The judgment established that a common intention to do an act with the knowledge that it is likely to cause death can exist even if there is no intention to cause death or bodily injury likely to cause death, and emphasized the need to consider the knowledge or intention of each person involved in a criminal act under Section 35, I.P.C.

JUDGMENT

1. Appeal No. 427 of 1926. This is an appeal by two persons, Adam Ali Taluqdar and Sher Gazi, who have been sentenced by the Sessions Judge of Barisal, agreeing with the unanimous verdict of the jury, to seven years rigorous imprisonment under the second part of Section 304, I.P.C.

2. The facts are as follows : There are two persons, Ekram Ali and Akkel Ali, who own a piece of land each having an eight-annas share in it. By arrangement Ekram Ali possessed the northern half and Akkel Ali the southern half. Akkel Ali is the husband of the sister of Ekram Ali. Ekram Ali mortgaged the land to Adam Ali Taluqdar, one of the appellants now before us, and Adam Ali was in possession. Then Akkel Ali sold the land, to Ekram Ali. Ekram Ali wanted to redeem the mortgage and tendered the money to Adam Ali. There were some disputes about the payment of the money, but Ekram Ali cultivated the land. On the 25th December 1925, Adam Ali, Sher Gazi and Abdul Gafur, who is the appellant in a connected appeal, and one Tahir Khan, brought a number of reapers and proceeded to cut the coarse paddy grown on the northern half of the land by Ekram Ali and began to cut the paddy. Ekram Ali and his two brothers Adam Ali, Monta Ali and his cousin Mahammad, came to the spot. The two parties faced each other and Mahammad flung a spear at Tahir Ali which missed him. Abdul Gafur called out to the party to kill someone. Tahir Mahammad then struck Mahammad with his spear in the stomach and Sher Ali and Adam Ali also stabbed him. He fell down and died on the spot. The defence was that of innocence and enmity. Mr. Taluqdar has argued that Section 34 of the I.P.C. can have no application to the second part of Section 304 under which the appellants have been convicted. His argument is this:

3. The second part of Section 304 runs as follows:

or with imprisonment of either description for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death.

4. Mr. Taluqdar argues that to apply Section 34 there must be a common intention and that as there was no common intention to cause death or such bodily injury as is likely to cause death because the definition of Section 304, Part 2, excludes such intention, Section 34 cannot apply. The simple answer to this contention is this: that although to constitute an offence u/s 304, Part 2, there must be no intention of causing death or such injury as the offender knew was likely to cause death, there must still be a common intention to do an act with the knowledge that it is likely to cause death though without the intention of causing death. Each of the assailants may know that the act they are jointly doing is one that is likely to cause death but have no intention of causing death, yet they may certainly have the common intention to do that act. No one will dispute that such an act is a criminal act. Clearly Section 34 can apply to a case u/s 304, Part 2.

5. Our attention has been drawn to a decision of Mr. Justice Walmsley and Mr. Justice Mookerjee (Appeal No. 248 of 1924, decided on 19th August 1924). In that case there are the following remarks of Walmsley, J.:

There is yet another objection to the charges and verdict. It is that Section 34, which is based on a common intention, cannot possibly be used with the second part of Section 304 which expressly excludes intention. Personally I do not think that it could be used with the first part either, 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 badly framed charge and the defective summing up that have led the jury to their illogical verdict.

6. With great respect to t