TMI Blog1975 (10) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... lants limited to the question of application of Section 303 in the case of Rohitsingh and sentences in case of all . Counsel for the appellants urged 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 Bharatsingh'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 restricted 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. 4. As 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 Arun Bhargava was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Aran Bhargava which was the subject-matter of appeal before the High Court. 7. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which case there is no question of imposing any sentence; or it may maintain 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 sentence is set aside or reduced, the court dealing with the proceeding relating to the subsequent offence of murder will have to take that circumstance into account. The date of murder, undoubtedly, has relevance but that is in the limited sense that the murder has to succeed, not 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 be found guilty of murd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. 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. It is true that Section 75 uses the words Who ever having been convicted but what is important is that for justifying the enhanced punishment, the court convicting the accused for the subsequent offence has to find that the previous conviction is in operation on the date of the subsequent conviction. If the previous conviction is in the meanwhile set aside, the act used would not be liable to enhanced punishment because on the date of the subsequent judgment it cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the ' meaning and ambit of this word would be limited to a sentence which has 'become final, absolute and indefeasible so far as judicial process is, concerned. In a 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? 20. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and annulled by having recourse to judicial remedies available at law, would, 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 section, it is feared, may become very much of a gamble. Courts must endeavour to avoid this reproach (sic) (approach). 25. The point can be highlighted by taking an extreme illustration. Accordingly I would modify the facts of the instant case, to make it such an illustration. 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 is convicted by the trial court for this murder but it is found that there are 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may flow from a wider construction of the expression sentence for the purpose of Section 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 committing Aran's murder, under a subsisting sentence of life imprisonment for the purpose of Section 303, and consequently, for that reason, and that reason alone, on his conviction for Aran'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 threshold of their approach, taken it for granted that the expression sentence in the aforesaid phrase in Section 303, is wide enough to embrace not only a sentence which is final and conclusive but also one which is not so. 30. One wrong assumption led to another infirm deduction, viz. that an order of acquittal passed in appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
