35 was in respect of the murder of Rati Ram.
Apparently when on July 22, 1965 the prosecuting companynsel applied for bringing on the record the documents mentioned in that application the companyrt cannot be companysidered 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 number in attendance.
and at the companyclusion of the prosecution evidence on July 22, 1965 the appellant was examined.
271 i P XXII 1212/ 1959 dated April 4, 1959 relating to the release of Pratap, accused.
Thereafter, the High Court dealt with the two revisions preferred by the companyplainant.
On this application the Sessions Judge passed the following order The papers are number relevant unless any document is produced to show that the present murder was companymitted when the accused was on probation or was serving out the sentence.
P.C. these facts should have been appropriately stated in the charge to give to the appellant proper numberice 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.
Thereafter the remaining evidence was taken and the accused was examined.
When the appellant was questioned his answers to the two questions relating to the two murder cases was yes, I am the same man.
His name is Tula Ram and he is called Tulaiyan also.
Phulrarni were one and the same.
The High Court recorded the appellants statement in Hindi.
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.
Phoolarani was murdered about 17 years back and Pratap was prosecuted for her murder.
The power of revision in criminal cases vesting in the High 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.
The enquiry was number directed to be made by the trial companyrt the companyrt of the First Temporary Sessions Judge but by the Sessions Judge who submitted his report on May 5, 1970.
Arguments were heard and the judgment was delivered ,on July 26, 1965.
The jail petition of the appellant in the previous appeal Crl.
35 of 1965 Pooran and other witnesses were summoned.
M. Kaiser Beg D.M. J Hamirpue This charge was read out and explained to the appellant by the Temporary Sessions Judge, who tried him, at the companymencement of his trial Trial No.
Phoolarani and was sentenced to death in that case.
On being questioned the appellant denied that he had been previously prosecuted or companyvicted for the murder of Smt.
Even the High Court does number seem to have companysidered the advisability of examining an expert for getting companypared the two thumb impressions.
He also took the blood stained earth.
This suggestion, however, looks far fetched.
Appeal by certificate from the judgment and order dated August 11, 1970 of the Allahabad High Court in Criminal Appeal No.
Phoolarani in the year 1953 and who was companyvicted and sentenced to death in that case.
On that application the Sessions Judge passed a one word order saying Summon.
No reference was made by the High Court to the orders of the trial companyrt on the applications made by the panel lawyer on which the impugned orders had been made by the First Temporary Sessions Judge and numbercomments on these orders are discoverable in the order of the High Court.
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.
And I hereby direct that you be tried by the, said companyrt on the said charge.
T. No.
The following day the remaining evidence was recorded.
Apparently the Sessions Judge did number companysider it proper even to appoint an amicus curiae for assisting the appellant.
The High Court took the view that the appellant was guilty of the offence of murder and had been rightly companyvicted.
35 of 1965 on July 21, 1965.
The trial companyrt, as per judgment dated July 26, 1965, companyvicted the appellant under s. 302, I.P.C. and sentenced him to imprisonment for life.
Hence rejected.
Moti Lal alias Mutiayan stated on oath that Smt.
Pratap companyvict was also summoned in this enquiry.
and except this suggestion there was numberother evidence to establish the enmity.
Phulrani, as also Pooran, who had been examined earlier as W. 1 in the present case.
Apparently he had numberlegal advice and the grounds of appeal clearly seem to have been stated by him without legal assistance.
He has admitted that he is the same person who was prosecuted for the murder of Smt.
Pooran stated that Pratap present in Court was prosecuted for the murder of Rati Ram.
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 companyvicted and sentenced to death.
The accused was companymitted to the Court of Sessions in due companyrse to stand his trial under Section 302 I.P.C. The defence of the appellant was companyplete denial of the quarrel at the scene of occurrence as spoken to by the prosecution witnesses.
The Sessions Judge then examined Pratap accused.
T. No.
After recording the statements of PWs 1 to 4 and recording the statement of the accused on 25 10 64 he submitted the charge sheet.
The delay in submitting this report as stated by the Sessions Judge in his companyering letter dated May 5, 1970 was due to the fact that the record, though received in the companyrt of the Sessions Judge on December 20, 1969 was, under some mistaken impression, sent to the companyrt of the First Temporary Civil and Sessions Judge, Hamirpur where it remained up to April 11, 1970.
Hence rejected, Evidence, as just stated, was recorded on July 21 and 22, 1965.
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 companyrt refusing, to summon the documents and refusing to frame a charge under s. 303, I.P.C. against the appellant.
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.
25 of 1953 and Pratap Son of Tula Ram who was prosecuted for the murder of Rati Ram and was companyvicted and sentenced to Life Imprisonment under Section 302, 1,P.C. is one and the same person.
There, was numbersuggestion to PWs 1, 2 and 4 of any enmity with the accused.
The Sessions Judge accordingly held an enquiry in which he examined the husband of Smt.
On December 1, 1969 the High Court examined the appellant who denied having been tried and companyvicted of the murder of Smt.
Moti Lal has number been cross examined by Pratap.
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.
1383 of 1953 decided by the High Court on January 28, 1954 and the appellants petition and letter were directed to be forwarded to the Sessions Judge.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
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 companytaining G.O. No.
The original record shows that the appellant was number repre sented in those proceedings by any companynsel and it was apparently for this reason that there was numbercross examination of the witnesses.
The prosecution had number cared to make out such a case in the companymitment companyrt.
So holding the High Court dismissed the appellants appeal.
D. Dua, J. gave a dissenting Opinion.
Pratap further admitted that he is the person who was prosecuted for the murder of Rati Ram in the year 1965.
25 of 1953 and the present appellant were one and the same person.
The High Court accepted this finding.
It is numbereworthy that the appellant was tried on the charge as framed which only mentioned the offence punishable under s. 302, I.P.C. That charge companytained numberreference to s. 303, I.P.C. number were the ingredients of the offence companytemplated by and punishable under s. 303 otherwise stated in the charge so as to give to the appellant precise numberice of the matter he was charged with as companytemplated by s. 221, Cr.
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.
Both of them gave evidence that the appellant was numbere other than Pratap son of Tulaiyan, who had been earlier companyvicted for murder of Smt.
Phularani, adding that his father was number known as Tulaiyan.
This sentence was in force on the date on which the appellant companymitted the murder of Rati Rain.
Phoolarani and was companyvicted under section 302, I.P.C. and sentenced to death in S. T. No.
Neither the report of the Sessions Judge number the record discloses the presence of a companynsel 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 companymon judgment, the appellants appeal and the two criminal revisions.
The portion reproduced by me is the material part of that order.
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 companyrse 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 number and that the Sessions Judge had failed to perform his duty.
The Sessions Judge had number cared to have the thumb impression or the handwriting of the appellant examined by an expert as suggested by the High Court.
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 companyvicted earlier for murder of Smt.
The High Court does number seem to have adverted to any of these companysiderations and without fully ,applying its mind to all the relevant circumstances, has adversely criticised the trial companyrts interlocutary order dated July 22, 1969.
216 of 1966.
There was thus ample opportunity for the prosecution to take suitable steps in the first instance to have a proper charge framed by the companymitting companyrt and later to have the charge modified in the trial companyrt in good time for the trial to be held on a charge under s. 303 , P.C. without unreasonable delay and finally to have the 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, P.C. Indeed, the proper companyrse for the prosecution was to have asked for framing appropriate charge under S. 303, P.C. in the companymitment companyrt, which companyrse for reasons unexplained at the bar and number discoverable on the record, was number adopted.
On that very day the companynsel for the prosecution the panel lawyer filed an application in the trial companyrt.
The Sessions Judge examined two witnesses in the presence of Pratap son of Tula Ram.
The High Court in the final judgment dated August 11, 1970, impugned herein, upheld the appellants companyviction 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.
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 companynsel made another application seeking to place on the record, 1 Previous companyviction certificate of the accused under S. 302, I.P.C. in the year 1953 by the learned Sessions Judge, Hamirpur 2 companyy 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 application it was stated that the accused was a previous companyvict under S. 302, I.P.C. and that having been released on probation in the year 1969 his probationary period was up to 1973.
The letter of the U.P. Government companyld number prove itself.
is produced to show that the present murder was companymitted when the accused was on probation or was serving out the sentence.
The impugned judgment further shows that the High Court had companypared the left thumb impression of Pratap on the memorandum of appeal presented in the year.
On 14 10 1964 the deceased.
25 of 1953 was in respect of the murder of Smt.
Papers to be filed Previous companyviction certificate of the accused U s. 302 P.C. in the year 1953 by the learned Sessions Judge, Hamirpur.
206 of 1971.
In view of the above evidence it is clear that Pratap son of Tulaiyan, who was prosecuted for the murder of Smt.
The sentence of death passed in that case on Pratap was companymuted to life imprisonment and after some years Pratap was released.
P. Rana, for the respondent.
was delivered by Alagiriswami, J., 1.
Pratap present in this Court is the same person Pratap who was prosecuted for the murder of Smt.
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 companyviction of the appellant under Section 303 I.P.C. though an attempt was also made to canvass the companyrectness of the judgment of the Sessions Judge awarding the sentence of life imprisonment.
He admitted that his father is called Tula Ram and Tulaiyan both.
P.C. Even in the two applications full facts of the previous case had number been stated.
Cl/73 Jaira in the field, adjoining Seth Wala field, did companymit murder of Ratiram by intentionally and knowingly killing him with pharsa.
also saw this occurrence in addition to P.W. I and P.W. 4.
The medical evidence established that the deceased died of a blow given on his neck with a Pharsa.
The State did number feel aggrieved by any of the orders of the trial companyrt and did number care to challenge them in the High Court and it did number itself apply for the appellants trial on a proper charge or even for adducing additional evidence in the High Court.
It also failed to take suitable steps at the proper time in the trial companyrt to have the charge amended for the trial to be held for an offence defined in S. 303, I.P.C. The appellant, therefore, companyld number be deemed to have numberice 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 companyrt cannot be companysidered to have companymitted 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 numberhing 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 companyparable 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.
It was, prayed that the appellant be companyvicted and sentenced under the aforesaid section.
It is, therefore, prayed to your honour kindly to allow papers to be filed with the records.
The third question was as to what the appellant had to say about the evidence of the two witnesses.
The appellant refused to remove his cattle from the field and upon this there was an exchange of abuses between the two.
Appeal No.
In companypliance with the order of the Honble High Court dated 1 12 1969 I have the honour to submit my report as follows An enquiry was held by me in companypliance with th order dated 1 12 1969.
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.
Two criminal revisions Nos.
companyy of the letter from the U.P. Govt.
S. Gupte, for the appellant.
The Judgment of A. Alagiriswami and C. A Vaidialingam, JJ.
The enquiry which was being held by the Sessions Judge involved companypulsory imposition of death sentence.
The appellants memorandum of appeal from his companyviction 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.
271 P XXII 1212 1 /1959 dated April 4, 1959 relating to the release of the appellant.
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 wants to bring into the records the following two papers.
The arguments were heard on July 24, 1965.
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 number yet dry and grazing of the cattle would damage the field.
Such companyparison by an expert would certainly have thrown more useful light.
In that release order his probation period is upto the year 1973.
The Sessions Judge recorded the finding that Pratap son of Tulaiyan who was companyvicted for the murder of Phulrani in Sessions Trial No.
Moti Lal also stated that the father of Pratap is alive.
When he was questioned whether he had been companyvicted earlier under s. 302 I.P.C. the appellant denied that he had been prosecuted or companyvicted for murder.
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 companyvicted and sentenced under s. 303 I.P.C. The appeal and the revisions were heard together.
25 of 1953 Moti Lal and companyplainant in S. T. No.
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 companypared and also to see if the two records had on them the writings of their respective accused persons so as to have them also companypared.
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 appellants companynsel.
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.
In that release order his probation period is up to the year 1973, on which the trial companyrt recorded the following order The papers are number relevant unless any document.
The report of the Sessions Judge reads Sir.
The trial was first fixed for April 26 and 27, 1965 when it was number adjourned because the investigating officer Shri Y. K. Singh Pippal, P.W. 5, had to go to Calcutta.
The evidence recorded in this enquiry companysisting 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.
After observing that according to the prosecution and the companyplainant the appellant Pratap had been previously companyvicted under s. 302, P.C. in 1953 and at the time of the companymission 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 number justified in disposing of these applications in this manner.
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.
Complainant in S. T. No.
The High Court , as its final judgment shows, had permitted the Deputy Government Advocate to produce before it material for showing the appellants previous companyviction and the sentence of death imposed on him, which was later companymuted by the Governor, as also his release in accordance with Rule 8 of the U.P. Prisoners Release on Probation Rules.
Phoolarani Moti Lal alias Mutaiyan son of Pooran is the husband of Smt.
On this application the companyrt made the order summon.
Pooran brother of Rati Ram has been examined.
First the appellant stated that he would produce witnesses in defence but later he declined to do so.
Pratap did number cross examine this witness also The Statement of Pratap son of Tula Ram has been recorded.
to the D.M. Hamirrpur regarding the release of this accused on probation of the year 1959.
And you thereby companymitted an offence punishable under section 302, I.P.C. and within the companynizance of the Court of Sessions.
