Pandurang v. State of Hyderabad

Supreme Court of India · 3 December 1954 · 3 judges · 1955 AIR 216; 1955 SCR (1) 1083

Holding that common intention under Section 34 IPC requires prior concert and a pre-arranged plan, the Court reduced Pandurang's murder conviction to one under Section 326 IPC and commuted the death sentences of Tukia and Bhilia.

Facts

Five persons, including the three appellants, were convicted of murdering a man who was attacked near a river bank with axes and sticks and died on the spot. Each was sentenced to death. In the High Court the two Judges differed: one would maintain the convictions but commute the sentences, the other would acquit. A third Judge upheld all convictions under Section 302 IPC and maintained the death sentences of the three appellants, Pandurang, Tukia and Bhilia. The eye-witnesses arrived after the assault had begun. The medical evidence showed that the neck wound, ascribed to Bhilia, caused death and that a crushing wound on the face, ascribed to Tukia, could have caused it; Pandurang inflicted a non-fatal axe wound on the scalp. Neither Section 34 nor Section 149 was charged against Pandurang.

Questions before the Court

Whether the eye-witness evidence could be relied on despite the absence of names in the first information report.
Whether Pandurang could be convicted of murder with the aid of Section 34 or Section 149 IPC when his own blow was not fatal.
Whether the death sentences on Bhilia and Tukia should stand when the High Court Judges had differed on guilt and sentence.

What the Court held

The two principal eye-witnesses were reliable. The absence of names in the first information report was not of much consequence, as the names were disclosed in full at the inquest and the report's haphazard dispatch suggested rustic simplicity rather than planned deceit.
Common intention under Section 34 presupposes prior concert, a pre-arranged plan and a prior meeting of minds. Several persons may attack a man at once with the same intention to kill, yet without a prior meeting of minds each is liable only for the injury he himself caused.
The plan may be formed suddenly and need not be elaborate, and prior concert may be inferred from subsequent conduct, but the inference must be a necessary one from the circumstances. Each case rests on its own facts. Omnibus statements by witnesses that 'all' the accused acted are ordinarily unsafe to accept.
There was no evidence of a common object (Section 149, not charged) or of a common intention embracing Pandurang. He was liable only for his own act, an axe blow likely to endanger life, and was convicted under Section 326 with ten years' rigorous imprisonment.
The convictions of Bhilia and Tukia under Section 302 were upheld, but their death sentences were reduced to transportation for life because the High Court Judges had differed on guilt and on sentence.

Why it matters

The judgment is a leading statement that Section 34 IPC requires prior concert and a pre-arranged plan, distinguishing a shared common intention from the same or similar intention held independently by several assailants. It explains that the plan may arise on the spot, that it may be inferred from conduct only as a necessary inference, and that without it each accused is liable only for his own act. It also notes the practice of not imposing death where appellate Judges agreeing on guilt differ on sentence.

In the Court's words

Copied from the official judgment; each passage links to its page.

“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(1). Accordingly there must have been a prior meeting of minds.”

Vivian Bose, J.Page 8 of the judgment

“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”

Vivian Bose, J.Page 8 of the judgment

“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.”

Vivian Bose, J.Page 8 of the judgment

“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.”

Vivian Bose, J.Page 10 of the judgment

Provisions interpreted

Section 34, Indian Penal CodeNow: BNS 3(5) (NCRB correspondence table)
Section 149, Indian Penal CodeNow: BNS 190 (NCRB correspondence table)
Section 302, Indian Penal CodeNow: BNS 103 (NCRB correspondence table)
Section 326, Indian Penal CodeNow: BNS 118(2) (NCRB correspondence table)

Case and bench

Parties: Pandurang, Tukia and Bhillia v. The State of Hyderabad
Case: Criminal Appeals Nos. 91 to 93 of 1954
Decided: 3 December 1954
Bench: Vivian Bose, B.K. Mukherjea, Sudhi Ranjan Das
Opinions: Unanimous. Judgment of the Court delivered by Vivian Bose, J.