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PETITIONER: AFRAHIM SHEIKH AND OTHERS

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 07/01/1964

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAYAL, RAGHUBAR

CITATION:  1964 AIR 1263            1964 SCR  (6) 172  CITATOR INFO :  R          1977 SC2252  (4)

ACT: Criminal Trial-Penal Code-Conviction under s. 304 Part II-If can  be  read with s.  34-"Intention"  &  "Knowledge"-Indian Penal Code, 1860 (45 of 1860), ss. 34, 35, 38 and 304.

HEADNOTE: The six appellants were convicted under s. 304 Part II  with s.  34  of the Indian Penal Code by the Sessions  Judge  add their appeal was summarily dismissed by the High Court.   On appeal by special leave, it was contended that s. 304,  Part 11  could not be read with s. 34 Indian Penal  Code  because the  second  part  of  s. 304  excluded  intention  and  was concerned with knowledge and the conviction was illegal. Held:(i)  Section 34 when it speaks of a  criminal  act done  by  several  persons  in  furtherance  of  the  common intention of all, has regard not to the offence as a  whole, but to the criminal act, that is to say, the totality of the series of acts which result in the offence.  In the case  of a person assaulted by many accused, the criminal act is  the offence  which  finally results, though the  achievement  of that criminal act may be the result of the action of several persons. (ii)Knowledge  in  s.  304  Part 11  is  the  knowledge  of likelihood of death and the common intention is with  regard to  the criminal act.  If the result of the criminal act  is the  death  of  the victim and if  each  of  the  assailants possesses the knowledge that death is the likely consequence of the criminal act, there is no reason why s. 34 should not be  read with the second part of s. 304 to make each  liable individually. lbra  Akanda v. Emperor, I.L.R. [1942] 2 Cal. 405 and  Saidu Khan v.   State, I.L.R. [1952] 1 All, 639, approved. Ramnath v. Emperor, A.I.R. 1943 All. 271, Shahibzada V.  The Crown A.I.R. 1950 Peshawar 24, Debi Chand Haldar v. Emperor, 41  C.W.N. 570 and Barendra Kumar Ghosh v.  Emperor,  (1925) I.L.R. 52 Cal. 197. referred to.

JUDGMENT:

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 134  of 1963. Appeal  by special leave from the judgment and  order  dated March 5, 1963, of the Calcutta High Court in Criminal Appeal No. 156 of 1963. D.   N. Mukherjee, for the appellants. P. K. Chakravarti and P. K.  Bose, for the respondent. 173 January 7, 1964. The Judgment of the Court was delivered by HIDAYATULLAH J.-The six appellants who have appealed to this Court  by  special  leave were convicted  by  the  Assistant Sessions Judge, Birbhum under s. 304 Part II read with s. 34 of  the  Indian  Penal  Code and  sentenced  to  six  years’ rigorous imprisonment each.  Their appeal to the High  Court was summarily dismissed.  When the appellants applied for  a certificate  in the High Court they made it plain  that  the only point which was required to be considered by this Court was whether s. 34 could be read in conjunction with Part  11 of  s. 304, Indian Penal Code.  In this Court  the  argument was confined to this point of law.  The High Court  rejected the  application for the certificate pointing out  that  the controversy had been settled by a Full Bench decision of the High  Court  reported  in Ibra Akanda  v.  Emperor(1).   The learned Judges were of the opinion that the point was not of sufficient importance for permitting the appellants to  take an appeal to this Court. For  the  consideration of the point of law which  has  been debated  before  us, we may state only such  facts  as  will bring out the controversy.  One Abdul Sheikh in the  company of  his  son, Adut, aged 13, went to his  field  in  village Noapara  to uproot linseed plants.  This was on the  morning of  March 13, 1962.  While he was, so employed, two  of  the appellants,  Afrahim and Jesed, appeared on the  scene,  and Afrahim  asked Jesed to catch hold of Abdul  Sheikh.   Abdul Sheikh took to his heels and was chased by these two  appel- lants,  who  overtook him and threw him down on  the  ground Immediately thereafter, there appeared on the scene the  re- maining appellants.  Jarahim was armed with a ballam and  he started  to  hit Abdul Sheikh on his legs with  the  ballam. The  appellant,  Manu, arrived with a sabal  (crowbar),  and began  to  strike Abdul Sheikh and  the  appellant,  Mesher. began to strike Abdul Sheikh with a lathi.  All this, while, the  sixth appellant, Makid, held Abdul Sheikh by  the  legs and  Afrahim  and  Jesed  held him  down  by  his  head  and shoulders.   The  incident was witnessed by  Adut  and  two, others, and it is on the testimony of Adut and these two (1) I.L.R.(1944) 2 Cal. 405. 174 other witnesses, to whom reference is unnecessary, that  the learned Assistant Sessions Judge, Birbhum, came to the  con- clusion  that  the  offence  was  committed  in  the  manner described  above.  Abdul Sheikh was seriously injured;  both his legs below the knee were fractured and one arm above the wrist  was also fractured.  He had also some incised  wounds and  some bruises.  He was examined by one Dr.  Bashiruddin, who gave him first aid.  Dr. Bashiruddin stated on oath that Abdul Sheikh narrated to him the incident and named all  the six appellants.  Later, Abdul Sheikh was removed to  Nalhati Health  Centre, and while arrangements were being  made  for recording  his  dying  declaration,  he  succumbed  to   his injuries.  He had, however, made dying declarations to  some of  the prosecution witnesses and they have deposed  to  the fact that he had named the six appellants as his assailants. In  this  appeal,  we did not allow  Dr.  D.  N.  Mukherjee,

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counsel  for the appellants, to argue on facts.  We  assumed that  the incident took place as narrated by the  witnesses. Mr. Mukherjee contends that the conviction of the appellants under s. 304, Part 11 is illegal, because according to  him, s. 34 cannot be called in aid, as the second part of s.  304 concerns  itself  with  knowledge  and  absolutely  excludes intention as the ingredient of the offence.  He relies  upon the  minority decision of Das J. (as he then was) in Ibra  A kanda  v. Emperor(1).  In that case, the learned  Judge  had expressed the opinion that s. 34 was incapable of being read with the second Part of s. 304.  With the view of the learn- ed  Judge,  Lodge J. differed and the case was  then  placed before  Khundkar J. who agreed with Lodge J., and the  deci- sion  was that s. 34 could be so read.  At the  hearing  Mr. Mukherjee drew our attention to three other cases in which a view  supporting his contention appears to have been  taken. The  first is a single Judge decision of the Allahabad  High Court reported in Ramnath v. Emperor(2), and the other is  a Division  Bench case from Peshawar reported in Sahibzada  v. The Crown(3).  He also referred to an earlier Calcutta  case reported  in  Debi Charan Haldar v. Emperor(1), in  which  a division Bench had expressed some (1)  1. L. R. (1944) 2 Cal. 405. (3)  A.I.R. 1950 Peshawar 24. (2)  A.I.R. 1943 All. 271. (4)  41 C.W.N. 570. 175 doubts  about the applicability of s. 34 to s. 304, Part  1. As  against  this, Mr. Chakravarti, counsel  for  the  State relied  upon  a Full Bench decision of  the  Allahabad  High Court  reported in Saidu Khan v. State(1) where it has  been clearly held that s. 34 can be so read. Before dealing with the point of law, we shall refer to  the essential facts once again.  Apart from the fact that  there is  proof that there were two parties and there  was  enmity between the appellants and Abdul Sheikh, the facts proved in the case clearly establish that Abdul Sheikh had gone for  a peaceful  purpose  in  the company of  his  young  son,  and immediately  after his arrival, he was chased by two of  the appellants and caught and felled to the ground.  After  this the remaining four appellants appeared and beat Abdul Sheikh with  diverse weapons, while those who were not armed,  held him  pinned  to  the ground.  Mr. Chakravarti  is  right  in contending  on  these  facts  that the  act  took  place  in furtherance  of a common intention.  No doubt, as  has  been laid  down by the Privy Council and by this Court  in  cases which  are  now very familiar, common intention  must  exist before  the  criminal act is perpetrated, and  that  is  the essence  of s. 34.  Here, in our opinion,  that  requirement was completely satisfied, because the six accused could  not but  by a prior concert have appeared simultaneously at  the scene,  and chased and overthrown the victim, held him  down and beaten him.  The facts disclosed in the evidence clearly establish  a prior concert amongst the six  appellants.   It has been so inhered by the Assistant Sessions Judge, and  we see no reason to differ from him. Now  that the criminal act has been held by us to have  been the  result of a previous concert and in furtherance of  the common intention, we shall proceed to examine whether s.  34 I.P.C.  can  be made applicable for the purpose  of  holding that   culpable  homicide  not  amounting  to   murder   was committed,  and that each of the appellant  was  responsible for the offence.  Section 34 of the Indian Penal Code  reads as follows:               "When  a  criminal  act  is  done  by  several

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             persons, in               furtherance  of the common intention  of  all,               each               (1)   I.L.R. [1952] 1 AlL. 639.               176               of such persons is liable for that act in  the               same-,  manner  as  if it  were  done  by  him               alone." In  s.  33  which precedes, it is laid down  that  the  word "act"’  denotes not only a single act but also a  series  of acts.   In  other  words,  as was  stated  by  the  Judicial Committee, in Barendra Kumar Ghosh’s case(1) "a criminal act means.  that unity of criminal behaviour, which  results  in something,  for which an individual would be punishable,  if it  were  all  done  by  himself  alone,  i.e.,  a  criminal offence." Here, the beating was perpetrated not by a  single individual but by three persons with whom others were acting in  concert.   The  criminal act resulted  in  the  criminal offence of culpable homicide not amounting to murder.  There is  no  dispute  as to that.   Whether  all  the  appellants individually  would  be responsible for the death  of  Abdul Sheikh is the question to be determined, and that conclusion can only be reached if it can be said that the act which was committed was done in furtherance of a common intention.  It is  argued that s. 304 makes a difference in its  two  parts between  the commission of the offence of culpable  homicide with  a particular intention and the commission of the  same offence  without  that  intention  but  with  a   particular knowledge.   It  is urged’ that this  distinction  makes  it impossible that s. 34 which deals only with common intention can be read with it.  Section 304 reads as follows:-               "Whoever   commits   culpable   homicide   not               amounting  to murder, shall be  punished  with               imprisonment  for  life,  or  imprisonment  of               either description for a term which may extend               to  ten  years, and’ shall also be  liable  to               fine, if the act by which the death is  caused               is  done with the intention of causing  death,               or of causing such bodily injury as is  likely               to cause death;               or with imprisonment of either description for               a term which may extend to ten years, or  with               fine,  or with both, if the act is  done  with               the  knowledge  that it is  likely  to  cause‘               death, but:               (1)   [1925] I.L.R. 52 Cal. 197.               177               without  any  intention to cause death  or  to               cause such bodily injury as is likely to cause               death." Sec. 304 does not define culpable homicide not amounting  to murder.   That  definition is to be found in s.  299,  which provides:               "Whoever causes death by doing an act with the               intention  of  causing  death,  or  with  *,he               intention of causing such bodily injury as  is               likely  to cause death, or with the  knowledge               that he is likely by such act to cause  death,               commits the offence of culpable homicide." Culpable homicide is the causing of the death of a person in three  ways:  (1) with the intention of causing  death,  (2) with  the  intention  of causing such bodily  injury  as  is likely  to cause death, and (3) with the knowledge that  the offender is likely by such act to cause death.  The  offence of culpable homicide becomes murder when four  circumstances

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exist.   They are mentioned in s. 300.  A number  of  excep- tions  are  however  included,  and  those  exceptions  show extenuating  circumstances  on  strict proof  of  which  the offence  is  again  brought down to  culpable  homicide  not amounting  to murder.  The causing of the death of a  person by  doing  an act accompanied by intention in the  two  ways described  in s. 299 or with the knowledge that the  act  is likely   to  cause  death  also  described  there  is   thus distinguished  from cases of deaths resulting from  accident or  rash and negligent act and those cases where  death  may result  but the offence is of causing hurt either simple  or grievous.   Once it was established, as was  established  in this case, that the act was a deliberate act and was not the result of accident or rashness or negligence, it is  obvious that  the offence which was committed was one under s.  304. In the present case however death was not the result of  the act of a single individual but was the result of the act  of several  persons,  and  they shared  the  common  intention, namely, the commission of the act or acts by which death was occasioned. Section  34 is a part of a group of sections, of which  some other sections may also be seen.  Section 35 is as follows: 134-159 S.C.-12. 178               "Whenever  an act, which is criminal  only  by               reason  of  its  being done  with  a  criminal               knowledge  or  intention, is done  by  several               persons, each of such persons who joins in the               act with such knowledge or intention is liable               for  the act in the same manner as if the  act               were done by him alone with that knowledge  or               intention." In  this section also the responsibility is shared  by  each offender  individually if the act which is criminal only  by reason of certain criminal knowledge or intention is done by each  person sharing that knowledge or  intention.   Indeed, this  section also was applicable here.  Under s. 37,  "when an  offence is committed by means of several  acts,  whoever intentionally co-operates in the commission of that  offence by  doing  any one of those acts, either singly  or  jointly with  any  other  person,  commits  that  offence."  By  co- operating  in  the  doing of  several  acts  which  together constitute  a  single  criminal act,  each  person  who  co- operates in the commission of that offence by doing any  one of  the  acts is either singly or jointly  liable  for  that offence.  Section 38 then provides:               "Where   several   persons  are   engaged   or               concerned in the commission of a criminal act,               they  may be guilty of different  offences  by               means of that act." That is to say, even though several persons may do a  single criminal  act, the responsibility may vary according to  the degree  of their participation.  The illustration  which  is given clearly brings out that point. Viewing these sections in this manner it is obvious that two sections  in this group deal with individual  responsibility for  a single criminal act perpetrated by a large number  of persons  who either share a common intention or possess  the criminal  knowledge (ss. 34 and 35) and the third  with  co- operation  between several accused in the completion of  the criminal  act  (s.  37).  Lastly s.  38  provides  that  the responsibility  for  the completed criminal act  may  be  of different  grades  according  to  the  share  taken  by  the different accused in the completion of the criminal act, and this  section  does  not mention  anything  about  intention

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common or otherwise or knowledge. 179 Section 34, when it speaks of a criminal act done by several persons in furtherance of the common, intention of all,  has regard  not to the offence as a whole, but to  the  criminal act,  that  is to say, the totality of the  series  of  acts which  result  in  the offence.  In the  case  of  a  person assaulted  by many accused, the criminal act is the  offence which  finally  -results,  though the  achievement  of  that criminal  act  may  be  -the result  of  action  of  several persons.  No doubt, a person is only responsible  ordinarily for what he does and s. 38 -ensures that; but the law in  s. 34  (and  also s. 35) says that if the criminal act  is  the result of a common intention, then ,every person who did the criminal act with the common intention would be  responsible for the total offence irrespective of the share which he had in  its perpetration.  In. Barendra Kumar  Ghosh’s  case(1), the Judicial Committee ,observed:               "Sec.  34  I.P.C.  deals  with  the  doing  of               separate acts, similar or diverse, by  several               persons;  if all are done in furtherance of  a               common  intention, each person is  liable  for               the result of them all as if he had done  them               himself.   ’That act’ and then again  ’it’  in                             the latter part of the section must in clude the               whole  of the action covered by  the  criminal               act in the first part of the section." Provided there is common intention, the whole of the -result perpetrated  by several offenders, is attributable  to  each ,offender,  notwithstanding that individually they may  have done separate acts, diverse or similar.  Applying this  test to the present case, if all the appellants shared the common intention of severely beating Abdul Sheikh and some held him down  and others beat him with their weapons,  provided  the common  intention  is accepted, they would all  of  them  be responsible  for the whole of the criminal act, that  is  to Say, the criminal offence of culpable homicide not amounting -,to  murder which was committed, irrespective of  the  part played  by them.  The common intention which is required  by the  section is not the intention which s. 299  mentions  in its  first  part.   That  intention  is  individual  to  the offender unless it is shared with others by a prior  concert in which ,case ss. 34 or 35 again come into play.  Here, the common (1)  [1925] I.L.R. 52 Cal.  197 180 intention  was  to  beat  Abdul  Sheikh,  and  that   common intention was, as we have held above, shared by all of them. That  they  did  diverse acts would  ordinarily  make  their responsibility individual for their own acts, but because of the  common  intention, they would be  responsible  for  the total  effect  that  they  produced  if  any  of  the  three conditions  in s. 299, I.P.C. applied to their case.  If  it were  a  case  of the first two conditions,  the  matter  is simple.   They speak of intention and s. 34 also  speaks  of intention. The  question  is whether the second part of s. 304  can  be made  applicable.   The  second  part  no  doubt  speaks  of knowledge  and  does not refer to intention which  has  been segregated  in  the  first  part.   But  knowledge  is   the knowledge  of the likelihood of death.  Can it be said  that when  three or four persons start beating a man  with  heavy lathes, each. hitting his blow with the common intention  of severely beating him and each possessing the knowledge  that

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death was the likely result of the beating, the requirements of  s.    304, Part II are not satisfied in the case of each of them?’If    it could be said that knowledge of this  type was possible in     the case of each one of the  appellants, there  is no reason why s. 304, Part II cannot be read  with s. 34.  The common intention is with regard to the  criminal act, i.e., the act of beating.  If the result of the beating is  the death of the victim, and if each of  the  assailants possesses the knowledge that death is the likely consequence of the criminal act, i.e.,. beating, there is no reason  why s. 34 or s. 35 should not be read with the second part of s. 304 to make each liable individually. This matter has been elaborately considered in the  judgment of  Lodge  J. and again in the Full Bench  decision  of  the Allahabad High Court.  We do not think that we need say more on this, because we are in agreement with the decision given by the majority in the Calcutta High Court case and the Full Bench decision of the Allahabad High, Court.  It appears  to us  that in other cases doubt was felt because s. 304 is  in two  parts,  and  first  part  is  concerned  with  culpable homicide  committed  with  two types of  intention  and  the second   part  with  culpable  homicide  committed  with   a particular  knowledge.  It appears that it was felt that  s. 34,  which  deals with common intention, could not  be  read with 181 the  second  part of s. 304.  In our  opinion,  the  learned Judges  who held that view and we say it  respectfully  fell into  the  error  of  viewing the second  part  of  s.  3,04 divorced from common intention whatever.  A person does  not do  an act except with a certain intention, and  the  common intention which is requisite for the application of s. 34 is the  common  intention  of perpetrating  a  particular  act. Previous  concert which is insisted upon is the  meeting  of the minds regarding the achievement of a criminal act.  That circumstance  is  completely fulfilled in a  case  like  the present   where  a  large  number  of  persons   attack   an individual, chase him, throw him on the ground and beat  him till  he  dies.  Even if the ,offence does not come  to  the grade of murder, and is only culpable homicide not amounting to  murder, there is no doubt whatever that the  offence  is shared   by  all  of  them,  and  s.  34  then   makes   the responsibility several if there was a knowledge possessed by each of them that death was likely -to be caused as a result of that beating.  This circumstance is completely  fulfilled in  the present case, and we are, therefore, satisfied  that the  conviction  of the appellants was proper,  and  see  no reason to interfere. In the result, the appeal fails and is dismissed. Appeal dismissed.