034-SLLR-SLLR-2006-V-3-UPASENA-AND-8-OTHERS-vs.-ATTORNEY-GENERAL.pdf
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UPASENA AND 8 OTHERSVS.ATTORNEY GENERALCOURT OF APPEAL.
BALAPATABENDIJ (P/CA)
BASNAYAKE J.,
C. A. 6-8/2003HC HAMBANTOTA 38/98SEPTEMBER 21. 22. 2005AUGUST 4, 2004OCTOBER 13, 2005
Penal Code – section 146/96, 32/296 – Unlawful assembly – Commonintention-Ingredients-Participatory presence as agent- Mere presence ? -Evidence Ordinance – section 27
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The accused-appellants (8) were charged under section 140, 146/296and section 32/196 for causing the death of one C. After trial all accusedwere found guilty of all the charges and death sentence was imposed (The4th accused died pending appeal)
It was contended in appeal that, the prosecution had failed to prove anunlawful assembly charge due to the reason that the accused meeting thedeceased was by chance and that there was no preplan. It was alsocontended that the accused is alleged to have used a lethal weapon. It wasfurther contended that, the accused were closely related to each other andthere was some animosity between them and the deceased.
HELD
The crime was committed at the, work place of the accused. Theaccused had a legitimate right to be present and to be in possessionof the stiles (the alleged weapon used).
If any member of a crowd had indulged in any act of arson, or violence,it cannot from such an individual act, be presumed that it was eitherthe common object or that every member of that crowd hadnecessarily shared the object of that individual who had committedthe act. In other words the acts of only a few individuals of such acrowd cannot be held to be common object of that crowd. Nor canevery member of that crowd be presumed to have shared the objectwith which such acts were committed by only a few members of thatcrowd.
• (3) If one becomes a member of an unlawful assembly and hisassociation in the unlawful assembly is clearly established hisparticipation in the commission of the offence by an overt act is notrequired to be proved if it could be known that he knew that suchoffence was likely to be committed in prosecution of the commonobject of the unlawful assembly.
(4) When the injuries caused are cumulatively sufficient to cause death,it is necessary before holding each of the accused guilty under section
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296 read with section 146 to find that the common object of theunlawful assembly was to cause death or that the members of theunlawful assembly knew it to be likely that an offence under section296 could be committed in prosecution of the common object.
In the instant case there is no evidence that all the accusedentertained a common object to cause injuries to the deceased.The prosecution had failed to prove an unlawful assembly charge-all accused would be acquitted from the unlawful assembly charge.
Held Further:
To make an accused liable under section 32 there should beevidence of a prearranged plan or pre concert to make the accusedvicariously liable with the doer of the act for the criminal act. There isinsufficient evidence to maintain a charge under common intentionagainst the 5-9 accused, but there is evidence of a pre plan againstthe 1st, 2nd accused-appellants who are relatives.
In the absence of an explanation the Court is entitled to draw thereasonable inference from all the circumstances that his presence(3rd accused) at the scene was a participatory presence and not amere presence, which would have entitled him to an acquittal.
“They also serve who only stand and wait” has to be regarded asapplying not to a bystander, who merely shares mentally the criminalintention of others, but to a person whose act of standing and waitingitself as a criminal act is a series of criminal acts done in furtheranceof the common intention of all.
Appeal from the judgment of the High Court of Hambantota.
Cases referred to :-
In re Ambelavana – 1982 1 SCR 271
Mythu Naicker vs State of Tamil Nadu — 1979 1 SCJ 194 at 199
Sarwan Singh vs State of Punjah – 1979 – 1 SCJ 157 at 159-60
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Swarm Singh Shri vs State of Himachal Pradesh -1984 Sim LL'122
Narayan Singh vs State of Madhya Pradesh 1985-1 Cr LR 404 (SC)
Jai Ram vs State of Rajastan 1985 RLW 490
Balkar Sijnghe vs State of Punjab 1994 Cr LR (SVI) 389 at 391
Lakhu Singhe vs State of Rajasthan — 1997-(4) Crimes 241 at 252,253
Mahbub Shah vs Emperor-1925-A1118
King vs Ranasinghe – 47 NLR 373
King vs Piyadasa-48 NLR 295
King vs Assappu — 50 NLR 324
Queen vs Mahatun — 61 NLR 540
Queen vs Vincent Fernando – 65 NLR 265
In Re RomLochan – 1956-A1 &76
Richard vs State 76 NLR 534 at 546
King vs Endoris – 46 NLR 498 at 499
Barendra Kumar Gosh vs Emperor— 1925 – AIR PC 1
Dr. Ranjith Fernando with Ms. Deshani Jayatilake, Amila Udayanganifor 1, 2, 8 and 9 accused appellants.
Ranjith Abeysuriya PC with Thanuja Rodrigo for 3rd accused-appellant
S. Wijesinghe PC with Kaushalya Molligoda and WasanaWickremasena for 5, 6 and 7 appellants. •
Kapila Waidyaratne Deputy Solicitor General for Attorney General.
APPEAL from the Judgment of the High Court of Ampara.
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August 23, 2006.
ERIC BASNAYAKE, J.The nine accused appellants (accused) were charged in the HighCourt of Hambantota under sections 140,146/296 and 32/296 of thePenal Code for causing the death of Matara Gamage Chandrapaia on23.04.1982. After trial before a Judge, all the accused were found guiltyof all the charges and the accused were sentenced to six monthsimprisonment on the first charge and the death sentence imposed onthe other charges. The accused appealed against the conviction andthe sentences.
The trial commenced on 29.05.2000 eighteen years after the incident.Three eye withnesses gave evidence for the prosecution with regard tothe incident proper. They are Siripala, Leelawathie and Somawathie.The deceased was their brother. It has been clearly established thatthere was some enmity between the accused and the family membersof the deceased. The accused are all related to each other. The 1st andthe 2nd accused are brothers. The 3rd and 4th are brothers. The 4thaccused is now deceased. The 5th and the 6th accused are alsobrothers. The 7th accused is the father of the 5th and the 6th accused.The 8th and the 9th accused are also related to the other accused.
There was a land dispute in the District Court between the deceasedand the 7th accused. This dispute was decided in favour of the deceased.Over this, there was an altercation and one John was murdered. Thedeceased was taken into custody on suspicion and was remanded. Atthe time of the present incident the deceased had just been releasedon bail.
The incident occurred on a paddyfield. The extent of the field is morethan 60 acres. The several plots of land belonged to different persons.The 7th accused too owned a plot. This was during harvesting time.The farmers at this time are usually engaged in cutting, bundling andthreshing paddy at different places in the field. The threshing is done
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by tractors. Thereafter the straw is separated from the seeds with theaid of long strong sticks used specially in the paddyfields. They areabout five and a half feet long and made of hard wood. They are called“dathigaha" in the village.
On the day of the incident the deceased was engaged in carryingbundles of paddy to a threshing floor. To reach this place the deceasedhad to pass the plot belonging to the 7th accused. There was someactivity in this plot too. Threshing was dbne in this plot with the help ofa four wheeled tractor. The 1 st to the 9th accused together with someothers were working on this plot at that time.
There is a discrepancy with regard to the time the accused arrivedat the field. Siripala had arrived at the field with the deceased around2.30 or 3 p. m. Siripala states in his evidence that the accused were atthe field when Siripala came to work.Leelawathie states that the accusedcame at 4 p. m. There is no evidence with regard to the manner inwhich the accused came to the field, that is, whether they came togetheror separately. Anyhow there is evidence to suggest that a four wheeledtractor was engaged in the threshing of paddy. In addition to this tractor •there were others also working in this plot. Therefore there is no evidencethat the accused had come together on finding out that the deceasedwas working in the field and set upon him. At the time of this incidentwhich took place around 4.30 p. m. the deceased had made severaltrips carrying bundles of paddy to a threshing floor situated near theland belonging to the 7th accused.
With regard to the sequence there is a disparity between the evidenceof Siripala on the one hand and Leelawathie and Somawathie on theother. According to Leelawathie and Somawathie, while the deceasedwas carrying a bundle of paddy on his head, the 2nd accused hit thedeceased on his leg with one of the sticks referred to earlier, to whichthe deceased fell on the ground. Somawathie stated that the 2ndaccused hit the deceased several times. Thereafter that the 1 st accusedshot the deceased at close range. That the 2nd accused then havingsat on the back of the deceased stabbed him. The 1st accused
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threatened to shoot if the witnesses came closer. These two witnessesstated that 3 to 9 accused were armed with sticks and hit the deceasedwith them one after another. Siripala said that it was the 3rd accusedwho hit the deceased on the leg and thereafter stabbed him.
Medical evidenceThe doctor who held the post mortem found 17 injuries on the body.Out of this Nos. 11 to 17 were gun shot injuries on the back of the left-shoulder. The shoulder blade was found fractured. Injury No. 1 was alaceration found on the left leg. The underneath tibia bone was foundfractured. Nos. 5, 7, 8 & 9 were stab wounds. Nos. 7 to 9 were found onthe back of the chest while injury No. 5 was on the head. Injuries 7 to9 had penetrated in to the chest cavity and as a result half a pint ofblood had collected. These three injuries were sufficient, in the ordinarycourse of nature, to cause death. Injuries 2 and 3 were abrasions foundon the knee and below the knee of both legs. These injuries had probablyresulted due to a fall. Nos. 4, 6 and 10 were lacerations. They aresimple injuries, skin deep, found on the back and side of the head.
According to the evidence of the witnesses injuries 11 to 17 werecaused by the 1 st accused. According to Leelawathie and Somawathiethe stabbing was done by the 2nd accused. Leelawathie andSomawathie had gone to the police station immediately after the incidentleaving others to take the injured to hospital. Leelawathie’s statementwas recorded by the police at 5 p. m. on the day of the incident. Thestabbing was done with a knife marked P6. P6 was recovered on asection 27 statement of the 2nd accused. Injuries 5, 7, 8 and 9 aresaid to have been caused with this weapon and attributed to the 2ndaccused. Injuries 2 and 3 being abrasions caused due to a fall, doubtremains only as to lacerations Nos. 4, 6 and 10 found on the head.
Submissions of the counsel appearing for 1st, 2nd, 8th & 9thaccusedThe learned counsel appearing for the above accused submitted that
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the prosecution had failed to prove an unlawful assembly charge due tothe reason that the accused meeting the deceased was by chance andthat there was no pre-plan. He further submitted that the 1st accusedcaused firearm injuries only to the shoulder and the 2nd accused causedinjuries to the legs and therefore the 1 st and the 2nd accused could beconvicted only for culpable homicide not amounting to murder. Withregard to the 8th and 9the accused the learned counsel submitted thatthey should be discharged due to lack of evidence.
Submissions of the counsel appearing for the 3rd accusedThe learned President’s Counsel appearing for the 3rd accused alsosubmitted that the attack on the deceased was not a pre-conceivedone. Hence that the unlawful assembly charge should fail. It was thesubmission of the learned President’s Counsel that this accused isalleged to have used not a lethal weapon of offence but an agriculturalimplement with which he had been working at the time. He submittedthat on the prosecution evidence the appropriate finding against the 3rdaccused should be that he caused hurt to the deceased even on a totalacceptance of their evidence and to find him guilty of a charge undersection 314 of the Penal Code. The learned President’s Counselrefrained from mentioning the recovery of the gun.
Submissions of the counsel appearing for 5th, 6th and 7thaccusedThe learned President's Counsel appearing for the above accusedsubmitted that the accused were working in their own paddy field andthe deceased went pass that field. Further that the “dathigaha" allegedto have been used was an implement of their trade. He further submittedthat the accused 5 to 9 did not charge towards the deceased as theysaw him. The accused were closely related to each other and therewas some animosity between them and the deceased. This was thereason to implicate everyone who was with them. He submitted that ifat all, 5 to 7 accused could be convicted only for individual acts allegedto have been committed by them.
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Unlawful AssemblyAccording to all three prosecution witnesses the presence of 1st to9th accused is established (although an alibi was put forward by the6th accused and a denial by 5th and 8th accused). At the same time,it is not in dispute that the 7th accused had a plot of land in this paddyfield. The incident took place by this plot of land. At that time theaccused appear to have been engaged in threshing paddy with the aidof a four wheel tractor. In addition to the accused there were others whowere working in this plot of land.
the deceased and was not armed with a stick. Leelawathie stated that3 to 9 accused hit the deceased with sticks one after another. Shestated that the 3rd accused hit the deceased on the head. At one timeshe said that all the accused hit the deceased with sticks. Somawathiealso stated that after the stabbing the 3rd accused hit the deceasedwith a stick and thereafter others hit him with sticks. Apart from theinjuries caused by thelst and the 2nd accused, the other remaininginjuries are the three lacerations found on the head namely Nos. 4,6and 10. They are simple injuries skin deep. If six or seven accused hitthe deceasd with sticks, the deceased would have received more severeinjuries than the ones described by the doctor. The injuries caused bythe 1st and the 2nd accused are supported by medical evidence.
Submissions of the StateThe learned Deputy Solicitor-General in his submissions does notdispute the vague reference made to 5 to 9 accused by the threewitnesses (4th accused is deceased). The learned counsel submittedthat 3 to 9 accused had been members of an unlawful assembly knowingthat an offence is likely to be committed in prosecution of the commonobject.
Evidence against 5 to 9 accusedSiripala said that after the stabbing 4 to 9 accused assaulted thedeceased with sticks. Once he stated that “others hit with stick” Again
According to Siripala the 3rd accused stabbed
he stated that “everyone hit with sticks”
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The accused were said to be armed with sticks. These sticks wereused to turn the hay. There is no evidence of any plan that the 4th to9th accused had with the 1 st to 3rd accused. There is no evidence thgtthere was a common object to cause injury to the deceased. Althoughthe deceased was suspected of the murder of John and the 7th ac-cused had a land dispute with the deceased, that in itself is not conclu-sive proof that these accused had a common object to injure the de-ceased. The common object has to be clear although each accusedneed not know whether the other accused knew the object. If there wasno such object then these accused were in the paddy field legitimately.They were not armed with weapons but instruments that help them todischarge their work effectively. However even a stick might be used insuch a way as to cause death and each case should depend on itsown facts In Re. Ambalavanar.(1)
The accused had not gone in to the field worked by the deceasedand to that extent they were not aggressors. The learned President’sCounsel appearing for 5 to 7 accused suggests that these accusedhave been implicated as they happened to be there.
This crime was committed at the work place of the accused. Theaccused therefore had a legitimate right to be present and to be inpossession of the sticks. When 5 to 9 accused became aware that acrime was being committed should they have left the crime scene toavoid an unlawful assembly charge being framed against them ?
In Mythu Naicker vs. State of Tamil Nadu (2) at 199-(mentioned inGour’s Penal Law of India 11th Edition Vol. 2 Pg. 1420) the intention ofthe crowd was not to commit criminal trespass, arson, loot or damageor any other act of this nature. Responsible Officers had tried to pacifythis crowd but it had become uncontrollable. If any member of suchcrowd had indulged in any act of arson or violence, it cannot from suchan individual act, be presumed that it was either the common object ofthe crowd or that every member of that crowd had necessarily sharedthe object of that individual who had committed the act. In other wordsthe acts of only a few individuals of such a crowd cannot be held to be
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the common object of that crowd. Nor can every member of that crowdbe presumed to have shared the object with which such acts werecommitted by only a few members of that crowd.
If one becomes a member of an unlawful assembly and his associa-tion in the unlawful assembly is clearly established, his participation inthe commission of the offence by an overt act is not required to beproved if it could he shown that he knew that such offence was likely tobe committed in prosecution of the common object of the unlawful as-sembly. But while finding out whether a person was a curious specta-tor or a member of an unlawful assembly, it is necessary to keep inmind the life in a village, ordinarily uneventful, except for small squabbleswhere the village community is faction ridden, and when a serious crimeis committed where people rush to the scene just to quench their thirstto know what is happening.
It has also been held that when the injuries caused are cumulativelysufficient to cause death, it is necessary before holding each of theaccused guilty under section 302 (section 296 of the Sri Lanka PenalCode) read with section 149 (section 146 of tfie Penal Code) to findthat the common object of the unlawful assembly was to cause deathor that the members of the unlawful assembly knew it to be likely thatan offence under section 302 I. P. C. could be committed in prosecu-tion of the common object. (Sarwan Singh vs. State of Punjab (3) at159-60; Swarn Singh Shri vs. State of Himachal Pradesh; NarayanSingh vs. State of M. P. (5) Jai Ram vs. State of Rajastani6) BalkarSinghe vs. State of Punjab,(7) at 391; Lakhu Singhe vs. State ofRajastanw at 252, 253 mentioned in Gour’s Penal Law of India pg. 1409.
In the instant case, apart from the fact that the accused are relatedto each other, there is no evidence to establish that the accused 5 to 9knew what the 1st and the 2nd accused were about to commit. Thereis evidence to suggest that they all worked together. Could we draw aninference from this that the other accused knew that the 1st and the2nd accused were armed with a gun and a knife ? The gun was said tobe a short one and marked P1 at the trial. Apart from what took place
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in the paddy field, the relationships among the accused and the enmityover the murder of John, there is no other evidence to connect the 5thto 9th accused to the crime. There is no evidence that all the accusedentertained a common object to cause injuries to the deceased. There-fore I am of the view that the prosecution had failed to prove an unlawfulassembly charge in this case. Hence all the accused are acquittedfrom the first two charges.
Common Intention
The accused were also found guilty under section 296 read withsection 32 of the Penal Code. With regard to the 5th to 9th accusedthe evidence available is that they too hit the deceased with sticks.Due to the same reasons I have mentioned earlier I am of the view thatthe evidence is insufficient to maintain a charge under common inten-tion against the 5th to 9th accused. Therefore the 5th to 9th accusedare acquitted.
Evidence against the 1st and 2nd accused
/
In order to justify the inference that a particular prisoner was actu-ated by a common intention with the doer of the act, there must beevidence direct or circumstantial, either of pre-arrangement, or a pre-arranged plan, or a declaration showing common intention or someother significant fact at the time of the commission of the offence, toenable them to say that a co-accused had a common intention with thedoer of the act” King vs. Assappu at 324. Both in India and Ceylon (SriLanka), the courts have accepted the principle that to make an ac-cused liable under section 32 of the Penal Code there should be evi-dence of a pre-arranged plan or pre-concert to make the accused vi-cariously liable with the doer of the act for the criminal act. Alles Jcited the Privy Council judgment in Mahbub Shah vs. Emperor™ whereit said “Common intention implies a pre-arranged plan. To convict theaccused of an offence applying section 34 it should be proved that thecriminal act was done in concert pursuant to the prearranged plan. It isno doubt difficult if not impossible to procure direct evidence to prove
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the intention of the individual; it has to be inferred from his act or con-duct or other relevant circumstances of the case’. Continuing Alies J.said ‘the principle in Mahabud Shah’s case has been applied in casesof direct evidence. Invariably in such cases the material question iswhether or not there was evidence of a pre-arranged plan among theassailants, where the facts disclose that assailants set upon their vic-tim and assaulted him in pursuance of which he was injured or receivedfatal injuries; King vs. Ranasinghe(10) at 375, Piyadasa(,1) Assapu{,2);Mahatun<'3); Queen vs. Vincent Fernando(U).
I have already set out in detail the evidence against the 1 st and 2ndaccused. Considering the evidence against these two accused thereappears to be clear evidence of a pre-plan. The 2nd accused first hitthe deceased to fall. After he fell on the ground the 1 st accused wentnear the deceased and fired a shot. He wanted to make sure that he hitthe target. Seven pellet wounds were found on the left side of the shoul-der as a result. Injuries 11 to 17 were not sufficient to cause death inthe ordinary course of nature. He was not dead yet. Then the 2nd ac-cused having sat on the deceased stabbed him. There were four stabinjuries out of which three were said to be sufficient to cause death inthe ordinary course of nature. When the witnesses got closer the 1staccused threatened to shoot them, and prevented the injured from be-ing taken for treatment. Thereafter the accused had left the scene. Thepolice could not find them at their residences for two days and untilsuch time as they surrendered to the police.
“If two persons took part in the assault on the deceased in further-ance of the common criminal purpose of causing the death of the de-ceased and one of them struck the fatal blow, even if it was not theaccused, then the accused will be guilty of murder”. In Romlochan(1S)quoted by Alies J in Richard’s(,6)
Section 32 of the Penal Code states that “when a criminal act isdone by several persons in furtherance of the common intention of all,each of such persons is liable for that act in the same manner as if itwere done by him alone”.
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Section 294 of the Penal Code states that “except in the cases
hereinafter excepted, culpable homicide is murderThirdly – If it is
done with the intention of causing bodily injury to any person, and thebodily injury intended to be inflicted is sufficient in the ordinary courseof nature to cause death. Illustration (c) is that “A intentionally gives Za sword cut or club wound sufficient to cause death of a man in theordinary course of nature. Z dies in consequence. Here A is guilty ofmurder although he may not have intended to cause Z’s death".
Considering the above facts and the fact that the 1st and the 2ndaccused are relations, an inference could safely be drawn that thesetwo accused had a common plan to commit this crime. Therefore theconviction of these two accused on the 3rd charge is affirmed and theappeals of these two accused are dismissed.
3rd accused
Although it was Siripala’s evidence that the 3rd accused hit thedeceased and thereafter stabbed him, this evidence has been rightlyrejected by the learned High Court Judge. The learned High Court Judgeappears to have accepted the evidence of the two sisters who wereworking at this field and who arrived at the scene while their brotherwas attacked. According to their evidence the 3rd accused hit the de-ceased with a stick. One of them stated that the 3rd accused hit thedeceased on the head. The three lacerations, namely, injury nos. 4, 6& 10 were found on the head. However the evidence with regard to theattack on the deceased with sticks by all the accused appear to bevague. The medical evidence does not support such.
Even if the court disregards the above evidence, the presence of thisaccused has been well established. There is another piece of evidenceagainst this accused, namely, the recovery of the gun under section 27of the Evidence Ordinance. The gun was marked P1. This accused hadall the reason to take part in this crime, being a brother of John,who was allegedly murdered by the deceased. After the crime wascommitted this accused too had absconded for a period of two days
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and surrendered to the police thereafter. Before passing the sentencetoo, this accused had absconded again and appeared in court on an-other day. The 3rd accused gave no explanation in court with regard tothe incriminating evidence adduced against him. He remained silent.
Alles J in Richard vs. State (supra) at 546 said “that in the absenceof explanation … entitled to draw the reasonable inference from all thecircumstances that his presence at the scene was a “participatorypresence" as distinguished from a mere presence which would haveentitled him to an acquittal". In King vs Endoris (,7,at 499 Soertsz ACJwas of the view that in the circumstances of the case it was essentiallyone in which the third appellant should have given an explanation of hispresence at the scene. In this case the 3rd appellant did not take anactive part in the actual attack on the deceased. He was present at thescene armed with a club at the time two shots were fired by the 1st and2nd appellants and he fled with them after the shooting. “They alsoserve who only stand and wait" has to be regarded as applying not to abystander, who merely shares mentally the criminal intention of others,but to a person whose act of standing and waiting is itself a criminal actin a series of criminal acts done in furtherance of the common intentionof all" Lord Summer in Barendra Kumar Gosh vs. Emperor<ia> cited byAlles J. in Richard vs. State, (supra)
The third accused is a cousin brother of the 1st and the 2nd ac-cused. The third accused was present at the scene of the crime. Evenif the evidence of assault by the 3rd accused on the deceased is notconsidered, the fact of the 3rd accused absconding after the incidentand hiding the gun that was used and the fact of his silence against allthis evidence would make the court draw an inference against the ac-cused with regard to a pre-arranged plan with the 1st and the 2ndaccused. Inference of common intention should never be reached un-less it is a necessary inference deducible from the circumstances ofthe case (Mahabub Shah's). The presence of this accused would nec-essarily amount to a participatory presence. Therefore this appeal hasno merit. Hence this appeal is dismissed.
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Appeals of the 1st, 2nd 3rd accused appellants are dismissed. Theappeals of the 5th, 6th, 7th, 8th & 9th accused are allowed and the 5th,6th, 7th, 8th and 9th accused are acquitted.
BALAPATABENDIJ.—I agree.Appeal of 1,2,3 allowed appeals dismissed appeals of5,6,7,8,9- allowed 5th, 7th, 8th; 9th and acquitted.