreak out his private vengeance it cannot possibly be in furtherance of the common intention for which others can be constructively made liable
But on the other hand if he kills B bona fide believing that he is A we do not see any incongruity in holding that the killing of B is in furtherance of the common intention
We therefore hold that without the aid of section 301 of the Indian Penal Code it can be held that when accused I to 4 shot at Rama they shot at him in furtherance of their common intention to kill Madha
Now let us see the impact of section 301 of the Indian Penal Code on section 34 thereof
Section 301 reads If a person by doing anything which he intends or knows to be likely to cause death commits culpable homicide by causing the death of any person whose death he neither intends nor knows himself to be likely to cause the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause
 This section deals with a different situation
It embodies what the English authors describe as the doctrine of transfer of malice or the transmigration of motive
Under the section if A intends to kill B but kills C whose death he neither intends nor knows himself to be likely to cause the intention to kill C is by law 292 attributed to him
If A aims his shot at B but it misses B either because B moves out of the range of the shot or because the shot misses the mark and hits some other person C whether within sight or out of sight under section 301 A is deemed to have hit C with the intention to kill him
What is to be noticed is that to invoke section 301 of the Indian Penal Code A shall not have any intention to cause the death or the knowledge that he is likely to cause the death of C
In the instant case this condition is not complied with
The accused shot at a particular person with the intention of killing him though under a misapprehension of his identity
In that case all the ingredients of sections 299 and 300 of the Indian Penal Code are complied with
The aid of section 301 of the Indian Penal Code is not called for
We are therefore of the opinion that section 301 of the Indian Penal Code has no application to the present case
For the foregoing reasons we hold that all the accused are liable under section 302 read with section 34 of the Indian Penal Code
If we reach this conclusion it is conceded that no other point arises in this appeal
The appeal fails and is dismissed
Appeal dismissed


Summary:
Where four persons shot at the deceased with the intention of killing him but under a misapprehension that he was some one else they could be found guilty of an offence under section 302 of the Indian Penal Code read with section 34 of the Code
It would be a case of killing the deceased in furtherance of their common intention to kill the other and there would not be any necessity to invoke section 301 of the Code to find them guilty
In fact that section would apply only to cases where there was no intention to cause the death or knowledge that death was likely to be caused of the deceased
291D E H 292A B
Barendra Kumar Ghosh vs Emperor LR 52 IA 40 and Mahbub Shah vs King Emperor LR 72 IA 148 referred to