Judgment :- 1. These are appeals filed by accused to 1 to 5 in Sessions Case No. 23 of 1953 on the file of the Sessions Court of Kottayam. Seven persons were tried in that case for offences punishable under Ss. 148, 302 and 324 I.P.C., read with Ss. 34 and 149 I.P.C., for the murder of one Narayana Kurup Parameswara Kurup of Kailasathu house in Kurumpanedam Kara, Madappilli Pakuthy, and for having caused hurt with a dangerous weapon to one of his sons, Purushothaman Nair, who was examined as Pw.1 in the Sessions Court. The learned Sessions Judge acquitted two of the accused persons, viz., accused Nos. 6 and 7. As regards the rest, he held that accused 1 to 4 were guilty of the offence punishable under S. 302 I.P.C. read with S. 34 I.P.C. for the murder of Parameswara Kurup and the 5th accused was guilty of the offence punishable under S. 324 I.P.C. for causing hurt with a dangerous weapon to Pw.1 and that the Prosecution had not made out the charges under Ss. 148 and 149 I.P.C. Consequently, he convicted accused 1 to 4 under S. 302 I.P.C. read with S. 34 I.P.C. and sentenced each of them to transportation for life and convicted the fifth accused under S. 324 I.P.C. and sentenced him to undergo rigorous imprisonment for six months. These appeals are filed against the said convictions and sentences. 2. The prosecution case is that, on account of previous enmity between the first accused and Parameswara Kurup, the seven accused formed themselves into an unlawful assembly with the common object of causing his death and waylaid him at about 1.30 p.m. on 8th April 1952 while he was returning home with Pw.1 along the road in front of the first accused's house and that accused 1 to 4 stabbed him with knives and dagger and thereby caused his death and accused 5 to 7 pelted Pw.1 with stones when he ran forward to help his father. Accused 1, 3, 5, 6 and 7 are members of the same tarwad, accused 3, 6 and 7 being nephews of the first accused, and the fourth accused is the husband of a sister of the first accused. The second accused is a nephew of the first accused's father. The road on which the accused waylaid Parameswara Kurup runs east to west through Kurumpanedam Kara. The second accused is a nephew of the first accused's father. The road on which the accused waylaid Parameswara Kurup runs east to west through Kurumpanedam Kara. The first accused is living in a house, known as Narayanavilasam House, situated on the southern side of that road. The house is shown as point D in Ext. O sketch. To the east of Narayanavilasam House there is a lane running southwards from the road, and to the east of that lane there is an Ashramam, known as the Sachidananda Ashramam, belonging to the local Karayogam. The deceased Parameswara Kurup was the President of the Karayogam. Point H in Ext. O is the Ashramam building. To the east of the Ashramam compound there is another lane running southwards from the road, and the entrance to that compound is by a flight of steps from this lane. The steps are shown as point I in Ext.O. A little to the west of the first accused's house, on the southern brink of the road, there is a shed in which a Kalari Le, Pyal School, for the village children is being conducted. The Kalari is shown as point J. in Ext.O. To the west of point J, there is a small shop. The road takes a bent to the south past that shop and is crossed by a Thodu or canal a little to the south of the shop. A few feet to the east of the lane which runs to the east of the first accused's house, another lane branches off in the opposite direction, northwards, from the road. This latter lane takes off from the road at a point a little to the west of the Ashramam building. Parameswara Kurup's house is about four furlongs to the east of the first accused's house. These details are necessary for a proper statement of the prosecution case. 3. Two reasons were alleged by the prosecution for the previous enmity between the first accused and Parameswara Kurup. In Makaram 1127, there was a festival in the Ashramam and, in connection with that festival, the accused 1, 3 and 4 were allowed to conduct three tea shops in the Ashramam compound. According to the prosecution, Parameswara Kurup, as President of the Karayogam, was in charge of the arrangements for the festival and had to collect ground-rent for the tea shops conducted by the accused. According to the prosecution, Parameswara Kurup, as President of the Karayogam, was in charge of the arrangements for the festival and had to collect ground-rent for the tea shops conducted by the accused. He demanded rent at the rate of Rs. 2/- for each shop. But the accused offered to pay only Re. 1/- for each shop, and this led to some unpleasantness and a quarrel. Ultimately the accused were forced to pay the rent demanded by Parameswara Kurup and so they left the Karayogam and formed a rival association. This was one reason for the enmity between the parties. The second reason was that, on the morning of the date of the occurrence, Parameswara Kurup insulted the first accused and also beat him. According to the prosecution, that morning there was a quarrel between Pw.15, who is an Eazhava, and the first accused's brother-in-law, Padmanabha Kurup, over some tapioca stems kept in Pw.15's compound, and they beat each other during the course of the quarrel. A complaint was subsequently made about this affair to Parameswara Kurup, and he in his turn sent an insulting message through the 7th accused to the first accused saying that the latter's brother-in-law had been kicked by an Eazhava. Infuriated by the insult, the first accused came to Padmanabha Kurup's house when Parameswara Kurup was there, and then Parameswara Kurup again repeated the insult and the first accused also made an insulting reply. This led to a fight in which the first accused was worsted and was forced to run away from the place. On account of the enmity due to these two incidents the accused are said to have formed themselves into an unlawful assembly having the common object of murdering Parameswara Kurup and waylaid and attacked him at about 1.30 p.m. as he was going home eastwards along the road in front of the first accused's house. 4. The prosecution version of the occurrence is as follows: At about 10 or 11 a.m. on the 8th April 1952 Parameswara Kurup sent two cart loads of tapioca to the market. Some time later he and his son (Pw. 1) came to the canal crossing mentioned in paragraph 2 above to help the carts to cross the canal. After seeing the carts start for the market from the crossing, they returned home eastwards along the road. Some time later he and his son (Pw. 1) came to the canal crossing mentioned in paragraph 2 above to help the carts to cross the canal. After seeing the carts start for the market from the crossing, they returned home eastwards along the road. As they neared the shop to the south of the Kalari, Parameswara Kurup asked Pw.1 to purchase some betal leaves and so Pw.1 went to the shop, and Parameswara Kurup walked ahead and went to the Kalari where his grand-children, i.e., Pw. 1's nephews, were studying. After buying the betal leaves Pw.1 also came to the Kalari, and after he came there Parameswara Kurup started for home, while Pw.1 stayed behind for a minute or two to take his nephews also for their noon-day meals. When Parameswara Kurup came to the gate of the first accused's house accused 1 to 4 were standing on the northern side of the road and accused 5 to 7 were standing on the southern side. As Parameswara Kurup walked a few paces eastwards from the gate accused 3 and 4 got in front of him and obstructed him from going forward by spreading their hands, and accused 1 and 2 stabbed him from behind, on the back, with Malappuram knives. Parameswara Kurup cried out that he was being stabbed and ran eastwards and accused 1 to 4 pursued him. As he neared the lane breaching off northwards from the road Parameswara Kurup attempted to turn into that lane. Just then, the third accused stabbed him with a dagger and the fourth accused stabbed him with a pen-knife, and before he could turn into the lane, the accused got in front of him and headed him off from it. Running a few feet more along the road, Parameswara Kurup then turned southwards into the lane on the eastern side of the Ashramam compound and climbed up the flight of steps leading to that compound. After he turned southwards into the lane the third accused turned back from the pursuit; but accused 1, 2 and 4 continued to pursue him through the lane. So Parameswara Kurup climbed up the flight of steps leading to the Ashramam compound crying ‘My god, I am being murdered'. When he was on the steps the first accused gave him another stab on the left shoulder and accused 2 and 4 stabbed him on the back. So Parameswara Kurup climbed up the flight of steps leading to the Ashramam compound crying ‘My god, I am being murdered'. When he was on the steps the first accused gave him another stab on the left shoulder and accused 2 and 4 stabbed him on the back. The accused then left the place, and Parameswara Kurup tottered up the steps and fell down in the court-yard. From the Kalari, Pw.1 had seen the attack on his father and as he and Pw. 3 (who is a nephew of Parameswara Kurup and who was also in the Kalari at the time) ran forward to help Parameswara Kurup, accused 5, 6 and 7 pelted them with stones, and Pw.1 sustained hurt as a result of this pelting. They were able to reach Parameswara Kurup only after he fell down in the Ashramam court-yard. Almost immediately after they reached the spot, Pw. 4 and other persons also came there and Pws.1, 3, 4 and others rendered first aid to Parameswara Kurup. As a result of the stabbing by accused 1 to 4 Parameswara Kurup expired shortly afterwards, and after his death Pws.1 and 3 sent Pw. 9 to the Changanassery Police Station for giving information about the occurrence. The Police Station is about 7 miles southwest of the scene of occurrence. Pw. 9 reached the Station and gave the first information statement at about 4.30 p.m. According to the prosecution, all the seven accused waylaid Parameswara Kurup and accused 1 to 4 stabbed him in prosecution of the common object of the unlawful assembly and also in furtherance of the common intention of the accused to murder him; and so, in addition to the charges under Ss. 148, 302 and 324 I.P.C., each of them was specifically charged under Ss. 149 and 34 I.P.C. read with Ss. 302 and 324 I.P.C. 5. The accused pleaded not guilty. Accused 1 to 4 denied that they had attacked or stabbed Parameswara Kurup and accused 5 to 7 denied that they had pelted Pw.1 with stones. In addition to these general denials the third accused put forward a plea of alibi also, and examined Dw.1 in support of it. 302 and 324 I.P.C. 5. The accused pleaded not guilty. Accused 1 to 4 denied that they had attacked or stabbed Parameswara Kurup and accused 5 to 7 denied that they had pelted Pw.1 with stones. In addition to these general denials the third accused put forward a plea of alibi also, and examined Dw.1 in support of it. Dw.1 also said that he saw Kurup climbing up the flight of steps of the Ashramam compound with blood all over his body, that he helped and gave him water and also rendered first aid to him, and that it was only after he had helped Parameswara Kurup that Pws.1 and 3 came to the spot. The learned Sessions Judge found that accused 1 to 4 had waylaid and attacked Parameswara Kurup in the manner alleged by the prosecution and caused his death and that the fifth accused had pelted Pw.1 with stones and caused hurt to him with a dangerous weapon. He also found that accused 1 to 4 had stabbed Parameswara Kurup in furtherance of a common intention on their part to murder him and that all of them, i.e., accused 1 to 4, were guilty of the offence punishable under S. 302 I.P.C. read with S. 34 I.P.C. He found that the prosecution had not made out the charges under Ss. 148 and 149, I.P.C. and that the fifth accused was liable only for his act in pelting Pw.1 with stones. Consequently, he convicted the fifth accused only of the offence punishable under S. 324 I.P.C. The principal witnesses relied upon by the learned Sessions Judge were Pws.1, 3 and 6. Regarding motive he was of the opinion that the prosecution had not satisfactorily proved the first incident, i.e., the quarrel about the collection of the ground-rent, and that the second incident, viz., the quarrel and fight on the morning of the 8th April 1952, was true and had been proved beyond doubt by the evidence of Pws. 3, 6,10,14 and 15. The evidence of Dws.1 and 2 was disbelieved by him. 6. The fact of Parameswara Kurup's death and its cause were not disputed in this court. 3, 6,10,14 and 15. The evidence of Dws.1 and 2 was disbelieved by him. 6. The fact of Parameswara Kurup's death and its cause were not disputed in this court. The evidence of Pws.1, 3, 4 and 6 proves beyond the shadow of a doubt that Parameswara Kurup died at about noon on the 8th April 1952 in the Ashramam compound shortly after sustaining the wounds found on his dead body and described in the post mortem certificate Ext. D. Ext. A is the report of the inquest held on the dead body by Pw. 12, the Sub-Inspector of Police, Changanacherry, on 9.4.1952. On the same day Pw. 5, the Medical Officer in charge of the Government Hospital, Changanacherry, conducted the post-mortem and issued Ext. D certificate. It is seen from Ext. D and the evidence of Pw. 5 that Parameswara Kurup had sustained seven ante-mortem injuries and that all of them were stab wounds inflicted with dagger and knives. The wounds were (1) an incised penetrating wound 2" x 1" x 31/2" on the right side of the back 2" below the neck and 4" to the right of the middle line and opening into the thoracic cavity and injuring the part of the right lung underneath over a length of 11/2"; (2) an oblique incised wound 11/2" x 3/4 x 21/2" over the right side of the back and 51/2" below wound No.1 and 31/2" to the right of the middle line; (3) a transverse incised wound 11/2" x 1/2" x 1" over the right side of the back and 7" below wound No. 2 and 3" to the right of the middle line; (4) a vertical incised wound 3/4" x 1/2" x 2" over the right side of the back 1" to the right of the middle line and 61/2" below the neck; (5) an incised penetrating wound 21/2" x 2" x 31/2" over the upper part of the front of the chest on the left side near the shoulder and opening into the thoracic cavity after cutting through the important blood vessels in that area; (6) an incised wound 3" x 11/4" x 21/2" over the left side of the back 1/2" below the left axilla; and (7) an incised wound 11/4" x 1/4" x 1/8" over the back of the left arm 2" below the axilla. According to Pw. According to Pw. 5, in the ordinary course, injuries Nos. 1 and 5 would have each caused death by itself. And the actual cause of Parameswara Kurup's death was shock and haemorrhage resulting from all the seven injuries. There can, therefore, be no doubt of the fact that Parameswara Kurup died at about noon on 8.4.1952 in the Ashramam compound as a result of the stab wounds sustained by him and noted in Ext. D. 6. The main contentions in this court were that the evidence of Pws.1, 3 and 6 relied upon by the court below is untrustworthy, that in any case each accused can be held liable only for his act and its consequences, and that the learned judge's finding that there was a common intention on the part of accused 1 to 4 to murder Parameswara Kurup is unmistakable. On behalf of the third accused it was further contended that even on the evidence of Pws.1, 3 and 6 there was room for a reasonable doubt as to whether that accused had participated in the attack on Parameswara Kurup, and on behalf of the firth accused it was contended that, in the nature of the prosecution evidence that accused 5 to 7 were throwing stones pell-mell at Pws.1 and 3, Pws.1's evidence that the stone which hit him was thrown by the fifth accused cannot be anything more than a vague surmise. We, therefore, hold that while Parameswara Kurup was proceeding eastwards along the road accused 3 and 4 stopped him near the first accused's gate and accused 1 and 2 stabbed him on the back from behind with Malappuram knives, that while he was running away eastwards and trying to escape through the northern lane accused 1 to 4 pursued and accused 3 and 4 stabbed him on the back near the entrance to that lane and accused 1 to 4 prevented him from escaping through that lane, that all of them then pursued him as he was running eastwards along the road and southwards along the Ashramam lane - the third accused pursuing him only for a short distance along the lane, that while Parameswara Kurup was climbing up the Ashramam steps crying'my God, I am being killed' accused 1, 2 and 4 again stabbed him on the steps, and that he then staggered forwards and fell down and died in the Ashramam court-yard as a result of the injuries inflicted by accused Nos. 1, 2, 3 and 4. 11. According to the medical evidence, the stab on the right side of the back 2" below the neck and the stab on the upper part of the left side of the chest opening into the thoracic cavity (Injuries Nos.1 and 5 in Ext. D) were each sufficient, in the ordinary course, to cause death and the actual cause of Parameswara Kurup's death was shock and haemorrhage resulting from all the seven injuries sustained by him and noted in Ext. D. In the nature of that evidence and the evidence of Pws.1, 3 and 6 it is not possible to attribute the death of Parameswara Kurup to the act of any particular accused, and all that can be said is that his death was caused by the acts of accused 1 to 4 jointly. Because of this, the appellaats counsel contended that accused 1 to 4 could not be convicted of murder and that they could be held liable only for their individual acts in stabbing Parameswara Kurup. He also contended that they could not be held liable for the murder under S. 34, I.P.C. as there was no evidence of a pre-concerted plan or design on their part to cause Parameswara Kurup's death. He also contended that they could not be held liable for the murder under S. 34, I.P.C. as there was no evidence of a pre-concerted plan or design on their part to cause Parameswara Kurup's death. Reliance was placed in support of this contention on the decision of the Supreme Court in Ram Nath v. State of Madhya Pradesh, A.I.R. 1953 S.C. 420. Under S. 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 the act in the same manner as if it were done by him alone. In Ram Nath v. State of Madhya Pradesh, besides the charges under S. 302 I.P.C. and S. 302 read with S. 34 I.P.C., the accused were also charged with the offence of criminal conspiracy punishable under S. 120(B), Indian Penal Code, for having conspired together to murder the deceased person. Some evidence of premeditation and of a pre-arranged plan by the assailants of murdering the deceased person was adduced in support of the charge under S 120(B), I.P.C., and that evidence was relied upon in support of the charge under S. 302 read with S. 34, I.P.C. also. In addition to this evidence, the only circumstance relied upon by the Prosecution to support the charge under S. 302 read with S. 34 I.P.C, was that all the accused were seen at the scene of occurrence when one of them fired the fatal shot which killed the deceased. The Sessions Judge acquitted the accused of the charge under S. 120(b), I.P.C., and convicted them under S. 302 read with S. 34 I.P.C., and the High Court confirmed that conviction. On appeal, the Supreme Court said: "Even if it is held proved that all the appellants were seen at that spot at the time of firing this fact by itself could not be held enough to prove a common intention of the appellants to murder Sunder. It can well be that these four persons were standing together and one of them suddenly seeing Sunder fired at him. This possibility has not been eliminated by any evidence on the record. It can well be that these four persons were standing together and one of them suddenly seeing Sunder fired at him. This possibility has not been eliminated by any evidence on the record. In such a situation when it would not be known who fired the fatal shot, none of such persons could be convicted of murder under S. 302, I.P.C. It seems to us that in this case the High Court failed to appreciate the true effect of the decision of the Privy Council in 'Mahbub Shah v. Emperor', A.I.R. 1945 P.C.118, and its judgment in regard to the applicability of S. 34, I.P.C. has to be reversed. We are also of the opinion that the evidence as to conspiracy under S. 120-B, I.P.C., having been rejected, the same evidence could not be used for finding a common intention proved under S. 34, I.P.C.". Their Lordships were, no doubt, of the view that pre-meditation or a pre-arranged plan by the assailants was necessary for a conviction under S. 34, I.P.C.; but it is nowhere stated in that decision that for holding that the accused had a common intention to murder the deceased person and for convicting them under S. 34, I.P.C., it is essential to have the evidence of witnesses who have actually seen and heard them pre-meditating or conspiring together and making a pre-arranged plan. In Mahbub Shah v. Emperor A.I.R. 1945 P.C.118, approved by the Supreme Court in Ram Nath v. State of Madhya Pradesh, the Privy Council said: it ........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". According to the decision in Mahbub Shah v. Emperor, the inference of common intention within the meaning of the term in S. 34, I.P.C. should never be reached unless it is a necessary inference deducible from the circumstances of the case. According to the decision in Mahbub Shah v. Emperor, the inference of common intention within the meaning of the term in S. 34, I.P.C. should never be reached unless it is a necessary inference deducible from the circumstances of the case. In 1947 Madras 495 it was held that the question whether there was a common intention or not will have to depend in many cases on inferences to be drawn from proved facts and not on any direct evidence about a pre-conceived scheme or plan which may not be available at all. Discussing this question at length, the Allahabad High Court has said in Bashir v. State A.I.R. 1953 Allahabad 668: "When the common intention is formed by conduct, obviously it can be proved only from the conduct of all the persons, no direct evidence is possible even in theory. Direct evidence to prove the formation and nature of the common intention is possible in theory only when it is formed in writing or by word of mouth, but in practice it is difficult to be had. Conspiracies are not hatched within the sight or hearing of others. That in most cases the common intention - its formation and nature - is to be inferred from circumstances is clear from 'Barendra Kumar v. Empeor' and 'Glasser v. U.S.A.' (1942) 86 Law Ed. 680 In the latter case, Murphy, J. said at p. 704 that: 'Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a development and a collocation of circumstances'. In the 'King and the Attorney General of the Commonwealth v. Associated Northern Collieries', 14 C.L.R. 387, Issacs, J. said on page 400: 'Community of purpose may be proved by independent facts, but it not be. In the 'King and the Attorney General of the Commonwealth v. Associated Northern Collieries', 14 C.L.R. 387, Issacs, J. said on page 400: 'Community of purpose may be proved by independent facts, but it not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the out-come of preconcert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one subject towards which the separate acts are found to converge'. The presumption of the common intention must be subject to the same restrictions as other presumptions, it must not take the form of a bare surmise or conjecture or suspicion. There must be data from which it can be inferred and the inference of common intention 'should never be reached unless it is a necessary inference deducible from the circumstances of the case' (per Sir Madhavan Nair in A.I.R. 1945 P.C.118 at p. 121)" It has also been observed in that case that common intention should be inferred from the whole conduct of all the persons concerned and not only from an individual act. On the proved facts and circumstances of this case, there can be no doubt that accused 1 to 4 waylaid and attacked Parameswara Kurup with the common intention of causing his death and that it was in furtherance of that common intention that they stabbed, pursued and again stabbed him and thereby caused his death. 12. In paragraph 8 above, we have discussed and accepted the prosecution evidence relating to the incident on the morning of the date of the occurrence. While that evidence does not, by itself, prove that accused 1 to 4 had a common intention to murder Parameswara Kurup, it shows that these accused, who were close relatives, had sufficient reason for entertaining such a common intention. While that evidence does not, by itself, prove that accused 1 to 4 had a common intention to murder Parameswara Kurup, it shows that these accused, who were close relatives, had sufficient reason for entertaining such a common intention. The evidence of Pws.1, 8 and 14 shows that about an hour or so before the occurrence the deceased Parameswara Kurup and Pw.1 had to go westwards along the road past the first accused's house for helping their carts to cross the thodu. Pw. 8 is the teacher int he Kalari. He is an absolutely disinterested person and struck the learned judge as an essentially honest witness. He saw Parameswara Kurup and Pw.1 going westwards behind the carts while they were going to the canal crossing. He also saw them returning from the crossing. According to him, Parameswara Kurup came to the Kalari and had a brief talk with him and Pws.1 and 3 also came to the Kalari just before the occurrence. Children from the houses of both Pws.1 and 3 were studying in the kalari. It is, therefore, absolutely certain that the first accused must have seen Parameswara Kurup and Pw.1 going to the canal crossing for helping their carts to cross the thodu and that he then assembled his near relatives, accused 2, 3 and 4, for the purpose of wreaking vengeance on Parameswara Kurup on his return on account of the morning incident. It was urged on behalf of the appellants that it would not follow from these circumstances that either the first accused or accused 2, 3 and 4 had the intention to muder Parameswara Kurup and that they might have only intended to chastise him or cause some hurt to him by way of wreaking vengeance. It was also urged that, even if the first accused had entertained the idea of murdering Parameswara Kurup, accused 2,3 and 4 might not have known about it or entertained that intention when they stopped Parameswara Kurup as he was returning home eastwards along the road. But their subsequent conduct proves beyond the shadow of a doubt that it was with the common intention of causing his death that they waylaid and began the attack on him. But their subsequent conduct proves beyond the shadow of a doubt that it was with the common intention of causing his death that they waylaid and began the attack on him. From the evidence of Pws.1, 3 and 14 referred to above, it is absolutely clear that accused 1 to 4 had assembled together and were standing in the road with the intention to stop Parameswara Kurup and attack him. That they had the common intention to murder him and that they were acting in concert, according to pre-arranged scheme or plan, is also clear from their subsequent conduct. As Parameswara Kurup walked past the first accused's gate, accused 3 and 4 suddenly got in front of him and obstructed his further progress and accused 1 and 2 stabbed him with Malappuram knives on the back from behind. There was no immediate provocation, no altercation, and also no warning. Two of the assailants' party suddenly stopped the unsuspecting victim and the two others quickly and silently stabbed him on the back from behind with dangerous weapons. It was urged that, even at this stage, accused 3 and 4 might not have had the intention to cause Kurup's death or the knowledge that accused 1 and 2 were intending to cause his death. That contention also is belied by the subsequent conduct. They saw accused 1 and 2 stabbing Parameswara Kurup with Malappuram knives on the back from behind and inflicting two very serious injuries, and even after seeing this they pursued Kurup when he tried to run away and escape from his assailants. They were not content with mere pursuit, and just as Parameswara Kurup was about to escape through the northern lane accused 3 and 4 also stabbed the fleeing man from behind. Then, all the four of them headed him off from the northern lane and as he ran eastwards along the road for dear life all the four pursued him as hunters run down their quarry in full cry. The third accused was not able to keep up the pursuit to its end. But accused 1, 2 and 4 ran down the quarry and stabbed the wounded and helpless Parameswara Kurup as he was climbing up the Ashramam steps and trying to escape. The nature of the injuries inflicted by the accused has been referred to in paragraph 6 above. But accused 1, 2 and 4 ran down the quarry and stabbed the wounded and helpless Parameswara Kurup as he was climbing up the Ashramam steps and trying to escape. The nature of the injuries inflicted by the accused has been referred to in paragraph 6 above. From the whole conduct of the accused Nos. 1, 2, 3 and 4 only one inference, and one inference alone, is deducible, viz., that they had the common intention to cause Parameswara Kurup's death and that they were acting in concert, according to a pre-arranged plan, in furtherance of that common intention. We, therefore, unhesitatingly hold that accused Nos. 1, 2,3 and 4 are guilty of the offences punishable under S. 302 read with S.34, Indian Penal Code, and that the learned Sessions Judge was right in convicting them for the said offence. 13. As regards the fifth accused, we are inclined to think that Pw.1's statement that the stone which hit and caused injury to him was the one thrown by the fifth accused cannot be anything more than a vague surmise. From the evidence of Pws.1, 3 and 6 as well as from the number of stones found in the road at the time of the preparation of the scene mahazar, there is every reason to think that accused 5, 6 and 7 were throwing stones pell-mell at Pws.1 and 3 as they were running along the road for helping Parameswara Kurup. As accused 5, 6 and 7 have been acquitted by the Sessions Judge of the charges under Ss. 148,149 and 34 I.P.C. any one of them can be convicted for the stone-throwing under S. 324, I.P.C, only on proof that the stone thrown by him has actually hit and caused hurt to Pw.1. We do not think that, while stones were being thrown pell-mell at him and he was running in grant mental excitement and anguish to the rescue of his wounded father, Pw.1 would have noticed who threw the particular stone which struck and caused hurt to him. Pws.1 and 3 were running together, and Parameswara Kurup was Pws. 3's uncle. The attention of both Pws.1 and 3 would have been rivetted on Parameswara Kurup and his assailants who were running in front of them, and it is most unlikely that either of them would have noticed the particular person who threw the stone that struck Pw.1. Pws.1 and 3 were running together, and Parameswara Kurup was Pws. 3's uncle. The attention of both Pws.1 and 3 would have been rivetted on Parameswara Kurup and his assailants who were running in front of them, and it is most unlikely that either of them would have noticed the particular person who threw the stone that struck Pw.1. In the circumstances, the benefit of doubt has to be given to the fifth accused, and he has to be acquitted of the charge under S.324, I.P.C. 14. We accordingly allow the appeal filed by the fiffh accused, Criminal Appeal No. 97 of 1953, and quash the conviction and sentence passed upon him by the Sessions Judge. The appeal filed by accused Nos. 1, 2, 3 and 4 (Criminal Appeals No. 93, 94, 95 and 96 of 1953) are hereby dismissed and the conviction and sentences passed upon the said accused by the Sessions Judge are confirmed. The bail bond of the fifth accused is cancelled and he is acquitted.