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PETITIONER: PRATAP

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT22/12/1972

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. DUA, I.D. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR  786            1973 SCR  (3) 136  1973 SCC  (3) 690

ACT: Criminal trial-Trial for murder under s. 302  I.P.C.-Accused whether undergoing sentence of life imprisonment at time  of commission  of offence so as to attract death penalty  under S.  303  I.P.C.-Whether trial judge must take  evidence  for this  purpose  under s. 3 10 Cr.  P. C.  Propriety  of  High Court  converting  conviction  to one under  s.  303  I.P.C. exercising  powers  under  s.439  I.P.C.  on  the  basis  of revision petition filed by private party.

HEADNOTE: The  appellant was tried for an offence under  s.302  I.P.C. The  prosecution  sought to put on record two  documents  to show  that the appellant was punishable with death under  s. 303  1.  P.C. in view of the fact that he had  earlier  been convicted  of  another  murder and was  in  that  connection undergoing  a  sentence of life imprisonment though  he  had been  released on probation.  The trial judge held that  the documents  were  not  relevant  because  in  his  view   the conditions   which  would  make  them  relevant   were   not 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 Court by the brother of the  deceased against the orders of the Sessions Judge refusing to  summon the aforesaid documents and refusing to frame a charge under s.  303  I.P.C.  The appellant sent an  appeal  against  his conviction to the High Court of Allahabad in the form of  a’ letter.   The  High Court sent the matter  to  the  Sessions Judge   for  determination  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 appellant was the person who had been convicted of the earlier murder and  was undergoing imprisonment of life in that connection.  On this report the High Court convicted the appellant under s.  303 I.P.C. and sentenced him to death.  It however granted him a certificate  to  appeal to this Court.  The  questions  that fell for consideration were : (1) whether the appellant  was liable to be sentenced under s. 303 I.P.C. for the  enhanced punishment  of death; (ii) whether it was necessary in  the

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present case to follow the procedure laid down in s. 310  of the  Criminal 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  Vaidialingam  JJ.   (Dua   J. dissenting) (i)It  was  established  that the  accused  was  under  ’a sentence  of  imprisonment for life when  he  committed  the present  murder.   He  would  therefore  be  liable  to   be convicted under Section 303 of the Indian Penal Code.  [142- D] (ii)Under  s.  3 10 of the Code of  Criminal  Procedure  as under  s. 75 of the Indian Penal Code, it is enough  if  the person  concerned  has been earlier convicted.   It  is  not necessary that the sentence should be 137 in  force.   But under s. 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.  Bearing in mind  that section 75 I.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  applicable only  to cases to which section 75 of the Indian Penal  Code applies. [144A-B] Section 303 is like a proviso to a. 302 and a court trying a person for murder could apply the provisions of s. 303 if it is  brought  to its notice that the person  being  tried  is under  a sentence of life imprisonment.  The punishment  for an offence under r. 302 is either death or life imprisonment and  s. 303 removes the alternative punishment and  makes  a sentence of death compulsory.  There is no need therefore to for ’ me a further charge under section 303 according to the provisions of section 3 1 0 Cr.  P. C. It must therefore  be held  that  there was no illegality committed  by  the  High Court in sentencing the appellant to death without farming a charge as required under section 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. [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 in 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.  The fact that in this case the brother of  the  deceased  filed  the  revision  petitions  and  the Government  did not do so did not affect the powers  of  the High  Court under that Section.  In addition  reference  may also be made to s.  423 (IA) of the Cr., P.C. [145B-D] Per  Dua  J.-In  this case the High Court was  not  at all 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 I.P.C. The appellant could by  no

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means be considered to have notice of a charge under s.  303 1. P.C. or of the facts which form the essential ingredients of the offence, when there was absolutely no such indication in  the charge actually framed against him and on  which  he was tried. [155E-G] The  High Court did not also scrutinise the  proceedings  of the  Sessions  Judge for ascertaining if the  appellant  had been  afforded adequate legal assistance and also as to  why the  thumb impressions and the handwritings, if any  of  the accused  in the two cases were not got compared.   The  High Court should have done so in order to satisfy itself if  the appellant   had   been  afforded  adequate   and   effective opportunity  to  defend himself before  the  Sessions  Judge because  those proceedings were just as serious as  a  trial for an offence prescribing death as the only penalty. 1156C- D] Bashira  v. State of U.P. A.I.R. 1968, S.C.  1313,  referred to. 138 The  High 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 interference 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]

JUDGMENT: 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 appellant. O.   P. Rana, for the respondent. The Judgment of A. Alagiriswami and C. A.. Vaidialingam, JJ. was  delivered  by Alagiriswami, J., 1. 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; to 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 the  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. 1, had gone to their fields and Pooran and  his servant  Ganga,  P.W. 4, were ploughing  their  fields.   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.  The appellant refused 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 spot. also saw this occurrence in addition to P.W.  I

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and  P.W.  4. P.W. I reported the occurrence at  the  police station and the Station Officer, P.W. 5, 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 postmortem examination.  He also took the blood stained earth.  After recording the statements of PWs 1 to 4 and recording the statement of the accused on 25-10-64 he                             139 submitted  the charge sheet.  The accused was  committed  to the   Court  of Sessions in 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  on  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 1, 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 except this suggestion there  was  no  other evidence to establish the enmity.  This suggestion, 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 to differ  from them in their conclusion that the appellant is guilty of the murder of Rati Ram. It was argued before 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  and found him guilty under Section 302 I.P.C.  On  the around,  how,ever I , that there was no premediation and  it was a sudden fight and the murder was committed in the  heat of  passion upon a sudden quarrel, and that the accused  had given  only  , a single blow of the Pharsa, he  awarded  the lesser penalty of imprisonment for life. Before the Sessions Judge, a petition was presented on 21st- July    1965  drawing  his attention to  the  fact  that  the appellant was under a previous sentence of imprisonment  for life,  on  conviction under s. 302 I.P.C. and  that  he  was released  on  probation  in  the  year  1959  and  that  his probationary  period  was upto 1973 and 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 a  one  word  order saying ’Summon.  On July 22,  1  965  on behalf of the prosecution another application was filed  in these terms "Most  respectfully  it is submitted  that  the  prosecution

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wants to bring into the records the following two papers. It  is,  therefore, prayed to your honour  kindly  to  allow papers to be filed with the records. Papers to be filed 1.   Previous conviction certificate of the accused U/s. 302 I.P.C.  in  the  year 1953 by the  learned  Sessions  Judge, Hamirpur. 2.   copy  of  the letter from the U.P. Govt.  to  the  D.M. Hamirrpur 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 the  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 n ot 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.O., which had been asked  to  be summoned  in  the earlier applications, which  established that one Pratap son of Tulaiyan was sentenced 141 to  death  for the murder of Srimati Phulrani and  this  was commuted to one of life imprisonment.  This sentence was  in force  on  the  date on which the  appellant  committed  the murder of Rati Rain.  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  murder. 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.   Phulrarni were one and the same.  The Sessions Judge accordingly  held an  enquiry  in  which  he  examined  the  husband  of  Smt. Phulrani,  as also Pooran, who had been examined 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 Smt.  Phulrani. The appellant admitted before the Sessions Judge that he was the  same  person  who  was prosecuted  for  the  murder  of Phulrani  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 Phulrani in  Sessions Trial No. 25 of 1953 and the present  appellant were one and the same person.  The High Court accepted  this finding.

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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 I.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 by  s.31O  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  had  been acquitted  by the lower Court.  On the above view  the  High Court  convicted  the  appellant under  s.  303  I.P.C.  and sentenced 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 conviction of the accused under s.  303 I.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 the opinion that it was not necessary in this case to  follow  the procedure prescribed under s.  310.   It  is established  that  the  accused  was  under  a  sentence  of imprisonment for life 142 when  lie 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 sentence of imprisonment to be released-on   condition   that  he  be  placed   under   the supervision  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 Section 2 shall be in force until the date on which  the  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,  which,ever  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 part 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 I.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  charted  that  he  is  by  reason  of  a   previous

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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 read 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 143 (ii)in  the  case  of  a trial by a  jury,  the  jury  have delivered  their  verdict on the charge  of  the  subsequent offence; (b)  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.   The 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.  should7be  noted.   A conviction by a Court may be followed either by the sentence being  remitted  under  the provisions of the  Code  or  the sentence may 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  Procedure can be usefully contrasted with the Provisions of section 75 of the Indian Penal code, which reads as follows : "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 earlier conviction might either  have been remitted or be 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 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

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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 I.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  applicable only  to cases to which section 75 of the Indian Penal  Code applies. .Moreover, section 75 I.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 being under  the sentence of life imPrisonment commits murder and section 303 becomes   applicable.   The  Legislature   has,   therefore, deliberately  restricted  the  discretion of  the  Court  in imposing the punishment for murder committed by a Person who is under a sentence of life imprisonment.  This argument is, therefore,  without any force.  Furthermore, section 303  is like  a proviso to section 302, and a court trying a  person for  murder could apply the provisions of section 303 if  it is  brought  to its notice that the person  being  tried  is under  a sentence of life imprisonment.  The punishment  for an  offence  under  section  302 is  either  death  or  life imprisonment   and  section  303  removes  the   alternative punishment and makes a sentence of death compulsory.  We see no  need therefore. to frame a further charge under  section 303 according to the provisions of section 310 Cr.  P.C. 145 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 3 1 0 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. Whether the High Court 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 439 of the Code  of  Criminal  Procedure  the   High Court 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

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section  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. The     fact  that in  this  case the brother of the deceased  filed  revision, petition  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 (IA) of the  Cr. P.C. In the result the appeal is dismissed. DUA,  J,  I have read the judgment prepared by  any  learned 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.  is  fully justified and the only   question on which I am  constrained to take a different view is   the imposition of the sentence of death by the High Court under   s.    303,   I.P.C.    on revision by the private complainant, I would only  refer  to the  circumstances relevant and necessary for  that  limited purpose. M. Kaiser Beg, Magistrate, First Class and    A.D.M. (i)   Hamirpur  had  on  February  20,  1965  committed  the appellant  for being tried by the Court of Sessions  for  an offence   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. (J)  Hamirpurl,  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. II-L63ISup.Cl/73 146 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, I.P.C. and within the cognizance of the  Court 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) Hamirpue’ 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, I.P.C. and that having  been released  on  probation in the year  1969  his  probationary period was up to 1973.  It was accordingly suggested that he should  be charged under S. 303, I.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.O.  No.  271  (i) P/XXII-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-examined, the prosecuting counsel made another application seeking  to

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place on the record", (1) Previous conviction certificate of the  accused  under S. 302, I.P.C. in the year 1953  by  the learned  Sessions  Judge, Hamirpur; (2) copy of  the  letter from  the U.P. Government to the D.M.  Harnirpur,  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 evidence  on July  22,  1965  the  appellant  was  examined.   First  the appellant stated that he would produce witnesses in  defence but later he declined to do so.  The arguments were heard on July 24, 1965.  The trial 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)  were also  presented  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 1, 1969, the High Court  sent  to  the Sessions  Judge, Hamirpur the papers of the present case  as also  of the appeal in the murder case of 1953 (Crl.   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 sentence  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

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148 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  (Crl. 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 5, 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 my report as  follows :- An enquiry was held by me in compliance with th order  dated 1-12-1969. 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 examined.  Pooran stated that  Pratap present in Court was prosecuted for the  murder

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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 Tulaivan  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 Rati 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, 1,P.C. is one and the same person. 150 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  repre- sented  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 relating to  the two  murder cases was "yes, I am 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  is  true".  To the fourth question asking  him  if  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. Such  comparison  by an expert would certainly  have  thrown more  useful light.  Apparently the Sessions Judge  did  not consider  it  proper even to appoint an  amicus  curiae  for assisting  the appellant.  The enquiry which was being  held by  the  Sessions Judge involved  compulsory  imposition  of death  sentence.   The proceedings should,  therefore,  have been  treated with the same seriousness as is required in  a trial involving death sentence and in all fairness an amicus curiae  should have been appointed to assist  the  appellant who  was  apparently a pauper.  Neither the  report  of  the Sessions  Judge nor the record discloses the presence  of  a counsel  for rendering assistance to the appellant  to  meet the more serious charge under s. 303 ’, I.P.C. On receipt of the report the High Court heard and disposed of, by a common judgment,  the  appellant’s  appeal  and  the  two  criminal revisions.   Even  the  High Court does  not  seem  to  have

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considered  the  advisability  of examining  an  expert  for getting compared the two thumb impressions. The High Court in the final judgment dated August 11,  1970, impugned  herein, upheld the appellant’s conviction for  the murder  of  Rati  Ram holding that the  evidence  on  record establishes "beyond reasonable doubt that Pratap son of Tula Ram caused the death of Rati Ram by giving him pharasa  blow on  the  neck".   So holding the High  Court  dismissed  the appellant’s appeal. 151 Thereafter,  the  High Court dealt with  the  two  revisions preferred   by  the  complainant.   After   observing   that according  to  the  prosecution  and  the  complainant   the appellant Pratap had been previously convicted under s. 302, I.P.C.  in  1953 and at the time of the  commission  of  the present  offence in 1964 he was under a life  sentence,  the High  Court  reproduced the two applications  filed  by  the panel lawyer and the orders made thereon, and observed : "In  our opinion, the Sessions Judge was not justified  in disposing  of these applications in this manner.  It  was  a very  serious  matter whether the charge  should  have  been framed  under  section 302 or section 303  I.P.C.  Once  the matter  was  brought to his notice, it was the duty  of  the Sessions  Judge  to get the necessary material and  then  to decide  whether the prosecution was or was not justified  in asking for the charge to be framed under section 303  I.P.C. The Sessions Judge has failed to perform his duty." The High Court , as its final judgment shows, had  permitted the Deputy Government Advocate to produce before it material for  showing  the appellant’s previous  conviction  and  the sentence  of death imposed on him, which was later  commuted by the Governor, as also his release in accordance with Rule 8  of  the  U.P.  Prisoners’  Release  on  Probation  Rules. However, as the High Court felt that "there was some  slight difference  in the name of the father of Pratap in  the  two cases" the appellant was sent for and he appeared before the High  Court  on December 1, 1969.  On being  questioned  the appellant  denied that he had been previously prosecuted  or convicted for the murder of Smt.  Phularani, adding that his father  was not known as Tulaiyan.  The High Court  recorded the  appellant’s statement in Hindi.  The impugned  judgment further  shows  that the High Court had  compared  the  left thumb  impression  of  Pratap on the  memorandum  of  appeal presented in the year. 1953 and that of the appellant in the appeal  in the present case, and observed that  those  thumb impressions  appear  to be identical.  This  comparison  had apparently been made before sending the necessary record  to the Sessions Judge for holding the enquiry though it was not so stated in the order dated December 1, 1969, according  to which the Sessions Judge was required to have them compared. This  is  what  the  High Court has  said  in  the  impugned judgment in this connection : "It  is thus fully  established that Pratap son of  Tulaivan               was under the sentence of life imprisonment on               the  date  on  which Pratap son  of  Tula  Ram               committed  the murder of Rati Ram.   As  there               was some 15 2 slight difference in the name of the father of Pratap in the two  cases, we sent for Pratap son of Tula Ram who has  been convicted  for  the  murder of Rati Ram.   He  was  produced before  us on December 1, 1969.  On being questioned by  us, he  denied  that  he  had  been  previously  prosecuted   or convicted for the murder of Shrimati Phularani.  He  further stated  that  his  father was not  known  as  Tulaiyan.   We

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thereupon  compared the left thumb impression of Pratap  son of  Tulaiyan on the memorandum of appeal which he had  filed in  the 1953 case with the left thumb impression  of  Pratap son  of  Tula Ram on the memorandum of appeal filed  in  the present case.  Both the thumb impressions are very clear and distinct.   They appeared to be identical.   We  accordingly sent  these two documents together with the record  of  this case  to  the  Sessions Judge and directed him  to  make  an inquiry  whether  Pratap son of Tula Ram convicted  for  the murder  of  Rati  Ram is the same person as  Pratap  son  of Tulaiyan convicted for the murder of Srimati Phularani.  The Sessions  Judge  examined two witnesses in the  presence  of Pratap  son of Tula Ram.  The first witness examined by  him was  Moti Lal alias Mutian husband of Srimati Phularani  who had  been  murdered  in the earlier case.   He  stated  that Pratap  present  in  court  was  the  same  person  who  was prosecuted  and sentence to death for the murder of  Srimati Phularani.   He further stated that the sentence  of  Pratap was  commuted to life imprisonment and Pratap  was  released after  some  years.  He further stated that  the  father  of Pratap  was alive and that his name was Tula Ram but he  was also  called Tulaiyan.  The second witness examined  by  the Sessions  Judge  was Pooran, brother of Rati  Ram,  who  had earlier  been  examined as P.W. 1 at the trial.   He  stated that  Pratap present in court was prosecuted for the  murder of  Rati Ram.  He also stated that the father of  Pratap  is Tula Ram, and he is also called Tulaiyan and that there  was no other person in village Pathkhuri of the name of Tula Ram or Tulaiyan.  He further stated that, apart from the accused Pratap,  there  was  no  other Pratap son  of  Tula  Ram  or Tulaiyan  in the village.  The Sessions Judge then  examined Pratap  accused.  Before the Sessions Judge Pratap  admitted that  he  was  the same person who was  prosecuted  for  the murder  of  Srimati Phularani in the year 1953 and  who  was convicted  and sentenced to death in that case.  He  further admitted that he was prosecuted for the murder of Rati 153 Ram in the year 1965.  He also admitted that his father  was called Tula Ram as well as Tulaiyan and that he was the only person of the name of Pratap son of Tula Ram or Tulaiyan  in village  Pathkhuri.   On  the basis of  this  material,  the Sessions  Judge  has recorded a finding that Pratap  son  of Tulaiyan,  who  was  convicted  of  the  murder  of  Srimati Phulrani in S. T. No. 25 of 1953 and Pratap son of Tula  Ram who  was convicted and sentenced for the murder of Rati  Ram in S. T. 36 of 1965 is one and the same person." In  the High Court it seems that the counsel  appearing  for the appellant did not challenge the finding of the  Sessions Judge.   Apparently when the two witnesses examined  by  the Sessions Judge had not been cross-examined by the  appellant and  that evidence was accepted by the Sessions Judge  there could not possible be any challenge by the counsel.  It was, however, contended that the High Court could not on revision convict the appellant under S. 303, I.P.C. and that the case should  be  remanded  to  the trial  court  for  framing  an additional charge under s. 303, I.P.C. and for proceeding in accordance  with  the provisions of s. 310, Cr.   P.C.  This contention did not find favour with the High Court,  Section 303,  I.P.C.  in the opinion of that court was only  in  the nature  of a proviso to S. 302, and. therefore, it was  open to it on revision to enhance the sentence of imprisonment to that  of death even though no charge under s. 303  had  been framed  by  the  trial court.   Confirming  the  appellant’s conviction  for the murder of Rati Ram, which was  committed when  he was under a sentence of imprisonment for  life  for

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committing the murder of Phulrani, the High Court  sentenced him  to death.  Two questions arise : (1) if the High  Court was  right in enhancing the sentence and (2) if there is  no cogent ground for interference by this Court in the  present appeal. Now , when the prosecuting counsel applied on July 21 , 1965 for summoning the witness concerned and the File of  Release Orders  the trial court allowed the prayer and directed  the same to be summoned.  The counsel apparently did not ask for the  postponement  of  the trial and  of  the  recording  of evidence  and indeed the statement of P.W. I actually  began on  that day.  The following day the remaining evidence  was recorded.  Apparently when on July 22, 1965 the  prosecuting counsel  applied  for bringing on the record  the  documents mentioned in that application the court cannot be considered to have gone seriously wrong in exercising its discretion in declining  those  documents  to be brought  on  the  record, because  the  witness  summoned  for  proving  the  relevant document  was  not in attendance.  The letter  of  the  U.P. Government could not prove itself.  Nothing has been  stated before us 154 as  to  whether  the witness and the  file  directed  to  be summoned  or  July  21,  1965  had  actually  been  summoned urgently  and whether the prosecution was in a  position  to adduce the necessary evidence, for making out a prima  facie case  for  modifying the charge, so as; to include  S.  303, I.P.C.  or the essential ingredients of the offence  defined therein.  In my opinion, therefore, the trial court was  not unjustified  in  exercising its judicial discretion  on  the facts and circumstances of this case in declining the prayer of  the  prosecution.  The fact therefore remains  that  the actual charge framed on which the appellant was to be  tried made no reference to the date of the previous conviction for murder  or  to the fact that he was under  the  sentence  of imprisonment for life when the present murder was committed. Under  S. 221(2), (3) and (4) Cr.  P.C. these  facts  should have been appropriately stated in the charge to give to  the appellant  proper  notice  that he was to be  tried  for  an offence defined in and punishable under s. 303, I.P.C.,  for which offence if found guilty he must be sentenced to death. The prosecution had not cared to make out such a case in the commitment court.  It also failed to take suitable steps  at the  proper  time  in the trial court  to  have  the  charge amended  for the trial to be held for an offence defined  in S. 303, I.P.C. The appellant, therefore, could not be deemed to  have  notice of the matter necessary  for  bringing  the charge against him within the purview of S. 303, I.P.C.  In the  absence  of such a charge, the trial  court  cannot  be considered  to  have committed any serious error-if  at  all there   was  an  error-in  declining  the  prayer   of   the prosecution  to  place on the record  the  documents,  which had  nothing  to do with the trial of the offence  under  S. 302, I.P.C. without any reference to the facts attracting s. 303, I.P.C. Assuming that S. 303, I.P.C. is comparable to  a proviso   to  S.  302,  the  additional  fact   which   must necessarily  be  proved  to attract S.  303  should,  in  my opinion,  have  found  place  in the  charae  on  which  the appellant was tried.  Failure to do so cannot but be  deemed to  have prejudiced the appellant.  The State did  not  feel aggrieved  by any of the orders of the trial court  and  did not care to challenge them in the High Court and it did  not itself apply for the appellant’s trial on a proper charge or even for adducing additional evidence in the High Court. The power of revision in criminal cases vesting in the  High

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Court, though wide and also exercisable suo niotu is a power which, generally speaking, is narrower and more limited than its  appellate  power, though in certain respects it  has  a somewhat  wider  scope.  It is discretionary and  cannot  be invoked as of right such as is the case of appellate  power. Broadly  stated, the object of conferring- revisional  power on  the High Court under S. 435 and S. 439, Cr.  P.C. is  to clothe  the highest court in a State with a jurisdiction  of general supervision and superintendence in order to  correct grave failure or miscarriage of justice arising from 155 erroneous  or  defective orders.  The error  or  defect  may arise from misconception of law, irregularity of  procedure, misreading  of  evidence, misapprehension  or  misconception about  law or facts, more perversity or even undue  hardship or  leniency.   The  real core of this  power  is  that  its exercise  is  justified only to set right grave  failure  of justice,  and  not  merely to rectify  every  error  however inconsequential.  Merely because the lower court has taken a wrong  view  of law or misapprehended the  evidence  on  the record cannot by itself justify interference on revision un- less  it  has also resulted in grave injustice.   It  is  no doubt  not possible and is also not practicable to lay  down any rigid test of uniform application and the matter has  to be  left to the sound judicial discretion of the High  Court in  each  case  to  determine  if  it  should  exercise  its extraordinary  power  of revision to  set  right  Injustice. Administration of criminal justice is as a matter of general policy  a  function  which the State  performs  and  private parties  who  may  be inspired by a  feeling  or  spirit  of vengeance or Vindictiveness are ordinarily not encouraged to prosecute  criminal  proceedings  except  when  for  special reasons the cause of justice so demands.  The High Court is, therefore,  ordinarily  disinclined to  interfere  with  the orders of subordinate criminal courts in which the State  is the  prosecutor  at the instance of private  parties  except where for some exceptional reason it considers proper to  do so in the larger interests of justice. In  this case the High Court was, in my opinion, not at  all justified  in interfering with the discretion of  the  trial court  in declining 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, I.P.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  ingredients of  that offence, when there was absolutely no such  indica- tion in the charge actually framed against him and on  which he  was  tried.  From the record it is also clear  that  the appellant had been committed to the court of sessions a long time ago and the curse was also twice adjourned by the trial court.  The trial was first fixed for April 26 and 27,  1965 when it was not adjourned because the investigating  officer Shri  Y.  K. Singh Pippal, P.W. 5, had to  go  to  Calcutta. Second time it was adjourned from July 6 and 7, 1965 to July 21 and 22, 1965 because of the illness of the mother of  the appellant’s  counsel.  There was thus ample opportunity  for the prosecution to take suitable steps in the first instance to  have a proper charge framed by the committing court  and later to have the charge modified in the trial court in good 156 time  for  the trial to be held on a charge under s.  303  , I.P.C.  without unreasonable delay and finally to  have  the

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entire evidence, on the point of the appellant being under a life sentence at the time of the present offence, ready,  if it was desired to have him tried on the charge under S. 303, I.P.C. Indeed, the proper course for the prosecution was  to have  asked  for framing appropriate charge  under  S.  303, I.P.C.  in  the commitment court, which course  for  reasons unexplained at the bar- and not discoverable on the  record, was  not  adopted.   The High Court does not  seem  to  have adverted  to any of _these considerations and without  fully ,applying  its mind to all the relevant  circumstances,  has adversely  criticised the trial court’s interlocutary  order dated  July 22, 1969.  The High Court also did not  properly scrutinise  the  proceedings  of  the  Sessions  Judge   for ascertaining  if  the appellant had been  afforded  adequate legal  assistance and also as to why the  thumb  impressions and  the  hand writings, if any, of the accused in  the  two cases were not got compared.  In my opinion, the High  Court should  have  done  so in order to  satisfy  itself  if  the appellant   had   been  afforded  adequate   and   effective opportunity  to  defend himself before  the  Sessions  Judge because those proceeding were just as serious as a trial for an offence prescribing death as the only penalty.  Reference in this connection may usefully be made to Bashira v.  State of  U.P.(1) in which the desirability of appointina  counsel for  helping  in  his defence an  accused  person  tried  on charge  for  which capital sentence is  provided,  has  been emphasised.   That  was a case from  Allahabad  and  General Rules  (Criminal)  promulgated by the Allahabad  High  Court were  relied upon.  The appellant is undoubtedly a poor  man as  is  clear from his petition of appeal in the form  of  a letter  dated July 6. 1971 forwarded through  Central  Jail, Naini,  Allahabad  to this Court.  Clearly he is  not  in  a position to afford to engage a counsel. The  High Court has, in my opinion, erred in  enhancing  the appellant’s sentence on the facts and circumstances of  this case.  Justice has quite clearly failed here as a result  of the  interference  by  the High Court  on  revision  at  the instance of the private complaint. The present appeal is not under Art. 136 of the Constitution but is on a certificate granted under Art. 134 (1) (c).  The very first ground for granting the certificate is "that  the Sentence of death has been imposed upon the appellant in the first instance" by the High Court.  As the sentence of death has  been  imposed by the High Court for the first  time  on additional  material not on the record of the  trial  court, for bringing the appellant’s case under s. 303, I.P.C. which is a more serious offence (entailing capital sentence as the only penalty) than one under s. 302, I.P.C. and (1) A.I.R. 1958 S.C. 1313. 157 requires  additional  facts  to  be  proved  for  conviction thereunder,  and the necessary certificate has been  granted for this reason, this court is fully justified in going into the  entire record and coming to its own conclusions  as  to how-far  the  sentence  of death by way  of  enhancement  is justified on the facts and circumstances of this case hideed on the present record I would have felt little hesitation in interfering  even under Article 136 of the Constitution.   I am  clearly  of the opinion that no case was  made  out  for invoking  the revisional jurisdiction of the High Court  for enhancing the sentence by converting the conviction from  an offence under s. 302 to that under S. 303, I.P.C. There  has been   in  this  case  an  infringement  of  the   essential principles of justice.  As this conclusion is sufficient for rising of the appeal, I do not think this Court is bound  to

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express  any opinion on the second ground on which the  High Court felt justified in granting the certificate. After considering all the facts and circumstances and  going through the record, in my opinion the appeal must be allowed in  part  and the sentence of death quashed.  I  would  have considered the desirability of sending the case back to  the trial  court for recording the evidence after  amending  the charge and after giving the appellant proper legal aid.  But the offence in this case was committed as far back as August 1964.  In my opinion, therefore, it would not serve the ends of  _justice  to  adopt  that  course  and  to  subject  the appellant to further inquiry with respect to the ingredients of  the  offence under s. 303, I.P.C.  I  would  accordingly quash  the death sentence and restore the sentence  of  life imprisonment imposed by the trial court.  On the view that I have taken on the material on the, present record I have not considered if necessary to express any considered opinion on the  question of the applicability of s. 310.  Cr.  P.C.  to the  facts  of  this case though this is  also  one  of  the grounds  on  which the High Court granted  the  certificate. Decision on that point is unnecessary for disposing of  this appeal.  Similarly, I consider it unnecessary to express any opinion on the point whether the High Court should not  have more  appropriately remitted the papers to the  trial  court from  whose  orders it was hearing the Appeal  and  the  two revisions,  rather  than to the Sessions judge  for  further inquiry and report on the question of the appellant’s  guilt under S. 303, I.P.C. G.C.                                                  Appeal dismissed. 158