Pandurang, Tukia and Bhillia v State of Hyderabad

Facts

On 7 December 1950 Ramchander Shelke was attacked and killed at his field, the fatal injury being a neck wound; five accused (the three appellants plus Tukaram and Nilia) were said by eyewitnesses to have assaulted him with axes and sticks. There was background enmity over a field dispute. The trial court convicted and sentenced all five; the High Court, on a divided bench, upheld convictions with differentiated sentences. The three appellants came to the Supreme Court.

Issues

• Whether a common intention under Section 34 IPC to commit murder was established against each accused
• Whether each accused could be held vicariously liable for the fatal act in the absence of proof of a pre-arranged plan
• What conviction and sentence were appropriate for an accused whose own blow caused only a non-fatal injury

Arguments

The State contended that all the accused acted in concert pursuant to a prior agreement to murder, premeditation being shown by the earlier field dispute. The appellants argued there was no evidence of prior concert, that medical evidence did not square with the witnesses' accounts, and that the accused belonging to different castes undermined the theory of a common plan.

Held

The Supreme Court held that Section 34 fixes constructive liability only where the criminal act is done in furtherance of a common intention, which requires a prior meeting of minds and a pre-arranged plan; the plan may be formed on the spot but pre-arrangement and premeditated concert must exist. It distinguished common intention from a merely similar intention, observing that the dividing line is thin but real and that overlooking it causes a miscarriage of justice. Finding no proof of prior concert against Pandurang, whose single axe blow caused only a non-fatal scalp injury, the Court set aside his conviction for murder and convicted him under Section 326, sentencing him to ten years' rigorous imprisonment. The murder convictions of Tukia and Bhillia were upheld but, given the division of judicial opinion in the High Court, their death sentences were commuted to transportation for life.

Ratio decidendi

To attach vicarious liability under Section 34 IPC the prosecution must prove a common intention, that is, a prior meeting of minds and a pre-arranged plan; common intention must be distinguished from the same or similar intention entertained independently, and where concert is not proved each offender is liable only for the act he personally commits.

Significance

A leading authority on the scope of Section 34 IPC and the crucial distinction between common intention and similar intention, repeatedly followed in later murder appeals. The principle now sits under Section 3(5) BNS, 2023 (acts done by several persons in furtherance of common intention), which re-enacts Section 34 IPC in substantially the same terms, so the requirement of a pre-arranged plan continues to apply.

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