Matiullah Sheikh vs The 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. 111 of 1961

Decision Date: 3 March 1964

Coram: K.C. Das Gupta, Raghubar Dayal

In this case the Supreme Court of India delivered its judgment on 3 March 1964 in the matter of Matiullah Sheikh versus the State of West Bengal. The opinion was authored by Justice K.C. Das Gupta and Justice Raghubar Dayal, who formed the Bench. The citation for the decision is 1965 AIR 132 and 1964 SCR (6) 978. The issues arose under the Indian Penal Code, 1860, specifically sections 34, 307 and 449, relating to the criminal‑law concept of murder that was not actually committed and the meaning of the phrase “in order to” in section 449.

The headnote of the report states that the appellants were alleged to have entered the residence of a man with the common intention of killing him. One appellant, identified as Matiullah, is said to have wounded the victim with a dagger while three other appellants held the victim down. The wound inflicted did not prove fatal. The Additional Sessions Judge at Birbhum convicted all four men under sections 449 and 307 read with section 34 of the Indian Penal Code, and the High Court of Calcutta affirmed that conviction on appeal. By way of a certificate of appeal the appellants argued that a conviction under section 449 could not stand unless an actual murder had been committed, and further contended that a charge under section 307 read with section 34 was not sustainable in law.

The Court examined these contentions and held that they lacked substance. It explained that an act may be said to be committed “in order to the committing of an offence” even if the offence is not completed, because the words “in order to” in section 449 are intended to mean “with the purpose of”. The Court observed that it is irrelevant whether the purpose was actually accomplished. Once it is established that the act was performed by a number of persons in furtherance of a common intention, the law treats each participant as having committed the entire criminal act.

The judgment concerns Criminal Appeal No. 111 of 1961, which was an appeal from the order dated 2 March 1961 of the Calcutta High Court in Criminal Appeal No. 269 of 1961. Counsel for the appellants was D. N. Mukherjee, while counsel for the respondent, the State, was P. K. Chakravarthy appearing on behalf of P. K. Bose. The Court noted that the prosecution case was that on the night of 14 November 1950, while Haji Ebrar Ali was sleeping on the verandah of his hut, the four appellants entered the premises. Abdul Odud is described as pressing the victim’s knees, while Ekram and Habibullah pressed his chest and hands. At that moment Matiullah inflicted a dagger wound on the victim’s neck. The victim awoke, shouted, and managed to seize hold of Abdul Odud. The remaining three assailants then fled the scene. The information about the incident was subsequently lodged at the local police station by the victim, who was thereafter taken to Rampurhat hospital for treatment.

The incident was reported at the local police station by Ebrar Ali, who afterward was taken to Rampurhat Hospital for medical care. The prosecution maintained that the four appellants entered Ebrar Ali’s dwelling with a shared intention to kill him, and that, in furtherance of that common purpose, the appellant Matiullah wounded him with a dagger while the other three appellants restrained him by holding him down. The wound, although serious, did not prove fatal. The jury returned a unanimous verdict of guilt against each of the appellants on both the charge of house‑trespass with intent to commit murder under section 449 and the charge of attempt to murder under section 307 read with section 34 of the Indian Penal Code. The learned Sessions Judge accepted the jury’s verdict, convicted all four men under the two statutes, and imposed sentences as follows: the appellant Matiullah received rigorous imprisonment for four years under section 307/34 and an additional rigorous imprisonment for two years under section 449; each of the remaining three appellants received rigorous imprisonment for three years under section 307/34 together with rigorous imprisonment for two years under section 449. All four appellants appealed the conviction and sentence to the Calcutta High Court, but the High Court dismissed the appeal summarily. Nonetheless, a bench of the High Court issued a certificate stating that the matter was fit for appeal to the Supreme Court under article 134(1)(c) of the Constitution, and on the basis of that certificate the present appeal was filed. On behalf of the appellants, two points were raised. The first point asserted that a conviction under section 449 of the Indian Penal Code could not stand unless a murder had actually been committed. The second point contended that a charge under section 307 read with section 34 was not legally sustainable. The Court found no merit in either contention. Section 449 provides that whoever commits a house‑trespass for the purpose of committing any offence punishable with death shall be liable to life imprisonment or, at most, ten years of rigorous imprisonment and may also be fined. Counsel for the appellants argued that if no murder had been completed, the element of house‑trespass “in order to the committing” of an offence punishable with death could not be satisfied, insisting that it was improper to infer that the trespass was committed “in order to the committing of murder” merely because the purpose was to commit murder. The Court disagreed with that submission. In the Court’s view, an act may be characterised as being done “in order to the committing of an offence” even when the intended offence is not ultimately completed. Accordingly, if a person unlawfully enters a house with the intent to commit theft but fails to achieve that aim, it is still appropriate to describe the entry as house‑trespass “in order to the committing of theft”.

The Court observed that the expression “in order to” appears not only in section 449 of the Indian Penal Code but also in the subsequent sections 450, 451, 454 and 457 of the same Code. Section 450 provides punishment for house trespass when it is committed “in order to” the commission of any offence that is punishable with imprisonment for life. Section 451 makes punishable the act of house trespass when it is committed “in order to” the commission of any offence that is punishable with imprisonment. Section 454 criminalises lurking house trespass or house breaking when such conduct is committed “in order to” the commission of any offence punishable with imprisonment. Section 457 prescribes punishment for lurking house trespass by night or house breaking by night if it is committed “in order to” the commission of any offence punishable with imprisonment. The Court further noted that house trespass, irrespective of any other circumstance, is already punishable under section 448 of the Indian Penal Code, which authorises imprisonment for up to one year, a fine of up to one thousand rupees, or both. A higher penalty is provided when house trespass is committed “in order to” the commission of another offence. An examination of sections 449, 450, 451, 454 and 457 shows that the severity of the punishment is calibrated according to the nature of the offence that the trespass was intended to facilitate. The Court emphasized that these punishments are prescribed independently of whether the intended offence has actually been committed. In its view, the phrase “in order to” unequivocally means “with the purpose of”. Accordingly, if the purpose of the house trespass is the commission of an offence punishable with death, the trespass falls under section 449. If the purpose is the commission of an offence punishable with imprisonment for life, the relevant provision is section 450. Similarly, sections 451, 454 and 457 apply when the house trespass, lurking house trespass, or night‑time lurking house trespass or house breaking is done for the purpose of the offences enumerated in those sections. The Court held that the actual fulfilment of the purpose is irrelevant to the applicability of these sections. Consequently, the Court concluded that the failure to actually commit murder does not affect the operation of section 449 of the Indian Penal Code. The Court also rejected the second contention that a charge under section 307 read with section 34 of the Indian Penal Code could not be sustained, describing that argument as based on a misreading of the statutory effect.

Section 307 of the Indian Penal Code states: “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 such punishment as is hereinbefore mentioned.” Counsel for the petitioner, Mr. Mukherjee, argued that the provision punishes only the individual act of a person who possesses the specific intention or knowledge described in the section, and therefore a joint act by several people could not attract liability under Section 307. This argument overlooks the established legal rule that an act performed by a group of persons, when carried out in furtherance of a common intention, is treated as the act of each participant individually under Section 34 of the Indian Penal Code. Section 34 reads: “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.” Determining whether a particular criminal act was executed by multiple persons sharing a common intention can be challenging, but once such a determination is made, the law treats every participant as if he had performed the entire act himself. In the present matter, the Court found that the four appellants collectively assaulted Haji Ebrar Ali with the shared purpose of killing him; some of the appellants restrained him while another wielded a dagger against him. Consequently, each of the four appellants is legally regarded as having performed the whole act of restraining Ebrar Ali and inflicting the dagger wound. Had Matiullah alone restrained Ebrar Ali and struck him with the dagger, intending to cause death, and had that act resulted in death, he would have been guilty of murder, except in the limited circumstances enumerated in Section 300. Because death did not actually occur, Matiullah would be liable under Section 307 for causing grievous hurt. The legal effect does not change when Matiullah acted together with others in furtherance of their common intention to kill Ebrar Ali; each of the other three appellants who did not physically use the dagger must in law be considered to have performed the act of using the dagger, and thus each is punishable under Section 307 as if the act had been committed by him alone.

In the Court’s assessment, the law treats each participant who did not personally handle the dagger as having performed the act of using the dagger. Consequently, every participant is liable under section 307 of the Indian Penal Code for causing injury to Ebrar Ali by stabbing his neck, even though the physical act was performed by a single individual. The liability therefore attaches in the same manner as if each participant had personally and individually inflicted the wound upon the victim themselves. The argument advanced by the respondents that an accusation under section 307 together with section 34 of the Indian Penal Code lacks legal foundation was examined and found to be untenable. The Court therefore rejected that contention as inconsistent with established legal principles governing common intention and joint criminal enterprise. As a result of this finding, the petition for relief was denied and the appeal was dismissed in its entirety. The dismissal of the appeal was consequently recorded as the final operative order issued by the Court in this matter. Thus, the legal consequence is that each accused bears full responsibility for the injury, irrespective of who actually wielded the weapon. This approach follows the doctrine of common intention, which holds that when a group shares a pre‑planned purpose, every member is answerable for acts committed in pursuit of that purpose.