Afrahim Sheikh And Others vs State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 134 of 1963

Decision Date: 7 January 1964

Coram: M. Hidayatullah, Raghubar Dayal

In this case the matter titled Afrahim Sheikh and Others versus State of West Bengal was decided on 7 January 1964 by the Supreme Court of India. The opinion was written by Justice M Hidayatullah, and the bench was composed of Justices M Hidayatullah, Raghubar Dayal and Raghubar Dayal. The petitioners were the six appellants identified as Afrahim Sheikh and others, and the respondent was the State of West Bengal. The judgment is reported in 1964 AIR 1263 and 1964 SCR (6) 172, and it has been cited in R 1977 SC2252 (4). The case concerned the provisions of the Indian Penal Code of 1860, specifically sections 34, 35, 38 and section 304, Part II, which deals with the offence of murder when the act is done with knowledge of the likelihood of death.

The six appellants had been convicted by the Assistant Sessions Judge of Birbhum under section 304, Part II read with section 34 of the Penal Code and were sentenced to six years of rigorous imprisonment each. Their appeal to the Calcutta High Court was dismissed summarily. By special leave they sought review of the question whether section 34 could be read in conjunction with Part II of section 304, on the ground that Part II excluded intention and dealt only with knowledge, rendering the conviction illegal. The Court held that where section 34 speaks of a criminal act done by several persons in furtherance of a common intention, the reference is to the criminal act as a whole—the totality of acts that result in the offence—rather than to each individual act. Consequently, when several accused assault a person and the resulting criminal act is the death of the victim, each participant’s knowledge that death is a likely consequence makes section 34 applicable to each individually. The Court therefore permitted section 34 to be read with the second part of section 304, holding each appellant liable. The Court’s reasoning relied on earlier decisions such as Ibra Akanda v Emperor, I.L.R. [1942] 2 Cal. 405; Saidu Khan v State, I.L.R. [1952] 1 All. 639; Ramnath v Emperor, A.I.R. 1943 All. 271; Shahibzada v The Crown, A.I.R. 1950 Peshawar 24; Debi Chand Haldar v Emperor, 41 C.W.N. 570; and Barendra Kumar Ghosh v Emperor, (1925) I.L.R. 52 Cal. 197. The criminal appeal, numbered 134 of 1963, was taken on special leave from the High Court order dated 5 March 1963 in criminal appeal 156 of 1963. Counsel for the appellants was D N Mukherjee, while the State was represented by P K Chakravarti and P K Bose. The judgment was delivered by Justice Hidayatullah.

The six appellants were convicted by the Assistant Sessions Judge, Birbhum, under section 304 Part II read with section 34 of the Indian Penal Code and were each sentenced to six years’ rigorous imprisonment. Their appeal to the High Court was dismissed summarily. Subsequently, the appellants applied to the High Court for a certificate of fitness for appeal to this Court, expressly stating that the sole issue for consideration by this Court was whether section 34 could be read in conjunction with Part II of section 304 of the Indian Penal Code. In the proceedings before this Court, the arguments were confined strictly to that point of law. The High Court refused to grant the certificate, observing that the controversy had already been settled by a Full Bench decision of that Court reported in Ibra Akanda v. Emperor. The learned judges of the High Court expressed the view that the question did not warrant allowing the appellants to pursue an appeal before this Court. For the purpose of examining the legal point that has been debated before us, the Court will set out only those facts that illuminate the controversy.

According to the evidence, on the morning of 13 March 1962, Abdul Sheikh, accompanied by his 13‑year‑old son Adut, went to his field in the village of Noapara to uproot linseed plants. While he was engaged in that activity, two of the appellants, Afrahim and Jesed, arrived on the scene. Afrahim instructed Jesed to seize Abdul Sheikh. Abdul Sheikh fled, but the two appellants pursued him, overtook him, and threw him to the ground. Immediately thereafter, the remaining appellants arrived. Jarahim, who was armed with a ballam, began striking Abdul Sheikh’s legs with that weapon. Manu came with a sabal (crowbar) and also struck Abdul Sheikh, while Mesher assaulted him with a lathi. At the same time, the sixth appellant, Makid, held Abdul Sheikh by the legs, and Afrahim and Jesed restrained him by his head and shoulders. The entire incident was witnessed by Adut and two other persons. On the basis of the testimony of Adut and the two other witnesses, the learned Assistant Sessions Judge concluded that the offence occurred in the manner described. Abdul Sheikh suffered severe injuries: both his legs below the knees were fractured, one arm above the wrist was fractured, and he also sustained incised wounds and bruises. He received first aid from Dr Bashiruddin, who, on oath, stated that Abdul Sheikh had narrated the incident to him and identified all six appellants. Abdul Sheikh was later transferred to Nalhati Health Centre, where, while arrangements were being made to record his dying declaration, he died from his injuries. Nevertheless, he had made dying declarations to some prosecution witnesses, who testified that he named the six appellants as his assailants.

In the appeal the Court did not permit Dr. D. N. Mukherjee, counsel for the accused, to present arguments on the factual matrix. The Court proceeded on the premise that the incident occurred exactly as described by the witnesses. Counsel Mukherjee argued that the conviction of the accused under section 304, Part 11 of the penal code was void because, in his view, section 34 could not be invoked. He asserted that the second part of section 304 deals only with knowledge and expressly excludes intention as an element of the offence. To support this position he cited the minority opinion of Das J., then a judge, in Ibra Akanda v. Emperor(1). In that decision the learned judge expressed the view that section 34 could not be read together with the second part of section 304. However, Judge Lodge J. disagreed, and the matter was subsequently taken before Khundkar J., who endorsed Lodge J.’s view and held that section 34 could indeed be read in conjunction with section 304. During the hearing, counsel Mukherjee pointed to three additional authorities that appeared to back his contention. The first was a single‑judge decision of the Allahabad High Court reported in Ramnath v. Emperor(2). The second was a division‑bench judgment from Peshawar reported in Sahibzada v. The Crown(3). He also referred to an earlier Calcutta case, Debi Charan Haldar v. Emperor(1), where a division bench expressed doubts about the applicability of section 34 to section 304, Part 1. In contrast, counsel for the State, Mr. Chakravarti, relied upon a full‑bench decision of the Allahabad High Court in Saidu Khan v. State(1) that clearly held that section 34 could be so read.

Before turning to the legal question, the Court restated the material facts. Apart from the established proof of two distinct parties and the enmity that existed between the accused and Abdul Sheikh, the evidence demonstrated that Abdul Sheikh had arrived with his young son for a peaceful purpose. Immediately after his arrival, two of the accused pursued him, seized him, and forced him to the ground. Subsequently, the remaining four accused joined the assault, striking Abdul Sheikh with a variety of weapons, while those who were unarmed held him down. Counsel for the State correctly argued that these acts were carried out in furtherance of a common intention. It is well settled, both by the Privy Council and by this Court in numerous decisions, that a common intention must exist prior to the commission of the criminal act and that this principle constitutes the essence of section 34. In the present case, the Court found that this requirement was fully satisfied because the six accused acted together in a pre‑arranged concert, thereby fulfilling the statutory conditions for a joint liability under section 34.

The Court observed that the six accused could only have acted together because they had previously conspired, enabling them to arrive at the scene simultaneously, pursue the victim, topple him, restrain him, and strike him. The evidence on record demonstrated a clear prior concert among the six appellants, a finding that the Assistant Sessions Judge had already accepted and for which the Court found no reason to depart. Having established that the criminal act resulted from a previous concert and was carried out in furtherance of a common intention, the Court proceeded to consider whether section 34 of the Indian Penal Code could be applied to hold that the offence constituted culpable homicide not amounting to murder and that each appellant bore responsibility for that offence.

Section 34 of the Indian Penal Code states that when a criminal act is performed by several persons in furtherance of the common intention of all, each of those persons is liable for the act as if it had been done by him alone. The Court noted that the preceding section 33 defines “act” to include not only a single act but also a series of acts, a principle affirmed by the Judicial Committee in the Barendra Kumar Ghosh case, where it was explained that a criminal act signifies the unity of criminal behaviour that would attract punishment if performed by a single individual. In the present matter, the beating was executed by three individuals while the remaining participants acted in concert, producing the criminal offence of culpable homicide not amounting to murder, a point on which there was no dispute. The remaining issue was whether every appellant could be held individually responsible for the death of Abdul Sheikh, a determination that required confirming that the act was done in furtherance of a common intention. Counsel argued that section 304 distinguishes between culpable homicide committed with a specific intention to cause death and the same offence committed with knowledge that death was likely, asserting that this distinction precludes reading section 34, which deals solely with common intention, together with section 304. The Court quoted section 304, which provides that a person who commits culpable homicide not amounting to murder shall be punished with life imprisonment or a term up to ten years and may also be fined if the act causing death is done with the intention of causing death or such bodily injury likely to cause death; alternatively, imprisonment up to ten years, fine, or both may be imposed if the act is done with knowledge that it is likely to cause death, but without any intention to cause death or such injury.

Section 304 of the Indian Penal Code states that a person who commits culpable homicide not amounting to murder shall be punished with life imprisonment or with imprisonment for a term which may extend to ten years, and shall also be liable to a fine, if the act causing death is performed with the intention of causing death, or with the intention of causing bodily injury likely to cause death. The provision further provides that the same punishment applies, or a lesser term of imprisonment up to ten years, or a fine, or both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or such bodily injury. Section 304 does not itself define culpable homicide not amounting to murder; that definition is found in section 299, which declares that whoever causes death by doing an act with the intention of causing death, or with the intention of causing bodily injury likely to cause death, or with the knowledge that such act is likely to cause death, commits the offence of culpable homicide. Thus, culpable homicide can arise in three ways: (i) intention to cause death, (ii) intention to cause bodily injury that is likely to cause death, and (iii) knowledge that the act is likely to cause death. The offence escalates to murder when any of the four circumstances enumerated in section 300 are present, although certain exceptions may reduce the offence back to culpable homicide not amounting to murder upon strict proof of extenuating circumstances. The distinction made by section 299 separates intentional or knowing killings from deaths that occur accidentally, rashly, or negligently, as well as from cases where the offence consists only of causing simple or grievous hurt. In the present matter, the Court observed that the act was deliberate and not accidental, rash, or negligent; consequently, the appropriate charge was under section 304. However, the death resulted not from the conduct of a single individual but from the coordinated actions of several persons who shared a common intention to commit the act that caused death. Section 34 addresses such a scenario by attributing liability to each participant who shares the common intent. Section 35 further clarifies that when an act is criminal solely because it is performed with a particular knowledge or intention, each participant who joins with that same knowledge or intention is liable as if he had performed the act alone. This principle of shared responsibility also applied in the present case, as did the provisions of section 37, which extend liability to each person who cooperates in the commission of an offence by performing any one of the constituent acts, whether singly or jointly with others.

The Court explained that section 37 read that when an offence was committed by several acts, anyone who intentionally cooperated in the commission of that offence by performing any one of those acts, whether alone or together with another person, committed the offence. By cooperating in the performance of several acts that together formed a single criminal act, each participant who cooperated by doing any one of the acts became liable for the offence either singly or jointly. Section 38 then provided that when several persons were engaged or concerned in the commission of a criminal act, they could each be guilty of different offences by means of that same act. In other words, even though a single criminal act might be carried out by many persons, the degree of responsibility could differ according to the extent of each person’s participation. The illustration supplied in the statute made this point clear. Viewing these provisions together, the Court observed that two sections of the group—sections 34 and 35—addressed individual responsibility for a single criminal act perpetrated by a large number of persons who either shared a common intention or possessed the requisite criminal knowledge, while section 37 dealt with cooperation among several accused in completing the criminal act. Finally, section 38 stated that the responsibility for the completed criminal act could be of different grades depending on the share taken by each accused in its completion, and that section made no reference to common or other intention or to knowledge. The Court noted that when section 34 spoke of a criminal act done by several persons in furtherance of a common intention of all, it referred not to the offence as a whole but to the criminal act, meaning the totality of the series of acts that resulted in the offence. In a case where a person was assaulted by many accused, the criminal act was the offence that finally resulted, even though the achievement of that criminal act might have been the product of the actions of several persons. The Court affirmed that ordinarily a person was responsible only for what he did, and section 38 ensured this principle; however, sections 34 and 35 provided that if the criminal act arose from a common intention, every person who performed the criminal act with that common intention would be responsible for the entire offence regardless of the share each had in its perpetration. The Court then referred to Barendra Kumar Ghosh’s case, where the Judicial Committee observed that section 34 of the Indian Penal Code dealt with the performance of separate acts, similar or diverse, by several persons; if all such acts were done in furtherance of a common intention, each person was liable for the result of all those acts as if he had performed them himself. The Court emphasized that the terms “that act” and the subsequent “it” in the latter part of the section must be read to include the whole of the action covered by the criminal act mentioned in the first part of the section.

The Court observed that when a common intention exists, the whole result produced by several offenders is attributed to each offender, even though each offender may have performed separate, diverse, or similar acts. Applying this principle to the present case, the Court noted that if all the appellants shared the common intention of severely beating Abdul Sheikh—some holding him down and others striking him with weapons—then, upon acceptance of that common intention, each appellant would be held responsible for the entire criminal act, namely the offence of culpable homicide not amounting to murder, regardless of the specific role each played. The Court clarified that the common intention required by sections 34 and 35 is distinct from the individual intention mentioned in the first part of section 299, which applies only to a single offender unless it is shared through a prior concert, at which point sections 34 or 35 become relevant. In the present facts, the common intention was to beat Abdul Sheikh, and that intention, as previously held, was shared by all the accused. Although the accused performed diverse acts that would ordinarily give rise to individual liability for their own conduct, the existence of common intention makes each liable for the total effect of the acts if any of the three conditions in section 299 of the Indian Penal Code are satisfied. The Court explained that if the first two conditions of section 299 are satisfied, the situation is straightforward because both the conditions and section 34 speak of intention. The Court then turned to the question of whether the second part of section 304, which deals with knowledge rather than intention, could be applied. The second part of section 304 refers to knowledge of the likelihood of death. The Court reasoned that when three or four persons beat a man with heavy lathis, each delivering blows with the common intention of causing severe injury and each knowing that death is a likely consequence of such beating, the requirements of section 304, part II are satisfied for each appellant. Consequently, there is no reason why section 34 or section 35 cannot be read together with the second part of section 304 to make each appellant individually liable. The Court further noted that this point has been examined in detail in the judgment of Lodge J. and reiterated in the Full Bench decision of the Allahabad High Court.

The Court observed that further elaboration was unnecessary because it agreed with the majority decision of the Calcutta High Court and with the Full Bench decision of the Allahabad High Court. The Court noted that in other cases doubts had arisen because section 304 is divided into two parts, the first part dealing with culpable homicide committed with two types of intention and the second part dealing with culpable homicide committed with a particular knowledge. It was argued in those cases that section 34, which governs common intention, could not be read together with the second part of section 304. The Court, however, held that the judges who advanced that view had erred by treating the second part of section 304 as completely separate from any common intention. The Court explained that no person performs an act without some intention, and that the common intention required by section 34 is the shared intention to carry out a specific act. The “previous concert” referred to by the law is the meeting of minds concerning the achievement of a criminal act. That condition, the Court said, was fully satisfied in the present case where a large number of persons attacked an individual, pursued him, threw him to the ground and beat him until he died. Even if the offence did not reach the level of murder but remained culpable homicide not amounting to murder, the Court found no doubt that the offence was shared by all participants, and that section 34 therefore made each participant liable, provided each possessed the knowledge that death was a likely result of the beating. The Court concluded that these facts were entirely present in the case before it, that the convictions of the appellants were proper, and that there was no basis for interference. Accordingly, the appeal was dismissed.