Thadani, C.J:— This is an appeal from jail preferred by one Muklesur Rahman and Habibur Rahman who were convicted by the learned Sessions Judge, A.L.D, under S. 304, Part II, read with S. 34, Penal Code, upon a trial held with the aid of a jury. Agreeing with the unanimous verdict of the jury, the learned Judge found the two accused guilty and sentenced the accused Muklesur Rahman to rigorous imprisonment for five yews, and Habibur Rihman to rigorous imprisonment for four years, under S. 304, part II, read with S. 34, Penal Code.
2. We admitted the appeal to hearing in order to satisfy ourselves whether S. 34, Penal Code, was applicable in point of law to a case when the accused persons are convicted and sentenced under S. 304, part II read with S. 34 Penal Code. The question of common intention is a question of fact, which was properly dealt with by the learned Sessions Judge in his summing up to the Jury, and we, therefore, accept the existence of a common intention within the meaning of S. 34, Penal Code, as a fact, which undoubtedly was a matter for the jury alone to decide.
3. The question whether in point of law, S. 34, Penal Code, applies to a case when accused persons are charged with and found guilty under S. 304, Part II, Penal Code, came up before a Division Bench of the Calcutta High Court in Ibra Akanda v. Emperor, A.I.R (31) 1944 Cal. 339 : (45 Cr. L.J 771). Lodge and Das, JJ. differed, Khundkar, J., agreed with Lodge, J. and referred to the case reported in Aiam Ali v. Emperor, 31 C.W.N 314 : (A.I.R (14) 1987 Cal. 324 : 28 Cr. L.J 334), in which the following observations were made:
“There is yet another objection to the charges and verdict. It is that S. 34, which is based on a common intention, cannot possibly be used with Part 2 of S. 304, which expressly excludes intention. Personally I do not think that it could be used with Part 1 etcher, except possibly in very rare cases. However, the point is that the jury have found the accused guilty of committing culpable homicide by doing an act with the knowledge that they were likely to cause death but without any such intention in furtherance of a common intention. It is the badly framed charge and the defective summing up that have led the jury to their illogical verdict.”
With reference to these observations, Lodge, J. remarked:
“With great respect to the learned Judge, I am not quite able to discover whether he did or did not discuss it or give any reason for his decision. But it is clear from a perusal of the judgment that the learned Judge decided the case upon other considerations and that the decision of that case did not depend on the interpretation of S. 84. The learned Judge's remarks, therefore, on the applicability of S. 34 to S. 304, Part 2, may be considered as obiter dicta……Though the question of the true interpretation of S. 34 has been considered in many reported cases, in the majority of those cases, the term ‘criminal act’ was examined and the Courts did not attempt to explain the meaning of the phrase in furtherance of the common intention of all… In the result therefore, I told that there is no difficulty in dappling Ss. 34 and 35 to cases of culpable homicide punishable under S. 304(2).”
4. With respect we think, the view taken by Lodge and Khundkar, JJ. is right. It is to be observed that the common intention contemplated by S. 34 is anterior in time to the commission of the crime, and does not refer to the time when the act is committed. If, on the facts of a particular case, it is proved that the common intention of two or more persons was to cause death of a person, and in furtherance of the common intention, an act was done by one which caused the death of a person, we do not think there is any difficulty in applying S. 34, whether the conviction is recorded under S. 304(1) or S. 304(2), Penal Code.
5. The result is that the appeal is dismissed.
6. Ram Labhaya, J.:— I agree with my Lord the Chief Justice in the conclusion that the appeal may be dismissed.
7. The learned Government Advocate has relied on Ibra Akanda v. Emperor, A.I.R (31) 1944 Cal. 339 : (45 Cr. L.J 771), for showing that there is not difficulty in applying S. 34, Penal Code to cases covered by S. 804, Part II, Penal Code. In this case on a difference arising between Lodge and Das, JJ., the matter was placed before Khundkar, J., under the provisions of S. 429, Criminal P.C
8. Lodge, J. was firmly of the opinion that there was no difficulty in applying Ss. 34 and 35 to cases of culpable homicide punishable under S. 304, part. II (see p. 346) Das, J., on the other band, was emphatic in the expression of the view that part. II of S. 304 expressly excludes intention and could not possibly be read with S. 34, Penal Code. These views represented the two extremes of a very vexed question.
9. Khundkar, J., it appears, could not agree with any of these views. His conclusion stated in his own words is as follows:
“It follows that, as already Indicated, I cannot concur with my brother Das in the view that the principle of S. 34 can never be applied to an offence punishable under the second part of S. 304.”
10. He came to this conclusion by giving the words “common intention” occurring in S. 84 a meaning varying with the facts of each case. In his view “common intention” referred to in S. 34 could not he given a constant connotation. It varied with the facts of each particular case. In this view of the matter, be could not told that S. 84 could never be applied to an offence punishable under S. 304, Part II. He, however, made certain observations which considerably reduced the scope of the applicability of S. 34 to cases falling under S. 304, Part II His observations are as follows
“Before I leave this subject, however, I ought to add that I am inclined to inclined the observations of Henderson, J., that in actual fact cases in which the principle enunciated in S. 34 can be applied to an offence punishable under Part II of S. 304 are not of very ??? occurrence. Cases of the type out of which the appeals here dealt with have arisen, an really cases in which the offence committed is in fact murder punishable under S. 302. In order to allay the qualms of juries who, in this province, are notoriously averse to returning affirmative verdicts on capital charges, Judges frequently go to artificial lengths, in leaving open as avenue to a verdict under S. 304, Part II, when the evidence shows that it is either murder or nothing.
11. These observations show that cases which could be appropriately placed under S. 304, Part II, read with S. 34 would be found to be rare in actual life even if full effect is given to the view of Khundkar, J. The statement that Judges by their charge make it possible for the juries to return a verdict under S. 804, Part ??? in order to get over the difficulty created by the disinclination of the juries to return a verdict on capital charges under S. 802 is unfortunately very true and the present case is typical of the attitude of Judges in this respect. A conviction in the present case under S. 302 or S. 804, Fart I, would obviously have been more appropriate. The charge suggested the possibility of the application of S. 304 part II, where in fact it was not applicable the error, therefore, has been not in the application of S. 34 but in the application of S. 304, part II.
12. The misdirection in these circumstances has not prejudiced the accused, and there has been no miscarriage of justice.
13. The appellants on the other hand became entitled to lenient treatment. In this view of the matter, there is no basis for interference in this case and it is not necessary to examine the question of principle whether S. 34 can under any conceivable circumstances be applied to cases falling under S. 304, Part II.
14. Appeal dismissed.