1954 Supreme(SC) 172

SUPREME COURT OF INDIA
3rd December, 1954.
B.K. MUKHERJEA, S.R. DAS, AND BOSE JJ.
Pandurang, and others, Appellants
Versus
State of Hyderabad, Respondent.
Criminal Appeals Nos. 91 to 93 of 1954.
Advocates appeared
In Cri Appeal No. 91 of 1954: Messrs. J. B. Dadachanji and Rajinder Narain, Advocates, for Appellants:
In Cri. Appeal Nos. 92 and 93 of 1954; Mr. N. C. Chakravarty, Advocate, (Appointed at the expense of State Gpvernment). Messrs. P. A. Mehta and P. G. Ghokhale, Advocates, for Respondent.

Headnote:Sections 34, 302, 326-Common intention-scope-Nature of evidence of prior concert-Sentence when Judges differ.

       Held: In the case of section 34, I.P.C. it is well established that a common intention 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 been 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 to prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whet ever injury he caused but none would 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. The partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial and if over looked will result in miscarriage of justice.

       (2) 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 to have the same intention independently of each other .e.g. the intention to rescue another and, if necessary, to kill those who oppose.

       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 bring the course of the action which co14d only be referable to prior concert and pre-arrangement, running away together in a body or a meeting together subsequently, But 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 Cases; At bottom, it is question off act 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 "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis."

       (3) 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 the 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." - Sections 154, 41lA-First information "the names of the accused as assailants-Effect.

       Accused not charged under S. 149 I.P.C.-Supreme Court if can accused under S. 149 I.P.C.

       Held: (1). On the facts of the case that the first information report did not mention the name of any person as assailant, though it was alleged that the names were known, was not of any consequence especially when their names were disclosed at the time of the inquest; that their absence did not indicate that the whole story was subsequently concocted and that the way in which the report was made and taken down indicate a rustic simplicity rather than clear and well planned deceit.

       (2) Section 149, I.P.C., unlike S. 134, creates a specific offence and deals with the punishment of the offence alone. So, where the accused is not charged under S. 149, the appellate court (in this case the Supreme Court hearing appeal on special leave) would require strong reasons for using that section even if it be possible to convict under this section in the absence of a specific charge. - Article 136-Practice-Appellants sentenced to death on opinion of third judge-Consideration of evidence.

       Held: "There are four eye-witnesses, and the main question we have to consider is whether they can be believed. Ordinary), 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" (Per Bose J).