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INDIAN PENAL CODE, (45 OF 1860)

CASE STUDY
Emperor vs Barendra Kumar Ghosh
[(1925) 27 BOMLR 148]

Submitted to:
Submitted By:
Mr. Souvik Roy
Yash Raj
Assistant Professor
B.B.A LLB
1482100

Ms. Jayita Moulick


Assistant Professor

Legal Journalism
Dacoity Gone Wrong, Local Postmaster killed
The Honble High Court of Calcutta in the case Emperor vs. Barendra Kumar Ghosh also known as the
Postmaster case, commented on the application and operation of the Section 34 of IPC. The Honble Judge
Summers clearly stated that even though even who stand and waits equally participates in the commission
of the crime. The accused even though he wasnt the one who fired the fatal shot at the postmaster during
the dacoity but since he had the knowledge of what was going to happen and what the consequences are,
hence he will be held liable for the crime done by the group.
On August 3, 1923, the sub-postmaster at Sankaritolla post office was counting money at this table in the back
room, when several men appeared at the door which leads into the room from a courtyard, and, went inside the
door, called on him to give up the money. Almost immediately afterwards they fired pistols at him. He was hit in
two places, one in hand and the other near the armpit, and died instantaneously. Without taking any money the
assailants fled, separating as they ran. One man was held by the post office assistant, this was the appellate, and
other accused fled the crime scene. The evidence with the jury pointed out to the presence of three accused at the
crime scene that fired at the post master, the accused was identified due to the distinct clothes he wore. The
appellate and the other accused were carrying a German automatic self-ejecting pistol. According to the
prosecutor he the appellate was one of the person that fired at the post master as the ejected shell found near the
room perfectly fitted the pistol of the accused, the appellate denied his charge on the ground that he was standing
outside and had no direct involvement in the commissioning of crime or the murder of the post master as he did
not fire the fatal shots. Charges preferred were of murder under section 300, voluntary causing hurt under 394
and attempt to commit robbery and the question was whether section 34 should be applied with section 302 of the
IPC. To the first charge the Honble High Court decided that he is not guilty, to the second charge the Honble
High Court charged him guilty for robbery.

Critical Analysis
The case which we are discussing here is the famous Postmaster Case. The major issue that was before the court
was Whether a person is liable to the extent of act committed by him or not? Barendra Kumar Ghosh was
a simple middle class, god fearing man. Due to coercion he was forced to be a part of the dacoity. Even though he
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was part of the robbery but he never agreed on killing someone in between the robbery. The question asked is
whether he should be held liable for murder, committed by the other accused and whether physical presence is
required in section 34 or not?
Privy Council agreed to the decision of the trial court and the high court of Calcutta that the accused is liable for
the murder, even though the fatal shot was not fired by him and they had a common intention. I would agree with
the judgement passed by the Apex Court, the court held that it is the essence of Section 34 that the person should
be physically present on the scene of crime, but psychical presence doesnt amount to the presence of the person
in the actual room where the crime is being committed, he can be standing outside guarding or making escape
routes but his participation is necessary in one way or the other when the crime is being committed. Certain
mitigating factor like he was married 3 months before, god fearing man, brother had respectable govt. job and
most importantly he can take care of his family from the money he earns are taken into account but still the
meeting of minds and prior knowledge of the crime being committed overturns the mitigating factor. The empty
gun shell fired from the German pistol perfectly fitted the pistol of the accused, this evidence also pointed
towards him. The Lordships said that the criminal law of India is different that criminal law of England. Those
who framed the IPC must wanted to simplify the law and to get rid of the terms principal in first degree and
principals in the second degree. So they introduced section 34, and if any changes made to it would complicate
the administration of law instead of simplifying it. If section 34 would deliberately be reduced or altered in such a
way that for the same criminal act everyone is getting different punishment, then the whole idea of joint
commission would be omitted from the code. The Lordships hence also commented that the view taken in
Emperor Vs Nirmal Kanta Roy is not correct and that the section 34 did not call for any review.

Arguments from the side of Appellant


1. The accused in his defence would like to remind the court that he was the man outside the room.
According to him he stood in the courtyard and was very much frightened. The appellant's account was: I
took my stand on the portico "-this ran round two sides of the courtyard and according to the plan is
consistent with a position on the steps of the doorway- After a minute I heard two sounds, dum dum;
when I heard the sounds I was confused. I perspired heavily and could not remember anything afterwards
I heard chor chor; not finding the others there, I ran away.
2. Certain mitigating factors the accused would like to bring into the notice of the court that he was a god
fearing man, he had been married 3 months ago, his brother was in respectable govt. job and draws a large
pay, and the money the accused earn was enough to support his family.

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3. The accused in his statement referred to third person who indulged him in this heinous crime. In his
statement my client stated that " he states that the other man " looked at me for a time. I could not speak";
and when he had been told that he was to be there only for show, he adds, I was not in a position to
speak. I went with them. This can be seen as the perfect scenario for coercion.
4. The council would like to refer to the case of Emperor Vs Nirmal Kanta Roy (1911) I. L. R. 41 Cal. 1072,
where two men, obviously acting in concert, having both tired at a policeman, one hitting and killing him
and the other failing to hit him at all, that learned Judge directed the acquittal of the latter, who was
charged under Sections 302/34 with murder. He held that, applying Section 34 to the case, the criminal act
was the killing of the policeman : that only one man killed him, not both: that all the prisoner did was to
try to kill him, and that the criminal act charged was not done by several persons at all, that is to say was
not under the circumstances a joint ad, and he added (p. 1088) " the only act he can be liable for under the
section is one done by several persons of whom he was one, that is by the man who escaped and himself
In order to make the accused liable for murder under Section 34 it would be necessary to say that an
offence and an attempt to commit it are the same act which seems to me not to be the case.
5. In Section 34 a criminal act, in so far as murder is concerned, means an act which takes life criminally
within Section 302, because the section concludes by saying "is liable for that act in the same manner as if
the act were done by himself alone," and there is no act done by himself alone, which could make a man
liable to be punished as a murderer, except an act done by himself and fatal to his victim. Thus the effect
is that, where each of several persons does something criminal, all acting in furtherance of a common
intention, each is punishable for what he has done, as if he had done it by himself. Such a proposition was
not worth enacting, for, if a man has done something criminal in itself, he must be punishable for it, and
none the less that others were doing other criminal acts of their own at the same time and in furtherance of
an intention common to all.

6. Appellant's argument rests on Sections 114 and 149, and it is said that, if Section 34 bears the meaning
adopted by the High Court, these sections are otiose. Section 149, however, is certainly not otiose, or in
any case it creates a specific offence and deals with the punishment of that offence alone. It postulates an
assembly of five or more persona Ghosh having a common object, viz., one of those named in a 141
(Queen v. Sabed Ali (1878) 11 Bom. I. L. R. 317, 369), and then the doing of acts by members of it in
prosecution of that object. There is a difference between object and intention, for, though their object is
common, the intentions of the several members may differ and indeed may be similar only in respect that
they are all unlawful, while the element of participation in action, which is the leading feature of Section
34, is replaced in Section 149 by membership of the assembly at the time of the committing of the
offence. Both sections deal with combinations of persons, who become punishable as sharers in an
offence. Thus they have a certain resemblance and may to some extent overlap, but Section 149 cannot at

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any rate relegate to section 34 to the position of dealing only with joint action by the commission of
identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all.

Arguments from the side of Defence


1. In a case where death results from the cumulative effect of different acts, each actor must be deemed
guilty of murder, though whether because it cannot be shown that it was not his act alone which took the
victim's life, or because the absurdity of the argument had to be disclaimed somehow, it is not easy to
determine. Yet absurd it is and absurd it must remain.

2. When it comes to the operation and application of section 34, the accused is held liable for the charge of
murder because the essence of section 34 lies on the given three things:
i.
ii.
iii.

There should be a criminal act.


The criminal act should be done by several person.
And the criminal act done should be done with a common intention.

The accused fulfilled all the 3 criteria and there was no question of section 34 not applying to case.

3. When comes to the part of intention, the accused as soon as heard the noise of gunshot, he started running
with the other accused also. In other words it would seem that he covered their retreat. And the meeting of
mind was confirmed by this incident.

4. The opposite council wants to review the Section 34, but its not possible because the person who drafted
the code wanted the law to be simple. Changing or slightly altering the section wouldnt just create a
doubt but a whole chaos in the law. If certain changes were applied then every criminal will have to go
different trials for the same act, then the whole idea of joint/several liability would be omitted from the
code.

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