LexMAHABIIT GOPE versus STATE OF BIHAR
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..._' 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 murder- Sentence 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 cons- tructive 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 im- prisonment 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, 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
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