Kincaid, J.:— [His Lordship after setting out the facts of the case dealt with the ease against appellant No. 1 Ranchhod. The conviction and sentence passed upon him were confirmed. The cases of appellants Nos. 2 and 3 were considered on the facts. The judgment then continued:]

On the facts, therefore, I have not the slightest doubt that the appellants Nos. 2 and 3 conspired, with appellant No. 1 to shoot Nathuram on the morning of October, 24.

I now torn to the legal points in the case, which are of considerable importance. The first point raised by the learned advocate was that his clients, appellants Nos. 2 and 3, had been charged under sections 148, 149 and 307, but had been convicted under section 114 read with section 307. The learned counsel next argued that to charge a person with a substantive offence and to convict him on a charge of abetting that offence, was illegal and afforded a good ground for retrial.

In support of his contention the learned advocate quoted the case of Reg v. Chand Nur and Emperor v. Raghya Nagya. I cannot find any such dictum in the two cases. As regards the first of these two cases, there is not the slightest doubt but that the accused had in the lower Court been convicted not under section 114 read with section 302 but under section 109 read with section 302. The sections are not given, I admit, in the report; but from the judgment itself it is clear that the accused was charged with murder but was afterwards held not to have been present at the commission of the offence. The accused was convicted of abetment of murder. It is clear that such a conviction could only have taken place under section 109 read with section 302.

The facts in Emperor v. Raghya Nagya are not so clear, but, as the learned Chief Justice in his judgment held that he was bound by the decision in Reg v. Chand Nur, I must come to the conclusion that there too the Judge of the lower Court convicted the accused not under section 114 read with section 302, but under section 109 read with section 302.

We are therefore, not bound, in my judgment, by any previous decision of this Court. Speaking for myself, I can see no reason why a person who is charged under section 302 cannot be tried and convicted, although he is not charged with it, under section 114 read with section 302. A man so charged and so convicted would not in any way be misled in his defence; for be is punishable under section 114 not as a mere abettor but as a principal. I, therefore, hold that a man charged with the substantive offence can be rightly convicted of that offence read with section 114, although not charged with it.

In this case, however, the circumstances are different. The appellants were not charged merely with the substantive offence and convicted under section 307 read with section 114, but they were charged under sections 148 and 149 and section 307. In other words, the accused were charged in that they were members of an unlawful assembly, that the unlawful assembly had a common object, and that in pursuance of the common object Ranchhod committed an offence under section 307. The lower Court has held that there was no unlawful assembly, because there were not five persons present. It has held that there were three men who had a common object, and that in pursuance of that common object, Ranchhod committed an offence under section 307. Now when five persons are not present, there can be no unlawful assembly: so there can be no conviction under section 148 or 149. But under section 238 of the Criminal Procedure Code it is laid down:

“When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.”

Now is there any offence which the particulars in the charge minus the presence of five persons went to make up? The lower Court found the accused guilty under sections 114 and 307.

The learned counsel has contended that a man may be a member of an unlawful assembly without being guilty of abetment. In other words, he may have joined the unlawful assembly innocently, and by continuing in it although aware of the facts which render it unlawful, may become liable under section 142, Indian Penal Code. Now that is an exceptional case, and the aid of section 142 has not been invoked here. The definition of an unlawful assembly is given in section 141. If we turn to clause 3 we find the words “An assembly of five or more persons is designated an ‘unlawful assembly’, if the common object of the persons composing that assembly is to commit any mischief or criminal trespass, or other offence” Now if five persons assemble with the common object of committing an offence, they clearly engage in a conspiracy to commit that offence; in other words, they come within the four corners not only of section 141 but of section 107. When three persons assemble with the common object of committing an offence, they are not an unlawful assembly but they do engage in a conspiracy to commit that offence. In other words, there are not present all the particulars which go to make an offence under section 148 or 149, but there are present the particulars which go to make an offence under section 114 read with the substantive section.

The learned counsel, however, has argued that this reasoning does not advance the matter, for section 238, Criminal Procedure Code, only refers to minor offences, and that the offence under section 307 read with section 114 is not a minor offence as compared with one under section 307 and section 149. This argument is not without weight, although, as it seems to me, a conspiracy of six persons to murder is not less grave than one of three persons and an abetment is a minor offence as compared with the substantive offence. It must also be remembered that our power to set aside the charge is limited by section 232 and section 537, Criminal Procedure Code. Section 232 runs as follows:—

“If any Appellate Court, or the High Court in the exercise of its powers of revision or of its powers under Chapter XXVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit.”

Section 537 runs as follows:—

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account—(a) of any error, omission or irregularity in the complaint, summons, warrant, charge… judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code… unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice.”

Now where an accused person has been charged with one offence consisting of several particulars, a combination of some of which only constitutes a complete offence, and such combination is proved, but the remaining particulars are not proved, and he is convicted of such offence although not charged with it, can he be said to have been misled in his defence by an error in the charge or can it be said that such an error in the charge occasioned a failure of justice? I think not; for every particular of the offence of which he was convicted was present in the offence with which he was charged.

In any case, however, the accused as it seems to me could have been and indeed were convicted under section 307 read with section 34. The learned advocate for the appellants Nos. 2 and 3 has relied upon the case of Emperor v. Nirmal Kanta Roy and the case of Emperor v. Profulla Kumar Mazumdar. In the former case the learned Judge (Stephen J.) held that where of two men one fired and killed a third person and the other fired and missed him the latter could not be found guilty under section 302 read with section 34. To quote the Judge's words (p. 1088):

“In this case the killing of Nripendra was, according to the evidence, done by one person who was not the accused. It was, therefore, not done by several persons and I do not see how the section can apply. The only act he can be liable for under the section is one done by several person of whom ho was one, that is by the man who escaped and himself.”

This view was followed in Emperor v. Profulla Kumar Masumdar. The learned Judges, however, seem to have overlooked section 9 of the Indian Penal Code which in my opinion would have removed the difficulty felt by Stephen J. Section 9 runs as follows s—

“Unless the contrary appears from the context, words importing the singular number include the plural number, and words importing the plural number include the singular number.”

If we torn then to section 34 and read it in the light of section 9, we can interpret it as follows:— “When a criminal act is done by one or more 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”.

The question was recently exhaustively considered in Emperor v. Barendra and Stephen J's view was overruled as unduly narrow. Richardson J. put the case in the following words (page 576):—

“Prove the common intention of the persons present at the commission of the offence and all would be equally guilty of nothing less than that offence. If death were the result of the act or series of acts of one out of several confederates, the act would be done by them all within the weaning of section 34. If death followed the different acts of different confederates at the same time and place, then again section 34 would probably suffice. Every confederate would be regarded as having done every criminal act and would therefore be liable as if he had done them all alone.”

For the above reasons I hold that there was no legal defect in the conviction by the learned Judge of the lower Court. I have already stated that I entirely agree with the learned Judge's very careful finding on the facts of the case.

Coming to the question of sentence, the learned advocate has urged that at any rate the appellant No. 2's sentence of five years should be reduced to the two years inflicted on appellant No. 3. At the same time he begged us to consider whether the sentence passed on appellant No. 3 should not also be reduced. For my part I cannot say that the sentence errs in any way on the side of undue severity. Had the shots of appellant No. 1 taken effect, both the appellants Nos. 2 and 3 would have been in grave danger of their lives. The reason why the learned Judge inflicted a higher sentence on appellant No. 2 is obvious. It was in his house that the conspiracy was hatched: it was his house which afforded a hiding place from which the would-be murderer set forth to shoot Nathuram.

I have no hesitation, therefore, in confirming the convictions and sentences on all the three appellants, and I dismiss their appeal.

Marten, J. [After discussing the facts of the case, his Lordship dealt with the point of law thus:] I now turn to the important point of law involved as regards accused Nos. 2 and 6. It is argued that an accused charged under section 307 with an attempt to murder cannot, as here, be convicted under that section as read with section 34 or section 114, unless sections 34 and 114 or one of them are expressly mentioned in the charge. Now it is important to remember here what the charge was, and also the finding by the Court. I have already stated what that finding was. As regards the charge, it was not only under section 307, but was also under sections 148 and 149. But to avoid any misconception, I wish to make it perfectly clear that in my opinion there were separate and alternative charges under sections 148 and 307. In other words, it was quite permissible to convict under suction 307, as happened in the case of accused No. 1, although the charge failed under section 148. In effect then the charge was that these three accused, Nos. 1, 2 and assembled with others with a common object or intention of murdering Nathuram, and that this was to be effected by accused No. 1 shooting at Nathuram, which accused No. 1 in fact did and thereby caused grievous hurt, and that accordingly all the accused were guilty of an attempt to murder. So the charge alleged a common presence: a common object: the actual slaughter to be effected by one: and the consequence in law, the criminal offence of an attempt to murder

Accordingly accused Nos. 2 and 6 knew that they were charged with attempt to murder, although the actual shots were admitted by the Crown to be fired by accused No. 1 alone. They also knew that, as they were charged with a common object or intention along with accused No. 1, this, if proved, might make them criminally liable under section 34 (subject to the question of construction which I will mention later), or else that their acts would amount to a conspiracy and hence to abetment under section 107(2), in which case they might be liable to be convicted as if they were principals under section 114. As to this, I wish to make it perfectly clear that, if I thought here that this was a case of an accused being charged with one offence and convicted of another, or if I thought there was the slightest reason to suppose that the accused were actually misled in their defence, I would unhesitatingly join in setting aside the conviction, and if necessary in ordering a retrial. I in no way depart from the ordinary view of the criminal law in this respect which recently found expression in Emperor v. Appaya Basling appa. There Mr. Justice Coyajee and myself set aside a conviction where a man who had been charged with abetment of murder was acquitted of that charge but was then convicted by the learned Judge of causing disappearance of the evidence of offence under section 201, when in point of fact there was nothing in the charge on the point, nor was the opinion of the assessors even asked upon it.

But here, as I have already endeavoured to point out, the charge told the accused plainly what the case was against them. And that they were not in fact misled appears also from the arguments advanced by Mr. Manilal K. Desai the pleader for accused Nos. 1 and 2, in his summing up, viz., “Accused Nos. 3, 4 and 5 in any case cannot be held responsible for any conspiracy or abetment. Tapeli is a concoction. Nor has accused No. 2 abetted the firing of the gun by accused No. 1”, and the public prosecutor urged in reply “All the other accused conspired with accused No. 1 and so all are guilty of the offences charged”. If then there was nothing more in the case, it might be said that, even if it was an error that no specific mention was made in the charge of section 34 or section 114, still it was a defect which could be cured under either section 232 or section 537 of the Criminal Procedure Code, as no miscarriage of justice had resulted, nor had the accused been misled in their defence, nor had the point been raised at the trial.

But was it an error not to mention section 34 of section 114 specifically? In the first place, section 34 is a rule of law and not an offence in itself. It appears in a Chapter headed “General Explanations” which contains (inter alia) various definitions. Section 34 itself runs:—

“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.”

It is said, however, that in the present case the act was the firing of the gun, that it was done by one man alone, and that accordingly it was not done by several persons within the meaning of section 34, and that accordingly that section does not apply. The learned advocate for accused Nos. 2 and 6 pressed this point of law strongly on us, and cited some authorities in Calcutta to establish his views. But the Court pointed out that there was a recent case in Calcutta which reviewed all the previous authorities and which, being a decision of the Full Bench of Calcutta, would be binding on that Court: King-Emperor v. Barenclra Kumar Ghose.

Counsel were good enough to get his authority for the Court, I regret I cannot give reference to the authorised reports, because apparently there is as much delay in Calcutta in issuing the authorized reports as we have in our own Presidency. It is regretable that although that case was decided as long ago as September 26, 1923, we are unable to get the authorized report by the end of July 1924.

In that case there was a reference under the Letters Patent against a charge to the Jury by Mr. Justice Page at the High Court Sessions. I should state that it was a case where some armed men entered a Post Office, and one or more of them shot the Post Master. The accused alleged that he was on watch outside the Post Office at the time. The prosecution case was that he went inside, but it appears to have been uncertain who actually fired the fatal shot. The accused was charged under sections 302 and 394. There was no charge under section 34 or 114. The charge to the Jury was this (page 173):—

“Therefore in this case if these three persons went to that place with a common intention to rob the Post Master and if necessary to kill him and if death resulted, each of them is liable whichever of the three fired the fatal shot.

If you come to the conclusion that these three or four persons came into the Post Office with that intention to rob and if necessary to kill and death resulted from their act, if that be so, you are bound to find a verdict of guilty.

I my if you doubt that it was the pistol of the accused which fired the fatal shot, that does not matter. If you are satisfied on the other hand that the shot was fired by one of those persons in furtherance of the common intention, if that be so then it is your duty to find a verdict of guilty.”

The Full Bench reference was heard by five Judges including Mr. Justice Page. The unanimous finding was that there was no misdirection and that the balance of authority and reason was against the limited interpretation placed on section 34 of the Indian Penal Code in Emperor v. Nirmal Kanta Roy.

Now I do not propose to discuss the authorities which the learned Judges in the Full Bench case exhaustively considered. They number altogether over 200. Nor is it necessary for me to read extracts from their judgments. I am content to say that with great respect I entirely concur in the result which they have arrived at. It may, however, be observed that apparently they have arrived at that result quite irrespective of section 9 of the Indian Penal Code which section we mentioned to counsel for consideration. In reply it was urged that to apply section 9 of the Indian Penal Code, to section 34, would be adopting a most violent construction or application of section 9. But to do so is only to give an interpretation to section 34 which the Full Bench of the Calcutta High Court has arrived at, quite irrespective of section 9. After all, what does section 9 say?:—

“Unless the contrary appears from the context, words importing the singular number include the plural number, and words importing the plural number include the singular number.”

If then in section 34 the words “by several persons” which in fact import the plural, are also to be deemed to include the singular, unless the context is to the contrary, then surely it is permissible to read the section as being in effect as follows, viz.:—

“When a criminal act is done by one or more of several persons in furtherance of the common intention of all, each of such several persons is liable for that act in the same manner as if it were done by him alone.”

In this connection one must always remember that in a Code one has first of all to turn to the definitions which are used. If one forgets to do so, one may be trapped into a mistake and after all it is only fair to the draftsman to try and understand his mind and the intentions with which he has drafted any particular document, so that one may appreciate his expressions, and none the less so when for brevity he uses one particular expression to include one or more, what I may call, sub expressions.

It follows, therefore, that in my judgment the conviction by the learned Judge, viz., under section 307 read with section 34 or section 114, can at any rate be sustained as being under section 307 read with section 34. The mere fact that the judgment was in the alternative is immaterial under section 367(2) of the Criminal Procedure Code.

But in deference to the arguments which have been addressed to us, I think I should deal shortly with section 114. My learned brother has pointed out that this case is entirely different from Emperor v. Raghya Nagya and Reg v. Chand Nur. In the latter case the party accused of abetment was not present, and the real ground on which the conviction was set aside was that the Court thought that the defence was not given fair notice of the charge actually brought against them. What the learned Judge said there is (p. 241):—

“When a man is accused of murder, he may not be conscious that he will have to meet an imputation of collateral circumstances constituting abetment of it, which may be quite distinct from the circumstances constituting the murder itself.”

So, too, in the case before Sir Norman Macleod and Mr. Justice Shah, there was a doubt whether the woman was present at the offence as well as the man who actually did the deed. I have no doubt that is why the appellate Court thought that the proper charges should be in the alternative, viz., under section 302 read with section 109 or section 114. But I am not prepared to extend, that case to a case like the present where the accused were in fact present, and were charged with being present and were also charged under sections 148 and 149, viz., with a common object and a common intention of an attempt to murder in a particular manner.

I should have mentioned that the Calcutta Full Bench will in due course come under review by their Lordships of the Privy Council, as a certificate of appeal has been granted by the Calcutta High Court, as appears from Barendra Kumar Ghose v. The King-Emperor. It may be, therefore, when we have the advantage of the decision of the Privy Council in that particular case, that it may become a question whether these two earlier Bombay cases should be reviewed by a Full Bench.

But I repeat that the real test in my opinion is whether the accused fairly knew the charge they had to meet. In the present case I think they did and that the actual conviction was justified under the procedure in force in this country.

I accordingly agree with my learned brother in thinking that this appeal should be dismissed. I have nothing to add to what he has already said on the question of sentence.

Appeal dismissed.

R.R

Note.—The appeal has since been dismissed by the Privy Council. The judgment has not as yet been reported in the authorised Reports but will be found reported in (1924) 41 T.L.R 27 [Ed.].