STATE Vs. HIRA DUBEY

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge of Shahabad under Section 374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed by him on two men, Hira Dubey and Shriram Pandey, who have been convicted of the murder of one Radha Pathak. Hira Dubey and Shriram Pandey have appealed against their convictions and sentences, and the appeal has been heard along with the reference. Radha Pathak died in consequence of an assault which was committed on him in the early morning of the 26th of April, 1951. Radha Pathak belonged to Kapasia, but resided in another village Nimia, where he had relations. In the early morning of the 26th of April, 1951, he left his house in Nimia intending to go to Kapasia. According to the prosecution, the two appellants followed and overtook him at a point close to the boundary of Nimia and assault-ed him with lathis. Blood was found by the Sub-Inspector at this point, and it is not suggested that it was not the venue of the occurrence. The post mortem shows that Radha Pathak was struck some six or seven, or possibly more, blows with lathis. One of the blows was on the head, and caused a fracture of the skull to which Radha Pathak succumbed the same day at the police station. When, however, he reached the police station, he was still in a position to give a fairly detailed account of the occurrence. The reason which he then gave for the appellants having attacked him was that about two months earlier he had given evidence for the prosecution, in a case instituted by one Mt. Lakhia, who was a Gareri, against five men, one of whom was a Gareri and the other four of whom were Brahmans. One of these Brahmans was the appellant Hira Dubey and another, Rambaran Pandey was a relation of the appellant Shriram Pandey. Hira Dubey ana Rambaran Pandey were convicted on the 3rd of February, 1951, but an appeal, which was pending when Radha Pathak was Killed, was preferred and was ultimately successful. In order to corroborate the version of the occurrence contained in the dying declaration of Badha pathak the prosecution relied on the evidence of three men, who claimed to have seen it. (Reviewing their evidence his Lordship continued) In any event, the dying declaration of Rada Pathak himself, and the evidence of Ramnath Mahto coupled with the existence of a motive on the part of the appellants, was sufficient to justify their conviction. The only Question of any difficulty that arises in the appeal is as to whether or not the learned Sessions Judge was correct in convicting both men of murder.

(2.) IN a statute the singular is deemed to include the plural, and it is plain that the words at the beginning of Section 34 of the Penal Code "when a criminal act is done by several persons" mean, and can only mean, "when criminal acts are done by several persons", or to put it more broadly, "when several persons engage in a criminal enterprise". The acts may be different acts as when several men set out to burgle a house, and one of them keeps watch outside and the others enter the house, and one of the latter uses a fire arm and shoots one of the inmates, or they may be similar acts as where several men combine to assault another. IN either case, in order that Section 34 may apply, it is incumbent on the prosecution to show, in the first place, the existence of a common purpose or design or enterprise. If this cannot be shown, each of the accused persons is liable only for what he himself actually did. ('Mahbub Shah v. Emperor', 26 Pat L T 229 (P C)). If, on the other hand, the prosecution succeed in showing the existence of a common purpose or design, then each of the accused persons is liable for any act done in pursuance of that common purpose or design. When the acts done are similar, as where a number of blows are struck with lathis, then each of them is liable for every one of the blows struck, and if in the event of every blow having been struck by one man, that man would have been guilty of murder, each of them is guilty of murder, it being immaterial whose blow it was (which?) was the direct and immediate cause of death. Now, even assuming for the moment that Mrs. Dharamshila Lall is correct in saying that the purpose of the appellants was to cause bodily injury to Radha Pathak, and not to kill him, nevertheless, it is clear that the fatal Wow was struck in furtherance of that purpose, and it is also, I think, clear that if there had been one assailant, and not two, the assailant would have been guilty of murder. Radha pathak was knocked down and after he was knocked down he was belaboured with lathis, one of which at least was a particularly formidable lathi. It seems to me impossible to say that if the assault had been committed by one man it would have been culpable homicide not amounting to murder and not murder. It is contended by Mrs. Lall that, in order to convict her clients of murder, it must be shown that each of them intended to kill Radha Pathak. Section 34 lays down a principle of joint liability for acts done by several persons in pursuance of a criminal design or enterprise, and the principle laid down in the section, as originally enacted, was the same principle as is recognised by the common law in England. Under that principle one of several persons who engages in a criminal enterprise or design may be liable for an act done by another which he himself never intended, and perhaps never contemplated; If, for instance, a number of men set out to burgle a house, and entrust one among their number with a fire-arm, impressing on him that he is not to use it except under circumstances of compelling necessity, and if that man loses his head and shoots one of the inmates of the house, it would be no defence on the part of his companions to assert that they had never intended him to use his weapon in the way he did. The point is, I think, well illustrated by the decision in 'Queen v. Salmon Hancock and Salmon', (1881) 14 Cox C C 494. IN that case several members of a volunteer corps went out to practise shooting and put up their target in such a situation that a shot fired by one of them went wide and killed a boy. They were all convicted of manslaughter on the ground that each one of them was 'answerable for the acts of the others, they all being engaged in one common pursuit." under Section 34 as it stood originally it seems to me quite clear that each of the appellants would have been guilty of murder. IN 'the Queen v. Gora Chand Gope', 5 W R Cr 45, a case decided in 1366, Peacock, C. J. observed :