MATIULLAH SHEIKH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appellants were tried by the Additional Sessions Judge, Birbhum, on charges under S. 449 and Ss. 307/34 of the Indian Penal Code. The prosecution case was that on the night of the 14th November, 1960 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 Udud. 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 common intention, Matiullah injured him with a dagger while the other three held him down. Fortunately, the injury inflicted on Ebrar did not prove fatal.

(2.) The Jury returned an unanimous verdict of guilty against all the appellants on both charges. The learned Sessions Judge accepted that verdict, and convicted them all under Sections 449 and 307 read with S. 34 of the Indian Penal Code. He sentenced the appellant Matiullah to rigorous imprisonment for four years under Ss. 307/34 and to rigorous imprisonment for two years under S. 449 of the Indian Penal Code. He sentenced the other three appellants to rigorous imprisonment for three years under Ss. 307/34 of the Indian Penal Code and for two years under S. 449 of the Indian Penal Code. All the four appealed to the High Court of Calcutta. But, the appeal was summarily dismissed. A Bench of the High Court however gave the appellants a certificate that this was a fit case for appeal to this Court under Art. 134 (1) (c) of the Constitution. On the basis of that certificate this appeal has been preferred.

(3.) Two points are urged before us on behalf of the appellants. The first is that there can be no conviction under S. 449 of the Indian Penal Code unless murder has actually been committed. The second is that a charge under S. 307 read with S. 34 of the Indian Penal Code is not sustainable in law. In our opinion, there is no substance in either of these contentions.