Mahabir Gope vs State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 76 of 1962

Decision Date: 4 May 1962

Coram: P.B. Gajendragadkar, J.R. Mudholkar, Subbarao

In this case, the Supreme Court of India delivered its judgment on 4 May 1962. The bench comprised Justice P B Gajendragadkar and Justice J R Mudholkar. The petitioner was Mahabir Gope and the respondent was the State of Bihar. The citation of the judgment appeared in 1963 AIR 118 and 1963 SCR (3) 331. The matter concerned the interpretation of sections 34, 149, 302 and 303 of the Indian Penal Code, 1860. The appellant, Mahabir Gope, along with eleven other accused persons, had been charged and tried for offences under sections 147 and 302 read with section 34 of the Indian Penal Code. The prosecution alleged that the twelve accused had formed an unlawful assembly and, in pursuance of their common object, had rioted while armed with deadly weapons. During the rioting they assaulted the Chief Head Warder and watchmen, and in the course of that assault the Chief Head Warder was killed. Because the appellant was already sentenced to life imprisonment for the murder, the prosecution additionally charged him under section 303 of the Indian Penal Code, which provides for the death penalty when a person serving a life sentence commits murder. The trial court convicted all twelve accused of the charges and, applying section 303, sentenced the appellant to death. The appellant appealed the conviction and death sentence to the Patna High Court. The High Court affirmed both the conviction and the death sentence and dismissed the appeal. The appellant then obtained special leave to appeal to the Supreme Court. The principal argument raised before the Supreme Court was that section 303 could be invoked only when a person serving a life sentence personally commits murder and is liable under section 302 on his own act, not when liability arises from constructive murder under section 34. The Supreme Court held that when two or more persons act together according to a pre‑arranged plan, section 34 makes each participant liable for the act committed by any one of them as if he had performed the act himself. Consequently, it was erroneous to contend that a conviction under section 302 in conjunction with section 34 did not amount to the commission of murder. The Court further observed that the same reasoning applied even if the conviction were under section 302 read with section 149. Accordingly, the Court concluded that section 303 applied to a person serving a life sentence who was convicted either under section 302 together with section 34 or under section 302 together with section 149. The judgment therefore upheld the death sentence imposed on the appellant.

The record shows that counsel D. P. Singh and D. Gupta appeared for the respondent. The judgment was delivered on May 4, 1962 by Justice Gajendra Gadkar. The appellant, Mahabir Gope, together with eleven other accused persons, had been indicted before the First Additional Sessions Judge at Bhagalpur for offences punishable under Sections 147 and 302 read with Section 34 of the Indian Penal Code.

According to the prosecution, around 12 June 1959 the appellant and the other accused formed an unlawful assembly inside Bhagalpur Special Central Jail. The assembly allegedly pursued a common object, and during the pursuit Chief Head Warder Mohammed Ilyas, night watchman Panchand Panjiare, and another inmate named Rambilash Singh were assaulted. The prosecution asserted that this assault satisfied the elements of an offence under Section 147, which criminalises rioting.

The prosecution further contended that on the same date and at the same place the members of the assembly engaged in rioting with deadly weapons while assaulting the Chief Head Warder and the two night watchmen. By committing that conduct, the prosecution argued, every member of the assembly became liable to punishment under Section 148, which deals with rioting, armed with a deadly weapon.

The third count framed against the assembled persons alleged that, in furtherance of the common object of the assembly, some of the members intentionally assaulted Rambilash Singh with the intention of causing his death. The prosecution maintained that this intentional assault made all members of the assembly liable under Section 302 read with Section 34, thereby attributing murder liability to each participant on a constructive basis.

In addition to the charges mentioned above, an extra charge under Section 303 of the Indian Penal Code was framed specifically against the appellant. Under this charge the prosecution argued that because the appellant had been convicted of an offence punishable under Section 302 read with Section 34 while he was already serving a life sentence, the law required that he be sentenced to death under Section 303.

The trial judge found the appellant guilty of all the offences listed in the charge sheet and, applying Section 303, imposed the death penalty on him. For the purposes of the present appeal, the court did not need to repeat the findings related to the other members of the unlawful assembly.

The appellant challenged both the conviction and the death sentence by filing an appeal before the Patna High Court. The High Court examined the case, confirmed the conviction and upheld the death sentence, and dismissed the appellant’s appeal.

Subsequently, the appellant sought special leave to appeal to this Court. The special leave was granted solely on a narrow point: the interpretation and effect of Section 303 of the Indian Penal Code. The issue presented for determination is whether the appellant’s conviction under Section 302 read with Section 34 places him within the ambit of Section 303, thereby justifying the death sentence imposed.

In this case, the Court examined whether the conviction of the appellant under sections 302 together with 34 fell within the ambit of section 303. Counsel for the appellant argued that section 303 could be invoked only when a person who is already serving a life sentence commits another murder, and that the expression “commits murder” required the individual himself to have performed the killing. He emphasized that the provision could be applied only where, in a subsequent trial, the prisoner was found to have personally committed another murder. The appellant, however, had been convicted not on the basis that he himself had killed Rambilash Singh, but because the murder was determined to have been committed in furtherance of the common intention of all the accused, leading to a conviction under section 302 read with section 34.

The Court noted that the lower courts had indeed convicted the appellant under sections 302 and 34, and that this conviction formed the factual backdrop for considering the argument. The central question for section 303, the Court observed, was when a person may be said to have “committed murder.” The appellant sought to establish that it was necessary for a person to be proved to have personally carried out the killing before section 303 could be invoked, and that it would not be sufficient if the person were merely constructively guilty under section 302/34. To support this position, the appellant relied on the language of sections 299 and 300, which each refer to a specific act. Section 299 provides that whoever causes death by doing an act with the specified intention or knowledge commits culpable homicide, while section 300 states that if the act causing death is done with the intention of causing death or with the intention or knowledge described in its clauses, the offence is murder. These provisions, the appellant argued, demonstrate that it is the act itself, performed by the individual, that constitutes murder, and therefore a person who is only constructively liable cannot be said to have “committed murder” under section 303.

In assessing the validity of this argument, the Court turned to the effect of section 34. Section 34 provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of those persons is liable for that act in the same manner as if it were done by him alone. The Court observed that this principle makes each participant equally responsible for the act that caused the death, regardless of whether the person physically performed the lethal act.

In this case, the Court explained that the conviction of the appellant under section 302 read with section 34 carries the legal effect that the appellant is treated as fully liable for the act that caused the death of Rambilash Singh, just as if he had performed the act himself. This consequence follows from the doctrine of constructive liability set out in section 34. Section 34 embodies the ordinary common‑sense principle that when two or more persons intentionally commit an offence together, the law regards the offence as having been committed by each of them individually. The common intention required by section 34 presupposes that the participants acted in concert and that they shared a pre‑arranged plan. Consequently, when two or more persons act in concert pursuant to such a pre‑arranged plan and proceed to commit an offence, section 34 intervenes and provides that each participant is liable for the act done by any other participant in the same manner as if he had performed that act himself. Because of this rule, the Court found it difficult to accept the argument that a person convicted under section 302 and section 34 could not be said to have committed murder. Even if the actual lethal act was performed by another individual, that act was carried out in furtherance of the common intention shared by that individual and the appellant; therefore, the law treats the act as having been done by the appellant alone. Accordingly, when a person is convicted under section 302 read with section 34, the law holds that he has committed murder to the same extent as the person who actually inflicted the fatal injury. The same reasoning applies if the appellant had been convicted under section 302 read with section 149. Section 149 provides that when an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when such members know that the offence is likely to be committed in prosecution of that object, every person who is a member of the assembly at the time of the offence is guilty of that offence. While the basis of constructive liability under section 149 is merely membership in the unlawful assembly, and the basis under section 34 is participation in the same act with a common intention to commit a crime, that distinction does not alter the legal position. If a murder is committed by one member of an unlawful assembly in prosecution of the common object, all members of the assembly who were present at the time of the murder are deemed to have committed the murder. Therefore, a conviction under section 302 read with either section 34 or section 149 results in the appellant being treated as having committed murder to the same degree as the actual murderer.

The Court noted that a person who was a member of an unlawful assembly at the moment the offence was performed is deemed guilty of murder under the statutory provision. Consequently, when an individual is convicted under section 302 in conjunction with section 149, the law treats him as having committed the murder to the same extent as the actual killer. In this regard, the Court held that section 303 should not be restricted only to situations where a person serving a life sentence personally carries out the act that causes the victim’s death. The provision, according to the Court, also applies in cases where a life‑imprisoned offender is convicted either under section 302 read with section 34 or under section 302 read with section 149. Based on this interpretation, the Court concluded that the lower courts were correct in imposing the death penalty on the appellant pursuant to section 303. Accordingly, the appeal was found to be without merit and was dismissed by the Court. The final order therefore confirmed the death sentence and rejected all relief sought by the appellant. The dismissal of the appeal thereby upholds the conviction and the punishment imposed under the applicable sections of the penal code.