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was murdered, It was held that though there was no evidence as to who
actually committed the murder, the four persons having taken the woman
out with the knowledge and with the purpose that one of them should
murder her, the murder was committed in furtherance of the common
intention of all, and all the four accused were guilty of murder. On the
other hand, four persons attacked another with lathis with the result that
the latter received a single blow on his head which caused his death due to
fracture of the skull. There was no other grievous hurt on his body, and
there was no evidence as to which of the assailants had struck the fatal
blow. It was held (1) that it was impossible to hold that the assailants
had any common intention to cause death, nor could it be said that each
one* of them knew that death was likely to be caused; (2) that the common
intention of the assailants was to give the deceased a good thrashing and
they must have known that grievous hurt was likely to be caused; (3) that
as it was not known which of the assailants had struck the fatal blow, they
could only be convicted of causing grievous hurt.-0 In a case2l where a
sudden altercation took place between the complainant and one of the three
accused, all the accused beat the complainant in a fit of anger and without
any prearranged plan with the result that one of them caused grievous hurt
to the complainant. There was no evidence on record as to which of them
caused the grievous hurt. It was therefore held that section 34 of the
Indian Penal Code being inapplicable to the case none of the accused could
be convicted under section 325, I.P.C., but each one of them could be con-
victed under section 323, I.P.C.


Sometimes the prosecution sets up a theory that the victim, after
receiving mortal injuries involving a vital organ, such as the brain, was
able to speak and mentioned or wrote down the name or names of his
assailant or assailants. Similarly, the defence may try to prove an alibi
if the accused was seen with the victim a moment before his death at a
particular spot and the victim had afterwards moved to some other place
on the ground that he could not have walked after having received the fatal
injury. In both these cases the medical witness is required to state whether
a person is capable of speaking, walking or performing any other volitional
act, which would involve bodily and mental power for some time after
receiving a fatal injury. A very guarded reply should be given, seeing that
a few cases have been recorded in which the victims were able to perform
some act as that of walking or climbing requiring some exertion, and
survived for some hours or days after receiving very grave injuries, which
would ordinarily have proved rapidly fatal. ,

Cases.—1. One evening, while walking in Bow Bazar in Calcutta, a young Hindu,
aged about 18 years, was struck on the head with a piece of wood and knocked down
by the violence of the blow. He got Tip and, after some delay, proceeded to the police-
station in. Lower Circular Road and laid a charge against his assailant, whose name was
not known, but who was arrested and identified by some of the eye-witnesses. From
the police-station he walked to the Medical College Hospital, and was then found to have
sustained a lacerated wound on the scalp, situated on the left side of the vertex in the
frontal reaion. The wound was dressed, and the injured person went to a friend's
house, where he spent the night. Next morning he got into a hackney carriage to go
to his uncle ; during the drive he began to show signs of compression, and becomiiig
unconscious, was removed to the Campbell Hospital, where he died. Post-mortewt
examination revealed, besides the external wound of the scalp, a fracture which extend-
ing vertically through the temporal region and through the middle fossa ol tihe
terminated at the posterior part of the sphenoid.—Iitd. Med. Gaz., Jan. 1894, p. 32*

20.   26 Criminal Law Jour,, 1925, p. 381.

21.   Gorey and Bhagwwn and three others v. Rex, Allah. High Crt Cr. &$®ml Ho,
of 1947 ; 50 Cr. Laze JM 1949, p. 250.