DILIP KUMAR SHARMA & ORS. versus STATE OF MADHYA PRADESH

DILIP KUMAR SHARMA & ORS.

STATE OF MADHYA PRADESH

October 10, 1975

[Y. V. CHANDRACHUD, P. N. BHAGWATI AND R. S. SARKARIA, JJ.)

son under 1.P.C.1 s. sentence· 302 and 303-Sentence to motiveless murderers-Meaning of life imprisonme111-Relevant dat~ for s. 303-p:ffect of of per• an order of acquittal-Whether cdurt seized of proceedmgs con take mto 11ccount subsequent events-Interpretation consistent with good sense and fa!f'neJs-Construction leading to oppressible, unjust and inconsistem result.

The appellants Dilip Kumar, Bharatsingh and Rohitsingh were co!1victed for committing the murder of one Arnn Bhargava. The learned Sess10ns Ju~ge convicted Dilip Kumar under s. 302 and Bharatsingh under s. 302 read with s. 34 and Rohitsingh under s. 303 IPC and sentenced them to death.

One Prabhu was murdered before the incident in question too~ place for which Rohitsingh was sentenced to life imprisonment by the Sessions Co_urt in May, 1972. In appeal, Rohitsingh was acq~itted by Madhya Pradesh High Court in February, 1974, being the same day on w~ich the Hig_h Cou~t pro-nounced its judgment in the present case. T~e . Sessions Court. m the ~nstant case, had to impose the death sentence on Rohitsmgh as he was, at the time of conviction for the present offence, undergoing sentence of imprisonment for life, The High Court confirmed the conviction and sentence of Dilip Kumar. The High Court also confirmed the conviction and sentence of Rohitsingh. While maintaining the conviction, High Court reduced the s-entence of Bharatsingh to imprisonment for life. ·

In May, 1974, this Court granted Special Leave to the appellants limited to the question of application of section 303 in the case of Rohitsingh and sentence in cases of all.

HELD : (Per Chandrachud and Bhagwati, JJ.)

1. Bharatsingh has been convicted under s. 302 read with s. 34. He has been awarded the minimum sentence for murder under section 3(12 and that sentence cannot be rednced. [291-G]

2. As regards Dilip Kumar, there is no reason to rednce the sentence of death imposed on him by the Sessions Court and confirmed by the High Court. 'J!le deceased Arnn Bhargava was sitting in front of hotel at Ujjain. Bharat-smgh amd. Rohi1'3ingh caught hold of his arms from behind and Dilip Kumar stabbed. him: on the chest with big knife. As result of the injury the pleura, the pencardium of the right ventricle of the heart were extensively damaged, Mohv'eless murders afe not. necessarily acts of mad and unhinged peopJe. Prosecution is often unable to collect satisfactory evidence on the motive behind the crime. Dilip Kumar's conduct cannot be viewed with leniency and the High Court was right in confirming the death sentence. [291-G, H, 292-A]

. 3. Rohitsingh's appeal arising ont of Prabhn's murder was allowed by the H~g~ Court a~d immediately thereafter it took up for consideration the appeal ansmg out of Arnn Bhargava's murder. Thus, when the High Court pro-nounced its judgment in the instant case Rohitsingh was not un<ler the sentence of imprisonment for life. The High Court erroneously held that for the purpose of determining the application of s. 303, the date on which the subsequent offence of murder is committed is the relevant date. S. 303 does not afford clear cine to the solution of the problem raised in the appeal. When person who is sentenced to imprisonment for life commits murder the previous conviction

assumes _a graver propo1iion and becomes an aggravating circumstance but the aggravation JS on the assumption that the previous conviction is lawful and valid. An order of acquittal in regard to the previous offence wipes out the g_mlt and turplll!de attachJ!1,g to th~ previo_us convicti0~, for the true implica• t10n of a~ acqmttal 1s as 1f the offender did not commit the offence for which he was tried, no matter whether the acquittal is founded on benefit of dtmbt ·or based on the overall rejection of the case. Therefore if court whether of the first instance or otherwise, finds on the date on ~hich, it re~ords its decision that the accused before it is no longer under sentence of life impri-sonment it cannot under s. 303 sentence him to death. [292 D-F, G, 293 B·EJ

4. It is well-estabfr;hed proposition that court seized of proceeding must take into account events subsequent to the inception of that. proceeding. That position is widely accepted in Ci"vil Law and there is no reason why the principle should not be extended to criminal proceedings with appropriate modi-fications. According to the High Court there was no warrant for substituting the words "whoever is convicted for murder'' for the words 'whoever commits munkr". In taking this view. the High Court overlooked the fundamental principle of criminal jurisprudence that an accused is presumed to be inno-cent until his guilt is established. ''Whoever commits murder" must mean "whoever is proved to have committed murder" and not "whoever is alleged to have committed murder". (294 B-C, F-G] 5. When s. 303 'peaks of person under sentence of imprisonment for life it means person under an operative executable sentence of imprisonment for life. sentence once imposed but later set aside is not executable and, therefore, the court convicting the accused of murder cannot take such sentence into account for imposing the sentence of death by the application· of s. 303. [295,B]

6. On merits, there is no justification for distinguishing the case of Rohitsingh J'rom that of Bharatsingh. Therefore, Rohitsingh's sentence ought to be reduc· .E ed from death to imprisonment for life. [295-C] Pa S<irkaria J. (concurring)

The key words in the phrase "being under sentence of life imprisonment" 1s '"sentence". It is capable of strict as well as broad interpretation. In broad sense it may include sentence which has not become final but is still liable to be impeached by way of appeal or revision. In the strict sense, the ambit of the word would be limited to sentence which has become final, absolute and indefeasible. S. 303 makes murder by li.fe convict punishable with death, leaving no discretion to the court. The section is draconion. in severity, relentless and i"nexorablc in operation. It is well settled that such penal provision must be strictly constmed and in the absence of clear. com-pelling language should not be given wider interpretation. If two constmc-tions are possible upon the language of' the Statute, the court must choose the one which is consistent with good sense and fairness, and eschew the other which makes its operation unduly oppressive. Unjust or unreasonable or which would lead to strange, inconsistent Jesuits or otherwise introdu.ce an element of bewildering uncertainty and practical inconvenience in the working of the statute. lf the strict constmctiDn is adopted either the hearing 1)f the trial would have to be postponed till pronouncement of the sentence by the final judicial authority or conditional sentence may be passed in the trial for the subsequent offence. However. postponment of trial is not desirable. Passing of conditional sentence would be manifestly illegal. [295 H, 296A, D-G, 297 H, 298 A-BJ

2. There is authority for the proposition that an order of acquittal parti-cularly one based on merits wipes off the conviction and sentence for all pur-poses and is void as if it h~d never been passed. It is true annulment with retroactive force. [298-G[

I. .....•

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 188 of 1974

Appeal by special leave from the Judgment and Order dated the 27th February, 1974 of the Madhya Pradesh High Court Indore Bench in Criminal Appeals Nos. 61 to 63 and Death Reference No. 2 of 1974.

A. N. Mui/a and S. K. Gambhir for the Appellants ..

I. N. Shroff for the Respondent.

The Judgment of Y. V. Chandrachud and P. N. Bhagwati, JJ. was delivered by Chandrachud, J., R. S. Sarkaria, J., gave separate Opinion.

CHANDRACHUD, J, Since this appeal by special leave is limited to the question of sentence, it would be enough to set out the facts bear-ing on the sentence.

The appellants, Dilip Kumar, Bharatsingh and Rohitsingh were tri-ed by the Sessions Judge, Ujjain, for committing the murder of one Arun Bhargava. The learned Judge convicted Dilip Kumar under section 302, Bharatsingh under section 302 read with section 34, Rohitsingh under section 303 of the Penal Code and sentenced them to death. The High Court of Madhya Pradesh, Indore Bench, confirmed the convic-tion and sentence of Dilip Kumar and Rohitsingh. The conviction of Bharatsingh was also confirmed but the High Coart reduced his sen-tence to imprisonment for life; '

On May 3, 1974 this Court granted special leave to the appellants "J.imited to the question of application of section 303 in the case of Rohitsingh and sentences in case of all". Counsel for the appellants tuged that under this order Bharatsingh is entitled to challenge the sen-tence of life imprisonment imposed upon him by the High Court and since that cannot be done without challenging Bharat:;ingh's conviction under section 302 read with section 34, the order of conviction is also open to challenge in this appeal. There is no merit in this argument. Rohitsingh's case apart, the special leave petition filed by the appellants was not admitted on the question of conviction and leave was expressly restri.cted to the question of sentence only. Bharatsingh having been convicted under section 302 read with section 34, there is no scope for any argument as regards the sentence imposed on him. The minimum sentence for murder under section 302 is imprisonment for life and that is the sentence which the High Court has imposed on Bharatsingh.

At regards Dilip Kumar, we see no reason to reduce the sentence of death imposed on him by the Sessions Court and confirmed by the High Court. On June 20, 1973 at 9 p.m. the deceased Arnn Bhargava was sitting in front of hotel in Ujjain. Bharatsingh and Rohitsingh caught hold of his arms from behind and Dilip Kumar stabbed him on the chest with big knife. As result of the injurv, the pleura the pericardium and the right ventricle of the heart \Vere all cut. Dilip Kumar's conduct cannot be viewed with leniency rrnd the High Court was right in confirming the death sentence passed by the Sessions Court.

Motiveless murders are not necessarily acts of mad and unhinged people. Prosecution is often unable to collect satisfactory evidence on the motive behind the crime. That does not call for any leniency and indeed where this is so, criminals would prefer, in order to reduce the gravity of their acts, to suppress the motive leading to the crime.

unhinged

As regards Rohitsingh the main question for consideration is whe-B ther his conviction under section 303, Penal Code, is legal. If it is, the sentence of death has to be upheld because under section 303, "Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death". The section leaves no discretion to award lesser sentence than death. ·

One Prabhu was murdered on October 24, 1971 for which Rohit-singh was sentenced to life imprisonment on Maiy 18, 1872 in Sessions Case No. 5 of 1972. In appeal, Rohitsingh was acquitted by the Madhya Pradesh High Court, on February 27, 197 4, being the very date on which the High Court pronounced its judgment in the instant case. The S:::ssions Court had no option in the matter of sentence be-cause on January 24, 1974 when it found Rohitsingh guilty of the mur-der of Arnn Bhargava in the instant case, he was "under sentence of imprisonment for life" imposed upon him on May 18, 1972 in Sessions case No. 5 of 1972. But that position had undergone material change when the High Court delivered its judgment in the instant case on Feb-ruary 27, 1974. Precisely that very day Rohitsingh's conviction and sentence for Prabhu's murder were set aside by the same Bench of the High Court. In fact, Rohitsingh's appeal arising out of Prabhu's murder was allowed by tli.e High Court and immediately thereafter it took up for consideration the appeal arising out of Arun Bhargava's murder. Thus, when the High Court pronounced its judgment in the instant case holding Rohitsingh guilty of the murder of Arun Bhargava, Rohitsingh was not under the sentence of imprisonment for life. For the matter of that, he was not under any sentence save the sentence of death imposed on him for the murder of Arnn Bhargava which was the subject matter of appeal before the High Court.

Despite Rohitsingh's acquittal in the earlier case, the High Court convicted him under section 303 of the Penal Code, on the view that the material date for deciding the application of section 303 is the date on which the subsequent offence of murder is committed and not the date on which the trial or the appellate court pronounces its judgment in respect of the subsequent offence. The subsequent offence, namely, the murder of Arun Bhargava was committed by Rohitsingh on June 20, 1973 and since on that date he was under sentence of life im-prisonment 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 plain construction of the provision, we are of the opinion that section 303 of the Indian Penal Code is attract-

ed to case where person having subsisting sentence of i~­prisonment for life commits murder, that mu.rder be~ng committed when the sentence was in force, notw1tbstandmg the fact that in pending appeal the sentence is set aside sub-sequent to the commission of the crime."

we have to examine the correctness of this view.

Section 303 does not afford clear enough clue to the solution of the problem raised by the High Court judgment.. Its brief and pithy words do not throw sufficient light on whether the relevant date for deciding upon its applicability could be the date <?n which the proceed-ing in respect of the subsequent offence was de?1ded finally .. But con-sidering the matter in all its ramifications, the view of the High Court appears to us difficult to sustain.

When person who is sentenced to imprisonment for life commits murder, the previous conviction assumes graver proportion and becomes an aggravating circumstance. But the aggravation is on the assumption that the previous conviction is lawful and valid. An order of acquittal in regard to the previous offence wipes out the guilt and turpitude attaching to the previous conviction, for,, the true, implica-tion of an acquittal is as if the offender did not commit the offence for which he was tried, no matter whether the acquittal is founded on bene-fit of doubt or rests upon an overall rejection of the prosecution case. The sequiter that the order of acquittal impli!~s the innocence of the accused is not dependent upon the stage of the court proceeding at which the order was passed but it depends, plainly, upon the fact of acquittal itself. Therefore, if court, whether of the first instance or otherwise, finds on the date on which it records its decision that the accused before it is no longer tinder sentence of life imprisonment, it cannot under section 303 sentence him to death. On Jhe date when the subsequent offence of murder was committed, the accused might have been under sentence of life imprisonment but such sentence would cease to have existence in the eye of law if at any subsequent stage the convict'ton on which the sentence of life imprisonment is founded is set aside or the conviction is maintained but the sentence of life imprisonment is reduced to lesser sentence. More than one offence in the Penal Code is punishable with life imprisonment and not all sections of the Code which provide for the sentence of life imprison-ment make it obligatory to impose that sentence. For example, an offence under section 304, Part I, or section 326 is punishable with life imprisonment and the court of first instance may sentence the offender under those sections to life imprisonment. . The higher court may set aside the conviction in 'its entirety and acquit the accused in wh!ch .case there _is .no question of imposing any sentence, or it may mamtam the conviction and reduce the sentence to lesser term which under those sections is permissible. In either event, the offender would no longer be under sentence of life imprisonment and no matter when that . sen tenet; is set aside or reduced, the court dealing with the pro-ccedmg relatmg to the subsequent offence of murder will have to take that circumstance into account. The date of. murder, undoubtedlv, has relevance but that is in the limited sense that the murder has to succeed ,

nol precede, the offence for which the accused was sentenced to life imprisonment. This sequence is fixed by the pre-condition of section 303 that person under sentence of imprisonment for life must b~ found guilty of murder. . But in between the date on which the- subse-quent offence of murder is committed and the pror;ecding in respect thereof is terminated, the sentence of life imprisonment founded upon the previous conviction may have been set aside, in which event, sec-tion 303 would cease to have application.It is well-established proposition that court seized of proceed-ing must take into account events subsequent to the inception of that proceeding. That position is widely accepted in civil law and there is no reason why the principle should not be extended to criminal procc.ed-ings with appropriate modifications. When on the conclusion of Sessions trial, the Sessions Judge finds the accused guilty of murder, he wili have no option save to act under section 303, if he finds that at the date of the offence the accused was under sentence of life imprison-ment for some o\her offence. The High Court, dealing with an appeal from the judgment of the Sessions Court, may find that the sentence .of life imprisonment which was in operation on the date when the Sessions Court delivered its judgment has been, in the meanwhile, set aside by higher court seized of the previous case. The High Court shall have to taKe the subsequent event of acquittal into consideration and by reason of that tvent section 303 would cease to have application. It may so happen that this Court seized of an appeal against the High Court judg-ment may find when it records its own judgment that the sentence of life imprisonment imposed by the trial court but set aside by higher court has been re-imposed in further proceeding. In that event, this Court shail have to proceed on the basis that at the time when the accused is alleged to have committed murder, he was under sentence o[ imprisonment for life. Jf the convictlon for murder is upheld by this Court, section 303 would come into play and the accused shall have to be sentenced to death.

The High Court thought that the words "Whoever . . . . . . . . com-mits murder'' in section 303 indicate that the relevant point o[ time is the date of commission of the murder and not the date of conviction for murder. According to the High Court there was no warrant · for substituting the words "Whoever .......... is convicted for murder'.', for the words "Whoever ............ commits murder". In taking this view the High Court overlooked the fundamental principle of criminal jurisprudence that an accused is to be presumed to be inno-cent until his guilt is established. "Whoever._ ...... commits mur-der" 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 judgment is recorded it is impossible to predicate that the accused has committed murder.

The anomaly arising out of the view taken by the High Court may be demonstrated in reference to section 75 of the Penal Code. Stated briefly, under that section if person who is convicted of an offence therein mentioned is again found guilty of similar offence, he is liable to enhanced punishment. lt is true that section 75 uses the words

"Whoever having been convicted" but what is Important is that for justi-fying the enhanced punishment, the court convi~ting the .ac.cus~d f?r the subsequent offence has to find that the preVIous conv1ct10n is m operation on the date of the subsequent conviction. If the previous .con-viction is in the meanwhile set aside, the accused would not be liable to enhanced punishment because on the date of the subsequent judg-ment it cannot be said that the accused has previous conviction.

Thus, when section 303 speaks of person "under sentence of im-prisonment for life" it, means person under an operative, executable sentence of imprisonment for life. sentence once imposed but later set aside is not executable and therefore the court convicting an accus-ed of murder cannot take such sentence into account for imposing the sentence of death by the application of section 303.

On merits, there is no justification for distinguishing the case of Rohitsingh from that of Bharatsingh. They played an identical role in the murder of Arnn Bhargava and if Bharatsingh deserved sen-tence of life imprisonment, so must Rohitsingh.

In the result we dismiss the appeals of Diiip Kumar and Bharat-singh and confirm the sentence of death imposed on pilip Kumar and tl~e sentence of life imprisonment imposed on Bharatsingh. We allow the appeal of Rohitsingh and reduce his sentence from death to im-prisonment for life.

SARKARIA, J. I have seen the judgment prepared by my learned brother Chandrachud J. I agree that the appeals of Dilip Kumar and Bharatsingh be dismissed and their conviction and sentences be con-firmed. I futiher agree that s. 303, Penal Code being not applicable to Rohitsingh's case his sentence of death be commuted to imprisonment for life.

The case of Rohitsingh involves question regarding the interpre-tation and scope of s. 303, Penal Code. In view of the importance of the question, I would like to state my own reasons.

TI1e facts arc given in full m the judgment of my learned brother and I need not repeat them .

Section 303, Penal Code runs as under:

"Whoever being under sentence of imprisonment for life, commits murder, shall be punished with death."

bare reading of the Section indubitably shows that the crucial point of time when the state of the accused person "being under sen-tence of life imprisonment," is to be considered, is when the murder in question is committed. On this point, the language of the section is crystal clear, and it meaqs what it says. The real problem that has come to the surface in this case, is about the scope and construction of the phrase, "being under sentence of life imprisonment". The key-word in this phrase is "sentence" which is capable of strict as well as broad interpretation. Jn the strict sense, the meaning and ambit /. 0 LI 276SCTf 75

of this word would be limited to sentence which has become final absolute and indefeasible so far as judicial process is concerned. In ~ broad sense, it may also include 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 applica-B bility of the section ?

The learned Judges of the High Court did not address themselves to this pivotal question. They simply assumed that the expression "sentence" is wide enough to include sentence which is not even final and absolute, but is still being impugned in pending appeal. Pro-ceeding on this wrong assumption, the learned Judges posed the ques-c tion as to what was the crucial point of time when such sentence should be subsisting? Thereafter, they answered it in these terms :

"Thus on plain construction of the provision we are of the opinion that Section 303 of the Indian Penal Code is attracted to case where person having subsisting sen-tence of imprisonment for life commits murder, but murder being committed when the sentence was in force, notwith-standing the fact that in pending appeal the sentence is set aside subsequent to the commission of the crime."

Section 303 makes murder by life-convict punishable with death, with no alternative sentence. Once it is established that at the time of committing the murder, the prisoner was under sentence of life imprisonment, the Court has no discretion but to award the sentence of death, notwithstanding the existence of mitigating circumstances which by normal judicial standards and modern notions of penology do not justify the imposition of the capital penalty. Viewed from this aspect, the section is Draconion in severity, relentless and inexorable in operation.

It is well settled that such penal provision must be strictly con-strued; that is to say, in the absence of clear compelling language, the provision should not be given wider interpretation, and "no case should be held to fall within which does not come within the reason-able interpretation of the statute." (M. V. Joshi v. M. V. Shimpi) (l). If two constructions are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness, and eschew the other which makes its operation unduly op-pressive, unjust or unreasonable, or which would lead to strange, in-consistent results or otherwise introduce an element of bewildering un-certainty and practical inconvenience in the working of the statute.

Considered in the light of these principles, the connotation of the expression "sentence" in the phrase "being under sentence of imprison-H ment for life" must be restricted to sentence which is final, conclusive and ultimate so far as the judicial remedies are concerned. sentence

(1) [1961] 3 S. C.R. 986.

\' 't \:

· of life imprisonment which at the time of the commission of the murder . in question, is defcasible or capable of being, or liable to be voided, annulled or undone by way of appeal, revision or other judicial process_ known to law, is outside the purview of the phrase, "being under sen-tence of imprisonment for life" in sec. 303.

The adoption of the wider interpretation of the expression, so as to focludc sentence which is not final and ultimate in the judicial process but is still being impeached or is capable of being impeached and an-: nulled by having recourse to judicial remedies available at la\v, \Vould, in my opinion lead to strange, unreasonable and unjust results. It would further introduce an element of disconcerting uncertainty in the application of the Section and disturbing unstability, unpredictability . .and contradiction in the administration of justice. In that view, the application of the sec(ion, it is feared, may become very much of gamble. Courts must endeavour to avoid this reproach.

The point can be highlighted by taking an extreme illustration. Accordingly I would modify the facts of the fostant case, to make it ~uch an illustration.

R. is convicted and sentenced to imprisonment for life for the mur-der of X by the trial Court on 1-1-1970. He appeals against his con-viction to the High Court. During the pendency of the appeal, R on 10-1-1970, commits the murder of Y. He_js convicted by the trial court for this murder but it is found that there arc mitigating circumstances • in the case which do not justify the imposition of the death penalty. Nevertheless, the Court imposes the death penalty on the ground that Section 303 is attracted and makes reference to the High Court for eonfirmation of the death sentence. R also appeals. R's appeal is dismissed but the reference is accepted and the sentence is confirmed by the High Court on 10-4-1970. R's special leave petition under ·Art. 136 of the Constitution is also dismissed by the Supreme Court on 1QC7-1970. For some reason or the other,-and it is not difficult to conceive such cases-R's appeal in X's murder case could not be disposed of by the High Court before 9-1-1971, on Which date, the High Court accepts that appeal and acquits ·R with clear finding that he had been falsely implicated in the murder of X.

Would not the invocation of s. 303 in such situation lead to con-, fusion, inconsistency and contradiction? · Would it · not present strange, unenviable spectacle where reasoned justice and Jaw stand poles as under mocking at each other ? ·

' It is possible to suggest that the court awarding or confirming the death sentence in Y's murder case could avoid this anomalous situation in either of these ways : Firstly, it may postpone the trial/hearing; or pronouncement of the sentence till the whole gamut of judicial process has been run and legal remedies are exhausted by R and the ultimate result is known in X's murder case. Secondly, it may pass conditional sentence of death under sec. 303 which in the event of the life sentence

in X's murder case being set aside by court in due course of law, would be deemed to have been converted into sentence of imprison-ment for life. ·

Postponement of the trial or pronouncement of· the sentence till the happening of an event the ultimate shape of which is uncertain, is not desirable. Such course is bound to cause inordinate delay and practical inconvenience in the disposal of the case. It will offend against the scheme of the Criminal Procedure Code and the Court Rules which require that murder cases and murder references should be dis- ,. posed of with utmost expedition. There is no statutory provision in " the Code of Criminal Procedure, authorising the court to postpone the proceedings or the trial till the accused has exhausted all his remedies upto the highest court and the ultimate result of the judicial process is known. The second possible course would be manifestly illegal It • is clearly not permissible under the law. '

The instant case, also, .illustrates how illogical, queer and contra-dictory results may flow from wi<ler construction of the expression "sentence" for the purpose of sec. 303. On one hand, the High Court accepted Rohit's appeal, quashed his conviction and sentence and ac-quitted him of Prabhu's murder. On the other, inconsistently enough, it worked out the proposition, that despite his acquittal and the annul-ment of his sentence of life imprisonment, Rohit was at the time of committ_ing Arun's murder, under s_ubsisting sentence of life impri-sonment for the purpose of sec. 303, and consequently, for that reason, am! that reason alone, on his conviction for Arun'.s murder, they had no option but to sentence him to death .. If I may say so with respect, • this anomalous, incongruous and contradictory position into which the learned· Judges of the High Court found themselves landed, could be avoided if they had not, at the t,hreshold of their approacl1, taken it for granted that the expression "sentence" in the aforesaid phrase in sec. 303, is wide enough to embrace not only sentence which is final and conclusive but also one which is not so.

One wrong assumption led to another infirm deduction, viz. that an order of acquittal passed.in appeal does not operate to obliterate · sentence with effect from the date on which it was originally awarded.

There is authority. for the proposition that an order of acquittal particularly one passed on merits, wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding conviction operates from nativity. As Kelson puts it, "it is true annulment, an annulment with retroactive force." So when the conviction of Rohit for I'rablm's murder, was quashed, the High Court-to borrow the fclidtious words · of Krishna Iyer J.-'Kilkd the conviction not then, but performed the formal obsequies of the order which had died at birth.'

I need not labour the point further. It has been lucidly brought out by my learned brother, Chandrachud J. in his judgment. Moreover, in the view I take,-that the phrase "being under sentence of impri-sonment for life" takes in only that scntcocc of life imprisonment

which, under the law, being the ultimate end product of the entire gamut of litigation fought in the hierarchy of courts, has become final, conclusive and indefeasible, and as such is not liable to be impugned, annulled or voided by further judicial action-further pursuit of this line of argument will be unnecessary, if not academic.

For the foregoing reasons, the death sentence awarded to Rohit-singh with the aid of sec. 303, Penal Code, must be set a:;idc.. His conviction under sec. 302/34; Penal Code for the murder of Arun shall stand and on that count he shall undergo imprisonment for life. Excepting this modification, his appeal is dismissed.

P.H.P .