Govinda Menon, J.:— These are two connected appeals arising from the conviction and sentence passed by the learned Sessions Judge of Ernakulam in Sessions Case No. 16/59. Appeal 217/59 is by the 1st accused who has been convicted under Sections 302, 323 and 341 of the Indian Penal Code. Appellant in 177/59 is the second accused in the case. He has been convicted under Sections 302, 323 and 341 of the Indian Penal Code read with section 34 of the Indian Penal Code. Besides these two accused, there was another accused in the case. He was convicted only under Sections 323 and 341 of the Indian Penal Code read with Section 34 of the Indian Penal Code. He has not filed any appeal.
2. The prosecution case was that on 4-1-1959 the accused caused the death of deceased Bastian. On that day there was the betrothal ceremony of Bastian's daughter. After the ceremony, the deceased and P.W 5, Antony, went to the toddy shop at Kompara Muku at Mattancherry at about 6-30 P.M They met P.Ws 6 and 7 two rikshaw-walas in the toddy shop. They were also invited for drinks. After taking toddy, the deceased Bastian started singing. P.W 12 Thomas who was supplying toddy objected to the deceased singing. In another room of the shop the three accused and P.W 8 were taking toddy. They came to the room where the deceased was singing, and the first accused also asked him not to sing. The deceased got offended at this and told the first accused that he had no business to interfere. There ensued an altercation. P.W 8 and others pacified and the deceased and the accused shook hands. While leaving, the first accused told Bastian meaning thereby, that he would kill him. The 3 accused and P.W 8 left the shop. While proceeding, near the T.D School, there was a music party and P.W 8 and the second accused remained there. The 1st accused and the 3rd accused proceeded towards the west. Soon after P.W 8 and the 2nd accused also followed them and met the first and the third accused at the Ammankoil. The first accused then said he would not return home without questioning the deceased. P.W 8 tried to pacify. P.W 8 parted company and went to his house. Bastian and P.W 5 also left the toddy shop. On their way home at the Chiralai Junction P.W 5, Antony got into a rickshaw and left for his house. Bastian proceeded to his house alone. When he reached the chapel in the Dharmasala road, the three accused met him. They stopped him there. The second accused caught him in his grips and the first and the third accused assaulted him. Deceased Bastian had a knife with him, and when he waved the knife it struck the second accused and he was injured. The second accused then said On hearing this, first accused whipped out the dagger from his waist and stabbed Bastian on the chest and left shoulder. He ran a few yards and fell down. Then second accused and third accused are alleged to have assaulted Bastian. P.W 3 witnessed the entire incident. P.W 1, Annamma who lives nearby heard the commotion and she saw Bastian falling down and second accused beating Bastian. P.W 4, Varghese heard the words and the voice appeared to be that of the second accused. He rushed to the scene atonce and saw the first accused leaving the place with the dagger. P.W 2 Antony, the son of Bastian on getting the information reported the matter to the police at 11.15 p.m P.W 23 the Sub-Inspector registered a case. P.W 24, the Circle Inspector of police held the inquest over the dead body the next morning. P.W 21 conducted the autopsy and Ext. P. 8 is the postmortem certificate. He has noticed two injuries on the deceased:
i) A stab wound 1 ″ long ¼ ″ broad on the right side of the chest; and
ii) A stab wound 1 ″ × ¼ ″ on the medial aspect of the left supra clavicular fosse. On dissection injury No. 2 was found to have penetrated inside and severed the left external and internal jugular veins and medial end of left subclavian artery.
3. According to him, injury No. 2 in Ext. P. 8 is necessarily fatal and the cause of death was shock and haemorrhage due to the stab wounds described by him in Ext. P. 8. The accused admits that they had met Bastian at the Dharmasala road near the Chapel. According to the 1st accused, Bastian felled him down by beating him. Then second accused caught hold of Bastian. Bastian stabbed him on the hand. The second accused and third accused then ran away from the place. After the second and third accused left the scene, Bastian attempted to slab him, when he took the dagger M.O 2 and stabbed in self defence. According to him, Bastian was the aggressor and he says, if he had not used his dagger, Bastian would have killed him. The second and third accused support this version.
4. The learned Sessions Judge on a consideration of the evidence in the case has not accepted the defence case and has entered the convictions as stated above.
5. The only questions for decision in these appeals are whether the first accused is protected by the right of private defence as contended by him and can be completely exonerated and if not, what is the offence that he has committed, and whether the second accused is guilty of any offence, and if so what is the offence he is proved to have committed.
6. P.W 8, Peru Thomas is a very important witness. He is an uncle of the first accused and was present with him in the toddy shop. He has no axe to grind against the first accused. His evidence is that the three accused did not go back to their house after leaving the toddy shop and when he left for his house the 1st accused told him that he will not go home without questioning Bastian. Even at the toddy shop, we have the evidence of P.W 5, Antony, that after Bastian and the 1st accused shook hands, the 1st accused told Bastian meaning thereby that he would kill him. Later on, all the three accused met Bastian at the chapel in the Dharmasala road and stopped him there and the first accused stabbed him. If this evidence is true and acceptable, then there cannot be the slightest doubt that the 1st accused was on the aggressive that night and was waiting for an opportunity to attack Bastian as he was coming along. P.W 3 is an eye-witness to the whole incident. If his version of the incident is true, no question of private defence arises at all. We have carefully looked into his evidence and do not find anything to discredit it. There is absolutely no enmity between him and any of the accused. The discrepancies and contradictions referred to by the learned counsel for the defence are more imaginary than real and we have no hesitation in accepting his testimony. His evidence to a great extent is corroborated by the evidence of P.Ws 1 and 4 and they are also thoroughly disinterested witnesses. Merely because the first and second accused sustained certain injuries in the course of the incident is no reason to discredit the testimony of the prosecution witnesses and that does not help the accused in proving the case set up by them. The subsequent conduct of the 1st accused is also not consistent with the plea that he has set up. If really he was not the aggressor and he acted only in self defence, one would have expected him to rush up to the authorities and complain, instead of absconding from the place. There was no need for him to hide the dagger M.O 2 in the tapioca bed. According to P.W 24, the Circle Inspector of Police, on information furnished by the 1st accused, this dagger was seized from the tapioca bed under list Ext. P. 4. P.W 17 is the attestor to Ext. P. 4. We therefore find that the learned Sessions Judge was perfectly justified in negativing the plea of the accused and finding the 1st accused guilty of the offence he stood charged with.
7. The next question is whether the second accused has been rightly convicted under sections 302, 323 and 341 I.P.C read with section 34 of the Indian Penal Code. The learned Sessions Judge in para 14 of the judgment says that from the prosecution evidence itself, it would appear that accused 2 and 3 had originally no common intention to cause the death of Bastian. But the learned Judge says that when the second accused after getting injured said it could be assumed that the second accused had from that moment developed a common intention with the 1st accused to kill Bastian. We are unable to agree.
8. It is well-established that a common intention presupposes prior concert. It requires a pre-arranged plan before a man can be vicariously convicted for the criminal act of another; the act must have been done in furtherance of the common intention of them all. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention and yet none would have the common intention required by the section, because there was no prior meeting of minds to form a pre-arranged plan. In a case like that each would be individually liable for whatever injury he causes; but none could be vicariously convicted for the act of any of the others. Authority for this position is to be found in Mahbub Shah v. Emperor (A.I.R 1945 P.C 118) and Pandurang v. State of Hyderabad (A.I.R 1955 S.C 216). As their Lordships say in the Privy Council case referred to above, “the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice”.
9. No doubt the plan need not be elaborate. It could arise and be formed suddenly. Pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between several of the accused with reference to the facts of a particular case and the circumstances of the situation. But as stated in the Privy Council case, referred to above, “the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.” In the instant case, accused 2 and 3 did not take part in the altercation at the toddy shop. They did not speak anything to the deceased. Even when leaving P.W 8, when the 1st accused remarked that he will not go home without questioning Bastian, second and third accused did not say anything. There is no suggestion of any enmity between them and the deceased. Merely from what the second accused said after he was injured We cannot spell out a common intention of causing the death of Bastian. We are therefore of opinion that the facts disclosed, do not warrant an inference of common intention and we hold that the conviction of the second accused for the offence under section 302 read with section 34 of the Indian Penal Code is unsustainable and we set aside the conviction under that section and the sentence of life imprisonment awarded to him. On the evidence adduced by the prosecution and which we have accepted the conviction and sentence under sections 323 and 341 I.P.C read with section 34 of the Indian Penal Code are correct and are hereby confirmed.
10. In the result, the conviction and sentence on the first accused are confirmed and the conviction and sentence on the second accused are modified as stated above.
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