Judgment :- 1. These four appeals arise out of the judgment of the Sessions Judge of Alleppey in Sessions Case 9 of 1964. Criminal Appeal 155 of 1964 is by the first accused; Criminal Appeal 164 of 1964 is by the second accused; Criminal Appeal 174 of 1964 is by the third accused and Criminal Appeal 154 of 1964 is by the fourth accused. The charge against them was that in furtherance of their common intention to murder Mathen Chacko alias Chinnan and to cause hurt to Pws.1 & 2 these four accused attacked them on the Edathwa-Thiruvalla public road in front of the Edathwa telephone exchange office, that the second accused beat deceased Chinnan on his head with a lathi, that the first accused stabbed him, the third accused caused hurt to Pws.1 and 2 by stabbing them with a knife and accused 2 and 4 beat Pws.1 & 2 with lathies. 2. Accused 1 & 3 are Head Constables attached to the Edathwa police station. Accused 2 & 4 are police constables of the same station. According to Pw. 4 Abraham, on the evening of 8-3-64 he saw these four accused in a country boat in the thodu near Kalangara mukku. The boat had capsized and the accused were catching the boat and attempting to get in. People had gathered and the accused were indulging in obscene words. Accused 3 & 4 then got on to the bank of the thodu and chased the people. After that they again got into the boat and proceeded south. Pw. 4 also went along the pathway on the bank of the thodu. After going for a short distance he found the accused chasing the people. Pw. 4 also stopped to see what it was about. Seeing him the third accused beat him. The fourth accused caught hold of him and pushed him and the first accused hit him on his stomach as a result of which he fell down into the thodu. He swam across to the other side and while going he heard a row and mutual exchange of blows between the accused and the people who had gathered there. Pw. 4 went to his house and after having some hot fomentation for the injuries sustained by him left with his brother to Edathwa dispensary. Pw.1 heard that Pw. He swam across to the other side and while going he heard a row and mutual exchange of blows between the accused and the people who had gathered there. Pw. 4 went to his house and after having some hot fomentation for the injuries sustained by him left with his brother to Edathwa dispensary. Pw.1 heard that Pw. 4 had been assaulted by the police and for treatment had been removed to the hospital. He therefore, proceeded to the hospital, but Pw. 4 had not reached there. A little before that accused 1, 3 & 4 had gone, to the dispensary. The doctor was not there and they sent a man to the doctor's house, but were told that he was not there. Pw. 9 applied some medicine on their injuries. It was when the accused Were there that Pw.1 reached the hospital. He looked round and not seeing Pw. 4 went out. After seeing Pw. 1, accused 1, 3 & 4 went out of the dispensary. On the way Pw.1 met deceased Chinnan and also Pw. 2 who had gone on hearing that Pw. 4 had sustained injuries and had been taken to the hospital. He was also returning home without seeing him: All the three of them then got into the tea shop of one Thommachan near the cinema theatre. After taking tea they proceeded along the road to the east. On reaching near the Telephone exchange they heard the sound of some persons following them. Pw.1 raised the lighted hurricane lamp which he had, to see who it was and found that it was accused 1 to 4. As they came near, the first accused asked "Are you the persons who wants to beat." Immediately the fourth accused hit at the hurricane lamp and it fell down. Pws.1 & 2 and deceased Chinnan cried out. The second accused then beat deceased Chinnan on his head on receipt of which he fell down. The first accused then stabbed him twice. The third accused stabbed Pws.1 and 2 with a knife which he had and accused 2 & 4 beat Pws.1 & 2 with the lathies. Accused then ran away from the place. Deceased Chinnan and the other injured were taken to the Government dispensary. Accused 1, 3 & 4 on their way got into the shop of Pw. 6 and had some soda. They proceeded west. Accused then ran away from the place. Deceased Chinnan and the other injured were taken to the Government dispensary. Accused 1, 3 & 4 on their way got into the shop of Pw. 6 and had some soda. They proceeded west. On the deceased reaching the hospital the compounder Pw. 9 sent information to the doctor Pw. 7. By that time accused 1 to 4 also reached the dispensary. Pw. 5 the brother of Chinnan hearing about the incident came to the hospital and the deceased told him that he was stabbed by the first accused. The same night at about 3 a. m. Chinnan succumbed to his injuries. The doctor first examined Pws.1 and 2 and then accused 1, 3 and 4. On the morning of 9-3-64, Pw. 14 the Probationary Sub Inspector of the Edathwa police station went to the hospital and recorded a statement Ext. P-18 from the third accused. At 7.15 a.m. he recorded a statement Ext. P-1 from Pw. 1. Pw. 15 the Personal Assistant to the D.S.P. Alleppey on hearing about the occurrence came and held the inquest and questioned among others Pws.1, 2 and 5. After the inquest the medical officer Pw. 7 conducted the autopsy. The same day the Circle Inspector of police Pw. 16 searched the house where all the accused were living and took into custody M.O.8 series two lathies. The next day he took into custody M.O.1 light and M.O.4 broken pieces of glass produced by one Chacko Thomas. The accused were arrested on 10-3-64. After questioning all the witnesses and completing the investigation the accused were charge-sheeted. 3. Pws.1 to 3 were examined in the committal court and when questioned on their evidence the first accused stated that knowing that Pws.1 to 3, deceased Chinnan and several others had collected armed with deadly weapons to commit rioting he along with the fourth accused proceeded to inform the Sub Inspector and on the way were assaulted by the persons gathered there. He stated that he was not armed and had not done anything and the witnesses were all lying. He had registered a case of theft of an electric motor against Pw. 4 and others and on account of that himself and his relations were on inimical terms with him and a false case has been foisted on him. In the sessions court also he gave a similar statement. He had registered a case of theft of an electric motor against Pw. 4 and others and on account of that himself and his relations were on inimical terms with him and a false case has been foisted on him. In the sessions court also he gave a similar statement. He denied having gone to the hospital prior to the occurrence as deposed & to by Pw. 9 and denied having told the doctor that the injuries were, sustained, earlier. Second accused stated that he returned from the bus stand duty at 8 p. m. and was sleeping when the incident is alleged to have taken place. He denied his presence at the scene. The third accused stated that accused 1 and 4 had gone to inform the Sub Inspector that a little later on hearing about accused 1 and 4 being assaulted he went up and he was also assaulted. When questioned about the complaint given to Pw. 14 he admitted Pw. 14 having recorded a statement from him, but stated that Ext. P-18 is not that statement and that Ext. P-18 was got signed from him when he was in the hospital. Like the first accused he also stated that what Pws. 7 & 9 deposed is not true. The fourth accused supported the statement of the first accused. All the accused denied the earlier incident spoken to by Pw. 4 and they denied having sustained any injuries at the earlier incidents. 4. The death of Chacko alias Chinnan as a result of the injuries sustained by him on that night is well established and is in: fact not disputed. Pw. 7 the medical officer attached to the Edathwa Government dispensary conducted, the autopsy. The deceased had three antemortem injuries; (1) An oblique incised wound 21/4 " x 3/4" on the right side; of the abdomen above the umbilicus penetrating into the abdominal cavity cutting the anterio superior surface of the stomach; (2) An oblique incised wound 1 1/211x1/2" on the left side of the buttock below the hip joint directed obliquely upwards and medial wards under the dorsal surface of the ischium passing; through the pelvic cavity and penetrating the peritoneal cavity; (3) A lacerated wound on the right side of the head. Ext. P-2 is the postmortem certificate. Ext. P-2 is the postmortem certificate. According to the doctor injuries 1 and 2 were necessarily fatal and could have been caused by any sharp pointed instrument. Death, according to the doctor, was, due to syncope from shock and hemorrhage. The doctor examined Pw.1. His wound certificate is Ext. P-4. Injuries 1 and 3 were incised injuries and injuries 2,4 and 5 were abrasions and contusions. The injuries were simple. The wound certificate of Pw. 2 is Ext. P-6. He had one incised injury and the other injuries were contusions and abrasions. One of the injuries was a contusion 2" x 1" on the back side of the left hand above the left wrist. As the doctor suspected that there was a fracture Pw. 2 was sent to the District Hospital, Alleppey for X-ray examination and Pw. 8 the doctor has given evidence that X-ray revealed a fracture of the lower end of the ulna of the left forearm. In cross-examination the doctor has stated that it is not likely that this fracture could have been caused by a fall and it must have been the result of violence at the site of the injury. Pw. 2, has therefore sustained a grievous injury. 5. Now the first question that arises for decision is whether the prosecution has succeeded in proving that the fatal injuries on the deceased were caused by the first accused. Pws.1 to 3 are the eye witnesses. The evidence of Pws.1 and 2 have been referred to when summarising the prosecution case. Both of them heard that Pw. 4 had sustained injuries at the hands of the police and had been removed to the hospital and they had been to the hospital to see Pw. 4 Pw.1 has deposed that after going to the hospital and not finding Pw. 4 he was returning home and met deceased Chinnan near the tea shop of one Thommachan, that soon afterwards Pw. 2 also reached there and they all got into the tea shop and had tea and while they were proceeding along the road when they reached near the telephone exchange they heard the sound of some persons running behind them and when he looked back, raising the lighted lantern with him, he found that it was accused 1 to 4. 2 also reached there and they all got into the tea shop and had tea and while they were proceeding along the road when they reached near the telephone exchange they heard the sound of some persons running behind them and when he looked back, raising the lighted lantern with him, he found that it was accused 1 to 4. He has then given a clear account of what each of the accused had done and their being taken to the Government dispensary. His evidence is fully in conformity with the first information statement Ext. P-1 recorded from him. To the same effect is the evidence of Pw. 2. He has given evidence of his going to the hospital to meet Pw. 4, not finding him there returning home, meeting Pw.1 and the deceased on the way, their getting into the tea shop and taking tea and while proceeding along the road the four accused coming behind them, accused 1 and 3 armed with knives and accused 2 & 4 armed with lathies. The witness further stated that the second accused first hit the deceased with the lathi on his head which felled him to the ground, the first accused then stabbed him twice, third accused stabbed him on the hand, the 4th accused hit him with lathi on his hand and the 2nd accused hit him with lathi on the right hand when the 4th accused again hit him on his head and their being removed to the hospital. As against these witnesses it was first stated that Pws.1 & 2 are sons of brothers, that they are distant relations of Pw. 4, that deceased and Pw. 4 were relations and that their evidence being highly interested should on that ground alone be rejected. It is true that Pws.1, 2, 4 and the deceased are in one way or the other related to each other, but merely because they are relations is no ground to reject their evidence out of hand, if otherwise it is found to be true and reliable. It was then stated that Pw. It is true that Pws.1, 2, 4 and the deceased are in one way or the other related to each other, but merely because they are relations is no ground to reject their evidence out of hand, if otherwise it is found to be true and reliable. It was then stated that Pw. 4 had been charged in a case of theft along with others by the Edathwa police, that it was the first accused who had registered the case and had appeared in court and opposed bail being granted and that all these witnessess were thus on inimical terms with the Edathua police, and particularly with the first accused. This strained relationship might be a reason to scan their evidence with more than ordinary care and caution; but not their out-right rejection. Except pointing out certain omissions in their earlier statements and a few verbal contradictions which normally can be expected in a case of this nature we do not find any intrinsic infirmity in their evidence. Both of them had been injured and their presence had been admitted by the accused themselves. 6. Pw. 3 is the next witness. He is a tea shop keeper, about two miles away from the scene and had gone for the second cinema show. Some time after the interval he stated that he had gone to Thommachan's tea shop just opposite the theatre to take a cup of black coffee & when he was there he heard a cry from the east and three or four people going that side and so he also ran up and saw the deceased lying on the road and the first accused stabbing him. He also witnessed the third accused stabbing Pws.1 and 2 and accused 2 and 4 beating Pws.1 and 2. It has come out in evidence that at the time he saw the incident he was standing at a distance of 35 feet. Learned, counsel contended that he was only a chance witness whose evidence of having gone for the cinema and coming out before it was over is very difficult to be believed, but it is forgotten that when questioned in the committing Magistrate's court the accused had actually admitted the presence of Pw. 3 at the scene and their case was only that he was also one of the persons who joined in assaulting them. 3 at the scene and their case was only that he was also one of the persons who joined in assaulting them. So his presence at the scene cannot be doubted. 7. Another argument that was raised was that it was a dark night and it would not have been possible for the witnesses to identify the assailants and what each one of them had gone. Pw.1 had a light with him and he has stated that when they heard the sound of people coming up they stopped, Pw.1 raised the lantern to see who it was and the persons were identified as accused 1 to 4. No doubt the first thing that the accused did was to smash the lantern. M.O.1 is the hurricane lantern and M.O.4 are the broken glass pieces. According to Pw. 16 the Circle Inspector on 10-3-64 charge witness 17 Chacko Thomas produced M.0s.1 and 4. Comment was made about his non-examination. In the course of the trial the Public Prosecutor put in a memo that as the witness had turned hostile the prosecution did not propose to examine him. Notice was given but counsel for the defence did not object to his non-examination. If they wanted they could have made a report to the court to have him examined as a court witness so that they could get an opportunity of cross-examining him. That was not done and it is idle to contend that prejudice has been caused by his non-examination. We, however, feel that he could well have been examined for the purpose of explaining how he happened to be in possession of the lantern and under what circumstances he happened to produce them. If after examination he was not prepared to support the prosecution case it was then time for them to apply for permission to treat the witness as - hostile and cross-examine him. But his non-examination has, in our opinion, not caused any prejudice to the accused. All these accused are well-known to these witnesses and this fact is not disputed by the defence. Pw. 1's, case is that even after the lantern fell down it was burning. Moreover, the accused themselves admit that there was an encounter between some of them and the accused. We entertain no doubt that the witnesses would have been in a position to identify the accused and that they did identify the assailants. Pw. Pw. 1's, case is that even after the lantern fell down it was burning. Moreover, the accused themselves admit that there was an encounter between some of them and the accused. We entertain no doubt that the witnesses would have been in a position to identify the accused and that they did identify the assailants. Pw. 3 is a thoroughly independent witness. What has been suggested is that there was a criminal ease against Pw. 3's brother Chacko in the Ambalapuzha Magistrate's Court, that Pw. 4 was a witness for Pw. 3's brother & Pw. 3 has been supplied in this case by Pw. 4. Pw. 3 had denied that Pw. 4 has been examined as a witness for his brother. In the lengthy cross-examination of this witness no motive has been suggested for the witnesses to come and give false evidence. No enmity is alleged between him and any of the accused. Learned Sessions Judge has elaborately considered their evidence in the light of the various criticisms raised against the acceptability of their evidence and has rightly found that their evidence could with safety be accepted. We find no reasons to disagree from the conclusions reached by the learned judge. 8. The evidence of Pws.1 to 3 is to a certain extent corroborated by the evidence of Pw. 6 who is an equally disinterested witness. He is a small trader near the cinema theatre. He has deposed that on that night he saw Pws.1, 2 and the deceased taking tea, in Thommachan's tea shop, the deceased purchasing chewing materials for him, their proceeding east along the road and the four accused persons following closely behind them. Immediately afterwards the witness says he heard some persons crying out'Ayyo we are beaten to death'. After the incident was over accused 1, 3 and 4 returned by the same way and came to his shop, accused 3 and 4 drank soda and the first accused washed his wound on his face and they proceeded towards west. Nothing has been stated as to why his -evidence should not be accepted. He also bears no enmity with the accused. 9. Another argument raised against the acceptability of the evidence of the eye witnesses is that they have not explained the presence of injuries on accused 1, 3 & 4. Nothing has been stated as to why his -evidence should not be accepted. He also bears no enmity with the accused. 9. Another argument raised against the acceptability of the evidence of the eye witnesses is that they have not explained the presence of injuries on accused 1, 3 & 4. According to the accused, Pws.1 to 3, the deceased and several others armed with deadly weapons were collected on the road when accused 1 & 4 were proceeding to the house of the Sub Inspector of Police, that they were way laid and assaulted and that the injuries were sustained by them in that encounter. They denied having inflicted any injuries on the deceased and Pws.1 & 2: According to the prosecution there was an earlier incident and it was in the course of that incident that the accused sustained the injuries and that none of them were injured at this incident. Apart from the evidence of the eye witnesses' that the accused did not sustain any injuries at the time of the occurrence, we have the evidence of Pws. 4, 9 & 7. Pw. 4 has given evidence how on that evening he had seen all the four accused in the country boat in the thodu near Kalangara mukku, that the boat had upturned and they were trying to get in, that accused 3 & 4 got on to the bank & were chasing people who had collected and were making fun of them, that the accused proceeded again in the same boat. He has further stated that after a little time he saw the four accused persons chasing some people and when he stopped to see what it was, accused 1, 3 & 4 assaulted him and he escaped. The witness has stated that while going he heard a row and saw a fight between the accused and the people gathered there. It is true that Pw. 4's evidence is vague. The witness returned home, applied some oil and had a hot-water fomentation and proceeded in a country boat along with his brother to the Edathwa Government dispensary. In the stress of cross-examination the defence has been able to elicit some contradictions in his evidence, but that alone would not afford sufficient reason to reject his evidence. 10. We have then the evidence of Pw. 9 the warder of the Government dispensary. Pw. In the stress of cross-examination the defence has been able to elicit some contradictions in his evidence, but that alone would not afford sufficient reason to reject his evidence. 10. We have then the evidence of Pw. 9 the warder of the Government dispensary. Pw. 9 has sworn that at about 11 p.m. on that night accused 1, 3 & 4 had gone to his dispensary when he was on night duty, that he saw an injury on the face of the first accused, that accused 3 & 4 also had injuries on their person, that the accused sent word to the doctor, but as the doctor was not there, at their request he applied some medicines. If Pw. 9's evidence is true then earlier to the night incident in front of the telephone exchange the accused had sustained certain injuries. They have no explanation to offer. Beyond stating that Pw. 9 is a local man and had been got at by Pws.1, 2 & 4 nothing else is there to doubt his testimony. We have gone through his evidence carefully and find no adequate reason to distrust his evidence. 11. Pw. 7 is the medical officer who examined the injuries on the accused. His evidence is very important and would throw a flood of light on how the accused sustained the injuries. The first accused had five injuries. His certificate is Ext. P-8. The first was a lacerated wound on the face; the second a vertical contusion on the right side of the chest; the third a contusion on the left hand above the wrist joint; fourth an abrasion on the back side of the elbow; and fifth a contusion on the right side of the head. The doctor has stated that the first accused stated that they were caused by being beaten with short stick and pestle on 8-3-64 at 8 p.m. and 10 p.m. The certificate of the second accused is Ext. P-9. There were no injuries on his person, but he complained of severe pain on both sides of the chest and stated he was beaten with stick and pestle at 8 p.m. The certificate of the third accused is Ext. P-10. He had also five injuries. One was a lacerated wound and the others were contusions and abrasions. He also stated he was beaten with stick and pestle at 8 p. m. on that night. P-10. He had also five injuries. One was a lacerated wound and the others were contusions and abrasions. He also stated he was beaten with stick and pestle at 8 p. m. on that night. The certificate of the fourth accused is Ext. P-11. He had four injuries-two contusions, one lacerated wound and an abrasion. The doctor has deposed that the accused told him that the injuries were sustained at 8 p. m. by being beaten by sticks. Entries to this effect have been made in the respective certificates. As against his evidence it is stated that the accident register is not produced that he had admitted that the injuries were first noted in a rough paper and that paper is not produced, that he belongs to the same village, that he knows Pws.1 & 2 and must have been influenced by them to give false evidence. He is a respectable witness with no axe to grind against the accused and we find no good grounds to doubt his testimony. Thus there is clinching evidence to show that the injuries found on the accused had been sustained by them earlier. 12. We may at this stage consider the effect of Ext. P-18 the statement given by the third accused before the Sub Inspector Pw. 14. It was recorded at 6-15 a. m. before even the F. I. R. in this case was prepared. Learned sessions judge was of the view that Ext. P-18 cannot be used for any purpose against the accused. This view does not appear to be correct. In the statement Ext. P-18 the third accused had admitted that some of the injuries sustained by him had been caused in an incident the previous day at 8 p. m. at the banks of the thodu to the south of Kalangara bridge. That is the place where Pw. 4 alleged that there was an exchange of blows between the accused and the villagers. Learned counsel for the appellant would argue that Ext. P-18 is the first information given in the case by the accused and he having been subsequently charged as an accused in the case the information given is inadmissible in evidence. In support of this contention reliance is placed on the decision in Nisar Ali v. State of U. P. (AIR. 1957 SC. 366). P-18 is the first information given in the case by the accused and he having been subsequently charged as an accused in the case the information given is inadmissible in evidence. In support of this contention reliance is placed on the decision in Nisar Ali v. State of U. P. (AIR. 1957 SC. 366). In that case their Lordships laid down: "A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under S.157, Evidence Act, or to contradict it under S.145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses." The decision, as we understand it, lays down that if an investigation starts on the basis of the complaint given by a person who later becomes the accused in the case, that information cannot be used for any purpose. We do not think that the rule laid therein has any application to the facts of this case. In the instant case, the accused did not lay any complaint in connection with the murder of the deceased. In fact Ext. P-18 does not even refer to the deceased being injured. That complaint relates only to the alleged assault on him. The report is not a confession by an accused. It is also not a statement made to the police officer during the course of investigation. S.25 of the Evidence Act & S.162 Crl. P.C. do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the court, namely, whether the earlier incident as spoken to by Pw. 4 had, in fact, taken place and whether the third accused or others had sustained injuries as a result of that incident. It will also help in showing whether the statement of the accused denying altogether the earlier incident is true or not. Admissions of this nature are admissible in evidence under S.21 of the Evidence Act and are provable against them. The Privy Council in very similar circumstances held, in Dal Singh v. King Emperor (AIR. 1917 P.C. 25), such first information reports to be admissible in evidence. Admissions of this nature are admissible in evidence under S.21 of the Evidence Act and are provable against them. The Privy Council in very similar circumstances held, in Dal Singh v. King Emperor (AIR. 1917 P.C. 25), such first information reports to be admissible in evidence. At page 27 it is stated: "It is important to compare the story told by Dal Singh when making his statement at the trial with that what he said in the report he made to the police in the document which he signed, a document which is sufficiently authenticated. The report is clearly admissible. It was in no sense a confession. As appears from its terms, it was rather in the nature of an information or charge laid against Mohan and Jhunni in respect of the assault alleged to have been made on Dal Singh on his way from Hardua to Jubbulpur. As such the statement is proper evidence against him...." This view has been approved in a recent decision of the Supreme Court in Faddi v. State of M. P. (AIR. 1964 SC. 1850). The Privy Council case has been referred to and the earlier decision of the Supreme Court in AIR. 1957 SC. 366 has been distinguished. Their Lordships stated that a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot be used against a co-accused. In the 1957 Supreme Court case it is not stated that a first information report which is not a confession cannot be used as an admission under S.21 of the Evidence Act or as a relevant statement under any other provision of the Evidence Act. It was held that admissions of an accused can be proved against him. Ext. P-18 therefore can be used for the purpose of showing that the prosecution case that there was an earlier incident and that the accused sustained injuries in that encounter is true. 13. We may, at this stage, refer to the case set up by the accused. According to accused 1 and 4 they got information of an intended rioting and were proceeding to inform the Sub Inspector of Police. When and from where the accused got this information is not stated. No entry is seen to have been made in the General Diary of the station. According to accused 1 and 4 they got information of an intended rioting and were proceeding to inform the Sub Inspector of Police. When and from where the accused got this information is not stated. No entry is seen to have been made in the General Diary of the station. According to the second accused, he was peacefully sleeping at the police station that night. If really the case of accused 1 and 4 were true would they not have told the second accused about the information they had received and if they had told him would he have been peacefully sleeping at the station as he now alleges. The third accused stated that knowing about the assault on accused 1 and 4 he went to the scene and he was also beaten. It is curious that even he did not wake up the 2nd accused and take him also with him. 14. Pw.14 the Sub Inspector has produced the G.D. of the station and he had proved the various entries. According to his evidence at the time of roll-call by him at 6.30 a. m. the third accused was not present at the station and he was assigned 'night turn duty'. So from 8 p.m. on 8-3-64 till 6.30 a.m. on 9-3-64 the third accused had to be on duty at the station. According to the entries in the G.D. as spoken to by Pw.14 the third accused is seen to have returned to the police station by about 8.30 a.m. on that day. What he did after that is not stated. He was absent at the station when the Sub Inspector Pw.14 visited the station at 10 p.m. If as is now stated he had accompanied the first accused for apprehending the accused in crime No. 1/64 relevant entries would have been made in the G.D. to that effect. According to the G.D. entry the second accused was on bus-stand point duty. His duty would be over by 8 p. m. and he had then to return to the police station. There are no entries in the G.D. to show that he had returned at 8 p.m. to the station. The next entry that is seen about him is only at 5.15 a.m. on 9-3-64 of the second accused having returned to the station. There are no entries in the G.D. to show that he had returned at 8 p.m. to the station. The next entry that is seen about him is only at 5.15 a.m. on 9-3-64 of the second accused having returned to the station. Pw.14 when he went to station at 10 p.m. does not see the second accused at the station and no questions were asked to Pw.14 whether the second accused was not sleeping at the police station. So according to the G.D. and the evidence of the Sub Inspector these four accused are seen to be not at the station and this would probabilise the case of Pw. 4 that they were together seen in the country boat and the evidence of the other witnesses that they were together seen at the scene of occurrence. Comment was made about the conduct of Pw.14. It must be remembered that he is only a probationer. On receipt of the intimation about the occurrence and finding that his men were parties to the incident he must have been much upset and must have lost his balance and did not know how to proceed in the matter. That would account for the delay in recording the first information statement from Pw.1.On a careful and anxious consideration of the entire evidence and the circumstances of the case we entertain no doubt that the incident did take place in the manner set up by the prosecution. From the evidence it is clearly made out that it was the first accused who inflicted the two fatal injuries on the deceased, that it was the second accused who beat the deceased on his head, that the third accused stabbed Pws.1 & 2 with the knife and accused 2 & 4 beat Pws.1 and 2 with lathies and caused simple and grievous injuries on them. Learned judge has stated that the evidence is not clear whether the fracture of the bone was caused by accused 2 or accused 4. 15. Now the question for decision is what is the offence that is committed by the accused. As far as the first accused is concerned there is overwhelming evidence to establish that it was he who inflicted the fatal injuries on the deceased. From the nature and site of the injury and the weapon used intention to cause death is manifest. Now the question for decision is what is the offence that is committed by the accused. As far as the first accused is concerned there is overwhelming evidence to establish that it was he who inflicted the fatal injuries on the deceased. From the nature and site of the injury and the weapon used intention to cause death is manifest. He would, therefore, be plainly guilty of the offence of murder. Coming to accused 2, 3 and 4 they have also been found guilty and convicted for the offence of murder by invoking the provisions of S.34 I.P.C. S.34 I.P.C., says: "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." This section, therefore, requires that there must be a general intention shared by all the persons concerned in the offence, that is to say, when several persons unite with a common purpose to do any criminal offence, all those who assist in the accomplishment of the object would be equally guilty. The foundation of constructive liability is the common intention animating the accused to the doing of the criminal act, and the doing of such act in furtherance of such intention. It follows, therefore, that common intention is an intention to commit a crime actually committed and every one of the accused should have participated in that intention. In Barendra Kumar Ghosh v. Emperor (AIR. 1925 P.C.1), Lord Sumner stated at p. 211 thus: "S. 34 deals with the doing of separate acts similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the lower part of the section must include the whole action covered by a 'criminal act' in the first part because they refer to it." Thus there will be no liability by reason of S.34 except in a case where there was a common intention to commit the particular offence which resulted. A similar intention would not be enough to bring the case within the meaning of the section. A similar intention would not be enough to bring the case within the meaning of the section. Suppose several persons, each acting independently of the others, intend to commit a crime and all of them chose the same moment and commit the crime which each of them intended separately, there would be no common intention in such a case. Each of them would be liable for his act, but not vicariously for the act of another or others. In Mahbub Shah v. Emperor (AIR. 1945 P.C.118) the Privy council laid down that S.34 enacted a principle of joint liability in the doing of a criminal act, that the essence of that liability was to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention and that to invoke the aid of S.34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all. On that principle it was held that common intention within the meaning of the section implied a pre-arranged plan and to convict the accused of an offence, it should be proved that the criminal act was done in concert pursuant to the prearranged plan. Their Lordships of the Privy Council held that the inference of common intention should never be reached unless it was a necessary inference from the circumstances of the case. It was, however, pointed out that although it might be difficult if not impossible to procure direct evidence to prove the intention of an individual and in most cases it had to be inferred from his act or conduct or other relevant circumstances of the case, the inference of common intention within the meaning of S.34 I.P.C., should never be reached unless it was a necessary inference deducible from the circumstances. In Pandurang v. State of Hyderabad (AIR. 1955 S.C. 216), Bose, J. summarised the position thus: "Now in the case of S.34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of common intention of all of them - AIR. 1945 P.C.118 at pp. 120,121. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of common intention of all of them - AIR. 1945 P.C.118 at pp. 120,121. Accordingly, there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have 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 caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of murder, however, clearly an intention to kill could be proved in his case: AIR. 1925 P.C.1 at P. 5 and AIR. 1945 P.C.118. As their Lordships say in the latter case "the partition which divides their bounds is often very thin, nevertheless the distinction is real and substantial and if over-looked will result in miscarriage of justice." In a recent case in Krishna Govind Patil v. State of Maharashtra (AIR. 1963 S.C.1413), Subba Rao, J. stated: "It is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under S.302, read with S.34, of the Indian Penal Code, it should come to a definite conclusion that the said person had prior concert with one or more other persons, named or unnamed, for committing the said offence." 16. Bearing these principles in mind we will now examine the facts of this case to find out whether the prosecution has succeeded in making out that accused 2, 3 & 4 had a common intention to murder. Bearing these principles in mind we will now examine the facts of this case to find out whether the prosecution has succeeded in making out that accused 2, 3 & 4 had a common intention to murder. Learned sessions judge has only stated that the facts and circumstances proved in the case clearly would indicate that the accused persons had 'the intention' to murder Chinnan and to cause hurt to Pws.1 & 2. But that is not enough; there must be 'a common intention.' What the facts and circumstances were, from which the necessary intent could be spelt out has also not been stated. Learned Judge has stated that the prosecution has not placed before the court the circumstances under which the injuries were caused by the accused persons. In fact, there is no evidence that when the four accused went along the road towards the telephone exchange office they had any knowledge that Chinnan would be there. There is no evidence that the accused had even known the deceased earlier. The utmost that has been proved in the case is that when Pw.1 came to the hospital and left, accused 1, 3 & 4 also left the hospital. There is thus no evidence from which it could be inferred that there was prior planning or any pre-concert. There is no evidence of any prior meeting of minds. We know nothing of what they said or did before the attack. Accused 3 & 4 did not do anything against the deceased. It is true that prior concert and arrangement can, and indeed often must, be determined from subsequent conduct, but there is, in this case, nothing, which could be referable to prior concert and pre-arrangement. In our opinion, therefore, it would not be safe to hold accused 2, 3 and 4 guilty of the offence under S.302 read with S.34 I.P.C. The evidence clearly shows that accused 2 and 4 had used the lathi which is a deadly weapon and the third accused had used a knife. They can, therefore, be convicted under S.324 I.P.C. only. Since there is no common intention the conviction of the first accused under S.326 & 324 read with S.34 I.P.C. and the conviction of accused 2,3 and 4 of the offence under S.326 and 324 read with S.34 I.P.C., have to be set aside and we do so. They can, therefore, be convicted under S.324 I.P.C. only. Since there is no common intention the conviction of the first accused under S.326 & 324 read with S.34 I.P.C. and the conviction of accused 2,3 and 4 of the offence under S.326 and 324 read with S.34 I.P.C., have to be set aside and we do so. In the result the conviction and sentence of the first accused for the offence under S.302 I.P.C., are confirmed. The conviction of accused 2,3 and 4 is altered to one under S.324 I.P.C. They are each sentenced to undergo rigorous imprisonment for three years. With these modifications the appeals are dismissed.