Fact of the case :

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

Tukia struck Ramchander on his cheek; Rasika Bai adds that he also struck him on the head; Pandurang hit him on the head; After these blows Ramchander fell down and then Bhilia hit him on the neck. After this all the accused absconded. They were arrested on different dates and were committed to trial.

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 Huila 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 he 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”:

Supreme Court observed that it is well established that a common intention S-34 (S- 3(5) of BNS) requires prior concert or a pre-arranged plan among the accused. The Supreme Court did notice the fact that prior concert need not be something always very much prior to the incident, but could well be something that may develop on the spot (eo-instanti),(on the spur of the moment).

 It further held that 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 be attracted under section 34 of IPC [section 3(5) of BNS, 2023] because there was no prior meeting of minds to form a pre-arranged plan or common intention. In a case like that each would be individually liable for whatever injury he caused but none would be vicariously convicted for the act of others. The incriminating facts must be incompatible with the innocence of the accused. 

Held: This act falls under Section 326A (124 BNS – Voluntarily causing grievous hurt) 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.