# DILIP KUMAR SHARMA & ORS v. STATE OF MADHYA PRADESH

- **Citation:** [1976] 2 S.C.R. 289
- **Court:** Supreme Court of India
- **Decided:** 1975-10-10
- **Case number:** Criminal Appeal No. 188 Al of 1974
- **Bench:** Y. V. Chandrachud, P. N. Bhagwati, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dilip-kumar-sharma-ors-v-state-of-madhya-pradesh-6795
- **Pages:** 11

## Headnote

1.P.C.1 s. 302 and 303-Sentence to motiveless murderers-Meaning of per•
son under sentence· of life imprisonme111-Relevant dat~ for s. 303-p:ffect of an
order of acquittal-Whether cdurt seized of a proceedmgs con take mto 11ccount
subsequent events-Interpretation consistent with good sense
and
fa!f'neJsConstruction leading to oppressible, unjust and inconsistem result.
The appellants Dilip Kumar, Bharatsingh and Rohitsingh were co!1victed for
committing the murder of one Arnn Bhargava. The learned Sess10ns Ju~ge
convicted Dilip Kumar under s. 302 and Bharatsingh under s. 302 read with
s. 34 and Rohitsingh under s. 303 IPC and sentenced them to death.
One Prabhu was murdered before the incident in question too~ place for
which Rohitsingh was sentenced to life imprisonment by the Sessions Co_urt
·A
B
c
in May, 1972. In appeal, Rohitsingh was acq~itted by Madhya Pradesh High
Court in February, 1974, being the same day on w~ich the Hig_h Cou~t pronounced its judgment in the present case.
T~e . Sessions Court. m the ~nstant
D
~
case, had to impose the death sentence on Rohitsmgh as he was, at the time of
conviction for the present offence, undergoing sentence of imprisonment for
life,
•
The High Court confirmed the conviction and sentence of Dilip Kumar. The
High Court also confirmed the conviction and sentence of Rohitsingh.
While
maintaining the conviction, High Court reduced the s-entence of Bharatsingh
to imprisonment for life.
·
In May, 1974, this Court granted Special Leave to the appellants limited to
the question of application of section 303 in the case of Rohitsingh and sentence
in cases of all.
HELD : (Per Chandrachud and Bhagwati, JJ.)
E
1. Bharatsingh has been convicted under s. 302 read with s. 34. He has
been awarded the minimum sentence for murder under section 3(12 and that
F
sentence cannot be rednced. [291-G]
2. As regards Dilip Kumar, there is no reason to rednce the sentence of
death imposed on him by the Sessions Court and confirmed by the High Court.
'J!le deceased Arnn Bhargava was sitting in front of a hotel at Ujjain. Bharatsmgh amd. Rohi1'3ingh caught hold of his arms from behind and Dilip Kumar
stabbed. him: on the chest with a big knife. As a result of the injury the pleura,
the pencardium of the right ventricle of the heart were extensively damaged,
Mohv'eless murders afe not. necessarily acts of
mad
and
unhinged peopJe.
G
Prosecution is often unable to collect satisfactory evidence on the motive behind
the crime. Dilip Kumar's conduct cannot be viewed with leniency and the
High Court was right in confirming the death sentence. [291-G, H, 292-A]
. 3. Rohitsingh's appeal arising ont of Prabhn's murder was allowed by the
H~g~ Court a~d immediately thereafter it took up for consideration the appeal
ansmg out of Arnn Bhargava's murder. Thus, when the High Court
pronounced its judgment in the instant case Rohitsingh was not un<ler the sentence
of imprisonment for life. The High Court erroneously held that for the purpose
H
of determining the application of s. 303, the date on which the subsequent offence
of murder is committed is the relevant date. S. 303 does not afford a clear cine
to the solution of the problem raised in the appeal. When a person who
is
sentenced to imprisonment for life commits a murder the previous conviction
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290
SUPREME COURT REPORTS
[1976] 2 S.C.R.
assumes _a graver propo1iion and becomes an aggravating circumstance but the
aggravation JS on the assumption that the previous conviction is lawful and
valid.
An order of acquittal in regard to the previous offence wipes out the
g_mlt and turplll!de attachJ!1,g to th~ previo_us convicti0~, for the true implica•
t10n of a~ acqmttal 1s as 1f the offender did not commit the offence for which
he was tried, no matter whether the acquittal is founded on benefit of dtmbt
·or based on the overall rejection of the case.
Therefore if a court whether
of the first instance or otherwise, finds on the date on ~hich, it re~ords its
decisio

## Text

DILIP KUMAR SHARMA & ORS.
v.
STATE OF MADHYA PRADESH
October 10, 1975
289
[Y. V. CHANDRACHUD, P. N. BHAGWATI AND R. S. SARKARIA, JJ.)
1.P.C.1 s. 302 and 303-Sentence to motiveless murderers-Meaning of per•
son under sentence· of life imprisonme111-Relevant dat~ for s. 303-p:ffect of an
order of acquittal-Whether cdurt seized of a proceedmgs con take mto 11ccount
subsequent events-Interpretation consistent with good sense
and
fa!f'neJsConstruction leading to oppressible, unjust and inconsistem result.
The appellants Dilip Kumar, Bharatsingh and Rohitsingh were co!1victed for
committing the murder of one Arnn Bhargava. The learned Sess10ns Ju~ge
convicted Dilip Kumar under s. 302 and Bharatsingh under s. 302 read with
s. 34 and Rohitsingh under s. 303 IPC and sentenced them to death.
One Prabhu was murdered before the incident in question too~ place for
which Rohitsingh was sentenced to life imprisonment by the Sessions Co_urt
·A
B
c
in May, 1972. In appeal, Rohitsingh was acq~itted by Madhya Pradesh High
Court in February, 1974, being the same day on w~ich the Hig_h Cou~t pronounced its judgment in the present case.
T~e . Sessions Court. m the ~nstant
D
~
case, had to impose the death sentence on Rohitsmgh as he was, at the time of
conviction for the present offence, undergoing sentence of imprisonment for
life,
•
The High Court confirmed the conviction and sentence of Dilip Kumar. The
High Court also confirmed the conviction and sentence of Rohitsingh.
While
maintaining the conviction, High Court reduced the s-entence of Bharatsingh
to imprisonment for life.
·
In May, 1974, this Court granted Special Leave to the appellants limited to
the question of application of section 303 in the case of Rohitsingh and sentence
in cases of all.
HELD : (Per Chandrachud and Bhagwati, JJ.)
E
1. Bharatsingh has been convicted under s. 302 read with s. 34. He has
been awarded the minimum sentence for murder under section 3(12 and that
F
sentence cannot be rednced. [291-G]
2. As regards Dilip Kumar, there is no reason to rednce the sentence of
death imposed on him by the Sessions Court and confirmed by the High Court.
'J!le deceased Arnn Bhargava was sitting in front of a hotel at Ujjain. Bharatsmgh amd. Rohi1'3ingh caught hold of his arms from behind and Dilip Kumar
stabbed. him: on the chest with a big knife. As a result of the injury the pleura,
the pencardium of the right ventricle of the heart were extensively damaged,
Mohv'eless murders afe not. necessarily acts of
mad
and
unhinged peopJe.
G
Prosecution is often unable to collect satisfactory evidence on the motive behind
the crime. Dilip Kumar's conduct cannot be viewed with leniency and the
High Court was right in confirming the death sentence. [291-G, H, 292-A]
. 3. Rohitsingh's appeal arising ont of Prabhn's murder was allowed by the
H~g~ Court a~d immediately thereafter it took up for consideration the appeal
ansmg out of Arnn Bhargava's murder. Thus, when the High Court
pronounced its judgment in the instant case Rohitsingh was not un<ler the sentence
of imprisonment for life. The High Court erroneously held that for the purpose
H
of determining the application of s. 303, the date on which the subsequent offence
of murder is committed is the relevant date. S. 303 does not afford a clear cine
to the solution of the problem raised in the appeal. When a person who
is
sentenced to imprisonment for life commits a murder the previous conviction
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SUPREME COURT REPORTS
[1976] 2 S.C.R.
assumes _a graver propo1iion and becomes an aggravating circumstance but the
aggravation JS on the assumption that the previous conviction is lawful and
valid.
An order of acquittal in regard to the previous offence wipes out the
g_mlt and turplll!de attachJ!1,g to th~ previo_us convicti0~, for the true implica•
t10n of a~ acqmttal 1s as 1f the offender did not commit the offence for which
he was tried, no matter whether the acquittal is founded on benefit of dtmbt
·or based on the overall rejection of the case.
Therefore if a court whether
of the first instance or otherwise, finds on the date on ~hich, it re~ords its
decision that the accused before it is no longer under a sentence of life imprisonment it cannot under s. 303 sentence him to death. [292 D-F, G, 293 B·EJ
4. It is a well-estabfr;hed proposition that a court seized of a proceeding
must take into account events subsequent to the inception of that. proceeding.
That position is widely accepted in Ci"vil Law and there is no reason why the
principle should not be extended to criminal proceedings with appropriate modifications. According to the High Court there was no warrant for substituting the
words "whoever is convicted for murder'' for the words 'whoever commits
munkr". In taking this view. the High Court overlooked the
fundamental
principle of criminal jurisprudence that an accused is presumed to be innocent until his guilt is established.
''Whoever commits murder"
must
mean
"whoever is proved to have committed murder" and not "whoever is alleged
to have committed murder". (294 B-C, F-G]
5. When s. 303 'peaks of a person under sentence of imprisonment for
life it means a person under an operative executable sentence of imprisonment
for life.
A sentence once imposed but later set aside is not
executable and,
therefore, the court convicting the accused of murder cannot take such a sentence
into account for imposing the sentence of death by the application· of s. 303.
[295,B]
6. On merits, there is no justification for distinguishing the case of Rohitsingh
J'rom that of Bharatsingh.
Therefore, Rohitsingh's sentence ought to be reduc·
ed from death to imprisonment for life. [295-C]
Pa S<irkaria J. (concurring)
The key words in the phrase "being under sentence of life imprisonment"
1s '"sentence". It is capable of a strict as well as a broad interpretation. In
a broad sense it may include a sentence which has not become final but is
still liable to be impeached by way of appeal or revision. In the strict sense,
the ambit of the word would be limited to a sentence which has become final,
absolute and indefeasible.
S. 303 makes murder by a li.fe convict punishable
with death, leaving no discretion to the court. The section is draconion. in
severity, relentless and i"nexorablc in operation. It is well settled that such
a
penal provision must be strictly constmed and in the absence of clear. compelling language should not be given a wider interpretation. If two constmctions are possible upon the language of' the Statute, the court must choose the
one which is consistent with good sense and fairness, and eschew the other
which makes its operation unduly oppressive.
Unjust or unreasonable or which
would lead to strange, inconsistent Jesuits or otherwise introdu.ce an element
of bewildering uncertainty and practical inconvenience in the working of the
statute. lf the strict constmctiDn is adopted either the hearing 1)f the trial
would have to be postponed till pronouncement of the sentence by the final
judicial authority or a conditional sentence may be passed in the trial for the
subsequent offence.
However. postponment of trial is not desirable.
Passing
of conditional sentence would be manifestly illegal.
[295 H, 296A, D-G, 297 H,
298 A-BJ
2. There is authority for the proposition that an order of acquittal particularly one based on merits wipes off the conviction and sentence for all purposes and is void as if it h~d never been passed. It is a true annulment with
retroactive force.
[298-G[
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D, K. SHARMA v. M. P. STATE (Chandrachud, !.)
291
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 188
Al
of 1974
Appeal by special leave from the Judgment and Order dated the
27th February, 1974 of the Madhya Pradesh High Court Indore Bench
in Criminal Appeals Nos. 61 to 63 and Death Reference No. 2 of 1974.
A. N. Mui/a and S. K. Gambhir for the Appellants ..
I. N. Shroff for the Respondent.
The Judgment of Y. V. Chandrachud and P. N. Bhagwati, JJ. was
delivered by Chandrachud,
J., R. S. Sarkaria, J., gave a separate
Opinion.
CHANDRACHUD, J,
Since this appeal by special leave is limited to
c
the question of sentence, it would be enough to set out the facts bearing on the sentence.
The appellants, Dilip Kumar, Bharatsingh and Rohitsingh were tried by the Sessions Judge, Ujjain, for committing the murder of one Arun
Bhargava. The learned Judge convicted Dilip Kumar under section
302, Bharatsingh under section 302 read with section 34, Rohitsingh
D
under section 303 of the Penal Code and sentenced them to death. The
High Court of Madhya Pradesh, Indore Bench, confirmed the conviction and sentence of Dilip Kumar and Rohitsingh.
The conviction of
Bharatsingh was also confirmed but the High Coart reduced his sentence to imprisonment for life;
'
On May 3, 1974 this Court granted special leave to the appellants
"J.imited to the question of application of section 303 in the case of
Rohitsingh and sentences in case of all".
Counsel for the appellants
tuged that under this order Bharatsingh is entitled to challenge the sentence of life imprisonment imposed upon him by the High Court and
since that cannot be done without challenging Bharat:;ingh's conviction
under section 302 read with section 34, the order of conviction is also
open to challenge in this appeal.
There is no merit in this argument.
Rohitsingh's case apart, the special leave petition filed by the appellants
was not admitted on the question of conviction and leave was expressly
restri.cted to the question of sentence only.
Bharatsingh having been
convicted under section 302 read with section 34, there is no scope for
any argument as regards the sentence imposed on him.
The minimum
sentence for murder under section 302 is imprisonment for life and
that is the sentence which the High Court has imposed on Bharatsingh.
At regards Dilip Kumar, we see no reason to reduce the sentence
of death imposed on him by the Sessions Court and confirmed by the
High Court.
On June 20, 1973 at 9 p.m. the deceased Arnn Bhargava
was sitting in front of a hotel in Ujjain.
Bharatsingh and Rohitsingh
caught hold of his arms from behind and Dilip Kumar stabbed him on
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the chest with a big knife.
As a result of the injurv, the pleura the
pericardium and the right ventricle
of the heart \Vere all cut. Dilip
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Kumar's conduct cannot be viewed with leniency rrnd the High Court
was right in confirming the death sentence passed by the Sessions Court.
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SUPREME COURT REPORTS
[1976] 2 S.C.R.
Motiveless murders are not necessarily acts of mad and
unhinged
people.
Prosecution is often unable to collect satisfactory evidence
on the motive behind the crime. That does not call for any leniency
and indeed where this is so, criminals would prefer, in order to reduce
the gravity of their acts, to suppress the motive leading to the crime.
As regards Rohitsingh the main question for consideration is whether his conviction under section 303, Penal Code, is legal. If it is,
the sentence of death has to be upheld because under section 303,
"Whoever, being under sentence of imprisonment for life, commits
murder, shall be punished with death". The section leaves no discretion
to award a lesser sentence than death.
·
One Prabhu was murdered on October 24, 1971 for which Rohitsingh was sentenced to life imprisonment on Maiy 18, 1872 in Sessions
Case No. 5 of 1972.
In appeal, Rohitsingh was acquitted by the
Madhya Pradesh High Court, on February 27, 197 4, being the very
date on which the High Court pronounced its judgment in the instant
case. The S:::ssions Court had no option in the matter of sentence because on January 24, 1974 when it found Rohitsingh guilty of the murder of Arnn Bhargava in the instant case, he was "under sentence of
imprisonment for life" imposed upon him on May 18, 1972 in Sessions
case No. 5 of 1972. But that position had undergone a material change
when the High Court delivered its judgment in the instant case on February 27, 1974.
Precisely that very day Rohitsingh's conviction and
sentence for Prabhu's murder were set aside by the same Bench of the
High Court.
In fact, Rohitsingh's
appeal arising out of Prabhu's
murder was allowed by tli.e High Court and immediately thereafter it
took up for consideration the appeal arising out of Arun Bhargava's
murder. Thus, when the High Court pronounced its judgment in the
instant case holding Rohitsingh guilty of the murder of Arun
Bhargava, Rohitsingh was not under the sentence of imprisonment for
life.
For the matter of that, he was not under any sentence save the
sentence of death imposed on him for the murder of Arnn Bhargava
which was the subject matter of appeal before the High Court.
Despite Rohitsingh's acquittal in the earlier case, the High Court
convicted him under section 303 of the Penal Code, on the view that
the material date for deciding the application of section 303 is the date
on which the subsequent offence of murder is committed and not the
date on which the trial or the appellate court pronounces its judgment
in respect of the subsequent offence.
The subsequent offence, namely,
the murder of Arun Bhargava was committed by Rohitsingh on June
20, 1973 and since on that date he was under a sentence of life imprisonment imposed on him on October 24, 1971 ·for Prabhu's murder,
the High Court thought that it was inconsequential that at the time
when it pronounced its judgment in the instant case, the sentence of
life imprisonment imposed in the earlier case had been
set · aside.
According to the High Court :
"On a plain construction of the provision, we are of the
opinion that section 303 of the Indian Penal Code is attract-
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D. K. SHARMA v. M. P. STATE (Chandrachud, !.)
293
ed to a case where a person having subsisting sentence of i~
prisonment for life commits a murder, that mu.rder be~ng
committed when the sentence was in force, notw1tbstandmg
the fact that in a pending appeal the sentence is set aside subsequent to the commission of the crime."
we have to examine the correctness of this view.
Section 303 does not afford a clear enough clue to the solution of
the problem raised by the High Court judgment.. Its brief and pithy
words do not throw sufficient light on whether the relevant date for
deciding upon its applicability could be the date <?n which the proceeding in respect of the subsequent offence was de?1ded finally .. But considering the matter in all its ramifications, the view of the High Court
appears to us difficult to sustain.
When a person who is sentenced to imprisonment for life commits
a murder, the previous conviction assumes
a graver proportion and
becomes an aggravating circumstance. But the aggravation is on the
assumption that the previous conviction is lawful and valid. An order
of acquittal in regard to the previous offence wipes out the guilt and
turpitude attaching to the previous conviction, for,, the true, implication of an acquittal is as if the offender did not commit the offence for
which he was tried, no matter whether the acquittal is founded on benefit of doubt or rests upon an overall rejection of the prosecution case.
The sequiter that the order of acquittal impli!~s the innocence of the
accused is not dependent upon the stage of the court proceeding at
which the order was passed but it depends, plainly, upon the fact of
acquittal itself.
Therefore, if a court, whether of the first instance or
otherwise, finds on the date on which it records its decision that the
accused before it is no longer tinder a sentence of life imprisonment,
it cannot under section 303 sentence him to death.
On Jhe date when
the subsequent offence of murder was committed, the accused might
have been under a sentence of life imprisonment but such a sentence
would cease to have existence in the eye of law if at any subsequent
stage the convict'ton on which the sentence of life imprisonment is
founded is set aside or the conviction is maintained but the sentence
of life imprisonment is reduced to a lesser sentence. More than one
offence in the Penal Code is punishable with life imprisonment and not
all sections of the Code which provide for the sentence of life imprisonment make it obligatory to impose that sentence.
For example, an
offence under section 304, Part I, or section 326 is punishable with
life imprisonment and the court of first instance may sentence the
offender under those sections to life imprisonment. . The higher court
may set aside the conviction in 'its entirety and acquit the accused
in
wh!ch .case there _is .no question of imposing any sentence, or it may
mamtam the conviction and reduce the sentence to a lesser term which
under those sections is permissible. In either event, the offender would
no longer be under a sentence of life imprisonment and no matter when
that . sen tenet; is set aside or reduced, the court dealing with the proccedmg relatmg to the subsequent offence of murder will have to take
that circumstance into account.
The date of. murder, undoubtedlv, has
relevance but that is in the limited sense that the murder has to succeed ,
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SUPREME COURT REPORTS
(1976] 2 S.C.R.
nol precede, the offence for which the accused was sentenced to life
imprisonment.
This sequence is fixed by the pre-condition of section
303 that a person under sentence of imprisonment for life must
b~
found guilty of murder. . But in between the date on which the- subsequent offence of murder is committed and the pror;ecding in respect
thereof is terminated, the sentence of life imprisonment founded upon
the previous conviction may have been set aside, in which event, section 303 would cease to have application.
It is a well-established proposition that a court seized of a proceeding must take into account events subsequent to the inception of that
proceeding. That position is widely accepted in civil law and there is no
reason why the principle should not be extended to criminal procc.edings with appropriate modifications.
When on the conclusion of a
Sessions trial, the Sessions Judge finds the accused guilty of murder, he
wili have no option save to act under section 303, if he finds that at the
date of the offence the accused was under a sentence of life imprisonment for some o\her offence. The High Court, dealing with an appeal
from the judgment of the Sessions Court, may find that the sentence .of
life imprisonment which was in operation on the date when the Sessions
Court delivered its judgment has been, in the meanwhile, set aside by a
higher court seized of the previous case. The High Court shall have to
taKe the subsequent event of acquittal into consideration and by reason
of that tvent section 303 would cease to have application. It may so
happen that this Court seized of an appeal against the High Court judgment may find when it records its own judgment that the sentence of
life imprisonment imposed by the trial court but set aside by a higher
court has been re-imposed in a further proceeding. In that event, this
Court shail have to proceed on the basis that at the time when the
accused is alleged to have committed murder, he was under a sentence
o[ imprisonment for life.
Jf the convictlon for murder is upheld by
this Court, section 303 would come into play and the accused shall
have to be sentenced to death.
The High Court thought that the words "Whoever . . . . . . . . commits murder'' in section 303 indicate that the relevant point o[ time is
the date of commission of the murder and not the date of conviction
for murder.
According to the High Court there was no warrant · for
substituting the words "Whoever .......... is convicted for murder'.',
for the words "Whoever ............ commits murder".
In taking
this view the High Court overlooked the
fundamental
principle of
criminal jurisprudence that an accused is to be presumed to be innocent until his guilt is established.
"Whoever._ ...... commits murder" must mean "Whoever is proved to have committed murder" and
not "Whoever is alleged to have committed murder". The proof of
murder consists in the final judgment of conviction and therefore, until
such a judgment is recorded it is impossible to
predicate
that the
accused has committed murder.
The anomaly arising out of the view taken by the High Court may
be demonstrated in reference to section 75 of the Penal Code. Stated
briefly, under that section if a person who is convicted of an offence
therein mentioned is again found guilty of a similar offence, he is liable
to enhanced punishment. lt is true that section 75 uses the words
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D. K. SHARMA v. M. P. STATE (Sarkaria, J.)
295
"Whoever having been convicted" but what is Important is that for justifying the enhanced punishment, the court convi~ting the .ac.cus~d f?r
the subsequent offence has to find that the preVIous conv1ct10n is m
operation on the date of the subsequent conviction. If the previous .conviction is in the meanwhile set aside, the accused would not be liable
to enhanced punishment because on the date of the subsequent judgment it cannot be said that the accused has a previous conviction.
Thus, when section 303 speaks of a person "under sentence of imprisonment for life" it, means a person under an operative, executable
sentence of imprisonment for life. A sentence once imposed but later
set aside is not executable and therefore the court convicting an accused of murder cannot take such a sentence into account for imposing
the sentence of death by the application of section 303.
On merits, there is no justification for distinguishing the case of
Rohitsingh from that of Bharatsingh.
They played an identical role
in the murder of Arnn Bhargava and if Bharatsingh deserved a sentence of life imprisonment, so must Rohitsingh.
In the result we dismiss the appeals of Diiip Kumar and Bharatsingh and confirm the sentence of death imposed on pilip Kumar and
tl~e sentence of life imprisonment imposed on Bharatsingh. We allow
the appeal of Rohitsingh and reduce his sentence from death to imprisonment for life.
SARKARIA, J. I have seen the judgment prepared by my learned
brother Chandrachud J. I agree that the appeals of Dilip Kumar and
Bharatsingh be dismissed and their conviction and sentences be confirmed. I futiher agree that s. 303, Penal Code being not applicable to
Rohitsingh's case his sentence of death be commuted to imprisonment
for life.
The case of Rohitsingh involves a question regarding the interpretation and scope of s. 303, Penal Code. In view of the importance
of the question, I would like to state my own reasons.
TI1e facts arc given in full m the judgment of my learned brother
and I need not repeat them .
Section 303, Penal Code runs as under:
"Whoever being under sentence of imprisonment for life,
commits murder, shall be punished with death."
A bare reading of the Section indubitably shows that the crucial
point of time when the state of the accused person "being under sentence of life imprisonment," is to be considered, is when the murder in
question is committed.
On this point, the language of the section is
crystal clear, and it meaqs what it says.
The real problem that has
come to the surface in this case, is about the scope and construction of
the phrase, "being under sentence of life imprisonment".
The keyword in this phrase is "sentence" which is capable of a strict as well
as a broad interpretation.
Jn the strict sense, the meaning and ambit
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SUPREME COURT REPORTS
[1976] 2 S.C.R.
of this word would be limited to a sentence which has become final
absolute and indefeasible so far as judicial process is concerned. In ~
broad sense, it may also include a sentence which has not become final
but is being impeached or is still liable to be impeached by way of
appeal or revision or other mode known to law.
The case has thus
resolved itself into the issue, as to which of these two constructions of
the expression "sentence" comports best with reason and fair applicability of the section ?
The learned Judges of the High Court did not address themselves
to this pivotal question.
They simply assumed that the expression
"sentence" is wide enough to include a sentence which is not even final
and absolute, but is still being impugned in a pending appeal.
Proceeding on this wrong assumption, the learned Judges posed the question as to what was the crucial point of time when such a sentence
should be subsisting? Thereafter, they answered it in these terms :
"Thus on a plain construction of the provision we are of
the opinion that Section 303 of the Indian Penal Code is
attracted to a case where a person having subsisting sentence of imprisonment for life commits a murder, but murder
being committed when the sentence was in force, notwithstanding the fact that in a pending appeal the sentence is
set aside subsequent to the commission of the crime."
Section 303 makes murder by a life-convict punishable with death,
with no alternative sentence.
Once it is established that at the time
of committing the murder, the prisoner was under a sentence of life
imprisonment, the Court has no discretion but to award the sentence
of death, notwithstanding the existence of mitigating circumstances
which by normal judicial standards and modern notions of penology
do not justify the imposition of the capital penalty. Viewed from this
aspect, the section is Draconion in severity, relentless and inexorable
in operation.
It is well settled that such a penal provision must be strictly construed; that is to say, in the absence of clear compelling language, the
provision should not be given a wider interpretation, and "no case
should be held to fall within which does not come within the reasonable interpretation of the statute." (M. V. Joshi v. M. V. Shimpi) (l).
If two constructions are possible upon the language of the statute, the
Court must choose the one which is consistent with good sense and
fairness, and eschew the other which makes its operation unduly oppressive, unjust or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute.
Considered in the light of these principles, the connotation of the
expression "sentence" in the phrase "being under sentence of imprisonment for life" must be restricted to a sentence which is final, conclusive
and ultimate so far as the judicial remedies are concerned. A sentence
(1) [1961] 3 S. C.R. 986.
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D. K. SHARMA v. M. P. STATE (Sarkaria, J.)
297
· of life imprisonment which at the time of the commission of the murder
. in question, is defcasible or capable of being, or liable to be voided,
annulled or undone by way of appeal, revision or other judicial process_
known to law, is outside the purview of the phrase, "being under sentence of imprisonment for life" in sec. 303.
The adoption of the wider interpretation of the expression, so as to
focludc a sentence which is not final and ultimate in the judicial process
but is still being impeached or is capable of being impeached and an-
:
nulled by having recourse to judicial remedies available at la\v, \Vould,
in my opinion lead to strange, unreasonable and unjust results.
It
would further introduce an element of disconcerting uncertainty in the
application of the Section and disturbing unstability, unpredictability .
.and contradiction in the administration of justice. In that view, the
application of the sec(ion, it is feared, may become very much of a
gamble. Courts must endeavour to avoid this reproach.
The point can be highlighted by taking an extreme illustration.
Accordingly I would modify the facts of the fostant case, to make it
~uch an illustration.
A
B
c
D
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R. is convicted and sentenced to imprisonment for life for the murder of X by the trial Court on 1-1-1970. He appeals against his conviction to the High Court. During the pendency of the appeal, R on
10-1-1970, commits the murder of Y. He_js convicted by the trial court
for this murder but it is found that there arc mitigating circumstances
in the case which do not justify the imposition of the death penalty.
Nevertheless, the Court imposes the death penalty on the ground that
Section 303 is attracted and makes a reference to the High Court for
eonfirmation of the death sentence. R also appeals. R's appeal is
dismissed but the reference is accepted and the sentence is confirmed
by the High Court on 10-4-1970. R's special leave petition under ·Art.
136 of the Constitution is also dismissed by the Supreme Court on
1QC7-1970. For some reason or the other,-and it is not difficult to
conceive such cases-R's appeal in X's murder case could not be
disposed of by the High Court before 9-1-1971, on Which date, the
High Court accepts that appeal and acquits ·R with a clear finding that
he had been falsely implicated in the murder of X.
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Would not the invocation of s. 303 in such a situation lead to con-,
fusion, inconsistency and contradiction? · Would it · not present a
strange, unenviable spectacle where reasoned justice and Jaw stand
poles as under mocking at each other ?
·
It is possible to suggest that the court awarding or confirming the
death sentence in Y's murder case could avoid this anomalous situation
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in either of these ways : Firstly, it may postpone the trial/hearing; or
pronouncement of the sentence till the whole gamut of judicial process
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has been run and legal remedies are exhausted by R and the ultimate
result is known in X's murder case. Secondly, it may pass a conditional
sentence of death under sec. 303 which in the event of the life sentence
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298
SUPREME COURT REPORTS
[1976] 2 S.C.R.
in X's murder case being set aside by a court in due course of law,
would be deemed to have been converted into a sentence of imprisonment for life.
·
Postponement of the trial or pronouncement of· the sentence till
the happening of an event the ultimate shape of which is uncertain, is
not desirable. Such a course is bound to cause inordinate delay and
practical inconvenience in the disposal of the case.
It will offend
against the scheme of the Criminal Procedure Code and the Court Rules
which require that murder cases and murder references should be dis- ,.
posed of with utmost expedition. There is no statutory provision in "
the Code of Criminal Procedure, authorising the court to postpone the
proceedings or the trial till the accused has exhausted all his remedies
upto the highest court and the ultimate result of the judicial process
is known. The second possible course would be manifestly illegal It •
is clearly not permissible under the law.
'
The instant case, also, .illustrates how illogical, queer and contradictory results may flow from a wi<ler construction of the expression
"sentence" for the purpose of sec. 303. On one hand, the High Court
accepted Rohit's appeal, quashed his conviction and sentence and acquitted him of Prabhu's murder. On the other, inconsistently enough,
it worked out the proposition, that despite his acquittal and the annulment of his sentence of life imprisonment, Rohit was at the time of
committ_ing Arun's murder, under a s_ubsisting sentence of life impri-
•
sonment for the purpose of sec. 303, and consequently, for that reason,
am! that reason alone, on his conviction for Arun'.s murder, they had
no option but to sentence him to death .. If I may say so with respect, •
this anomalous, incongruous and contradictory position into which the
learned· Judges of the High Court found themselves landed, could be
avoided if they had not, at the t,hreshold of their approacl1, taken it
for granted that the expression "sentence" in the aforesaid phrase in
sec. 303, is wide enough to embrace not only a sentence which is final
and conclusive but also one which is not so.
One wrong assumption led to another infirm deduction, viz. that
an order of acquittal passed.in appeal does not operate to obliterate a
· sentence with effect from the date on which it was originally awarded.
i
There is authority. for the proposition that an order of acquittal
particularly one passed on merits, wipes off the conviction and sentence
for all purposes, and as effectively as if it had never been passed. An
order of acquittal annulling or voiding a conviction
operates
from
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nativity. As Kelson puts it, "it is a true annulment, an annulment with
retroactive force."
So when the conviction of Rohit for
I'rablm's
murder, was quashed, the High Court-to borrow the fclidtious words ·
of Krishna Iyer J.-'Kilkd the conviction not then, but performed the
•
formal obsequies of the order which had died at birth.'
H
I need not labour the point further. It has been lucidly brought out
by my learned brother, Chandrachud J. in his judgment. Moreover,
in the view I take,-that the phrase "being under a sentence of imprisonment for life" takes in only that scntcocc of life imprisonment
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D. K.. SHARMA v. M. P. STATE (Sarkaria, J.)
299
which, under the law, being the ultimate end product of the entire
A
gamut of litigation fought in the hierarchy of courts, has become final,
conclusive and indefeasible, and as such is not liable to be impugned,
annulled or voided by further judicial action-further pursuit of this
line of argument will be unnecessary, if not academic.
For the foregoing reasons, the death sentence awarded to Rohitsingh with the aid of sec. 303, Penal Code, must be set a:;idc..
His
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conviction under sec. 302/34; Penal Code for the murder of Arun shall
stand and on that count he shall undergo imprisonment for life.
Excepting this modification, his appeal is dismissed.
P.H.P .