Mack, J.-Ramaswami alias Kuppuswami, aged 27, has been found guilty under section 302, Indian Penal Code, of the murder of Subramania Mudali, whom he is alleged to have shot through the head with a revolver in the course of a highway robbery on the Katpadi Gudiyattam High Road at about 7-40p.m. on the 21st August, 1950. Muniyandi, the 2nd accused, who is also said to have carried a revolver in this robbery has been found guilty under section 302 read with section 34, Indian Penal Code. The learned Sessions Judge has sentenced them both to death. Two others (accused 3 and 4), who were also charged under section 302, Indian Peanal Code, read with section 34, Indian Penal Code, have been acquitted. The deceased Subramania Mudali’ was a handloom cloth trader of Gudiyattam who was returning in a bandy driven by his cousin Natarajan (P.W. 2), a lad of 16. They sold saries at shandies and had about Rs.70 kept under their bag of unsold articles. The bandy was, according to P.W. 2, held up by accused 1 and 2 and two others whom they identified as the acquitted accused all of whom had revolvers. First accused ordered the deceased to get down. He did so but refused even at the point of a revolver to hold up his hands. The first accused fired a shot which missed the deceased, who hid behind the cart. Then the second accused fired again and deceased hid behind the bull. According to P.W.2 accused 3 and 4 also fired but missed. Then the deceased caught hold of the first accused, it would appear, with one hand and his neck with the other and they struggled on the road when a bus came along towards Gudiyattam from Katpadi with lights full on. First accused then fired a shot at the deceased’s right temple. He collapsed. Accused 1 then tore away his shirt pocket and took his purse and all the accused made good their escape. In the bus were the Checking Inspector (P.W.3), the bus driver (P.W.5) and P.W.7 a passenger, who was seated in the front seat. P.Ws.5 and 7, who had the best facilities for observation, substantially corroborate each other. The bus driver says he saw three men struggling on the road near a stationary bandy. In the bus were the Checking Inspector (P.W.3), the bus driver (P.W.5) and P.W.7 a passenger, who was seated in the front seat. P.Ws.5 and 7, who had the best facilities for observation, substantially corroborate each other. The bus driver says he saw three men struggling on the road near a stationary bandy. He stopped the bus about 9 feet from them, it would appear, after hearing a sound of a shot. He saw a black weapon in first accused’s hand and a white weapon in second accused’s hand and accused 1 take something from the pocket of the deceased after he had fallen down. Then accused 1 and 2 ran away. He did not observe the two other men though P. W. 7 whose observations were similar, says he saw two others standing in a little distance away. P. W. 3’s observations were similar but he does not depose to the colour of the weapons in the hands of accused 1 and 2. As will presently be shown, there is considerable significance in this as two revolvers, one black and one white, have been recovered. When these witnesses alighted and came up to Subramania Mudali, they found him dead and immediately P.Ws.3 and 5 proceeded by themselves in the bus to Kilvaithinakuppam police station which they reached at 8-15 p.m. The Sub-Inspector proceeded in it at once to the scene with armed constables, and recorded a complaint Exhibit P-3 from P.W.2, in which he describes the robbers as wearing full pants and full arm shirts. In Exhibit P. 3 he did not say that all the four robbers had revolvers and he there speaks to four shots altogether having been fired. It is in evidence and not disputed that accused 1 and 2 had recently come to India from Singapore. Muniswami (P.W.8), a very material witness in the case lives in Kattubadi, a village of Gudiyattam taluk said to be about 7 or 8 miles from the scene of offence by a short cut and worked in an estate in Penang for some years with his brother, the 3rd accused. Accused 2 and 4, he says, also worked on this estate. He returned to India in April, 1950 and settled down in his village. Accused 3 had returned to India some time previously and came to live with him. Accused 2 and 4, he says, also worked on this estate. He returned to India in April, 1950 and settled down in his village. Accused 3 had returned to India some time previously and came to live with him. The second accused after paying him a visit, returned some days later with the first accused and introduced him as his friend. Some days later, accused 1 and 2 went to Bangalore and after staying there 10 or 15 days returned with two khaki bags containing two revolvers (M.O.5 and M.O.6). On the day of offence, according to P.W.8, accused 1 to 4 all left his house together with the two revolvers. At 9 p.m. accused 1 and 2 came back panting followed later by accused 3 and 4. P.W.8 says accused 3 went to his mother’s house and that accused 1, 2 and 4 slept in his house that night and the next morning first accused told him that they had way-laid a cloth cart and shot a man, who refused to part with his money and took a money purse, which was found to contain only Re. 1-4-0. Second accused left for Madras. On the 27th of August, 1950, at 5a.m. the Circle Inspector (P.W.18) acting on information surrounded the house of P.W.8 and caught the first accused as he was jumping over the back wall with a canvass bag in which were found the two revolvers (M.Os.5 and 6), four live 380 revolver cartridges (M.O.12) and a single live 320 cartridge (M.O.14). M.O.5 is a black 6 chambered revolver of 380 bore. M.O.6 is a white nickel 6 chambered revolver of 450 bore. There are no grounds whatsoever for rejecting the evidence of the Inspector that both these revolvers were recovered from the possession of the first accused, who endeavoured to make good his escape when the police surrounded the house of P.W.8. Post-mortem on deceased showed that a 380 bullet (M.O.15) obviously fired from M.O.5, as an expert witness deposed had entered his right temple and was found lodged in his neck after passing through his brain. There can be no doubt that the deceased was killed by a bullet fired from M.O.5 recovered in this manner from the possession of the first accused. There can be no doubt that the deceased was killed by a bullet fired from M.O.5 recovered in this manner from the possession of the first accused. At an identification parade held on 2nd September, 1950, by Sub-Magistrate of Gudiyattam evidenced by a panchanama, Ex, P-2, P.Ws.2, 3, 5 and 7 identified accused 1 and 2 as the men armed with revolvers. They are positive that it was the first accused who was struggling with the deceased at the time the shot was fired and, as I have said, P.Ws.5 and 7 swore that the weapon accused 1 had in his hand was black. If their evidence is to be believed, there is no reason why it should not be believed with ample opportunities they had for observation and identification with the bus lights full on, there can be no reasonable doubt that it was the shot fired by the first accused from M.O.5 which killed the deceased. At this identification parade P.Ws.10, 11, 12, 13 and 14 who saw accused 1 and 2 together at the earlier stages of that afternoon identified them. For instance, P.W.10 says accused 1 and 2 had a drink from a well in his field at about 5-30 p.m. and were joined by two others. P.W.11 says accused 1 and 2 came to her tea shop at about 6p.m. that day. P.W.12 saw accused 1 and 2 with two others on the road near the scene of offence at about 5-30p.m. P.W.13 saw accused 1 and 2 and two others walking away hurriedly in the moonlight when he was returning from the railway line 3/4 of a mile from where the corpse was. His identification of accused 1 and 2 is obviously unsatisfactory. P.W.14 was returning from a shandy at 6-30p.m. and says he saw accused 1 and 2 and two others loitering near banyan tree. They were strangers to him and his actual identification is open to the same criticism. The cumulative effect of the identification of accused 1 and 2 by the other witnesses is however cogent and conducive. We now come to a confession Ex. P-5 recorded from the second accused on 14th September, 1950, after he was arrested in Madras on 27th August, 1950. The second accused has retracted that confession which both before the committing Magistrate and the Sessions Court, he said was due to Police coercion and beatings. We now come to a confession Ex. P-5 recorded from the second accused on 14th September, 1950, after he was arrested in Madras on 27th August, 1950. The second accused has retracted that confession which both before the committing Magistrate and the Sessions Court, he said was due to Police coercion and beatings. Ex. P-5 gives a detailed account of his association with the first accused and also accused 3 and 4 upto the time of this offence. He stated there that he invited the first accused to Kattupadi, that the first accused had in his possession one revolver and one cartridge, that they went to Bangalore where the first accused bought another revolver from one Ramu and he then described this highway robbery. He said, he had one revolver, that the first accused had the other, that at the commencement first accused fired a shot in the air and that he fired a shot aiming it at the ground but that the revolver missed fire. Just then the bus came into view. He continued pressing the trigger and a cartridge went off. As the bus came near, the first accused fired a shot aiming his revolver at the head of the deceased, who collapsed and he then tore off the deceased’s pocket with the money purse in it and they all ran away. In his confession the second accused has committed himself up to the hilt as one of the robbers, who was armed with a revolver although he attributes the blame of the fatal shot to the first accused. Ex. P-5 has been challenged as inadmissible in evidence by Mr. Venkataraman for the appellants on the ground that the Magistrate recording it did not give the second accused a specific warning that it was not intended to make him an approver as required by rule 85 of the Criminal Rules of Practice. Rule 85 lays down that no magistrate shall record any statement or confession made by an accused under section 164, Criminal Procedure Code, until he has explained to the accused that he is under no obligation to answer any question at all and has warned the accused that it is not intended to make him an approver and that anything he says may be used against him. This rule then sets out certain questions which Magistrates may usefully put. This rule then sets out certain questions which Magistrates may usefully put. The Magistrate put the following questions to the second accused: “Did the police offer inducements to you that you would be released if you make a statement before Magistrate in court? Have you understood that the statement you give will be used against you?” We think that it is a substantial compliance with the requirements of rule 85 although the word “approver” was not actually imported into the question. Our attention has been drawn to a recent bench decision Madithathi Venkatareddi, In re1, a case where there were several accused, two of whom made confessions which they retracted. There were 8 accused originally charge-sheeted. The learned Bench held that the omission by the Magistrate to warn the two accused, who made confessions that it was not intended to take them as approvers was fatal to the admissibility of the confession. The learned Bench relied on Govinda Subbaramayya v. Emperor2, a decision by a single Judge and an unreported Bench decision in R.T.No.55 of 1947 for the position that such an omission was fatal to the admissibility of a confession. We cannot regard that decision as laying down any hard and fast rule that in all cases, where there has been a technical breach of rule 85 in giving the warning required there, a confession is rendered inadmissible. This specific point was considered in In re Kamsala Muneyya3, by Mockett and Horwill, JJ., who observed that the object of putting the question set cut in rule 85 was merely to enable the Magistrate to make sure that the statement was a voluntary one, and that the confession cannot be rejected merely because a formal question was not asked. Rule 85 merely embodies some Government orders directing Magistrates to observe certain formalities to ensure that so far as possible confessions recorded from accused persons are voluntarily made and to minimise the possibility of their rejection in evidence under section 164, Criminal Procedure Code. The statutory requirements of section 164, Criminal Procedure Code, are that a Magistrate shall before recording any confession explain to the person making it that he is not bound to make a confession and that if he does so, it may be used as evidence against him. The statutory requirements of section 164, Criminal Procedure Code, are that a Magistrate shall before recording any confession explain to the person making it that he is not bound to make a confession and that if he does so, it may be used as evidence against him. In Karunthambi alias Subramania Goundar, In re4, Govinda Menon, J., and one of us (Krishnaswami Nayudu, J.) held that a transgression of rule 85 of the Criminal Rules of Practice in that the confession was not recorded during Court hours does not amount to a defect of substance but only of form which cannot invalidate the confession. In this case the requirements of section 164, Criminal Procedure Code, have been complied with and though there has been a technical non-compliance with rule 85 of the Criminal Rules of Practice, we are quite satisfied that the second accused’s confession was voluntarily made to the Magistrate and that he could have been under no misapprehension at the time he made it that he would be released or taken as an approver. However quite apart from the confession, there is ample and overwhelming evidence against both the appellants that they way-laid this bandy, each carrying a loaded revolver. The learned Sessions Judge found it was the first accused who shot the deceased in the head with the black revolver (M.O.5). Mr. Venkataraman has urged that there is reasonable doubt as to who fired this shot in view of the shot being directed downwards from the temple, the bullet having buried itself in the neck. We think it extremely improbable that this bullet could have been fired from a revolver by a man some distance away unless the deceased was in crouching posture. There are no grounds for rejecting the evidence of the witnesses that the first accused and the deceased were engaged in a struggle at the time the shot was fired. We are satisfied that accused 1 on being conscious that a bus with head lights was approaching wanted to shake off Subramania Mudali who had caught hold of him and in the course of the struggle the deceased may have been forced into a bent position at which the bullet fired by the first accused entered his temple at the angle it did. We are in complete agreement with the finding of the learned Judge supported by the unanimous opinion of the assessors that accused 1 fired this fatal shot and is guilty under section 302, Indian Penal Code. The case of the second appellant whom all the assessors were of opinion was not guilty, but who has been convicted under section 302, Indian Penal Code, read with section 34, Indian Penal Code, requires different consideration. Mr. Venkataraman has urged that the second accused had no common intention of killing the deceased and cannot be convicted of murder. Under section 34, Indian Penal Code, 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 has been conclusively established that accused 1 and 2 had the common intention of robbing the deceased, each armed with a loaded revolver. By their taking loaded revolvers with them, they clearly had a common intention to use these revolvers if necessary to effect robbery and, if necessary by killing Subramania Mudali if he should offer resistance. In this case there can be no doubt that if Subramania Mudali meekly put up his hands and surrendered the money he had in the bandy, he would have escaped with his life, instead of which he courageously resisted these armed bandits, one of whom, accused 1, shot him fatally in the head. In Barendrakumar Ghosh v. Emperor1the Privy Council considered the case in which three men of whom the appellant was one entered a Post office. Shots were fired at the Postmaster, who was hit in two places and died. The trial Judge directed the jury that if they were satisfied that the Postmaster was killed in furtherance of the common intention of all the three men, then the prisoner was guilty of murder, whether he fired the fatal shot or not. Their Lordships of the Privy Council held this direction was correct. When more than one highway robber is armed with a revolver, they obviously cannot be permitted to escape liability for murder on the ground that the prosecution has failed to show conclusively which robber fired the fatal shot. Their Lordships of the Privy Council held this direction was correct. When more than one highway robber is armed with a revolver, they obviously cannot be permitted to escape liability for murder on the ground that the prosecution has failed to show conclusively which robber fired the fatal shot. Nor can an armed bandit plead, when a person at whom he levels a revolver offers resistance, that he did not intend to shoot to kill or that the revolver accidentally went off in the course of a scuffle. A common intention to use loaded revolver for the purpose of killing if necessary has to be presumed against bandits, and highway robbers, who are armed with these weapons and if a man is killed, the robbers so armed and acting in concert are all clearly guilty of murder under section 302 read with section 34, Indian Penal Code, though each may not have actually fired a fatal shot. We are satisfied that the second accused has been rightly convicted by the learned Sessions Judge under section 302, Indian Penal Code, read with section 34, Indian Penal Code. An eloquent plea has been made on behalf of the first accused on the score of his youth. We are wholly unable to find any extenuating circumstances. The evidence shows that he and the second accused deliberately commenced a career of highway robbery armed with loaded revolvers. We cannot regard what appears to have been inexperienced and blundering first attempt as an extenuating circumstance culminating as it did in the murder of a plucky and courageous man. We confirm the sentence of death passed on the first accused while confirming his conviction for murder. As regards the second accused we think that as he did not fire the fatal shot he may be awarded the lesser penalty and sentence him to transportation for life. We should like before concluding to make one or two observations. The learned Sessions Judge rather extraordinarily split up this case committed under sections 302, 307 and 392 and tried only the case of murder against accused 1 to 4 leaving the charge of robbery, to be dealt with at a separate trial. We are wholly unable to follow why he adopted this course as obviously robbery, which culminates in murder, should be dealt with at one and the same trial. We are wholly unable to follow why he adopted this course as obviously robbery, which culminates in murder, should be dealt with at one and the same trial. In Birendrakumar Ghosh v. Emperor1, charges under sections 302 and 394, Indian Penal Code were tried together. We are unable to follow what the learned Sessions Judge meant by saying that the case was split up as a matter of convenience. Accused persons cannot be tried a second time on precisely the same evidence, once for murder and then again for robbery. Rule 156 of the Criminal Rules of Practice may be responsible for the learned Sessions Judge’s decision. This rule merely states that it is inconvenient to try offences such as murder and theft at the same trial, and that in such cases Sessions Judges would exercise sound discretion in holding separate trials and following the procedure in section 240, Criminal Procedure Code. This is not a case covered by this rule and the accused should obviously have been tried both for murder and robbery at one and the same trial. We are also satisfied in agreement with the learned Sessions Judge that only the two appellants carried revolvers though P.W.2 whose evidence was confused in what was for him a most alarming and confused experience, said that all the robbers were armed with revolvers. K.S. ----- Conviction and sentences confirmed.