Common intention and third-Judge reference under criminal law upheld for a concerted fatal assault and murder conviction.

Section 429 of the Code of Criminal Procedure, 1898 contemplates reference of the entire appeal to a third Judge when appellate Judges are equally divided, and the third Judge may hear the matter as he considers fit and decide the whole case. On the merits, common intention under Section 34 of the Indian Penal Code, 1860 was found where the assault was pre-arranged, concerted, and executed in furtherance of a shared design. A mistake as to the victim's identity did not defeat shared liability because the accused acted together and one participant restrained a companion who might have intervened. The conviction for murder under Section 302 read with Section 34 was upheld.

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Issues: (i) Whether the third Judge under Section 429 of the Code of Criminal Procedure, 1898 could deal with the whole case and not merely the points of difference between the Judges; (ii) Whether the evidence established that the fatal assault was committed in furtherance of the common intention of all the accused so as to attract Section 34 of the Indian Penal Code, 1860 and sustain conviction for murder under Section 302.

Issue (i): Whether the third Judge under Section 429 of the Code of Criminal Procedure, 1898 could deal with the whole case and not merely the points of difference between the Judges

Analysis: Section 429 provides that when the appellate Judges are equally divided, the case with their opinions shall be laid before another Judge and the judgment or order shall follow that Judge's opinion. The language contemplates reference of the entire case, not a restricted reference only to the points of difference, and the third Judge is free to hear such arguments as he thinks fit and to decide the whole matter.

Conclusion: The third Judge was competent to deal with the whole case.

Issue (ii): Whether the evidence established that the fatal assault was committed in furtherance of the common intention of all the accused so as to attract Section 34 of the Indian Penal Code, 1860 and sustain conviction for murder under Section 302

Analysis: The assault was found to be concerted and pre-arranged. The accused lay in wait, attacked the party immediately on its arrival, and acted in a manner showing prior concert. A mistake as to the identity of the victim did not displace common intention where the act was done pursuant to the shared design. Participation by all the accused, including restraint of the companion who might have intervened, established joint liability.

Conclusion: The killing was in furtherance of the common intention of all the accused, and the conviction for murder under Section 302 read with Section 34 was justified.

Final Conclusion: The appeal failed on both the procedural and substantive grounds, and the convictions and sentences were upheld.

Ratio Decidendi: Where a criminal act is committed pursuant to a pre-arranged plan and in concert, shared liability under Section 34 attaches even if the victim is mistaken for another person, and the reference to a third Judge under Section 429 extends to the entire appeal.

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