Skip to content


Afrahim Sheikh and ors. Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1964SC1263; 1964CriLJ350; [1964]6SCR172
ActsIndian Penal Code (IPC), 1860 - Sections 34, 35 and 304
AppellantAfrahim Sheikh and ors.
RespondentState of West Bengal
Cases ReferredSaidu Khan v. State
Excerpt:
.....that there is proof that there were twoparties and there was enmity between the appellants and abdul sheikh, the factsproved in the case clearly establish that abdul sheikh had gone for a peacefulpurpose in the company of his young son, and immediately after his arrival, hewas chased by two of the appellants and caught and felled to the ground. the facts disclosed in the evidence clearly establish aprior concert amongst the six appellants. the illustration which is given clearly brings out that point. 304, part iiare not satisfied in the case of each of them ? if it could be said thatknowledge of this type was possible in the case of each one of the appellants,there is no reason why s. thatcircumstance is completely fulfilled in a case like the present where a largenumber of persons..........on oath that abdul sheikhnarrated to him the incident and named all the six appellants. later, abdulsheikh was removed to nalhati health center, and while arrangements were beingmade for recording his dying declaration, he succumbed to his injuries. he had,however, made dying declarations to some of the prosecution witnesses and theyhave deposed to the fact that he had named the six appellants as hisassailants. 3. in this appeal, we did not allow dr. d. n. mukherjee, counsel for theappellants, to argue on facts. we assumed that the incident took place asnarrated by the witnesses mr. mukherjee contends that the conviction of theappellants under s. 304, part ii is illegal, because according to him, s. 34cannot be called in aid, as the second part of s. 304 concerns itself withknowledge.....
Judgment:

Hidayatullah, J.

1. The six appellants who have appealed to this Court by special leave wereconvicted by the Assistant Sessions Judge, Birbhum under s. 304 Part II readwith s. 34 of the Indian Penal Code and sentenced to six years' rigorousimprisonment each. Their appeal to the high Court was summarily dismissed. Whenthe appellants applied for a certificate in the High Court they made it plain thatthe only point which was required to be considered by this Court was whether s.34 could be read in conjunction with Part II of s. 304, Indian Penal Code. Inthis Court the argument was confined to this point of law. The High Courtrejected the application for the certificate pointing out that the controversyhad been settled by a Full Bench decision of the High Court reported in IbraAkanda v. Emperor I.L.R. (1944) 2 Cal. 405. The learned Judges were of theopinion that the point was not of sufficient importance for permitting theappellants to take an appeal to this Court.

2. For the consideration of the point of law which has been debated beforeus, we may state only such facts as will bring out the controversy. One AbdulSheikh in the company of his son, Adut, aged 13, went to his field in villageNoapara 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 onthe scene, and Afrahim asked Jesed to catch hold of Abdul Sheikh. Abdul Sheikhtook to his heels and was chased by these two appellants, who overtook him andthrew him down on the ground. Immediately thereafter, there appeared on thescene the remaining appellants. Jarahim was armed with a ballam and he startedto hit Abdul Sheikh on his legs with the ballam. The appellant, Manu, arrivedwith 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 sixthappellant, Makid, held Abdul Sheikh by the legs and Afrahim and Jesed held himdown by his head and shoulders. The incident was witnessed by Adut and twoothers, and it is on the testimony of Adut and these two other witnesses, towhom reference is unnecessary, that the learned Assistant Sessions Judge,Birbhum, came to the conclusion that the offence was committed in the mannerdescribed above. Abdul Sheikh was seriously injured; both his legs below theknee were fractured and one arm above the wrist was also fractured. He had alsosome incised wounds and some bruises. He was examined by one Dr. Bashiruddin,who gave him first aid. Dr. Bashiruddin stated on oath that Abdul Sheikhnarrated to him the incident and named all the six appellants. Later, AbdulSheikh was removed to Nalhati Health center, and while arrangements were beingmade for recording his dying declaration, he succumbed to his injuries. He had,however, made dying declarations to some of the prosecution witnesses and theyhave deposed to the fact that he had named the six appellants as hisassailants.

3. In this appeal, we did not allow Dr. D. N. Mukherjee, counsel for theappellants, to argue on facts. We assumed that the incident took place asnarrated by the witnesses Mr. Mukherjee contends that the conviction of theappellants under s. 304, Part II is illegal, because according to him, s. 34cannot be called in aid, as the second part of s. 304 concerns itself withknowledge 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 Akandav. Emperor I.L.R. (1944) 2 Cal. 405. In that case, the learned Judge hadexpressed the opinion that s. 34 was incapable of being read with the secondPart of s. 304. With the view of the learned Judge, Lodge J. differed and thecase was then placed before Khundkar J. who agreed with Lodge J., and thedecision was that s. 34 could be so read. At the hearing Mr. Mukherjee drew ourattention to three other cases in which a view supporting his contentionappears to have been taken. The first is a single Judge decision of theAllahabad High Court reported in Ramnath v. Emperor : AIR1943All271 , andthe other is a Division Bench case from Peshawar reported in Sahibzada v. TheCrown A.I.R. 1950 Pesh 24. He also referred to an earlier Calcutta casereported in Debi Charan Haldar v. Emperor (41 C.W.N. 570), in which a divisionBench had expressed some doubts about the applicability of s. 34 to s. 304,Part I. As against this, Mr. Chakravarti, counsel for the State relied upon aFull Bench decision of the Allahabad High Court reported in Saidu Khan v. State(I.L.R. (1952) 1 All. 639) where it has been clearly held that s. 34 can be soread.

4. Before dealing with the point of law, we shall refer to the essentialfacts once again. Apart from the fact that there is proof that there were twoparties and there was enmity between the appellants and Abdul Sheikh, the factsproved in the case clearly establish that Abdul Sheikh had gone for a peacefulpurpose in the company of his young son, and immediately after his arrival, hewas chased by two of the appellants and caught and felled to the ground. Afterthis the remaining four appellants appeared and beat Abdul Sheikh with diverseweapons, 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 infurtherance of a common intention. No doubt, as has been laid down by the PrivyCouncil and by this Court in cases which are now very familiar, commonintention must exist before the criminal act is perpetrated, and that is theessence of s. 34. Here, in our opinion, that requirement was completelysatisfied, because the six accused could not but by a prior concert have appearedsimultaneously at the scene, and chased and overthrown the victim, held himdown and beaten him. The facts disclosed in the evidence clearly establish aprior concert amongst the six appellants. It has been so infered by theAssistant Sessions Judge, and we see no reason to differ from him.

5. Now that the criminal act has been held by us to have been the result ofa previous concert and in furtherance of the common intention, we shall proceedto examine whether s. 34 I.P.C. can be made applicable for the purpose ofholding that culpable homicide not amounting to murder was committed, and thateach of the appellant was responsible for the offence. Section 34 of the IndianPenal Code reads as follows :

'When a criminal act is done by several persons, infurtherance of the common intention of all, each of such persons is liable forthat act in the same manner as if it were done by him alone.'

6. 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 wasstated by the Judicial Committee, in Barendra Kumar Ghosh's case (1925) I.L.R.52 Cal. 197 'a criminal act means that unity of criminal behaviour, whichresults in something, for which an individual would be punishable, if it wereall done by himself alone, i.e., a criminal offence.' Here, the beatingwas perpetrated not by a single individual but by three persons with whomothers were acting in concert. The criminal act resulted in the criminaloffence of culpable homicide not amounting to murder. There is no dispute as tothat. Whether all the appellants individually would be responsible for thedeath of Abdul Sheikh is the question to be determined, and that conclusion canonly be reached it can be said that the act which was committed was done infurtherance of a common intention. It is argued that s. 304 makes a differencein its two parts between the commission of the offence of culpable homicidewith a particular intention and the commission of the same offence without thatintention but with a particular knowledge. It is urged that this distinctionmakes it impossible that s. 34 which deals only with common intention can beread with it. Section 304 reads as follows :-

'Whoever commits culpablehomicide 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 isdone with the intention of causing death, or of causing such bodily injury asis likely to cause death;

or with imprisonment of eitherdescription for the term which may extend to ten years, or with fine, or withboth, if the act is done with the knowledge that it is likely to cause death,but without any intention to cause death or to cause such bodily injury as islikely to cause death.'

7. Section 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 theintention of causing death, or with the intention of causing such bodily injuryas is likely to cause death, or with the knowledge that he is likely by suchact to cause death, commits the offence of culpable homicide.'

8. 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 suchbodily injury as is likely to cause death, and (3) with the knowledge that theoffender is likely by such act to cause death. The offence of culpable homicidebecomes murder when four circumstances exist. They are mentioned in s. 300. Anumber of exceptions are however included, and those exceptions showextenuating circumstances on strict proof of which the offence is again broughtdown to culpable homicide not amounting to murder. The causing of the death ofa person by doing an act accompanied by intention in the two ways described ins. 299 or with the knowledge that the act is likely to cause death also describedthere is thus distinguished from cases of deaths resulting from accident orrash and negligent act and those cases where death may result but the offenceis of causing hurt either simple or grievous. Once it was established, as wasestablished in this case, that the act was a deliberate act and was not theresult of accident or rashness or negligence, it is obvious that the offencewhich was committed was one under s. 304. In the present case however death wasnot the result of the act of a single individual but was the result of the actof several persons, and they shared the common intention, namely, thecommission of the act or acts by which death was occasioned.

9. Section 34 is a part of a group of sections, of which some other sectionsmay also be seen. Section 35 is as follows :

'Whenever an act, which is criminal only by reasonof its being done with a criminal knowledge or intention, is done by severalpersons, each of such persons who joins in the act with such knowledge orintention is liable for the act in the same manner as if the act were done byhim alone with that knowledge or intention.'

10. In this section also the responsibility is shared by each offenderindividually if the act which is criminal only by reason of certain criminal knowledgeor intention is done by each person sharing that knowledge or intention.Indeed, this section also was applicable here. Under s. 37, 'when anoffence is committed by means of several acts, whoever intentionallyco-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.' Byco-operating in the doing of several acts which together constitute a singlecriminal act, each person who co-operates in the commission of that offence bydoing 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 inthe commission of a criminal act, they may be guilty of different offences bymeans of that act.'

11. That is to say, even though several persons may do a single criminalact, the responsibility may vary according to the degree of theirparticipation. The illustration which is given clearly brings out that point.

12. Viewing these sections in this manner, it is obvious that two sectionsin this group deal with individual responsibility for a single criminal actperpetrated by a large number of persons who either share a common intention orpossess the criminal knowledge (Sections 34 and 35) and the third with co-operationbetween several accused in the completion of the criminal act (s. 37). Lastlys. 38 provides that the responsibility for the completed criminal act may be ofdifferent grades according to the share taken by the different accused in thecompletion of the criminal act, and this section does not mention anythingabout intention common or otherwise or knowledge.

13. Section 34, when it speaks of a criminal act done by several persons infurtherance of the common intention of all, has regard not to the offence as awhole, but to the criminal act, that is to say, the totality of the series ofacts which result in the offence. In the case of a person assaulted by manyaccused, the criminal act is the offence which finally results, though theachievement of that criminal act may be the result of action of severalpersons. No doubt, a person is only responsible ordinarily for what he does ands. 38 ensures that; but the law in s. 34 (and also s. 35) says that if thecriminal act is the result of a common intention, then every person who did thecriminal act with the common intention would be responsible for the totaloffence irrespective of the share which he had in its perpetration. In BarendraKumar Ghosh's case (1925) I.L.R. 52 Cal. 197, the Judicial Committee observed:

'Section 34 I.P.C. deals with the doing of separateacts, similar or diverse, by several persons; if all are done in furtherance ofa common intention, each person is liable for the result of them all as if hehad done them himself. 'That act' and then again 'it' in the latter part of thesection must include the whole of the action covered by the criminal act in thefirst part of the section.'

14. Provided there is common intention, the whole of the result perpetratedby several offenders, is attributable to each offender, notwithstanding thatindividually they may have done separate acts, diverse or similar. Applyingthis test to the present case, if all the appellants shared the commonintention of severely beating Abdul Sheikh and some held him down and othersbeat him with their weapons, provided the common intention is accepted, theywould all of them be responsible for the whole of the criminal act, that is tosay, the criminal offence of culpable homicide not amounting to murder whichwas committed, irrespective of the part played by them. The common intentionwhich is required by the section is not the intention which s. 299 mentions inits first part. That intention is individual to the offender unless it isshared with others by a prior concert in which case Sections 34 or 35 again comeinto play. Here, the common intention was to beat Abdul Sheikh, and that commonintention was, as we have held above, shared by all of them. That they diddiverse acts would ordinarily make their responsibility individual for theirown acts, but because of the common intention, they would be responsible forthe 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 ofintention.

15. The question is whether the second part of s. 304 can be madeapplicable. The second part no doubt speaks of knowledge and does not refer tointention which has been segregated in the first part. But knowledge is theknowledge of the likelihood of death. Can it be said that when three or fourpersons start beating a man with heavy lathis, each hitting his blow with thecommon intention of severely beating him and each possessing the knowledge thatdeath was the likely result of the beating, the requirements of s. 304, Part IIare not satisfied in the case of each of them If it could be said thatknowledge 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 commonintention is with regard to the criminal act, i.e., the act of beating. If theresult of the beating is the death of the victim, and if each of the assailantspossesses the knowledge that death is the likely consequence of the criminalact, i.e., beating, there is no reason why s. 34 or s. 35 should not be readwith the second part of s. 304 to make each liable individually.

16. 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 notthink that we need say more on this, because we are in agreement with thedecision given by the majority in the Calcutta High Court case and the FullBench decision of the Allahabad High Court. It appears to us that in othercases doubt was felt because s. 304 is in two parts, and first part isconcerned with culpable homicide committed with two types of intention and thesecond part with culpable homicide committed with a particular knowledge. Itappears that it was felt that s. 34, which deals with common intention, couldnot be read with the second part of s. 304. In our opinion, the learned Judgeswho held that view and we say it respectfully fell into the error of viewingthe second part of s. 304 divorced from common intention whatever. A person doesnot do an act except with a certain intention, and the common intention whichis requisite for the application of s. 34 is the common intention ofperpetrating a particular act. Previous concert which is insisted upon is themeeting of the minds regarding the achievement of a criminal act. Thatcircumstance is completely fulfilled in a case like the present where a largenumber of persons attack an individual, chase him, throw him on the ground andbeat him till he dies. Even if the offence does not come to the grade ofmurder, and is only culpable homicide not amounting to murder, there is nodoubt whatever that the offence is shared by all of them, and s. 34 then makesthe responsibility several if there was a knowledge possessed by each of themthat death was likely to be caused as a result of that beating. Thiscircumstance is completely fulfilled in the present case, and we are,therefore, satisfied that the conviction of the appellants was proper, and seeno reason to interfere.

17. In the result, the appeal fails and is dismissed.

18. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //