JUDGMENT Chaudhry, J. - Agreeing with the unanimous opinion of the assessors, the learned Temporary Sessions Judge of Jaunpur has convicted one Chhotey Lal, aged 27 years, resident of Allahabad, u/s 302, IPC for the murder of one Vishwanath Pd. aged about 30 years, of village Phulpur in the district of Azamgarh, and sentenced him to imprisonment for life Chhotey Lal has appealed and there is also before us a revision arising out of a notice for enhancement of sentence issued to him by a learned Judge of this Court on a perusal of the judgment of the trial court while going through sessions statements. This judgment will govern both the appeal and the revision. 2. A dead body was discovered lying in a well which had no water about a furlong from village Gulzarganj on 20-1-1953 by Kishun P.W.12 and Lallu P.W.11, residents of that village. The well is at a distance of 18 paces from the pucca road which runs from Allahabad to Azamgarh via Jaunpur. Gulzarganj is about 58 miles, and Jaunpur about 71 miles from Allahabad. The villagers informed Jagroop P.W.7. Chaukidar of the village, and the Chaukidar went and lodged a report about it at 3 p.m. the same day at police station Machhhshahr, 6 miles away. Ram Adhar Singh, P.W.24, Station Officer of the police station, reached the well later in the evening and had the dead body taken out of the well. The dead body had injuries which were noted in the inquest report prepared by the officer. 3. Meanwhile, Mohammad Sharif P.W.25, who was on his way to Allahabad from Shahganj, passed by the spot close to the road where the dead body had been discovered. He stopped and recognised the dead body as that of Vishwanath Prasad of Phulpur. Md. Sharif had taken the deceased and a load of linseed belonging to the deceased to Allahabad a few days earlier. The Station Officer sent two constables on Mohammad Sharif's truck to Phulpur and they brought early the next morning Ramdhari P.W.3, a servant of the deceased, and certain others who also identified the dead body as that of Vishwanath Prasad. 4. The Station Officer sent two constables on Mohammad Sharif's truck to Phulpur and they brought early the next morning Ramdhari P.W.3, a servant of the deceased, and certain others who also identified the dead body as that of Vishwanath Prasad. 4. From certain papers recovered from the person of the deceased, and also presumably from Mohammad Sharif, it was discovered that the deceased had gone to sell linseed to Nanhey Babu P.W.9, proprietor of the Finn Ramesh Chandra Kanhayalal of Mohalla Muthiganj in Allahabad. The Station Officer went to Nanhey Babu in the truck of Mohammad Sharif and collected the following evidence produced in this case. 5. Before proceeding to refer to that evidence it may be stated here that post mortem on the dead body of the deceased, conducted by Dr. K.P. Kapil, Civil Surgeon of Jaunpur at 12-30 in the day on 22-1-1953 disclosed that the deceased, whose age was estimated as about 30 years by the doctor and probable time since death as 48 to 72 hours, had sustained as many as 11 incised wounds, all on various parts on the right side of the head region. The injuries, which were ante-mortem and appeared, in the opinion of the doctor, to have been caused with some heavy sharp-edged weapon, had caused fracture of the bones of scalp and face, and the brain was smashed. There were two other injuries, one an incised wound 1/2" x 1/8" X muscle deep in between the left thumb and forefinger, and the other an abraison 1/2" x 1/2" on the inner side of the left index finger. These two injuries appear to have been sustained by the deceased in an attempt to ward off the blows. From the nature of the other injuries, and the particular side of the head on which they appeared, the inference drawn by the learned Counsel for the Appellants that they were the handiwork of only one man appears to be correct. 6. The Station Officer made the following further recoveries. He recovered bloodstained earth on 21-1-1953 adjacent to the road at a distance cf about 18 paces from the well in which the dead body was found. On 22-1-1953 in mohalla Muthiganj in Alld. 6. The Station Officer made the following further recoveries. He recovered bloodstained earth on 21-1-1953 adjacent to the road at a distance cf about 18 paces from the well in which the dead body was found. On 22-1-1953 in mohalla Muthiganj in Alld. he traced out ruck UPC No. 2311 on which the deceased is said to have travelled from Allahabad to towards Phulpur on the night between the 19th and 20-1-53 He found 10 wooden planks in the right hind part and one wooden piece in the right flank of the truck which had blood stains on them and also a blood stained piece of cloth. On 23-1-1953 he recovered a blood stained knife from the house of the cleaner of the truck Lallu by name, a resident of the said mohalla in Allahabad. He also recovered five blood stained gunny bags from the premises of firm Vishwanath Wali Mohammad in Phulpur of which the deceased was a partner. All those articles were sent to the Chemical Examiner and the Serologist. As a result of examination by them it was found that, except for the knife on which bloodstains had disintegrated, all the rest Were stained with human blood. 7. There is no direct evidence in this case. The circumstantial evidence produced against the Appellant was the following. (1) The deceased had sold on 16-1-1953 to Nannhe Babu P.W.9 proprietor of firm Ramesh Chandra Kanhayalal of Mutthiganj, Allahabad, mustard seed which he had brought from Phulpur, and he had purchased 57 bags of bajri on 19-1-1953 from the same firm. This bajri was loaded in truck No. UPC 2311 of which the Appellant was the driver and Lallu the cleaner. The deceased left this firm in Allahabad with the purchased bajri in the said truck at 10 p.m. on 19-1-1953. About half an hour before the departure of the truck he was paid Rs. 1,500 out of which about Rs. 1,100-consisted in coins, which were put in a gunny bag, and the rest consisted of currency notes which had been given separately to Vishwanath. This gunny bag was placed on the front seat of the truck in the presence of the Appellant and the cleaner. For that reason, and also because it was a truck and not a regular bus, it may be presumed that the Appellant also took his seat at the same place. This gunny bag was placed on the front seat of the truck in the presence of the Appellant and the cleaner. For that reason, and also because it was a truck and not a regular bus, it may be presumed that the Appellant also took his seat at the same place. Thus, the deceased was last seen in the company of the Appellant and the cleaner Lallu when the truck left the Allahabad firm at 10 p.m. on 191-1953. This part of the prosecution case has been proved from the testimony of Nanhe Babu P.W.9, proprietor of the Allahabad firm, Basdeo P.W.10, a Munim of that firm, and Sheo Nath P.W.20 the labourer who loaded the truck and put the gunny bag containing the sum of Rs. 1,100 in coins on the front seat of the truck. Certain entries in the books of account of the firm also proved the. aforesaid transactions of purchase and sale which had taken place between the deceased and the Allahabad firm. (2) This truck reached the Naiganj octroi barrier of Jaunpur at about 5 a.m. on 20-1-1953. A transit pass was obtained for passing the truck through Shaker Mandi octroi barrier of Jaunpur, which was the barrier on the Azamgarh side of the city. At this stage only the Appellant and the cleaner Lallu and one Kedar, son of the proprietor of the truck, were found in the truck but not Vishwanath Prasad. This part of the prosecution case has been proved by Ghulam Hyder P.W.2, who is servant of the broker who helps in securing transit passes for trucks, Bishwanath P.W.28 octroi peon at the Naiganj barrier and Raghubir P.W.17 octroi peon at the Shaker Mandi octroi barrier. Bishwanath also produced one of the foils of the transit pass in question which is prepared in triplicate. It will be noticed in connection with this part of the prosecution case that, although the distance between Jaunpur and Allahabad is only about 71 miles, the truck reached the Allahabad side of the octroi barrier in Jaunpur about 7 hours after its departure from the shop of the firm in Muthiganj at Allahabad. (3) The third circumstance that may be noted here is that the dead body of the deceased had been found in a well close to the road near village Gulzarganj which is at a distance of about 55 miles from Allahabad. (3) The third circumstance that may be noted here is that the dead body of the deceased had been found in a well close to the road near village Gulzarganj which is at a distance of about 55 miles from Allahabad. That it was the dead body of the deceased Vishwanath, and that it had incised wounds which had proved fatal, has been proved, as seen already, by the testimony of Ramdhari P.W.3 and Mohammad Sharif P.W.25 and the medical evidence, (4) The same truck reached the premises of the firm Vishwanath Wali Mohammad in Phulpur, of which the deceased was a partner, at about 7 a.m. on 20-1-1953. At that time again the occupants of the truck were the Appellant who was the driver of the truck. Lallu its cleaner and Kedar. Vishwanath was not there, nor was (he gunny bag containing about Rs. 1100 which had been put into the truck at Allahabad, since the only things that were unloaded at the firm in Phulpur were the 57 bags of bajri that had been purchased by the deceased from the Allahabad firm. It was noticed that some of the bags and planks of the truck were blood-stained. When the Appellant was asked as to how these bloodstains came to be there, he said that a person who had been sitting on the truck was injured by the branches of some roadside tree. Lallu cleaner contradicted the Appellant and said that it was the blood of some fish that were carried in the truck, and not of the injured person. Asked as to where Vishwanath the owner of the bajri was, the Appellant replied that he was following in another truck containing more bajri. When the Appellant demanded his fair for carrying the bajri in the truck from Allahabad to Phulpur, he was asked by the people who had unloaded it to wait for the arrival of the other partner Wali Mohammad, but the Appellant along with the other occupants of the truck left with the truck without waiting for the arrival of Wali Mohammad without taking the fair. This part of the prosecution case has been proved by Ram Dhari P.W.3, Ram Chait P.W.5 and Muneshwar P.W.6, the persons who unloaded the truck at the firm at Phulpur. This part of the prosecution case has been proved by Ram Dhari P.W.3, Ram Chait P.W.5 and Muneshwar P.W.6, the persons who unloaded the truck at the firm at Phulpur. The Appellant was not known to these witnesses from before, and he was duly identified by them without any mistake in a test identification conducted in the district jail of Jaunpur on 16-3-1953 by Sri K.S. Dubey P.W.27, a first class magistrate of that town. 8. The Appellant denied the prosecution case in its entirety. He denied even the fact of his being the driver and Lallu the cleaner of the aforesaid truck. He stated further that he had a motor repairs shop in Muthiganj where the truck UPC 2311 used to be brought to him for repairs, that Kedar was the driver of that truck and Mahabir its owner, and that he was already known to the Palledars of Phulpur. He produced no defence. 9. The investigating officer submitted a charge-sheet against all the three, the present Appellant Chhotey Lal driver of the truck, Lallu the cleaner and Kedar son of the owner of the truck. Lallu remained absconding and charge-sheet against him was submitted as such. The committing magistrate discharged Kedar on the ground that none of the witnesses at the Phulpur end were able to identify him in the test identification. It may be stated here in passing, however, that, regard being had to all the circumstances of the case, the committing magistrate arrogated to himself much greater responsibility than he should have in discharging Kedar merely because the aforesaid witnesses had failed to identify him. 10. Now, there is no doubt that the aforesaid circumstances on which the conviction of the Appellant is based have been fully established. Those circumstances also lead clearly and convincingly to the conclusion that Vishwanath was murdered somewhere between Allahabad and Guhargang on the night between the 19th and 20th of January 1953 for the sake of the comparatively large turn of money which he was carrying in the truck in which he was travelling from Allahabad to Phulpur with his purchase of bajri, and that the murder was committed by some one or all of the others who were occupying the truck with him. Indeed, the learned Counsel for the Appellant did not contend that the aforesaid circumstances had not been fully established. Indeed, the learned Counsel for the Appellant did not contend that the aforesaid circumstances had not been fully established. What he contended was that the facts proved did not necessarily lead to the conclusion that the Appellant was guilty of the offence u/s 302, IPC. According to him, those facts did not go beyond making out a case u/s 201, IPC. 11. Before examining the above argument of the learned Counsel it is necessary to remark that the learned Sessions Judge was wrong in charging and convicting the Appellant u/s 302, IPC, without the aid of Section 34, IPC, since the aforesaid circumstances pointed to the complicity of more than one man, and since it was not possible to find as to which of those persons had actually committed the murder. There would not however be any legal difficulty in having recourse to Section 34, IPC even though that section did not form part of the charge provided, of course the omission in the charge were curable u/s 537, Code of Criminal Procedure, by reason of the omission not having in fact occasioned a failure of justice. The test applied for ascertaining that there has been no failure of justice is to find that the accused has not been misled in his defence. The accused should not be misled in his defence if, besides the constituents of Section 34 missing from the charge being proved, accused has due notice of the fact necessary for the proof of the missing constituents (which, of course means such notice as would enable the accused to meet those facts, if he will). 12. Now the difference between a charge with the help of Section 34, IPC, and one only for the substantive offence without the help of the section is that while under the former the criminal act is charged as done by several persons, and done in furtherance of the common intention of all, under the latter it is charged as done by only the particular individual sought to made liable, and done in furtherance of that particular person's individual intention. The ingredient of community of intention peculiar to the charge with the help of Section 34 is there to make all the participators liable constructively whosoever be the one among them who did the criminal act in question. The ingredient of community of intention peculiar to the charge with the help of Section 34 is there to make all the participators liable constructively whosoever be the one among them who did the criminal act in question. So far however as the particular person sought to be made liable is concerned, the ingredients of participation in action in furtherance of his intention are common to both. That being so, when an accused is charged with the substantive offence without the aid of Section 34, the entire burden of the doing of the criminal act and of intending to do it is thrown on him. On the other hand, when he is charged with the commission of the offence with the aid of that section, both the doing of the act and the intention to do it are shared by him with another or others. It follows therefore that when an accused is convicted of an offence with the aid of that section, though that section is not mentioned in the charge, it cannot be said that there are certain facts which have been sprung as a surprise on him. In point of fact, the contrary would really be the situation for the accused is in such a case warned of more than he need necessarily have done. That would also make no difference to his defence since his culpability depended on what was done, whether it was done individually by him or in concert with others. We are therefore clearly of the opinion that an accused may be convicted of an offence with the help of Section 34, I.P.C., even though that section has been omitted to be mentioned in the charge, because the omission does not in fact occasion a failure of justice. This view of ours is also in accord with the view expressed in two other Division Bench decisions of this Court: Sheo Ram and Others Vs. Emperor, AIR 1948 All 162 and Kunwarpal Singh and Another Vs. Emperor, AIR 1948 All 170 . 13. For all we know, the Appellant in this case may have actually killed the man but because we cannot be certain about it on the evidence we give him the benefit of that uncertainty. The evidence clearly shows that the act was committed in which others had also joined. Emperor, AIR 1948 All 170 . 13. For all we know, the Appellant in this case may have actually killed the man but because we cannot be certain about it on the evidence we give him the benefit of that uncertainty. The evidence clearly shows that the act was committed in which others had also joined. Therefore, in a sense, we are holding the Appellant responsible for a smaller degree of culpability. In fact it is for that reason that we are finding justified, as will appear presently, the lesser penalty imposed upon the Appellant. 14. Now, it is clear from the circumstances established in this case, as adverted to already, that Vishwanath Prasad was murdered in furtherance of the intention of robbing him of the comparatively large sum of money which he was carrying, and that he was murdered by some or all of the occupants of the truck in which he was travelling. Liability for that offence can be fixed upon the Appellant with the help of Section 34, I.P.C., if it were possible to hold (1) that the intention in question was shared by him with the others, and (2) that he participated in any of the acts (not necessarily the act of killing) which contributed to the murder. Of the four circumstances mentioned above the first afforded opportunity to the Appellant and the cleaner to form the common intention of robbing the deceased of his money and if it be necessary to do so for the achievement of their object, even to kill him. The first circumstance therefore afforded the opportunity for the meeting of the minds of the Appellant and his companion for the prior concert which is an essential ingredient in Section 34, IPC. The remaining three circumstances clearly establish that the aforesaid common intention was actually carried out by Vishwanath Prasad having been robbed and murdered some where between Allahabad and the well close to Gulzarganj at which latter spot an attempt was made to cause the evidence of the commission of the offence to disappear by throwing the dead body into the well. 15. From the medical evidence it would no doubt appear that injuries on the person of the deceased had been inflicted by only one man. 15. From the medical evidence it would no doubt appear that injuries on the person of the deceased had been inflicted by only one man. It is however necessary to take two important facts into consideration in this connection: one that the deceased was a young man aged 30 and described in the post-mortem report as a man of muscular build, and the other that he had resisted the attack on him since he had received an incised wound and an abrasion on his left thumb and index finger. That being so, it is not reasonably possible to hold that injuries could have been inflicted upon the deceased by one man without the help of another or others. The question is whether, supposing the Appellant was not the person who inflicted the injuries, he was at least one of those who participated in the commission of the offence by helping the man who actually inflicted the fatal blows. It must be noticed in this connection that the third man besides the Appellant and Lallu cleaner who was found in the truck at the Naiganj octroi barrier at Jaunpar (irrespective of whether he was Kedar or somebody else) had not boarded the truck at Allahabad but was detected only at the octroi barrier beyond the place where the dead body had been thrown into the well. That being so, it would not be permissible to presume that that third man was one of the participators in the commission of the offence of murder. It may, at the same time, be stated that even if it were possible to hold that that third man was also present at the time when the murder was committed, that fact by itself would not render participation of the Appellant improbable. What appears to be certain however is that both the Appellant and the cleaner Lallu occupied the truck when the murder was committed. From the fact that number of wooden planks in the floor of the truck were found stained with human blood it is reasonable to conclude that the murder was committed in the truck. It follows therefore that the Appellant and the cleaner, in any case, were the persons who had participated in the commission of the crime. This inference is strengthened by the subsequent conduct of these two persons. The cleaner has been absconding. It follows therefore that the Appellant and the cleaner, in any case, were the persons who had participated in the commission of the crime. This inference is strengthened by the subsequent conduct of these two persons. The cleaner has been absconding. Both of them gave out false explanations at the destination when asked about the presence of blood in the truck. The Appellant and his companions further displayed their guilt by leaving the firm at Phulpur without waiting to realise the freight for carrying bajri to that place from Allahabad. The Appellant also stated falsely that the deceased had not accompanied him but was following with a further load of bajri in another truck. It has been noticed that according to Nanhe Babu P.W.9 only 57 bags of bajri had been purchased by the deceased from him, and all this quantity was present in the truck driven by the Appellant. It would appear therefore that not only did the Appellant offer no explanation as to what had happened to the deceased but, what is more he offered false explanations in respect of the same. This Last circumstance lends further assurance to the inference that the Appellant was one of the persons who participated in the act of the murder. 16. The argument of the learned Counsel was that it is conceivable that the Appellant may have gone on driving the truck without having been able to know that Vishwanath Prasad had been murdered, and he may have come to know of it only when the other two persons tried to dispose of the body by throwing it into a well. Now, this would be too far-fetched an inference to be drawn from the totality of circumstances and conduct of the Appellant noticed above. It is well established that in a criminal trial a case has not to be proved beyond all doubt, but beyond all reasonable doubt. That is the principle which received the approbation of the House of Lords in the two leading cases, Woolmington (1935) A.C. at 481 and Mancini (1942) A.C. at 11-13. Even where there is overwhelming evidence, as in the present case, pointing to the guilt of the accused, it may yet be possible to conjecture some extraordinary circumstance consistent with his innocence. Even where there is overwhelming evidence, as in the present case, pointing to the guilt of the accused, it may yet be possible to conjecture some extraordinary circumstance consistent with his innocence. For instance, it may be possible to surmise that a stranger about whose presence there is no evidence, had interposed at the crucial moment and committed the murder. To take another instance, it may be surmised, on a charge of murder, that the deceased died of heart failure immediately before he was struck by the bullet. These are however unlikely contingencies which it would not be permissible to take into consideration where all that the law requires is to consider whether the case had been proved beyond reasonable doubt. The hypothetical cases just considered are no doubt extreme cases, but they will illustrate the point under consideration. The aforesaid contention put forward by the learned Counsel for the Appellant is of a piece with the unlikely contingencies instances of which have been just considered. The differences between the two is only of degree, not of kind. That being so, regard being had to the circumstances noticed, the contingencies pointed out by the learned Counsel are too remote to be worthy of consideration. In view of all the circumstances mentioned above, we are clearly of the opinion that the offence u/s 302, I.P.C., has been brought home to the Appellant with the help of Section 34, I.P.C. The appeal should therefore fail. 17. As regards the revision arising out of the notice to Chhotey Lal for enhancement of the sentence of imprisonment for life to a sentence of death, the law laid down by the Supreme Court in Dalip Singh and Others Vs. State of Punjab, AIR 1953 SC 364 is this: The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons. State of Punjab, AIR 1953 SC 364 is this: The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons. It is not enough for an appellate court to say, or think, that if left to itself it would have awarded the greater penalty because the descretion does not belong to the appellate court but to the trial judge and the only ground on which an appellate court can interfere is that the discretion has been improperly exercised, as for example where no reasons are given and none can be inferred from the circumstances of the case, or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty. 18. It was further held by their Lordships that it would be a sound exercise of judicial discretion to refrain from awarding the extreme penalty of death where the accused has not been convicted for his own act but is being held vicariously liable for the act of another or others. That is exactly the reason given by the learned Sessions Judge for imposing upon the Appellant the lesser penalty provided by the law. Another circumstance taken into consideration by him was that the Appellant is a young man of 27. This is therefore not a case of improper exercise of discret on by the trial judge. In fact, this is a case in which, if left to ourselves, we would also have awarded the lesser penalty. We are therefore clearly of the opinion that there should be no interference with the sentence passed upon the Appellant. 19. In the result, the appeal of Chhotey Lal is dismissed and his conviction and sentence are maintained subject to the modification that the finding of the learned Sessions Judge that the Appellant is guilty u/s 302, I.P.C., is altered into one that he is guilty under that section read with Section 34, I.P.C. The revision for enhancement of his sentence is also rejected.