In cases involving common intention to commit murder, the prosecution must establish beyond a reasonable doubt that the accused persons shared the same intention at the time of the offense.

Judgment

GAJENDRAGADKAR, J. : The three appellants, Sunder Singh and his sons Lal Singh and Gurmukh Singh along with one Rachhpal Singh were tried before the learned Additional Sessions Judge, Karnal with having committed the offence of murdering Malook Singh, Anup Singh and Darbara Singh on January 13, 1960, at about 11 a.m. in the Abadi of village Habri. The prosecution case was that these three murders were committed by the four accused persons in furtherance of their common intention; at the time when the offence was committed, Sunder Singh and Gurmukh Singh were armed with Lathis and Lal Singh and Rachhpal Singh were armed with guns. According to the charge framed against the accused persons, Lal Singh fired upon Malook Singh and Darbara Singh and thereby killed them while Rachhpal Singh fired upon Anup Singh and killed him. This firing took place in pursuance of the common intention of all the accused persons. That is how Lal Singh and Rachhpal Singh were charged under S. 302 read with S. 34 of the Indian Penal Code. The learned trial Judge took the view that the evidence adduced against Rachhpal Singh left room for doubt and so, giving Rachhpal Singh the benefit of doubt, he acquitted him. The remaining three accused persons were, however, convicted by him under S. 302 read with S. 34 because he held that the prosecution case had been proved against them beyond a reasonable doubt. The three convicts were ordered by him to suffer the sentence of death. This order was submitted for confirmation to the Punjab High Court and it was also challenged by the three convicts by their separate appeal. The two matters were heard together by the Punjab High Court and in the result, the conviction of the three appellants was confirmed; in regard to the sentence, however, the High Court took the view that the ends of justice would be met if the sentence of death imposed on Sunder Singh and Lal Singh was confirmed but that imposed on Gurmukh Singh was reduced to one of life imprisonment. In the result, the appeals preferred by the three accused persons substantially failed and the order of sentence was confirmed in regard to two of them. It is against the order of conviction and sentence thus passed by the High Court that Sunder Singh, Lal Singh and Gurmukh Singh have come to this Court by special leave.

2. Before dealing with the points raised before us by Mr. Sethi on behalf of the appellants, it would be convenient to set out broadly the material facts leading to the prosecution. Darbara Singh and the deceased Malook Singh were the sons of one Phula. It appears that prior to the partition of India, these brothers lived in a village Butran which is now a part of West Pakistan. The appellants also resided in the same village. Sunder Singh, a brother of Phula Singh mortgaged ill killas of agricultural land with possession for Rs. 2,500/- with the appellant under Singh and his brothers, in about 1943. In lieu of this mortgage, the appellant Sunder Singh and his co-mortgagees had been allotted 40 killas of land in the village Habri in the District of Karnal. The mortgagor Sunder Singh later died without leaving an issue or a widow. Phula Singh, his brother, claimed to be the heir of the said mortgagor and as such, he asked for redemption of the land on payment of Rs. 2,500/-. The appellant Sunder Singh did not recognise Phula Singh as the heir of the mortgagor and so, Phula Singh had to make an application in that behalf on November 29, 1959. By this application made to the Assistant Collector, Kaithal, Phula Singh claimed to redeem the mortgage. This claim was strongly resisted by the appellant Sunder Singh and his co-mortgagees. They disputed the title of Phula Singh and in the alternative, they alleged that they could not be deprived of the possession of the land except on payment of Rs. 2,500/- The proceedings continued for some time but it appears that Phula Singh was not able to place satisfactory evidence about his title before t