Sadasivan, J.-First accused in sessions case 37 of 1972 on the file of the Sessions Judge, Trichur is the appellant in Criminal Appeal No. 382 of 1972. He, along with 4 others, Was charged with offences falling under sections 143, 147, 148, 324 and 302 read with section 149, Indian Penal Code. 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 Mohamad were absconding and Alu died subsequently. So the trial had to be proceeded with against these accused alone. We are told that Jabbar and Kakachi Mohamed 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 his 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 Congressmen 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 17th September, 1971. 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.) had 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 17th September, 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 P.Ws. 1 and 5 and took his seat on a bench in the verandah of P.W.2’s shop at Eriyad junction. He Was talking to P.W.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 Mohamed with an iron rod and some of the other accused with iron rods. Seeing them Abdulkhader stood up from the bench and got into the road and stood near the dustbin at the north-western corner of the junction. Sighting him Kakachi Mohamad made the war-cry “shoot” (vekkada vedi). In response to the cry Jabbar took out the revolver and fired three shots in succession hitting Abdulkhader near his mouth, left arm and left chest. Abdulkhader reeled and stood by the dust-bin with his 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 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 P.W.17 Dr. Siddik and others and taken to the Kodungallur hospital, where his dying declaration was recorded by the Magistrate and before he could complete it he succumbed at about 12 noon. P.W.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. P.W.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 section 302 read with section 149, Indian Penal Code, 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 section 302 read with section 34. and sentenced him to rigorous imprisonment 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 Abdulkader by Kakachi Mohammed and on that count he has awarded him a sentence of 6 months rigorous inprisonment under section 323, Indian Penal Code. Criminal Appeal No. 121 of 1973 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 section 34 in the place of section 1491 Indian Penal Code. 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 section 34 in the place of section 1491 Indian Penal Code. The charge, as already seen is under section 302 read with section 149, and the case of the prosecution was that these accused, along with Jabbar and Kakachi Mohammed and deceased Alu, formed themselves into an unlawful assembly with the common object of murdering P. K. Abdulkader and Ammu, and in furtherence 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 section 149, Indian Penal Code. In assessing the penal responsibility of the 1st accused. He has a:quitted 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 section 149 was no longer available, he switched on to section 34, Indian Penal Cade, and without affording an opportunity to the accused to explain, has convicted him of murder under section 302 read with section 34, Indian Penal Code. 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 Punjab1, 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 section 149 overlaps the ground covered by section 34. If the common object which is the subject-matter of the charge under section 149, does not necessarily involve a common intention, the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore to be permitted. If the common object which is the subject-matter of the charge under section 149, does not necessarily involve a common intention, the substitution of section 34 for section 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 section 149 would be the same if the charge wore under section 34, then the failure to charge the accused under section 34 could not result in any prejudice and in such cases the substitution of section 34 for section 149 must be held to be a formal matter. There is no such broad proposition of law that there can be no recourse to section 34 When the charge is only under section 149. Whether such recourse can be 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 section 149 and those under section 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 material before the Court, the whole matter should have been left at that so far as the present accused are concerned, because they are 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 sect ion 34, Indian Penal Code, while membership of the unlawful assembly is the foundation of liability under section 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 section 34 and convict him. Section 34 does not, by itself, create an offence. It only lays down a rule of law, whereas section 149 creates a definite head of criminality. From the mere fact that the 1st accused Was present at the scene, the learned Judge was compelled to have recourse to section 34 and convict him. Section 34 does not, by itself, create an offence. It only lays down a rule of law, whereas section 149 creates a definite head of criminality. We do not propose to probe further into the matter, as We think that even if section 34 is substituted for section 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 Mohamad, to commit the murder. In that sense he is not prejudiced in his defence. We, therefore, proceed straightaway to the evidence in the case to see if the conviction could be justified even if section 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 he 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 was 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 seem to have Weighed with the learned Judge is firstly the above statement made under section 342; and secondly, the mention made by Abdulkhader in his dying declaration. Regarding the statement under section 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. Regarding the statement under section 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 (Exhibit P-6), there is a passing statement that he was harassed by Salam, Jabbar, and Kakachi Mohammed (ennai Salam, Jabbar, Kakachi Mohammed ennivar upadravichhu). Salam is the appellant. But in the dying declaration of Ammu (Exhibit P-7) 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 Exhibit P-1, 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 "kollada." 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. 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 "kollada." 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. Emperor1, that: "Common intention within the meaning of section 34, implies a prearranged plan. To convict the accused of an offence applying section 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. The inference of common intention within the meaning of the term in section 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 away With Abdulkhader, which the other accused had, was shared by him. The Supreme Court has observed in Paricbhat v. State of Madhya Pradesh1that: "In the absence of any evidence of a prior meeting of minds and any pre-arranged plan or of participation of accused persons in the fight in question they cannot be convicted with the aid of section 34. Prosecution must prove that the criminal Act has been done in concert, pursuant to the pre-arranged plan. Prosecution must prove that the criminal Act has been done in concert, pursuant to the pre-arranged 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 section 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 section 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 accused 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 Mohammad in their design to commit the crime. Reliance was placed by the learned State Prosecutor on State of Uttar Pradesh v. Iftikhar Khan2, 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 has 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 has 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 section 34. That decision could be distinguished on its own facts. In the case on hand, the presence of the 1st 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 his way home etc. have all been explained by him. In the above mentioned decision in State of U.P. v. Iftikhar Khan2, the Supreme Court has reiterated the law of constructive liability under section 34, Indian Penal Code. Portions from Krishna Govinda Patel v. State of Maharashtra1, were extracted. The extract reads: “The principle has again been reiterated that before a Court convicts a person under section 302 read with section 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 Bombay2, it has been held that”the essence of liability under section 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 section 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 Emperor3, the leading feature of section 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. 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 section 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 we feel no hesitation to observe that no case has been made out either under section 149 or section 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 N0.382 of 1972 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 No. 121 of 1973-is hence dismissed. M.C.M. ----- Appeal against conviction allowed; State Appeal against acquittal dismissed.