# AFRAHIM SHEIKH AND OTHERS v. STATE OF WEST BENGAL

- **Citation:** [1964] 6 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 1963-03-05
- **Case number:** Criminal Appeal No. 134 of 1963
- **Bench:** M. Hidayatullah, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/afrahim-sheikh-and-others-v-state-of-west-bengal-3063
- **Pages:** 10

## Headnote

Criminal Trial-Penal Code-Convictio11 under s. 304 Part II-If can
be read with s. 34--'•/ntention" & ~·K11ow/edge"-/11dian Penal Code, 1860
(45 of !860), ss. 34, 35. 38 and 304.
The six appellants were convicted under s. 304 Part II with s. 34
of the Indian Penal Code by the SesSions Judge an'd their appeal was
summarily dismissed by the High Court. On appeal by special leave,
it was contended that s. 304, Part II could not be read with s. 34 Indian
Penal Code because the second part of s. 304 excluded intention and
was concerned with knowledge an'd the conviction was illegal.
Held: (i) 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
tu 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 \Vhich
finally
results,
though
the
achievement of that
criminal act may be the result of the action of several persons.
(ii) Knowledge in s. 304 Part II is the knowledge of likelihood
of de1th 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 conse·
quencc of the criminal act, there is no reason why s. 34 shoufd not be
read with the second part of s. 304 to make each liable individually.
/bra Akanda v. Enzperar, I.L.R. [1942] 2 Cal. 405 and Saidu Khan
v. State, I.LR. [1952] I All. 639, approved.
Ramnath v. Emperor, A.l.R.
1943
All. 271. Shahibzada v. The
Crol1'11 A.I.R. 1950 Peshawar
24, Debi
Chand
Haldar v. Emperor,
41
C.W.N.
570
and
Barendra Kumar Ghosh v. Emperor, (!925)
!.L.R. 52 Cal. 197. referred to.

## Text

1964
January 7
SUPREME COURT REPORTS
AFRAHIM SHEIKH AND OTHERS
v.
STATE OF WEST BENGAL
(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)
Criminal Trial-Penal Code-Convictio11 under s. 304 Part II-If can
be read with s. 34--'•/ntention" & ~·K11ow/edge"-/11dian Penal Code, 1860
(45 of !860), ss. 34, 35. 38 and 304.
The six appellants were convicted under s. 304 Part II with s. 34
of the Indian Penal Code by the SesSions Judge an'd their appeal was
summarily dismissed by the High Court. On appeal by special leave,
it was contended that s. 304, Part II could not be read with s. 34 Indian
Penal Code because the second part of s. 304 excluded intention and
was concerned with knowledge an'd the conviction was illegal.
Held: (i) 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
tu 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 \Vhich
finally
results,
though
the
achievement of that
criminal act may be the result of the action of several persons.
(ii) Knowledge in s. 304 Part II is the knowledge of likelihood
of de1th 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 conse·
quencc of the criminal act, there is no reason why s. 34 shoufd not be
read with the second part of s. 304 to make each liable individually.
/bra Akanda v. Enzperar, I.L.R. [1942] 2 Cal. 405 and Saidu Khan
v. State, I.LR. [1952] I All. 639, approved.
Ramnath v. Emperor, A.l.R.
1943
All. 271. Shahibzada v. The
Crol1'11 A.I.R. 1950 Peshawar
24, Debi
Chand
Haldar v. Emperor,
41
C.W.N.
570
and
Barendra Kumar Ghosh v. Emperor, (!925)
!.L.R. 52 Cal. 197. referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal 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.
..
6 S.C.R.
SUPREME COURT REPORTS
173
January 7, 1964.
The Judgment of the Court was delivered by
1964
Afrahim Sheikh·
v.
The State of Wesr
Bengal
HIDAYATULLAH J.-The six appellants who have a:;iHidayatullah r
pealed to this Court by special leave were convicted by the
Assistant Sessions Judge, Birbhum under s. 304 Part II read
with s. 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 ~ppcilants
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 wa1 whether s. 34 could be read m conjunction
with Part II of s. 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 d~cision
of the High Court reported in /bra Akanda v. Emperor(').
The learned Judges were of the opinion that the point was
r.ot of sufficient importance for penn!tting 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 J esed, 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 appellants, who overtook him and threw him down on the ground
Immediately thereafter, there appeared on the scene the reniaining appellants. Jarahim was armed with a ha/lam and
he started to hit Abdul Sheikh on his legs with the hallam.
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 tWC1
(I) I. L.R. (1944) 2 Cal. 405.
174
SUPREME COURT REPORTS
1964
other witnesses, to whom reference is unnecessary, that the
Afrahim Sheikh learned Assistant Sessions Judge, Birbhum, came io the conv.
clusion that the offence was committed in the manner describ·
The State of West d b
Abd 1 Sh "kh
·
1 · ·
d b h h" 1
B"ngal
e a ove.
u
e1
was serious y m1ure ; ot
1s egs
below the knee were fractured and one arm above the wrist
Hida.vatullah 1· 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
nrnde for recording his dying declaration, he succnm hed to
his injuries. He had, however, made dying declarations to
some of the prosecution witnesses and they have depoied 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
witn~sscs·
Mr. Mukherjee contends that the conviction of the appellants
under s. 304, Part II is illegal, because according to him. s.
34 cannot be called in aid. as the second part of s. 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 /bra Akanda
v. Emperor(').
In that case, the learned Judge had expressed the opinion that s. 34 was incapable of being read
with the second Part of s. 304.
With the view of the learned Judge, Lodge J. differed anq the case was then placed
before Khundkar J. who agreed with Lodge J., and the decision was that s. 34 could be so read.
At the hearing~.
Mukherjee drew our attention to three other cases in which
a view supporting his contention appears to have been taken.
I
The first is a single Judge decision of the Allahabad High
Court reported in Ramnath v. Emperor('), and the other
is a Division Bench case from
Peshawar reported in
Sahibzada v. The Crown('). He also referred to an
earlier Calcutta case reported in Debi Charan Haldar v.
Emperor('), in which a division Bench had expressed some
(1) I. L. R. (19441 2 Cal. 405.
(3) A.I.R. 1950 Peshawar 24.
(2) A.l.R. 1943 AIL 271.
r4) 41 C.W.N. 570.
·6 s.c R.
SUPREME COURT REPORTS
. doubts about 1.he applicability of s. 34 to s. 304, Part I. As
1964
against this, Mr. Chakravarti, counsel for the State relied Afrahim Sheikh
upon a Full Bench decision of the Allahabad High Court Th 5 v. f w
reported in Saidu Khan v. State(') where it has been
e
1
~~n:al est
clearly held that s. 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 Ceurt in
cases which are now very familiar, common intention must
exist before the criminal act is perpetrated, and that is the
essence of s. 34.
Here, in our opinion, :that requirment
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 infered 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
·s. 34 I·P.C. 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 follws:
"When a criminal act is done by several persons, in
furtherance of the common intention of all, each
(1) LL.R. '[19<~]' A11. 639.
Hidayatullah
].
1964
Afra/Jim Sheikh
v.
The State of West
SUPREME COURT REPORTS
of such persons is liable for that act in the same
manner as if it were done by him alone."
Bengal
In s. 33 which precedes, it is laid down that the word "act".
Hidayatullah
J. denotes not only a single act but also a series of a·~ts. In
other words, as was stated by the
Judicial Committee, in
Barendra Kumar Ghosh's case (1) "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, i.e., 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 ihat s.
304 makes a difference in its two parts between the ccmmission of the offence of culpable homi~ide 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 s. 34 which.
deals only with common intention can be read with it. Sec-·
tion 304 reads as follows:-
"Whoever commits culpable homicide not amounting
to murder, shall be punished with imprisonment
for life, or imprisonment of eitheP 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
(I) [1925] l.L.R. 52 Cal. 197.
6 S.C.R.
SUPREME COURT REPORTS
177
without any intention to cause death
or to
cause such bodily injury as is likely to c~nse
death."
1964
A.frahim Sheikh
v.
Th• State of West
Sec. 304 does not define culpable homicide not amounting
. Bengal
to murder. That definition is to be found in s. 299, which Hidayatullah J,
provides:
"Whoever causes death by doing an act with
the
intention of causing death, or with the 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.s. 300.
A number of exceptions 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 s. 299 or with the knowledge that the act is
likely to cause death also de~cribed 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 s. 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 S.C.-12.
178
SUPREME COURT REPORTS
[ 1g64]
1964
A.fr""'m Sheikh
••
Th Stat• of West
"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."
B1ngal
Bf"1atul1"h /.
In this section also the responsibility is shared by eaGh
offender individually if the act which is criminal only by
reason of certain criminal know ledge or intention is done by
each person sharing that knowledge or intention.
Indeed,
this section also was applicable here. Under s. 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
an): 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 (ss. 34 and 35) and the third with cooperation between several accused in the completion of the
criminal act (s. 37). Lastly s. 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.
••
6 S.C.R.
SUPREME COURT REPORTS
179
Section 34, when it speaks of a criminal act done by
1964
several persons in furtherance of the common intention of Afrahlm SIWll
all, has regard not to the offence as a whole, but to the
y.
criminal act, that is to say, the totality of the series of acts TIN 81'if:,.:!, Wut
which result in the offence. In the case of a person assaulted
by many accused, the criminal act is the offence which finally Rldayolul/1111 1.
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 s. 38
ensures that; but the law in s. 34 (and also s. 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. In
Barendra Kumar Ghosh' s case('), the Judicial Committee
observed:
"Sec. 34 I.P.C. 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
include 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 s. 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 ss. 34 or 35 again come into play. Here, the common
(1) [19251 I.L.R. 52 Cal. 197
180
SUPREME COURT REPORTS
[1g64J
1961
intention was to beat Abdul Sheikh, and that common
.tffro/llm Sh•ikh intention was, as we have held above, shared by all of them.
v.
That they did diverse acts would ordinarily make their
The 8'f:,,:!i West responsibility individual for their own acts,. but because of
the common intention, they would be responsible for the
H/""7atullah
1. total effect that they produced if any of the three conditions
in s. 299, l.P.C. applied to their case. If it were a case of
the first two conditions, the matter is simple. They speak of
intention and s. 34 also ll_;)eaks of intention.
The question is whether the second part of s. 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 fo\lf persons start beating a man with heavy lathis, 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
s. 304, Part Il 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 s. ·304, Part Il cannot be read with s. 34. The common
intention is with regard to the criminal act, i.e., 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, i.e.,
beating, there is no reason why s. 34 or s. 35 should not be
read with thc:_second part of s.
304 to make each liable
individually. ··
This matter has been elaborately considered in the
judgment of Lodge I. 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 s. 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 s. 34.
which deals with common intention, could not be read with
6 S.C.R.
SUPREME COURT REPORTS
181
the second part of s. 304. In our opinion, the learned Judges
1964
-,
who held that view and we say it respectfully fell into the Afrahlm Slwlkll
error of viewing the second part of s. 304 divorced from Th s "· / w
.
.
h
A
d
d
• lat• 0
•II
common mtenllon w atever.
person oes not o an act
Bingal
except with a certain intention, and the common intention Hidayatul/a/i J.
which is requisite for the application of s. 34 is the common
intention of perpetrating a particular act. Previous cqncert
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
.s. 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.
V.N.VASUDEVA
v.
SETH KIRORIMAL LUHARIW ALA
(M. ffIDAYATULLAH AND J.C. SHAH JJ.)
Rent Control--Ordor for d•po1lt of ""' at lnt•rlocutory ll•g•-lf
pro,,.r-Delhi Rent Control Act, 1958 (59 of 1958), •· 15(1)-lndlan
Income-tax Act. 1922 (II of 1922), •· "6(5A).
The responllent made an 111plleation qalnst Ibo appellant under
1. 14 of the Delhi Rent Control Act. In reply the appellant pleaded
1964
Januarv.
9