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PETITIONER: PANDURANG, TUKIA AND BHILLIA

       Vs.

RESPONDENT: THE STATE OF HYDERABAD.

DATE OF JUDGMENT: 03/12/1954

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MUKHERJEA, B.K. DAS, SUDHI RANJAN

CITATION:  1955 AIR  216            1955 SCR  (1)1083

ACT: Indian  Penal Code (Act XLV of 1860), s.  34-Prior  concert- Common   intention-Same  or  similar   intention-Distinction between.

HEADNOTE: It  is well-settled that common intention in s. 34  of  tile Indian Penal Code 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 boon  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 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. Care must be taken not to confuse same or similar  intention with  common  intention; the partition which  divides  their bounds  is often very thin, nevertheless the distinction  is real  and  substantial,  and if overlooked  will  result  in miscarriage of justice. The  plan need not be elaborate, nor is a long  interval  of time  required.  It could arise and be formed suddenly,  But there must 139 1084 be  pre-arrangement  and premeditated concert.   It  is  not enough,  to  have the same intention independently  of  each other. The  inference of common intention should never  be  reached unless  it  is  a necessary  inference  deducible  from  the circumstances  of  the case.  It is a question  of  fact  in every  case and however similar the circumstances, facts  in

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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, in other words, the incriminating facts must be incompatible with  the  innocence  of the accused and  incapable  of  ex- planation on any other reasonable hypothesis. 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. Barendra  Kumar Ghosh v. King-Emperor ([1924] L.R.  52  I.A. 40), Mahbub Shalt v. King-Emperor ([1945] L.P.- 72 I.A. 148) and Mamand v. Emperor (A.I.R. 1946 P.C. 45), referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 91 to 93 of 1954. Appeals  by  Special Leave granted by Supreme Court  on  the 18th  January,  1954 from the Judgment and Order  dated  the 18th June, 1953 of the High Court of Judicature at Hyderabad in  Confirmation  Case  No. 376/6 of  1952-53  and  Criminal Appeals Nos.394/6, 395/6 and 392/6 of 1952-53 arising out of the Judgment and Order dated the 2nd June, 1952 of the Court of  the Sessions Judge at Bidar in Sessions Case No. 9/8  of 1951-52. J.   B.  Dadachanji and Rajinder Narain, for the  appellant. (In Criminal Appeal No. 91 of 1954). N.   C.  Chakravarty,  for  the  appellants.  (In   Criminal Appeals Nos. 92 and 93 of 1954). P.   A.  Mehta and P. G. Gokhale, for the respondent.  1954. December 3. The Judgment of the Court was delivered by BOSE  J.-Five persons including the three  appellants,  were prosecuted  for the murder of one Ram-chander Shelke.   Each was convicted and each was 1085 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  here for special leave to appeal.   Their  petition

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was granted.  The other two have not appealed. The prosecution case is this.  On 7-12-1950, about 3 o’clock in the afternoon,, Ramchander Shelke (the deceased) went  to his  field known as "Bhavara" with his wife’s sister  Rasika Bai (P.W.1) and his servant Subhana Rao (P.W.7). Rasika  Bai started to pick chillies in the field while Ramehander  went to another field "Vaniya-che-seth" which is about a  furlong away.  We gather that this field is near a river called 1086 Papana.    Anyway,  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. Two other persons, Laxman (P.W.6) and Elba (P.W.5), who were in  the neighbourhood, also heard the cries and ran  to  the spot.  They also say they witnessed the assault and name all five  accused.   The  former has a field  near  by  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. Ramehander died on the spot almost immediately. There are four eye-witnesses, and the main question we  have to consider is whether they can be believed.  Ordinarily, 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. Two  of  the  eye-witnesses were  considered  unreliable  by Reddy,  J.  in  the High Court, so we will  omit  them  from consideration  and concentrate on the other two, Rasika  Bai (P.W.1)  and  Subhana (P.W.7). Both give  substantially  the same  version of what they saw of the assault.   They  heard Ramehander’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.  It is said that there is some discrepancy between Rasika  Bai’s 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 and so do we.  The important thing is that  both witnesses are agreed on the following points- (1)  that Tukia struck Ramchander on his cheek;                             1087 Rasika Bai 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. Subhana  does  not  say  that  the  other  two  struck   any particular  blow.  Rasika says that one of them, Nilia,  hit Ramchander  on  the  thigh with his  stick  and  assigns  no particular blow to the other. Rasika  Bai’s  version  is 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.  Subbana merely says that they ran away. After this all the accused absconded.  They were arrested on different dates and were committed to trial separately.  The dates of arrest and committal      respectively in the case of each are as follows:-         Bhilia 9-1 -1951 and 14-6-1951      Tukia     13-10-1951 and 10-1-1952      Pandurang 31-8 -1951 and 10-1-1952

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    Tukaram   13-4 -1951 and 29-9-1951      Nilia     13-10-1951 and 10-1-1952 The  main attack on this evidence was directed to  the  fact that neither the accused nor the eye-witnesses are named  in the First Information Report.  According to the prosecution, the report was made in the following circumstances. Rasika and Subbana say that after the assault they went back to  the  village and told Rasika’s sister Narsabai,  P.W.  2 (the  deceased’s widow) what they had seen.   Narsabai  says that  they  disclosed the names of the  assailants  at  that time. From  here  we  go  to  the Police  Patel  who  lives  in  a neighbouring  village one mile away.  He is Mahadappa  (P.W. 9).   He says that he was standing outside his house in  his own village when the sun was setting and saw Krishnabai, the mother-in-law  of  the  deceased, crying as  she  passed  by outside his house.  He asked her what was wrong and she told him that her sonin-law had been killed.  On hearing this  he wrote out 1088 a  report, Ex.  No. 4, and sent it to the Police Station  at Udgir which is about six miles from the scene of the murder. The  First Information Report was recorded on the  basis  of this report at 10 o’clock the next morning. Now  nobody  tells us who carried the report to  the  Police Station.   It is written on a printed form and is signed  by the  Police  Patel.  Opposite the column  headed  "Name  and address of the-complainant or informant" is entered "Tukaram s/o  Panda Sheolka".  The Sub-Inspector, who wrote  out  the first  information  report  on the  basis  of  this  report, entered the following in it: "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 tells us that this Tukaram is a cousin  of the deceased.  He also says that- "Tukaram, whose name is entered in column No. 2, is not  the informant but is the complainant in this case.  Tukaram  had not  given  any written complaint to me.  He had  not  given oral  information to me. When I saw Krishnabai  weeping  and going,  I  did not know where Tukaram was.  I  do  not  know whether  Tukaram was present in the village on that  day  or not". This does shroud the matter in mystery but the fact that the report  was made is, we think, beyond dispute, also that  it was  made about 10 o’clock the following morning.  It is  to be  noted  that the SubInspector does not say  that  Tukaram brought  the  report  to  him but that  Ex.  4  (the  report received from the Police Patel) states that Tukaram gave the Police  Patel  the  information.  In that he  is  not  right (though the mistake is natural enough), because Ex. 4 merely places  Tukaram’s  name opposite the printed  column  headed "complainant   or  informant".   That  leaves   the   matter equivocal but in view of what the Police Patel tells us,  we think that he did mean to convey that                             1089 Tukaram  was  the complainant, probably because he  did  not want  to enter a woman’s name and so picked on  the  nearest male relative.  We see no reason to doubt his statement.  He says  he  did not know any names at that time; and  that  is evident  from the report.  But what the learned counsel  for the  appellants says is that he saw Narsabai on the  evening of  the murder and as she did not give him any names  it  is

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evident  that no one knew who the assailants were  and  that therefore  the  accusation made against the  accused  was  a subsequent  concoction and that it was for that reason  that they  waited  till  the next morning  before  reporting  the matter to the police. The Police Patel Mahadappa admits that he went to the  scene of  the occurrence the same night and that he  stayed  there the whole night.  He also admits that he saw Narsabai  there but says he did not speak to her.  We have no doubt that  he learned  the names of the assailants when he went there  but this  was  after  he had sent his  report.   There  is  some mystery  about  the  report.  It did not  reach  the  Police Station  till  10 A.M. the next day though  it  was  written about  sunset the evening before, but as we do not know  who took it and why he delayed it is idle to speculate.  What is certain  is that there was no point in sending off a  report without  names the next morning if the idea of delay was  to concoct a story and implicate innocent persons.  They  would either have hit on the names by then or would have waited  a little longer until they made up their minds about the story they  intended  to  tell.  The haphazard way  in  which  the report   was   written  and  dispatched   indicates   rustic simplicity  rather than clever and well planned deceit.   It has  to  be  remembered  that  the  deceased  left  no  male relatives except this cousin Tukaram, about whom the  Police Patel  speaks,  and his father Pandu, and though  cause  for enmity  between  Ramchander and three of the  appellants  is disclosed,  there is nothing to connect this Tukaram or  his father  Pandu  with the quarrel; and no  one  suggests  that anybody else bore them a grudge.  We think it unlikely  that these three women, Rasikabai, Narsa- 1090 bai  and Krishnabai, would have been capable  of  concocting this elaborate story and of influencing the Police Patel  to stay  his hand till they bad thought of a suitable tale  and found  likely victims for their plot.  Moreover,  the  whole village  probably turned out as soon as the news spread;  in any  case  the witnesses are agreed that there was  a  large crowd there.  We think it would have been easy to find  many persons to say that though they asked Rasikabai and  Subhana and  Narsabai  and  others present to  tell  them  what  had happened,  nobody  could because no one knew.  It  would  be ridiculous  to  suppose  that the  whole  village  bore  the accused  a  grudge  and joined in  an  elaborate  conspiracy against them.  In the circumstances, we think Mahadappa told the  truth.   The  absence of the names  in  the  report  is therefore not of much consequence in this case especially as the names were disclosed in full at the time of the inquest. All  the witnesses who speak about this are agreed  on  that point. Once that hurdle is surmounted, there is very little else to criticise  in  the evidence of Rasikabai  and  Subhana,  bar unimportant discrepancies and the fact that they have made a few  small  and  unimportant  contradictions  between  their testimony  in  court  and some  of  their  numerous  earlier statements.  There were three sets of committal proceedings, and  of course the usual questioning by the police and  then the proceedings in the Sessions Court, so it is not surpris- ing,  that these simple rustics should get confused and  not remember  in minute detail exactly what they had  said  from stage  to  stage.  But the major part of their  story  hangs together  remarkably well despite the many attempts to  trip them in cross-examination in the various courts.  As  Reddy, J. has dealt with these discrepancies in detail, we need not go over it all again.

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The injuries shown in the Inquest Report and the  postmortem report do not tally.  It is questionable how far an  inquest report is admissible except under section 145 of the  Indian Evidence Act but we do not regard the difference as of value so far as the appel- 1091 lants  are  concerned;  at best it could  only  have  helped Tukaram and Nilia who have not appealed. The Inquest Report shows eight injuries.  The first four are incised  wounds  and tally with the evidence  given  by  the witnesses.   The remaiding four are described as  "blue  and black  marks".  The postmortem mentions the first  four  but not  the others.  The doctor was recalled by the High  Court and  be  gives  some sort of  explanation  about  postmortem stains  on the body which we do not think  is  satisfactory, but the utmost this shows is that no stick blows- were found on the body and that we are prepared to accept. On  a careful consideration of the evidence we think  Rasika and  Subhana  are  telling the truth and that  they  can  be relied on.  We will not rely on the other two witnesses.  We are prepared to disregard the evidence of Rasika and Subhana in  so  far  as they say that Tukaram and  Nilia  also  beat Ramchander  because the medical evidence does  not  disclose any  injuries  which could have been caused by  a  stick  or sticks.   As a matter of fact Subhana does not  ascribe  any particular blow either to Tukaram or to Nilia though he does describe  in detail what the other three did.  All  be  says about  Tukaram  and Nilia is that"The accused  present  were striking  Ramchander;  Pandurang,  Bhilia  and  Tukia   were holding axes.  Tukaram and Nilia had sticks in their bands". This  sort of omnibus accusation is not of much  value,  and Rasikabai is not much better though she does say that  Nilia bit Ramchander on the thigh.  Except for this, all she  says is that "We saw the accused present striking Ramchander Shelke". We think Rasika and Subhana are telling the truth when  they say that these two accused 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 140 1092 had sticks in their hands which have not even been  conceded the  dignity  of  lathis.   So  the  part  they  played  was negligible. We  have looked into their cases to this extent so  that  we can set them on one side in determining who was  responsible for  the remaining injuries and also because the  part  they played  will be necessary in determining the extent  of  the common object or intention, if any. The 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.  We refer to the other eye-witnesses  here to show that there is no discrepancy  on this  point, but we only rely on Rasikabai and  Subhana  for determining  the fact Bhilia was directly charged  with  the murder  and the injury on the throat is ascribed to  him  in the charge.  His conviction cannot therefore be assailed  on any  of the technical points which arise in the case of  the other  two.  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-      (1)  an incised wound on the scalp above the left      ear,

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    (2)an incised wound on the scalp, central part,and      (3)a  lacerated  wound on the left side of  the  face which  crushed the upper and lower jaws including  the  lips and teeth. 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  bead. 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 jusified.  In Pandurang’s case we are left with the difficult question about section 34 of the Indian Penal Code.                             1093 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(1), section 149, unlike section 34,  creates a  specific  offence and deals with the punishment  of  that offence alone.  We would accordingly require strong  reasons for  using section 149 when it is not charged even if it  be possible  to convict under that section in the absence of  a specific  charge, a point we do not decide here.   But  that apart,  there  is, in our opinion, no  evidence  here  which would justify the conclusion of a common object even if  one had been charged. There  is some vague evidence to the effect that  there  had once  been  a  dacoity at Ramchander’s  house  and  that  he suspected "the "accused" and reported them to the police who arrested  them, but nothing came of it and they  were  later released.   This  is put forward as one of  the  grounds  of enmity  and to show why all five joined in the attack.   But in  the absence of anything specific we are not prepared  to act on such a vague allegation especially about the  persons who are said to have been wrongfully blamed.  What, however, is  more specific is this: Ramchander bought a field  called Hatkerni at Neemgaon from one Shivamma Patelni 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 bad started), we cannot  gatber any common object from the fact  that  Pandu- rang, though armed with an axe, only inflicted a light  blow on the scalp which did not break any of the (1)  (1924) L.R 52 I.A. 40, 52, 1094 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

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about  what went before.  We are not satisfied that  Tukaram is proved to have done anything except be present, and  even if  it be accepted that Nilia aimed a blow, at  Ramchander’s thigh  be was so half hearted about it that it did not  even hit him; and in Pandurang’s 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 1095 criminal  act  of another, the act must have  been  done  in furtherance of the common intention of them all: Mahbub Shah v.  King-Emperor(1).   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(2)  and  Mahbub Shah v. King-Emperor(1).   As  their Lordships  say  in  the latter case,  "the  partition  which divides  their bounds is often very thin: nevertheless,  the distinction is real and substantial, and if overlooked  will result in miscarriage of justice". 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 pre-arranged 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,

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(1)  [1945] L.R. 72 I.A. 148, 153, 154. (2)  [19241 L.R. 52 I.A. 40, 49. 1096 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 case.  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". (Sarkar’s Evidence, 8th edition, page 30). The  learned  counsel  for the State  relied  on  Mamand  v. Emperor(1) because in that case the accused all ran away and their Lordships took that into consideration to establish  a common intention.  But there was much more than that.  There was  evidence of enmity on the part of the accused who  only joined  in  the attack but had no hand in the  killing,  and none  on  the  part of the two who did  the  actual  murder. There  was evidence that all three lived together  and  that one  was  a younger brother and the other a  tenant  of  the appellant in question.  There was evidence that they all ran away  together:  not simply that they ran away at  the  same moment  of  time  when discovered, but that  they  ran  away together.   As we have said, each case must rest on its  own facts and the mere (1)  A.I.R 1946 P-C 45. 1097 similarity  of  the  facts in one case  cannot  be  used  to determine  a conclusion of fact in another.  In the  present case,  we  are of opinion that the facts  disclosed  do  not warrant  an  inference of common  intention  in  Pandurang’s 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  of  the Indian  Penal  Code.  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 of the Indian Penal  Code  and convict  him instead under section 326.  We are  of  opinion that  in his case a sentence of imprisonment for a  term  of ten  years  will  suffice.  We  accordingly  set  aside  the sentence of death and alter it to one of ten years’ rigorous imprisonment. 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  of the  Code  of  Criminal Procedure, and it  was  argued  that

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section  378  of 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.  In  saying this we do not intend to fetter the discretion of Judges  in this 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.   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  because  of the difference of opinion in the High Court. 1098