Pandurang, Tukia and Bhillia Vs. The
State of Hyderabad  INSC 116 (3 December 1954)
BOSE, VIVIAN MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION: 1955 AIR 216 1955 SCR (1)1083
Indian Penal Code (Act XLV of 1860), s.
34-Prior concertCommon intention-Same or similar intention-Distinction between.
It is well-settled that common intention in
s. 34 of tile Indian Penal Code presupposes prior concert. It requires a
prearranged plan because before a man can be vicariously convicted for the
criminal act of another, the act must have boon done in furtherance of the
common intention of them all. Accordingly there must have been a prior meeting
of minds. Several persons can simultaneously attack a man and each can have the
same intention, namely the intention to kill, and each can individually inflict
a separate fatal blow and yet none would have the common intention required by
the section because there was no prior meeting of minds to form a pre-arranged
plan. In a case like that, each would be individually liable for whatever
injury he caused but none could be vicariously convicted for the act of any of
the others; and if the prosecution cannot prove that his separate blow was a
fatal one he cannot be convicted of the murder however clearly an intention to
kill could be proved in his case.
Care must be taken not to confuse same or
similar intention with common intention; the partition which divides their
bounds is often very thin, nevertheless the distinction is real and
substantial, and if overlooked will result in miscarriage of justice.
The plan need not be elaborate, nor is a long
interval of time required. It could arise and be formed suddenly, But there
must 139 1084 be pre-arrangement and premeditated concert. It is not enough, to
have the same intention independently of each other.
The inference of common intention should
never be reached unless it is a necessary inference deducible from the
circumstances of the case. It is a question of fact in every case and however
similar the circumstances, facts in one case cannot be used as a precedent to
determine the conclusion on the facts in another. All that is necessary is
either to have direct proof of prior concert, or proof of circumstances which
necessarily lead to that inference, or, in other words, the incriminating facts
must be incompatible with the innocence of the accused and incapable of explanation
on any other reasonable hypothesis.
When appellate judges, who agree on the
question of guilt differ on that of sentence, it is usual not to impose the
death penalty unless there are compelling reasons.
Barendra Kumar Ghosh v. King-Emperor (
L.R. 52 I.A. 40), Mahbub Shalt v. King-Emperor ( L.P.72 I.A. 148) and
Mamand v. Emperor (A.I.R. 1946 P.C. 45), referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 91 to 93 of 1954.
Appeals by Special Leave granted by Supreme
Court on the 18th January, 1954 from the Judgment and Order dated the 18th
June, 1953 of the High Court of Judicature at Hyderabad in Confirmation Case
No. 376/6 of 1952-53 and Criminal Appeals Nos.394/6, 395/6 and 392/6 of 1952-53
arising out of the Judgment and Order dated the 2nd June, 1952 of the Court of
the Sessions Judge at Bidar in Sessions Case No. 9/8 of 1951-52.
J. B. Dadachanji and Rajinder Narain, for the
(In Criminal Appeal No. 91 of 1954).
N. C. Chakravarty, for the appellants. (In
Criminal Appeals Nos. 92 and 93 of 1954).
P. A. Mehta and P. G. Gokhale, for the
December 3. The Judgment of the Court was
delivered by BOSE J.-Five persons including the three appellants, were
prosecuted for the murder of one Ram-chander Shelke. Each was convicted and
each was 1085 sentenced to death under section 302 of the Indian Penal Code.
The appeals and the confirmation proceedings
in the High Court were heard by M. S. Ali Khan and V. R. Deshpande, JJ.
They differed. The former considered that the
convictions should be maintained but was of opinion that the sentence in each
case should be commuted to imprisonment for life. The latter favoured an
acquittal in all five cases. The matter was accordingly referred to a third
Judge, P. J. Reddy, J.
He agreed with the first about the
convictions and adjudged all five to be guilty under section 302. On the
question of sentence he considered that the death sentences on the three
appellants, Pandurang, Tukia and Bhilia, should be maintained and that those of
the other two should be commuted to transportation for life.
It seems that the opinion of the third Judge
was accepted as the decision of the Court and so the sentences suggested by him
were maintained as well as the convictions.
All five convicts then applied to the High
Court for leave to appeal. The petition was heard by Ali Khan and Reddy, JJ.
and they made the following order:
"The circumstances of the crime in this
case were such that a brutal murder had been committed and sentence of death
was the only one legally possible for the Sessions Judge to have passed and it
was confirmed by the High Court".
Leave to appeal was refused.
Pandurang, Tukia and Bhilia, who were
sentenced to death, applied here for special leave to appeal. Their petition
was granted. The other two have not appealed.
The prosecution case is this. On 7-12-1950,
about 3 o'clock in the afternoon,, Ramchander Shelke (the deceased) went to his
field known as "Bhavara" with his wife's sister Rasika Bai (P.W.1)
and his servant Subhana Rao (P.W.7). Rasika Bai started to pick chillies in the
field while Ramehander went to another field "Vaniya-che-seth" which
is about a furlong away. We gather that this field is near a river called 1086
Papana. Anyway, Rasika Bai heard shouts from that direction, so she ran to the
river bank with Subhana and they both say that they saw all five accused
attacking Ramchander with axes and sticks.
Two other persons, Laxman (P.W.6) and Elba
(P.W.5), who were in the neighbourhood, also heard the cries and ran to the
spot. They also say they witnessed the assault and name all five accused. The
former has a field near by and was working in it; the latter was a passer-by.
Rasika Bai shouted out to the assailants not
to beat Ramchander but they threatened her and then ran away.
Ramehander died on the spot almost
There are four eye-witnesses, and the main
question we have to consider is whether they can be believed. Ordinarily, we
would not have enquired into questions of fact but as three persons have been
sentenced to death on the opinion of the third Judge, despite the opinion of
one that the death sentence should not be imposed and of the other that the
appellants are not guilty and so should be acquitted, we have deemed it
advisable to examine the evidence.
Two of the eye-witnesses were considered
unreliable by Reddy, J. in the High Court, so we will omit them from
consideration and concentrate on the other two, Rasika Bai (P.W.1) and Subhana
(P.W.7). Both give substantially the same version of what they saw of the
assault. They heard Ramehander's cries from the direction of the river bank and
rushed there. They say they saw all five accused striking him, the three
appellants Pandurang, Tukia and Bhilia with axes, the other two, who have not
appealed, with sticks. It is said that there is some discrepancy between Rasika
Bai's statement in the Sessions Court and in the Committal Court about the
order in which the blows were given and their number. Ali Khan, J. and Reddy,
J. considered this unimportant and so do we. The important thing is that both
witnesses are agreed on the following points(1) that Tukia struck Ramchander on
1087 Rasika Bai adds that he also struck him
on the head;
(2) that Pandurang hit him on the head;
(3) that after these blows Ramchander fell
down and then Bhilia hit him on the neck.
Subhana does not say that the other two
struck any particular blow. Rasika says that one of them, Nilia, hit Ramchander
on the thigh with his stick and assigns no particular blow to the other.
Rasika Bai's version is that on seeing the
assault she called out to the accused not to hit but they " raised their
axes and sticks" and threatened her, and then ran away. Subbana merely
says that they ran away.
After this all the accused absconded. They
were arrested on different dates and were committed to trial separately. The
dates of arrest and committal respectively in the case of each are as follows:Bhilia
9-1 -1951 and 14-6-1951 Tukia 13-10-1951 and 10-1-1952 Pandurang 31-8 -1951 and
10-1-1952 Tukaram 13-4 -1951 and 29-9-1951 Nilia 13-10-1951 and 10-1-1952 The
main attack on this evidence was directed to the fact that neither the accused
nor the eye-witnesses are named in the First Information Report. According to
the prosecution, the report was made in the following circumstances.
Rasika and Subbana say that after the assault
they went back to the village and told Rasika's sister Narsabai, P.W. 2 (the
deceased's widow) what they had seen. Narsabai says that they disclosed the
names of the assailants at that time.
From here we go to the Police Patel who lives
in a neighbouring village one mile away. He is Mahadappa (P.W.
9). He says that he was standing outside his
house in his own village when the sun was setting and saw Krishnabai, the
mother-in-law of the deceased, crying as she passed by outside his house. He
asked her what was wrong and she told him that her sonin-law had been killed.
On hearing this he wrote out 1088 a report, Ex. No. 4, and sent it to the
Police Station at Udgir which is about six miles from the scene of the murder.
The First Information Report was recorded on
the basis of this report at 10 o'clock the next morning.
Now nobody tells us who carried the report to
the Police Station. It is written on a printed form and is signed by the Police
Patel. Opposite the column headed "Name and address of the-complainant or
informant" is entered "Tukaram s/o Panda Sheolka". The
Sub-Inspector, who wrote out the first information report on the basis of this
report, entered the following in it:
"I am to submit that today a report
dated 7-12-1950 from the Police Patel, Neemgaon village, has been received
stating that (1) Tukaram, s/o Panda Sheolka, r/o Neemgaon village, came and
stated that on 7-12-1950 Ramchander, s/o Govind Reddy was murdered, etc".
The Police Patel tells us that this Tukaram
is a cousin of the deceased. He also says that"Tukaram, whose name is
entered in column No. 2, is not the informant but is the complainant in this
case. Tukaram had not given any written complaint to me. He had not given oral
information to me. When I saw Krishnabai weeping and going, I did not know
where Tukaram was. I do not know whether Tukaram was present in the village on
that day or not".
This does shroud the matter in mystery but
the fact that the report was made is, we think, beyond dispute, also that it
was made about 10 o'clock the following morning. It is to be noted that the
SubInspector does not say that Tukaram brought the report to him but that Ex. 4
(the report received from the Police Patel) states that Tukaram gave the Police
Patel the information. In that he is not right (though the mistake is natural
enough), because Ex. 4 merely places Tukaram's name opposite the printed column
headed "complainant or informant". That leaves the matter equivocal
but in view of what the Police Patel tells us, we think that he did mean to
convey that 1089 Tukaram was the complainant, probably because he did not want
to enter a woman's name and so picked on the nearest male relative. We see no
reason to doubt his statement. He says he did not know any names at that time;
and that is evident from the report. But what the learned counsel for the
appellants says is that he saw Narsabai on the evening of the murder and as she
did not give him any names it is evident that no one knew who the assailants
were and that therefore the accusation made against the accused was a
subsequent concoction and that it was for that reason that they waited till the
next morning before reporting the matter to the police.
The Police Patel Mahadappa admits that he
went to the scene of the occurrence the same night and that he stayed there the
whole night. He also admits that he saw Narsabai there but says he did not
speak to her. We have no doubt that he learned the names of the assailants when
he went there but this was after he had sent his report. There is some mystery
about the report. It did not reach the Police Station till 10 A.M. the next day
though it was written about sunset the evening before, but as we do not know
who took it and why he delayed it is idle to speculate. What is certain is that
there was no point in sending off a report without names the next morning if
the idea of delay was to concoct a story and implicate innocent persons. They
would either have hit on the names by then or would have waited a little longer
until they made up their minds about the story they intended to tell. The
haphazard way in which the report was written and dispatched indicates rustic
simplicity rather than clever and well planned deceit. It has to be remembered
that the deceased left no male relatives except this cousin Tukaram, about whom
the Police Patel speaks, and his father Pandu, and though cause for enmity
between Ramchander and three of the appellants is disclosed, there is nothing
to connect this Tukaram or his father Pandu with the quarrel; and no one
suggests that anybody else bore them a grudge. We think it unlikely that these
three women, Rasikabai, Narsa1090 bai and Krishnabai, would have been capable
of concocting this elaborate story and of influencing the Police Patel to stay
his hand till they bad thought of a suitable tale and found likely victims for
their plot. Moreover, the whole village probably turned out as soon as the news
spread; in any case the witnesses are agreed that there was a large crowd
there. We think it would have been easy to find many persons to say that though
they asked Rasikabai and Subhana and Narsabai and others present to tell them
what had happened, nobody could because no one knew. It would be ridiculous to
suppose that the whole village bore the accused a grudge and joined in an
elaborate conspiracy against them. In the circumstances, we think Mahadappa
told the truth. The absence of the names in the report is therefore not of much
consequence in this case especially as the names were disclosed in full at the
time of the inquest.
All the witnesses who speak about this are
agreed on that point.
Once that hurdle is surmounted, there is very
little else to criticise in the evidence of Rasikabai and Subhana, bar
unimportant discrepancies and the fact that they have made a few small and
unimportant contradictions between their testimony in court and some of their
numerous earlier statements. There were three sets of committal proceedings,
and of course the usual questioning by the police and then the proceedings in
the Sessions Court, so it is not surprising, that these simple rustics should
get confused and not remember in minute detail exactly what they had said from
stage to stage. But the major part of their story hangs together remarkably
well despite the many attempts to trip them in cross-examination in the various
courts. As Reddy, J. has dealt with these discrepancies in detail, we need not
go over it all again.
The injuries shown in the Inquest Report and
the postmortem report do not tally. It is questionable how far an inquest
report is admissible except under section 145 of the Indian Evidence Act but we
do not regard the difference as of value so far as the appel1091 lants are
concerned; at best it could only have helped Tukaram and Nilia who have not appealed.
The Inquest Report shows eight injuries. The
first four are incised wounds and tally with the evidence given by the
witnesses. The remaiding four are described as "blue and black
marks". The postmortem mentions the first four but not the others. The
doctor was recalled by the High Court and be gives some sort of explanation
about postmortem stains on the body which we do not think is satisfactory, but
the utmost this shows is that no stick blowswere found on the body and that we
are prepared to accept.
On a careful consideration of the evidence we
think Rasika and Subhana are telling the truth and that they can be relied on.
We will not rely on the other two witnesses. We are prepared to disregard the
evidence of Rasika and Subhana in so far as they say that Tukaram and Nilia
also beat Ramchander because the medical evidence does not disclose any
injuries which could have been caused by a stick or sticks. As a matter of fact
Subhana does not ascribe any particular blow either to Tukaram or to Nilia
though he does describe in detail what the other three did. All be says about
Tukaram and Nilia is that"The accused present were striking Ramchander;
Pandurang, Bhilia and Tukia were holding axes. Tukaram and Nilia had sticks in
This sort of omnibus accusation is not of
much value, and Rasikabai is not much better though she does say that Nilia bit
Ramchander on the thigh. Except for this, all she says is that "We saw the
accused present striking Ramchander Shelke".
We think Rasika and Subhana are telling the
truth when they say that these two accused were also there but we think that
because of that they think they must have joined in the attack and so have
added that detail to their story. It is also possible that Nilia did hit out at
Ramchander but that the blow did not land on his body. In any case, they only
140 1092 had sticks in their hands which have not even been conceded the
dignity of lathis. So the part they played was negligible.
We have looked into their cases to this
extent so that we can set them on one side in determining who was responsible
for the remaining injuries and also because the part they played will be
necessary in determining the extent of the common object or intention, if any.
The medical evidence shows that the injury
that caused death was the one on the neck. All the eyewitnesses are agreed that
Bhilia was responsible for that. We refer to the other eye-witnesses here to
show that there is no discrepancy on this point, but we only rely on Rasikabai
and Subhana for determining the fact Bhilia was directly charged with the
murder and the injury on the throat is ascribed to him in the charge. His
conviction cannot therefore be assailed on any of the technical points which
arise in the case of the other two. We uphold his conviction under section 302
of the Indian Penal Code.
The injury on the throat having been
accounted for, we are left with three. They are(1) an incised wound on the
scalp above the left ear, (2)an incised wound on the scalp, central part,and (3)a
lacerated wound on the left side of the face which crushed the upper and lower
jaws including the lips and teeth.
The doctor says that (1) and (2) could not
have caused death but that the third could. Rasikabai and Subhana are agreed
that the only person who struck on the cheek is Tukia.
Rasikabai adds that he also hit Ramchander on
That means that Tukia and Pandurang caused
the two non-fatal injuries on the head, one each, and that Tukia alone caused
the fatal one on the cheek. Tukia's conviction under section 302 of the Indian
Penal Code was therefore jusified.
In Pandurang's case we are left with the
difficult question about section 34 of the Indian Penal Code.
1093 But before we deal with that, we will
set section 149 of the Indian Penal Code aside. There is no charge under
section 149 and, as Lord Sumner points out in Barendra Kumar Ghosh v.
King-Emperor(1), section 149, unlike section 34, creates a specific offence and
deals with the punishment of that offence alone. We would accordingly require
strong reasons for using section 149 when it is not charged even if it be
possible to convict under that section in the absence of a specific charge, a
point we do not decide here. But that apart, there is, in our opinion, no
evidence here which would justify the conclusion of a common object even if one
had been charged.
There is some vague evidence to the effect
that there had once been a dacoity at Ramchander's house and that he suspected
"the "accused" and reported them to the police who arrested
them, but nothing came of it and they were later released. This is put forward
as one of the grounds of enmity and to show why all five joined in the attack.
But in the absence of anything specific we are not prepared to act on such a
vague allegation especially about the persons who are said to have been
wrongfully blamed. What, however, is more specific is this: Ramchander bought a
field called Hatkerni at Neemgaon from one Shivamma Patelni about a year before
the murder. Narsabai tells us that the three accused Nilia, Bhilia and Tukia,
all of whom are Lambadas used to live in that field. When Ramchander bought it
he turned them out and she says that gave them cause for enmity against him.
Now even if it be accepted that this evidence
is indicative of prior concert, it only embraces the three Lambadas, Nilia,
Bhilia and Tukia. Pandurang, who is a Hatkar, is not included. As this is the
only evidence indicating a common purpose, and as we know nothing about what
preceded the assault (for the witnesses arrived after it bad started), we
cannot gatber any common object from the fact that Pandurang, though armed with
an axe, only inflicted a light blow on the scalp which did not break any of the
(1) (1924) L.R 52 I.A. 40, 52, 1094 fragile bones in that region and from the
fact that two others who were lightly armed with what have been called
"sticks" inflicted no injuries at all. Section 149 is therefore out
of the question.
Turning now to section 34, that was not
charged in Pandurang's case but we need not consider whether such an omission
is fatal because even if it had been charged there is no evidence from which a
common intention embracing him can legitimately be deduced.
As we have just said, the witnesses arrived
at a time when the beating was already in progress. They knew nothing about
what went before. We are not satisfied that Tukaram is proved to have done
anything except be present, and even if it be accepted that Nilia aimed a blow,
at Ramchander's thigh be was so half hearted about it that it did not even hit
him; and in Pandurang's case, though armed with a lethal weapon, he did no more
than inflict a comparatively light head injury. It is true they all ran away
when the eyewitnesses arrived and later absconded, but there is nothing to indicate
that they ran away together as a body, or that they met afterwards. Rasikabai
says that the "accused" raised their axes and sticks and threatened
her when she called out to them, but that again is an all embracing statement
which we are not prepared to take literally in the absence of further
particulars. People do not ordinarily act in unison like a Greek chorus and,
quite apart from dishonesty, this is a favourite device with witnesses who are
either not mentally alert or are mentally lazy and are given to loose thinking.
They are often apt to say "all" even when they only saw
"some" because they are too lazy, mentally, to differentiate. Unless
therefore a witness particularises when there are a number of accused it is
ordinarily unsafe to accept omnibus inclusions like this at their face value.
We are unable to deduce any prior arrangement to murder from these facts.
Now in the case of section 34 we think it is
well established that a common intention presupposes prior concert. It requires
a pre-arranged plan because before a man can be vicariously convicted for the
1095 criminal act of another, the act must have been done in furtherance of the
common intention of them all: Mahbub Shah v. King-Emperor(1). Accordingly there
must have been a prior meeting of minds. Several persons can simultaneously
attack a man and each can have the same intention, namely the intention to
kill, and each can individually inflict a separate fatal blow and yet none
would have the common intention required by the section because there was no
prior meeting of minds to form a pre-arranged plan. In a case like that, each
would be individually liable for whatever injury he caused but none could be
vicariously convicted for the act of any of the others; and if the prosecution cannot
prove that his separate blow was a fatal one he cannot be convicted of the
murder however clearly an intention to kill could be proved in his case:
Barendra Kumar Ghosh v. KingEmperor(2) and Mahbub Shah v. King-Emperor(1). As
their Lordships say in the latter case, "the partition which divides their
bounds is often very thin: nevertheless, the distinction is real and
substantial, and if overlooked will result in miscarriage of justice".
The plan need not be elaborate, nor is a long
interval of time required. It could arise and be formed suddenly, as for
example, when one man calls on bystanders to help him kill a given individual
and they, either by their words or their acts, indicate their assent to him and
join him in the assault. There is then the necessary meeting of the minds.
There is a pre-arranged plan however hastily
formed and rudely conceived. But pre-arrangement there must be and premeditated
concert. It is not enough, as in the latter Privy Council case, to have the
same intention independently of each other, e.g., the intention to rescue
another and, if necessary, to kill those who oppose.
In the present case, there is no evidence of
any prior meeting. We know nothing of what they said or did before the
attack-not even immediately before. Pandurang is not even of the same caste as
the others, (1)  L.R. 72 I.A. 148, 153, 154.
(2) [19241 L.R. 52 I.A. 40, 49.
1096 Bhilia, Tukia and Nilia are Lambadas,
Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and
arrangement can, and indeed often must, be determined from subsequent conduct
as, for example, by a systematic plan of campaign unfolding itself during the
course of the action Which could only be referable to prior concert and prearrangement,
or a running away together in a body or a meeting together subsequently. But,
to quote the Privy Council again, "the inference of common intention
should never be reached unless it is a necessary inference deducible from the
circumstances of the case".
But to say this is no more than to reproduce
the ordinary rule about circumstantial evidence, for there is no special rule
of evidence for this class of case. At bottom, it is a question of fact in
every case and however similar the circumstances, facts in one case cannot be
used as a precedent to determine the conclusion on the facts in another. All
that is necessary is either to have direct proof of prior concert, or proof of
circumstances which necessarily lead to that inference, or, as we prefer to put
it in the time-honoured way, "the incriminating facts must be incompatible
with the innocence of the accused and incapable of explanation on any other
reasonable hypothesis". (Sarkar's Evidence, 8th edition, page 30).
The learned counsel for the State relied on
Mamand v. Emperor(1) because in that case the accused all ran away and their
Lordships took that into consideration to establish a common intention. But
there was much more than that. There was evidence of enmity on the part of the
accused who only joined in the attack but had no hand in the killing, and none
on the part of the two who did the actual murder.
There was evidence that all three lived
together and that one was a younger brother and the other a tenant of the
appellant in question. There was evidence that they all ran away together: not
simply that they ran away at the same moment of time when discovered, but that
they ran away together. As we have said, each case must rest on its own facts
and the mere (1) A.I.R 1946 P-C 45.
1097 similarity of the facts in one case
cannot be used to determine a conclusion of fact in another. In the present
case, we are of opinion that the facts disclosed do not warrant an inference of
common intention in Pandurang's case. Therefore, even if that had been charged,
no conviction could have followed on that basis. Pandurang is accordingly only
liable for what he actually did.
In our opinion, his act falls under section
326 of the Indian Penal Code. A blow on the head with an axe which penetrates
half an inch into the head is, in our opinion, likely to endanger life. We
therefore set aside his conviction under section 302 of the Indian Penal Code
and convict him instead under section 326. We are of opinion that in his case a
sentence of imprisonment for a term of ten years will suffice. We accordingly
set aside the sentence of death and alter it to one of ten years' rigorous
That leaves the question of sentence in the
case of Bhilia and Tukia. It was argued that no sentence of death can be passed
unless two Judges concur because of section 377 of the Code of Criminal
Procedure, and it was argued that section 378 of the Code does not abrogate or
modify that provision. We do not intend to examine that here because we are of
opinion that the sentence should be reduced to transportation in these two
cases mainly because of the difference of opinion in the High Court, not only
on the question of guilt, but also on that of sentence. In saying this we do
not intend to fetter the discretion of Judges in this matter, for a question of
sentence is, and must always remain, a matter of discretion, unless the law
directs otherwise. But when appellate Judges, who agree on the question of
guilt, differ on that of sentence, it is usual not to impose the death penalty
unless there are compelling reasons. We see no reason to depart from this
practice in this case and so reduce the sentences of death in the case of
Bhilia and Tukia to transportation for life because of the difference of
opinion in the High Court.