Mahabiit Gope v. State of Bihar

GAJENDRAGADKAR, J.-The appellant Mahabir Gope along with eleven other persons was charged before the First Additional :Sessions Judge, Bhagal­ pur, with having committed offences under Es.147 .... ; 3 s.c.R: SUPREME COURT REPORT8 333 a.nd 802 read withs. 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 unlaw­ ful 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 assaultt)d. That is how an offence under s.147 was committed by the members of the said unlawful assembly. The prosecution <:a8e further wal!I that on or about the said date and at the same place, in pro­ secution 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 H~ad Warder and the two night Watchmen were as~aulted, 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 tha.t 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 assem­ bly liable under s.302/34 I.P.C. Against the appellant, an additional charg~ was framed under s.303, I.P.C. Under this charge, the prosecution case was that since the appallent had committed a.n offence punishable under s.302/34 whilst he was undergoing sentence of imprisoment for life, he rendered himself liable to be punished only with death under s. 303 . ..-~ The learned trial Jm~ge has convicted the appellant of the offences charged and acting under s.303, has sentenced him to deatb.. _...,_For the purpose 1962 Mahabir G•pe v. State of Bihar Goj1ndragadka• ,1 1961 Mahabir Oope v. ·state of 'Bihar Gajendrag~dkar J. 334 SUPREME COURT REPOR'ffi [1963] of this appeal, it is unnecessary to refer to the find­ ings 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 th fl 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 !or confirma­ tion. The High Court has confirmed the sentence of death and disniissed the appeal preferred by the appellant. It is against this order that the appel­ lant 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. effeot of the provisions of s.303 of the Indian Penal Code. That is how the narrow point which arises for our deci­ sion 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 he 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. ' -' 3 S.C.R. Stri>R:EM1£ OOURT REPORTS .._ 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. 1961 Mahabir Qope v. State of BihM ---For tne purpose of s. 303, when can it be Gajen<Wagadior J, said that a person has committed a murder? fa it neceBBary 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 furthi:ir­ ance 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 reimlt of the arplication of the principle 11111 Jlahtllir fiopt "· Slfllt• (/ Ri1'ar 336 SUPREME OOURT REPoRTS [1963j enunciated in s. 34, when the appellant wa1 convic­ ted under 302/34, in law it re&lly me&nt that the appellant wa1 li1tble for the act whieh caused the death of Rambila.sh Singh in the sam" m&nner &11 if it had been done by him a.lone. That is the eft'eot of the constructive li11,bility which follows from the application of the principle la.id down in s. 34. Section 34 embodies the c.rdinary commonsense principle that if two or more persons inten­ tionally commit an offence jointly, in substance, it is just the same as if each one of them had committed that offence. Common intention which is the basi11 of the principle laid down by s. 34 implies action·in·concert a.nd that in its turn, pos­ t1dates the existence of a prearranged plan. There­ fore, 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 ea.id 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 com­ mitted by the appellant alone. Therefore, where 11 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 1.302/149. Section 149 provides that if an offence is committed by any member of an unlawful as1embly in prosecution of the common object of that Rsem­ bly, or such as the members of that assembly II - - 3 s.C.R. stJ1>RElm OOuRT JtEPORTS 337 knew to be likely to be committed in prosecution of tha.t object, every person who, at the time of the committing of that offence, is a member of the same aHsembly, 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 b!i.sis of the constructive liability contemplated by a. 34 is participation in the same action with the common intention of committing a crime. '!'hat, however, does not make any difference in the legal position that if a murder is committed by one member of an unlawful assembly in prosecu· tion of the common object of that assembly, all members of the unlRwful assembly who at the time of the commission of that offence were mem hers 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 commit­ ted the murder as much aa 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 even in oases where a person undergoing senten<Je of imprisonment for life is convicted either under s. 302 read with s. 34 or under s. 302 read with s. 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. Al rJhabir G1;1 v. StrJte of Bi/,a1 GaJendragadkot' J.