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PETITIONER: MATIULLAH SHEIKH

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT: 03/03/1964

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1965 AIR  132            1964 SCR  (6) 978

ACT: Criminal  Law-Murder  not actually  committed-If  conviction possible under s. 449-"In order to", meaning of-Charge under s. 307 with s. 34, if sustainable in law-Indian Penal  Code, 1860 (Act 45 of 1860) ss. 34, 307, 449.

HEADNOTE: The  appellants, were alleged to have entered the  house  of one  with the common intention of killing him.  One  of  the appellants  injured  E with a dagger while the  other  three held  him.   E’s injury did not prove fatal.   The  Sessions Judge convicted them under ss. 449 and 307 with s. 34 of the Indian  Penal Code. which on appeal was upheld by  the  High Court.   On  appeal by certificate, it  was  contended  that there can 979 be  no  conviction  under s. 449 of the  Indian  Penal  Code unless murder had actually been committed; and that a charge under s. 307 read with s.     34  of the Indian  Penal  Code was not Sustainable in law. Held: There was no substance in either of these contentions. An  act  can  be  said to be  committed  "in  order  to  the committing of an offence" even though the offence may not be completed.  The words "in order to" have been used in s. 449 I.P.C.  to mean "with the purpose of’.  Whether or  not  the purpose was actually accomplished is quite irrelevant. Once  it is decided that the act is so done by a  number  of persons  in furtherance of the common intention of all,  the legal position that results is each person shall be held  to have committed the entire criminal act.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 111  of 1961. Appeal  from the judgment and order dated March 2,  1961  of the Calcutta High Court in Criminal Appeal No. 269 of 1961. D.   N. Mukherjee, for the appellants. P.   K. Chakravarthy for P. K. Bose, for the respondent. March 3, 1964.  The Judgment of the Court was delivered by

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DAS  GUPTA  J.-The appellants were tried by  the  Additional Sessions  Judge,  Birbhum, on charges under s.  449  and  s. 307/34  of the Indian Penal Code.  The prosecution case  was that on the night of the 14th November, 1950 when Haji Ebrar Ali  was  sleeping  on  the  Verandah  of  his  hut,   these appellants  came  there  and while one of  them  Abdul  Odud pressed his knees and Ekram and Habibullah pressed his chest and hands, Matiullah inflicted an injury on his neck with  a dagger.   Ebrar Ali woke up and raised a shout at  the  same time catching hold of Odud.  The other three assailants made good  their  escape.  Information about the  occurrence  was lodged  at  the  Thana by Ebrar Ali who  was  then  sent  to Rampurhat  hospital  for treatment.  It is  alleged  by  the prosecution  that these four appellants entered Ebrar  Ali’s house with the common intention of killing him, and that  in furtherance of that 980 common intention, Matiullah injured him with a dagger  while the  other  three held him down.   Fortunately,  the  injury inflicted on Ebrar Ali did not prove fatal. The jury returned an unanimous verdict of guilt against  all the appellants on both charges.  The learned Sessions Judge, accepted that verdict, and convicted them all under ss.  449 and  307  read  with s. 34 of the  Indian  Penal  Code.   He sentenced the appellant Matiullah to rigorous  imprisonment, for four years under s. 307/34 and to rigorous  imprisonment for  two  years under s. 449 of the Indian Penal  Code.   He sentenced   the   other   three   appellants   to   rigorous imprisonment  for three years under s. 307/34 of the  Indian Penal  Code  and for two years under s. 449  of  the  Indian Penal  Code.   All the four appealed to the  High  Court  of Calcutta.  But, the appeal was summarily dismissed.  A Bench of the High Court however gave the appellants a  certificate that  this  was a fit case for appeal to this  Court,  under Art. 134 (1) (c) of the Constitution.  On the basis of  that certificate this appeal has been preferred. Two points are urged before us on behalf of the  appellants. The first is that there can be no conviction under s. 449 of the  Indian  Penal  Code unless  murder  has  actually  been committed.   The second is that a charge under s.  307  read with  s. 34 of the Indian Penal Code is not  sustainable  in law.   In  our opinion, there is no substance in  either  of these contentions. Section  449 of the Indian Penal Code provides that  whoever commits  house  trespass in order to the committing  of  any offence  punishable  with  death,  shall  be  punished  with imprisonment  for life or with rigorous imprisonment  for  a term  not exceeding ten years, and shall also be  liable  to fine.   Mr. Mukherjee, who appeared before us on  behalf  of the appellants, argued that unless murder has been committed it  is  not  possible to say that  any  house  trespass  was committed  "in  order  to  the  committing"  of  an  offence punishable  with death.  According to the  learned  Counsel, from the fact that the purpose of the house trespass was  to commit  the  murder it is not right to  predicate  that  the house trespass was committed "in order to the committing of  981 murder".   We are unable to agree.  In our opinion,  an  act can  be said to be committed "in order to the committing  of an  offence" even though the offence may not  be  completed. Thus, if a person commits a house trespass with the  purpose of the committing of theft but has failed to accomplish  the purpose, it will be proper to say that he has committed  the house trespass in order to the committing of theft.  It  has to be noticed that the words "in order to" have been used by

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the legislature not only in s. 449 of the Indian Penal  Code but in the two succeeding sections 450, 451 and again in  s. 454  and  s.  457 of the Indian  Penal  Code.   Section  450 prescribes  the punishment for house trespass if it is  done "in order to" the committing of any offence punishable  with imprisonment  for  life.  Section 451 makes  punishable  the commission  of  an  offence  of  house  trespass  if  it  is committed  "in  order  to" the  committing  of  any  offence punishable with imprisonment.  Section 454 makes punishable, lurking  house trespass or house breaking, if committed  "in order  to"  the committing of any  offence  punishable  with imprisonment.   Section  457 prescribes the  punishment  for lurking house trespass by night or house breaking by  night, if  committed,  "in  or to the  committing  of  any  offence punishable with imprisonment. It  is worth noticing also that house trespass,  apart  from anything else is made punishable under s. 448 of the  Indian Penal  Code,  the punishment prescribed  being  imprisonment which may extend to one year, or with fine which may  extend to one thousand rupees, or both. Higher  punishment  is prescribed where  house  trespass  is committed  "in order to" the commission of  other  offences. An  examination of ss. 449, 450, 451, 454 and 457 show  that the  penalty  prescribed has been graded  according  to  the nature of the offence "in order to" the commission of  which house  trespass is committed.  It is quite clear that  these punishments  for house trespass are prescribed  quite  inde- pendent  of the question whether the offence "in  order  to" the commission of which the house trespass was committed has been  actually committed or not.  In our opinion, there  can be no doubt that the words "in order to" have been used 882 to mean "with the purpose of".  If the purpose in committing the   house  trespass  is  the  commission  of  an   offence punishable with death the house trespass becomes  punishable under  s. 449 of the Indian Penal Code.  If the  purpose  in committing  the  house  trespass is  the  commission  of  an offence  punishable  with imprisonment for  life  the  house trespass  is  punishable under s. 450 of  the  Indian  Penal Code.   Similarly,  ss. 451, 454 and 457 will apply  it  the house  trespass or lurking house trespass, or lurking  house trespass  by night or house breaking by night are  committed for the purpose of the offence indicated in those  sections. Whether  or  not the purpose was  actually  accomplished  is quite  irrelevant in these cases.  Our conclusion  therefore is that the fact that the murder was not actually  committed will  not affect the applicability of s. 449 of  the  Indian Penal Code. The second contention that no charge under s. 307 read  with s. 34 of the Indian Penal Code is sustainable in law appears to  proceed on a misreading of the effect of the  provisions of s. 34 of the Indian Penal Code. Section 307 of the Indian Penal Code runs thus:-               "Whoever  does any act with such intention  or               knowledge  and under such circumstances  that,               if  he by that act caused death, he  would  be               guilty  of  murder,  shall  be  punished  with               imprisonment of either description for a  term               which may extend to ten years, and shall  also               be  liable to fine; and if hurt is  caused  to               any person by such act, the offender shall  be               liable either to imprisonment for life, or to    suc h               punishment as is hereinbefore mentioned." According to Mr. Mukherjee, what is made punishable by  this

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section  is  the  individual  act  of  a  person  when  that individual has a particular intention or knowledge  referred to in the section and so, where the act is done by a  number of person,,, jointly it can have no application.  This argu- ment ignores the legal position that the act committed by  a number of persons shall in the circumstances mentioned in s. 34 of the Indian Penal Code be held to be the act of  983 each one individual of those persons.  Section 34 runs  thus : -               "When  a  criminal  act  is  done  by  several               persons,   in   furtherance  of   the   common               intention  of  all, each of  such  persons  is               liable  for that act in the same manner as  if               it were done by him alone." It  may, in many cases, be difficult to decide  whether  the criminal act in question has been done by several persons in furtherance of the common intention of all.  But, once it is decided  that the act is so done by a number of  persons  in furtherance  of  the  common intention  of  all,  the  legal position  that results is that each person shall be held  to have  committed  the  entire criminal  act.   Thus,  in  the present  case,  when it is found that  the  four  appellants attacked  Haji  Ebrar  Ali  in  furtherance  of  the  common intention  of all of them to kill him and some of them  held him down while one used the dagger on him, each of the  four is in law considered to have done the entire act of  holding Ebrar  Ali  down and applying the dagger.  If  Matiullah  by himself  had  held Ebrar Ali down and struck  him  with  the dagger,  with  the intention of causing his  death  and  the injury  had  actually resulted in his death, he  would  have been guilty of murder, except in some special  circumstances as mentioned in s. 300 of the Indian  Penal Code.   The  act did not result in death. So, he    becomes punishable  under s. 307 of the Indian Penal Code.  The position is in no  way different  when  Matiullah is not acting alone  but  he  and several  others  are acting jointly in  furtherance  of  the common intention of all of them to kill Ebrar Ali.  Each  of the  other three who did not use the dagger must in  law  be considered  to have done this act of using the  dagger;  and so,  each  of them becomes punishable under s.  307  of  the Indian Penal Code for injuring Ebrar Ali with the dagger  on the neck as if the act had been done by himself alone.   The contention that a charge under s. 307 read with s. 34 of the Indian Penal Code is not sustainable in law, must  therefore be rejected. In the result, the appeal fails and is dismissed. Appeal dismissed. 984