Section 303 of the Indian Penal Code applies not only to cases where a person undergoing a life sentence actually commits murder, but also to cases where a person is convicted of murder under Section 302/34 or Section 302/149.

Judgment:

GAJENDRAGADRAR, J.: The appellant Mahabir Gope along with eleven other persons was charged before the First Additional Sessions Judge, Bhagalpur, with having committed offences under Sections 147 and 302 read with Section 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 Panchanand Panjiara, the night Watchmen, were assaulted. That is how an offence under S. 147 was committed by the members of the said unlawful assembly.

2. The prosecution case further was that on or about the said date & 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 Section 148 of the Indian Penal Code.

3. 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 Sections 302/34 I. P. C.

4. Against the appellant, an additional charge was framed under Section 303, I. P. C. Under this charge, the prosecution case was that since the appellant had committed an offence punishable under Section 302/34, whilst he was undergoing sentence of imprisonment for life, he rendered himself liable to be punished only with death under Section 303.

5. The learned trial Judge has convicted the appellant of the offences charged and acting under Section 303, has sentenced him to death. For the purpose 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.

6. 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 appellants. 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 Section 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 Section 302/34 in the present case falls under Section 303.

7. 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 Section 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 become liable to be convicted under Section 302 without recourse to Section 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 Section 302/34 on the ground that the said murder had been committed in furtherance of the common intention of all the accused persons. It is true that the courts below have convicted the appellant under Section 302/34 and it is in the light of the said conviction that the