LexPANDURANG, TUKIA AND BHILLIA versus THE ST ATE OF HYDERABAD
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S.C.R. SUPREME COURT REPORTS 1083 Ordinance came within Head 27 of List 2 of the Seventh Schedule of the Government of India Act:-"Trade and commerce within the Province; markets and fair; money lending ahd money lenders'', and that the Provincial Legislature was competent to legislate on that topic. The result therefore is that the appeal will be allowed, the decision of the Appeal Court will be re- versed and the decree passed by the Trial Court in favour of the Appellant will be restored with costs throughout. Appeal allowed. PANDURANG, TUKIA AND BHILLIA ti. THE ST ATE OF HYDERABAD. [MuKHERJEA, S. R. DAs and VIVIAN BosE JJ.) Indian Penal Code (Act XLV of 1860), s. 34-Prior concert- Common intention-Same or similar intention-Distinction between. It is well-settled that common intention in s. 34 of the Indian Penal Code 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 further- ance of the common intention of them all. Accordingly there must have been a prior meeting of minds. Several persons can simulta- neously 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 . 1954 Duni Chand Rataria .,. I Bhuwalka Brothers lJd, Bhagwati J. 1954 Decembet 3. 1954 Pandurang, Tukia and Bhitlia v. Tm State af Hytkraba.' 1084 SUPREME COURT REPORTS [1955] 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 necessa;y inference deducible from the circum· stances of the case. 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, 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 un- less there are compelling reasons. Barendra Kumar Ghosh v. King-Emperor ([1924] L.R. 52 I.A. 40), Mahbub Shah v. King-Emperor ([1945] L.R. 72 I.A. 148) and Mamand v. Emperor (A.LR. 1946 P.C. 45), referred to. 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 Crimi- nal Appeals Nos. 92 and 93 of 1954). P. A. Mehta and P. G. Gokhale, for the respon- dent. 1954. December 3. The Judgment of the Court was delivered by BosE J.-Five persons, including the three lants, were prosecuted for the murder of one chancier Shelke. Each was convicted and
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