PANDURANG V.

STATE OF HYDERABAD, AIR 1955 SC 216

INTRODUCTION

The Criminal Appeal was presented in The Supreme Court of India before the Bench:

Bijan Kumar Mukherjea, Sudhi Ranjan Das and Vivian Bose, JJ.

The case was decided on December 3, 1954 and the judgment was given by Bose JJ.

The Appellants in the case were : Pandurang, Tukia and Bhillia;

The Respondent was: The State of Hyderabad.

Advocates who appeared in this case:

J.B. Dadachanji and Rajinder Narain, Advocates, for the Appellants;

N.C. Chakravarty, Advocate (Appointed at the expense of State Government); P.A. Mehta
and P.G. Gokhale, Advocates, for the Respondent.

The Act referred in the case was :

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Indian Penal Code (Act XLV of 1860), Section 34 Prior Concert –Common
intention-Same or similar intention-Distinction between.

SUMMARY OF THE FACTS

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Section 34 of IPC deals with Common Intention. As per this provision, when a number of persons
engaged in a criminal act with a common intention, each person is made liable as if he alone did
the act.

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In this case Ramchander Shelke (the deceased) went to his field known as "Bhavara"
with his wife's sister RasikaBai (P.W.1) and his servant Subhana Rao (P.W.2). Rasika Bai
started to pick chillies in the field while Ramchander went to another field "Vaniya-che-
seth" which was about a furlong away near a river called Papana. Rasika Bai heard
shouts from that direction, so she ran to the river bank with Subhana and they both saw
all five accused attacking Ramchander with axes and sticks. Two other persons, Laxman
(P.W.3) and Elba (P.W.4), who were in the neighbourhood, also heard the cries and ran
to the spot. They also witnessed the assault and name all five accused. The former has a
field nearby 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. The
deceased died on the spot.

RELEVANT LAWS

Section 34 of the Indian Penal Code deals with Common Intention. As per this provision,
when a number of persons engaged in a criminal act with a common intention, each
person is made liable as if he alone did the act.

Section 149 of the Indian Penal Code deals with Common Object. According to this
provision, every member of an unlawful assembly is held liable for any criminal act done
in furtherance of a common object.

Section 302 of IPC: Punishment for murder —Whoever commits murder shall be
punished with death, or [imprisonment for life], and shall also be liable to fine.

Section 326 of IPC: Voluntarily causing grievous hurt by dangerous weapons or means
—Whoever, except in the case provided for by section 335, voluntarily causes grievous
hurt by means of any instrument for shooting, stabbing or cutting, or any instrument
which, used as a weapon of offence, is likely to cause death, or by means of fire or any
heated substance, or by means of any poison or any corrosive substance, or by means of
any explosive substance, or by means of any substance which it is deleterious to the
human body to inhale, to swallow, or to receive into the blood, or by means of any
animal, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

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PRECEDANTS:

1) Barendra Kumar Ghosh v. King Emperor 2

This case came before the court under Section 34 under the principle of Joint Liability.
This case is also known as the ‘Post Master Case’. In this case, the accused Barendra
with other three persons went to Shankaritola post office at about 3.30 pm on the
3rd August 1923 armed with firearms. The accused stood outside the post office while the
other three entered the post office through the backdoor of office. They asked post
master Amrita Lal Roy to give the money which he was counting. When he refused, then
others three opened fire from the pistol and fled from the place.

As a result of which he died almost immediately. Seeing others running the accused also
ran away by air firing with his pistol. But he was chased and caught by the post office
assistant. He was charged with others under Section 302 (murder to post master) and
Section 394 (causing hurt in doing robbery) with Section 34 in common intention of all.
He contended that he was only standing guard outside the post office and he did not
have the intention to kill the post master. Calcutta High Court confirmed his conviction of
murder under Section 302 with Section 34. In the appeal before the Privy Council, Lord
Sumner dismissed the appeal against the conviction and held that – “criminal acts means
that unity of criminal behaviour which results in something for which an individual would
be responsible, if it were all done by himself alone, that is, in criminal offence.”

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2) Mahboob Shah v. Emperor (1945)

In this case, the appellant Mahboob Shah was of age 19 and was convicted by Session
Judge of the charge Section 302 with Section 34 for the murder of Allah Dad. The
Session court sentenced him for death. The High Court of Judicature also confirmed the
death sentence. On appeal before Lordship, the conviction for murder and sentence of
2
AIR 1925 PC 1
3
47 Com LR 941
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death was quashed. It was contended before appellant that –  “when Allah Dad and
Hamidullah tried to run away, Wali Shah and Mahboob Shah Came in front of them and
fired shots” and so there was evidence of forming common intention at the spur of the
moment. Their Lordship was not satisfied upon this view and humbly advised His Majesty
that the appellant has succeeded in his appeal, his appeal should be allowed and his
conviction for murder and the sentence of death set aside.

ARGUMENTS MADE BY BOTH SIDES

Two of the eye-witnesses were considered unreliable by Reddy, J. in the High Court,
concentration was on the other two, Rasika Bai (P.W.1) and Subhana (P.W.7). Two other
persons, Laxman (P.W.3) and Elba (P.W.4), who were in the neighbourhood, also
witnessed the assault and name all five accused.

According to eyewitnesses (P.W. 1 & 2), Pandurang, Tukia, and Bhilia were holding axes
and other two accused Tukaram and Nilia had sticks in their hands and the other
witnesses (P.W. 3 & 4) told a different story. P.W. 1 & 2 said they saw all five accused
striking the deceased , 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( P.W.1) 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. Both the witnesses ( P.W. 1 & 2) agreed on the
following points-

(1) that Tukia struck Ramchander on his cheek; Rasika Bai( P.W.1) 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. The other witness Subhana( P.W.2) did not mention that the other two
struck any particular blow. Rasika( P.W.1) stated that one of them, Nilia, hit
Ramchander on the thigh with his stick and assigns no particular blow to the other.

Rasika Bai's (P.W.1) version was 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.

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Subhana (P.W. 2) merely said that they ran away .After this all the accused absconded.
They were arrested on different dates and were committed to trial separately.

The trial court convicted each of accused of charge Section 302 4with Section 34 and
sentenced to death. Appeal lied in High court and conviction of Pandurang, Tukia, Bhilia
was maintained but other two accused person sentence was commuted to transportation
for life.

When the matter came up to the Supreme Court, the learned judge said that each is
liable for their own act.

The Apex Court set aside the death sentence of Pandurang and convicted him instead
under Section 3265, and sentenced for 10 years rigorous imprisonment. The Supreme
Court altered the sentence of Tukia and Bhilia to transportation for life. The Supreme
Court elaborated in this case that:

“In a case like that, each would be individually liable for whatever injury he caused but
none would be vicariously convicted for the acts of any of the others; 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 this case….”

JUDGMENT
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Section 302 of IPC: Punishment for murder —Whoever commits murder shall be punished with
death, or [imprisonment for life], and shall also be liable to fine.
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Section 326 of IPC: Voluntarily causing grievous hurt by dangerous weapons or means—
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by
means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a
weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by
means of any poison or any corrosive substance, or by means of any explosive substance, or by
means of any substance which it is deleterious to the human body to inhale, to swallow, or to re -
ceive into the blood, or by means of any animal, shall be punished with imprisonment for life, or
with imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine.

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Obiter Dicta

The judgement of the court was delivered by Bose J.-Five persons including the three
appellants, were prosecuted for the murder of one Ramchander Shelke. Each was
convicted and each was 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 to The Apex Court for special leave to appeal. Their petition was granted. The
other two did not appeal.

On appeal, the Supreme Court stated: "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 reasons to depart from his practice in
this case and so reduce the sentence of death in the case of Bhilia and Tukia to
transportation for life because of the difference of opinion in the High Court. "

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

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of the Code of Criminal Procedure, and it was argued that Section 378 7of 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”.

Ratio Decidendi

The Supreme Court altered the punishment of the appellants in this case. The
punishment of Pandurang was changed from that under Section 302 to that under
Section 326 of the Indian Penal Code and was sentenced to 10 years rigorous
imprisonment and for the other two Tukia and Bhillia, the sentence of death was reduced
and converted into sentence of transportation for life because the court was of the
opinion that for awarding death sentence the judges must have a concur opinion and
there should not be any difference in opinion.

CRITIQUE AND ANALYSIS

There was no concrete evidence that would justify the common intent as prescribed in
Section 34 and hence was not charged in the case but the omission of which was a fatal
one as the amount of punishment could have been given in a similar manner to all the
convicts making them all jointly liable. It was not proven that there was a prior meeting
of minds or a pre-arranged plan was established by the accused and so the lack of
common intent made them individually liable. There is a difference between common
intention and similar intention, and Section 34 can be invoked only when the accused
shares common intention and not one the similar intention.

Unless the common intention is proved, individual will be liable for his own act and not
otherwise. They will be deal as under Section 38 of IPC. And if there is any doubt, the
benefit of doubt should be given to the accused.

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Section 377 CrPC Appeal by the State Government against sentence
7
Section 378 Crpc Appeal in case of acquittal
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Section 149 remained out of the question because it was not proved that there was an
unlawful assembly of the accused that they had committed a criminal act to achieve a
common object although it was mentioned that there was a possibility of enmity between
the accused and the deceased but which was not proven due to the lack of evidence.

The injuries shown in the Inquest Report and the postmortem report did not tally which
concluded that the injury marks on the body of the deceased were caused by an axe
which was armed by Pandurang, Tukia, Bhillia implying that Tukaram and Nilia did not
use their sticks. But the question here remains unsolved whether Tukaram and Nilia were
part of the assault or not as one of the witnesses claimed that she saw them but the
other witness denied. Hence, there was lack of facts and evidence which could have
supported them.

Tukaram and Nilia were sentenced to transportation for life as they did not appeal. But
the part played by them was negligible as there was no injury marks on the body of the
deceased, hence, it was not proven whether they committed the criminal act or not and
whether they were part of the group committing the criminal act. If it could have been
proven that they were not a part of the criminal act then their liability could have been
altered.

The contentions put forth by the witnesses (P.W. 1 & 2) did not exactly match with each
other and hence there was different stories narrated by them. Not much regard was
given to the contentions given by the other two witnesses (P.W. 3 & 4).

The mystery remains unsolved of the reporting of an FIR from an unknown source which
was ignored in the case but it suggested of some mischievous activity which could not be
apprehended because of the lack of evidence.

I agree with the decision of the Apex Court of reducing the sentence of Pandurang from
Section 302 to Section 326 i.e. from death penalty to ten years of rigorous punishment
as it would justify the fact that he committed a non-fatal injury on the deceased and thus
the altered punishment of serving ten years in jail would suffice.

I do not agree with the decision of the Apex Court of reducing the punishment of the
convict from Section 302 i.e. death penalty to transportation for life as it seems vague to

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me because the medical reports of the deceased suggests that it was proven that the
most fatal injury on the on the cheek which was the reason of the death of the deceased
was committed by Tukia and so he should be punished more rigorously than others. As
the theory of individual liability is being applied in the case and not of the joint liability in
the criminal act committed by the convicts. So according to me, the punishment given to
Tukia was not really in connection with the arguments provided in the judgment.

The sentence of Bhilia was altered from death sentence to transportation for life was
justified as the infliction of injuries committed by him were less brutal in nature in
comparison to what Pandurang and Tukia committed. But the fact that Tukia and Bhilia
receiving the same level of punishment seems unjustified.

The Apex Court altered the punishment of Tukia and and Bhilia from death penalty to
transportation for life because there was a difference in the opinion of High Court and not
on the basis of the guilt factor and thus did not impose death penalty which is not given
unless there are compelling reasons

CONCLUSION

The Supreme Court, in a case, held that: “Common intention which developed at the
spur of the moment is different from the similar intention actuated a number of person
at the same time….the distinction between a common intention and similar intention may
be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of
justice….”8

Common intention does not mean similar intention of several persons. To constitute
common intention it is necessary that the intention of each one of them be known to the
rest of them and shared by them. This Section 34 is only a rule of evidence and does not
create a substantive offense. This section only applies with other penal sections which
deal with the punishment of the offense.

Fixing vicarious liability under Section 34 or Section 149 depends on their method
adopted to furnish the crime. There are two sections dealing with ‘common intention’ and
‘common object’ Sometimes there arises difficulty in proving with evidence that whether
they shared common intention or not. And also how many people were the members of
8
Dukhmochan Pandey v. State of Bihar  AIR 1998 SC 40
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Unlawful Assembly with their common object same. Even after so much effort, there
arise problems of which law will be applicable amongst the two in some crucial cases,
and investigators and charge sheet filers make mistakes in this regard.

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