Judgement

BOSE, J. : The appellant Prabhu was indicted for the murder of his sister-in-law Mst. Parvati, Parbhu s sons, Babu and Bhika, his brother Ganpat and Ganpat s son Vishnu were also charged.

2. The Sessions Judge convicted Prabhu and his two sons under S. 302, read with S. 34, Penal Code, and acquitted the other two. All three were sentenced to transportation.

3. The High Court allowed the appeals of the sons and acquitted them. The conviction of the father under S. 302, read with S. 34, was maintained.

4. That at once arises the conundrum that arises in this class of case. The appellant was not charged for having committed the murder himself, nor does the evidence indicate that he was charged for having shared the common intention of four named persons and for having participated in the crime. If these four persons are all acquitted, the element of sharing a common intention with them disappears; and unless it can be proved that he shared a common intention with the actual murderer or murderers, he cannot be convicted with the aid of S. 31.

Of course he could have been charged in the alternative for having shared a common intention with another or others unknown. But even then,