Law:

Section:

Penal Code (XLV of 1860)----- ------Ss. 34, 301, 302 do 326­A & B (accused) firing shots with common intention to kill C but actually causing death of D through mistake-No evidence showing which of them caused fatal injuries-Both A & B convicted under S. 302 read with Ss. 34 and 301-High Court while confirming sentence of death upon A reduced that of B to transportation for life-Held : distinction should not be made in matter of sentence. In the present case A & B were charged under section 302/34, Penal Code with having committed the murder of one D. Both the accused were armed with rifles and entertained the common intention to kill C, but through mistake D was shot dead by them. Some of the injuries received by D were sufficient in the ordinary course of nature to cause death. It was not established which of the two accused was responsible for the fatal injuries. The Sessions Judge passed a sentence of death convicting both of them under sections 302/34, Penal Code. The High Court while confirming the sentence of A reduced the sentence of B to one of transportation for life. On appeal by A to the Supreme Court by special leave limited to the question of sentence, it was contended that the common intention to kill C could not by virtue of section 301, Penal Code, be transferred so as to operate in the matter of the murder of D, there being at no time any common intention entertained between A & B to commit the murder of D. Held, that even if the contention were accepted it would not make any substantial difference to the position because in the present case the act of appellant A would fall within section 326, Penal Code, for which the appropriate punishment will be that of transpiration for life, even though they were ultimately convicted of having committed the offence under section 326, Penal Code. The same result could also follow even if the conviction of A under section 302 read with section 34, Penal Code were maintained because on the evidence on record there was nothing which would necessarily lead to the conclusion that it was A who was responsible for inflicting the fatal injuries on D. If it was doubtful as to who out of the two…

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