JUDGMENT K.K. Mathew, J. 1. There are three accused in the case. They were charged with an offence punishable under S.302 read with S.34 IPC. for having caused the death of one Gopalan on 8 3 1967 by beating and kicking him. The learned Sessions Judge convicted the 1st accused of the offence punishable under S.325 IPC. and sentenced him to undergo R. I. for three years and to pay a fine of Rs. 100/- and in default to undergo S. I. for one month; the 2nd accused of offence punishable under S.302 IPC. and sentenced him to undergo imprisonment for life; and the 3rd accused of offence punishable under S.323 IPC. and sentenced him to undergo R. I. for 3 months. The accused have preferred this appeal against the convictions and sentences. 2. During the course of the argument, we directed notices to be issued to accused 1 and 3 under S.439 to show cause why their acquittal under S.302 read with S.34 should not be set aside, and a retrial ordered. 3. The prosecution case against the accused is as follows: The 2nd accused has married a sister of the 3rd accused. The 1st accused is a consanguine brother of the deceased Gopalan. The father of deceased Gopalan transferred a property which stood in his name to the 1st accused, his only son by the second marriage. His children through the first marriage were not given any share in the property. Gopalan was residing in a portion of the property. The father of Gopalan and the 1st accused were also residing there. Gopalan picked up a quarrel with the 1st accused on account of the transfer of the property to the 1st accused and the 1st accused had to execute a sale deed for six cents of property in favour of Gopalan to pacify him. The 1st accused bore a grudge against Gopalan on this account. The 2nd accused made indecent overtures to Sarojini, the daughter of Gopalan, when she was alone in the house of Gopalan. On coming to know about it, Gopalan beat 2nd accused. The 2nd accused bore a grudge against Gopalan for this reason. On 8 3 1967, Gopalan accompanied by his son, Kunjappan PW. 1, boarded a bus at about 8.00 p.m. from near his house and went to Nagapuzha market. Gopalan met carpenter Bhaskaran there and paid him some amount. PW. On coming to know about it, Gopalan beat 2nd accused. The 2nd accused bore a grudge against Gopalan for this reason. On 8 3 1967, Gopalan accompanied by his son, Kunjappan PW. 1, boarded a bus at about 8.00 p.m. from near his house and went to Nagapuzha market. Gopalan met carpenter Bhaskaran there and paid him some amount. PW. 1 saw the three accused getting out of a toddy shop in the market. They went westward along the Nagapuzha Kallurkad road and waited on the verandah of Ezhanikkad Itta's tea shop marked as No. 2 in the plan Ext. P-4. Gopalan and PW. 1 also went that way after some time. When they reached in front of the shop of Itta, the first accused approached Gopalan saying " EkaEc7a , EkaEc7a "Gopalan then said "what Kunjumon", the pet name of the 1st accused being Kunjumon'. Suddenly the 1st accused caught hold of the neck of Gopalan and throttled him and asked his friends 2nd and 3rd accused to beat Gopalan The 2nd accused kicked Gopalan on the abdomen and hit him with a stone and the 3rd accused twisted his left hand. The 1st accused threatened PW. 1, who was standing nearby, and asked him to go away. PW. 1 out of fear, left for home. PW. 1 on reaching home reported the matter to his mother, PW. 2, and out of fear they went to PW. 13's house with the idea of spending the night there. Pw. 1, however, proceeded to the house of his father's elder brother, Krishnan. Krishnan was not there when PW. 1 reached his house. PW. 1 told the matter to Krishnan's wife, PW.7, and returned to the house of Ulahannan, PW. 13. Then, he came to the scene of occurrence and found his father lying dead. Within a short time, Krishnan also came to the scene of occurrence. Krishnan and PW. 1 proceeded to Kallurkad outpost and reported the matter to PW. 18, the Police Constable. He took them to the Thodupuzha Police Station where PW. 20, the Circle Inspector of Police took Ext. P-1 statement from PW. 1 and registered a case against the three accused. PW. 20 conducted the inquest, and PW. 9, the post mortem examination on the dead body. Accused 1 and 2 were arrested from a hotel in Thodupuzha on 2 4 1967. 20, the Circle Inspector of Police took Ext. P-1 statement from PW. 1 and registered a case against the three accused. PW. 20 conducted the inquest, and PW. 9, the post mortem examination on the dead body. Accused 1 and 2 were arrested from a hotel in Thodupuzha on 2 4 1967. After investigation the accused were charge sheeted. 4. The accused in their statement under S.342 of the Criminal Procedure Code denied their complicity in the offence. They denied their presence at the scene of occurrence at the relevant time. 5. That Gopalan died is not disputed, and it is proved by the inquest report and post mortem certificate. That he died of the injuries sustained is proved by the evidence of PW. 9, the Medical Officer who conducted the post mortem examination. PW. 9 has noted the following injuries in Ext. P-3: "Right side of the face upper part and temple, were slightly swollen and minor bruises were seen over the area. Underneath the skin tissues were bluish. Slight swelling of nose was seen and mucous membrane of the nostrils showed laceration. Discolouration of the abdominal wall in front was seen here and there, mostly upper part. Bluish discolouration of the back lumbar and central regions were seen. Over the neck in front bluish discolouration was seen in the middle and transversely on either side. Multiple small abrasions were seen on either side. Slight swelling of the left side was noted. The hyoid bone on either side were broken. Internal larnyx and glottis showed slight congestion. Heart structure normal; cavities empty; pluera slight congestion; lungs collapsed and slight congestion. Abdomen stomach empty, looked pale; small intestines looked pale and contained partly digested food. Large intestines looked pale. At the hepatic and the splinic fluctures the colon is contused and blue for four inches. The mesentery at these sites were also contused and blue. Blood and blood clots were seen in the abdominal cavity. The kidneys and spleen looked pale and surrounding area showed extravention of blood. Bladder and rectum partly full. Skull covered with black hair. Brain and meninges slight congestion. There was disloation of the left elbow joint. He had a small hydrocile on the right side Semen was seen at the tip of the penis." According to PW. The kidneys and spleen looked pale and surrounding area showed extravention of blood. Bladder and rectum partly full. Skull covered with black hair. Brain and meninges slight congestion. There was disloation of the left elbow joint. He had a small hydrocile on the right side Semen was seen at the tip of the penis." According to PW. 9, death of Gopalan was due to shock resulting from internal haemorrhage on account of the cumulative effect of the injuries sustained by him. 6. There is only the evidence of PW.1 as regards the occurrence. He said that for the last 3 years his father used to take him wherever he went, that on the date of occurrence, he went with his father to Nagapuza market and for that purpose they boarded a bus plying between Kothamangalam - Thodupuzha, which passes along the Nagapuzha market at 8. p.m., that his father wanted to meet Bhaskaran and pay him some amount, that they alighted in the market where Bhaskaran was waiting, that Gopalan handed over Rs. 30/- to Bhaskaran and that he then saw the three accused coming out of the toddy shop (which is marked as No. 5 in the plan, Ext. P-4). He further says that the accused proceeded westwards along the road which goes to Kallurkad and that himself and Gopalan also proceeded in the same direction after paying the amount to Bhaskaran as there was, at the time, no chance of getting a bus to return home, that when they reached in front of Ezhanikkad Itta's tea shop, the 1st accused approached Gopalan saying " EkaEc7a , EkaEc7a " and Gopalan replied "What Kunjumon", that suddenly the 1st accused caught hold of the neck of Gopalan, that the 1st accused then asked the other accused to beat Gopalan, that the 3rd accused caught hold of the left hand of Gopalan and twisted, that Gopalan fell down, that the 2nd accused then kicked Gopalan on his abdomen, and struck him with a stone, that he then cried out that his father was being killed and asked the accused not to kill his father, that the 3rd accused approached PW. 1 and threatened him and also gave a blow and asked him to go away, that he therefor went to his house and communicated the matter to the inmates of the house. PW. 1 and threatened him and also gave a blow and asked him to go away, that he therefor went to his house and communicated the matter to the inmates of the house. PW. 1 also deposed that he and the inmates of the house went to the house of PW. 13 and that he then went out to the house of Krishnan and told his wife about the incident as Krishnan was not there at the time. He further said that he came back to the scene of occurrence and that Krishnan also came thereafter and that they went to the outpost and then to the Police station and that he gave the F.I. Statement. 7. PW. 4 is a live stock assistant in Kallurkad Veterinary Hospital. He resides near the road in between Nagapuzha market and Maniyanthra junction. His house is marked as No. 3 in Ext. P4 plan. PW. 4 has said that while he was sitting on the verandah of his house, he saw the three accused proceeding westwards by about 8.00 p. m. on 8-3-1967, that after some time he saw Gopalan and PW. 1 also going in the same direction, and soon after he heard the noise of beating and crying from near the tea shop of Itta. Itta's son, Narayanan has a shop which is marked as No. 4 in the plan Ext. P4. PW. 4 wanted to tell the matter to Narayanan and so he came out and called Narayanan and informed him about it They together came near the house of PW. 4, but after a while Narayanan went back. PW. 4 also says that at about 10.00 p. m. he saw the three accused going towards the market in haste. 8. PW. 8 resides in the house shown as No. 9 in Ext. P4 plan. He heard the noise of beating and came to the Maniyanthra junction. He understood that something was going on in front of the tea shop of Itta. He went to the house of PW. 10 Poulose which is marked as No. 8 in the plan and got a torch from Poulose and returned to the junction. Poulose also accompanied him. At that time, Barber Rajappan PW. 11, whose house is marked as No. 7 in the plan, also came to the junction. When PW. He went to the house of PW. 10 Poulose which is marked as No. 8 in the plan and got a torch from Poulose and returned to the junction. Poulose also accompanied him. At that time, Barber Rajappan PW. 11, whose house is marked as No. 7 in the plan, also came to the junction. When PW. 8 proceeded along the road, somebody came forward towards him uttering filthy words. PW. 8 identified him by means of the torch light. It was the first accused. PW. 8 said that 1st accused then told him that PW. 8 need not wait there. PWs. 10 and 11 in their deposition said that they also came to the junction, that they saw somebody approaching them and asking them to go away but that they could not identify that person. PW. 8 was definite that it was the 1st accused and that he identified him with the torch light. There is no reason why, ifPW. 8 could identify the 1st accused, PWs. 10 and 11 could not. From the evidence of PW. 8, it is clear that the first accused asked him not to remain there but to go away. PWs. 10 and 11 admitted that they heard somebody talking to PW. 8. It is difficult to believe the version of PWs. 10 and 11 that they could not identify the first accused as the person who talked to PW. 8. 9. I have no doubt that PW. 1 can be believed when he says that it was the accused who assaulted Gopalan which resulted in his death. The 1st accused's case that he was not there on the scene of occurrence is belied by the evidence of PW. 8 It was contended that PW. 1 could not have seen the incident as there was no moonlight on that night. In the committal court, PW. 1 stated that he saw the occurrence by moonlight, but in the Sessions Court be said that there was no moonlight, and that he saw the incident by 'Nattuvelicham.' PW. 4 in his evidence stated that there was a street light some 50 feet away to the east of he scene of occurrence. PW 20, the Circle Inspector of Police, has said that if there was street light anywhere near the scene of occurrence he would have noted it in his mahazar. I believe PW. 4 in his evidence stated that there was a street light some 50 feet away to the east of he scene of occurrence. PW 20, the Circle Inspector of Police, has said that if there was street light anywhere near the scene of occurrence he would have noted it in his mahazar. I believe PW. 4 when he states that there was a street light some 30 feet away to the east and I think that PW. 1 could have identified the accused. The fact that PW. 4 sitting in the verandah of his house identified the persons who proceeded westwards at about 9.00 p. m. as the accused corroborates the version of PW. 1 that it was the accused who assaulted his father. 10. That Gopalan died due to the cumulative effect of the beating and other acts by the accused is proved beyond doubt. But I do not think it possible to believe the evidence of PW. 1 when he speaks to the individual acts of the accused. I agree with my learned brother in thinking that with the dim light available, PW. 1 could not have identified the individual acts done by each of the accused. In this view, it is difficult to uphold the finding of the learned Sessions Judge that it was the 2nd accused who kicked Gopalan on his abdomen and struck him with a stone, and that that must have been the cause of the death of Gopalan. PW. 9, the Medical Officer said that the injury caused to the colon can cause death but not immediately if that was the only injury. When the medical evidence is not very clear and when the evidence of PW. 1 as regards the injury caused by the 2nd accused cannot be safely accepted, I think there is no justification to hold that Gopalan died as a result of the acts attributed to the 2nd accused. It is also unsafe to hold that hyoid bone was broken as a result of the 1st accused catching hold of the throat of the deceased although that might be possible. PW. It is also unsafe to hold that hyoid bone was broken as a result of the 1st accused catching hold of the throat of the deceased although that might be possible. PW. 1 has definitely said that all the accused continued to belabour Gopalan even when he left the scene of the occurrence on account of the threat of the 1st accused, but we are left in the dark as to the part played by each of the accused after PW. 1 left the scene. 11. The charge against the accused was that they murdered Gopalan in furtherance of a common intention and thereby committed an offence punishable under S.302 read with S.34 of the IPC. The finding of the learned Sessions Judge is that there is no evidence to show that the acts done by the accused were done in furtherance of a common intention to murder Gopalan. This finding was arrived at by the learned Sessions Judge because he could find no evidence to show that there was a prior concert among the accused to murder Gopalan. On the evidence, as it stands, I do not think it possible to say that the case of the prosecution that the accused had the common intention to murder Gopalan has been proved beyond reasonable doubt. There is no evidence to show that the accused had knowledge that Gopalan would be coming to the market on that day at that time, or that they even saw Gopalan and pw. 1 in the market when they emerged from the toddy shop. It is said that such a common intention can be inferred from the fact that accused 1 and 2 were inimical towards Gopalan, that the 3rd accused is the brother inlaw of the 2nd accused, that all of them were close associates and friends and that they emerged from the toddy shop together, proceeded together westwards and waited in the verandah of Itta's shop. It is trite learning that in order to attract the constructive liability under S.34 IPC., there must be a pre concert among the accused to do a criminal act in furtherance of a common intention. In other words, there must be a meeting of minds of the accused previous to the commission of the criminal act. It is trite learning that in order to attract the constructive liability under S.34 IPC., there must be a pre concert among the accused to do a criminal act in furtherance of a common intention. In other words, there must be a meeting of minds of the accused previous to the commission of the criminal act. The prosecution has failed to adduce any evidence to show that there was a meeting of minds among the accused to murder Gopalan. I agree that it is often difficult to prove the common intention of persons except from their overt acts. The fact that the accused had no weapon with them is a strong circumstance that they had no common intention to murder Gopalan. In other words, the fact that the accused were not armed with weapons, although not conclusive of their intention, is a strong circumstance in the absence of other direct evidence against inferring that the common intention of the accused was to murder Gopalan. If their common intention was to murder Gopalan, it was not difficult for them to secure some weapon and be prepared for the murder. I cannot say that the learned Sessions Judge went wrong in inferring that the common intention of the accused was only to beat Gopalan, especially when it is seen that the 1st accused only said to the other accused to beat Gopalan. I am not saying that that is a conclusive circumstance but when there is no other conclusive evidence, I do not think the learned Sessions Judge was wrong in his finding. The fact that Gopalan died as a result of the beating by all the accused is not enough to infer that the common intention of the accused was to murder Gopalan. If there is no evidence to come to the conclusion beyond reasonable doubt that the common intention of the accused was to murder Gopalan, I do not think it proper to order a retrial of the accused for the reason that the learned Sessions Judge has not adverted to the relevant circumstances, when it is seen that the relevant circumstances would not safely lead to the conclusion that the common intention of accused was to murder Gopalan. As to the circumstances in which the High Court will interfere in revision, see the latest decision of the Supreme Court in Criminal Appeal No. 25/65. 12. As to the circumstances in which the High Court will interfere in revision, see the latest decision of the Supreme Court in Criminal Appeal No. 25/65. 12. The circumstances in which a retrial may be ordered have been stated by the Supreme Court in Chinnaswamy v. State of Andhra Pradesh AIR 1962 SC 1788 . The Supreme Court said: "It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal." 13. In Ukha Kolbi v. State of Maharashtra AIR 1963 SC 1531 the Supreme Court reiterated the circumstances under which a retrial will be ordered: "An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate having regard to the circumstances of the case that the accused should be put on his trial again. An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which accords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons." If a subordinate court has refused to exercise its jurisdiction on any ground whatsoever and the refusal is incorrect, illegal or improper, the High Court can order a retrial. If a subordinate court in exercise of its jurisdiction has committed an illegalityin procedure, on account of which the proceedings can be said to be bad, that would also be a case for ordering a retrial. The illegality must however be such as has caused a miscarriage of justice. If a subordinate court wrongly shuts out material evidence or admits inadmissible evidence and the accused is prejudiced thereby, a retrial can be ordered. Barring these and analogous cases, a case cannot be imagined in which retrial would be an appropriate remedy. The statutory provision that a High Court in revision should not convert a finding of acquittal into one of conviction should be obeyed in letter as well as in spirit and a High Court should not order a retrial in such circumstances as would make that order in effect one of conviction. 14. Adbul Hamid v. Juman AIR 1950 Allahad 266 at 269 (FB) the learned Judge after quoting the words or Tindal L. C. J. in Booth v. Bank of England 1841 (7) Cl. 14. Adbul Hamid v. Juman AIR 1950 Allahad 266 at 269 (FB) the learned Judge after quoting the words or Tindal L. C. J. in Booth v. Bank of England 1841 (7) Cl. and F. 509 to the effect that "whatever is prohibited by law to be done directly, cannot legally be effected by an indirect and circuitous contrivance", observed: "The statutory provision that a High Court acting in revision should not convert a finding of acquittal into one of conviction should be obeyed in letter as well as in spirit, and a High Court should not order a retrial in such circumstances as would make that order in effect one of conviction." The learned Judge further observed after quoting the following observations of Baguley J. in Ma Hyein v. Haung Chit Knu AIR (16) 1929 Rangoon 321 "Where there is no erroneous recording or shutting out of evidence, should I direct a retrial it would be for all practical purposes the same thing as sending the case to a Magistrate with directions to convict and this I do not see my way to do" that ''there is a great amount of force in the above observations, which was approved of by Bose J. in Jalaluddin v. Kartik Ram AIR (24) 1937 Nagapur 123." 15. In Partap Singh v. Singh AIR 1942 Lahore 70 at 71 (FB.), a Full Bench of the Lahore High Court observed: "Under cl. (4) of S.439, the High Court cannot convert a finding of acquittal into one of conviction, but it can under the powers conferred under S.423 order the accused to be retried by a Court of competent jurisdiction subordinate to such appellate court. In considering the question whether such a retrial should or should not be ordered, the discretion of the Court is legally unlimited. In actual fact, however, the Court seldom exercises this discretion except as laid down in a number of rulings, namely, that an order of acquittal will not as a rule be interfered with merely because the High Court disagrees with the finding of the Magistrate. It is only when the record is incomplete or there is a flaw in jurisdiction or where the finding is manifestly wrong or perverse that the High Court will interfere in such cases. In the present case the main point is that the evidence has been misstated...... It is only when the record is incomplete or there is a flaw in jurisdiction or where the finding is manifestly wrong or perverse that the High Court will interfere in such cases. In the present case the main point is that the evidence has been misstated...... "It will be open for the High Court, however, to consider whether in spite of the misdirection, any finding other than one of acquittal would have been come to in the circumstances of the particular case and the High Court would not order a retrial unless it came clearly to the conclusion that but for the misdirection the Court might have or should have come to a different finding to what it actually did." In these circumstances, I do not think it would be proper to order a retrial and direct the trial court to hear only the parties and appreciate the evidence already on record, as that would be nothing but a direction to that court to convict the accused for a graver offence. 16. Assuming then that the common intention of the accused was only to beat Gopalan, what is the offence which the accused have committed by their criminal act? That would depend upon the question whether each of the accused had the knowledge that the criminal act, which they had common intention to commit, was likely to cause the death of Gopalan. In Afrahim Sheikh v. State of West Bengal AIR 1964 SC 1268 , the Supreme Court held that it is permissible to convict more than one person under S.304, Part It read with S.34, if a criminal act, namely, beating is committed by them in furtherance of a common intention and if each of the accused has the knowledge that death is a likely consequence of the criminal act. The Court observed: "The question is whether the second part of S.304 can be made applicable. The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. The Court observed: "The question is whether the second part of S.304 can be made applicable. The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. Can it be said that when three or four persons start beating a man with heavy lathis, each hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was the likely result of the beating that the requirements of S.304, Part II are nor satisfied in the case of each of them. If it could be said that knowledge of this type was possible in the case of each one of the appellants, there is no reason why S.304 Part II cannot be read with S.34. The common intention is with regard to the criminal act, i.e., the act of beating, If the result of the beating is the death of the victim, and if each of the assailants possesses, the knowledge that death is the likely consequence of the criminal act, i. e., beating, there is no reason why S.34 or S.35 should not be read with the second part of S.304 to make each liable individually." 17. There is no evidence in this case to show that each of the accused had the knowledge that the criminal act which they had the intention to commit was likely to cause the death of Gopalan. As already indicated, there are no materials from which one can safely come to a conclusion as to what were the acts done by each of the accused before or after pw. 1 left the scene. It is true that the Sessions Judge did not consider the question that even if the common intention of the accused was to cause hurt, whether each of the accused had the knowledge that the criminal act, namely, beating was likely to cause the death of Gopalan. But when it is seen that there is no evidence to come to a conclusion that each of the accused had that knowledge, I doubt whether a retrial for that reason is permissible. But when it is seen that there is no evidence to come to a conclusion that each of the accused had that knowledge, I doubt whether a retrial for that reason is permissible. Nor am I satisfied that the fact that the learned Sessions Judge has not convicted the accused on the basis of his finding that the accused had the common intention to hurt Gopalan is a ground for retrial. I do not know whether a separate conviction of the accused under S.323 IPC. read with S.34 IPC. was necessary when it is seen that 2nd accused has been convicted for an offence under S.302 IPC., the 1st accused for an offence under S.325 IPC., and the 3rd accused for an offence under S.323 IPC. Assuming such a conviction was necessary, no separate punishment would certainly be awarded and then where is the miscarriage of justice so as to order a retrial for that reason? Even if the accused might be convicted for a graver offence on a reappraisal of the evidence, that may not be a sufficient ground for ordering a retrial. In the ruling reported in Bawar Shah v. Emperor AIR. 1936 Peshawar 172 the Judicial Commissioner's Court observed: "In the absence of any material irregularity in a trial in which all available evidence was produced, an order of retrial would merely amount to an expression of dissatisfaction with the result. It is established practice in all the High Courts in India that an order of retrial should not be given merely because the revisional authority disagrees with the trial judge as to the offences constituted by proved facts." 18. The question whether an order for retrial as envisaged in the judgment of my learned brother could be made is not free from doubt. A retrial, as I understand it, is a fresh trial. The decision of the Supreme Court in Chinnaswamy v. State of Andhra Pradesh AIR. 1962 SC. 1788 does not show that a limited retrial as visualised in the judgment of my learned brother is permissible. In that case, the appellant was convicted by the trial court. On appeal, the Sessions Court acquitted the appellant. The decision of the Supreme Court in Chinnaswamy v. State of Andhra Pradesh AIR. 1962 SC. 1788 does not show that a limited retrial as visualised in the judgment of my learned brother is permissible. In that case, the appellant was convicted by the trial court. On appeal, the Sessions Court acquitted the appellant. The High Court in revision set aside the order of acquittal by the Sessions Court on the ground that the appellate court wrongly ruled out evidence which was admissible and sent back the case to Sessions Court and ordered a retrial. The Supreme Court agreed that it is a fit case for interference in revision. But the question arose, what should be the nature of the retrial. The Court said: "Two contingencies arise in such a case. In the first place there may be an acquittal by the trial court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial court for retrial. But there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appeal court must be set aside, the question is whether the appeal court should be ordered to rehear the appeal after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, we are of opinion that it is open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to rehear the appeal. It will depend upon the facts of each case whither the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. It may order a retrial or it may order the appeal court to rehear the appeal. It will depend upon the facts of each case whither the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in oar opinion is to send back the appeal for rehearing to the appeal court." Although an appeal is often spoken of as a continuation of the trial in the original court, it is itself a separate trial. And only matters relating to the appeal are at large before the appellate court, and therefore, when the Supreme Court in the case referred to above, directed the Sessions Court to rehear the appeal, it was directing a retrial of the case in the appellate court; because it was the appellate court that went wrong in shutting out the evidence. There was no necessity to have sent the case to the trial court because the trial court admitted the evidence and convicted the accused. I do not think that the Criminal Procedure Code contemplates a retrial of the nature visualised in the judgment of my learned brother. The decision of Govinda Menon J in Mariam v. State of Kerala 1961 KLT 33 does not seem to be supported by any authority, other than the decision in Virumal Seomal v. Emperor AIR 1941 Sind. 144. I do not know whether the ruling is correct. However, it is not necessary for my purpose to express a definite view on the matter. In the result, I would set aside the conviction of the 2nd accused under S.302 IPC. as also the convictions of accused 1 under S.325 IPC. and accused 3 under S.323 IPC. I convict the accused under S.323 read with S.34 IPC. and sentence each of them to undergo R. I. for one year. I would discharge the rule issued by this Court under S.439 P. C. and would allow the appeal in the manner and to the extent indicated. Isaac, J. 1. Three persons were tried in the Court of Session, Ernakulam in Sessions Case No. 27 of 1967 for the offence under S.302 IPC. I would discharge the rule issued by this Court under S.439 P. C. and would allow the appeal in the manner and to the extent indicated. Isaac, J. 1. Three persons were tried in the Court of Session, Ernakulam in Sessions Case No. 27 of 1967 for the offence under S.302 IPC. read with S.34 thereof for murder of one Gopalan. The learned Sessions Judge found that the first accused was guilty of voluntarily causing grievous hurt to the deceased, and sentenced him under S.325 IPC. to undergo rigorous imprisonment for 3 years and to pay a fine of Rs 100/-. He found that the second accused was guilty of murder, and sentenced him to imprisonment for life under S.302 IPC. The third accused was found guilty of voluntarily causing hurt to the deceased and he was sentenced under S.323 IPC. to three months' rigorous imprisonment. The accused have filed the above appeal from their conviction and sentences. During the course of the hearing it appears to us that the acquittal of the accused of the offence with which they were charged was wrong. We, therefore, ordered issue of notice to accused 1 and 3 to show cause why their acquittal of the offence under S.302 IPC. read with S.34 should not be set aside, and a retrial ordered. Accordingly notices were issued to them in Calendar Revision. 2. I shall now briefly state the necessary facts of the case. The first accused is the only son of one Kunjan through his second wife. Kunjan had a number of children through his deceased first wife; and deceased Gopalan was one of them. A few months before the occurrence, Kunjan transferred to the first accused a property in which they are residing. The deceased was also residing in a part of this property; and he was offended by the above transfer. The first accused was constrained to convey six cents out of this property to the deceased which he did as per sale deed Ext. P2 dated 3-2-1967. The deceased has got an young daughter, pw. 15. Some time before the occurrence, the second accused went to the house of the deceased, when pw. 15 was alone there; and he made indecent overtures to the girl. On hearing about this, the deceased beat the second accused on the same day. The second accused has married a sister of the third accused. 15. Some time before the occurrence, the second accused went to the house of the deceased, when pw. 15 was alone there; and he made indecent overtures to the girl. On hearing about this, the deceased beat the second accused on the same day. The second accused has married a sister of the third accused. All the three accused belong to the same locality. The first and the third accused are each 20 years old, while the third accused is 21 years old; and all of them are friends and associates. 3. At about 8 p. m. on 8-3-1967, the deceased along with his son pw. 1, who was then about 16 years old went to Nagapuzha market to meet a person there to whom the deceased wanted to pay some money. This market is a few furlongs to the east to their house, and on the side of the Kallurkad - Thodupuzha road. At the market, the deceased and pw. 1 saw the three accused coming out from a toddy shop, and later going in the westward direction along the above road. After some time the deceased and pw. 1 returned from the market along the same road, about 500 feet to the west of the toddy shop; there is a tea shop on the southern side of the road, belonging to one Itta. The tea shop was then closed. When the deceased and pw. 1 reached in front of the tea shop, the first accused, who was waiting along with the other two accused on the verandah of the tea shop, came out to the road, calling the deceased "Kochetta" (meaning elder brother); and when he responded to the call, the first accused called the deceased by a filthy word, caught hold of the deceased by his throat, and exhorted the other two accused to fist the deceased. Immediately accused 2 and 3 came out to the road, and fell on the deceased. The third accused caught hold of the deceased's left hand and twisted it; and the first accused pushed the deceased by the throat, as a result of which the deceased fell on the ground. Then the second accused kicked the deceased in his abdomen. pw. 1 cried out not to kill his father. Then the third accused hit pw. 1 on his head, and asked him to run away. Then the second accused kicked the deceased in his abdomen. pw. 1 cried out not to kill his father. Then the third accused hit pw. 1 on his head, and asked him to run away. Accused 2 was then hitting the deceased with a stone. pw. 1 got frightened and ran away. While he was running away, he could hear the sound of his father being beaten and hit with a stone. 4. PW. 1 came to his house, and reported the matter to PW. 2 his mother. Then they went to the house of PW. 13, a close neighbour and told him what happened. PW. 1 immediately went to the house of his uncle, Krishnan, who is PW. 6. He was not in the house at that time. So the matter was reported to his wife, PW.7; and PW. 1 came back to PW. 13's house. After that he went to the place of occurrence, where he saw his father lying dead. PW 1 went back to the house of PW. 13. PW. 6 had by this time came to that house. PWs. 1 and 6 immediately went to the Kallurkad Police Out Post Station, and reported the matter to PW. 18, a Police Constable who was then in charge of the station. PW. 18 took them to the Thodpuzha Police Station; and PW. 20, the Circle Inspector recorded a statement from PW. 1 and registered a crime against the three accused for the offence of murder. Ext. P-1 is the statement of PW. 1 and Ext. P-1 (a) is the First Information Report. The Kallurkad Out Post Station is about 3 miles away; and the Thodupuzha Police Station is about 6 miles away from the scene of occurrence. The report to PW. 18 was made at 5.30 A. M., while Ext. P-1 was recorded at 9 A. M. on 9-3-1967. PW. 20 immediately proceeded to the scene of occurrence; and he conducted an inquest on the body of the deceased. A bloodstained stone found by the side of the dead body, the clothes found on the body of the deceased and other material objects were taken into custody. Ext. P-5 is the inquest report. The dead body was sent for medical examination to the local Government Hospital; and it was conducted by PW. 9 the Civil Surgeon of the hospital. Ext. P-3 is the post mortem certificate. Ext. Ext. P-5 is the inquest report. The dead body was sent for medical examination to the local Government Hospital; and it was conducted by PW. 9 the Civil Surgeon of the hospital. Ext. P-3 is the post mortem certificate. Ext. P-4 is a plan of the scene of occurrence, which was got prepared by PW. 14, the Village Officer. The accused were absconding. Accused 1 and 2 were arrested on 2-4-1967 from a hotel in Thodupuzha; and the third accused was arrested from his own compound at about 5-30 A. M. on the following day. After completing the investigation, PW. 20, submitted a final report in the Sub Magistrate's Court, Thodupuzha charging them with the offence under S.302 I. P. C. read with S.34 thereof. The Sub Magistrate committed them for trial to the Sessions Court, Ernakulam; and the learned Sessions Judge convicted the three accused for different offences, and sentenced them in the manner already stated. 5. The accuseds' plea has been one of total denial They denied having gone to the toddy shop and even having seen the deceased or PW. 1 on that day. The commission of the crime by the accused was sought to be established by the prosecution by the evidence of PWs. 1, 3, 4, 5, 8, 10 and 11. PW. 1 is the only witness to the occurrence; and he himself has seen only a part of it, as according to his version, he was beaten and frightened by the third accused, and he ran away while the attack on his father was in progress. I shall now refer briefly to the evidence of other witnesses. PW. 3 was the salesman in the toddy shop; and he deposed that the three accused went to his shop on 8 3 1967, that each of them took two bottles of toddy, and went away together at about 8.30 p.m. PW. 4 is a Live Stock Assistant, who resides on the road side about 100 feet to the east of the scene of occurrence. He deposed that he saw all the three accused proceeding westward along the road by about 8.30 p.m. and also saw the deceased Gopalan and PW. 1 going in the same direction after some time. 4 is a Live Stock Assistant, who resides on the road side about 100 feet to the east of the scene of occurrence. He deposed that he saw all the three accused proceeding westward along the road by about 8.30 p.m. and also saw the deceased Gopalan and PW. 1 going in the same direction after some time. He also deposed that, shortly after that, he heard some sound of a quarrel and beating and cries from the road in front of Itta's tea shop, that he got frightened, that he went towards the residence cum tea shop of PW. 12, Narayanan, which is on the road side and about 240 feet to the east of PW. 4's house, and informed him that some quarrel was taking place in front of Itta's shop, that PW. 12 came along with PW. 4 as far as his house, that by then, everything was over, and PW. 12 returned to his residence. PW. 4 further stated that a little later and some time before 10 pm. he saw all three accused running away from the scene of occurrence towards the east along the road in front of his house. PW. 12 supported the version of PW. 4; but according to the prosecution, PW. 12 had also seen the three accused going westwards along the road in the direction of Itta's tea shop some time before the occurrence. He declined to speak to that, and hence he was treated hostile. PW. 5 resides about 140 feet away from the scene of occurrence; and he deposed that he heard a noise and cry from the road side near Itta's shop at about 8.30 on that night; but he did not go out to see what the matter was. At about 300 feet to the west of the scene of occurrence, there is another road which goes southwards from the Kallurkad - Thodupuzha road to Maniyanthra. PWs. 8 and 10 reside on the western side of this road, and their houses are 675 feet and 525 feet respectively away from the scene of occurrence. PW. 11 resides on the northern side of the Kallurkad - Thodupuzha Road and a little to the west of the junction of the above two roads. His house is 425 feet away from the scene of occurrence. PW. 8 deposed that at about 9 pm. PW. 11 resides on the northern side of the Kallurkad - Thodupuzha Road and a little to the west of the junction of the above two roads. His house is 425 feet away from the scene of occurrence. PW. 8 deposed that at about 9 pm. he heard a person crying aloud from the side of Itta's tea shop that he may not be killed, that on hearing this cry PW. 8 came to the road junction where he could hear the sound of somebody being beaten in front of Itta's shop, that he went to the house of PW. 10 to take a torch, and both of them came back to the junction with a torch, that by this time PW. 11 also came to the said junction, that all three of them walked towards the scene of occurrence flashing the torch, when the first accused came forward towards them, uttering filthy words, and saying in a threatening manner that nobody should go towards that place. PW. 8 also deposed that he saw a person lying on the road in front of Itta's shop, but he did not know who he was, and that all three of them went away, as the first accused exhorted them not to stand there. PWs. 10 and 11 fully supported the evidence of PW. 8, except for the fact that they stated that they were not able to identify the person who came to them in a threatening manner, uttering filthy words; and they also denied having witnessed the conversation between the said persons, and PW. 8. PWs. 10 and 11 were, therefore, treated hostile and cross examined by the prosecution. 6. The enmity between the first accused and the deceased, as well as between the second accused and the deceased, and the fact that all the three accused are friends and associates are spoken to by PWs. 1, 2, 6, 15 and 16. The learned Sessions Judge believed the above evidence, and found that it is the three accused who attacked deceased Gopalan on that night, and that Gopalan died on the spot as a result of that attack. The post mortem certificate discloses injuries on several parts of the head, throat and abdomen of the deceased, and itstates that the death of Gopalan was due to the cumulative result of all the injuries. PW. The post mortem certificate discloses injuries on several parts of the head, throat and abdomen of the deceased, and itstates that the death of Gopalan was due to the cumulative result of all the injuries. PW. 9 has stated in court that the internal injury noticed on the colon of the deceased can be caused by kicking at the abdomen, and that this injury can cause death, but not immediately if that was the only injury. PW. 9 also stated that if the victim was throttled with force, hyoid bones can be broken. This was the only grievous hurt noticed on the body of the deceased. The learned Judge held that the common intention of the accused was only to cause hurt, and that they cannot, therefore, be convicted under S.302 IPC. read with S.34 thereof. Regarding the individual acts committed by the accused, he accepted the evidence of PW. 1 verbatim. The learned Judge said that PW. 1 has stated that the first accused caught hold of the deceased by throat, and pushed him down with force, and might have caused hyoid bones to break. Accordingly he found the first accused guilty of the offence under S.325 IPC. The learned Judge further stated that PW. 1 has deposed that the second accused kicked the deceased at the abdomen, and the injury found on the colon must be attributed to the said kicking. The learned Judge then held that the second accused must be reasonably inferred to have known the natural consequences of his act, and that his intention was to cause such bodily injuries, which he knew was likely to cause the death of the victim. Accordingly, the second accused was convicted of murder. Regarding the third accused, the learned Judge held that the evidence of PW. 1 was that the third accused only twisted the hand of the deceased, and that he was, therefore, guilty of the offence under S.323 IPC. only. 7. The learned counsel for the accused contended that the evidence of PWs. 1, 3, 4, 5, 8, 10 and 11 cannot be believed, and that the finding of the learned Sessions Judge that it was the three accused who attacked deceased Gopalan on the night of 5 3 1967 cannot be sustained. pw. 1 is an interested witness; but his evidence is corroborated in all material particulars by other independent evidence. The evidence of pw. pw. 1 is an interested witness; but his evidence is corroborated in all material particulars by other independent evidence. The evidence of pw. 3 shows that some time before the occurrence, all the three accused went to his shop, had a good drink, and went out together at about 8.30 pm. on that day. PW. 4 saw all the three accused together going in the direction of the scene of occurrence shortly before the incident, and also running away from that immediately after the completion of the commission of the occurrence. pw. 8 also identified the first accused very clearly. The evidence of the above witnesses establishes beyond doubt that between about 9 and 9.30 pm. the deceased Gopalan was subjected to a brutal and inhuman attack on the road in front of Itta's tea shop, and that he died on the spot as a result of the said attack. pws. 3, 4, 5, 8, 10 and 11 are independent witnesses. pws. 10 and 11 only helped the accused by stating that they did not identify the first accused. In this respect, the learned Sessions Judge disbelieved them. The learned counsel has not been able to make out any point to discredit the evidence of the above witnesses. I have, therefore, no hesitation to agree with the trial Judge in holding that it is the three accused who attacked the deceased in front of Itta's shop on the Kallurkad - Thodupuzha Road, which resulted in his immediate death on the spot. 8. The learned counsel for accused 1 and 2 contended that, even on the evidence, the conviction of these two accused for offences under S.325 I. P. C. and 302 I. P. C. respectively cannot be sustained. I am inclined to accept this contention. The finding of the trial Judge in this respect is based solely on the evidence of PW1. He has admittedly seen only the beginning part of the incident. The number and nature, of the injuries found on the body of the deceased show that the victim was subjected to a prolonged and brutal attack. So it is not safe to hold that it is the one kick by the second accused which PW l saw, that caused the injury on the colon of the deceased, or it is the catching hold of the throat by the first accused, which PW. So it is not safe to hold that it is the one kick by the second accused which PW l saw, that caused the injury on the colon of the deceased, or it is the catching hold of the throat by the first accused, which PW. 1 saw, that caused the hyoid bones to break. Again in the face of the positive opinion expressed in the post mortem certificate that the cause of death was shock due to the internal haemorrhage and the cumulative effect of the injuries caused on the body, it cannot be held that death was caused by one kicking said to have been given by the second accused on the abdomen of the deceased, as found by the learned trial Judge. The conviction of the first accused under S.325 I. P. C. or of the second accused under S.302 I. P C. cannot, therefore, be sustained. 9. The next question for consideration is whether the acquittal of the three accused of the offence under S.302 I. P. C. read with S.34 thereof is justified; and if not whether this is a fit case for interference in revision. S.439 of the Criminal Procedure Code states that the High Court may, in its discretion, exercise any of the powers conferred on a court of appeal by S.423, 426, 427 and 428, and may even enhance the sentence. This section, however, contains certain restrictions regarding the exercise of the above powers. One of these restrictions is that the High Court shall not convert a finding of acquittal into one of conviction. So, if the High Court, while exercising its revisional jurisdiction finds that an accused has been wrongly acquitted, all that it can do is to reverse the order of acquittal and direct that a further enquiry be made, or that the accused be retried or committed for trial, as the case may be; vide clause (a) of S.423(1) of the Criminal Procedure Code. This jurisdiction would however be exercised in respect of an order of acquittal only in exceptional cases. The circumstances under which it would be generally exercised have been stated by the Supreme Court in Chinnaswamy v. State of Andhra Pradesh AIR 1962 SC 1788 . The Court said: "It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. The circumstances under which it would be generally exercised have been stated by the Supreme Court in Chinnaswamy v. State of Andhra Pradesh AIR 1962 SC 1788 . The Court said: "It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offends, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal." The above decision has been referred to and the principles stated therein were reaffirmed by the Supreme Court in Mahendra Pratap v. Sarju Singh AIR 1968 SC 707 ; and the Court said: "Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision, it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court." 10. I shall now examine the judgment of the learned Sessions Judge in the light of the above principles. The learned Judge held that the common intention was only to cause hurt to deceased Gopalan, and not to cause his death. The reasons stated by him for the above finding are:- (i) The only act attributed to the first accused is to catch hold of the throat of deceased Gopalan, which might have caused the hyoid bones to break. The act attributed to the third accused is that he twisted the left hand of the deceased; and Gopalan died as a result of the kicking and hitting with stone by the second accused. (ii) The accused was not armed with any deadly weapons. The act attributed to the third accused is that he twisted the left hand of the deceased; and Gopalan died as a result of the kicking and hitting with stone by the second accused. (ii) The accused was not armed with any deadly weapons. (iii) What the first accused called out to the other two accused, when he started the attack, was to fist the deceased, and not to kill him. (iv) There was no prior meeting of the minds of the accused to cause the death of Gopalan. The first reason is based on the evidence of PW. 1. I have already pointed out that PW.1 saw only the beginning part of the incident; and that Gopalan's death was due to the cumulative effect of the numerous injuries which he received as a result of a prolonged and brutal attack on him. PW. 1 himself saw the beginning part of the incident in a dim light; and there is also controversy whether there was any light or sufficient light for him to see the individual acts. At any rate, when P W. 1 ran away, the attack on the deceased was in progress, and there is no direct evidence whether all the three accused individually attacked the deceased and if so, after that, what are the acts that each of them did. So the first reason stated by the learned Judge cannot be sustained. There is very little substance in the second and third reasons. It is hardly necessary to cause the death of a person in furtherance of a common intention, that the offenders should be armed with deadly weapons. That the first accused, when he commenced his attack on the deceased, called out to his comrades to fist the deceased, does not show that they had no common intention to cause his death. They had no weapons with them; and, therefore, whether the common intention was to cause hurt or death, that was the way in which they could start action. What was the common intention depends on a number of other circumstances. 11. The fourth reason stated by the learned Judge requires a more detailed consideration. There are a number of decisions of the Supreme Court dealing with the scope and applicability of S.34, IPC. What was the common intention depends on a number of other circumstances. 11. The fourth reason stated by the learned Judge requires a more detailed consideration. There are a number of decisions of the Supreme Court dealing with the scope and applicability of S.34, IPC. It is well established that a common intention pre supposes prior concert or a pre arranged plan to commit the criminal act. In Pandurang v. State of Hyderabad AIR 1955 SC 216 the Supreme Court said: "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 the common intention required by the Section because there was no prior meeting of minds to form a pre arranged plan. In a case like that, each would be individually liable for whatever injury he 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 the murder however clearly an intention to kill could be proved in his case." The Court also added: "The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre arranged plan however hastily formed and rudely conceived. But pre arrangement there must he and premeditated concert." Reference may also be made to the following statement of the law in Rishideo v. State of Uttar Pradesh AIR 1955 SC 331 : "It is now well settled that the common intention referred to in S.34 presupposes a prior concert, a pre arranged plan, i.e., a prior meeting of minds. This does not mean that there must be a long interval of time between the formation of the common intention and the doing of the act. It is not necessary to adduce direct evidence of the common intention. Indeed, in many cases it may be impossible to do so. This does not mean that there must be a long interval of time between the formation of the common intention and the doing of the act. It is not necessary to adduce direct evidence of the common intention. Indeed, in many cases it may be impossible to do so. The common intention may be inferred from the surrounding circumstances, and the conduct of the parties." I shall refer to one more decision of the Supreme Court; and it is Anda v. State of Rajasthan AIR. 1966 SC. 148, wherein the following passage appears: "It is always a question of fact as to whether the accused shared a particular knowledge or intent. One must look for a common intention, that is to say, some prior concert and what that common intention is. It is not necessary that there should be an appreciable passage of time between the formation of the intent and the act for common intention may be formed at any time. Next one must look for the requisite ingredient that the injuries which were intended to be caused were sufficient to cause death in the ordinary course of nature. Next we must see if the accused possessed the knowledge that the injuries they were intending to cause were sufficient in the ordinary course of nature to cause death. When these circumstances are found and death is, in fact, caused by injuries which are intended to be caused and which are sufficient in the ordinary course of nature to cause death the resulting offence of each participant is murder." 12. The learned Sessions Judge has not referred to any circumstance for holding that there was no prior meeting of the minds or that the criminal act done by the accused which caused the death of the deceased was not done in furtherance of a common intention. Accused 1 and 2 were inimical towards the deceased, though for different reasons. Accused 2 and 3 are brothers inlaw; and all the three accused are friends and associates. They went out together from the toddy shop some time before the occurrence, and waited on the verandah of the tea shop apparently for attacking the deceased. Suddenly the first accused came out to the road and attacked the deceased; and he exhorted the second and third accused to fist the deceased. They went out together from the toddy shop some time before the occurrence, and waited on the verandah of the tea shop apparently for attacking the deceased. Suddenly the first accused came out to the road and attacked the deceased; and he exhorted the second and third accused to fist the deceased. The second and third accused immediately fell on the deceased, and joined the first accused in attacking the deceased. While pws. 8, 10 and 11 were coming towards the scene of occurrence, with a flashed torch light, the first accused went towards them in a threatening manner and uttering filthy words, and persuaded them not to stop there, but to go away. After the completion of the commission of the crime, all three of them jointly escaped from the place. The deceased was subjected to prolonged and brutal attack, resulting in numerous injuries on various parts of the deceased's body. These are all very material facts in determining whether the accused acted in concert in killing deceased Gopalan. The finding that the criminal act done by the accused was not in furtherance of a common intention was arrived at without considering any one of the above facts. 13. The learned Judge has found that the common intention of the accused was to cause hurt; but he has not convicted the accused on this count. In Afrahim Sheikh v. State of West Bengal AIR 1964 SC 1263 dealing with the sustainability of a charge under the second part of S.304 IPC. read with S.34 thereof, the Supreme Court said: "The question is whether the second part of S.304 can be made applicable. The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. Can it be said that when three or four persons start beating a man with heavy lathis, catch hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was the likely result of the beating that the requirements of S.304, Part II are not satisfied in the case of each of them? If it could be said that knowledge of this type was possible in the case of each one of the appellants, there is no reason why S.304,Part II cannot be read with S.34. If it could be said that knowledge of this type was possible in the case of each one of the appellants, there is no reason why S.304,Part II cannot be read with S.34. The common intention is with regard to the criminal act i. e., the act of beating. If the result of the beating is the death of the victim, and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, i. e., beating there is no reason why S.34 or S.35 should not be read with the second part of S.304 to make each liable individually." So, even though the common intention was only to cause hurt, each of the accused knew that death was the likely consequence of their criminal act, each of them would be liable for the offence under S.304, Part II read with S.34. This is also an aspect which the learned Sessions Judge has totally failed to consider. 14. If the acquittal of the accused of the offence under S.302 read with S.34 is not set aside, and a retrial is not ordered, the accused would be escaping punishment, even though there is very clear evidence, as found by the learned Judge, that they caused the death of deceased Gopalan by prolonged and brutal attack on him. It would be a gross miscarriage of justice. This is, therefore, a fit case for interference in revision. 15. The next question for consideration is what should be the form of a retrial. Should it commence from the reading out of the charge to the accused, and taking the whole evidence afresh? Or is it enough, if the trial is started from the stage at which it went wrong? In other words, supposing there is no irregularity or illegality in conducting the trial, but only the decision is vitiated by a failure to consider material evidence or by being influenced by inadmissible evidence or irrelevant considerations, is it enough if the trial court rehears the case on the evidence already on record and disposes of it according to law? I have not seen any decision of the Supreme Court, dealing directly with this question; but it arose in a different manner in Chinnaswamy v. State of Andhra Pradesh AIR 1962 SC 1788 . I have not seen any decision of the Supreme Court, dealing directly with this question; but it arose in a different manner in Chinnaswamy v. State of Andhra Pradesh AIR 1962 SC 1788 . In that case, the appellant was convicted by the trial court; but acquitted by the Sessions Court in appeal. The High Court set aside the order of acquittal in revision on the ground that relevant and admissible evidence was ruled out by the Sessions Judge; and it sent back the case to the Sessions Court ordering a retrial. The Supreme Court agreed with the High Court in holding that it was a fit case for interference in revision; but the question arose what order should be passed in a case like this. The Court said: "Two contingencies arise in such a case. In the first place there may be an acquittal by the trial court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial court for retrial. But there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him. In such a case if the conclusion of the High court is that the order of the appeal court must be set aside, the question is whether the appeal court should be ordered to rehear the appeal after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, we are of opinion that it is open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to rehear the appeal. It will depend upon the facts of each case whether the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court. In the circumstances we are of opinion that the proper courseis to direct the appeal court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take." Now it has to be noticed that the order passed by the Supreme Court in the above case was one under clause (a) of S.423(i) of the Criminal Procedure Code. The only order that could possibly be passed subject to the limitation contained in S.439 (4) was one for retrial. Therefore, it has to be taken that the order passed by the Supreme Court to remit the case to the appellate court for rehearing was an order for retrial within the ambit of S.423(1)(a). In my view, this can be justified only on the premises that an appeal is a continuation of the trial; and the retrial intended by S.423(1)(a) need not necessarily be a full retrial; but it can very well be a retrial from the stage where the original trial went wrong. This leads me to the conclusion, that, if the error or illegality committed by the trial court related only to the decision of the case, the proper order to be made is to direct the trial court to rehear the case. If the entire evidence has been led, and the only defect is that the trial court acted on inadmissible evidence or failed to consider material evidence in deciding the case, it would be meaningless to rehear the whole evidence. It may also cause serious prejudice to the accused; because a complete retrial would give an opportunity to the prosecution to adduce more evidence than in the original trial. 16. It may also cause serious prejudice to the accused; because a complete retrial would give an opportunity to the prosecution to adduce more evidence than in the original trial. 16. I am supported in my above view by the decision of Govinda Menon J. in Mariam v. State of Kerala 1961 KLT 33 . In that case, the conviction of the accused was set aside in appeal by the District Magistrate on the ground that the accused was prejudiced by the failure of the trial court to question accused personally under S.342 Criminal Procedure Code; and the case was remitted to the trial court with the direction that it should dispose of the case after questioning the accused under S.342, and permitting him to examine defence witnesses, if any. It was contended on behalf of the accused that a retrial should be a complete one, and that the court has no power to order a partial retrial. The contention was rejected; and in doing so, the learned Judge said: "The words in S.423 Criminal Procedure Code, I think, are sufficiently wide to authorise a retrial from the point at which the error or illegality in the trial has been committed." The learned Judge has referred to the decisions in 'Dibakanta Chatterjee v. Gour Gopala Mukherjee ILR. 50 Cal. 939 - AIR 1923 Calcutta 727, Emperor v. Nathu Kasturchand Marwadi ILR 50 Bombay 42 - AIR 1925 Bombay 170, Motan Khan v. Emperor AIR 1927 Sind 175, and Virumal Seomal v. Emperor AIR 1941 Sind 144 in support of the above view. But an examination of the above decisions would show that this question was raised only in the last mentioned case; and this decision fully supports the above view. The other cases only furnish instances, where a retrial from the stage of questioning the accused under S.342 alone was ordered. 17. In the result, the conviction of the accused and the sentence passed against them are set aside. Their acquittal of the offence under S.302 IPC. read with S 34 thereof is also set aside, and the whole case is sent back to the trial court. The learned Sessions Judge will hear the parties and consider the evidence afresh and dispose of the case according to law. K.K. Mathew & Isaac, JJ: In view of the difference of opinion between us we place the case before another Judge for hearing. The learned Sessions Judge will hear the parties and consider the evidence afresh and dispose of the case according to law. K.K. Mathew & Isaac, JJ: In view of the difference of opinion between us we place the case before another Judge for hearing. Raghavan J: 1. The case has come before me under S.429 of the Code of Criminal Procedure as Mathew J. and Isaac J. were divided in opinion Mathew J. held that the three accused persons were liable under S.323 read with S.34 of the Penal Code and sentenced them to rigorous imprisonment for one year each while Isaac J. held that interests of justice demanded a rehearing of the case. Isaac J. directed the Sessions Judge to rehear the case on the evidence already recorded. 2. The three accused persons were charged under S.302 read with S.34 of the Penal Code for causing the death of a Gopalan. The Sessions Judge held that there was no evidence of a common intention for causing death; but he held that there was a common intention for causing hurt to Gopalan. Ultimately, he convicted the first accused under S.325 and sentenced him to rigorous imprisonment for three years, the second accused under S.302 and sentenced him to imprisonment for life and the third accused under S.323 and sentenced him to rigorous imprisonment for three months. And he did not convict them separately under S.323 read with S.34, though he found that they had a common intention to cause hurt to Gopalan. 3. At the very outset I may point out one difficulty that is typified by a case like this. S.429 of the Code of Criminal Procedure lays down that when the Judges composing the Court of Appeal are equally divided in opinion, the case shall be laid before another Judge of the same Court, and such Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. 4. In this case the Sessions Judge took one view Mathew J. took another view and Isaac J. took yet another view. The counsel of one of the appellants has invited my attention to the decision of the Calcutta High Court in Md. Illian Mistri v. The King (ILR. 1949-1 Cal. 4. In this case the Sessions Judge took one view Mathew J. took another view and Isaac J. took yet another view. The counsel of one of the appellants has invited my attention to the decision of the Calcutta High Court in Md. Illian Mistri v. The King (ILR. 1949-1 Cal. 43) which lays down that when a case is referred to a third Judge under S.429 of the Code, the entire case is before him and it is his duty not merely to weigh the differing opinions, but to examine the whole evidence himself with a view to deliver the final judgment. On the authority of this decision, the counsel has argued that the appellants should be acquitted and I should come to that conclusion, which means that I should come to a fourth conclusion. From the wording of S.429 of the Code it may possibly be argued that the third Judge is entitled to come to any conclusion as if the entire case is open before him with the result that the third Judge can come to a conclusion different from those reached by the other two Judges who constituted the Court of Appeal. It is one thing to say that the third Judge can consider only those differing findings by the Judges who constituted the Court of Appeal; and it is different to say that the third Judge is entitled to come to a third conclusion, I do not think that the framers of S.429 would have contemplated such a consequence. If, for instance, I come to the conclusion that the appellants in this case should be acquitted, can I do it sitting alone? In a murder case what is contemplated is a hearing of the appeal by at least two Judges; and if I come to the conclusion that the appellants are to be acquitted without the case being again referred to another Judge, the result will be that one Judge pronounces an ultimate decision in a murder case. Therefore, my opinion on the question is that though the entire case is before me and I am entitled to consider the whole evidence, I am not to come to a conclusion different from either of the two conclusions reached by my learned brothers. Therefore, my opinion on the question is that though the entire case is before me and I am entitled to consider the whole evidence, I am not to come to a conclusion different from either of the two conclusions reached by my learned brothers. Of course, in coming to that conclusion, I am not bound by their findings on individual points in the case; and in that sense the entire case is before me and I need not confine myself to questions considered by the other two learned Judges. I may consider the whole evidence afresh and come to my own findings; but I am not to come to a third conclusion in the case. In my opinion, what is contemplated by S.429 is that if regarding the conclusion there is a difference of opinion by the Judges who constituted the Appellate Court, such difference of opinion regarding the result of the case should be dissolved by a third Judge, and not that the third judge is entitled to come to a third conclusion. 5. In this connection I may refer to another case, though the question did not directly arise in that case. The decision is the State of Orissa v. Ninakotan Patnaik (AIR 1953 Orissa 160). What happened in that case was that the two Judges who constituted the Appellate Court came to the same conclusion, though one Judge found himself unable to agree with the views of the other Judge both on questions of law and as regards the appreciation of the evidence. Since their conclusion was the same, the case was not referred to a third Judge under S.429 of the Code. A petition for leave to appeal to the Supreme Court was filed, wherein an objection was taken that since the two Judges did not agree in their reasoning, the case should have been referred to a third Judge. The Full Bench, who heard the application for leave to appeal, rejectedthis contention and said that it was not the difference in the "inclination" that should have been considered under S.429, but it was the difference in the conclusion reached by the two Judges. This indicates, as I have suggested already, that what is to be referred to a third Judge under S.429 is the difference in the conclusion and not in the reasoning or in the findings on individual questions. 6. This indicates, as I have suggested already, that what is to be referred to a third Judge under S.429 is the difference in the conclusion and not in the reasoning or in the findings on individual questions. 6. At this stage, the counsel of the appellants suggest that I may come to a third conclusion and send back the case to my learned brothers for reconsideration on the lines suggested by me. I do not think that I am competent to do that, because I am not an Appellate Court sitting in appeal over the judgment (or rather judgments) of my learned brothers Yet another possible suggestion is that I may place the case before My Lord Chief Justice for reference to a larger Bench indicating my view. I doubt my competency to do even that in the light of S.429 of the Code. The best course, in my opinion, is the one pointed out by me hereinbefore. 7. The next question to consider is whether such an order of retrial as passed by Isaac J., namely, an order for the rehearing of the case, is competent. I would also express my opinion regarding the powers of this Court in ordering retrial. 8. I shall take up the second aspect first. In Chinnaswamy v State of Andhra Pradesh ( AIR 1962 SC 1788 ) the Supreme Court has said: "It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, .where the High Court can justifiably interfere with an order of acquittal. These and other cases of similar nature can properly be held to be cases of exceptional nature, .where the High Court can justifiably interfere with an order of acquittal. Similar observations have been made by the Supreme Court in Ukha Kolhie v. State of Maharashtra ( AIR 1963 SC 1531 ) and Mahendra Pratap v Sarju Singh ( AIR 1968 SC 707 ). Considering these decisions, Mathew J. observes: "Barring these and analogous cases, a case cannot be imagined in which a retrial would be an appropriate remedy." 9. I am afraid I cannot agree. The Supreme Court has said that it is not possible to lay down the criteria for determining the exceptional cases: the Supreme Court ' has only given some of the more glaring or some of the clearly exceptional cases. The Supreme Court has not attempted to lay down the criteria for determining the exceptional cases. Therefore, this Court has the power to say whether there are exceptional circumstances in a particular case, which call for the exercise of the jurisdiction to order retrial. 10. Mathew J. then doubts the power of the High Court to order rehearing. According to Mathew J. retrial should be a de novo trial in the sense that evidence should also be taken, and it should not be a mere rehearing of the case on the evidence already on record. There are at least two decisions, one of which is of our own High Court, favouring the view that an order for rehearing is competent. The decisions are Mariam v. State of Kerala ( 1961 KLT 33 ) by Govinda Menon J. and Virumal Seomal v. Emperor (AIR 1941 Sind 144). In addition to these there is the decision of the Supreme Court in Chinnaswamy's case AIR 1962 SC 1788 already referred to. In this case before the Supreme Court what happened was that the trial court, taking into consideration the evidence before it, came to one conclusion but the lower appellate court, disregarding or rejecting one item of evidence, which it held was inadmissible, came to a different conclusion. On appeal the Supreme Court held that the rejection of that item of evidence by the appellate court was wrong; and Their Lordships directed the appellate court to rehear the appeal taking into consideration that piece of evidence as well. On appeal the Supreme Court held that the rejection of that item of evidence by the appellate court was wrong; and Their Lordships directed the appellate court to rehear the appeal taking into consideration that piece of evidence as well. In the opinion of Mathew J. this decision is not authority for the position that the trial court may be directed to rehear the case on the evidence already on record: and in the opinion of Isaac J. this is authority that even the trial court can be directed to rehear the case on the evidence already on record. I agree with Isaac J. on this question, because it is possible to think of cases where the trial court itself wrongly rejected to consider one piece of evidence which it had recorded, and the appellate court considers that the case should be reheard after taking that piece of evidence as well into consideration. It is also possible to think of cases where the reasoning or the approach of the trial court is so palpably erroneous that a rehearing is essential without any new evidence. Therefore, the competence of this Court to order a rehearing of the case or a rehearing from a point where the trial court went wrong cannot be doubted. 11. Now I come to the merits of the case. PW. 1 (the son of Gopalan), a boy of 15 or 16, is the only eyewitness to the incident. For some years past, there was no love lost between Gopalan and the first accused. Gopalan and the first accused were the children of the same father; and Gopalan was one of the children by his first marriage. The first accused was the only son in his second marriage; and the father executed a document giving his property to the first accused. Gopalan was already living in a portion of the same property; and Gopalan did not like this conveyance. He quarreled with the first accused; and the latter had to give six cents out of the property to Gopalan. The second accused is the brother inlaw of the third accused; and they belonged to a different community. But they were also residents of the same locality. The prosecution case is that on a previous occasion the second accused tried to misbehave with a daughter of Gopalan; and Gopalan, when he knew about this incident, beat the second accused. The second accused is the brother inlaw of the third accused; and they belonged to a different community. But they were also residents of the same locality. The prosecution case is that on a previous occasion the second accused tried to misbehave with a daughter of Gopalan; and Gopalan, when he knew about this incident, beat the second accused. On this ground Gopalan and the second accused were also on inimical terms On the date of occurrence Gopalan and pw. 1 went to the market at Nagapuzha and paid Rs. 30/- to a Bhaskaran. By that time the last bus for them to return home had already left. pw. 1 says that he saw the three accused persons coming out of a toddy shop & proceeding towards the west along the Thodupuzha - Kallurkad road. A little later pw. 1 and Gopalan also proceeded along the same road to get back home. When they came in front of the tea shop of an Ezhanikad Itta, the accused persons came out of the verandah of the shop, which was closed during the night, and attacked Gopalan. The first accused caught hold of his neck, the second accused kicked him on the abdomen and the third accused twisted his right hand. pw. 1 says further that the first accused gave him a hit on his head and asked him to run away from the place, and he ran away. He does not know what happened thereafter. This was at about 9 or 9.30 in the night; and at about 11.30 the same night, pw. 1 came to the scene to see his father lying dead. Information was given to the police; and investigation followed resulting in the convictions and sentences already mentioned. 12. Both Mathew J. and Isaac J. have concurrently held that it is difficult to attribute particular acts of violence to the three accused persons, so that the convictions by the Sessions Judge cannot stand. Mathew J. has gone further and held that there was a common intention to cause hurt to Gopalan. The Sessions Judge has expressed the same opinion, though he did not convict them on that basis. The Sessions Judge has given four reasons for coming to the conclusion that there could not have been any common intention to cause the death of Gopalan. If there was a pre planning, there was certainly a common intention. The Sessions Judge has expressed the same opinion, though he did not convict them on that basis. The Sessions Judge has given four reasons for coming to the conclusion that there could not have been any common intention to cause the death of Gopalan. If there was a pre planning, there was certainly a common intention. Even in cases where there was no pre planning, it is possible detect a common intention; and this is illustrated by the Supreme Court in Pandurang v. State of Hyderabad ( AIR 1955 SC 216 ). Their Lordships point out that if one man calls on by standers to help him kill an individual and the bystanders, either by their words or their acts, indicate their assent and join him in the assault, there is common intention. Common intention can develop just before the attack commences or even during the course of the attack. 13. In this case the accused persons were admittedly not armed. If they had a previous plan to cause the death of Gopalan, it is only reasonable to expect that they would have provided themselves with some weapons, at least sticks if they could get none else. Of course, there was enmity between the accused persons and Gopalan; but there is no evidence that they knew that Gopalan was coming to the market that day. pw. 3, a person who was working in the toddy shop where the accused persons had their drink, says that each of the three accused persons paid his dues separately and that they sat in three different places to have their drink. These circumstances indicate that they could not have had a prearranged plan. If they had any such plan at least then, even then they would have provided themselves with some weapons. If at all, the common intention could have developed only later. They saw Gopalan and pw. 1 together; and what the evidence discloses is that Gopalan was fairly sturdy. If they had the common intention to kill Gopalan, they would not have accosted him on the road bare handed without providing themselves even with sticks It may also be remembered that Gopalan was not all alone; he was accompanied by pw. 1, though a boy, not a child. If they had the common intention to kill Gopalan, they would not have accosted him on the road bare handed without providing themselves even with sticks It may also be remembered that Gopalan was not all alone; he was accompanied by pw. 1, though a boy, not a child. Therefore, the absence of weapons with the accused persons, in my opinion, is a strong circumstance showing that they could not have the common intention to cause the death of Gopalan. 14. Next comes the question whether they had any common intention at all. pw. 1 says that the first accused caught hold of the neck of his father and shouted to the other accused persons to beat or fist him, and they subsequently fisted and beat Gopalan. This is proof positive that the accused persons bad the common intention to fist and beat Gopalan. The evidence of pw. 1 shows that the beating was by fist; and pw. 1 also says that one of the accused persons used a stone. In such circumstances, it is only safe to conclude that the common intention could have only been to cause hurt to Gopalan. 15. The intention of a person can be gathered only from the circumstances and his acts: the intention cannot be proved otherwise. The post mortem certificate (Ext. P3) and the evidence of pw. 9, the doctor who conducted the autopsy, throw considerable light on the intention of the accused persons. What Ext. P3 shows is that the right side of the face, the upper part and the temple were slightly swollen and minor bruises seen over the area; that underneath the skin tissues were bluish; that slight swelling of nose was seen and the mucous membrane of the nostrils showed laceration; that discolouration of the abdominal wall in front was seen here and there, mostly upper part; that bluish discolouration of the back lumbar and central regions was seen; that over the neck in front bluish discolouration was seen in the middle and transversely on either side; that multiple small abrasions were seen on either side; that slight swelling of the left side was noted; that the hyoid bone on either side was broken; that internal larynx and glottis showed slight congestion; and that there was dislocation of the left elbow joint. The opinion of pw. The opinion of pw. 9 regarding the cause of death is that death was due to shock resulting from internal haemorrhage on account of the cumulative effect of all the injuries sustained. The doctor is of opinion that no one of the injuries by itself was sufficient to cause death. Isaac J. has stated at four or five places in his judgment that Gopalan died as a result of a prolonged and brutal attack. I sought the help of the Public Prosecutor and the counsel of the appellants to point out the evidence on which my learned brother came to this conclusion; and they could point out only Ext. P3 and the evidence of pw. 9. As for me, I do not feel bold enough to hold from the evidence of pw. 9 and the evidence furnished by Ext. P3 that Gopalan died as a result of a prolonged and brutal attack. Admittedly, pw. 1 witnessed only the earlier part of the attack; and he does not know what happened subsequently. It is even possible that the accused persons also left the scene immediately after pw. 1 ran away from the scene while Gopalan was still alive. In my opinion the evidence is not sufficient to hold that Gopalan died as a result of a prolonged and brutal attack, nor to hold that the attack by the three accused persons must have been with the common intention to cause the death of Gopalan. 16. There is no appeal by the State; but my learned brothers issued notices under S.439 of the Code of Criminal Procedure calling upon accused persons 1 and 3 to show cause why their acquittal under S.302 should not be set aside and why they should not be retried. The power of ordering retrial in a revision under S.439 has to be used only in exceptional cases. Regarding that there cannot be any controversy; and my learned brothers are also agreed on that. If there was no common intention to cause the death of Gopalan, no retrial can be ordered for an offence under S.302 read with S.34 of the Penal Code. 17. Isaac J. has pointed out that the Sessions Judge has not considered whether there was a common intention to commit an offence under S.304 Part II. If there was no common intention to cause the death of Gopalan, no retrial can be ordered for an offence under S.302 read with S.34 of the Penal Code. 17. Isaac J. has pointed out that the Sessions Judge has not considered whether there was a common intention to commit an offence under S.304 Part II. On this question Mathew J. has held that there could not have been a common intention to commit an offence under S.304 Part II. S.304 Part II speaks of an act done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Can it be said in this case that when the three accused persons attacked Gopalan with their fists with the common intention of causing hurt to him, they had the knowledge that their act was likely to cause death? Even if each one of the accused persons may be presumed to have the knowledge that by his act death was likely to result, still, can it be said that they had a common intention which would bring their action within S.304 Part II? Common intention is not the same intention or similar intention. It must be an intention of one person shared by the other; and it is not enough if the two persons entertain similar or even the same intention. The only evidence in the case which throws any light at all on the commonness of the intention of the accused persons is the call the first accused made to the others to fist Gopalan and their hitting Gopalan with their fists. I do not think that from this alone it can be safely held that they all should be presumed to know (to have a common knowledge, if I may use that expression) that their act would have resulted in the death of Gopalan. 18. As I have already stated, the power of ordering retrial in revision is to be exercised only in exceptional cases. 18. As I have already stated, the power of ordering retrial in revision is to be exercised only in exceptional cases. In this case though Isaac J. has not expressed any opinion regarding the common intention to cause culpable homicide not amounting to murder, Mathew J. has expressed the opinion that there was no such common intention and I have agreed with Mathew J. In a case of remand for retrial, more so in a case for rehearing without retrial, however careful the appellate court is in choosing its words, there is a possibility of the trial court being influenced by the discussion of the appellate court. There is thus the possibility of the dice being loaded against the accused. I do not think that such exceptional circumstances are present in this case, in view of the fact that there could not have been any common intention to cause the death of Gopalan and that a common knowledge of the likelihood of death resulting could not also have been present. I may also reiterate that my finding is that the common intention could only have been to cause hurt to Gopalan. 19. Wherefore, I agree with the view expressed by Mathew J.; and I set aside the conviction of the first accused under S.325 and of the second accused under S.302. I confirm the conviction of the third accused under S.323; and I also convict accused persons 1 and 2 under the same section read with S.34. Though the third accused was sentenced only to rigorous imprisonment for three months by the lower court, since there is a calendar revision, that sentence can be enhanced and is enhanced. 20. In the result, I convict all the three accused persons under S.323 of the Penal Code and sentence them to rigorous imprisonment for one year each. By Court.- In view of the opinion of the majority we set aside the conviction of the 1st accused under S.325, and of the 2nd accused under S.302, and convict all the accused under S.323 read with S.34 IPC., and sentence each of them to undergo rigorous imprisonment for one year.