Mahabir Gope Vs. State of Bihar 
INSC 200 (4 May 1962)
04/05/1962 GAJENDRAGADKAR, P.B.
CITATION: 1963 AIR 118 1963 SCR (3) 331
Criminal Law--Life convict guilty of
constructive murder--Sentence of death--Legality--Indian Penal Code, 1860 (Act
45 of 1860) ss. 34, 149, 302, 303.
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.
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.
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
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 appellant 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 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
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 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
'.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