[2010] 4 MLJ A Low Kian Boon & Anor v Public Prosecutor (Heliliah FCJ) 481 In this context, the words ‘criminal act’ in s 34 are to be taken in the broadest possible sense, as s 33 states that an act includes a series of acts. Beg J in Om Prakash stated that the words would cover any word, gesture, deed or conduct of any kind on the part of a person, whether active or passive, which tends to support the common design. B C D E [66] The Privy Council in Mahbub Shah v Emperor AIR 1945 PC 118 considered the term ‘common intention’ as distinguished from ‘same intention’. If the person, party to prior planning is not present to participate in the action, his case cannot be covered under s 34 of the Penal Code. In Sereekanlal Ramayya Munipalli v State of Bombay AIR 1955 SC 287, the Supreme Court stated: Lord Sumner’s expressed in the Miltonic verse: ‘They also serve who only stand and wait’ a fortiori embraces cases of common intention, instantly formed triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile needs, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or cooperation. No pinery justice niceties can be pressed into service to nullify or jettison the plain punitive purpose of Penal Code. [67] After having given consideration to the elucidatory interpretation given to the words in s 34 we are in agreement with the determination pointedly made by the COA where it is pronounced that: F G H I On the facts and circumstances of the present case, we are satisfied as indeed the learned trial judge was that the first and fourth accused committed the offence of murder with common intention. Their joint presence at the scene and their participation to be inferred from the injuries inflicted on the deceased coupled with their flight from the scene reasonably support the existence of a common intention. We are conscious that there authorities which state that mere flight or absconding from the scene of the crime is insufficient to infer guilty intention. But if you look all those cases you will find that in each of them flight was the only circumstance relied upon. That is not so in the present case. There are other facts and circumstances which must be taken together with the flight of both accused from the scene of the crime. [68] In the instant appeal that HC judge ruled that the evidence adduced by the prosecution led to the inference that the appellants were in the house. The HC also accepted the evidence of SP17, SP18, SP23 and the unchallenged findings on the DNA. However, on the issue of common intention and intention pursuant to s 300 his own inferences on what could not have been the intention of the appellants were not found in the evidence.