AFRAHIM SHEIKH AND OTHERS versus STATE OF WEST BENGAL

Citation: [1964] 6 S.C.R. 172 · Decided: 07-01-1964 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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 Crimi-
nal 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:;i-
Hidayatullah 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 appel-
lants, 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 appel-
lants, who overtook him and threw him down on the ground 
Immediately thereafter, there appeared on the scene the re-
niaining 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 

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