Matiullah Sheikh Vs. The State of West
Bengal [1964] INSC 50 (3 March 1964)
03/03/1964 GUPTA, K.C. DAS 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.
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 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 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 independent 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 such punishment as is hereinbefore mentioned." According
to Mr. Mukherjee, what is made punishable by this 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 argument 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.
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