LexMATIULLAH SHEIKH versus THE STATE OF WEST BENGAL
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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 respond- ents 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 senten
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