minal Appeal No 134 of 1963
Appeal by special leave from the judgment and order dated March 5 1963 of the Calcutta High Court in Criminal Appeal No 156 of 1963
D N Mukherjee for the appellants
P K Chakravarti and P K Bose for the respondent
173 January 7 1964
The Judgment of the Court was delivered by HIDAYATULLAH J
The six appellants who have appealed to this Court by special leave were convicted by the Assistant Sessions Judge Birbhum under section 304 Part II read with section 34 of the Indian Penal Code and sentenced to six years  rigorous imprisonment each
Their appeal to the High Court was summarily dismissed
When the appellants applied for a certificate in the High Court they made it plain that the only point which was required to be considered by this Court was whether section 34 could be read in conjunction with Part 11 of section 304 Indian Penal Code
In this Court the argument was confined to this point of law
The High Court rejected the application for the certificate pointing out that the controversy had been settled by a Full Bench decision of the High Court reported in Ibra Akanda vs Emperor1
The learned Judges were of the opinion that the point was not of sufficient importance for permitting the appellants to take an appeal to this Court
For the consideration of the point of law which has been debated before us we may state only such facts as will bring out the controversy
One Abdul Sheikh in the company of his son Adut aged 13 went to his field in village Noapara 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 on the scene and Afrahim asked Jesed to catch hold of Abdul Sheikh
Abdul Sheikh took to his heels and was chased by these two appel lants who overtook him and threw him down on the ground Immediately thereafter there appeared on the scene the re maining appellants
Jarahim was armed with a ballam and he started to hit Abdul Sheikh on his legs with the ballam
The appellant Manu arrived with 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 sixth appellant Makid held Abdul Sheikh by the legs and Afrahim and Jesed held him down by his head and shoulders
The incident was witnessed by Adut and two others and it is on the testimony of Adut and these two 1 ILR1944 174 other witnesses to whom reference is unnecessary that the learned Assistant Sessions Judge Birbhum came to the con clusion that the offence was committed in the manner described above
Abdul Sheikh was seriously injured both his legs below the knee were fractured and one arm above the wrist was also fractured
He had also some incised wounds and some bruises
He was examined by one Dr Bashiruddin who gave him first aid
Dr Bashiruddin stated on oath that Abdul Sheikh narrated to him the incident and named all the six appellants
Later Abdul Sheikh was removed to Nalhati Health Centre and while arrangements were being made for recording his dying declaration he succumbed to his injuries
He had however made dying declarations to some of the prosecution witnesses and they have deposed to the fact that he had named the six appellants as his assailants
In this appeal we did not allow Dr D N Mukherjee counsel for the appellants to argue on facts
We assumed that the incident took place as narrated by the witnesses
Mr Mukherjee contends that the conviction of the appellants under section 304 Part 11 is illegal because according to him section 34 cannot be called in aid as the second part of section 304 concerns itself with knowledge 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 A kanda vs Emperor1
In that case the learned Judge had expressed the opinion that section 34 was incapable of being read with the second Part of section 304
With the view of the learn ed Judge Lodge J differed and the case was then placed before Khundkar J who agreed with Lodge J and the deci sion was that section 34 could be so read
At the hearing Mr Mukherjee drew our attention to three other cases in which a view supporting his contention appears to have been taken
The first is a single Judge decision of the Allahabad High Court reported in Ramnath vs Emperor2 and the other is a Division Bench case from Peshawar reported in Sahibzada vs The Crown3
He also referred to an earlier Calcutta case reported in Debi Charan Haldar vs Emperor1 in which a division Bench had expressed some 1 1
L R 3 AIR 1950 Peshawar 24
2 AIR 1943 All 271
4 175 doubts about the applicability of section 34 to section 304 Part 1
As against this Mr Chakravarti counsel for the State relied upon a Full Bench decision of the Allahabad High Court reported in Saidu Khan vs State1 where it has been clearly held that section 34 can be so read
Before dealing with the point of law we shall refer to the essential facts once again
Apart from the fact that there is proof that there were two parties and there was enmity between the appellants and Abdul Sheikh the facts proved in the case clearly establish that Abdul Sheikh had gone for a peaceful purpose in the company of his young son and immediately after his arrival he was chased by two of the appellants and caught and felled to the ground
After this the remaining four appellants appeared and beat Abdul Sheikh with diverse weapons 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 in furtherance of a common intention
No doubt as has been laid down by the Privy Council and by this Court in cases which are now very familiar common intention must exist before the criminal act is perpetrated and that is the essence of section 34
Here in our opinion that requirement was completely satisfied because the six accused could not but by a prior concert have appeared simultaneously at the scene and chased and overthrown the victim held him down and beaten him
The facts disclosed in the evidence clearly establish a prior concert amongst the six appellants
It has been so inhered by the Assistant Sessions Judge and we see no reason to differ from him
Now that the criminal act has been held by us to have been the result of a previous concert and in furtherance of the common intention we shall proceed to examine whether section 34 IPC can be made applicable for the purpose of holding that culpable homicide not amounting to murder was committed and that each of the appellant was responsible for the offence
Section 34 of the Indian Penal Code reads as follows When a criminal act is done by several persons in furtherance of the common intention of all each 1 ILR 1952 1 AlL 639
176 of such persons is liable for that act in the same  manner as if it were done by him alone In section 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 was stated by the Judicial Committee in Barendra Kumar Ghosh s case1 a criminal act means
that unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone ie a criminal offence
 Here the beating was perpetrated not by a single individual but by three persons with whom others were acting in concert
The criminal act resulted in the criminal offence of culpable homicide not amounting to murder
There is no dispute as to that
Whether all the appellants individually would be responsible for the death of Abdul Sheikh is the question to be determined and that conclusion can only be reached if it can be said that the act which was committed was done in furtherance of a common intention
It is argued that section 304 makes a difference in its two parts between the commission of the offence of culpable homicide with a particular intention and the commission of the same offence without that intention but with a particular knowledge
It is urged  that this distinction makes it impossible that section 34 which deals only with common intention can be read with it
Section 304 reads as follows Whoever commits culpable homicide 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 is done with the intention of causing death or of causing such bodily injury as is likely to cause death or with imprisonment of either description for a term which may extend to ten years or with fine or with both if the act is done with the knowledge that it is likely to cause death but 1 Cal
177 without any intention to cause death or to cause such bodily injury as is likely to cause death
 Sec 304 does not define culpable homicide not amounting to murder
That definition is to be found in section 299 which provides Whoever causes death by doing an act with the intention of causing death or with he intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide
 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 such bodily injury as is likely to cause death and 3 with the knowledge that the offender is likely by such act to cause death
The offence of culpable homicide becomes murder when four circumstances exist
They are mentioned in section 300
A number of excep tions are however included and those exceptions show extenuating circumstances on strict proof of which the offence is again brought down to culpable homicide not amounting to murder
The causing of the death of a person by doing an act accompanied by intention in the two ways described in section 299 or with the knowledge that the act is likely to cause death also described there is thus distinguished from cases of deaths resulting from accident or rash and negligent act and those cases where death may result but the offence is of causing hurt either simple or grievous
Once it was established as was established in this case that the act was a deliberate act and was not the result of accident or rashness or negligence it is obvious that the offence which was committed was one under section 304
In the present case however death was not the result of the act of a single individual but was the result of the act of several persons and they shared the common intention namely the commission of the act or acts by which death was occasioned
Section 34 is a part of a group of sections of which some other sections may also be seen
Section 35 is as follows 134 159 SC 12 178 Whenever an act which is criminal only by reason of its being done with a criminal knowledge or intention is done by several persons each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention In this section also the responsibility is shared by each offender individually if the act which is criminal only by reason of certain criminal knowledge or intention is done by each person sharing that knowledge or intention
Indeed this section also was applicable here
Under section 37 when an offence is committed by means of several acts whoever intentionally co 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 By co operating in the doing of several acts which together constitute a single criminal act each person who co operates in the commission of that offence by doing 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 in the commission of a criminal act they may be guilty of different offences by means of that act
 That is to say even though several persons may do a single criminal act the responsibility may vary according to the degree of their participation
The illustration which is given clearly brings out that point
Viewing these sections in this manner it is obvious that two sections in this group deal with individual responsibility for a single criminal act perpetrated by a large number of persons who either share a common intention or possess the criminal knowledge sections 34 and 35 and the third with co operation between several accused in the completion of the criminal act section 37
Lastly section 38 provides that the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act and this section does not mention anything about intention common or otherwise or knowledge
179 Section 34 when it speaks of a criminal act done by several persons in furtherance of the common intention of all has regard not to the offence as a whole but to the criminal act that is to say the totality of the series of acts which result in the offence
In the case of a person assaulted by many accused the criminal act is the offence which finally results though the achievement of that criminal act may be the result of action of several persons
No doubt a person is only responsible ordinarily for what he does and section 38 ensures that but the law in section 34 and also section 35 says that if the criminal act is the result of a common intention then every person who did the criminal act with the common intention would be responsible for the total offence irrespective of the share which he had in its perpetration
Barendra Kumar Ghosh s case1 the Judicial Committee observed Sec
34 IPC deals with the doing of separate acts similar or diverse by several persons if all are done in furtherance of a common intention each person is liable for the result of them all as if he had done them himself That act  and then again it  in the latter part of the section must in clude the whole of the action covered by the criminal act in the first part of the section
 Provided there is common intention the whole of the result perpetrated by several offenders is attributable to each offender notwithstanding that individually they may have done separate acts diverse or similar
Applying this test to the present case if all the appellants shared the common intention of severely beating Abdul Sheikh and some held him down and others beat him with their weapons provided the common intention is accepted they would all of them be responsible for the whole of the criminal act that is to Say the criminal offence of culpable homicide not amounting to murder which was committed irrespective of the part played by them
The common intention which is required by the section is not the intention which section 299 mentions in its first part
That intention is individual to the offender unless it is shared with others by a prior concert in which case sections 34 or 35 again come into play
Here the common 1 Cal
197 180 intention was to beat Abdul Sheikh and that common intention was as we have held above shared by all of them
That they did diverse acts would ordinarily make their responsibility individual for their own acts but because of the common intention they would be responsible for the total effect that they produced if any of the three conditions in section 299 IPC applied to their case
If it were a case of the first two conditions the matter is simple
They speak of intention and section 34 also speaks of intention
The question is whether the second part of section 304 can be made applicable
The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part
But knowledge is the knowledge of the likelihood of death
Can it be said that when three or four persons start beating a man with heavy lathes each
hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was the likely result of the beating the requirements of section 304 Part II are not satisfied in the case of each of them If it could be said that knowledge of this type was possible in the case of each one of the appellants there is no reason why section 304 Part II cannot be read with section 34
The common intention is with regard to the criminal act ie the act of beating
If the result of the beating is the death of the victim and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act ie
beating there is no reason why section 34 or section 35 should not be read with the second part of section 304 to make each liable individually
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 not think that we need say more on this because we are in agreement with the decision given by the majority in the Calcutta High Court case and the Full Bench decision of the Allahabad High Court
It appears to us that in other cases doubt was felt because section 304 is in two parts and first part is concerned with culpable homicide committed with two types of intention and the second part with culpable homicide committed with a particular knowledge
It appears that it was felt that section 34 which deals with common intention could not be read with 181 the second part of section 304
In our opinion the learned Judges who held that view and we say it respectfully fell into the error of viewing the second part of section 304 divorced from common intention whatever
A person does not do an act except with a certain intention and the common intention which is requisite for the application of section 34 is the common intention of perpetrating a particular act
Previous concert which is insisted upon is the meeting of the minds regarding the achievement of a criminal act
That circumstance is completely fulfilled in a case like the present where a large number of persons attack an individual chase him throw him on the ground and beat him till he dies
Even if the offence does not come to the grade of murder and is only culpable homicide not amounting to murder there is no doubt whatever that the offence is shared by all of them and section 34 then makes the responsibility several if there was a knowledge possessed by each of them that death was likely to be caused as a result of that beating
This circumstance is completely fulfilled in the present case and we are therefore satisfied that the conviction of the appellants was proper and see no reason to interfere
In the result the appeal fails and is dismissed
Appeal dismissed


Summary:
The six appellants were convicted under section 304 Part II with section 34 of the Indian Penal Code by the Sessions Judge add their appeal was summarily dismissed by the High Court
On appeal by special leave it was contended that section 304 Part 11 could not be read with section 34 Indian Penal Code because the second part of section 304 excluded intention and was concerned with knowledge and the conviction was illegal
Heldi Section 34 when it speaks of a criminal act done by several persons in furtherance of the common intention of all has regard not to the offence as a whole but to the criminal act that is to say the totality of the series of acts which result in the offence
In the case of a person assaulted by many accused the criminal act is the offence which finally results though the achievement of that criminal act may be the result of the action of several persons
iiKnowledge in section 304 Part 11 is the knowledge of likelihood of death and the common intention is with regard to the criminal act
If the result of the criminal act is the death of the victim and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act there is no reason why section 34 should not be read with the second part of section 304 to make each liable individually
lbra Akanda vs Emperor ILR and Saidu Khan vs State ILR 1952 1 All 639 approved
Ramnath vs Emperor AIR 1943 All 271 Shahibzada V The Crown AIR 1950 Peshawar 24 Debi Chand Haldar vs Emperor and Barendra Kumar Ghosh vs Emperor Cal
referred to