1. House trespass with the purpose of committing an offence punishable with death is punishable under S. 449 IPC, regardless of whether the offence is actually committed. 2. Each person is liable for the entire act done in furtherance of common intention, so if several persons jointly attack someone with the common intention to kill them, each person is liable for the entire act of causing injury.

Judgment

DAS GUPTA, J.:

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.

4. Section 449 of the Indian Penal Code provides that whoever commits house trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment for life or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine. Mr. Mukherjee, who appeared before us on behalf of the appellants, argued that unless murder has been committed it is not possible to say that any house trespass was committed in order to the committing" of an offence punishable with death, According to the learned Counsel, from the fact, that the purpose of the house trespass was to commit the murder it is not right to predicate that the house trespass was committed "in order to the committing of murder". We are unable to agree. In our opinion, an act can be said to be committed "in order to the committing of an offence" even though the of fence may not be completed. Thus, if a person commits a house trespass with the purpose of the committing of theft but has failed to accomplish the purpose, it will be proper to say that he has committed the house trespass in order to the committing of theft. It has to be noticed that the words "in order to" have been used by the legislature not only in S. 449 of the Indian Penal Code but in the two succeeding Ss. 450, 451 and again in S. 454 and S. 457 of the Indian Penal Code. Section 450 prescribes the punishment for house trespass if it is done "in order to" the committing of any offence punishable with imprisonment for life. Section 451 makes punishable the commission of an offence of house trespass if it is committed "in order to" the committing of any offence puni