Pandurang, Tukia And Bhillia vs The State Of Hyderabad

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 91 to 93 of 1954

Decision Date: 03/12/1954

Coram: Vivian Bose, B.K. Mukherjea

In the matter titled Pandurang, Tukia and Bhillia versus The State of Hyderabad, the Supreme Court of India rendered its judgment on the third day of December in the year 1954. The opinion was authored by Justice Vivian Bose, who also sat as a member of the bench together with Justice B. K. Mukherjea. The petitioners in this case were Pandurang, Tukia and Bhillia, while the respondent was the State of Hyderabad. The decision is recorded in the official law reports as 1955 AIR 216 and also appears in the Supreme Court Reports at volume 1, page 1083. The legal provision that formed the core of the dispute was Section 34 of the Indian Penal Code, enacted as Act XLV of 1860, which deals with the concept of common intention in the commission of offences.

The Court set out the well-established principle that the doctrine of common intention under Section 34 requires a prior concert among the participants. It explained that a pre-arranged plan, however simple, must exist before one person can be held vicariously liable for the criminal act of another; the act must have been performed in furtherance of the shared intention of all involved. Consequently, a meeting of minds must have taken place before the offence. The Court illustrated that if several persons attack a victim simultaneously, each intending to kill and each delivering a separate fatal blow, the mere fact that they share an identical intention does not satisfy the requirement of common intention, because there was no prior meeting of minds to formulate a coordinated plan. In such a circumstance each individual would be liable only for the injury he actually caused, and none could be convicted for the acts of the others. Moreover, absent proof that a particular strike was fatal, a participant could not be convicted of murder even though his intention to kill might be established. The judgment warned against conflating “same or similar intention” with “common intention,” noting that although the distinction is often narrow, it is nevertheless significant and essential to prevent miscarriage of justice. The Court clarified that the required plan need not be elaborate nor demand a lengthy interval between its formation and execution; it may arise and be formed abruptly, but it must still be a pre-arranged and pre-meditated concert. The existence of a shared intention alone, without a prior agreement, is insufficient. An inference of common intention should be drawn only when it is a necessary conclusion that can be deduced from the surrounding facts. The Court emphasized that this is a factual issue in every case, and that similar circumstances in different cases do not permit the use of one precedent to determine the outcome in another. Proof may be established either by direct evidence of a prior concert, or by circumstances that inevitably lead to that inference; in other words, the incriminating facts must be incompatible with the accused’s innocence and must lack any reasonable alternative explanation. Finally, the Court observed that when appellate judges concur on the question of guilt but diverge on sentencing, it is customary not to impose the death penalty unless there are compelling reasons. The judgment cited authorities such as Barendra Kumar Ghosh v. King-Emperor, Mahbub Shalt v. King-Emperor, and Mamand v. Emperor to support its analysis.

I.A. 148) and Mamand v. Emperor (A.I.R. 1946 P.C. 45) were referred to. The case was placed before the criminal appellate jurisdiction as Criminal Appeals Nos. 91 to 93 of 1954. Special leave to appeal was granted by the Supreme Court on 18 January 1954 from the judgment and order dated 18 June 1953 of the High Court of Judicature at Hyderabad in Confirmation Case No. 376/6 of 1952-53, and from Criminal Appeals Nos. 394/6, 395/6 and 392/6 of 1952-53 that arose out of the judgment and order dated 2 June 1952 of the Court of the Sessions Judge at Bidar in Sessions Case No. 9/8 of 1951-52. Counsel for the appellant appeared in Criminal Appeal No. 91 of 1954, while counsel for the appellants appeared in Criminal Appeals Nos. 92 and 93 of 1954. Counsel for the respondent also participated. The judgment of the Court was delivered by Justice Bose on 3 December 1954.

Five persons, including the three appellants, were prosecuted for the murder of Ram-chander Shelke. Each of the five was convicted and sentenced to death under section 302 of the Indian Penal Code. The appeals and the confirmation proceedings before the High Court were heard by Judges M. S. Ali Khan and V. R. Deshpande. The two judges differed. Judge Ali Khan held that the convictions should stand but opined that the sentence in each case ought to be commuted to life imprisonment. Judge Deshpande favored an acquittal of all five accused. Because of this disagreement, the matter was referred to a third Judge, P. J. Reddy. Judge Reddy agreed with Judge Ali Khan on the convictions, finding all five guilty under section 302. On sentencing, Judge Reddy maintained the death sentences for the three appellants—Pandurang, Tukia and Bhilia—and ordered that the sentences of the other two be commuted to transportation for life. The opinion of the third Judge was treated as the decision of the Court, and therefore both the convictions and the sentences he suggested were upheld.

All five convicts then applied to the High Court for leave to appeal. The petition was heard by Judges Ali Khan and Reddy, who issued the following order: “The circumstances of the crime in this case were such that a brutal murder had been committed and the 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 consequently refused. The three appellants who had been sentenced to death—Pandurang, Tukia and Bhilia—filed special leave applications before this Court. Their petitions were granted, whereas the other two convicted persons did not pursue any further appeal. The prosecution case stated that on 7 December 1950, at about three o’clock in the afternoon, the deceased Ram-chander Shelke went to his field known as “Bhavara” accompanied by his wife’s sister Rasika Bai (P.W. 1) and his servant Subhana Rao (P.W. 7). While Rasika Bai began picking chillies in the field, Ram-chander proceeded to another field called “Vaniya-che-seth,” which was situated approximately a furlong away.

The Court described that on the afternoon of 7-12-1950 the deceased, Ramchander Shelke, went to his field called “Bhavara” accompanied by his wife’s sister Rasika Bai (identified as PW 1) and his servant Subhana Rao (identified as PW 7). Rasika Bai went to pick chillies while Ramchander moved to a nearby field known as “Vaniya-che-seth”, which was approximately a furlong away and situated close to a river called Papana. While in that vicinity Rasika Bai heard shouting from the direction of the river bank. She and Subhana immediately ran to the bank, where both said they saw the five accused persons assaulting Ramchander with axes and sticks. In addition, two other individuals, Laxman (PW 6) and Elba (PW 5), who were in the neighbourhood, also heard the cries, rushed to the spot and reported that they witnessed the same assault and were able to identify all five accused. Laxman was working in a field nearby, whereas Elba was merely a passer-by. Rasika Bai shouted to the assailants, urging them not to beat Ramchander; the assailants threatened her and then fled. Ramchander died almost immediately at the scene. Thus, there were four eyewitnesses, and the principal issue before the Court was whether those eyewitnesses could be believed.

The Court noted that ordinarily it would not re-examine factual questions, but because three of the accused had been sentenced to death based on the opinion of a third Judge, despite dissenting opinions—one Judge believing the death penalty should not be imposed and another holding that the appellants were not guilty—it was deemed necessary to scrutinise the evidence. The High Court, through Judge Reddy, had found two of the eyewitnesses unreliable; consequently the Court omitted those two from further consideration and concentrated on Rasika Bai (PW 1) and Subhana Rao (PW 7). Both witnesses gave substantially the same account: they heard Ramchander’s cries from the river bank, rushed there, and saw all five accused striking him, with the three appellants—Pandurang, Tukia and Bhilia—using axes and the other two, who had not appealed, employing sticks. Although there was a slight discrepancy between Rasika Bai’s statements in the Sessions Court and in the Committal Court regarding the sequence and number of blows, the Court, following the view of Judges Ali Khan and Reddy, regarded that discrepancy as immaterial. The crucial points agreed upon were that Tukia struck Ramchander on the cheek and, according to Rasika Bai, also on the head; Pandurang hit him on the head; after those blows Ramchander fell, and Bhilia then struck him on the neck. Subhana did not specify which blows were delivered by the other two accused, but Rasika Bai added that one of them, Nilia, hit Ramchander on the thigh with a stick, without attributing a particular blow to the remaining assailant. Rasika Bai’s version stated that on witnessing the assault she called out to the accused not to hit, after which they “raised their axes and sticks”, threatened her, and fled. Subhana’s testimony merely recorded that they ran away. Following the assault all the accused absconded, were later arrested on different dates, and were committed to trial separately.

The dates of arrest and committal for each of the accused were recorded as follows: Bhilia was arrested on 9-1-1951 and committed on 14-6-1951; Tukia was arrested on 13-10-1951 and committed on 10-1-1952; Pandurang was arrested on 31-8-1951 and committed on 10-1-1952; Tukaram was arrested on 13-4-1951 and committed on 29-9-1951; and Nilia was arrested on 13-10-1951 and committed on 10-1-1952. The principal objection raised to this evidence concerned the fact that neither the accused nor the eye-witnesses were named in the First Information Report. According to the prosecution, the report was prepared under a particular set of circumstances. After the assault, Rasika and Subbana returned to the village and informed Rasika’s sister Narsabai, who is identified as P.W. 2 and the widow of the deceased, about what they had observed. Narsabai testified that the informants disclosed the names of the assailants at that time. The narrative then moves to the Police Patel, Mahadappa (P.W. 9), who resides in a neighbouring village one mile away. He recounted that while standing outside his own house at sunset, he saw Krishnabai, the mother-in-law of the deceased, crying as she passed by his house. He inquired about the cause of her distress, and she informed him that her son-in-law had been killed. Upon hearing this, the Police Patel drafted a report, identified as Exhibit No. 4, and forwarded it to the police station at Udgir, located approximately six miles from the scene of the murder. The First Information Report was subsequently recorded on the basis of this report at ten o’clock the following morning. No one has identified who physically carried the report to the police station; the document appears on a printed form and bears the signature of the Police Patel. In the column headed “Name and address of the-complainant or informant,” the entry reads “Tukaram s/o Panda Sheolka.” The Sub-Inspector, who prepared the First Information Report using this material, recorded the following statement: “I am to submit that today a report dated 7-12-1950 from the Police Patel, Neemgaon village, has been received stating that (1) Tukaram, s/o Panda Sheolka, r/o Neemgaon village, came and stated that on 7-12-1950 Ramchander, s/o Govind Reddy was murdered, etc.” The Police Patel clarified that the Tukaram mentioned is a cousin of the deceased. He further explained that “Tukaram, whose name appears in column No. 2, is not the informant but the complainant in this case. Tukaram did not furnish any written complaint to me, nor did he give any oral information. When I saw Krishnabai weeping and passing by, I was unaware of Tukaram’s whereabouts and I do not know whether he was present in the village on that day.” Although these statements introduce some uncertainty, the Court considered the fact that a report was indeed made, and that it was made at approximately ten o’clock the next morning, to be beyond dispute. It is noteworthy that the Sub-Inspector does not assert that Tukaram personally delivered the report to him; rather, Exhibit 4, the report received from the Police Patel, indicates that Tukaram supplied the information to the Police Patel. This observation is not entirely accurate, although the error is understandable, because Exhibit 4 merely places

In this case, the Court observed that the entry showing Tukaram’s name in the column titled “complainant or informant” was ambiguous, but, on the basis of the testimony of the Police Patel, it was reasonable to conclude that the Patel intended to indicate that Tukaram was the complainant. The Court inferred that the Patel may have chosen a male relative’s name rather than a woman’s to avoid entering a woman’s name in the register. The Court found no reason to doubt the Patel’s statement that he did not know any names at the time, a fact that was corroborated by the contents of the report, which contained no names of the assailants. The counsel for the appellants argued that the Patel had seen Narsabai on the evening of the murder and, because she did not provide any names, no one could identify the attackers; consequently, the allegation against the accused was a later fabrication and the reason for delaying the police report until the following morning. The Police Patel, identified as Mahadappa, admitted that he had proceeded to the scene on the night of the incident and had remained there throughout the night. He also acknowledged that he saw Narsabai at the site but asserted that he did not speak to her. The Court held that Mahadappa inevitably learned the names of the assailants during his night-time visit, but that learning occurred after he had already dispatched his report.

The Court noted a peculiarity that the report, although written at sunset on the evening of the murder, did not arrive at the police station until ten o’clock the next morning. Because the identity of the person who carried the report and the reason for the delay were unknown, the Court considered speculation on the matter to be futile. The Court emphasized that there was no logical purpose in sending a nameless report the following morning if the intention had been to concoct a story and implicate innocent persons; the perpetrators would either have identified the names by that time or would have postponed the report further to devise a false narrative. The haphazard manner in which the report was prepared and transmitted, the Court said, reflected rustic simplicity rather than a calculated deceit.

The Court further observed that the deceased, Ramchander, left no male relatives apart from his cousin Tukaram and his father Pandu, both of whom were mentioned by Mahadappa. While the Court acknowledged that a quarrel existed between Ramchander and three of the appellants, it found no connection linking either Tukaram or Pandu to that dispute, and no suggestion that any other individual bore a grudge against the deceased. Consequently, the Court found it implausible that the three women—Rasikabai, Narsabai and Krishnabai—could have devised an elaborate false story and persuaded the Police Patel to withhold action until they could fabricate a suitable tale and select victims for their plot. Moreover, the Court recognized that the entire village likely assembled once news of the murder spread; all witnesses agreed that a large crowd was present. In such circumstances, it would have been easy for the police to locate numerous persons who could attest that they had asked the women for details, yet no one could provide the names of the assailants because no one knew them. The Court deemed it unreasonable to suppose that the whole village harboured animosity toward the accused and participated in a coordinated conspiracy. On this basis, the Court concluded that Mahadappa’s testimony was truthful.

The Court held that the omission of the assailants’ names from the initial report was of little consequence, since the names were fully disclosed during the inquest and all witnesses concurred on that point. Having resolved this issue, the Court found little else to criticize in the evidence of Rasikabai and Subhana, apart from minor and unimportant discrepancies and a few small contradictions between their courtroom testimony and earlier statements. The Court also noted that three sets of committal proceedings had taken place, followed by the usual police questioning and the subsequent Sessions Court proceedings.

The Court observed that it would be implausible to imagine that a large number of villagers could be summoned merely to state that, although they had questioned Rasikabai, Subhana, Narsabai and other persons present about the incident, none could provide an answer because no one possessed the requisite knowledge. It deemed it unreasonable to assume that the entire village bore a grudge against the accused and participated in a sophisticated conspiracy. In light of these considerations, the Court found that Mahadappa’s testimony was truthful. The Court further noted that the omission of certain names from the original report did not substantially affect the case, since those names had been fully disclosed during the inquest, a fact to which all the witnesses concurred. After clearing this preliminary obstacle, the Court held that there was little else to criticize in the evidence offered by Rasikabai and Subhana, aside from minor and immaterial discrepancies, and a few insignificant contradictions between their statements in court and some of their earlier numerous statements. The Court recognized that three separate committal proceedings had taken place, each followed by the customary police interrogation and the Sessions Court hearings. Consequently, it was understandable that these relatively unsophisticated witnesses might become confused and fail to recall every detail with precision at each stage. Nevertheless, the principal portion of their narrative remained remarkably coherent despite the extensive attempts by counsel to trip them during cross-examination in the various courts. The Court stated that, since Justice Reddy had already examined these inconsistencies in depth, a further detailed discussion was unnecessary. The Court then turned to the medical evidence, noting that the injuries recorded in the Inquest Report did not correspond exactly with those documented in the post-mortem report. Though it questioned the admissibility of the inquest report save for the provisions of section 145 of the Indian Evidence Act, the Court concluded that the disparity did not advantage the appellants; at most, it could have benefited Tukaram and Nilia, who had not lodged any appeal. According to the Inquest Report, eight injuries were listed: the first four were incised wounds that aligned with the witnesses’ testimony, while the remaining four were described merely as “blue and black marks.” The post-mortem report, however, recorded only the first four injuries and omitted any reference to the latter four.

The Court further noted that the High Court had recalled the examining doctor, who subsequently offered an explanation concerning post-mortem stains on the body. The Court found this explanation unsatisfactory but accepted that, at a minimum, it established the absence of any stick-inflicted blows on the corpse. After a careful evaluation of all the evidence, the Court determined that Rasikabai and Subhana were telling the truth and that their testimonies could be relied upon. The Court elected not to rely on the testimonies of the other two witnesses. Moreover, the Court chose to disregard the portions of Rasikabai’s and Subhana’s evidence that alleged that Tukaram and Nilia had also beaten Ramchander, because the medical findings did not reveal any injuries that could be attributed to a stick or sticks. In fact, Subhana did not assign any specific blow to either Tukaram or Nilia, although he did describe their involvement in a broader sense.

The Court noted that Subhana’s testimony described the actions of the other three accused only in general terms, stating that “the accused present were striking Ramchander; Pandurang, Bhilia and Tukia were holding axes. Tukaram and Nilia had sticks in their bands.” The Court found this omnibus accusation to be of little evidentiary value. Likewise, Rasikabai’s evidence was not much stronger; she mentioned that Nilia bit Ramchander on the thigh, but otherwise simply said, “We saw the accused present striking Ramchander Shelke.” The Court accepted that Rasikabai and Subhana were truthful in confirming the presence of Tukaram and Nilia, but inferred that they may have added the suggestion that those two also participated in the assault. It was possible, the Court observed, that Nilia had attempted a blow that did not actually make contact. Both Tukaram and Nilia were armed only with sticks, which the Court described as being inferior even to lathis, and therefore their contribution to the violence was negligible. The Court examined their roles in order to exclude them when determining responsibility for the remaining injuries and because their limited participation was relevant to any assessment of a common object or common intention.

The medical evidence established that the injury causing death was a wound to the neck. All eyewitnesses concurred that Bhilia inflicted this neck wound. The Court referred to the other eyewitnesses merely to confirm the absence of any contradiction, but relied principally on Rasikabai’s and Subhana’s statements to establish that Bhilia was directly charged with murder and that the throat injury was attributable to him. Consequently, Bhilia’s conviction under section 302 of the Indian Penal Code could not be challenged on the technical issues raised concerning the other two accused. The Court therefore upheld Bhilia’s conviction. Having accounted for the fatal throat injury, the Court identified three remaining injuries: (1) an incised wound on the scalp above the left ear, (2) an incised wound on the central part of the scalp, and (3) a lacerated wound on the left side of the face that crushed the upper and lower jaws, including the lips and teeth. The doctor testified that injuries (1) and (2) were not lethal, whereas injury (3) could be fatal. Rasikabai and Subhana agreed that only Tukia struck the cheek, and Rasikabai added that Tukia also hit Ramchander on the head. Accordingly, the Court concluded that Tukia and Pandurang each caused one non-fatal head injury, while Tukia alone inflicted the fatal cheek wound. The Court therefore found Tukia’s conviction under section 302 of the Indian Penal Code to be justified. Regarding Pandurang, the Court recognised a difficult issue concerning section 34 of the Indian Penal Code, but postponed that discussion until after addressing section 149.

In this case the Court noted that no formal charge under section 149 of the Penal Code was made against the accused, and it referred to Lord Sumner’s observation in Barendra Kumar Ghosh v. King-Emperor (1) that section 149, unlike section 34, creates a distinct offence and deals only with the punishment of that offence. Consequently the Court said that strong reasons would be required before applying section 149 when it has not been charged, even though conviction under that provision might be possible without a specific charge, a point the Court declined to decide. Apart from that preliminary observation, the Court held that there was no evidence in the record that could support a finding of a common object, even if such a charge had been framed. The evidence presented was at best vague, indicating that a dacoity had once taken place at Ramchander’s house, that he had suspected the accused, reported them to the police, and that they were arrested and later released. That allegation was advanced to explain a possible motive of enmity and to argue why all five persons might have joined the attack, but the Court found it too unspecific to act upon, especially because it did not identify any particular individuals who were alleged to have been wrongly blamed. More specific evidence emerged when the Court recorded that Ramchander had purchased a field called Hatkerni at Neemgaon from a woman named Shivamma Patelni about a year before the murder. Narsabai testified that three of the accused—Nilia, Bhilia and Tukia, all belonging to the Lambada community—had previously lived in that field and that Ramchander’s acquisition of the land had resulted in their eviction, which she said gave them a cause for enmity. Even if that fact were accepted as indicating a prior concert, it concerned only the three Lambada accused and excluded Pandurang, who belonged to the Hatkar community. As this was the sole piece of evidence suggesting a common purpose, and because the witnesses arrived only after the assault had begun, the Court could not infer any common object from the fact that Pandurang, although armed with an axe, delivered only a light blow to the scalp that did not fracture the fragile bones in that region, nor from the fact that two other persons armed with “sticks” caused no injuries. Accordingly the Court concluded that section 149 could not be invoked. Turning to section 34, which was not charged in Pandurang’s case, the Court said that it need not consider whether the omission was fatal, because even if it had been charged there was no evidence from which a common intention involving him could be deduced. The witnesses had arrived while the beating was already in progress and therefore had no knowledge of events preceding it. The Court was not satisfied that Tukaram had been proved to have done anything except to be present, and even assuming that Nilia had attempted to strike, the record did not establish a shared intent.

The Court observed that Ramchander’s attempt to strike the victim’s thigh was so weak that the blow failed to make any contact. Similarly, although Pandurang was armed with an axe that could be lethal, he caused only a relatively minor injury to the victim’s head. The Court noted that all the accused fled the scene when the eyewitnesses arrived, but there was no evidence that they left together as a single group or met later. Rasikabai testified that the accused raised their axes and sticks and threatened her when she called out to them, but the Court treated this as an all-embracing statement lacking specific details. The Court warned that witnesses often use words such as “all” without distinguishing between some and all persons, especially when they are inattentive or careless in their observations. Consequently, the Court held that unless a witness specifically identifies each accused, an omnibus description cannot be accepted at face value. From the material before it, the Court could not infer any prior agreement among the accused to commit murder. Regarding section 34, the Court reiterated that a common intention presupposes a prior concert, requiring a pre-arranged plan to be formed before the criminal act. The Court cited Mahbub Shah v. King-Emperor, stating that vicarious liability under section 34 is possible only when the act is performed in furtherance of a shared intention that was agreed upon beforehand. Thus, the Court explained that a meeting of minds must precede the assault; without such a meeting, each participant is liable only for his own conduct. The Court illustrated that several persons may simultaneously attack a victim with the same purpose, yet if no prior plan existed, none can be held liable for the others’ acts. In such a situation, each individual would be convicted solely for the injury he personally caused, and could be convicted of murder only if his own blow was fatal. The Court referred to Barendra Kumar Ghosh v. King-Emperor and Mahbub Shah v. King-Emperor, noting that the line between joint liability and separate liability is thin but legally significant. The Court clarified that the required plan need not be elaborate nor require a long time to develop. It may arise suddenly when one person calls on by-standers to help kill a target and they indicate assent through their words or conduct.

The Court observed that a criminal liability based on a common intention requires a genuine meeting of minds and a pre-arranged, albeit possibly hurried and imperfect, plan that demonstrates a premised concert. It emphasized that mere parallel intentions, such as each person independently intending to rescue another and, if necessary, to kill an opponent, are insufficient, as illustrated in the earlier Privy Council decision. In the case before the Court there was no evidence showing any prior meeting among the accused; the record contained no information about what they said or did before the assault, not even immediately preceding it. The Court noted that Pandurang did not belong to the same caste as the other participants, citing the authorities (1) [1945] L.R. 72 I.A. 148, 153, 154 and (2) [1924] L.R. 52 I.A. 40, 49, and pointed out that Bhilia, Tukia and Nilia were Lambadas, Pandurang was a Hatkar and Tukaram a Maratha. While acknowledging that a prior concert may sometimes be inferred from later conduct—such as a systematic campaign unfolding during the act or a collective flight or meeting after the incident—the Court reiterated the Privy Council’s dictum that “the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.” The Court stressed that this principle merely reflects the ordinary rule on circumstantial evidence and that no special evidentiary rule exists for cases of alleged common intention. Ultimately, the matter is a question of fact; even where circumstances appear similar, facts from one case cannot serve as a precedent for another. The Court explained that proof of a common intention must arise either from direct evidence of a prior concert, from circumstances that inevitably lead to that inference, or, in the traditional language, from “incriminating facts … incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis” (Sarkar’s Evidence, 8th edition, page 30). Counsel for the State had cited Mamand v. Emperor (1) because, in that case, the accused’s collective flight was considered in establishing a common intention. However, the Court observed that the present facts differed: there was evidence of enmity on the part of those who merely joined the attack without participating in the killing, and no such enmity concerning the two actual murderers. Moreover, evidence showed that all three lived together, that one was the younger brother and another a tenant of the appellant, and that they escaped together—not simply at the same moment but as a coordinated group. The Court concluded that each case must be decided on its own factual matrix and that the mere similarity of facts, as noted in A.I.R. 1946 P-C 45, cannot be employed to determine a finding of common intention in the present matter.

The Court opined that the material disclosed in the present case does not support a finding of common intention on the part of Pandurang. Consequently, even if a charge of common intention had been framed, a conviction on that basis could not have been sustained. Accordingly, Pandurang was held liable only for the act he actually performed, which the Court considered to fall within the ambit of section 326 of the Indian Penal Code. The Court observed that a blow inflicted on the head with an axe that penetrated a distance of half an inch was likely to endanger life, and therefore warranted conviction under section 326 rather than under section 302. As a result, the conviction recorded under section 302 was set aside and replaced by a conviction under section 326. The Court further held that a term of ten years of rigorous imprisonment would be an appropriate punishment for Pandurang, and accordingly the earlier death sentence was set aside and substituted with a sentence of ten years’ rigorous imprisonment. The issue of sentencing in the cases of Bhilia and Tukia was then addressed. It was contended that a death sentence could be imposed only if two judges concurred, pursuant to section 377 of the Code of Criminal Procedure, and that section 378 did not alter that requirement. The Court declined to examine that argument, noting that the sentence should be reduced to transportation for life in those two cases, primarily because the High Court had been divided not only on the question of guilt but also on the appropriate sentence. The Court expressly stated that it did not intend to limit the discretion of judges in matters of sentencing, as sentencing remains a discretionary exercise unless a statute mandates otherwise. However, when appellate judges agree on guilt yet differ on the appropriate sentence, the usual practice is to avoid imposing the death penalty unless compelling reasons exist. Finding no such compelling reason, the Court reduced the death sentences imposed on Bhilia and Tukia to transportation for life, in line with the divergent views expressed by the High Court.