1. Conviction for murder under Section 302 read with Section 34, Indian Penal Code, while undergoing life imprisonment, resulting in a death sentence under Section 303. (Para 1 , 2 , 3 , 4 , 5 )
Back
Next 
1962 Supreme(SC) 224
SUPREME COURT OF INDIA
J.R.Mudholkar : K.Subba Rao : P.B.Gajendragadkar
Mahabir Gope
Versus
State Of Bihar
Case No. : 76 of 1962
Date of Decision : 5/4/62
Advocates Appeared: Gutpa D. : Shastri M.S.K. : Singh D.P.
Advocates:
D.GUTPA, D.P.Singh, M.S.K.Shastri
D.GUTPA, D.P.Singh, M.S.K.Shastri
Section 303 of the Indian Penal Code applies to persons undergoing life imprisonment who are convicted of murder through constructive liability under Section 34 or Section 149, as they are deemed to have committed the murder as if the act were done by them alone.
Headnote:(A) Indian Penal Code, 1860 - Sections 302, 303, 34 and 149 - Murder committed by a person undergoing life imprisonment - Applicability of Section 303 - Whether constructive liability under Section 34 or Section 149 satisfies the requirement of "committing murder" under Section 303 - Section 34 provides that when a criminal act is done by several persons in furtherance of common intention, each is liable as if the act were done by him alone - A person convicted under Section 302 read with Section 34 is deemed to have committed the murder as much as the actual perpetrator - Similarly, under Section 149, membership in an unlawful assembly in prosecution of a common object makes the member guilty of the offence - Section 303 is not confined to cases where the prisoner actually and physically commits the act resulting in death but extends to cases of constructive liability under Section 34 or Section 149. (Paras 9, 10)
Facts of the case:
An appellant, while undergoing a sentence of imprisonment for life, was convicted under Section 302 read with Section 34 of the Indian Penal Code for the murder of a jail official, committed in furtherance of the common intention of an unlawful assembly. The trial court, applying Section 303, sentenced the appellant to death.
Findings of Court:
The courts below were correct in sentencing the appellant to death under Section 303 as the legal fiction of constructive liability under Section 34 or Section 149 equates the act of the group to the act of the individual.
Issues: Whether the expression "commits murder" in Section 303 IPC applies to a person who is constructively guilty of murder under Section 302 read with Section 34 or Section 149.
Ratio Decidendi: Under Section 34, a person acting in concert in pursuance of a pre-arranged plan is liable for the act as if it had been done by him alone. Therefore, a conviction under Section 302/34 or Section 302/149 means the person has "committed murder" for the purposes of Section 303, regardless of whether they performed the physical act of killing.
Result: Appeal fails and is dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether Section 303 applies only to prisoners who personally commit murder or also to those constructively liable under Section 302 read with Section 34. (Para 7 )
3. Sections 34 and 149 create constructive liability, rendering the accused liable for the criminal act as if it were committed by them alone. (Para 9 , 10 )
4. Section 303 applies to persons undergoing life imprisonment convicted of murder, regardless of whether liability is direct or constructive under Section 34 or Section 149. (Para 9 , 10 )
5. Appeal dismissed; conviction and death sentence under Section 303 upheld. (Para 11 )
6. Does Section 303 of the Indian Penal Code apply to a person convicted of murder through constructive liability under Section 34?
Yes. Under Section 34, when a criminal act is done in furtherance of common intention, each person is liable as if the act were done by them alone. Therefore, a person convicted under Section 302/34 is deemed to have committed the murder for the purposes of Section 303. (Para 9 )
7. Does Section 303 apply to convictions under Section 302 read with Section 149?
Yes. If a murder is committed by a member of an unlawful assembly in prosecution of the common object, all members are guilty of murder and are deemed to have committed it, making them liable under Section 303. (Para 10 )
8. What is the legal effect of Section 34 regarding the commission of an offence?
Section 34 embodies the principle that if two or more persons intentionally commit an offence jointly in pursuance of a pre-arranged plan, each is liable for the act in the same manner as if it had been done by them alone. (Para 9 )
P.B.GAJENDRAGADKAR, J.
(1) 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 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.
(2) 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.
(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 s.302/34 Indian Penal Code
(4) AGAINST the appellant, an additional charge was framed under s.303, Indian Penal Code 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 deathof 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.
(5) THE learned trial Judge has convicted and acting under section 303, has sentenced him to death. For the purpose of this appeal, it is unnecessary to refer to the prosecution case against the other member 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 the death and dismissed appeal preferred by the appellant. It is against this order that the appellant has come to this court by special leave; has been granted is in regard to the scope and effect of the provisions of the 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 pers 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. 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.
(8) FOR the purpose of s
