PARVEEN KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE controversy underlying the question under reference centres around the scope and ambit of Section 303, Indian Penal Code. The said provision is reproduced below: Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death. For proper appreciation of the respective contentions raised on both sides, the relevant facts may be briefly stated.

(2.) PARVEEN Kumar, committed a murder and was convicted under Section 302, Indian Penal Code and awarded life imprisoment by the Sessions Judge. His appeal was dismissed by the High Court on Nov. 2, 1977. Against that decision, special leave petition, vide Special Leave Petition (Criminal) No. 440 of 1978 was admitted by the Supreme Court on March 28, 1978, though the special leave was granted only to the limited extent inasmuch as it was confined to the nature of offence and sentence. The second murder was committed by said Parveen Kumar on Nov. 20, 1977, for which he was tried in the Court of the Sessions Judge, Jullundur, who, by his judgment, dated July 26, 1978, held him guilty of the murder and convicted and awarded him death penalty under Section 303, Indian Penal Code, on the ground that at the time of the award of the sentence and the decision of the case, Parveen Kumar was already undergoing life sentence in connection with the first murder. The Sessions Judge made a reference to the High Court for confirmation of the death sentence (Murder Reference No. 9 of 1978 ). The decision was also challenged on merits by Parveen Kumar in Criminal Appeal No. 878 of 1978. Both the reference and the appeal were heard by the Division Bench on Nov. 29, 1978. According to the decision, it was held that it was proved beyond doubt that Parveen Kumar was guilty of the murder of Vijay Kumar (the second murder) and referred the following question for decision by the Full Bench: Whether such a sentence of imprisonment for life against which an appeal is still pending in any Court can be taken into consideration for the conviction of an offender under Section 303, Indian Penal Code? According to the learned Counsel for the convict-appellant, Section 303, Indian Penal Code, was not attracted to the facts of the present case. It is contended that the expression in the provision "under sentence of imprisonment for life" meant only such a sentence which is "final, conclusive and ultimate so far as the judicial remedies are concerned. " If a sentence of life imprisonment was defeasible and was liable to be annulled in appeal, revision or any other judicial proceeding under the law, the same cannot be within the ambit of Section 303, Indian Penal Code. As the life sentence awarded to the convict-appellant was under challenge before the Supreme Court and is liable to be set aside or reduced, he cannot be awarded capital punishment as envisaged under Section 303, Indian Penal Code. As against this, the contention of the learned Counsel for the State is that if the life sentence awarded in the first murder case was operative and, executable at the time when the decision in the second murder case is to be announced whether by the trial Court or the Appellate Court or, as a matter of fact, by any Court, Section 303, Indian Penal Code, was positively attracted and there was no discretion left with the Court concerned but to award the capital punishment. It was also stressed that the fact that the life sentence in the first murder case was still under challenge, was immaterial for the purpose. The counsel on both sides, in support of their respective contentions, have relied upon the decision of their Lordships of the Supreme Court in Dilip Kumar Sharma v. State of Madhya Pradesh. In the said case, the main judgment was rendered by Chandrachud, J. , (now the Chief Justice ). A separate judgment was also given by Sarkaria, J. The learned Counsel for the convict-appellant has mainly relied upon the judgment by Sarkaria, J. , whereas the contentions by the learned Counsel for the State are sought to be supported by the main judgment. Both these judgments thus need close and exhaustive consideration for arriving at the correct conclusion in order to interpret the scope and ambit of Section 303, Indian Penal Code.

(3.) IN Dilip Kumar's case (supra), one Rohitsingh was sentenced to life imprisonment by the Sessions Court on May 18, 1972, for the first murder committed on Oct. 24, 1971. At the time when he committed the second murder and when he was convicted and sentenced to death under Section 303, Indian Penal Code, by the Sessions Judge, the life sentence awarded to him in the first murder was still in operation. However, he was acquitted by the High Court of Madhya Pradesh in appeal in the first murder case on Feb. 7, 1974. On the same day, the High Court heard the appeal in the second murder case and dismissed the same irrespective of his acquittal in the first murder. According to Chandrachud, J. , the decision by which the Sessions Judge in the second murder case convicted and sentenced Rohitsingh under Section 303, Indian Penal Code, was unexceptionable as the convict was already undergoing sentence of imprisonment in the first murder case. However, when the High Court heard the appeal against the decision of the Sessions Judge, the position had undergone a drastic change inasmuch as the convict had already been acquitted in appeal in the first murder case. In para 6 of the judgment, the following categorical observations are significant: