Judgment :- MANOHARAN, J. Georgena Stephen, a widow aged 52 years was found lying dead on 17-1-1985 in a cot in the northern room of Stephen Cottage situated in Attipra Village, Trivandrum Taluk. The three accused were tried by Sessions Judge, Trivandrum. They were found guilty of the offences punishable under Ss. 120(B), 449, 392, 201 and 302 readwith S. 34, I.P.C. Each accused was sentenced to undergo rigorous imprisonment for three years under S. 120(B), rigorous imprisonment for five years under S. 449, rigorous imprisonment for seven years under S. 392, rigorous imprisonment for five years under S. 201 and imprisonment for life under S. 302, I.P.C. All the sentences were directed to run concurrently. Aggrieved by the same, accused 2 and 3 filed Crl. Appeal 374 of 1985 and the first accused filed Crl. Appeal 375 of 1985. 2. Prosecution ease can be summarised as follows : Georgena Stephen's husband died about five years prior to the occurrence. She had two sons, the elder P.W. 2 was employed in Dubai at the time of occurrence. Her younger son, P.W. 21 had gone to Bombay along with P.W. 1, her brother for securing Visa for a job in Gulf countries. Rs. 20,000/- had to be paid for securing Visa and, therefore, P.W. 21 sent a letter to the deceased through P.W. 29 who was flying to Trivandrum from Bombay on 15-1-1985 requesting her to arrange the money and also intimating her that they would be reaching on 17-1-1985. After reaching Trivandrum P.W, 29 sent P.W. 7 to deliver the letter to the deceased. P.W. 7 reached the village and met accused 1 and 2 and enquired with them about the house of P.W. 21 and when they asked him about the purpose of his visit he disclosed the purpose to them. First and second accused conspired with the third accused to murder Georgena and commit robbery of the money and her jewels. In the night of 16-1-1985 the accused trespassed into Stephen Cottage. Second accused held the hands of the deceased who was sitting on a chair in the dining room while the third accused held her legs and first accused throttled her and caused her death. They committed theft of her gold chains, gold bangle, gold rings as also cash of Rs. 650/-. Second accused held the hands of the deceased who was sitting on a chair in the dining room while the third accused held her legs and first accused throttled her and caused her death. They committed theft of her gold chains, gold bangle, gold rings as also cash of Rs. 650/-. They caused the disappearance of the evidence of she offence by removing the dead body to the northern bed room and placing it on a cot. Thereafter they locked the front door and left the key on the veranda. 3. P.W. 4 is the son of P.W. 3, sister of the deceased and P.W. 5 is the son of a brother of the deceased. They were studying in a school near Stephen Cottage. They used to take their lunch at Stephen Cottage and on 17-1-1985 as usual they came to Stephen Cottage and found the front entrance locked. They called the deceased, but there was no response. P.W. 5 looked through the ventilator and found his aunt lying on a cot apparently asleep. P.W. 5 entered through the window of the store room on the west and opened the kitchen door through which P.W. 4 entered. They went into the kitchen, found that no food was cooked, broke a coconut and started eating it. At that time P.Ws. 1 and 21 who had returned from Bombay reached in front of the house. Since the entrance was locked, P.W. 21 called out to his mother hearing which P.Ws. 4 and 5 came to front of the house. They said she was a sleep and that the key of the entrance was not seen. P.W. 21 entered the house through the kitchen door. He went to the bed room and found his mother dead. By that time the key was found by P.W. 4 in the veranda. He opened the front gate and P.W. 1 was admitted. P.W. 1 saw his sister was lying dead. 4. Immediately P.W. 1 proceeded to Thumba Police station and gave Ext. P1 first information at 2.15 p.m. on the basis of which P.W. 34, Sub-Inspector of Police registered a case of "unnatural death" under Ext. P1(a) F.I.R. P.W. 34 held inquest and prepared Ext. P2 report. He questioned P.Ws. 3, 17 and 21 etc. P.W. 29, a Tutor in Forensic Medicine, Medical College, Trivandrum conducted post-mortem and prepared Ext. P8 report. P1 first information at 2.15 p.m. on the basis of which P.W. 34, Sub-Inspector of Police registered a case of "unnatural death" under Ext. P1(a) F.I.R. P.W. 34 held inquest and prepared Ext. P2 report. He questioned P.Ws. 3, 17 and 21 etc. P.W. 29, a Tutor in Forensic Medicine, Medical College, Trivandrum conducted post-mortem and prepared Ext. P8 report. He reserved his opinion as to the cause of death pending report of the Chemical Analyst. On receipt of Ext. P10 report of the Chemical Analyst, he gave Ext. P9 final opinion. On 18-1-1985 investigation was taken over by P.W. 35, Circle Inspector of Police, Poonthura. He continued investigation and on 25-3-1985 P.W. 37 detective Inspector attached to the Trivandrum Crime Branch, C.I.D. took over the investigation and questioned witnesses. He sent Ext. P26 report on 30-6-1985 intimating the Court that investigation was being conducted for offences punishable under Ss. 302 and 394, I.P.C. 5. On 20-5-1985 at about 5.30 a.m. he arrested the first accused at the waiting shed of Kazhakuttom Bus Stand and seized M.Os. 7, 8 and 9 and suit case M.O. 10 from him. The suit case contained Exts. P3 and P5 letters and also M.Os 11 to 15, 21 to 24, 27 and 28. The same were seized under Ext. P14. On the basis of Ext. P15(a) information given by the first accused, P.W. 37 on 20-5-1985 recovered M.O. 1 gold chain packed in M.O. 20 polythene paper found at the foot of a coconut tree standing on the west of the house of the first accused under Ext. P15 mahazar. At about 9.30 a.m. P.W. 37 arrested the second accused at Quilon. On the basis of Ext. P16(a) information given by him, M.O. 5 gold ring packed in M.O. 20(a) newspaper was recovered from the crevice in the western wall of the side room of his house under Ext. P16 mahazar. On the same day as per the instructions of P.W. 37, P.W. 36 Sub-Inspector arrested the third accused. On the basis of Ext. P17(a) information given by the third accused, M.O. 4 series were recovered from the bushes near Attipra village office under Ext. P17 mahazar. On the basis of Ext. P18(a) information from the third accused P.W. 36 recovered M.O. 3 gold ring from a wooden box kept in the northern room of his house under Ext. P18 mahazar. As per Ext. P17(a) information given by the third accused, M.O. 4 series were recovered from the bushes near Attipra village office under Ext. P17 mahazar. On the basis of Ext. P18(a) information from the third accused P.W. 36 recovered M.O. 3 gold ring from a wooden box kept in the northern room of his house under Ext. P18 mahazar. As per Ext. P20(a) information given by the third accused and as pointed out by him, P.W. 36 traced P.W. 28 to whom third accused had sold a gold bangle and which was later converted into a gold ingot M.O. 25. M.O. 25 was seized by P.W. 36 as per Ext. P10 mahazar. The three accused were produced in Court the next day. First accused was remanded to the police custody; second and third accused were remanded to the Sub-Jail. On the basis of Ext. P19(a) information given by the first accused to the effect that a gold chain, a gold ring and one gold bangle were sold by him for Rs. 6,125/- to a shop owner in Shertallai and that he would show the shop and the purchaser. P.W. 37 took the first accused to Shertallai on 25-5-1985 where he pointed out P.W. 30. P.W. 30 admitted to his having purchased the said ornaments for an amount of Rs. 6,125/- from first accused and produced Ext. P4 receipt before P.W. 37. P.W. 30 also produced M.O. 26 gold ingot stating that it was melted from the articles sold by the first accused. M.O. 26 and Ext. P4 were seized under Ext. P19 mahazar. On the basis of Ext. P12(a) information given by the first accused that he sold one gold bangle to one Jayachandran at Poona, P.W. 37 took first accused to Poona and on 28-5-1985 traced P.W. 22 as pointed out by the first accused. P.W. 22 produced M.O. 2 gold bangle before P.W. 37 who seized the same under Ext. P12 mahazar. On the basis of Ext. P13(a) information furnished by the first accused that a broken ring was given to one Sasi at Poona, P.W. 37 discovered P.W. 23 as pointed out by the first accused and on questioning P.W. 23 produced M.O. 6 ring which was seized by P.W. 37 under Ext. P13 mahazar. P.W. 37 seized Ext. P21 pledge register and Ext. P22 bond from P.W. 32 as per Ext. P23 mahazar. P13 mahazar. P.W. 37 seized Ext. P21 pledge register and Ext. P22 bond from P.W. 32 as per Ext. P23 mahazar. After completing investigation, P.W. 37 submitted the charge before Court against the accused persons. 6. On the accused pleading not guilty to the charge, prosecution examined P.Ws. 1 to 37, produced Exts. P1 to P28 and M.Os. 1 to 28. On the side of defence, Exts. D1 to D12 were marked and D.Ws. 1 to 4 were examined. 7. When the incriminating portions in the evidence were put to the accused persons, they denied the truth of the same. The first accused stated that on learing of Georgena Stephen's death he also went to her residence along with others. He heard people saying that she died of poison. Near her cot there was a flask containing hot Water and a plastic cover containing some powder like poison. The Sub-Inspector of Police on being satisfied that it was a case of suicide did not continue investigation. On 16-1-1985 Georgena Stephen was found making hectic arrangements for securing money for the purpose of sending her son to Persia. She entrusted her ornaments with Benedict Roman who got some of the said ornaments pledged and some others sold through his son Cheriyan and another Daniel. On 3-5-1985 he went to the house of Rasheed, a friend of his father. At about 6 p.m. while he was standing by the side of the road he was whisked away in a police jeep. He was manhandled by the police alleging that he murdered Georgena Stephen and he denied the same. Next day the second and third accused and P.W. 12 were also brought to the police station. He was produced before the Magistrate only on 20-5-1985. Till then Daniel was with him fie was not taken to any place. P.W. 22 and 23 are residents of Trivandrum. The second accused said that he was in police custody for sixteen days. On 20-5-1985 the Circle Inspector of Police took him to his house. When he reached the house he saw about six or seven police constables in his house. A police constable placed two packets in a crevice near the window and pointed the same to the Circle Inspector of Police who directed him to take them. On 20-5-1985 the Circle Inspector of Police took him to his house. When he reached the house he saw about six or seven police constables in his house. A police constable placed two packets in a crevice near the window and pointed the same to the Circle Inspector of Police who directed him to take them. He refused and then C.I. of Police himself took the packets and declared that the packets were discovered from there. His father protested at this conduct. C.I. Police threatened to implicate his father also in the case. P.W. 25 was then found in the courtyard of his house. He did not sign any mahazar at his house. The third accused stated that on the pretext that he was informed about something he was taken by the S.I. of Police from his house on 4-5-1985. After reaching the police station he was manhandled. His father and the husband of Georgena Stephen were on inimical terms. He was implicated in this case because of such enmity. 8. Column (8) of Ext. P1 inquest report shows that the dead body was found lying on its back stretched on a cot in the northern bed room. There were signs of discharge with colour of blood from left ear. There were dried signs of blood coloured liquid flowing from mouth. The body had ant bite marks. There was dried blood under the body i.e. on back of head, back of neck, back of trunk, back of buttocks and lower part of legs. Cluster of ants, was present. On cleaning blood, only ant bites were seen on the back parts of the body. 9. P.W. 19, the then Tutor in Forensic Medicine, Medical College, Trivandrum conducted autopsy and issued Ext. P8 certificate. Chemical analysis of visdera did not indicate presence of poison as could be seen in Ext. P10 report. After considering Ext. P10, P.W. 19 issued Ext. P9 final opinion. Relevant post-mortem findings areas follows :- "Body of a moderately nourished female weighing 49 kgs. Finger nails blue, Conjunctiva congested. Dried bloodstains around the mouth. P8 certificate. Chemical analysis of visdera did not indicate presence of poison as could be seen in Ext. P10 report. After considering Ext. P10, P.W. 19 issued Ext. P9 final opinion. Relevant post-mortem findings areas follows :- "Body of a moderately nourished female weighing 49 kgs. Finger nails blue, Conjunctiva congested. Dried bloodstains around the mouth. Multiple ant bite marks were around the eyes, mouth, front and back of right shoulder, axillae, front of chest, front and back of lower abdomen, perineum, back of right thigh and back of left leg ..." He noted the following ante-mortem injuries on the body :- (i) Abraded contusion 1.5 x 1.3 c.m. on the right side of upper part of neck, 1.5 c.m. below the middle of right side of jaw bone and 3.5 c.m. to the right of mid-line. (ii) Abrasion, 2 x 0.5 c.m. on the front of middle of neck, 2 c.m. below Adam's apple. (iii) Abrasion, 1.5 x 0.5 c.m. on the left side of the face, 2 c.m. above the angle of jaw bone. (iv) A healing wound, 2 x 2 c.m. on the inner aspect of left leg., 13 c.m. above the heel. His other findings were : "Air passages contained blood-stained fluid. Lungs were congested and oedematous. Stomach contained partly digested rice and plantain without any unusual smell. Mucosa of stomach normal. All other organs congested, but otherwise normal." His final opinion was : "No evidence of natural disease. No poison detected on chemical analysis. Possibility of foul play in the form of violence on the neck cannot be ruled out." 10. P.W. 19 further deposed that it was possible that injuries (1) and (2) could be caused while the victim was throttled. Injury No. (4) was an older injury. According to him, asphyxia is a mode of death and not cause of death and could occur in throttling. Blood clotting could be delayed in case of asphyxial death. He agreed that presence of bloodstained fluid in the air passages, congested and oedematous lungs, congested organs and conjunctive, blue colouration of finger nails are signs of death due to asphyxia. Ant-bites could cause profuse bleeding after death in case of asphyxial death. Death could have been rapid. He deposed to the possibility of death by throttling. He agreed that presence of bloodstained fluid in the air passages, congested and oedematous lungs, congested organs and conjunctive, blue colouration of finger nails are signs of death due to asphyxia. Ant-bites could cause profuse bleeding after death in case of asphyxial death. Death could have been rapid. He deposed to the possibility of death by throttling. When the Court asked him if he could visualise any other possibility, he stated that "the possibility of natural disease and poisoning is ruled out. Hence the cause of death could be due to foul play in the form of violence on the neck such as throttling". He could not visualise any other form of foul play and that there were signs of asphyxial death and asphyxia is sufficient in the ordinary course of nature to cause death. 11. In cross-examination P.W. 19 differentiated between asphyxia and anoxia. Cynosed and swollen face marked with patechial changes can occur in asphyxial death, though not necessarily (this feature was absent in this case). So also predominantly bluish tinge will appear on lips, ears and finger nails in asphyxial death. According to him, in ease of asphyxial death clenching of hands and protrusion of eyeballs and tongue can occur, but not necessarily (this feature was also absent in this case). Post-mortem lividity will be well developed and will bear purple colour (this was not so noted in ext. P8). He deposed that in asphyxial death, right side of heart can get distended with blood and left side empty. Fracture of hyoid bone is not always necessary in case of throttling. Ext. P8 does not mention that it was a case of asphyxial death. P.W. 19 explained that mode of death will not be mentioned in post-mortem certificate. Injuries found on the neck are simple, but the effect of those injuries can produce asphyxia resulting in death. These injuries could be caused using one hand or both hands. From the measurements of injuries (1) and (2), he opined that they were oval-shaped, but he had not so stated in Ext. P8. According to him, death could have taken place about 18 hours before refrigeration. He also deprived that bleeding might have been so profuse as to cause blood to drop under the mat and on the cot as there were extensive ant-bites. In asphyxial death, clotting will be delayed, if not prevented. 12. P8. According to him, death could have taken place about 18 hours before refrigeration. He also deprived that bleeding might have been so profuse as to cause blood to drop under the mat and on the cot as there were extensive ant-bites. In asphyxial death, clotting will be delayed, if not prevented. 12. Learned counsel for appellants challenged the opinion of P.W. 19. We felt that in the interests of Justice, it was necessary to secure the opinion of a senior forensic expert in regard to certain questions arising from post-mortem findings and column (8) of inquest report. Accordingly we examined as C.W. 1 Dr. V. K. Jayapalan, Principal, Medical College, Trivandrum. He has worked as forensic expert and conducted or supervised post-mortem examinations for over 25 years. He gave evidence with reference to Exts. P8, P9 and column (8) of Ext. P2. According to him, injuries (1) and (2) on the neck could have been caused during the act of throttling and are quite consistent with asphyxia being the mode of death. This opinion is based on findings such as finger nails being blue, congestion of conjunctiva, blood stained fluid in the air passages and congestion and oedema of lungs and generalized congestion of all internal organs. According to him no post-mortem finding is inconsistent with asphyxial mode of death. Death could not have been by vagal inhibition since such death would be instantaneous and the aforesaid post-mortem findings indicate death having taken place after passage of some time after exertion of force. He deposed that observations in column (8) of Ext. P2 support the opinion of death by asphyxia. He also deposed that the statement in Ext. P8 that all organs were 'congested but otherwise normal' indicates that P.W. 19 had examined all organs. He pointed out that dried blood referred to in Ext. P2 was on the dependent parts of the body. If a dead body was attacked by ants, oozing of blood particularly from dependent parts of body would be possible. According to him, in asphyxial death it takes longer for blood to clot and post-mortem oozing of blood, particularly from dependants parts is possible. He states that in cases of natural death, it takes 6-12 hours for blood to clot but in case of asphyxial death it takes longer time. Since ant-bites are not shown as ante-mortem injuries in Ext. According to him, in asphyxial death it takes longer for blood to clot and post-mortem oozing of blood, particularly from dependants parts is possible. He states that in cases of natural death, it takes 6-12 hours for blood to clot but in case of asphyxial death it takes longer time. Since ant-bites are not shown as ante-mortem injuries in Ext. P8, they have to be presumed to be post-mortem injuries and such injuries also could lead to haemorrhage. 13. C.W. 1 further deposed that in case of throttling with violence leading to abrupt stoppage of air passages, congestion of lungs would be accompanied by patechial bleeding which, of course, is not noted in Ext. P8. In the case of suffocation by throttling brain centres controlling respiration are also affected and that they may lead to oxia, that is, lack of oxygen in brain. The mode of death in such cases is called anoxia. Learned counsel for appellants suggested a hypothetical case to C.W. 1, as follows : "A woman sleeping on a cot wakes up on hearing sound of thieves moving about. The thief from behind suddenly closes her nose and mouth to prevent her from raising an alarm and it results in smothering" The question put was whether it can produce all the post-mortem findings recorded in Ext. P8. C.W. 1 answered that all the post-findings would be consistent with the hypothetical case except the injuries (1) and (2). He clarified that these two injuries could be cause if in the smothering process, assailant's fingers press the neck at the level of sites of these injuries. If the victim is a weak-bodied person, cerebral anoxia can develop earlier. He further clarified that patechial bleeding (which was absent in this case) could take place only in the course of intense asphyxia. Protrusion of tongue, bulging eyes could be caused only if intense and sustained pressure was applied. He explained proper post-mortem procedure. 14. In the light of evidence of C.W. 1, we are satisfied that post-mortem conducted by P.W. 19 was performed properly after due observance of necessary procedure. Considering the entire medical evidence, we are satisfied that death in this case was due to application of pressure on the neck, though the pressure applied was not intense or sustained and death was by asphyxia. It was clearly a case of homicidal death. 15. Considering the entire medical evidence, we are satisfied that death in this case was due to application of pressure on the neck, though the pressure applied was not intense or sustained and death was by asphyxia. It was clearly a case of homicidal death. 15. There was no eye-witness to the occurrence and prosecution relied on circumstances and extra-judicial confessions to bring home the guilt of the accused. The circumstances relied on are : (1) Accused were friends of P.W. 21, son of the deceased. (2) They used to visit Stephen's Cottage where P.W. 21 and the deceased were living. (3) They knew that the deceased was alone on the night of 16-1-1985 and believed she would raise Rs. 20,000/- for meeting expenditure towards Visa of P.W. 21. They were aware that P.W. 1, the brother of the deceased and P.W. 21 would arrive from Bombay on 17-1-1986 to receive the money. (4) The accused were seen together at the seashore near the house of first accused at about 5-30 p.m. on 16-1-1985. (5) Deceased was seen alive at 10 or 10-30 p.m. at her courtyard. (6) The accused were seen going to the house of deceased at about 10-15 p.m. on 16-1-1985. (7) Accused were seen going together along the road at 11 p.m. (8) Deceased was seen dead the next day, death having been caused by application of pressure on neck. (9) On 19-1-1985 the first accused pledged one of the ornaments of the deceased with P.W. 32. (10) Jewels belonging to the deceased were dealt with by the accused and recovered as per the information received from them. (11) Subsequent conduct of appellants. 16. P.W. 4, son of P.W. 3 a sister of the deceased, and P.W. 5, son of a brother of the deceased were studying in a school near Stephen's Cottage. They used to take lunch in the house of the deceased. By noon on 17-1-85 these two boys came to the Cottage from their school as usual for lunch. They saw the front entrance locked. They called the deceased, but there was no response. Therefore, P.W. 5 looked through the ventilator and found the deceased lying on a cot in the northern bed room. Thinking that she was asleep, they went to the western side of the house. P.W. 4 entered the store room through a window, a rod of which was missing. They called the deceased, but there was no response. Therefore, P.W. 5 looked through the ventilator and found the deceased lying on a cot in the northern bed room. Thinking that she was asleep, they went to the western side of the house. P.W. 4 entered the store room through a window, a rod of which was missing. P.W. 5 opened the kitchen door and admitted P.W. 4 to the kitchen. They noticed that no food was cooked. They started to cat a coconut found in the kitchen. At that time they heard P.W. 21 calling his mother. P.Ws. 4 and 5 came to the front of the house and said that grand-mother was asleep and the front door was locked. P.W. 21 entered through the kitchen door. He went to the bed room, attempted to wake up his mother but found her dead. He raised an alarm. By that time key of front door was found by P.W. 4 at the verandah. He unlocked the front door and P.W. 1 came in and saw his sister lying dead. He went to Thumba Police Station and gave Ext. P1 F.I. statement. P.Ws. 1 and 21 would swear that they had gone to Bombay for arranging visa for P.W. 21 for securing a job in West Asia. P.W. 2, another son of the deceased employed in Dubai has sworn thatafter the death of his father, his mother and P.W. 21 were living in the house. P.W. 21 deposed that he left for Bombay on 22-11-1984. From the evidence of P.Ws. 2 and 21 it is clear that the deceased was alone in her house after 22-11-1984. When P.Ws. 4 and 5 came at noon on 17-1-1985 they found nobody in the house, except their grand-mother lying on the cot. 17. P.W. 6 is a neighbour conducting a provision store at Pallithura. She would swear that Georgena used to visit her shop and her last visit was on 16-1-1985 at about 6 p.m. P.W. 6 used to borrow from Georgena who would give her gold ornaments to be pledged for raising money to be advanced to P.W. 6. Later on P.W. 6 would redeem the ornaments and return them to Georgena. On 16-1-1985 at about 6 p.m. when Georgena came, to her shop P.W. 6 returned a gold bangle and two gold rings to Georgena. One of the rings weighed one sovereign. Later on P.W. 6 would redeem the ornaments and return them to Georgena. On 16-1-1985 at about 6 p.m. when Georgena came, to her shop P.W. 6 returned a gold bangle and two gold rings to Georgena. One of the rings weighed one sovereign. According to P.W. 6, Georgena was wearing two chains, four bangles and one ring, all of gold. She identified M.Os. 1, 2, 3, 4 series, 5 and 6 as ornaments belonging to Georgena. 18. The evidence of P.Ws. 1 to 6 and 21 would show that Georgena had two chains, three gold bangles, five gold rings and two imitation bangles. P.W. 2 does not mention about imitation bangles. The evidence of P.Ws. 1, 2, 3 and 21 would show that Georgena Stephen used to pack in a hand-kerchief ornaments other than those worn by her and keep it under her blouse and keep it under the pillow while going to bed. P.Ws. 1 to 6 and 21 identified M.Os. 1 to 6 as the ornaments which belonged to the deceased. They are the most competent persons to identify the ornaments and we find no reason not to act on the identification made by them. Thus it is seen the deceased was alone in the house on the night and she had her gold ornaments with her. 19. P.W. 29 who knew P.Ws. 1 and 21 met them in Bombay Airport on 15-1-1985 where he had gone to fly to Trivandrum deposed that P.Ws. 1 and 21 gave him a letter to be delivered to the deceased requesting her to arrange Rs. 20,000/- for securing Visa for P.W. 21. After reaching Trivandrum, P.W. 29 gave that letter to P.W. 7 on 16-1-1985 and asked him to deliver the same to the deceased and sent an oral message to her. Both P.Ws. 1 and 21 would swear that they had arranged a Visa for P.W. 21 for which Rs. 20,000/- had to he paid. P.Ws. 1 and 21 corroborate the evidence of P.W. 29. The further evidence of P.W. 7 who corroborates P.W. 29, is to the effect that at about 12-30 a.m. on 16-1-1985 when he reached the water tank near the house of the deceased he saw accused 1 and 2 and asked them the way to the house of P.W. 21. P.Ws. 1 and 21 corroborate the evidence of P.W. 29. The further evidence of P.W. 7 who corroborates P.W. 29, is to the effect that at about 12-30 a.m. on 16-1-1985 when he reached the water tank near the house of the deceased he saw accused 1 and 2 and asked them the way to the house of P.W. 21. They told him that they knew P.W. 21 and asked him the purpose of his visit. He told them that P.W. 21 would be coming on the 17th and that his mother was to be asked to arrange money for the purpose of securing Visa. Accused 1 and 2 showed him the house of Georgena and he delivered the letter to her and went back. 20. P.W. 8 is a fisherman residing on the south-west of the house of the deceased. Fishermen used to keep canoes on the sea shore. According to him, on 16-1-1985 at about 5-30 p.m. while he was going to sea shore to attend to the canoe, he saw the three accused sitting on the sea shore near the house of the first appellant. There is no reason to disbelieve him. 21. P.W. 9 is a fisherman. According to him, preparation of the fishing net for fishing would take one hour. Usually he and other fishermen would reach the sea shore by 4 p.m. and spreading the net would require three hours. After returning to the sea shore from sea fishing net has to be pulled to the sea shore. He said that on 16-1-1985 at about 9 p.m. he went home to take food while he was engaged in pulling the fishing net. After food he returned to sea shore. On his way he had to pass near Georgena's house. He noticed light in her house and courtyard. When he reached the turning of the Panchayat road at about 10-15 p.m. he saw the three accused entering the house of Georgena. P.W. 10 is a fisherman residing near the water tank at Pallithura. He used to go to the sea through the road lying in front of the house of Georgena. On 16-1-1985 he went to the sea at 11 p.m. from his house. While he was going to the sea, he saw the accused in front of the Pallithura Church. At that time light was burning at the top of the church. He used to go to the sea through the road lying in front of the house of Georgena. On 16-1-1985 he went to the sea at 11 p.m. from his house. While he was going to the sea, he saw the accused in front of the Pallithura Church. At that time light was burning at the top of the church. He asked the first accused as to where they were going. The first accused said they were going to the house of the third accused. The next morning he heard of the death of Georgena. 22. The main attack against the evidence of P.Ws. 7 to 10 is that till the police questioned them they did not tell anyone about having seen the accused as deposed to by them. Accused belong to the neighbourhood and they were friends of Georgena's son P.W. 21. Their mere presence near or in the house of Georgena by itself might not ordinarily evoke any suspicion. Such presence would assume significance only when other circumstances were known. Hence the silence of the witnesses for some time would not cast doubt on their evidence. It is contended that the evidence of D.W. 3 along with the evidence of P.W. 18 would show that the light at the top of the church was not burning at the time when P.W. 10 claimed to have seen the appellants near the Pallithura Church and he could not have identified them. D.W. 3 claimed that during that period the light at the top of the church was damaged and it was repaired only later. P.W. 18 who is the Accountant of the church turned hostile, and stated that it was D.W. 3 who used to switch on the light of the church. In view of the aforesaid evidence it may be doubtful whether there was light at the top of the church during the relevant time. But P.W. 10 stated that he asked the first appellant where he was going and the latter told him that they were going to the house of third accused. Accused being residents of the locality must have been well-known to P.W. 10. Hence we cannot accept that P.W. 10 would not have been able to identify the accused. It was contended that the evidence of P.Ws. 9 and 17 cannot go hand-in-hand. Accused being residents of the locality must have been well-known to P.W. 10. Hence we cannot accept that P.W. 10 would not have been able to identify the accused. It was contended that the evidence of P.Ws. 9 and 17 cannot go hand-in-hand. Stress was laid as to the time when P.W. 9 claimed to have seen accused going to the house of the deceased. P.W. 17, a neighbour of the deceased, deposed that she saw her sitting in the courtyard at about 10 or 10-30 p.m. and there was light in the court-yard. Time mentioned by witnesses could only be approximate and not exact and if so, there need not be any contradiction between the evidence of P.W. 9 and P.W. 17. We notice that none of these witnesses has any motive to give false evidence against accused. They are all disinterested neighbours whose evidence can be safely accepted. 23. P.Ws. 1, 2 and 21 swore that accused used to visit the house of the deceased. They were friends of P.W. 21. It is only probable that accused were familiar with the details of the house and well-known to Georgena. They must have known that Georgena was possessed of gold ornaments and would have believed that she had raised money for Visa expenses of P.W. 21. 24. Prosecution relies on recoveries made pursuant to information received from appellants. P.W. 37, Circle Inspector of Police arrested first accused on 20-5-1985 at 5-30 a.m. at the waiting shed in Kazhakkoottam Bus Stand. From the person of the first accused he seized M.Os. 7, 8 series and 9 series. First appellant was carrying M.O. 10 suit case which contained M.Os. 11 to 19 and 21 to 24 and Exts. P3 and P5 letters. P.W. 37 seized the same under Ext. P14 mahazar P.W. 24 attested Ext. P14. P.W. 24 stated that his son was engaged in distribution of newspapers. On that day he was not doing well and could not attend to his job and his employer had to be informed. When P.W. 24 was on his way to see his son's employer, he saw police in the waiting shed and went there. He saw P.W. 37 taking first accused into custody and seizing the articles. Evidence of P.W. 37 is fully corroborated by the evidence of P.W. 24, an independent witness against whom nothing was suggested. When P.W. 24 was on his way to see his son's employer, he saw police in the waiting shed and went there. He saw P.W. 37 taking first accused into custody and seizing the articles. Evidence of P.W. 37 is fully corroborated by the evidence of P.W. 24, an independent witness against whom nothing was suggested. P.W. 37 stated that he questioned and recorded the statement of first accused on the same day and the latter gave Ext. P15(a) information pursuant to which the latter led P.W. 37 to his house. From the western side of his house compound the first accused dug out M.O. 1 gold chain packed in M.O. 20 polythene paper piece. P.W. 37 seized the same under Ext. P15 mahazar attested by P.W. 25. 25. On 20-5-1985 the second accused was arrested by P.W. 37 at about 9-30 a.m. at Quilon and questioned. According to P.W. 37 as per Ext. P16(a) information obtained from the second accused he along with the second accused went to the latter's house. The second accused took out M.O. 5 gold ring packed in M.O. 10 from a crevice in the wall near the window of the northern room of the house. P.W. 37 seized M.Os. 5 and 10 under Ext. P16 attested by P.W. 25. According to P.W. 25, police came along with accused 1 and 2 on that day and after effecting recovery from the house of the first accused, P.W. 37 and the second accused proceeded to the house of the latter and P.W. 25 witnessed the recovery. No inference can be drawn against P.W. 25 from the fact he attested both the mahazars since houses of these two accused are only 100 feet apart. P.W. 25 is an independent and natural witness to the recoveries. It was contended that the recovery of M.O. 5 is a fake recovery as according to learned counsel for appellants M.O. 5 was planted earlier. In support of this argument reliance was placed on the evidence of P.W. 6 and D.W. 2. P.W. 6 identified M.Os. 1 to 3, M.O. 4 series, M.Os. 5 and 6 as ornaments of the deceased. She deposed that one of the rings that she had pledged was handed over to P.W. 21 after the death of Georgena. In support of this argument reliance was placed on the evidence of P.W. 6 and D.W. 2. P.W. 6 identified M.Os. 1 to 3, M.O. 4 series, M.Os. 5 and 6 as ornaments of the deceased. She deposed that one of the rings that she had pledged was handed over to P.W. 21 after the death of Georgena. During cross-examination, M.O. 5 was handed over to P.W. 6 and she was asked whether that was the ring which she gave to P.W. 21 after the death of Georgena and she answered in the affirmative. It was argued that if as a matter of fact M.O. 5 was not in the possession of the deceased at the time of her death, accused could not have committed theft of the same in the occurrence and M.O. 5 must have been planted by the police in the house of second accused. In re-examination P.W. 6 was asked regarding the shape of the ring given to her for pledging. She said the shape was oval. Ext. P16 mentions the shape of M.O. 5 as square. Evidence of P.Ws. 2 and 21 would show that of the five rings which belonged to the deceased four were oval in shape and one was square. When P.W. 1 was asked in cross-examination he said that the ring with a mark 'S' originally belonged to the husband of the deceased. He further said the ring that was handed over to P.W. 21 after the occurrence was not among the material objects in court. In the context of the aforesaid evidence, the argument of learned Public Prosecutor that the statement of P.W. 6 in cross-examination was a mistake and the same was corrected in re-examination gains much force. The evidence of D.W. 2 was also relied on to prove that the recovery was not genuine. His chief examination was conducted on two days. On the first day he said the ring was planted and was taken back by a police constable. But when he was examined on the second day he said that a police constable planted the same and the Circle Inspector of Police took out the same. In the statement of second accused under S. 313 Cr.P.C. he said that a constable planted M.O. 5 and Circle Inspector of Police took it out. But when he was examined on the second day he said that a police constable planted the same and the Circle Inspector of Police took out the same. In the statement of second accused under S. 313 Cr.P.C. he said that a constable planted M.O. 5 and Circle Inspector of Police took it out. Now the significance of the improvement even in chief-examination of D.W. 2 can be easily seen. That is sufficient to destory the value of D.W. 2's evidence. In the context of the evidence of P.Ws. 1 and 21 and also Ext. P 16 it can be seen that the statement relied on by the appellants in the cross-examination of P.W. 6 was a mistake and the same was corrected in re-examination. Therefore, nothing turns on the same. The recovery effected pursuant to Ext. P16(a) is thus acceptable. 26. The third accused was arrested by P.W. 36 as per instructions of P.W. 37 on 20-5-1985 at 5 p.m. at Quilon and questioned. P.W. 36 would swear that as per Ext. P17(a) information received from the third accused he along with the third accused reached Village Officer, Attipra and the third accused produced M.O. 4 series from the bushes on the west of the Village Officer and the articles were seized under Ext. P17 mahazar attested by P.W. 26. On the same day as per Ext. P18(a) information received from the third accused P.W. 36 proceeded to the house of the latter along with him. From a box kept in the northern room of the house third accused produced M.O. 3 which he seized under Ext. P18 mahazar attested by P.W. 27. As per Ext. P20(a) information P.W. 36 went along with the third accused who pointed out P.W. 28. P.W. 28 swore that he had purchased a gold bangle from the third accused and that he melted the same into M.O. 25 gold ingot. He produced M.O. 25 gold ingot. The same was seized by P.W. 36 under Ext. P20 attested by P.W. 28. P.W. 28 deposed that the bangle he purchased was diamond shaped. The evidence of P.Ws. 2 to 6 and 21 would show that one of the bangles that belonged to the deceased was of diamond shape. We find no reason to doubt the veracity of these witnesses. Evidence regarding recovery of the said material objects has to be accepted. 27. P.W. 28 deposed that the bangle he purchased was diamond shaped. The evidence of P.Ws. 2 to 6 and 21 would show that one of the bangles that belonged to the deceased was of diamond shape. We find no reason to doubt the veracity of these witnesses. Evidence regarding recovery of the said material objects has to be accepted. 27. On 21-5-1985 the accused were produced before Court. Accused 2 and 3 were remanded to Sub Jail and the first accused was remanded to police custody. As per Ext. P19(a) information received from the first accused P.W. 37 went to Shertallai along with the first accused where he pointed out P.W. 30. P.W. 30 swore to his having purchased a gold chain, a gold ring and a gold bangle from the first accused for an amount of Rs. 6,125/-. P.W. 30 obtained Ext. P4 receipt from the first accused which the latter signed as Francis. P.W. 30 converted the ornaments into M.O. 26 ingot. He said the fashion of the chain was Pavakka (a vegetable), the shape of the ring was oval and the shape of the bangle was diamond. Evidence shows that ornaments of the said description belonged to the said deceased. He produced M.O. 26 gold ingot which was seized by P.W. 37 under Ext. P19 mahazar attested by P.W. 30. As per Ext. P12(a) information received from the first accused P.W. 37 travelled along with him to Poona where the first accused pointed out P.W. 22 to whom he had sold M.O. 2 gold bangle. P.W. 37 seized the same under Ext. P12. As per Ext. P13(a) information received from the first accused he contacted P.W. 23 whom first accused pointed out. P.W. 23, when questioned, produced M.O. 6 oval shaped ring which was given to him by the first accused. P.W. 32 deposed that on 19-1-1985 the first accused pledged a gold bangle for Rs. 1,500 and that he executed Ext. P22 bond. Ext. P21 is the register in which such entries were made and the entry with respect to this transaction was proved by him as Ext. P22(a). Ext. P23 is the mahazar with respect to the said register and bond. He said that the first accused redeemed the pledge on 20-2-1985. 28. 1,500 and that he executed Ext. P22 bond. Ext. P21 is the register in which such entries were made and the entry with respect to this transaction was proved by him as Ext. P22(a). Ext. P23 is the mahazar with respect to the said register and bond. He said that the first accused redeemed the pledge on 20-2-1985. 28. The above recoveries made as per the information received from the accused persons have been proved by independent testimony which corroborate the evidence of P.W. 37. The ornaments which were recovered pursuant to the information received from the accused were identified to be those which belonged to the deceased. These and other ornaments converted into ingot belonged to Georgena and dealt with by one or the other of the accused. She was in possession of the same on the date of occurrence. Absolutely no explanation is forthcoming from the accused as to their possession of the said ornaments. 29. The subsequent conduct of the accused is also relevant. Georgena was found dead on 17-1-1985. The first accused pledged the ornament belonging to the deceased on 19-1-1985. The three accused were in possession of other ornaments. The father of the first accused was conducting a printing press by name Aswathy Printers. P.W. 16 who was an employee in the said press would swear that the first accused attended the press till the middle of February 1985 and did not attend the funeral of his father who died on 1-4-1985. P.W. 13, a friend of the accused was working in a bakery in Poona. He deposed that on 23-2-1985 the first accused came to Poona and was there for five or six days. The first accused's letters were sent in P.W. 13's address. Ext. P3 letter of first accused was addressed to P.W. 13. That was recovered by P.W. 37 from M.O. 10 suit case seized by him at the time of the arrest of the first accused. Though P.W. 14 turned hostile, he admitted to his having seen Ext. P3. P.Ws. 22 and 23 who were also employed in Poona had seen the first accused in February 1985. He had sold M.O. 2 to P.W. 22 and gave M.O. 6 to P.W. 23. A few days after the occurrence the first accused made himself scarce at his residence and also in his plate of work. P3. P.Ws. 22 and 23 who were also employed in Poona had seen the first accused in February 1985. He had sold M.O. 2 to P.W. 22 and gave M.O. 6 to P.W. 23. A few days after the occurrence the first accused made himself scarce at his residence and also in his plate of work. P.W. 11 would swear that he used to visit M.G. Memorial Club at Pallithura. He deposed that he attended the funeral of the father of the first accused and the first accused was not present. He had seen the three accused gambling in a club and indulging in extravagant spending. These items of evidence are relied on by the prosecution to show the subsequent conduct of the accused. The evidence of P.Ws. 13, 22 and 23 in this regard is acceptable and the same is one of the circumstances that will support the prosecution case. 30. The prosecution also relied on extra-judicial confession allegedly made by first accused to P.Ws. 12 and 13. P.W. 12 would claim that he is a friend of the first accused. He came to Pallithura on 20-1-1985 and met the three accused in the press belonging to the father of the first accused. According to him, the first accused told him that he along with accused 2 and 3 strangled Georgena Stephen to death and robbed her of her ornaments and money. P.W. 13 stated that when he asked from where he got money the first accused told him that he killed Georgena Stephen and robbed her of her jewels. Evidence of P.Ws. 12 and 13 suffer from a vital defect inasmuch as these witnesses did not state the exact words uttered by the accused. Extra-judicial confession to function as a reliable evidence must be a reproduction of exact words stated by the accused. (See the decision reported in Herarmba Brahma and another v. State of Assam (1982 (3) SCC 351) : 1983 Cri LJ 149. Evidence of P.Ws. 12 and 13 appears to be improbable and unnatural. 31. P.W. 9 said on the date of occurrence at about 10-15 p.m. he saw the accused going to the house of the deceased. P.W. 17 said on the date of occurrence at about 10/10-30 p.m. he saw Georgena sitting in her courtyard. The time mentioned could only be approximate. The accused were neighbours. 31. P.W. 9 said on the date of occurrence at about 10-15 p.m. he saw the accused going to the house of the deceased. P.W. 17 said on the date of occurrence at about 10/10-30 p.m. he saw Georgena sitting in her courtyard. The time mentioned could only be approximate. The accused were neighbours. They used to visit the house of the deceased. They were friends of P.W. 21, one of the sons of the deceased. They had reason to believe that the deceased would be raising money for the purpose of securing Visa for P.W. 21. The evidence of P.Ws. 9 and 17 has to be appreciated against the backdrop of these circumstances. The three accused were found to be in possession of the ornaments which belonged to the deceased. Georgena Stephen was found dead by the noon of 17-1-1985. Time mentioned by P.Ws. 9 and 17 being only approximate, the three accused could have entered the house only after P.W. 17 saw the deceased sitting in the courtyard. 32. For prosecution to succeed the circumstances relied on by the prosecution must be consistent only with the guilt of the accused, and inconsistent with their innocence. The evidence discussed above would show that the accused who were friends of P.W. 21 had access to the house of P.W. 21. They must have known that the deceased was alone. They must have been aware that she had gold ornaments and they had reason to believe that she would have raised money for the purpose of securing Visa for P.W. 21 who was expected on 17-1-1985. They were seen together at the seashore near the scene in the evening. She was seen alive at about 10 or 10-30 p.m. P.W. 9 saw the three accused going into the house at about 10.15 p.m. The time mentioned could only be approximate. The evidence of P.W. 6 would show that while leaving her shop on 16-1-1985 after 6 p.m. the deceased was wearing her gold ornaments. P.W. 17 saw the deceased sitting in the court-yard of her house at about 10/10-30 p.m. on 16-1-1985. P.Ws. 4 and 5 when they reached the cottage on 17-1-1985 at noon found Georgena Stephen lying on a cot and she did not respond to their call. When P.Ws. 1 and 21 arrived sometime later they found Georgena Stephen was dead. P.W. 17 saw the deceased sitting in the court-yard of her house at about 10/10-30 p.m. on 16-1-1985. P.Ws. 4 and 5 when they reached the cottage on 17-1-1985 at noon found Georgena Stephen lying on a cot and she did not respond to their call. When P.Ws. 1 and 21 arrived sometime later they found Georgena Stephen was dead. The first accused pledged one of the ornaments of the deceased on 19-1-1985 with P.W. 32. He had sold some of stolen articles to P.Ws. 30, 22 and 23. As per the information received from the accused recoveries of the ornaments of the deceased or converted gold ingots were made. Some time after the occurrence the first accused became scarce in the locality. He went to Poona. He did not even attend his father's funeral. M.O. 5 ornament belonging to the deceased was recovered on the information given by second accused. M.O. 3 ornament belonging to the deceased was recovered on the information given by the third accused. Third accused sold a gold bangle to P.W. 28 who converted it into M.O. 25 ingot and this could be traced on the information given by the third accused. The probative value of these proved circumstances must be considered with due regard to ordinary human conduct and on a pragmatic and realistic approach. On such consideration we are satisfied that these circumstances are capable of only one inference and that is, it was the three accused who trespassed into the house and committed robbery of Georgena's ornaments and one or more of them caused her death. The evidence already discussed, particularly the evidence regarding movements of the accused, their knowledge of house and the deceased, their subsequent conduct clearly establishes the conspiracy to commit robbery. 33. It was argued on behalf of the appellants that it would never have been in the contemplation of those who entered the house of Georgena to kill Georgena. Learned counsel for appellants emphasized that pressure applied on the neck was not much and evidence does not show that accused were armed. It was argued that pressure would have been applied by one of the accused in an attempt to prevent Georgena from raising an alarm and that could not have been done with the mens rea contemplated by S. 300 or 299 IPC. It was argued that pressure would have been applied by one of the accused in an attempt to prevent Georgena from raising an alarm and that could not have been done with the mens rea contemplated by S. 300 or 299 IPC. According to learned counsel for appellants though C.W. 1 has given his opinion on the basis of the data in column 8 of Ext. P2, Exts. P8 and P9, his evidence would show that the culprit did not intend to cause death of Georgena Stephen nor did he intend to cause even an injury which in the ordinary course of nature is sufficient to cause death. We have referred to the hypothetical case propounded by learned counsel while cross-examining C.W. 1, namely, "When a thief moves about and a lady who is asleep suddenly wakes up on hearing sound, then the thief closes her nose and mouth from behind to prevent her from raising an alarm and it results in smothering whether that can produce all the findings noted in Ext. P8". C.W. 1 stated that if the incident happened as suggested above that could not cause injury Nos. 1 and 2 in Ext. P8 and "all other findings can fit in with the data". But when he was asked whether in such a case the fingers of the assailants come into contact with throat, injury Nos. 1 and 2 could be caused, he stated these injuries are possible only if the fingers come to the level of the site of injury Nos. 1 and 2 and he added that 'possibility is more if both hands are used'. According to learned counsel the object of culprit could not be to kill the deceased but only to commit robbery and while he was moving about in the room the deceased might have suddenly woken up and in attempting to prevent her from raising an alarm he might have tried to press her mouth and in the process his fingers might have pressed her neck. Learned counsel pointed out that the evidence of C.W. 1 would not support a conclusion that sustained and persistent force revealing an intention to cause death, was applied. According to him the suggestion made to C.W. 1 being a reasonable hypothesis, in the absence of eye-witness testimony, the hypothesis has to be accepted. 34. The nature of Exts. P8, P9 and evidence of P.Ws. According to him the suggestion made to C.W. 1 being a reasonable hypothesis, in the absence of eye-witness testimony, the hypothesis has to be accepted. 34. The nature of Exts. P8, P9 and evidence of P.Ws. 9 and 19 being as indicated above, and since C.W. 1 does not rule out the possibility of the deceased meeting her end in the manner suggested, the said argument captures enough probative force and credibility. While the accused were in the house of the deceased to commit robbery she might have suddenly woke up. We cannot postulate who among the accused was in the bedroom at that juncture. May be one, two or all the three might have been there; however there is no evidence or circumstances in this regard. The act of violence on Georgena could have been committed by one of them; there is no evidence to establish his identity. The culprit's endeavour could only have been to prevent her from raising an alarm and in the course of such an attempt she must have been smothered causing her death. However, when some pressure was applied on the face and neck of Georgena who was an old and weak-bodied person, the culprit must have known that the act was likely to cause her death, as contemplated in last clause of S. 299 I.P.C. The evidence does not warrant any inference of any higher degree of mens rea. In the circumstances, it has to be found that the culprit who caused her death committed the offence of culpable homicide not amounting to murder punishable under S. 304 Part II IPC. He has not committed the offence punishable u/S. 302 IPC. Hence conviction u/S. 302 IPC cannot stand. 35. Learned counsel for the appellants argued that since there is no evidence to show as to who among the accused caused the death of Georgena Stephen, S. 34 IPC cannot be invoked and hence none of the accused can be convicted u/S. 304 Part II IPC. 36. There cannot be any doubt that in appropriate cases S. 34 IPC can be invoked where the substantive offence committed is one punishable under Part II of S. 304 IPC involving only "knowledge". The scope of the expression "criminal act" in S. 34 has been explained in Barendrakumar's case (AIR 1925 PC 1) : 1925 Cri LJ 431. 36. There cannot be any doubt that in appropriate cases S. 34 IPC can be invoked where the substantive offence committed is one punishable under Part II of S. 304 IPC involving only "knowledge". The scope of the expression "criminal act" in S. 34 has been explained in Barendrakumar's case (AIR 1925 PC 1) : 1925 Cri LJ 431. Criminal act is the whole series of acts or the unity of criminal behaviour. Each of the persons sought to be made liable must have participated in the commission of the criminal act and if so each is punishable as if he alone had committed the entire act. One who had not taken part in the criminal act cannot be made liable. In a case of death by beating or stabbing etc. where a person is present but does not participate in the act of beating or stabbing, his mere presence cannot ordinarily make him liable u/S. 34 unless his presence could itself be deemed to be an act as exemplified by the statement "he also serves who stands and waits". The criminal act mentioned in S. 34 is the physical act or totality of the series of acts which result in the offence and not the offence as a whole. In the case of a person assaulted by several persons the criminal act is the offence which finally results though achievement of that criminal act may be the result of action of several persons. Provided there is common intention, the whole of the result achieved by several offenders is attributed to each offender notwithstanding that individually they might have done separate acts, diverse or similar. The common intention must ordinarily be with regard to act of beating or stabbing. (See Afrahim Sheikh v. State of West Bengal, AIR 1964 SC 1263 : 1964 All LJ 437). 37. Common intention implies a prearranged plan or pre-concert, though such intention can develop at the spot just before the overt act. Common intention cannot be limited to mens rea or guilty mind necessary for the constitution of the crime actually committed. Common intention should not be confused with the intention that is an ingredient of many of the offences defined in the Penal Code. The intention is the intention formed by a person himself committing the offence. Common intention cannot be limited to mens rea or guilty mind necessary for the constitution of the crime actually committed. Common intention should not be confused with the intention that is an ingredient of many of the offences defined in the Penal Code. The intention is the intention formed by a person himself committing the offence. The common intention is the common design and common intent of two or more persons acting together. Common intention may be intention to do a particular criminal act or bring about a particular result no necessarily the act or the result which constitutes the crime charged. When several persons act in furtherance of a common design, each is responsible for the doing of others provided what the others actually do is something which may have been in the contemplation of all at the time when the common intention was entertained by them. There is no conflict between the kind of knowledge contemplated in part II of S. 304 and the common intention contemplated in S. 34. The basis of S. 34 is that any one of the joint participators in the act is deemed to be the doer of the entire act. The person who actually caused death by doing an act with the knowledge that it is likely to cause death is guilty of offence u/S. 304 Part II. If at the time of the formation of common intention, it was in the contemplation of the accused that if in the course of committing robbery the victim of the robbery wakes up it may be necessary to do some act to keep her silent, knowledge of likelihood of death can be attributed to that act and they can be held liable under Part II of S. 304 IPC. Where several persons in pursuance of common intention to assault another, cause injuries, it is immaterial which of them is responsible for causing death. It may be that it is not known which of the persons actually caused the death; or it may be that it is known that act of a particular accused caused the death. In either case, S. 34 is applicable and an enquiry into the question as to which of them was responsible for the fatal injury is wholly unnecessary. It may be that it is not known which of the persons actually caused the death; or it may be that it is known that act of a particular accused caused the death. In either case, S. 34 is applicable and an enquiry into the question as to which of them was responsible for the fatal injury is wholly unnecessary. If it is not known whether all the accused had joined in the act of causing injuries, but if it is clear that the injury was caused in pursuance of common intention to cause injury, all of them would be liable under S. 34 for the act of causing injury and the consequences thereof. 38. Common intention is seldom capable of direct proof, it is almost invariably to be inferred from proved circumstances relating to the entire conduct of all the persons and not only from the individual act actually performed. The criminal act actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor. Common intention can always be presumed from proved circumstances, but the presumption is subject to some restrictions as other presumptions; it must not take the form of a bare surmise or conjecture or suspicion. There must be data from which it can be inferred and the presumption in favour of common intention should not be reached unless it is a necessary inference deducible from the circumstances of the case. It must be inferred with the least amount of flight of fancy. (See : Mahbub Shah v. Emperor (AIR 1945 PC 118) : 1945 Cri LJ 689, State v. Saidu Khan (AIR 1951 All 21) : 1951 Cri LJ 131 (FB), Bashir v. State (AIR 1953 All 668) : 1953 Cri LJ 1505 and Afrahim Sheikh v. State of West Bengal (AIR 1964 SC 1263) : 1964 All LJ 437. 39. There can be no doubt that the three accused planned a criminal adventure. They were familiar with the deceased, her habits, the house and the surroundings. They were expecting her to have substantial cash amount in the house. They must have been aware that she possesses gold ornaments. They were together on the evening. It is proved that after the occurrence they dealt with various stolen articles belonged to the deceased. They were familiar with the deceased, her habits, the house and the surroundings. They were expecting her to have substantial cash amount in the house. They must have been aware that she possesses gold ornaments. They were together on the evening. It is proved that after the occurrence they dealt with various stolen articles belonged to the deceased. It is therefore clear that they had planned a criminal act or adventure to commit robbery of jewels and other valuables from the house. Since deceased was seen alive at about 10-15 p.m. and dead next day, the only inference Possible is that the robbery took place some time during the night. These circumstances lead to the only inference, namely, that one or more among the accused caused her death. Medical evidence would show that the pressure on the face and neck of the deceased could have been applied by one person. There is absolutely nothing in the evidence or circumstances to indicate that all the three accused were present in the room or party to that part of the occurrence. Three accused were friends of the sons of the deceased and were frequently visiting the house. It is difficult to believe that it was ever in their contemplation that an occasion would arise to kill her. They must have chosen a time when they were reasonably certain that she was asleep. They would certainly have believed that they would commit robbery without waking her up. It is significant to note that none of them was seen armed with any weapon during the night and no weapon was used against the deceased. 40. Police charge clearly states that she was killed when she was sitting in the dining room. Police charge specifically attributes overt acts to each of the accused in causing her death. Prosecution totally failed in proving this part of the charge. 41. No doubt any robber who faces his victim familiar to him may desire to have his identity kept secret. Many a time robbery is committed by using violence with weapon after taking precautions to have weapon readily available. Such was not the case here. The evidence suggests that accused went to the house unarmed. Ordinarily weapons like knife must be available in that house. No such weapon was used. Many a time robbery is committed by using violence with weapon after taking precautions to have weapon readily available. Such was not the case here. The evidence suggests that accused went to the house unarmed. Ordinarily weapons like knife must be available in that house. No such weapon was used. There is nothing to indicate that either in the conspiracy or in the prior meeting of minds it was contemplated that weapons should be used to prevent her from discovering their identity; if there was any such common intention they would have provided themselves with some weapons for the purpose. 42. In the present case there is nothing to indicate that there was common intention to commit the particular criminal act, namely, smothering or application of pressure on the neck of the deceased. The fact that there was common intention to do a criminal act, namely, robbery and all the accused participated in it, cannot by itself lead to the inference that all the accused participated in the act of smothering or applying pressure on the neck of the deceased. It cannot be said that any particular accused was necessarily involved in the commission of the act. It is difficult to agree on the evidence and circumstances available that accused had common intention to silence her from raising alarm in case she woke up. Even assuming it to be so, there is nothing in the facts and circumstances to indicate that all the accused participated in the act of silencing, her. This is not a case where all the accused are shown to have participated in the act but it is not known whose act caused death. In these circumstances, it is difficult to hold that S. 34 could be invoked with reference to the offence punishable u/S. 304 Part II I.P.C. Hence none of the accused can be convicted u/S. 304 Part II IPC. 43. Evidence discussed above would clearly establish beyond reasonable doubt that the three accused entered into criminal conspiracy to commit robbery of the valuables belonging to Georgena and for that purpose committed criminal trespass into her house and committed robbery. Conviction and sentence entered against them u/Ss. 449, 392 and 120-B IPC has to stand. There is no acceptable evidence to prove that the accused destroyed any evidence. Hence they cannot be held liable for the offence punishable u/S. 201 IPC. Conviction and sentence entered against them u/Ss. 449, 392 and 120-B IPC has to stand. There is no acceptable evidence to prove that the accused destroyed any evidence. Hence they cannot be held liable for the offence punishable u/S. 201 IPC. Appellants are acquitted of the offences punishable u/Ss. 302 and 201 IPC. Their conviction and sentence u/Ss. 120-B, 392 and 449 IPC are confirmed. The appeals are disposed of in this manner. Order accordingly.