Judgment :- 1. First accused in sessions case 37/72 on the file of the Sessions Judge, Trichur is the appellant in Criminal Appeal 382/72. He, along with 4 others, was charged with offences falling under S.143,147,148, 324 and 302 read with S.149 IPC. These 5 accused were originally charged with three others, Jabbar, Kakachi Mohammed and one Mohammad Ali alias Alu with offences of unlawful assembly, rioting and murder. Jabbar and Kakachi Mohammed absconded and Alu died subsequently. So the trial had to be proceeded with against these accused alone, We are told that Jabbar and Kakachi Mohamad have now been apprehended and the charge against them has been laid. 2. The prosecution case is that the 8 accused formed themselves into an unlawful assembly with the common object of murdering P. K. Abdulkhader and bis associate one Ammu. P. K. Abdulkhader was a staunch Congress man belonging to the Indira group, till recently. Some time in 1971 he deserted the Congress and cast his lot with Communist-Marxist party. Thereafter he was participating in the activities of the Marxists and was championing the cause of the kudikidappukars of the place. The accused, on the other hand, are Congress men supporting the land owners of the place. The two parties were thus pitted against each other on all important matters and the ideological conflicts between them very often led to clashes and exchange of blows. The political atmosphere of the place was thus tense and agitated, when the occurrence took place on 17-9-71 On that day at about 9-30 a.m. there took place a clash in front of Kerala Varma High School at Eriyad. The Marxist-led Students Federation of India (S.F.I.) bad started an agitation to get Marxism included in the school curriculum. Opinion among the students was divided in this matter. The Congress-sponsored Students Union (K. S. U.) was opposed to it. On 17-9-1971, the S. F.I. had made an appeal to the Students of the Kerala Varma High School to boycott the school for the day just to press their demand for the introduction of Marxism in the school. Students who were inclined to attend classes were prevented from doing so by the S. F. volunteers and this led to the clash. Students who were inclined to attend classes were prevented from doing so by the S. F. volunteers and this led to the clash. The 5th accused who was then a student of the school was prevented by one Shelly of the S.F.I. from entering the school Jabbar was drawn to that place and on seeing the obstruction he beat Shelly and dragged him to the road. This precipitated matters and the incident was reported to P. K. Abdulkhader who at that time was the'president of the Parents' Association of the School. He immediately came in the company of pws. 1 and 5 and took his seat on a bench in the verandah of pw. 2's shop at Eriyad junction. He was talking to pw.10 about the beating incident, when the accused were seen proceeding towards the shop in a body. Time then was 11-15 a.m. Jabbar was armed with a revolver kept concealed under his waist, Kakachi Mohamad with an iron rod and some of the other accused also with iron rods. Seeing them Abdulkhader stood up from the bench and got into the road and stood near the dust-bin at the north-western corner of the junction. Sighting him, Kakachi Mohamad made the war-cry "shoot" shiSm shSn In response to the cry, Jabbar took out the revolver and fired three shots in succession hitting Abdulkhader near bis mouth, left arm and left chest. Abdulkhader reeled and stood by the dust-bin with bis grip on it. Availing himself of this opportunity Kakachi Mohamad dealt a blow on his arm with the iron rod. Ammu rushed towards Abdulkhader for support; but he was also shot down by Jabbar. Ammu somehow sprang up from the ground and ran northwards. Jabbar then turned at Abdulkhader and fired one more shot at him and after that all the 8 accused ran away from the scene. Abdulkhader was picked up from the scene by pw.17, Dr. Siddiq and others and taken to the Kodungallur hospital, where bis dying declaration was recorded by the Magistrate and before be could complete it he succumbed at about 12 noon. pw.12, Dr. Karim took Ammu to the Kodungallur hospital in his jeep and his dying declaration was also recorded. He was then taken to the District Hospital, Trichur for better treatment, where he died at about 5-30 p.m. 3. pw.12, Dr. Karim took Ammu to the Kodungallur hospital in his jeep and his dying declaration was also recorded. He was then taken to the District Hospital, Trichur for better treatment, where he died at about 5-30 p.m. 3. Jabbar and Kakachi Mohammad now stand their trial in the lower court for murder. The present accused are charged with murder, only constructively, In that they are stated to have shared the common object of the unlawful assembly to do away with Abdulkhader and Ammu. They are, therefore, charged under S.302 read with S.149 IPC; but the learned judge on an analysis of the evidence in the case has come to the conclusion that the complicity of accused 2 to 5 has not been proved and has, therefore, acquitted them. Regarding the 1st accused also the learned judge has held that unlawful assembly with common object is not proved. But by a strained reasoning the learned judge has been led to the conclusion that Jabbar and Kakkachi Mohammed were actuated by a common intention to commit murder and that common intention was shared by the 1st accused-appellant. He has accordingly convicted the 1st accused under S.302 read with S.34 and sentenced him to R.I. for life. Straining and stretching himself further, the learned judge has also held that the 1st accused is constructively liable for the beating dealt on Abdulkhader by Kakachi Mohammed an on that count he has awarded him a sentence of 6 months R.I. under S.323 IPC. Criminal appeal 121/73 is by the State against the acquittal of accused 2 to 5. Both the appeals were heard together. 4. On hearing counsel on both sides we are persuaded to the conclusion that the appeal by the 1st accused should be allowed and that by the State be dismissed. The learned judge in convicting the 1st accused has substituted S.34 in the place of S, 149 IPC. The charge, as already seen was under S.302 read with S.149, and the case of the prosecution was that these accused, along with Jabbar and Kakkachi Mohammed and deceased Alu, formed themselves into an unlawful assembly with the common object of murdering P. K. Abdulkader and Ammu and in furtherance of that common object the 1st accused shot them with a revolver and brought about their death. But the learned judge at the conclusion of the trial found that the prosecution case regarding unlawful assembly is unacceptable and, therefore, it became difficult for him to apply S.149 IPC to assessing the penal responsibility of the 1st accused. He has acquitted accused 2 to 5 as he found that the evidence in the case did not lead him to the conclusion that they were present at the scene. But in the case of the present appellant he found that his presence at the scene is proved; but as S.149 was no longer available, he switched on to S.34 IPC., and without affording an opportunity to the accused to explain, has convicted him of murder under S.302 read with S.34 IPC. The procedure adopted is certainly irregular, if not totally illegal. The question to be considered in such cases is whether the substitution has resulted in prejudice to the accused. Venkatarama Ayyar, J., has held in Karnail Singh v. The State of Punjab (1954-55 SCR. 904) that: "It is true that there is substantial difference between the two sections but they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S.149 overlaps the ground covered by S.34. If the common object which is the subject-matter of the charge under S.149, does not necessarily involve a common intention, the substitution of S.34 for S.149 might result in prejudice to the accused and ought not therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under S.149 would be the same if the charge were under S.34, then the failure to charge the accused under S.34 could not result in any prejudice and in such cases the substitution of S.34 for S.149 must be held to be a formal matter. There is no such broad proposition of law that there can be no recourse to S.34 when the charge is only under S.149. Whether such recourse can he had or not must depend on the facts of each case". Even though it is possible to argue that the facts to be proved under S.149 and those under S.34 are the same, we do not think that substitution is justified in the circumstances of the case. Whether such recourse can he had or not must depend on the facts of each case". Even though it is possible to argue that the facts to be proved under S.149 and those under S.34 are the same, we do not think that substitution is justified in the circumstances of the case. When once it was found that unlawful assembly is not established by the materials before the court, the whole matter should have been left at that so far as the present accused are concerned, because they ere sought to be roped-in only through the medium of unlawful assembly. It is quite patent that participation in the criminal act is the gist of the offence under S.34 IPC., while membership of the unlawful assembly is the foundation of liability under S.149. When unlawful assembly is found against, the court will necessarily have to find that the present appellant was not in the assembly which committed the crime. It is on the same evidence on which the court was persuaded to find that accused 2 to 5 were not present at the scene, that the learned judge has entered the finding that the 1st accused was there From the mere fact that the 1st accused was present at the scene, the learned judge was compelled to have recourse to S.34 and convict him. S.34 does not, by itself, create an offence. It only lays down a rule of law, whereas S.149 creates a definite head of criminality. We do not propose to probe further into the matter, as we think that even if S.34 is substituted for S.149, the position so far as the 1st accused is concerned is in no way changed as there are no materials brought out in evidence to credit him with a common intention along with Jabbar and Kakachi Mobamad, to commit the murder. In that sense he is not prejudiced in his defence. We, therefore, proceed straight away to the evidence in the case to see if the conviction could be justified even if S.34 is invoked. In his 342 statement the appellant has admitted his presence at the scene. He stated that he had gone to the school on getting reports about the beating of Shelly by Jabbar. We, therefore, proceed straight away to the evidence in the case to see if the conviction could be justified even if S.34 is invoked. In his 342 statement the appellant has admitted his presence at the scene. He stated that he had gone to the school on getting reports about the beating of Shelly by Jabbar. As the situation there, was tense be thought it unsafe to remain there and so he came to the road along with Jabbar, who is none other than his brother. They proceeded towards their house which is in the western direction. Jabbar walked a little ahead and when they reached Eriyad Junction, Abdulkhader rushed from the veranda and questioned Jabbar why he had beaten Shelly. There ensued a tussle between the two, in the course of which sounds of gun shots were heard. He got frightened and moved northwards. Just then Ammu came from behind and caught hold of him. Ammu threatened to stab him and at that time one more gun shot was heard. Ammu fell down and he ran away from the scene. Learned Judge has not believed the witnesses when they spoke about the presence of the other accused; but in the case of the 1st accused, the additional circumstance that seems to have weighed with the learned judge is firstly the above statement made under S.342; and secondly, the mention made by Abdulkhader in bis dying declaration. Regarding the statement under S.342, no conviction can be entered on such a material, and even if any inference is to be drawn, the statement will have to be read as a whole. We leave aside the statement as it seeks to weave out a case of self-defence, against the deceased, which is the subject matter of the case now under trial. Even if the statement is to be used for any purpose, all that it implies is that he was present at the scene and from mere presence no complicity in the crime can be culled out unless there are other materials to show that he was there in pursuance of the common intention which he had shared with Jabbar and Kakachi Mohammed, and such evidence is lacking. In the dying declaration of Abdulkhader (Ex-P6), there is a passing statement that he was harassed by Salam, Jabbar and Kakachi Mohammed Salam is the appellant. In the dying declaration of Abdulkhader (Ex-P6), there is a passing statement that he was harassed by Salam, Jabbar and Kakachi Mohammed Salam is the appellant. But in the dying declaration of Ammu (Ex.P7) no mention at all is made about the appellant. What exactly was the harm done to Abdulkhader by this accused is not stated. Even according to the prosecution no harm as such was done by this accused to him. All that the prosecution has succeeded to prove against this accused is his presence at the scene. Of course, a rather faint attempt was made by the prosecution to make out that he was armed with an iron rod and that he also shouted something; but that attempt has signally failed. In Ext. P1 F.I. statement, which was lodged by no less a person than the Karyasthan of Abdulkhader, there is no mention that the appellant was armed with any weapon. He has, on the other hand, catalogued by name those accused who were armed with iron rod. On these aspects the prosecution witnesses do not agree. Their statements are conflicting. The learned judge, has therefore refused to believe the witnesses when some of them stated that this accused was armed with an iron rod and that he shouted 5. Now the question is whether conviction could be entered against the 1st accused from the mere fact that he was present at the scene at the time of the occurrence. It was observed as early as in 1945 by the Privy Council in Mahbub Shah v. Emperor (AIR, 1945 PC. 118) that: "Common intention within the meaning of S.34 implies a pre-arranged plan. To convict the accused of an offence applying S.34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which, divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. Care must be taken not to confuse same or similar intention with common intention; the partition which, divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in S.34 should never be reached unless it is a necessary inference deducible from the circumstances of the case." It is impossible in the present case to deduce the common intention from the proved circumstances of the case. Learned State Prosecutor contended for the position that common intention could be inferred from the fact that the appellant, who is none other than the brother of Jabbar, was present at the scene; and he was inimical towards Abdulkhader and on one occasion he was even assaulted by Abdulkhader's party. From this background of enmity it is not possible to infer that the common intention to do sway with Abdulkhader, which the other accused had, was shared by him. The Supreme Court has observed in Paricbhat v. State of U.P. (AIR. 1972 SC. 535) that: "In the absence of any evidence of a prior meeting of minds and any prearranged plan or of participation of accused persons in the fight in question they cannot be convicted with the aid of S.34. Prosecution must prove that the criminal act has been done in concert, pursuant to the prearranged plan. Mere proof that some accused persons were with the main accused who inflicted fatal injury on the deceased at the time of cutting of crops on the field will not attract the applicability of S.34." From the mere fact, therefore, that the appellant was seen even by the side of Jabbar at the time Jabbar fired the shot, it is not possible to say that there was a common intention and that was shared by him. Participation in the criminal act, as we have already seen, is the gist of the offence under S.34. But in the present case even according to the prosecution no overt act was committed by the appellant. Mere presence at the scene might sometimes amount to participation in pursuance of a common intention; as for instance in a case of burglary one in the gang is posted outside the house to watch and give signal to the others if anybody approaches the scene. Mere presence at the scene might sometimes amount to participation in pursuance of a common intention; as for instance in a case of burglary one in the gang is posted outside the house to watch and give signal to the others if anybody approaches the scene. There, a particular part is assigned to him by the others who were committing the act and that would constitute taking part in the transaction, which was being carried out in pursuance of the common intention. Here, on the other hand, there is not a shred of evidence in support of a previous concert or plan in pursuance of which the offence was committed. There is nothing to connect the appellant with Jabbar or Kakachi Mohamad in their design to commit the crime. Reliance was placed by the learned State Prosecutor on State of U. P. v. Iftikhar Khan (AIR. 1973 SC. 863) in support of his contention that mere presence at the scene is tantamount to participation in the crime. We read the decision carefully and are not in the least satisfied that the decision supports the prosecution. There, respondents 1 and 2 were stated to have fired pistols while respondents 3 and 4 were present at the scene armed with lathis. It had also come in the evidence that respondents 3 and 4 had enmity with the deceased and they were found in the company of respondents 1 and 2 at the scene and had no explanation to offer as to their presence there at the time. It was in these circumstances that the court came to the conclusion that even though the shots were fired by respondents 1 and 2 only, the other two could safely be convicted of the same offence read with S.34. That decision could be distinguished on its own facts. In the case on hand, the presence of the Ist accused at the scene has satisfactorily been explained by him. How he was attracted to the school and from there how he happened to come to the Eriyad junction on bis way home etc., have all been explained by him. In the above mentioned decision (AIR 1973 SC. 863) the Supreme Court has reiterated the law of constructive liability under S.34 IPC. Portions from Krishna Govinda Patel v. State of Maharashtra (AIR. 1963 SC. 1413) were extracted. In the above mentioned decision (AIR 1973 SC. 863) the Supreme Court has reiterated the law of constructive liability under S.34 IPC. Portions from Krishna Govinda Patel v. State of Maharashtra (AIR. 1963 SC. 1413) were extracted. The extract reads: "The principle has again been reiterated that before a court convicts a person under S.302 read with S.34, it has to record a definite finding that the said person had prior concert with one or more other persons, armed or unarmed, for committing the said offence. in Jaikrishandas Manchardas Desai v. The State of Bombay AIR. 1960 S.C. 889 it has been held that "the essence of liability under S.34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under S.34 is not, on the words of the statute, one of the conditions of its applicability". As explained by Lord Sumner in Barendra Kumar Ghose v. The King Emperor (AIR. 1925 PC. 1) the leading feature of S.34 of the Indian Penal Code is 'participation' in action. To establish joint responsibility for an offence, it must of course be established that a criminal act was done by several persons, the participation must be in doing the act, not merely in its planning. A common intention a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of S.34. But this participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places." 6. Analysing the facts of the present case on the strength of the above principles was feel no hesitation to observe that no case has been made out either under S.149 or S.34 against the 1st accused-appellant. He is, therefore, entitled to an acquittal. The conviction and sentence passed on him are hence set aside and he is acquitted. Criminal appeal 382/72 is allowed. He is, therefore, entitled to an acquittal. The conviction and sentence passed on him are hence set aside and he is acquitted. Criminal appeal 382/72 is allowed. We do not see any reason to interfere with the order of acquittal entered by the court below on accused 2 to 5. The State appeal - criminal appeal 121/73- is hence dismissed.