PRATAP versus STATE OF U.P.

Citation: [1973] 3 S.C.R. 136 · Decided: 22-12-1972 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Dismissed

Judgment (excerpt)

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 sen-
tepced 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 
' 
• 
A 
B 
c 
D 
E 
F 
G 
H 
PRATAP. V, U,P, STATE 
I 37 
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

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