# ' .lfatiulluh Sh<1kh v. 'i;tate n/ We.,t Be1111al

- **Citation:** [1964] 6 S.C.R. 978
- **Court:** Supreme Court of India
- **Decided:** 1961-03-02
- **Case number:** criminal act. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal. No. 111 of 1961
- **Bench:** K. SUBBA RAo, K. C. Das Gupta, RAGHUllAR DAYAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lfatiulluh-sh-1kh-v-i-tate-n-we-t-be1111al-3236
- **Pages:** 6

## Headnote

Criminal Law-Murder not actually committed-If conviction poJsiblt
under s. 449-"ln order to", meaning of-Charge under s. 307 with
s. 34, if sustainable in /aw-Indian Penal Code, 1860 (Act 45 of
1860) "· 34. 307, 449.
The appellants. were alleged to have entered the house of one E
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
Hif1i Co111'1. On appeal by certificate, ii was contended 11181 there can
.•
,.
.,
6 S.C.R.
SUPREME COURT REPORTS
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.
1l1dd: There was no substance in either of these contentions.
An act can be sai'd 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 l.P.C. to mean uwith the purpose
or'. Whether or not the purpose was actually accomplished t. quite
irrclevanL
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.

## Text

SUPREME COURT REPORTS
(1964]
JGM
trades, callings or employments shall be invalid
c. RaJagopalacllari
on the ground that it relates to a tax on income."
CorpoT~inn of Thi~ section would assist the respondent only if tax imposed
J.ladrtU
were one on a profession, trade, calliμg, or employment
and in that event the section provides that such a tax shall
"""""" J.
1~
March J.
not be deemed to be a tax on income, but where the tax
imposed is one not on a profession,. etc. at all, it does not
mean that the State might levy a tax on income and call it
"profession tax".
This is sufficient to dispose of a similar
argument as regards the scope of the amended Entry 46 in
the Provincial Legislature List (List II) to which we have
advened earlier.
The appeal accordingly succeeds and the appellant is
held entitled to the relief prayed by him in the petition he
filed in the High Court, viz., a writ of Prohibition against
the ·respondent-Corporation from enforcing the demand.
The appellant will be entitled to his costs from the respondents here and in the High Coun.
Appeal allowed.
MATIULLAH SHEIKH
v.
THE STA TE OF WEST BENGAL
(K. SUBBA RAo, K. C. DAS GUPTA AND RAGHUllAR
DAYAL JJ.)
Criminal Law-Murder not actually committed-If conviction poJsiblt
under s. 449-"ln order to", meaning of-Charge under s. 307 with
s. 34, if sustainable in /aw-Indian Penal Code, 1860 (Act 45 of
1860) "· 34. 307, 449.
The appellants. were alleged to have entered the house of one E
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
Hif1i Co111'1. On appeal by certificate, ii was contended 11181 there can
.•
,.
.,
6 S.C.R.
SUPREME COURT REPORTS
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.
1l1dd: There was no substance in either of these contentions.
An act can be sai'd 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 l.P.C. to mean uwith the purpose
or'. Whether or not the purpose was actually accomplished t. quite
irrclevanL
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
1961
'
.lfatiulluh Sh<1kh
Y.
'i;tate
n/ We.,t
Be1111al
DAS GUPTA J.-The appellants were tried by the Das Gupta J.
Additional Sessions Judge, Birbhum, on charges under
s. 449 and s. 307 /34 of the Indian Penal Code. Tiie
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
SUPREME COURT REPORTS
19~
common inten11on, Matiullah injured him with a dagger
Matiutw; Sheikh while the other three held him down.
Fortunately, the
v.
injury inflicted on Ebrar Ali did not rprove fatal.
Stale of West
Bengal
Dm Gupta I.
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 imprison·
ment 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 dis·
missyd.
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 (l )( c) of the Constitution. On
the basis of that certificate this appeal has been preferre<!.
Two points are urged before us on behalf of the appel·
!ants.
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 oriler 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 murdtr 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. Accordin!! 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
.,.
6 S.C.R.
SUPREME COURT REPORTS
981
murder". We are unable to agree. In our opinion, an act
1964
can be said to be committed "in order to the committing Matiul/ah Shlikh
of an offence" even though the offence may not be completv.
State of W11t
ed.
Thus, if a person commits a house trespass with the
Bengal
purpose of the committing of theft but has failed to accom- D
6 -
1
plish the purpose, it will be proper to say that he has
as
upta ·
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 order 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 Lile 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
SUPREME COURT REPORTS
[1g64]
1964
to mean "with the purpose of'. If the purpose in commitMa11ullah Sheikh ting the house trespass is the commission of an offence
v.
punishable with death the house trespass becomes punishStaze of West
lien;ai
able under s. 449 of the Indian Penal t::ode. If the purpose
DaJ Gupta J.
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 if 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.
fhe 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 doe" 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 wjth 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 persons 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 ot
6 S.C.R.
SUPREME COURT REPORTS
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
crimi.nai 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.
1964
Matiullalt Sh•ikh
v.
Stal• of Wut
!ltnfOl
Du Gupta I.