minal 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 section 449 and section 30734 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 sections 449 and 307 read with section 34 of the Indian Penal Code
He sentenced the appellant Matiullah to rigorous imprisonment for four years under section 30734 and to rigorous imprisonment for two years under section 449 of the Indian Penal Code
He sentenced the other three appellants to rigorous imprisonment for three years under section 30734 of the Indian Penal Code and for two years under section 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 article 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 section 449 of the Indian Penal Code unless murder has actually been committed
The second is that a charge under section 307 read with section 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 section 449 of the Indian Penal Code but in the two succeeding sections 450 451 and again in section 454 and section 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 section 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 sections 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 inde pendent 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 section 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 section 450 of the Indian Penal Code
Similarly sections 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 section 449 of the Indian Penal Code
The second contention that no charge under section 307 read with section 34 of the Indian Penal Code is sustainable in law appears to proceed on a misreading of the effect of the provisions of section 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 suc h 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 argu ment ignores the legal position that the act committed by a number of persons shall in the circumstances mentioned in section 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 section 300 of the Indian Penal Code
The act did not result in death
So he becomes punishable under section 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 section 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 section 307 read with section 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


Summary:
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 sections 449 and 307 with section 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 section 449 of the Indian Penal Code unless murder had actually been committed and that a charge under section 307 read with section 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 section 449 IPC 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