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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

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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

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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

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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;

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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

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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

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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-

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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-

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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

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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.

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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,

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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

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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.

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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.

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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