AFRAHIM SHEIKH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The six appellants who have appealed 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 appellants 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 was whether S. 34 could be read in 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 decision of the High Court reported in Ibra Akanda v. Emperor, ILR (1944) 2 Cal 405 (FB). The learned Judges were of the opinion that the point was not of sufficient importance for permitting the appellants to take an appeal to this Court.

(2.) 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 Nopara to uproot linseed plants. This was on the morning of March 13, 1962. While he was so employed, two of the appellants, Afrahim and Jesed, 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 appellants, who overtook him and threw him down on the ground. Immediately thereafter, there appeared on the scene the remaining appellants. Jarahia was armed with a ballam and he started to hit Abdul Sheikh on his legs with the ballam. The appellant, Manu, arrived with a sabal (crowbar) and began to strike Abdul Sheikh and the appellant, Masher, began to strike Abdul Sheikh with a lathi. All this while, the sixth appellant, Wakid, held Abdul Sheikh by the legs and Afrahim and Jesed held him down by his head and shoulders. The incident was witnessed by Adut and two others, and it is on the testimony of Adut and these two other witnesses, to whom reference is unnecessary, that the learned Assistant Sessions Judge, Birbhum, came to the conclusion that the offence was committed in the manner described above. Abdul Sheikh was seriously injured; both his legs below the knee were fractured and one arm above the wrist was also fractured. He had also some incised wounds and some bruises. He was examined by one Dr. Bashiruddin, who gave him first aid. Dr. Bashiruddin stated on oath that Abdul Sheikh narrated to him the incident and named all the six appellants. Later, Abdul Sheikh was removed to Nalhati Health Centre, and while arrangements were being made for recording his dying declaration, he succumbed to his injuries. He had, however, made dying declarations to some of the prosecution witnesses, and they have deposed to the fact that he had named the six appellants as his assailants.

(3.) In this appeal, we did not allow Mr. D. N. Mukherjee, counsel for the appellants, to argue on facts. We assumed that the incident took place as narrated by the witnesses. Mr. Mukherjee contends that the conviction of the appellants under S. 304, Part II is illegal, because according to him, S. 34 cannot be called in aid, as the second Part of S. 304 concerns itself with knowledge and absolutely excludes intention as the ingredient of the offence. He relies upon the minority decision of Das. J. (as he then was) in ILR (1944) 2 Cal 405 (FB). In that case, the learned Judge had expressed the opinion that S. 34 was incapable of being read with the second Part of S. 304. With the view of the learned Judge, Lodge, J differed and the case was then placed before Khundkar, J. who agreed with Lodge, J., and the decision was that S. 34 could be so read. At the hearing Mr. Mukherjee drew our attention to three other cases in which a view supporting his contention appears to have been taken. The first is a single Judge decision of the Allahabad High Court reported in Ramnath v. Emperor, AIR 1943 All 271 and the other is a Division Bench case from Peshawar reported in Sahibzada v. The Crown, AIR 1950 Pesh 24. He also referred to an earlier Calcutta case reported in Devi Charan Haldar v. Emperor, 41 Cal WN 570 in which a Division Bench had expressed some doubts about the applicability of S. 34 to S. 304, Part I. As against this Mr. Chakravarti, counsel for the State, relied upon a Full Bench decision of the Allahabad High Court reported in State v. Saidu Khan, ILR (1952) 1 All 639 (FB) where it has been clearly held that S. 34 can be so read.