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. 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.
The prosecution case is this. On 7-12-1950, about 3 o’clock in the afternoon Ramchander Shelke (the deceased) went to his field with his wife’s sister Rasika Bai and his servant Subhana Rao. Rasika Bai started to pick chillies in the field while Ramchander went to another field which is about a furlong away. 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.
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.
Rasika Bai and Subhana 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. Both witnesses are agreed on the following points –
After this all the accused absconded. They were arrested on different dates and were committed to trial separately.
We think Rasika and Subhana are telling the truth when they say that these two accused [Nilia and Tukaram] 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.
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. Bhilia was directly charged with the murder and the injury on the throat is ascribed to him in the charge. 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 –
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.
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, Section 149, unlike Section 34, creates a specific offence and deals with the punishment of that offence alone. There is, in our opinion, no evidence here which would justify the conclusion of a common object even if one had been charged.
Ramchander bought a field called Hatkerni at Neemgaon 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 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.
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 he 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 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.
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. 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 and Mahbub Shah v. King-Emperor.
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 prearranged 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 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”.
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 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”. In the present case, we are of opinion that the facts disclosed do not warrant an inference of common intention in Pandurang 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. 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 and convict him instead under Section 326. We accordingly set aside the sentence of death and alter it ten years’ rigorous imprisonment.
That leaves the question of sentence in the case of Bhilia and Tukia. 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. 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.