MANU/SC/0048/1954

Equivalent Citation: AIR1955SC 216, 1955C riLJ572, [1955]1SC R1083

IN THE SUPREME COURT OF INDIA

Criminal Appeals Nos. 91 to 93 of 1954
Decided On: 03.12.1954
Appellants:Pandurang, Tukia and Bhillia
Vs.
Respondent:The State of Hyderabad
Hon'ble Judges/Coram:
B.K. Mukherjea, Sudhi Ranjan Das and Vivian Bose, JJ.
Case Notes:
The case dealt with the distinction between prior concert and common
intention - It was found that common intention in Section of the Indian
Penal Code, 1860 presupposed prior concert - The Court held that the
inference of common intention should not be reached unless it was a
necessary inference that could be deduced from the circumstances of the
case
JUDGMENT
Vivian Bose, J.
1 . Five persons, including the three appellants, were prosecuted for the murder of
one Ramchander Shelke. Each was convicted and each was sentenced the death
under section 302 of the Indian Penal Code.
2. 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.
3 . 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.
4 . 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".

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5. Leave to appeal was refused.
6 . 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.
7 . 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 Ramchander went to another field "Vaniya-
che-seth" which is about a furlong away. We gather that this field is near a river
called 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.
8 . 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.
9 . Rasika Bai shouted out to the assailants not to beat Ramchander but they
threatened her and then ran away. Ramchander died on the spot almost immediately.
1 0 . 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.
11. 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 Ramchander'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 his cheek; 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.
12. 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.
13. Rasika Bai's version is that on seeing the assault she called out to the accused

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not to hit but they "raised their axes and sticks" and threatened her, and then ran
away. Subhana merely says that they ran away.
14. 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 :-

15. 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.
16. Rasika and Subhana 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.
17. 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 son-in-law had been killed. On hearing this he wrote
out 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.
18. 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".
19. 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".
20. 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 Sub-Inspector 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

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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 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.
21. 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 despatched 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, Narsabai and Krishnabai,
would have been capable of concocting this elaborate story and of influencing the
Police Patel to stay his hand till they had 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.
2 2 . 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

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Reddy, J. has dealt with these discrepancies in detail, we need not go over it all
again.
23. The injuries shown in the Inquest Report and the post-mortem 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 appellants are concerned; at best it could only have helped Tukaram and Nilia
who have not appealed.
24. The Inquest Report shows eight injuries. The first four are incised wounds and
tally with the evidence given by the witnesses. The remaining four are described as
"blue and black marks". The post- mortem mentions the first four but not the others.
The doctor was recalled by the High Court and he gives some sort of explanation
about post-mortem stains on the body which we do not think is satisfactory, but the
utmost this shows is that no stick blows were found on the body and that we are
prepared to accept.
2 5 . 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 he
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 their hands".
26. This sort of omnibus accusation is not of much value, and Rasikabai is not much
better though she does say that Nilia hit Ramchander on the thigh. Except for this, all
she says is that
"We saw the accused present striking Ramchander Shelke".
27. 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 had sticks in their hands which have not even been conceded the
dignity of lathis. So the part they played was negligible.
28. 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.
29. The medical evidence shows that the injury that caused death was the one on the
neck. All the eye-witnesses 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 thereof 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

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Indian Penal Code.
30. 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.
31. 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 the head. 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 justified.
32. In Pandurang's case we are left with the difficult question about section 34 of the
Indian Penal Code. 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 MANU/PR/0037/1924, 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.
33. 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.
34. 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 had
started), we cannot gather 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 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.
35. 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

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charged there is no evidence from which a common intention embracing him can
legitimately be deduced.
3 6 . 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 he 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 eye-witnesses 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.
37. 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 criminal act of another, the act must have been done in furtherance of the
common intention of them all : Mahbub Shah v. King-Emperor [1945] L.R. 72 IndAp
148. 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.
King- Emperor [1924] L.R. 62 IndAp 40 and Mahbub Shah v. King-Emperor [1945]
L.R. 72 IndAp 148. 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".
38. 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 by-standers 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.
39. In the present case, there is no evidence of any prior meeting. We know nothing

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of what they said or did before the attack - not even immediately before. Pandurang
is not even of the same caste as the others. 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 pre-arrangement, 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".
4 0 . 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).
4 1 . The learned counsel for the State relied on Mamand v. Emperor
MANU/PR/0044/1945 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 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.
42. 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 imprisonment.
4 3 . 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

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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.

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