# PRATAP v. STATE OF U.P

- **Citation:** [1973] 3 S.C.R. 136
- **Court:** Supreme Court of India
- **Decided:** 1972-12-22
- **Case number:** Criminal Appeal No. 206 of 1971
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pratap-v-state-of-u-p-5946
- **Pages:** 22

## Headnote

1
136
PRATAP
v.
STATE OF U.P.
December 22, 1972
[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JI.]
Criminal trkl-Trial for
murder
under
s. 302 l.P.C.-Accused
whether undergoing sentence of life imprisonment at time of commission
of offence so as to attract death peno!ty under S. 303 l.P.C.-Whether
trial judge must take evidence for this purpose under s. 310 Cr. P. C.-
Propriety of Hlgh Court eonverting · . cotiviction to one under s. 303
J.P.C. exercising powers under s.439 I.P.C. on the basis o! revision
petitions filed by private parry.
The appellant was tried for an offence under s. 302 I.P .C. The
prosecution sought to put o,n record two documents to show that the
appellant was punishable with death under s. 303 I.P .C. in view of tlw
fact that be bad earlier been convicted of another murder and was in
that connection undergoing a sente;oce of life imprisonm;mt though be
bad bee:;> released on probation. The trial judge held that the documents
were _not relevant because in his view ~he conditions which would make
them relevant were II>Ot satisfied. He convicted the
appellant
under
s. 302 I.P.C. as charged and sentenced him to Imprisonment for life.
The State did not file any appeal but two revision petitions were filed
in the High Cou'rt by the brother of the deceased against the orders
of the Sessions Judge refusing to summon the -aforesaid documents a:ad
refusing to frame a charge under s. 303 I.P .C. The appellant sent
an appeal against bis conviction to the High Court of Allahabad 1n the
form of a letter. The High Court sent the matter to the
Sessions
Judge for determinatio,a of the question whether the appellant and the
person alleged to have been convicted of murder in the earlier case were
the same persons. The Sessions Judge recorded a finding that the appel·
!ant was the person who had been convicted of. the earlier murder and
was undergoing imprisonment of life in that connection. On thls report
the High. Court convicted the appellant under s. 303 I.P .C. and sentepced him to death. It however granted hlm a certificate to appeal
to this Court. The questions that fell for consideration
were :
(1)
whether the appellant was liable to he sentenced under s. 303 I.P .C.
for the ,.nhanced punishment of death; (Ii) whether it was necessary in
the present case to follow the procedure laid down in s. 3 J 0 of the
Qriminal Procedure Code;· (iii) whether the High Court would impose
the enhanced punishment of death when there
was no appeal by the
State merely on the basis of revision
petitions filed
by
a. private
party ..
Dismissing the appeal,
HELD : Per Alagiriswami and V~dialingam JJ. (Dua J. dissenting)
· (i) It was established that the accused was under· ·a · sentence of
imprisonment for· life when he comm.itted the · present
murder.
He
would
therefore
be
liable to
be
convicted under Section 303 of
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the Jndian Penal Code. [142-D]
H
(ii) Under s. 310 of the Code of Crirnb>al Procedure as under s. 75
of the Indian Penal Code, it is enough if the person concerned _ has
been e<1rlier convicted. It is not necessary that the sentence should be
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PRATAP. V, U,P, STATE
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in force.
But under •· 303 I. P. C. the persQl!'B sentence must be in
force if the person is to be dealt with for a aubsequeQI.
offenco ot
murder under that section.
Bearing in mind that section 75 l.P .C. and
section 310 of the Code of Criminal Procedure deal with persona with
previous convictio.i>-the previous sentence need not necenarily be in
force when the subs,equent offence is committed-it would be .clear that
the latter section is intended to be applicable only lo cases to which
section 75 of the Indian Penal Code applies. [144A-B]
Section 303 is like a proviso to s. 302 and a court trying a pen1¥1
for murdl;r could apply the provisio)IS of s. 303 if it is brought to its
notice that the person being tried is under a sentence of life imprison·
ment. The punishment for an offence under s. 302 is either death or
life

## Text

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1
136
PRATAP
v.
STATE OF U.P.
December 22, 1972
[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JI.]
Criminal trkl-Trial for
murder
under
s. 302 l.P.C.-Accused
whether undergoing sentence of life imprisonment at time of commission
of offence so as to attract death peno!ty under S. 303 l.P.C.-Whether
trial judge must take evidence for this purpose under s. 310 Cr. P. C.-
Propriety of Hlgh Court eonverting · . cotiviction to one under s. 303
J.P.C. exercising powers under s.439 I.P.C. on the basis o! revision
petitions filed by private parry.
The appellant was tried for an offence under s. 302 I.P .C. The
prosecution sought to put o,n record two documents to show that the
appellant was punishable with death under s. 303 I.P .C. in view of tlw
fact that be bad earlier been convicted of another murder and was in
that connection undergoing a sente;oce of life imprisonm;mt though be
bad bee:;> released on probation. The trial judge held that the documents
were _not relevant because in his view ~he conditions which would make
them relevant were II>Ot satisfied. He convicted the
appellant
under
s. 302 I.P.C. as charged and sentenced him to Imprisonment for life.
The State did not file any appeal but two revision petitions were filed
in the High Cou'rt by the brother of the deceased against the orders
of the Sessions Judge refusing to summon the -aforesaid documents a:ad
refusing to frame a charge under s. 303 I.P .C. The appellant sent
an appeal against bis conviction to the High Court of Allahabad 1n the
form of a letter. The High Court sent the matter to the
Sessions
Judge for determinatio,a of the question whether the appellant and the
person alleged to have been convicted of murder in the earlier case were
the same persons. The Sessions Judge recorded a finding that the appel·
!ant was the person who had been convicted of. the earlier murder and
was undergoing imprisonment of life in that connection. On thls report
the High. Court convicted the appellant under s. 303 I.P .C. and sentepced him to death. It however granted hlm a certificate to appeal
to this Court. The questions that fell for consideration
were :
(1)
whether the appellant was liable to he sentenced under s. 303 I.P .C.
for the ,.nhanced punishment of death; (Ii) whether it was necessary in
the present case to follow the procedure laid down in s. 3 J 0 of the
Qriminal Procedure Code;· (iii) whether the High Court would impose
the enhanced punishment of death when there
was no appeal by the
State merely on the basis of revision
petitions filed
by
a. private
party ..
Dismissing the appeal,
HELD : Per Alagiriswami and V~dialingam JJ. (Dua J. dissenting)
· (i) It was established that the accused was under· ·a · sentence of
imprisonment for· life when he comm.itted the · present
murder.
He
would
therefore
be
liable to
be
convicted under Section 303 of
A
B
c
D
E
F
G
the Jndian Penal Code. [142-D]
H
(ii) Under s. 310 of the Code of Crirnb>al Procedure as under s. 75
of the Indian Penal Code, it is enough if the person concerned _ has
been e<1rlier convicted. It is not necessary that the sentence should be
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PRATAP. V, U,P, STATE
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in force.
But under •· 303 I. P. C. the persQl!'B sentence must be in
force if the person is to be dealt with for a aubsequeQI.
offenco ot
murder under that section.
Bearing in mind that section 75 l.P .C. and
section 310 of the Code of Criminal Procedure deal with persona with
previous convictio.i>-the previous sentence need not necenarily be in
force when the subs,equent offence is committed-it would be .clear that
the latter section is intended to be applicable only lo cases to which
section 75 of the Indian Penal Code applies. [144A-B]
Section 303 is like a proviso to s. 302 and a court trying a pen1¥1
for murdl;r could apply the provisio)IS of s. 303 if it is brought to its
notice that the person being tried is under a sentence of life imprison·
ment. The punishment for an offence under s. 302 is either death or
life imprisonment and s. 303 removes the alter.native punishment
and
makes a sentence of dee th compulsory. There is no need the~fore to
Ira.me a further charge under section 303 according to the provisions
ot section 310 Cr. P. C.
It must therefore be held that there was no
illegality committed by the Hiah Court in sentencin& the appellant
to
death without framing a charl!I' as required under section 310 of the
Code of Criminal Procedure or without sending back the case for rr .. 11
trial by the Sessions Judge after framing a charge u:nder
sectien 303
I.P.C.
[1440-H]
'
(iii) Under Section 439 of the Code of Criminal
Procedure
the
High Court has ample powers and as a notice had been given to the
appellant to show cause why his sentence should not be enhanced, there
was no illegality i:n the sentence of death imposed on the appellant. The
power under s.439 Cr. P.C. is one which the High Court can exercise
suo motu and all that a person filing a revision petition
under
that
section does is to draw the court's attention to an illegal, improper or
incorrect finding, sentence or order of a subordinate court.
'TIMe fact that
in this case the brother of the deceased filed the rev'i-sion petitions and
the Government did not do so did not affect the powers of the High
Court under that Section.
Jn addition reference may also be made to
s. 423 (IA) of the Cr .. P.C. [145B-Dl
Per Dua J.-1111 this case the High Court was not at ull justified in
interfering with the discretion of the trial court in decling to take the
two documents on the record when the prosecution had not in good
time -summoned the evidence for proving the previous- conviction of the
appellant and the fact that he was under a life sentence and had also
not asked for adjournment of the appellant's trial on the charge under
s. 302 LP .C.
The appellant could by no means be considered to have
notice of a charge under s. 303 I. P. C. or of the facts which form the
essential ingrediants of the offence, when there was absolutely no 1ucb
indication in the charge actually framed against him "and on which he
was tried.
[155E-GJ
The High Court did not also sc'rutinise the
proceedings
of the
Sessions Judge for ascertaining if the appellant had betm afforded adequate
legal ussistanee and also as to why the thumb
impressions
and the
handwritings, if any of the accused in the two cases were not got com·
pared. The High Court should have done so in order to satisfy itJelf
if the appellant had been afforded adequate and effective opportunity to
defend himself before the Sessions Judge because
those
proceedings
were iust as serious es a trial for an offence prescribing death as the only
penalty. [156C-D)
Bashira v. State of U.P. A.I.R. 1968, S.C.
1313, referred to.
•
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138
SUPREME COURT REPORTS
[1973] 3 s.c.R.
The Hiib Court erred in enhancing the appellant's sentence
on the
facts and circumstances of this case. Justice had quite clearly
failed
here as a result of the interf~rence by the High Court on revision at
the instance of the private complainant.
The death sentence passed by
the High Court against the appellant must accordingly be quashed and
the sentence of life imprisonment passed by the trial Court must be
restored. (156-F]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
206 of 1971.
Appeal by certificate from the judgment and order dated
August 11, 1970 of the Allahabad High Court in Criminal Appeal
No. 216 of 1966.
M. S. Gupte, for the appeJlant.
~· P. Rana, for the respondent.
The Judgment of A. Alagiriswami and. C. A. Vaidialingam, JJ.
was delivered by Alagiriswami, J., I. D. Dua, J. gave a dissenting
Opinion.
ALAGIRISWAMI, J.
This is an appeal against the judgment of
the High Court of Allahabad altering the sentence of life imprisonment inflicted on the appellant by the Sessions Judge, Hamirpur,
co one of death under Section 303 I.P.C. The main argument in
this case has been about the legality of the conviction of the appellant under Section 303 I.P.C. though an attempt was also made
to canvass 1the correctness of the judgment of the Sessions Judge
awarding the sentence of life imprisonment.
On 14-10-1964 the deceased.Rati Ram and his brother Pooran,
P.W. l, had gone to their fields and Pooran and his servant Ganga,
P.W. 4, were ploughing their fiel<ls. In another field belonging to
Pooran the appellant was grazing his cattle.
Rati Ram asked
the appellant to take away the cattle from his field as it was not
yet dry and grazing of the cattle would damage the field.
Th~
appellant refosed to remove his cattle from the field and upon
this there was an exchange of abuses between the two. When the
deceased was driving away the cattle from the field, the appellant
gave a blow on the left side of the neck of the deceased with a
Pharsa, which he had in his hand, and the deceased fell down and
died.
Sunder Lal, P.W. 2, who was ploughing his field nearby
as well as Laxmi Prasad, P.W. 3, who happened to be on the S1)0t.
also saw this occurrence in addition to P.W. 1 and P.W. 4. P.W. l
reported the occurrence at the police station and the Station Officer,
P.W. S, reached the village the same day, held an inquest, removed
the blood stained clothes from the dead body, prepared a site plan
and sent the body for post-mortem examination. He also took the
blood stained earth. After recording the statement' of PWs 1 to
4 and recording the statement of the accused on 25-10-64 he
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PIATAP v. U.P. STATE (A.lagiriswami, I.)
139
submitted the charl'e sheet.
The accused was committed to the
Court of Sessions m due course to stand his trial under Section.
302 I.P.C. The defence of the appellant was complete denial of
the quarrel at the scene of occurrence as spoken to by the prosecution witnesses.
The medical evidence established that the deceased died of a.
blow given pn his neck with a Pharsa. The occurrence happened
during day time' and in the report to the police the whole story,
as spoken to by the prosecution witnesses, was mentioned. There
was no suggestion to PWs I, 2 and 4 of any enmity with the accused.
A suggestion was made to P.W. 3 that the appellant's
father had appeared as a witness in a dacoity case against PW 3 's
grand father, in which he was convicted. P.W. 3 stated that he·
did not know whether this was true, and exceot this suggestion
there was no other evidence to establish the enmity. This suggestien, however, looks far-fetched. We have carefully gone through
the evidence in this case as also the Judgment of the Sessions Judge
and the High Court and find no reason tCt differ from them in their
conclusion that tli
ellanrfs guilty of the murder of Rati Ram.
It was argued belure the Sessions Judge that in any case, no
offence under Section 302 I.P.C. had been made out and that there
was only an offence under Section 304, even if the prosecution
story could be held to have been proved. The learned Sessions
Judge took the view that though the occurrence took place without
premediation and in a sudden fight, and there was exchange of
abuses on both sides, it could be presumed that it took place in
the heat of passion upon a sudden quarrel, but that it could not
be said that the offender had acted without having taken any undue advantage, and on the ground that the accused had acted in
a cruel and unusual manner. he held that the offence did not fall
under Exception 4 of Section 300 of the Indian Penal Code an.t
found him guilty under Section 302 I.P .C. On the ground, however, that there was no premediation and it was a sudden fight and
the murder was committed in the heat of oassion upon a sudden
quarrel, and that the accused had given only a single blow of thC'
Pharsa, he awarded the lesser penalty of imprisonment for life.
Before the Sessions Judge, a petition was presented on 21st
July. 1965 d~awing his attenti?n t~ the fact that the appellant was
under a prevmus sentence of unpnsonment for life on conviction
under s. 302 l.P.C. and that he was released on orobation in the
vear 1959 and that his probi\tionary oeriod was· upto 1973 a.nd
hence he should be charged under Section 303 I.P.C. The Sessions
Judge was requested to send for the file of release orders under the
U.P. Releases on Probation Rules containing G.0 No. 271 (i)P/
XXII-1212(1)/1959 dated April 4, 1959 relating to the release
of the appellant. On that application the Sessions Judge passed
140
SUPREME COURT REPORTS
(1973) 3 s.c.a.
a one word order saying 'Summon'. On July 22; 1965 on behalf
A
of the prosecution another application was filed in these terms :
. "Most respec.tfull~ it is submitted that the prosecution wants to bnng mto the records the following two
papers.
It is, therefore, prayed to your honour kindly to
B
allow papers to be filed with the records.
Papers to be filed
I. Previous conviction certificate of the accused U /s.
302 I.P.C. in the year 1953 by the learned Sessions Judge, f!:amirpur.
2. Copy of the letter from the U.P. Govt. to the D.M.
Hamirpur regarding the release of this accused on
probation of the year 1959. In that release order
his probation period is upto the year 1973."
On this application the Sessions Judge passed the following
,order:-
"The papers are not relevant unless any document is
produced to show that the present murder was committed
when the accused was on probation or was serving out
the sentence. Hence rejected."
Thereafter the remaining evidence was taken and lhe accused was
examined. Arguments were heard and the judgment was delivered
on July 26, 1965.
When the matter came up before the High Court on appeal by
the appellant, two revision petitions were filed by Pooran, brother
of the deceased, against the order of the Sessions Judge refusing
to summon documents and refusing to frame a charge under s. 303
I.P.C. The prayer was that the appellant should be convicted and
sentenced under s. 303 I.P.C. The appeal and the revisions were
heard together. The High Court took the view that the appellant
was guilty of the offence of murder and had been rightly convicted.
The learned Judges were of the opinion that the Sessions Judge
was not justified in disposing of the applications filed by the prosecution during the course of trial before him in the manner done by
him, and it was his duty to get the necessary material and then to
decide whether the prosecution was justified in asking for the
charge to be framed under s. 303 I.P.C. or not and that the
Sessions Judge had failed to perform his duty. The Deputy
Government Advocate produced before the High Court a G.0.,
which had been asked to be summoned in the earlier applications.
which established that one Pratap son of Tulaiyan was sentenced
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PRATAP v. U.P. STATE (A/agiriswami, J.)"
141
to death for the murder of Srimati Phulrani and this was commuted
to one of life imprisonment. This sentence was in force· on tlle
date on which the appellant committed the murder of Rati Ram.
When he was questioned whether he had been convicted earlier
under s. 302 I.P.C. the appellant denied that he had been prosecuted or convicted for mt:rder. The matter was, therefore, sent by
the High Court to the Sessions Judge, with a direction to make an
enquiry whether the appellant and the person referred to as Pratap
son of Tulaiyan convicted earlier for murder of Smt. Phulrani were
one and the same. The Sessions Judge accordingly held an enquiry
in which he examined the husband of Smt. Phu!rani, as also
Pooran, who had been examiiied earlier as P .W. 1 in the present
case. Both of them gave evidence that the appellant was none
other than Pratap son of Tulaiyan, who had been earlier convicted
for murder of Sm!. Phulrani. The appellant admitted before the
Sessions Judge that he was the same person who was prosecuted
for the murder of Phu!rani in 1953 and had been convicted and
sentenced to death. The Sessions Judge recorded the finding that
Pratap son of Tulaiyan who was convicted for the murder of
Pbulrani in Sessions Trial No. 25 of 1953 and the present appellant
were one and the same person. The High Court accepted· this
finding.
It was contended before the High Court that it could not, in
exercise of its revisional jurisdiction under s. 439 Cr. P.C., convict
the appellant of the offence under s. 303 l.P.C. and that it should
remand the case to the Sessions Judge for framing an additional
charge under s. 303 I.P.C. and then proceed in accordance with
the procedure prescribed bys. 310 Cr. P.C. The High Court held
that it was not necessary to follow the procedure prescribed by s.
310 Cr. P.C. and that they could, in exercise of their revisional
powers, enhance the sentence on the appellant to one of death
under s. 303 of the Indian Penal Code, and that it was not a case
of the appellant having been acquitted under s. 303 of the I.P.C.
earlier and it could not be said that he was being convicted for an
offence for which he bad been acquitted by the lower Court. On
the above view the High Court convicted the appellant under s.
303 l.P.C. and sentenc~ him to death.
As already mentioned, there is no doubt that the offence of
murder has been amply proved by the evidence of the prosecution
witnesses in this case. That leaves the question whether the con·
viction of the accused under s. 303 l.P.C. is bad for all or any of
the reasons urged by the appellant before.the High Court and now
before this Court.
We are of tl!e opinion that it was not necessary in this case to
lo!1ow the procedure prescribed under s. 310. It is established
that the accused was under a sentence of imprisonment for life
,
142
SUPREME COURT REPORTS
[1973] 3 S.C.R.
when he committed the present murder. His conviction was made
in 1953 and he was released on licence in 1959 and the period
of licence was to last till 1973. Under the provisions of Section
2 of the Uttar Pradesh Prisoners' Release on Probation Act, 1938,
the State Government may by licence permit a person under sen-
.tence of imprisonment . to be released on condition that he be
placed under the supeiyision or authority of a Government Officer
or of a person or institution or society as may be recognised by the
State Government. Under Section 3 of that Act a licence granted
under Secl!on 2 shall be in force until the date on which tho person
released would, in the execution of the order of warrant authorizing his imprisonment, have been discharged from prison had he
not been released on licence or until the licence is revoked, whichever is earlier. Under Section 4 of that Act, the period during
which a person is absent from prison under the provisions of that
Act on a licence which is in force shall be reckoned as pan of the
period of imprisonment to which he was sentenced, for the purpose
of computing the period of his sentence and for the purpose of
computing the amount of remission of sentence which might be
awarded to him under any rules in force relating to such remission.
It is, therefore, obvious that the appellant had committed the murder of Rati Ram while he was under a sentence of imprisonment
for life and he would therefore. be liable to be convicted under
Section 303 of the Indian Penal Code.
The argument on his behalf is that before sentencing him under
Section 303 l.P.C. the procedure prescribed under Section 310 of
the Code of Criminal Procedure should have been followed and
as that has not been done the sentence of death passed on him is
illegal.
Section 310 of the Code of Criminal Procedure reads as
follows:
''310. In the case of a trial by a jury (or by the
Judge himself) when the accused is charged with an
offence and further charged that he is by reason of a
previous conviction liable to enhanced punishment or to
punishment of a different kind for such subsequent
offence, the procedure prescribed by the foregoing provisions of this Chapter shall be modified as follows,
namely:-
(a) such further charge shall not be rend out in Court
and the accused shall not be asked to ·plead
thereto. nor shall the same be referred to by the
prosecution. or any evidence adduced thereon
unless and until.
(i) he has been convicted of the subsequent
offence, or
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PRATAP v. U.P. STATB (A/agiriswami, J.)
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(b}
(ii) in the case of a trial by a jury, the jury have
delivered their verdict on the charge of the
subsequent offence;
in the case of a trial (held by the Judge himself),
the Court may, in its discretion, proceed or refrain from proceeding with the trial of the accused on the charge of the previous conviction."
The question, therefore, arises whether in this case the appellant was, by reason of a previous conviction, sentenced to enhanced
punishment or to a punishment of a different kind. There is no
doubt that the sentence of death is an enhanced punishment over
the previous sentence of life imprisonment. But the Section speaks
of previous conviction which makes him liable to enhanced punishment. There has. of course. been a previous conviction in the
case of the appellant.
Section 303 of the Indian Penal Code
speaks of a person, being under sentence of imprisonment for life,
being liable to be punished with death if he commits murder. Tue
distinction between the conviction of a person in section 310 Cr.
P.C. and a person being under a sentence of imprisonment in
section 303 I.P.C. should be noted. A conviction by a Coun may
be followed either by the sentenee being remitted under the provisions of the Code or the sentence mav have been served out. In
such cases though the person concerned could still be spoken of
as having been convicted, he cannot be said to be under a sentence.
The provisions of section 310 of the Code of Criminal Proce<lnre
can be usefully contrasted.with the provisions of section 75 of the
Indian Penal Code, which reads as fol!ows :
·
·
"75. Whoever, having been convicted.-
( a) by a court in India, of an offence punishable
under Chapter XII or Chapter XVII of this Code with
imprisonment of either description for a term of three
years or upwards .............................. .
shall be guilty of any offence punishable under either of
thOSe Chapters with like imprisonment for the like term,
shall be subject for every such subsequent offence to
(imprisonment for life), or to imprisonment of either
description for a term which may extend to ten years,"
Under this section the mere fact that a person has been convicted
under Chapter XII or Chapter XVII of the Code is enough to
subject him to enhanced punishment in case of a subsequent
offence committed by him even though the sentence following his
H
earlier conviction might either have been remitted or he may have
been released after serving his sentence. Under section 310 of
the Code of Criminal Procedure also it is enough that the person
concerned has been earlier convicted. It is not necessary that the
144
SUPREME COURT REPORTS
[1973] 3 s.c.R.
sentence should be in force.
But under section 303 I.P.C. the
person's sentence must be in force if the person is to be dealt with
for a subsequent offence of murder under that section. If the previous sentence of life imprisonment had been remitted or had been
served out when the subsequent murder was committed, section
303 will not apply. Bearing in mind that section 75 l.P.C. and
section 310 of the Code of Criminal Procedure deal with persons
with previous conviction-the previous sentence need not necessarily be in force when the subsequent offence is committed-it
would be clear that the latter section is intended to be applicabfo
only to cases to which section 75 of the Indian Penal Code applies.
Moreover, section 75 1.P.C. will be applicable as often as the
necessity arises and in respect of any one of the offences subsequently, whereas section 303 of the Indian Penal Code will be
applicable only in one circumstance, that is, of the accused committing murder while he is under sentence of imprisonment and
not any other offence either.
It is, however, argued that under the provisions of section 310,
clause (b) there is a discretion given to the Trial Judge either to
proceed or refrain from proceeding with the trial of accused on a
charge of previous conviction and if that section should be held
not to be applicable to this case it would mean that this valuable
safeguard from the point of view of the accused which is available
in the case of less serious offences will not be available in the case
of the more serious offences of murder. But it appears to us that
that is the very reason why section 310 of the Code of Criminal
Procedure would not be applicable to a case which attracts section
303 of the I.P.C. It is difficult to imagine any circumstances under
which a Judge trying a person for murder committed by him when
he was under sentence of life imprisonment would feel it justifiable
or expedient not to frame a charge on the basis of his previous
conviction. The offence of murder is punishable with life imprisonment or death under section 302 I.P.C. but this alternative is
not available where a person beinl( under the sentence of life imprisonment commits murder and ooction 303 becomes apolicable.
The Lelrislature has. therefore, deliberately restricted t11e discretion
of the Court in imposing the punishment for murder committed
bv a oerson who is under a sentence of life imorisonment. This
anrument is, therefore. without anv force.
Furthermore, section
303 is like a proviso to section 302, and a court trying a person
for murder could apolv the orovisions of section 303 if it is
brousmt to its notice that the oerson beine tried is under a sentence
of life imorisonment. The ounishment for an offence under section
302 is either death or life imorisonment and section 303 removes
the alternative ounishment and makes a sentence of death comoulsorv. We see no need. therefore. to frame a further charl!e undtT
sec:tion 303 according to the provisions of section 310 Cr. P.C.
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PliTAP v. u.P. STATE (Dua, J,)
145
A
We, therefore, hold that there was no illegality committed by the
High Court in sentencing the appellant to death without framing
a charge as required under 310 of the Code of Criminal Procedure
or without sending back the case for fresh trial by the Sessions
Judge after framing a charge under section 303 I.P.C.
B
Whether the High COUlt could impose a sentence of death on
-
the appellant when there was no appeal by the State, merely on
the basis of a revision petition filed by a private party, does not
give rise to any serious difficulty. Under section 43 9 of the Code
of Criminal Procedure the High Coun has got ample powers and
as a notice has also been issued to the appellant to show cause why
his sentence should not be enhanced, there is no illegality in the
C
sentence of death imposed on the appellant. The power under
section 439 Cr. P.C. is one which the High Coun can exercise
suo nwtu and all that a person filing a revision petition under that
section does is to draw the court's attention to an illegal, improper
or incorrect finding, sentence or order of a subordinate court. The
fact that in this case the brother of the deceased filed revision petiD
tion and the Government did not do so does not affect the powers
of the High Court under that section. In' addition, we may also
refer to section 423 (lA) of the Cr. P.C.
In the result the appeal is dismissed.
Du A, J, I have read the judgment prepared by any learned
E
brother Alagiriswami J. with respect I am unable to persuade
myself to agree.
Material facts have been stated by my learned brother and it
is unnecessary to restate them.
As in my view the appellant's
conviction under s. 302, I.P.C. ~ fully justified and the only
question on which I am constrained to take a different view is
F
the imposition of the sentence of death by the High Court under
s. 303, LP .C. Oil revision by the private complainant, I. would
only refer to the circumstances relevant and necessary for that
limited purpose. M. KaiSl'I' Beg, Magistrate, · First Class and
A.D.M. (J), Hamirpur had on February 20, 1965 committed the
appellant for being tried by the Court of Sessions for an oftence
G
punishable under s. 302, I.P.C. Pursuant to the order of commitment the Magistrate framed the charge which was read over
and explained to the appellant. That charge reads :
Charge
I, M. Kaiser Beg, Magistrate I Class and A.D.M.
H
(J) Hami!Jlur, hereby charge you Pratap as follows :
That you armed with a pharsa, on the 14th day of
October, 1964 at about noon, in village Pawai, P .S.
l l-L631SuJi.Cl/73
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SUPREME COURT REPORTS
(1973] 3 S.C.ll.
Jaira in the field, adjoining Seth Wala field, 'did commit
murder of Ratiram by intentionally and knowingly
killing him with pharsa.
And you thereby committed an offence punishable
under section 302, l.P.C. and within the cognizance of
the Co11rt of Sessions.
And I hereby direct that you be tried by the said
court on the said charge.
Sd./- M. Kaiser Beg
A.D.M. (J) Haniirpur"
This charge was read out and explained to the appellant by the
Temporary Sessions Judge, who tried him, at the commencement
of his trial (Trial No. 35 of 1965) on July 21, 1965. On that
very day the counsel for the prosecution (the panel lawyer) filed
an application in the trial court. In that application it was stated
that the accused was a previous convict under s. 302, l.P.C. and
that having been released on probation in the year 1969 his pIQbationary period was up to 1973. It was accordingly suggested
that he should be charged under s. 303, l.P.C. It was prayed
that the Judicial Assistant Collectorate, Hamirpur be summoned
along with the "File of Release Orders under the U.P. Release
on Probation Rules containing G.0. No. 27l(i) P/XXIl-1212/
1959 dated April 4, 1959 relating to the release
of Pratap,
accused".
On this application the court made the order "summon".
On the following day, that is, July 22,
1965, when
Pooran, P.W. 1, who had started making his statement on July
21, 1965, was to. be cross-exaniined, the prosecuting counsel made
another application seeking to place on the record", (1) Previous conviction certificate of the accused under s. 302, l.P .C. in
the year 1953 by the learned Sessions Judge,
Haniirpur; (2)
copy of the' letter from the U.P. Government to the D)d. Hamirpur, regarding the release of this accused on probation of the
year 1959. In that release order his probation period is· up to
the year 1973", on which the trial court recorded the following
order:
·
"The papers are not relevant unless any document
is produced to show that the present murder was committed when the accused was on probation or was serving out the sentence. Hence rejected,"
Evidence, as just stated, was recorded on July 21 and 22, 1965
and at the conclusion of the prosecution ~dence on July 22,
1965 tlie appellant was examined. Fust the appellant stated that
he would produce witnesses in defence but later he declined to
do so. 'l'lie arguments were heard Oil July 24, 1965. The trial
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PRATAP v. U.P. STATE _(Dua, 1.)
147
court, as per judgment dated July 26,
1965, convicted the
appellant under s. 302, I.P .C. and sentenced him to imprisonment for life. It is noteworthy that the appellant was tried on
the charge as framed which only mentioned the offence punishable under s. 302, I.P .C. That charge contained no reference
to s. 303, I.P.C. nor were the ingredients of the offence contemplated by and punishable under s. 303 otherwise stated in the
charge so as to give to the appellant precise notice' of the matter
he was charged with as contemplated by s. 221, Cr. P.C. Even
in the two applications full facts of the previous case had not
been stated.
The appellant's memorandum of appeal from his conviction
was forwarded by the jail authorities to the High Court in which
the only ground taken was that the police had falsely implicated
him and that the witnesses had given evidence against him on
account of enmity. Apparently he had no legal advice and the
grounds of appeal clearly seem to have been stated by him without legal assistance.
Two criminal revisions (Nos. 1886 and 1887 of 1965) w~re
also pre8ented in the High Court on behalf of Pooran, brother
of deceased Rati Ram, against the orders of the trial court refusing to summon the documents and refusing to frame a charge
under s. 303, I.P.C. against the appellant.
It was prayed that
the appellant be convicted and sentenced under the aforesaid
section.
On December 1, 1969 the High Court examined the
appellant who denied having been tried and convicted of the
murder of Smt. Phulrani in the year 1953. The High Court
apparently did not feel satisfied with his denial.
By means of
an order of the same date i.e., December l, 1969, the High Court
sent to the Sessions Judge, Harnirpur the papers of the present
case as also of the appeal in the murder case of 1953 (Cr!. Trial
No. 25/53) for determining if the appellant Pratap was the same
person who had been convicted in the previous case. The High
Court observed in that order :
" ... , The Sessions Judge may examine such witnesses and documentary evidence
as
he
considers
necessary and as the parties produce before him. We
have on our record the original jail, appeal filed by
Pratap son of Tulaiyan against his
conviction and
se11tence under section 302, I.P .C. in Sessions Trial
No. 25. of 1953 which bears a very good thumb impression of Pratap son of Tulaiyan. This jail appeal in
original will be sealed and forwarded to the Sessions
Judge. We have also on the record of the present case
a jail appeal filed by Pratap son of Tula Ram which
148
SUPREME COURT REPORTS
(1973] 3 S.C.R.
bears a good thumb impression. We have also a letter
sent by Pratap son of Tula Ram from jail to this Court
which also bears a good thumb impression. These two
documents will be flagged and sealed along with the
jail appeal of Pratap son of Tulaiyan and sent to the
Sessions Judge.
We may mention that Pratap son of
Tula Ram has signed his statement made before the
committing court and the
Sessions
Judge. If the
Sessions Judge considers necessary, he may find out
whether any such signatures of Pratap son of Tulaiyan
are available in the record of Sessions Trial No. 25 of
1953 and have them compared. It will be open to the
Sessions Judge to obtain thumb impressions or signatures of the accused in the two cases either from the
record of the committing courts or of the Sessions
court or from the jail records for purposes of comparison. After making the necessary enquiries 'the Sessions
Judge will submit his finding and report within
two
months from the receipt of this order."
The portion reproduced by me is the material part of that order.
No reference was made by the High Court to the orders of the
trial court on the applications made by the panel lawyer on
which the impugned orders had been made by the First Temporary Sessions Judge and no comments on these orders are discoverable in the order of the High Court. The jail petition of
the appellant in the previous appeal (Cr!. Appeal No. 1383 of
1953) decided by the High Court on January 28, 1954 and the
appellant's petition and letter were directed to be forwarded to the
Sessions Judge. The enquiry was not directed to be made by
the trial court (the court of the First Temporary Sessions Judge)
but by the Sessions Judge who submitted his report on May S,
1970. The delay in submitting this report as stated by the
Sessions Judge in his covering letter dated May 5, 1970 was due
to the fact that the record, though received in the court of the
Sessions Judge on December 20, 1969 was, under some mistaken
impression, sent to the court of the First Temporary Civil and
Sessions Judge, Hamirpur where it remained up to April 11,
1970. The report of the Sessions Judge reads :
•
, "'Sir,
In compliance with the order of the Hon 'ble High
Court dated 1-12-1969 I have the honour to submit
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my report as follows:-
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An enquiry was held by me in compliance with the order
dated 1-12-1969.
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PRATAP v. U,P. STATE (Dua, J.)
149
Complainant in S. T. No. 25 of 1953 Moti Lal and complainant in s. T. No. 35 of 1965 Pooran and other witnesses
were summoned.
Pratap convict was also summoned in this
enquiry.
S. T. No. 25 of 1953 was in respect of the murder of Smt.
Phoolarani Moti Lal alias Mutaiyan son of Pooran is the
husband of Smt. Phoola Rani deceased. Moti Lal alias Mutiayan stated on oath that Smt. Phoolarani was murdered about 17
years back and Pratap was prosecuted for her murder. Pratap
present in this Court is the same person (Pratap) who was prosecuted for the murder of Smt. Phoolarani and was sentenced to
death in that case. The sentence of death passed in that case on
Pratap was commuted to life imprisonment and after some years
Pratap was released.
Moti Lal also stated that the father of
Pratap is alive. His name is Tula Ram and he is called Tulaiyan
also. Moti Lal has not been cross-examined by Pratap.
S. T. No. 35 was in respect of the murder of Rati Ram.
Pooran brother of Rati Ram has been exaniined.
Pooran
stated that Pratap present in Court was prosecuted for the murder
of Rati Ram.
The father of Pratap Tula Ram is also called
Tulaiyan. There is no other person in village Pathkhuri with the
name of Tula Ram or Tulaiyan. He went on to state that there
is no other person with the name of Pratap son of Tula Ram or
Pratap son of Tulaiyan in village Pathkhuri except Pratap who
is present in the Court today. Pratap did not cross-examine this
witness also.
The Statement of Pratap son of Tula Ram has been recorded.
He has admitted that he is the same person who was prosecuted
for the murder of Smt. Phoolarani in the year 1953 and who was
convicted and sentenced to death in that case. Pratap further
admitted that he is the person who was prosecuted for the murder
of Ra ti Ram in the year 1965.
Pratap also admitted that he is the only person with the name
of Pratap son of Tula Ram or Pratap son of Tulaiyan in village
Pathkhuri. He admitted that his father is called Tula Ram and
Tulaiyan both.
In view of the above evidence it is clear that Pratap son of
Tulaiyan, who was prosecuted for the murder of Smt. Phoolarani
and was convicted under section 302, I.P .C. and sentenced to
death in S. T. No. 25 of 1953 and Pratap Son of Tula Ram.who
was prosecuted for the murder of Rati Ram and was convicted
and sentenced to Life Imprisonment under Section 302, I.P.C.
is one and the same person.
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SUPREME COURT REPORTS
[1973] 3 S.C.R.
The evidence recorded in this enquiry consisting of the statement of Moti Lal son of Pooran, the statement of Pooran son of
Tatiyan and the statement of Pratap son of Tula Ram is enclosed
herewith."
The original record shows that the appellant was not represented in those proceedings by any counsel and it was apparently
for this reason that there was no cross-examination of the witnesses.
When the appellant was questioned his answers to the
two questions relatipg to the two murder ca~es was "yes, I am
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the same man". The third question was as to what the appellant
had to say about the evidence of the two witnesses. To this he
replied "yes, this g true". To the fourth question asking him if c
he wanted to say anything else he replied that he had denied in
the High Court that he had been prosecuted or convicted for the
murder of Jagrani. The Sessions Judge had not cared to have
the thumb impression or the handwriting of the appellant examined by an expert as suggested by the High Court. The thumb
impressions on the records of the two cases were ignored by the
Sessions Judge though the relevant material had been specifically
forwarded to him by the High Court with a clear suggestion to
get them compared and also to see if the two records had on
them the writings of their respective accused persons so as to have
them also compared.