Case Note & Summary
The case involved a criminal appeal by six appellants convicted under Section 304 Part II read with Section 34 of the Indian Penal Code for culpable homicide not amounting to murder. The incident occurred on the morning of March 13, 1962, when Abdul Sheikh and his 13-year-old son Adut went to a field in village Noapara to uproot linseed plants. Two appellants, Afrahim and Jesed, arrived and chased Abdul Sheikh, threw him down, and held him. The remaining four appellants then appeared; Jarahim struck Abdul's legs with a ballam, Manu struck him with a sabal (crowbar), Mesher struck him with a lathi, while Makid held his legs and the first two held his head and shoulders. The assault caused fractures to both legs below the knee, a fracture of one arm above the wrist, incised wounds, and bruises. Abdul Sheikh was given first aid by Dr. Bashiruddin, to whom he named all six appellants. He was later taken to Nalhati Health Centre but died before a dying declaration could be recorded; however, he made dying declarations to prosecution witnesses naming the six appellants. The Assistant Sessions Judge, Birbhum convicted all six under Section 304 Part II read with Section 34 IPC and sentenced each to six years rigorous imprisonment. The Calcutta High Court summarily dismissed the appeal and later rejected the certificate application, holding the legal issue was settled by a Full Bench decision in Ibra Akanda v. Emperor. The Supreme Court granted special leave limited to the legal question whether Section 34 can be read with Part II of Section 304. The appellants argued that Section 34 could not be applied because Part II of Section 304 is based on knowledge and excludes intention, relying on a minority view and some High Court decisions. The State argued that Section 34 could be applied, as common intention relates to the criminal act and can coexist with knowledge of likelihood of death. The Supreme Court examined Section 34 and Section 33, holding that a criminal act includes a series of acts, and the criminal act in this case was the totality of acts resulting in death. The court found that the six appellants acted in furtherance of a common intention, evidenced by their simultaneous appearance, chasing, holding, and beating the victim, which could only have resulted from prior concert. The court held that knowledge in Section 304 Part II is knowledge of the likelihood of death, and common intention is with regard to the criminal act; if each assailant possessed such knowledge, Section 34 could make each liable individually. Accordingly, the Supreme Court dismissed the appeal and upheld the conviction and sentence under Section 304 Part II read with Section 34 IPC.
Headnote
A) Criminal Law - Common Intention and Constructive Liability - Applicability of Section 34 IPC to Section 304 Part II IPC - Indian Penal Code, 1860, Sections 34, 304 - The appellants were convicted under Section 304 Part II read with Section 34 IPC for causing death by assault in furtherance of common intention. The Supreme Court held that Section 34 focuses on the criminal act, which includes the totality of acts, and knowledge of likelihood of death under Section 304 Part II is compatible with common intention to commit the criminal act, making each assailant liable individually. Held that Section 34 can be read with Section 304 Part II IPC and the conviction was upheld (Not mentioned).
Issue of Consideration
Whether Section 34 of the Indian Penal Code can be read in conjunction with Part II of Section 304 of the Indian Penal Code, given that Part II of Section 304 excludes intention and is based on knowledge.
Final Decision
The Supreme Court dismissed the appeal and upheld the conviction of the six appellants under Section 304 Part II read with Section 34 of the Indian Penal Code. The sentence of six years rigorous imprisonment for each appellant was confirmed.
Law Points
- Section 34 IPC applies to criminal act done by several persons in furtherance of common intention of all
- common intention is with regard to criminal act
- not the offence
- knowledge of likelihood of death under Section 304 Part II can coexist with common intention
- Section 34 can be read with Section 304 Part II to make each participant individually liable
