# Bhaiy a Punjalal Bhagw.anddin v. Dave Bhagwatprasad Pr4b/1uprasad - **Citation:** [1963] 3 S.C.R. 331 - **Court:** Supreme Court of India - **Decided:** 1961-12-22 - **Bench:** P.B. G.AJENDR.AGADKAR K. SuBBA. RAo, J.R. Mu:i>HOLKAR - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhaiy-a-punjalal-bhagw-anddin-v-dave-bhagwatprasad-pr4b-1uprasad-2623 - **Pages:** 7 ## Headnote Criminal .L7w -Life convict guilty of constructive murderSentence of derith-Legality-lndian Penal· Gode, 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 twelv~ persons fo:med thems~lves into an .unlawful assembly and m prosecution of their common object committed the offence of rioting armed with deadly weapons assaulted the Cl.ief Head Warder and Watchmen and some of the member in I?rosecution of t_he common object caused the death of the C h1ef Warder. Smee the appellant was undergoing sentence of imprisonmen~ for life there was. a f~rther charge under s.303. of the Indian Penal Code agamst him. The trial court c0 nv1cted all the accused for the ofl'ences for which they were 1962 Bhaiy a Punjalal Bhagw.anddin v. Dave Bhagwatprasad Pr4b/1uprasad Raghubar D:zyi! J. 1962 ,'\-Jay 4 1962 J..!ahabir COpe ,. State of Bih,.r G 1j :ndragad1'ar J. 332 SUPREME COURT REPORTS [1963] charged and acting under s.303 sentenced the appellant to death. . • The appellant 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 im· prisonment 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~r 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 al0ne. 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 po.ition would not be any different even if the appellant had been convicted under s.302[: 49. Section 303 would apply even in cases where a person undergoing sentence of imprisonment for 1ife is convicted either under s. 302 read with s. 34 or under s. 302 read withs. 149. \ _J CRIMINAL APPELLA.TE 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. ll8 of 1961 and death Reference No. 2of1961. 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 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 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 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 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 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 ## Text ..._' po:, 3 S.O.R. SUPREME OOCJRT REPORTS 331 standard rent then due and thereafter· continues to pay or tender in Court regularly such rent till the sait is finally decided and also pays costs of the suit as directed by the Court. It is clear that where the legislature intended to give some benefit to the tenant on account of ·the p'l.yment of the arrears during the pen iency of the suit, it made a specific provision. In the circumstances, we are of opinion that the Court haa no discretion and has to pass a. decree for eviction if the other conditions ofsub.s. (2) of s. 12 of the Act are satisfied. The result therefore is thalr this appeal fails, and is accordingly dismissed with costs. Appeal dismissed. MAHABIIt GOPE v. ST ATE OF BIHAR (P.B. G.AJENDR.AGADKAR K. SuBBA. RAo and J.R. Mu:i>HOLKAR, JJ.) Criminal .L7w -Life convict guilty of constructive murderSentence of derith-Legality-lndian Penal· Gode, 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 twelv~ persons fo:med thems~lves into an .unlawful assembly and m prosecution of their common object committed the offence of rioting armed with deadly weapons assaulted the Cl.ief Head Warder and Watchmen and some of the member in I?rosecution of t_he common object caused the death of the C h1ef Warder. Smee the appellant was undergoing sentence of imprisonmen~ for life there was. a f~rther charge under s.303. of the Indian Penal Code agamst him. The trial court c0 nv1cted all the accused for the ofl'ences for which they were 1962 Bhaiy a Punjalal Bhagw.anddin v. Dave Bhagwatprasad Pr4b/1uprasad Raghubar D:zyi! J. 1962 ,'\-Jay 4 1962 J..!ahabir COpe ,. State of Bih,.r G 1j :ndragad1'ar J. 332 SUPREME COURT REPORTS [1963] charged and acting under s.303 sentenced the appellant to death. . • The appellant 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 im· prisonment 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~r 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 al0ne. 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 po.ition would not be any different even if the appellant had been convicted under s.302[: 49. Section 303 would apply even in cases where a person undergoing sentence of imprisonment for 1ife is convicted either under s. 302 read with s. 34 or under s. 302 read withs. 149. \ _J CRIMINAL APPELLA.TE 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. ll8 of 1961 and death Reference No. 2of1961. 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 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 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 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 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 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 assembly 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 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 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 confirmation. The High Court has confirmed the sentence of death and disniissed 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. effeot 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 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 GajenRElm 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 committed 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