Under Section 34 of the Penal Code, each 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 the act was done in furtherance of the common intention.

Shearer, J.

1. This is a reference made by the learned Sessions Judge of Shahabad under Sec.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 Sec.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 Sec.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/s. 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 woul