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PETITIONER: B.   N. SRIKANTIAH & OTHERS

       Vs.

RESPONDENT: THE STATE OF MYSORE

DATE OF JUDGMENT: 14/04/1958

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. BHAGWATI, NATWARLAL H. SARKAR, A.K.

CITATION:  1958 AIR  672            1959 SCR  496

ACT: Murder-Charge  under s. 302 simpliciter-Conviction under  s. 302 /34, when Permissible-Prejudice-Common  Intention-Indian Penal Code (XLV of 1860), ss. 34 and 302.

HEADNOTE: Six persons were charged under s. I43 Indian Penal Code  for being  members of an unlawful assembly the common object  of which  was  to  murder one Anne Gowda.  Five  of  them  were further   charged  under  s.  302  Indian  Penal  Code   for committing murder by intentionally causing the death of Anne Gowda,  and  the sixth was charged under s.  302/109  Indian Penal  Code  for  abetment  of  murder.   The  trial   Court acquitted all the six accused under s. 143, acquitted two of them  but convicted the three appellants under s.  302,  and convicted the sixth accused under s. 302/109.  On appeal the High Court maintained the conviction of the appellants under s. 302 but acquitted the sixth accused under s. 302/109.  It was  contended by the appellant that as the prosecution  had not established which of the appellants had given the  fatal blow   none  of  them  could  be  convicted  under  s.   302 simpliciter  and that as no charge had been framed under  s. 34 they could not be convicted under s. 302/34 Indian  Penal Code : Held,  that the omission to mention s. 34 Indian Penal  Code in the charge could not affect the case unless prejudice was shown  to have resulted in consequence thereof.  The  charge was that the appellants and two others committed the  murder by  intentionally  causing the death of the  deceased.   The appellants  had  notice  that they were  being  tried  as  " sharers-in  the  offence  " and  that  their  liability  was collective and vicarious and not individual.  The appellants had  neither alleged nor shown that the omission to  specify s. 34 in the charge had caused them any prejudice. Common intention is a question of fact and is to be gathered from  the  acts of the parties.  The  evidence  showed  that there  was  preconcert,  that the  appellants  attacked  the deceased  with choppers injuring him on the head, the  neck, the  shoulders and the forearms and that the appellants  not only caused injuries to the deceased at the place where they met  him but they also chased him when he tried to run  away

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to save himself and continued to assault him with the deadly weapons  till he was dead.  The conduct of  the  appellants, the  ferocity of the attack, the weapons used, the situs  of the  injuries and their nature together with the  fact  that there  was preconcert established that the common  intention of the appellants was to murder the deceased.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION:     Criminal Appeals  Nos. 120 & 121 of 1955. 497 Appeals from the judgment and order dated December 16, 1954, of  the Mysore High Court at Bangalore in  Criminal  Appeals Nos. 49 and 50 of 1953 arising out of the judgment and order dated  May  19, 1953, of the Court of the  Third  Additional Sessions Judge at Bangalore in Bangalore Sessions Case No. 7 of 1953. V.   Krishnamurthy   and   R.   Gopalakrishnan,   for    the appellants. G.   Channappa, Assistant Advocate-General for the State  of Mysore and T. M. Sen, for the respondent. 1958.  April 14.  The Judgment of the Court AA-as  delivered by KAPUR  J.-These  two  appeals under Art.  134(1)(c)  of  the Constitution arise out of the judgment and order of the High Court of Mysore at Bangalore confirming the convictions  and sentences  passed upon the appellants who were accused  Nos. 2,  3  and 4 respectively by the Third  Additional  District Judge, Bangalore. Accused  Nos.  1, 5 and 6 who have been  acquitted  and  the appellants were charged as follows: "I.................. hereby charge you A-1 Sanjeeva Rao, A-2 Srikantiah,  A-3 Sidda, A-4 Kidaripathi, A-5 Hanumantha  and A-6 Pujari Anantha as follows: 1.That  you  on or about the 25th day of August  1952  at Mayasandra  in  Magadi  Taluk were members  of  an  unlawful assembly  the common object of which was to murder  deceased Anne Gowda and thereby committed an offence punishable under section  143  of  the  Indian  Penal  Code  and  within  the cognizance of the Court of Sessions. 2.That you A-2 Srikantiah., A-3 Sidda, A-4 Kadaripathi,  A-5 Hanumantha and A-6 Pujari Anantha, on or about the 25tb. day of  August  1952 at Mayasandra in Magadi  Taluk  did  commit murder by intentionally causing the death of Anne Gowda  and thereby committed an offence punishable under section 302 of the  Indian  Penal Code, and within the  cognizance  of  the Court of Sessions. 3.   And that you A-1 Sanjeeva Rao on or about 498 the  25th day of August 1952 at Mayasandra in  Magadi  Taluk abetted the commission of the offence of murder by A-2 to A- 6  which was committed in consequence of your  abetment  and thereby  committed an offence punishable under sections  109 and 302 of the Indian Penal Code, and within the  cognizance of the Court of Sessions." Thus  all  of  them were charged with being  members  of  an unlawful assembly, the common object of which was to  murder the  deceased,  Anne  Gowda.   The  appellants  along   with Hanumantha  accused  No.  5 and Pujari accused  No.  6  were further  charged  with committing murder of  Anne  Gowda  by intentionally  causing his death.  No doubt the charge  does not contain the words " in furtherance of the common  inten- tion  of all " but short of that the charge is as near  them

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as  it  could be.  Accused No. I Sanjeeva  Rao  was  further charged  with  abetting the offence of  murder.   The  trial Court  acquitted all the accused of the charge under s.  143 Indian Penal Code and accused Nos. 5 & 6 of the charge under s.  302 but he convicted accused No. 1 under s. 302/109  and the  appellants  under  s. 302 and  sentenced  them  all  to transportation  for life.  They took an appeal to  the  High Court and the State appealed against the order of  acquittal of  accused Nos. 5 & 6 and the order of acquittal  under  s. 143.  The High Court acquitted accused No. I Sanjeeva Rao of abetment of murder after the matter was referred to a  third judge  under s. 429 of the Criminal Procedure Code as  there was  a difference of opinion between the two judges  of  the Division  Bench  hearing  the appeal and thus  the  case  of abetment  set up by the prosecution failed.  It  upheld  the acquittal  of accused Nos. 5 and 6. The charge  of  unlawful assembly  of which the common object was the murder of  Anne Gowda  the deceased also failed because of the acquittal  of Sanjeeva  Rao  accused No. 1 Hanumantha accused  No.  5  and Pujari  accused  No.  6 thus leaving  only  the  appellants. Their  conviction for an offence under s. 302, Indian  Penal Code  and  the sentence of transportation was  upheld.   The trial Court’s finding against them was-as follows; 499 "  So far as A-2 Srikantiah, A-3 Sidda and  A-4  Kadaripathi alias  Kunta are concerned, there is ample evidence to  show that  they  alone inflicted injuries on  the  deceased  Anne Gowda  and  caused his death.  Thus a prima facie  case  has been made out against them for the murder of Anne Gowda ". The High Court in appeal said:-  "The evidence on the whole is consistent and in fact it  is so  consistent  that  it was being urged on  behalf  of  the accused that each witness was repeating what the other says. Some  of the important witnesses have been mentioned in  the First  Information  Report and the inquest itself  was  over within  24 hours after the incident.  Taking the  consistent evidence of the witnesses and the probabilities of the  case it  has  to be stated that the evidence of  the  prosecution witnesses as regards the incident has to be believed We  have not had the advantage of a critical and  analytical examination of the evidence of the prosecution witnesses  by either of the courts below nor has the evidence against each of  the  appellants  been  collated  and  therefore  it  was necessary for its to examine the evidence in some detail. The evidence of the witnesses for the prosecution shows that the  deceased  Anne  Gowda and the  party  of  Sanjeeva  Rao accused No. I had considerable amount of enmity between each other.   On  the date of the occurrence, i. e.,  August  25, 1952,  the  deceased  had  gone to  Ramanagram  where  in  a Magistrate’s  Court a case had been brought against  him  by accused  No. 1. After the case was over the deceased and  P. W. 18 Gangabyriah who was a co-accused in the case and Putta P. W. 20 who was a witness traveled by the bus which reached a place called Kudur at about 7 p.m. From Kudur the deceased accompanied by his two companions and also P.W. 17 Thimmappa and P.W. 19 Puttarangiah and P.W. 21 Basavalingappa who  had gone for shopping to the shop of P. W. II Subba Rao, started for their village Yollapore.  When they reached the bund  of the  tank  of  Mayasandra, accused Nos.  I  and  5  and  the appellants  came  from  the opposite side.   Accused  No.  I flashed his torch on to the 500 deceased and his companions.  Thereupon appellant No. 1  who is  the  brother of Sanjeeva Rao accused No. 1 gave  a  blow with  his chopper which cut into two the torch which at  the

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time  :was  in the hand of P.W. 18 Gangabyriah  and  on  the instigation  of  accused  No. 1 to  kill  the  deceased  the appellants  started  their attack on him.  Appellant  No.  3 Sidda gave a blow from behind on the right side of the  neck of  the  deceased  with  his  chopper  and  accused  No.   4 Kadaripathi  aimed a, blow on his head but to ward  off  the blow  the deceased raised his hand and the blow fell on  his hand.  The deceased then ran towards the tank chased by  the accused  Nos.  1 and 5 and the appellants.  He fell  into  a shallow  water  pit.  Accused Nos. 5 and 6  who  were  empty handed  are  stated  to  have caught hold  of  him  and  the appellants  gave  five  or six blows to  the  deceased  with choppers.   Accused Nos. 5 and 6 then released him  but  the appellants  continued  the assault with their  choppers  and caused 24 incised injuries.  This story is supported by P.W. 17 Thimmappa, P.W. 18 Gangabyriah, P.W. 19 Puttarangiah  and P.W.  20  Putta and lastly P . W.  21  Basavalingappa.   The First  Information Report which was lodged at about 1  a.m., on  August 26, was made by P.W. 17 Thimmappa and’ the  whole incident  is  there  set out along with  the  names  of  the accused as well as the witnesses. When  the  house  of Appellant No. 3 Sidda  was  searched  a bloodstained chopper M. O. 11 was produced by him before the Panchayatdars.   Similarly  the  house  of  accused  No.   4 Kadaripathi  was  also  searched  and  that  appellant  also produced a chopper there.  As the prosecution has not proved that  any of these choppers was stained with human blood  it cannot get much assistance from this recovery. The  medical witness P.W. 2 , found as many as 24  injuries. Of these injury No. 5 was described as follows:- "A transverse incised wound in front of the neck 5" long  2- 1/2" deep, cutting the skin, muscles, arteries, veins  above the  thyroid cartilage, pharynx and muscles in front of  the vertebral  column.   On the right side the wound  starts  2" below. the lobule of the right 501 ear,  runs to the left and ends 2" below and 1"  behind  the lobule of the left ear". All  the  other injuries were incised varying in  degree  of seriousness.  The medical witness’s opinion was that  injury No.  5 is a fatal injury sufficient to cause death  All  the other injuries taken as whole may be fatal "The  prosecution has  not  proved as to who caused injury No. 5  nor  has  it specified the injuries caused by individual appellants.  The question  then  arises;  what  is  the  offence  which   the appellants  are  guilty  of,  if  any.   Courts  below  have accepted  the testimony of the witnesses  which  establishes that  there was enmity between the parties and that  on  the date  of the occurrence the deceased had gone to  the  Magi- strate’s  Court  at Ramanagram for the case which  had  been brought at the instance of accused No. 1. The evidence  also shows  that  on  that  date appellants 3  and  4  were  seen together at Kudur in front of the shop of P.W. 10 at about 6 p.m. When accused No. 3 was asked by Siddappa P.W. 10 as  to what  had  ’brought him there, his reply was  that   he  was waiting for somebody who was coming by Renuka Bus Service ". The  testimony  of  P.W. 11 on this point  is  that  he  saw accused  Nos. 3 and 4 and another man about 5-30 p.m.  or  6 p.m. in front of his shop.  He asked them why they had come. They replied that "they had come to see some persons coining by  Renuka  Bus"  and there is evidence  to  show  that  the deceased and his two companions had come from Ramanagram  by this Bus Service at about 7 p.m. The evidence of prosecution witnesses  Nos.  17  to 21 also establishes  that  when  the deceased and his party arrived near the bund of the tank the

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party of the accused came towards them.  One of the  accused Sanjeeva Rao (accused No. 1) flashed a torch and the  others started   attacking  the  deceased  with  choppers  at   the instigation  of that accused.  Injuries were caused  on  the head,  the neck and the shoulders or on the right  and  left forearms which must have been caused when the deceased tried to,  save  himself by raising his arm to protect  his  head. The common intention of the 6 502 appellants  is clear from the fact that not only  were  they armed with deadly weapons which they used to cause  injuries to  the deceased at the place where they first met  him  and his companions but they also chased him when he tried to run away  to save himself and all of them  continued  assaulting him  with  these  deadly  weapons till  he  was  dead.   The evidence  further  shows that all of them took part  in  the assault.   There  were  24 injuries on  the  person  of  the deceased  and  of them twenty one were  incised.   They  are either  on his head or the neck or the shoulders and on  the forearms.  All these except perhaps the last are vital parts of the body and anybody who causes injuries with weapons  of the  kind  that the appellants used must be fixed  with  the intention of causing such bodily injury or injuries as would fall within s. 300 of the Indian Penal Code. The  question has then been raised that there was no  charge under s. 34 and therefore the accused cannot be convicted of liability as sharers in an offence by the ’application of s. 34,  i. e., in prosecution of the common intention  of  all. Now intention is a question ,of fact which is to be gathered from the acts of the parties and whoever caused injury No. 5 or  the persons who caused the other injuries on  the  vital parts  of the body could have had no other intention but  of causing the death considering the nature and number of inju- ries and the weapons used. The  omission to mention s. 34 of the Indian Penal  Code  in the charge cannot affect the case unless prejudice is  shown to  have  resulted in consequence thereof.  The  charge  was that  the appellants and others were members of an  unlawful assembly,  the  common  object of which was  to  murder  the deceased.   Although there is a difference in common  object and  common intention, they both deal " with combination  of persons  who become punishable as sharers in an  offence  ", and  a charge under s. 149, Indian Penal Code is no  impedi- ment  to  a conviction by the application of s.  34  if  the evidence   discloses  the  commission  of  the  offence   in furtherance of the common intention of all. In  the  second  charge  it  was  clearly  stated  that  the appellants and accused Nos. 5 & 6 committed the 503 murder by. intentionally causing the death of the  deceased. No  doubt it would have been better if in the charge  s.  34 had  been  specified.  But the mere omission to  specify  it cannot in the circumstances of this case have any effect  as no prejudice has been alleged or shown.  As a matter of fact this  question  was never agitated in either of  the  Courts below.   This Court in Willie (William) Slaney v. The  State of Madhya Pradesh (1) has laid down the law in regard to the effect of a defect in a charge.  In that case the charge was under  s. 302, read with s. 34 and the conviction was  under s.  302, Indian Penal Code.  It was there pointed  out  that procedural laws are designed to subserve the ends of justice and  not  to frustrate them and if the  trial  is  conducted substantially in the manner prescribed by the Code but  some irregularity  occurs  in  the course  of  such  conduct  the

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irregularity  is  curable under s. 537,  Criminal  Procedure Code.   See: Pulukuri Kotayya v. King Emperor- (2).  As  was pointed by Viscount Sumner in Atta Mohammad v. King  Emperor (3): "  In the complete absence of any substantial injustice,  in the  complete absence of anything that outrages what is  due to  natural justice in criminal cases, their Lordships  find it impossible to advise His Majesty to interfere. The object of a charge is to warn the accused person of  the case  he is to answer.  It cannot be treated as if it was  a part of a ceremonial.  Bose J. observed in William  Slaney’s case,  (1)  with  reference to ss. 232 (1) and  535  of  the Criminal  Procedure Code where the words used are "  by  the absence of a charge " in s. 232(1) and no charge was  framed " in s. 535: "  We  see no reason for straining at the meaning  of  these plain and emphatic provisions unless ritual and form are  to be  regarded as of the essence in criminal trials.   We  are unable to find any magic or charm in the ritual of a charge. It  is the substance of these provisions that count and  not their  outward form.  To hold otherwise is only  to  provide avenues of escape for the guilty and afford no protection to the innocent." (1) [1955] 2 S.C.R. 1140, 1165. (2) (1946) L.R. 74 I.A. 65, 75. (3) (1929) L.R. 57 I.A. 71, 76. 504 The  imperfection  in  the charge  is  curable  provided  no prejudice has been shown to have resulted because of it. The appellants  had  notice  that they were  being  tried  as  " sharers in the offence "’ and their liability was collective and  vicarious  and  not individual.  No  doubt  they,  were charged,  under s. 149 of the Indian Penal Code  with  being members  of an unlawful assembly the common object of  which was  murder of the deceased but they were also charged  that they  with  accused  Nos.  5 & 6  had  committed  murder  by intentionally  causing  the  death  of  the  deceased.   The prosecution  led evidence to show that at least two  of  the appellants  were waiting for the arrival of the evening  Bus by which the deceased and his companions were traveling  and that  the  appellants and others met them at  the  bund  and there was a concerted attack by them followed by a chase and assault  with  choppers by all the appellants  resulting  in death  because of 24 injuries of a serious nature  given  by the   appellants  collectively.   Of  these  injury  No.   5 individually and others cumulatively were sufficient in  the ordinary  course  of nature to cause death.  Section  34  is only  a rule of evidence and does not create  a  substantive offence.    It   means,  that  if  two   or   more   persons intentionally  do a thing jointly it is just the same as  if each  of them had done individually.  As the  Privy  Council have pointed out in Barendra Kumar Ghosh v. King Emperor (1) "  Sect. 34 deals with the doing of separate acts,  similiar or diverse, by several persons, if all are done in  further- ance  of a’ common intention, each person is liable for  the result of them all, as if he had done them himself.... The appellants’ defence was a total denial of taking part in the  offence.   When examined under s. 342 of  the  Criminal Procedure  Code  they stated that the prosecution  case  was false.  They did not state anything indicative of  prejudice having resulted as a consequence of a defect in the  charge. To  every  question put to them, their reply  was  that  the prosecution  evidence was false.  One such question and  the answer to it was: Q.   " The witnesses have deposed that at about

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(1) (1924) L.R., 52 I. A.40, 51. 505 8-30  on the night of 25th August, 1952, you along with  the accused  persons  1,  3, 4 and 5 came  upon  the  tank  bund holding  a  matchu in the hand in order to hit  Anne  Gowda. What do you say regarding this matter ? A.This is absolutely false." In answer to another question as to whether he had assaulted the deceased with a chopper, appellant No. 1 stated that  he never  saw  the deceased on that date and the  evidence  was false  and  the other two appellants just  stated  that  the evidence  for  the prosecution was false.  The form  of  the questions  indicates  notice  to the  appellants  that  the, prosecution  was  relying on collective  responsibility  and their  -having acted with a common intention.  They did  not plead  prejudice  due  to the want of s. 34  in  the  charge itself.   The judgment of the High Court does  not  indicate that any such objection was taken before it. The grounds of appeal taken in the High Court are not before us, but their application under Art. 134 (1)(c) made to  the High Court shows that objection was taken as to the  failure to specify s. 34 in the following words: " There is no charge framed in the case against accused 2, 3 and  4, 5 and 6 for ail offence under Section 302 read  with Section 34 of the Indian Penal Code.  It was, therefore, not a case in which accused 2, 3, 4 alone could be convicted  of the  charge  under Section 302 by resorting to the  rule  of common  intention under Section 34 of the Indian Penal  Code for two reasons, viz., (a)  There is no charge under Section 34 of the Indian Penal Code; (b)  If it is implied’, Accused 5 and 6 are out of the grove and  there is no evidence of any prior conspiracy  conducive to  that requisite inference.  Further it will be seen  from the  evidence  of the eye-witnesses it is  not  possible  to predicate  which blow caused by which instrument,  by  which accused  resulted  in death.  Therefore it is a  case  which accused 2, 3 and 4 are charged on individual  responsibility alone for having caused murder punishable under Section 302, Indian 506 Penal Code individually.  Neither the trial Court nor it  is submitted  the High Court has considered this aspect of  the matter  and has considered the individual responsibility  of accused 2, 3 and 4 for their individual acts" and  in  their  grounds of appeal filed in  this  Court  the language is the same.  Nowhere has it been alleged that as a result of omission to specify s. 34 in the charge there  was any prejudice and nothing is disclosed whether by the  trend of  cross-examination or by anything on the record  to  show that  the  appellants were misled by this  omission  in  the charge.    No  case  of  prejudice  has  been   alleged   or established  and there are no-facts on the consideration  of which  the conclusion could be reached that  the  conviction under s. 302 is vitiated as a result of prejudice. This  Court in Rawalpenta Venkulu v. The State of  Hyderabad (1), held that the omission to add s. 34 of the Indian Penal Code in a charge had only an academic significance where the accused had notice as to what they were being charged  with. That was a case where in pursuance of a conspiracy to commit murder  the  accused  after locking the room  in  which  the deceased  was  sleeping set fire to it and thus  caused  his death.   The  charge against the accused  persons  was  only under  s. 302 without s. 34.  On the evidence the  intention to  kill was held proved as each one of the  appellants  had

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actively contributed to setting fire to the room by  putting lighted matches to it while the deceased had been trapped in it  and  "  each  one of them  therefore  severally  and  in pursuance  of  the common intention brought about  the  same result  by  his own act." In the trial  Court  the  Sessions Judge had explained the charge as follows: "  You  are  charged  of  the  offence  that  you  with  the assistance   of  the  other  present  accused  with   common intention................................" From this the Court came to the conclusion that the  accused had  clear  notice  that they were being  charged  with  the offence  of committing murder in pursuance of  their  common intention and, therefore, the omission (1)  A.I.R. 1956 S.C. 171, 507 of  s. 34 in the charge had only academic  significance  and had  in no way misled the accused.  Thus the accent  was  on whether  the  accused were misled or not  or  any  prejudice resulted  from the omission in the charge and on  the  facts and circumstances of that case this Court was of the opinion that they were not and there was no prejudice. Chikkarange Gowda v. State of Mysore (1), was relied upon by the  appellants’ counsel.  In that case the accused  persons were charged as follows: "  That  you  on or about the 18th day of  April,  1951,  at Talkad   were  member  of  an  unlawful  assembly   and   in prosecution of the common object or intention or such as you know  to  be likely to be committed in prosecution  of  that object or intention, namely, in killing Putte Gowda,  caused the  death  of  Putte Gowda and Nanje  Gowda,  and  you  are thereby  under s. 149 read with s. 34 Penal Code, guilty  of causing  the  said murders, an offence punishable  under  s. 302,  Penal Code and within the cognizance of the  Court  of Sessions." The  Sessions  Judge  found that the common  object  of  the unlawful  assembly or the intention of the accused  was  not merely  to  assault Putte Gowda but also to kill  him.   The High  Court  on appeal held that there was  no  evidence  to prove  or  establish any plan for concerted  action  or  any common  object to kill that individual.  But it was  of  the opinion  that the people of the locality were  annoyed  with Putte Gowda and the common object of the assembly as a whole was  to give severe and open chastisement only.  The  person who  was  stated to, have given the fatal  injury  to  Putte Gowda  was  acquitted  by the High Court on  the  ground  of insufficiency  of  evidence and the other two  accused  were held guilty for severely assaulting the deceased and  guilty of  murder.   In  this Court it was contended  that  on  the findings  given  by the High Court in regard to  the  common object  of  the unlawful assembly, the conviction  under  s. 302/34  or s. 149 was unsustainable and that the  manner  in which  the  charges under s.. 149 and 34 were  mixed  up  it could not be said that the (1)  A.I.R. 1956 S.C. 731,                      508 accused had a reasonable opportunity of meeting the  charges against them.  This Court observed that " on the finding  of the High Court none of the members of the unlawful  assembly had the intention of killing Putte Gowda." It also held that the  way in which the charge was framed gave the accused  no effective  notice  of the case they had to meet.   In  these circumstances the case of separate common intention of three persons  was  distinct from the common object of  the  other members  of  the  unlawful  assembly  and,  therefore,   the question was not whether the specific charge under s. 34 was

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or was not necessary but whether a reasonable opportunity of meeting  the case of some of the accused having  a  separate common  intention  different  from that  of  others  of  the unlawful assembly, was given and as the finding was that  it had  not  been given the conviction of the two  accused  for offence  under s. 302/34 was unsustainable.  That  case  has not  laid  down  a  rule  different  from  Willie  (William) Slaney’s case (1).  It merely emphasises that in the case of imperfection of a charge if prejudice is shown a  conviction of  an accused would be insupportable.  In the present  case the common intention of the appellants is indicated by their conduct,  the ferocity of the attack, the weapon  used,  the situs  of  the  injuries  and their  nature  and  there  was preconcert  as  shown by the evidence of P. Ws. 10  and  11. They have therefore been rightly convicted of murder as sharers ill the offence We would, therefore, dismiss these appeals.               Appeals dismissed. (1) [1955] 2 S.C.R. 1 140, 1 1165. 509