Judgment :- 1. The accused who were convicted for offerees punishable under S.302 and 324 IPC read with S.34 IPC by the Court of Sessions, Trivandrum, in Sessions Case No. 45 of 1984, are the appellants. The learned Sessions Judge sentenced accused 1 to 3 to undergo imprisonment for life under S.302 read with S.34 IPC and the 4th accused to undergo rigorous imprisonment for 18 months under S.324 read with S.34 IPC. Even though the learned Sessions Judge found that the 4th accused was also guilty of the offence punishable under S.302 read with S.34 IPC no sentence was passed against him on the ground that evidence was wanting to hold that he had committed any overt act in respect of the two deceased, Sebastian Pillai and Yagappan. 2. Crl. Appeal 513 of 1987 was filed by the State against the omission to pass sentence on the 4th accused, though the lower court found that he was guilty of offence punishable under S.302 I.P.C. read with S.34 I.P.C. 2. The prosecution case may be summarised as follows: The first accused was residing in a house towards the east of the house of Mary Stella, daughter of deceased Sebastian Pillai and P.W.1. P.W.1 and deceased Sebastian Pillai were residing in a house opposite to that of Mary Stella on the northern side of the road. The road proceeds from Pozhiyoor to Neeredi in Poyipallivilakam of Pozhiyoor desom in Kulathoor Village. In front of the house of P.W.1, the road runs from west to east. On the east of the house of Mary Stella, 1st accused was residing. Some four or five months prior to the date of incident, P.W.1 and deceased Sebastian Pillai constructed a shed towards south of the house of Mary Stella. The first and the 2nd accused objected to the said construction. The first accused and the 2nd accused constructed another shed very close to the only door of the shed constructed by PW 1 and deceased Sebastian Pillai. On the morning of 1-5-1983 at 7 a.m P.W.1 and the deceased Sebastian Pillai demolished the shed put up by accused 1 and 2. At 10 a.m. on the same day while P.W 1 was standing on the road in front of her house, the accused came towards her. On the morning of 1-5-1983 at 7 a.m P.W.1 and the deceased Sebastian Pillai demolished the shed put up by accused 1 and 2. At 10 a.m. on the same day while P.W 1 was standing on the road in front of her house, the accused came towards her. The first accused was armed with a spade (M.O.2), the 2nd accused with an iron rod (M.O.1) and the 3rd and 4th accused with stems of oars (M.Os. 3 and 4) and attacked P W.1. At that time P.W.2 and deceased Sebastian Pillai were drying their fishing nets in the open space near the house of Mary Stella. Heating the cries of P.W.1 her husband Sebastian Pillai and PW2 came running to the scene. The 1st accused inflicted a cut on the head of Sebastian Pillai with spade. The 2nd accused beat en the head of Sebastian Pillai with iron rod and the 3rd accused beat on the head of Sebastian Pillai with a wooden plank. The 4th accused beat en the body of Sebastian Pillai with the stem of oar. Thereupon P.W.2 cried oat saying 'Oh my uncle is killed'. Then the second accused beat on the heed of P.W 2 with the iron rod. The fourth accused beat en the back of P.W.2 with a stem of oar and the 3rd accused beat on the left shoulder of P.W.2 with the wooden plank. Yagappan, P.W.2, P.W.3 and P.W.9 came running. Yagappan asked the accused why they were killing the poor people. Thereupon the 2nd accused beat with the iron rod on his head and the 3rd accused and the 4th accused beat Yagappan with wooden plank which struck on his head. On receiving the blow Yagappan fell on the ground. The accused ran towards east with their weapons Yagappan was taken to his house by his wife and son. P.Ws.I and 2 and Sebastian Pillai were taken to the Govt. Hospital at Parassala. P.W.1 was admitted in that hospital. P.W.4 Assistant Surgeon attached to that hospital examined Sebastian Pillai and issued Ext. P2 wound certificate. PW 4 examined Sebastian Pillai and issued Ext. P2 wound certificate. He also examined PW.2 and PW.1 and issued Ext. P5 wound certificates in respect of injuries found on them. He gave Ext. P3 intimation about Sebastian Pillai and PW.2 and Ext. P6 intimation about PW.1 to the Sub Inspector of Police, Parassala. P2 wound certificate. PW 4 examined Sebastian Pillai and issued Ext. P2 wound certificate. He also examined PW.2 and PW.1 and issued Ext. P5 wound certificates in respect of injuries found on them. He gave Ext. P3 intimation about Sebastian Pillai and PW.2 and Ext. P6 intimation about PW.1 to the Sub Inspector of Police, Parassala. Since the injuries sustained by PW.2 and Sebastian Pillai were serious they were referred to the Medical College Hospital, Trivandrum. On intimation to the S.I. of Police, Parassala, PW.14 the Head Constable of that police station was sent to Parassala Government Hospital and he recorded Ext. P1 first information statement from P.W.1. He also prepared Ext. P1 (a) body note and registered Crime No. 107 of 1983 under S.324 and 34 I.P.C. against the accused. As the place of occurrence was within the limits of the Pozhiyoor Police Station the crime case was transferred to that Police station on 2-5-1983. Accordingly, P W. 19, the Head Constable of Pozhiyoor Police Station registered Crime No. 35 of 1983 of that police station under S.324 and 34 I.P.C. He prepared Ext. P24 F.I.R and seat the same to the court. He proceeded to the place of occurrence and prepared Ext. P15 scene emahazar on the afternoon of 2-5-1983. On the same day the house of accused 1, 2 and 3 were searched and the weapons used in the occurrence by accused were taken into custody under Ext. P25 mahazar. He questioned PW.3, PW 9 and ethers. 3. On 2-5-1983 Yagappan was takes to Govt. Hospital, Parassala. But his condition became worse and therefore be was referred to the Medical College Hospital, Trivandrum. He was subjected to an emergency operation at the Medical College Hospital, en a suspected possibility of an associated interacraneal haematoma, found by the Assistant Professor in the Neuro Surgical Department who attended on Yagappan. During the course of surgery extra dural blood clot was removed, but he died at 6 p.m. on 2-5-1983. Sebastian Pillai also underwent an operation but he also succumbed to his injuries at 3.15 p.m. on 4-5-1983. P. W.21 conducted inquest over the body of Sebastian Pillai on 5-5-1983 and issued Ext. P27 inquest report. P. W. 7 conducted postmortem over the body of Yagappan on 3-5-1983 and issued Ext. P9 postmortem certificate. Inquest on the body of Yagappan was conducted by PW. P. W.21 conducted inquest over the body of Sebastian Pillai on 5-5-1983 and issued Ext. P27 inquest report. P. W. 7 conducted postmortem over the body of Yagappan on 3-5-1983 and issued Ext. P9 postmortem certificate. Inquest on the body of Yagappan was conducted by PW. 20 who was in charge of C I. of Police, Neyyattinkara on 3-5-1983 and be prepared Ext, P26 inquest report. At the time of inquest he questioned P. W.11 and others. On 4-5-1983. P.W. 21 took charge as the C.I. of Police, Neyyattinkara. He took over investigation. He conducted inquest over the body of Sebastian Pillai at the Medical College Hospital, mortuary on 5-5-1983 and prepared Ext. P27 inquest report. P W. 6conducted postmortem on the body of Sebastian Pillai and issued Ext. P8 postmortem certificate. 4. The 1st and the 3rd accused and P. W.16 and P.W. 17 reported at the Pozhiyoor Police Station in the evening of 1-5-1983, complaining of injury sustained by them at an altercation at Pozhiyoor. They were sent to the Taluk Head quarters Hospital at Neyyattinkara where P.W. 18 the duty Medical Officer attended to the injuries sustained by them and issued wound certificates Exts. P20 to P23. On 2-5-1933 the same Medical Officer referred them to the Govt. Dispensary at Pozhiyoor. The 1st accused preferred a private complaint Ext. P12 against P. W.1, P. W.11 and others under S.143,148,307 and 324 I.P.C. read with S.149 I.P.C. The said complaint was forwarded to P. W. 21, the C. I. of Police, Neyyattinkara whereupon Crime No. 40 of 1983 was registered. The C. I. of Police after investigation of Crime No. 40 of 1983, came to the conclusion that the complaint made by the 1st accused against P.W.1 and others was raise and that the injuries on the accused 1 and 3, P.W. 16 and P.W. 17 were sustained by them at a result of the blows aimed by the accused at P.Ws.1 and 2 and deceased Sebastian Pillai and Yagappan falling on them by mistake. On 16-5-1983 all the accused surrendered before the Judicial Magistrate of II Class, Neyyattinkara. On the request of the C. I. of Police, the four accused were given to police custody from 21-5-1983 to 23-5-1983. Accused 1 and 2 gave statement Ext. P16(a) pursuant to which M.O.2 spade and M.O.1 iron rod were recovered from the house of the third accused. On the request of the C. I. of Police, the four accused were given to police custody from 21-5-1983 to 23-5-1983. Accused 1 and 2 gave statement Ext. P16(a) pursuant to which M.O.2 spade and M.O.1 iron rod were recovered from the house of the third accused. After investigation P.W.21 the C. I. of Police, Neyyattinkara laid final report before the Judicial Magistrate, II Class Neyyattinkara, who committed the accused to the Sessions Court for trial. 5. On the accused pleading not guilty to the charge, the prosecution examined P.Ws.1 to 21 and marked Exts. P1 to P28 and identified M.Os.1 to 4. On behalf of the defence D.Ws.I and 2 were examined and Exts. D1 to D4 were marked. The accused in their statements under S.313 Cr.P.C. generally denied the incriminating circumstances appearing against them and pleaded right of private defence. x x x x (Paras 6 to 22 omitted being appreciation of evidence) 23. The next item of evidence relied on by the prosecution is the discovery of M.Os.1 and 2 pursuant to the statement made by accused 1 and 2. Ext. P16 is the mahazar under which recovery was made and Ext. P16 (a) is the statement alleged to have been made by accused 1 and 2, which led to the recovery of M.Os. 1 and 2. The learned counsel for the accused strenuously argued that the alleged discovery is inadmissible in evidence. 24. S.27 of the Evidence Act constitutes a partial removal of the ban placed on the reception of confessional statements under S.26 of the Evidence Act. S.27 of the Evidence Act lays down that when any fast is deposed to as discovered in consequence of information received from a person accused of an offence, in the custody of Police Officer, so much of information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved. This section is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of Police Officer is tainted, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted, in so far it distinctly relates to a fact thereby discovered (see State of Uttar Pradesh v. Deoman Upadhyaya (1961 (2) S. C. J. 334). As observed by the Privy Counsel in Pulukurikottaya and others v. Emperor (AIR 1947 PC. 67) it rests on the view that if a fact is actually discovered in consequence of information given by the accused, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. 25. We will presently examine the evidence relating to discovery of M.Os.1 and 2 in this case. Ext. P16 mahazar under which recovery was made states that accused 1 and 2 were questioned and they stated that the spade and iron rod Wire buried underneath toe sand on the northern side of the residential house of third accused and if taken they would produce the same. PW. 21, the Circle Inspector, Neyyattinkara who recorded this statement deposed that pursuant to the statement, accused 1 and 2 were taken to the residential compound of accused 3 and they dug out spade and iron rod from underneath the earth on the north-western side of the house of 3rd accused. He also stated that be questioned accused 1 and 2 separately. PW. 13 is the attestor of Ext. P16 mahazar and he deposed that accused 1 and 2 dug out the spade and the iron rod from underneath the earth on the north-western corner of the residential house of the 3rd accused. 26. According to the learned counsel for the accused the alleged discovery is Dot admissible under S.27 of the Evidence Act. In this case it is clear from the evidence of PW. 21 that first accused and 2nd accused were questioned separately and this is not a case where both accused gave Ext. P16 (a) statement simultaneously. It is also most unlikely that both persons would speak at the same time. 27. The Supreme Court had occasion to consider a similar situation in Mohammed Abdul Hafeez v. State of Andhra Pradesh (1983 S.C.C. Crl.139). In that case the appellant therein along with accused 2 and 3 told the Investigating Officer that the ring M.O.1 was sold to a Jeweller PW. 3. Regarding the alleged joint statement the Supreme Court observed as follows: "It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. 3. Regarding the alleged joint statement the Supreme Court observed as follows: "It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If evidence otherwise confessional in character is admissible under S.27 of the Indian Evidence Act, It is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person". 28. A similar question arose for the consideration of a Division Bench of this Court in Rama Setty v. State of Kerala (1971 KLT 244). This court observed: "The question does not turn on whether the statement is by "a person"; the more relevant question is whether both the accused persons can give statements at the same time relating to a fact. As pointed out by the Allahabad High Court in the decision cited above, when a fact is discovered from information given by one accused, there cannot be any more discovery of that fact from information given by another accused: that will then be a rediscovery. The information should relate distinctly to the fact discovered and the information given in a joint statement may not so relate distinctly to the fact. Technically, it may be possible for two persons to give joint Information which may lead to the discovery of a fact. But, it is always safer for the prosecution to record separate statements if the prosecution wishes to prove portions of the statements under S.27. As in this case, the joint information may lead to the discovery of different facts (MO.1 and MO.2 and their where abouts); and then, it is all the more desirable and safe if the police officer records separate statements from the accused persons. The question really is not whether one person gives the information or two persons give the information. As in this case, the joint information may lead to the discovery of different facts (MO.1 and MO.2 and their where abouts); and then, it is all the more desirable and safe if the police officer records separate statements from the accused persons. The question really is not whether one person gives the information or two persons give the information. The importance lies in that the information should be precise in the sense that one particular accused gave a particular part of the information and the other accused gave the other part of the information, so that a definite portion of the information can be imputed to a particular accused person and proved against him. Otherwise, no portion of the joint statement can be proved under S.27. 29. In re Peria Guruswami Gounder (AIR 1941 Mad. 765) the Madras High Court held that it is improper to treat as the individual statements of two different persons a composite statement made up of information gathered from the two persons, it being impossible to say how much of the statement was made by one of them and how much was made by another. 30. In the undermentioned cases it was held that there is no such thing as "joint discovery" viz. discovery made in consequence of information given by more than one accused person, it is only the information first given which is admissible and where it cannot be ascertained which of the accused first gave the information, the alleged discovery cannot be proved against any one of the accused. (See Abdul Kader and others v. The King Emperor (AIR 1946 Cal. 452), (50 C.W.N. Cal. 88), In re Sheik Mahaboob (AIR 1942 Mad. 532 (1)), Refiqueuddin Ahmad and others v. Emperor. (AIR 1935 Cal. 184 FB), Kudaon v. Emperor (91 I.C. 1925, 236), Ram Singh v. Emperor (34 I.C. 993), Faqira and others v. Emperor (AIR. 1929 Lab. 665), Durlay Namasudra v. Emperor (AIR. 1932 Cal. 297), Adam Khan alias Sarbuland Khan v. Emperor (101 I.C. 1927), Lachhman Singh and others v. The State (AIR 1952 SC. 167), Budha and another v. Emperor (54 IC. 502), and Gurubaru Praja and another v. The King (AIR. 1949 Orrisa 67). 31. 1929 Lab. 665), Durlay Namasudra v. Emperor (AIR. 1932 Cal. 297), Adam Khan alias Sarbuland Khan v. Emperor (101 I.C. 1927), Lachhman Singh and others v. The State (AIR 1952 SC. 167), Budha and another v. Emperor (54 IC. 502), and Gurubaru Praja and another v. The King (AIR. 1949 Orrisa 67). 31. In the instant case there is no evidence who gave the statement first or who pointed out first or the exact and the precise statement each of the accused had given which led to the discovery, (and in the light of the principles enunciated in the above rulings) it has to be held that under such circumstances the discovery cannot he used against any of the accused. We are not therefore making use of this item of evidence against any of the accused. 32. The next item of evidence which is relied on by the prosecution relates to motive. On the admission of accused itself the relationship of accused 1 and 2 on one side and PW.1 and her husband Sebastian Pillai on the other was strained. It is common case that there was attempt by PW.1 and Sebastian to demolish the shed put up by accused 1 and 2. Though the shed put up by accused 1 and 2 was not demolished atleast a portion was demolished at 7 p.m. on 1-5-1983. The evidence of PW.1 to 3 and 9 shews that at about 10 a. m. on 1-5-1983 all the accused proceeded towards P.W. 1, armed with weapons and the 2nd accused questioned PW.1 whether she demolished the shed put by them and this was the beginning of the occurrence. Therefore the prosecution has clearly established that there was motive for accused to attack P.W.1 and her husband. 33. The learned counsel for the accused argued that the prosecution has not placed a true version before the Court and drew our attention to the evidence of D.Ws.1 and 2 also. D.Ws.1 is the father of the 3rd accused. He deposed that at about 8.30 he returned to his house from the Church and went for shopping. On his way back after purchase, his wife told him that she saw his son running towards a crowd. Thereupon be proceeded towards the crowd and found Devadasan, P.W. 3 and P.W.11 beating his son and Sebastian Pillai cutting his son with chopper. On his way back after purchase, his wife told him that she saw his son running towards a crowd. Thereupon be proceeded towards the crowd and found Devadasan, P.W. 3 and P.W.11 beating his son and Sebastian Pillai cutting his son with chopper. He went towards his son and then Yagappan beat on his arm with a wooden plank and thereupon he proceeded to his house. He further stated that he was treated by a cousin of his who is a priest. He did not disclose the name of the person who treated him. On going through his evidence, we are nut satisfied that he was speaking the truth. He is the father of the 3rd accused and closely related to the other accused and he was giving the evidence only to help the accused. DW. 2 claims to be the Vice President of Kulathur Panchayat and a member of Pozhiyoor Church Committee. He deposed that Sebastian Pillai wanted to remove the shed of the 1st accused and there was dispute over this issue on 1-5-1983 and Sebastian Pillai and his people went to demolish the shed in the morning. The wife of 1st accused came to the church and gave information about this. Thereupon he and the priest of the church went to the place of dispute and told them that peace committee would resolve the controversy and the people dispersed. While the committee was discussing the issue, they got information that beating was going on. They proceeded to the scene, but before they reached, they found people running towards different directions. During cross examination be stated that he was not aware whether P.W.1 had lodged a complaint to the church relating to the construction of shed. His evidence only shows the relationship between accused and Sebastian Pillai was strained over the issue of construction of shed by accused 1 and 2 and Sebastian Pillai wanted to remove the shed. This is a common case. His evidence is not useful or helpful in deciding the question on genesis of the occurence at 10 A.M. As we have already indicated, on this aspect, we do not find any reason to reject the evidence of P.Ws.1 to 3 and 9. 34. It has to be next considered, what are the offences committed by each of the accused. His evidence is not useful or helpful in deciding the question on genesis of the occurence at 10 A.M. As we have already indicated, on this aspect, we do not find any reason to reject the evidence of P.Ws.1 to 3 and 9. 34. It has to be next considered, what are the offences committed by each of the accused. Accused 1 to 4 proceeded towards PW.1 armed with weapons and in view of the nature of weapons they had and the subsequent overt acts committed by them, it is legitimate to presume that all of them shared a common intention to cause death of Sebastian Pillai. In the process they caused fatal injuries on the head of Sebastian Pillai and caused hurt to P.W.1. Yagappan scene of and P.W. 2 came to the scene of occurrence and then the accused inflicted injuries on them as well which resulted in the death of Yagappan and hurt to P.W. 2. It has to be held that when Yagappan interfered, all the accused developed a common intension to cause the particular injuries on Yagappan' which resulted in his death. Similarly they also developed a common intention to cause hurt to P.W. 2. It follows that S.34 I.P.C. squarely applies to the case and each of the accused persons is liable for the act of others in the same manner as if it were done by him alone. 35. P.W. 6 who conducted postmortem on the dead body of Sebastian Pillai and issued Ext. P8 postmortem certificate opined that the blunt injuries sustained by Sebastian Pillai on the head caused the death of Sebastian Pillai. We are satisfied that the said injuries were sufficient in the ordinary course of nature to cause death. P.W. 7 who conducted postmortem examination on the body of Yagappan and issued Ex. P.9 certificate, opined that injury No.1 was sufficient in the ordinary course of nature to cause death. It is difficult to say which accused inflicted fatal injuries since the evidence shows that more than one accused has inflicted injuries on the head. The act committed by the accused squarely falls within 3rdly of S.300 IPC. Therefore all the accused are guilty of offence punishable under S.302 IPC read with S.34 IPC. They are also guilty of offence punishable under S.324 IPC read with S.34 IPC for causing hurt to Pw.2 and PW.1. The act committed by the accused squarely falls within 3rdly of S.300 IPC. Therefore all the accused are guilty of offence punishable under S.302 IPC read with S.34 IPC. They are also guilty of offence punishable under S.324 IPC read with S.34 IPC for causing hurt to Pw.2 and PW.1. We therefore confirm conviction of all the accused under S.302 read with S.34 IPC and S.324 IPC read with S.34 IPC. The lower court convicted 4th accused under S.302 read with S.34 IPC but did not impose any sentence on him on the alleged ground that the evidence is wanting to hold that he committed any overt acts in respect of the two deceased, Sebastian Pillai and Yagappan. The finding of the lower court in this respect is illegal. As mentioned earlier the lower court found that the 4th accused also shared the common intention with other accused in causing death of Sebastian Pillai and Yagappan. He went along with other accused armed with stem of oar and actually participated in the crime, though fatal injuries were not inflicted by him. He beat Sebastian Pillai and PW.2 with the stem of oar. Evidence also disclosed that he beat Yagappan also. In the circumstances the observations of the learned Sessions judge that no overt acts were committed by the 4th accused is contrary to the evidence in this case. In fact the lower court convicted 4th accused under S.302 read with S.34 IPC. Therefore the failure on the part of the lower court to impose sentence on 4th accused is clearly illegal. Accordingly we sentence 4th accused to undergo imprisonment for life for offence under S.302 read with S.34 IPC. The lower court imposed punishment on him under S.324 IPC read with S.34 IPC. 36. In the result, we confirm the conviction of all the accused under S.302 read with S.34 IPC. We also confirm the sentence passed on accused 1 to 3 to undergo imprisonment for life under S.302 read with S.34 IPC. No separate sentence is awarded against accused 1 to 3 for offence under S.324, read with S.34 IPC. We have held in the decision in Varghese v. State of Kerala (1986 KLT 1285) that ordinarily the law does not envisage a person being convicted for an offence without a sentence being imposed, and therefore the failure to impose sentence is illegal. We have held in the decision in Varghese v. State of Kerala (1986 KLT 1285) that ordinarily the law does not envisage a person being convicted for an offence without a sentence being imposed, and therefore the failure to impose sentence is illegal. However, since there is no appeal directed against this, we do not want to interfere in this regard. We sentence the 4th accused to undergo imprisonment for life under S.302 IPC read with S.34 IPC and confirm the sentence of rigorous imprisonment for 8 months imposed on him by lower court far offence under S.324 read with S.34 IPC. The sentences will run concurrently. In the result Crl. Appeal No. 295 of 1984 is dismissed and Crl. Appeal 513 of 1987 is allowed. Bail bond executed by the 4th accused is cancelled.