Das Gupta, J.
1. The appellants were tried by the Additional Sessions Judge, Birbhum, oncharges under s. 449 and s. 307/34 of the Indian Penal Code. The prosecutioncase was that on the night of the 14th November, 1950 when Haji Ebrar Ali wassleeping on the Verandah of his hut, these appellants came there and while oneof them Abdul Odud pressed his knees and Ekram and Habibullah pressed his chestand hands, Matiullah inflicted an injury on his neck with a dagger. Ebrar Aliwoke up and raised a shout at the same time catching hold of Odud. The otherthree assailants made good their escape. Information about the occurrence waslodged at the Thana by Ebrar Ali who was then sent to Rampurhat hospital fortreatment. It is alleged by the prosecution that these four appellants enteredEbrar Ali's house with the common intention of killing him, and that infurtherance of that common intention, Matiullah injured him with a dagger whilethe other three held him down. Fortunately, the injury inflicted on Ebrar Alidid not prove fatal.
2. The jury returned an unanimous verdict of guilt against all theappellants on both charges. The learned Sessions Judge accepted that verdict,and convicted them all under Sections 449 and 307 read with s. 34 of the IndianPenal Code. He sentenced the appellant Matiullah to rigorous imprisonment forfour 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 torigorous imprisonment for three years under s. 307/34 of the Indian Penal Codeand for two years under s. 449 of the Indian Penal Code. All the four appealedto the High Court of Calcutta. But, the appeal was summarily dismissed. A Benchof the High Court however gave the appellants a certificate that this was a fitcase for appeal to this Court, under Art. 134(1)(c) of the Constitution. On thebasis of that certificate this appeal has been preferred.
3. Two points are urged before us on behalf of the appellants. The first isthat there can be no conviction under s. 449 of the Indian Penal Code unlessmurder has actually been committed. The second is that a charge under s. 307 readwith s. 34 of the Indian Penal Code is not sustainable in law. In our opinion,there is no substance in either of these contentions.
4. Section 449 of the Indian Penal Code provides that whoever commits housetrespass in order to the committing of any offence punishable with death, shallbe punished with imprisonment for life or with rigorous imprisonment for a termnot exceeding ten years, and shall also be liable to fine. Mr. Mukherjee, whoappeared before us on behalf of the appellants, argued that unless murder hasbeen 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 housetrespass was to commit the murder it is not right to predicate that the housetrespass was committed 'in order to the committing of murder'. We areunable to agree. In our opinion, an act can be said to be committed 'inorder to the committing of an offence' even though the offence may not becompleted. Thus, if a person commits a house trespass with the purpose of thecommitting of theft but has failed to accomplish the purpose, it will be properto say that he has committed the house trespass in order to the committing oftheft. It has to be noticed that the words 'in order to' have beenused by the legislature not only in s. 449 of the Indian Penal Code but in thetwo succeeding sections 450, 451 and again in s. 454 and s. 457 of the IndianPenal Code. Section 450 prescribes the punishment for house trespass if it isdone 'in order to' the committing of any offence punishable withimprisonment for life. Section 451 makes punishable the commission of anoffence of house trespass if it is committed 'in order to' thecommitting of any offence punishable with imprisonment. Section 454 makespunishable, lurking house trespass or house breaking, if committed 'inorder to' the committing of any offence punishable with imprisonment.Section 457 prescribes the punishment for lurking house trespass by night orhouse breaking by night, if committed, 'in order to' the committingof any offence punishable with imprisonment.
5. It is worth noticing also that house trespass, apart from anything elseis made punishable under s. 448 of the Indian Penal Code, the punishmentprescribed being imprisonment which may extend to one year, or with fine whichmay extend to one thousand rupees, or both.
6. Higher punishment is prescribed where house trespass is committed'in order to' the commission of other offences. An examination of Sections449, 450, 451, 454 and 457 show that the penalty prescribed has been gradedaccording to the nature of the offence 'in order to' the commissionof which house trespass is committed. It is quite clear that these punishmentsfor house trespass are prescribed quite independent of the question whether theoffence 'in order to' the commission of which the house trespass wascommitted has been actually committed or not. In our opinion, there can be nodoubt that the words 'in order to' have been used to mean 'withthe purpose of'. If the purpose in committing the house trespass is thecommission of an offence punishable with death the house trespass becomespunishable under s. 449 of the Indian Penal Code. If the purpose in committingthe house trespass is the commission of an offence punishable with imprisonmentfor life the house trespass is punishable under s. 450 of the Indian PenalCode. Similarly, Sections 451, and 454 and 457 will apply if the house trespass orlurking house trespass, or lurking house trespass by night or house breaking bynight are committed for the purpose of the offence indicated in those sections.Whether or not the purpose was actually accomplished is quite irrelevant inthese cases. Our conclusion therefore is that the fact that the murder was notactually committed will not affect the applicability of s. 449 of the IndianPenal Code.
7. The second contention that no charge under s. 307 read with s. 34 of theIndian Penal Code is sustainable in law appears to proceed on a misreading ofthe effect of the provisions of s. 34 of the Indian Penal Code.
8. Section 307 of the Indian Penal Code runs thus :-
'Whoever does any act with such intention orknowledge and under such circumstances that, if he by that act caused death, hewould be guilty of murder, shall be punished with imprisonment of eitherdescription for a term which may extend to ten years, and shall also be liableto fine; and if hurt is caused to any person by such act, the offender shall beliable either to imprisonment for life, or to such punishment as ishereinbefore mentioned.'
9. According to Mr. Mukherjee, what is made punishable by this section isthe individual act of a person when that individual has a particular intentionor knowledge referred to in the section and so, where the act is done by anumber of persons jointly it can have no application. This argument ignores thelegal position that the act committed by a number of persons shall in thecircumstances mentioned in s. 34 of the Indian Penal Code be held to be the actof each one individual of those persons. Section 34 runs thus :-
'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.'
10. It may, in many cases, be difficult to decide whether the criminal actin question has been done by several persons in furtherance of the commonintention of all. But, once it is decided that the act is so done by a numberof persons in furtherance of the common intention of all, the legal positionthat results is that each person shall be held to have committed the entirecriminal act. Thus, in the present case, when it is found that the fourappellants attacked Haji Ebrar Ali in furtherance of the common intention ofall of them to kill him and some of them held him down while one used thedagger on him, each of the four is in law considered to have done the entireact of holding Ebrar Ali down and applying the dagger. If Matiullah by himselfhad held Ebrar Ali down and struck him with the dagger, with the intention ofcausing his death and the injury had actually resulted in his death, he wouldhave been guilty of murder, except in some special circumstances as mentionedin s. 300 of the Indian Penal Code. The act did not result in death. So, hebecomes punishable under s. 307 of the Indian Penal Code. The position is in noway different when Matiullah is not acting alone but he and several others areacting jointly in furtherance of the common intention of all of them to killEbrar Ali. Each of the other three who did not use the dagger must in law beconsidered to have done this act of using the dagger; and so, each of thembecomes punishable under s. 307 of the Indian Penal Code for injuring Ebrar Aliwith the dagger on the neck as if the act had been done by himself alone. Thecontention that a charge under s. 307 read with s. 34 of the Indian Penal Codeis not sustainable in law, must therefore be rejected.
11. In the result, the appeal fails and is dismissed.
12. Appeal dismissed.