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PETITIONER: MAHABIR GOPE

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 04/05/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1963 AIR  118            1963 SCR  (3) 331

ACT: Criminal   Law--Life   convict   quilty   of    constructive murder--Sentence of death--Legality--Indian Penal Code, 1860 (Act 45 of 1860) ss. 34, 149, 302, 303.

HEADNOTE: The appellant along with eleven others was charged and tried for offences under ss. 147, 302 read with s.34 of the Indian Penal  Code.   The  prosecution alleged  that  these  twelve persons  formed themselves into an unlawful assembly and  in prosecution of their common object committed the offence  of rioting  armed with deadly weapons assaulted the Chief  Head Warder and Watchmen and some of the member in prosecution of the  common  object caused the death of  the  Chief  Warder. Since the appellant was undergoing sentence of  imprisonment for  life  there  was a further charge under  s.303  of  the Indian  Penal Code against him.  The trial  court  convicted all the accused for the offences for which they were 332 charged  and acting under s.303 sentenced the  appellant  to death. The  apellant thereupon appealed to the High Court  and  the sentence  of death imposed on him was also referred  to  the High Court.  The High Court confirmed the sentence of  death and  dismissed the appeal.  The present appeal was filed  by way of special leave granted by this Court. The  main contention in the appeal was that s.303 can  apply only to a case where a person while undergoing  imprisonment for  life himself commits a murder and becomes liable to  be convicted  under  s. 302 without  recourse  to  constructive liability under s. 34. Held,  that  if  two or more persons acting  in  concert  in pursuance  of  a  pre-arranged plan  proceed  to  commit  an offence  s.  34  steps  in and provides  that  for  the  act committed  by one the other is liable in the same manner  as if it had been done by him alone.  That being the effect  of the  rule prescribed under s. 34 it is difficult  to  accept the  argument that where a person has been  convicted  under section  302/34 it cannot be said that he has  committed  an offence of murder.  The position would not be any  different even  if the appellant had been convicted  under  s.302/149.

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Section  303  would  apply  even in  cases  where  a  person undergoing  sentence of imprisonment for life  is  convicted either under s. 302 read with s.   34  or under s. 302  read with s. 149.

JUDGMENT: CRIMINAL APPElLATE JURISDICTION : Criminal Appeal No. 76  of 1962. Appeal from the judgment and order dated December 22,  1961, of  the Patna High Court in Criminal Appeal No. 118 of  1961 and death Reference No. 2 of 1961. M.   S. K. Sastri for the appellant, D.   P. Singh and D. Gupta, for the respondent. 1962.  May 4. The judgment of the Court was delivered by GAJENDRAGADKAR,  J.-The  appellant Mahabir Gope  along  with eleven other persons was charged before the First Additional Sessions  Judge,  Bhagalpur with having  committed  offences under ss.147  333 and  302  read  with a. 34 of the Indian  Penal  Code.   The prosecution case was that on or about the 12th day of  June, 1959,  the  appellant and the other accused  persons  formed themselves  into an unlawful assembly at  Bhagalpur  Special Central Jail and in prosecution of the common object of  the said  assembly,  Rambilash  Singh,  the  Chief  Head  Warder Mohammed  Ilyas and Panchand Panjiare, the  night  Watchmen, were  assaulted.   That is how an offence  under  s.147  was committed by the members of the said unlawful assembly. The  prosecution case further was that on or about the  said date  and  at the same place, in prosecution of  the  common object of the said assembly, the members of the assembly had committed  an offence of rioting with deadly  weapons  while the  Chief  Head  Warder and the  two  night  Watchmen  were assaulted,  and  thereby  all the members  of  the  assembly rendered  themselves liable to be punished under s.  148  of the Indian Penal Code. The third charge- framed against the members of the unlawful assembly  was that in furtherance of the’ common  object  of the   said  assembly,  Rambilash  Singh  was   intentionally assaulted by some of the members of the assembly with a view to  cause  his death and that made all the  members  of  the assembly liable under s.302/34 I.P.C. Against the appellant, an additional charge was framed under s.303,  I.P.C. Under this charge, the prosecution  case  was that since the appallent had committed an offence punishable under   s.302/34  whilst  he  was  undergoing  sentence   of imprisonment  for  life, he rendered himself  liable  to  be punished only with death under s. 303. The  learned trial Judge has convicted the appellant of  the offences  charged and acting under s.303, has sentenced  him to death.  For the purpose 334 of  this appeal, it is unnecessary to refer to the  findings made by the learned trial Judge in regard to the prosecution case against the other members of the unlawful assembly. The  appellant  challenged the correctness of the  order  of conviction   and  sentence  thus  passed  against   him   by preferring  an  appeal  in the High  Court  at  Patna.   The sentence  of death imposed on him was also referred  to  the High  Court for confirmation.  The High Court has  confirmed the sentence of death and dismissed the appeal preferred  by the appellant.  It is against this order that the  appellant has come to this Court by special leave; and the only  point

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on which special leave has been granted is in regard to  the scope  and effect of the provisions of s.303 of  the  Indian Penal  Code.  That is how the narrow point which arises  for our  decision is whether the case of the appellant  who  has been  convicted  under s.302/34 in the  present  case  falls under s. 303. Mr. M.S.K. Sastri for the appellant contends that s. 303 can apply only to a case where an accused person who is  already undergoing  a  sentence  of imprisonment  for  life  commits murder and is convicted of it.  He emphasises the fact  that s.303 can be applied only where at the subsequent trial, the prisoner  is  found to have committed another  murder.   The expression "commits murder" used in s. 303 implies that  the prisoner  must  have himself committed the murder  and  thus became  liable to be convicted under s.302 without  recourse to  s.34; and since in the present case, the  appellant  has been  convicted  not  because it is found  that  be  himself committed  the  murder of Rambilash Singh, but he  has  been found constructively guilty of murder and is convicted under s.  302/34  on  the ground that the  said  murder  had  been committed in furtherance of the common intention of all  the accused persons. 335 It  is  true  that  the  courts  below  have  convicted  the appellant under s.302/34 and it is in the light of the  said conviction  that  the point raised by Mr. Sastri has  to  be considered. For the purpose of s. 303, when can it be said that a person has committed a murder?  Is it necessary that a person  must be proved to have himself committed the murder before s. 303 can  be invoked against him, or would it be enough if it  is shown  that  the person is constructively guilty  of  murder under  s.302/34 ? The appellant’s argument seeks  to  derive support  from the fact that both ss. 299 and 300 refer to  a specific  act.   Section 299, for  instance,  provides  that whoever  causes death by doing an act with the intention  or knowledge therein specified, commits the offence of culpable homicide.   In  other  words, it is the act  done  with  the requisite  intention  or  knowledge  that  constitutes   the offence  of  culpable homicide.  Similarly,  s.300  provides that  if the act by which the death is caused is  done  with the  intention  of causing death or with  the  intention  or knowledge  as  specified  in the three clauses  of  s.  300, culpable  homicide is murder.  That again shows that  it  is the  specified act which amounts to murder, and  so,  unless the  act  which amounts to murder has been  committed  by  a person  himself,  it cannot be said that  he  has  committed murder  under s. 303.  That, in substance, is  the  argument urged before us by the appellant. In  appreciating  the  validity  of  this  argument,  it  is necessary to bear in mind the effect of the provisions of s. 34.  Section 34 provides that when a criminal act is done by several  persons in furtherance of the common  intention  of all, each of such persons is liable for that act in the same manner  as if it were done by him alone.  It is  thus  clear that as a result of the application of the principle 336 enunciated in s. 31, when the appellant was convicted  under 302/34, in law it really meant that the appellant was liable for the act which caused the death of Rambilash Singh in the same  manner as if it had been done by him alone,  That  if; the effect of the constructive liability which follows  from the application of the principle laid down in s. 34. Section 34  embodies the ordinary commonsense principle that if  two or more persons intentionally commit an offence jointly,  in

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substance,  it is just the same as if each one of  them  bad committed that offence.  Common intention which is the basis of  the  principle  laid down by s.  34  implies  action-in- concert and that in its turn, postulates the existence of  a prearranged plan.  Therefore, if two or more persons  acting in  concert in pursuance of a pre-arranged plan  proceed  to commit an offence, s. 34 steps in and provides that for  the act committed by one the other is liable in the same  manner as if it had been done by him alone.  That being the  effect of  the rule prescribed by s. 34, it is difficult to  accept the argument that where a person has been convicted under s. 302/34, it cannot be said that he has committed the  offence of murder.  The act which caused the death of the victim may have  been committed by another person, but since  the  said act had been done by the other person in furtherance of  the common intention shared by that person and the appellant, in law,  the act must be deemed to have been committed  by  the appellant  alone.   Therefore, where a person  is  convicted under  s. 302/34, it must be held that he has committed  the murder  as  much as the person by whose act the  victim  was killed. The  position  would  not  be  any  different  even  if  the appellant  bad been convicted under s.302/149.  Section  149 provides that if an offence is committed by any member of an unlawful  assembly  in prosecution of the common  object  of that assembly, or such as the members of that assembly 337 knew  to  be likely to be committed in prosecution  of  that object,  every person who, at the time of the committing  of that offence, is a member of the same assembly. is guilty of that  offence.   It is true that the basis  of  constructive liability  imposed  by  s. 149 is  mere  membership  of  the unlawful  assembly,  whereas the basis of  the  constructive liability contemplated by s. 34 is participation in the same action  with  the common intention of  committing  a  crime. ’.that,  however, does not make any difference in the  legal position  that if a murder is committed by one member of  an unlawful  assembly  in prosecution of the common  object  of that  assembly, all members of the unlawful assembly who  at the  time of the commission of that offence were members  of such assembly would be guilty of the offence of murder.   In such  a  case,  again, where a  person  is  convicted  under s.302/149, the true legal position is that, in law, he  must be deemed to have committed the murder as much as the actual murderer  has.  Therefore, in our opinion, s. 303 cannot  be confined only to cases where a person undergoing sentence of imprisonment  for life actually and in fact himself  commits an  act which results in the death of the victim.  The  said section would apply oven in oases where a person  undergoing sentence of imprisonment for life is convicted either  under a.  302  read with s. 34 or under s. 302 read with  a.  149. That being our view, we must held that the courts below were right in sentencing the appellant to death under s. 303. The result is, the appeal fails and is dismissed.                   Appeal dismissed, 338