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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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