1. This is an appeal from jail preferred by one Muklesur Rahman and Habibur Rahman who were convicted by the learned Sessions Judge, A. L, D., Under Section 801, Part II, read with B. si, Penal Code, upon a trial held with the aid of a jury. Agreeing with the unanimous verdict of the jury, the learned Judge found the two accused guilty and sentenced the accused Mukleaur Rahman to rigorous imprisonment for five years, and Habibur Rahman to rigorous imprisonment for four years, Under Section 804, Part II, read with Section 34, Penal Code.
2. We admitted the appeal to hearing is order to satisfy ourselves whether Section 84, Penal Code, was applicable in point of law to a case when the accused persons are convicted and sentenced Under Section 304, Part n read with Section 34 Penal Code.
3. The question of common intention is a question of fact, which was properly dealt with by the learned Sessions Judge in his summing up to the Jury, and we, therefore, accept toe existence of a common intention within the meaning of Section 34, Penal Code, as a fact, which undoubtedly was a matter for the jury alone to decide,
4. The question whether in point of law, Section 34, Penal Code, applies to a case when accused persons are charged with and found guilty Under Section 804, part II, Penal Code, came up before a Division Bench of the Calcutta High Court in Ibra Ahanda v. Emperor A. I. R. (31) 1944 Cal. 339 : 45 cr. L. J. 771, Lodge and Das JJ. differed, Ehundkar J., agreed with Lodge J., and referred to the case reported in Adam Ali v. Emperor 81 C W. N. 314 : A.I.R. (14) 1927 cal. 324 : 28 Cr.L.J. 834, in which the following observations were made:
There is yet another objection to the charges and verdict. It is that Section 84, which is baaed on a common intention, cannot possibly be used with Part 2 of Section 304, which expressly excludes intention. Personally I do not think that it could be used with Part 1 either, em pt possibly in very tare cases. However, the point is that the jury have found the accused guilty of committing culpable homicide by doing an act with the knowledge that they were likely to cause death but without any such intention in furtherance of a common intention. It is the badly framed charge and the defective summing up that have led the jury to their illogical verdict.
With reference to these observations, Lodge 3. remarked:
With great respect to the learned Judge, I am not quite able to discover whether he did or did not dismiss it or give any reason for his decision. Bat it is clear from a perusal of the judgment that the learned Judge decided the cage upon other considerations and that the decision of that case did not depend on the interpretation of 3. 84. The learned Judges remarks, therefore, on the applicability of Section 34 to Section 304, Part 2, may be considered as obiter dicta....Though the question of the true interpretation of Section 34 has been considered in many repotted cases, in the majority of those cases, the term-'criminal act' was examined and the Courts did not attempt to explain the meaning of the phrase In furtherance of the common intention of all.... In the result, therefore, I hold that there is no difficulty in applying Sections 84 and 85 to cases of culpable homicide 'punishable Under Section 304(2).
5. With respect, we think, the view taken by Lodge and Khundkar JJ., is right. It is to be observed that the common intention contemplated by Section 84 is anterior in time to the com-mission of the crime, and does not refer to the time when the act is committed. If, on the facts of a particular case, it is proved that the common intention of two or more persona was to cause death of a person, and in furtherance of the common intention, an act was done by one which caused the death of a person, we do not think there is any difficulty in applying Section 84, whether the conviction is recorded Under Section 304(1) or Section 304(2), Penal Code.
6. The result is that the appeal is dismissed,
Ram Labhaya, J.
7. I agree with my Lord the Chief Justice in the conclusion that the appeal may be dismissed.
8. The learned Government Advocate has relied on Ibra Akanda v. Emperor A.I.R. (81) 1944 cal. 839 : 45 Cr. L. J. 771, for showing that there is not difficulty in applying Section 34, Penal Code to cases covered by Section 804, part n, Penal Code. In this case on a difference arising be. tween Lodge and Das JJ., the matter was placed before Khundkar J., under the provisions of Section 429, Criminal P.C.
9. Lodge J, was firmly of the opinion that there was no difficulty in applying Sections 34 and 35 to cases of culpable homicide punishable Under Section 304, part. Ii (see p. 846). Das J,, on the other hand, was emphatic in the expression of the view that Part. II of Section 304 expressly excludes intention and could not possibly be read with Section 11, Penal code. These views represented the two extremes of a very vexed question.
10. Khundkar J., it appears, could not agree with any of these views. His conclusion stated in his own words is as follows:
It follows that, as already indicated, I cannot concur with any brother Das in the view that the principle of Section 84 can never be applied to an offence punishable under the second part of Section 304,
11. He came to this conclusion by giving the words 'common intention' occurring in Section 84 a meaning varying with the facts of each case. In his view 'common intention' referred to in Section 34 could not he given a constant connotation. It varied with the facts of each particular case. In this view of the matter, he could not hold that Section 34 could never be applied to an offence punishable Under Section 804, Part II, He, however, made certain observations which considerably reduced the scope of the applicability of Section 34 to cases falling Under Section 304, Part II His observations are as follows:
Before I leave this subject, however, I ought to add that I am inclined to indore the observations of Henderson J,, that in actual fact, cases in which the principle enunciated in Section 34 can be applied to an offence punishable under Part II of Section 304, are not of very frequent occurrence. Cases of the type out o which the appeals here dealt with have arisen, are really cases in which the offence committed is in fact murder punishable Under Section 302. In order to allay the qualms of juries who, in this province, are notoriously averse to returning affirmative verdicts on capital charges, Judges frequently go to artificial lengths, in leaving open an avenue to a verdict Under Section 304, Part II, when the evidence shows that it is either murder or nothing.
12. These observations show that cases which could be appropriately placed Under Section 304, part II, read with Section 34 would be found to be rare in actual life even if fall effect is given to the view of Khundkar J. The statement that Judges by their charge make it possible for the juries to return a verdict Under Section 304, part II in order to get over the difficulty created by the disinclination of the juries to return a verdict on capital charges Under Section 302 is unfortunately very true and the present case is typical of the attitude of Judges in this respect. A conviction in the pro-sent case under a. 302 or Section 304, part 1, would obviously have been more appropriate. The charge suggested the possibility of the application of Section 304 Part II, where in fact it was not applicable, The error, therefore, has been not in the application of Section 34 but in the application of Section 304, part II.
13. The misdirection in these circumstances has not prejudiced the accused, and there has been be miscarriage of justice. The appellants on the other hand became entitled to lenient treatment. In this view of the matter, there is no basis for interference in this case and it is not necessary to examine the question of principle whether Section 34 can under any conceivable circumstances be applied to cases falling Under Section 304, part II