Judgement

BEG, J. : - This is an application for review of an order passed by us on 19-1-1974* on a Criminal Appeal by special leave.

2. The applicant had been tried together with his father Jamuna Prasad and step-mother Kalawati Devi, and convicted for the murder of his wife Chanda Devi, who, it was alleged, had frequent quarrels with Kalwati. The applicant and his father and certain other persons were also charged under Section 201, Indian Penal Code for disposing of the body of Chanda Devi after the murder knowing that she had been murdered.

3. The trial Court convicted the applicant Sawal Das, his father Jamuna Prasad, and his step-mother Kalawati for the offence of murder under Section 302 read with Section 34, I.P.C. and sentenced each of them to rigorous imprisonment for life. The applicant and his father were also convicted under Section 201, I.P.C. but no separate sentences were imposed upon them for this offence "in view of the fact that they had been sentenced under Sections 304/34, I.P.C."

4. The High Court, on an appeal by convicted persons, set aside the convictions of Kalawati for both offences and order her to be set at liberty. It also allowed the appeal of Jamuna Prasad the father of the applicant to the extent that it set aside his conviction under Sections 302/34, I.P.C. but it maintained his conviction under Section 201, I.P.C., and sentenced him to three years rigorous imprisonment. It converted the conviction of the applicant under Sections 302/34 I.P.C. to a conviction under Section 302, I.P.C. simpliciter and maintained the sentence of life imprisonment in the following terms :

"The appeal of appellant Sawal Das is dismissed maintaining his conviction and sentence under Section 201, Indian Penal Code and also maintaining the sentence upon him for the offence of murder but altering the conviction from Sections 302/34, to 302, Indian Penal Code simpliciter. The sentences will run concurrently as already decided by the Court below."

5. Apparently, the High Court was under the erroneous impression that the applicant Sawal Das had been not only convicted but also sentenced by the trial Court under Section 302, I.P.C. as well as under Section 201, I.P.C. The trial Court as already observed, had neither passed a separate sentence under Section 201, I.P.C. upon the applicant nor indicated what it could be. It overlooked that, according to law, a separate sentence ought to be passed for each offence even if sentences are made concurrent because a Court may, as it has in this case, set aside a conviction so that the need for a separate sentence must necessarily arise in such an event.

6. This Court dismissed the application of applicant s father Jamuna Prasad for leave to appeal against his conviction and sentence under Section 201, I.P.C. It also refused leave to the applicant to contest any point beyond the correctness of his conviction and sentence under Section 302, I.P.C. This Court, after having considered the uncertainties, arising from the facts found, as to whether all the three persons accused of murder or only one of them, and, if so, which of them, committed acts which could fasten the liability for murder upon him or her singly, came to the conclusion that the applicant must get the benefit of that uncertainty as the charge under Section 34, I.P.C. had failed. It could not be definitely said whether the applicant had actually taken part, and, if so, what that was, in murdering his wife Chanda Devi. Nevertheless, this Court was convinced that a murder of Chanda Devi had been committed after the applicant, his father, and his stepmother were seen following her into a room in their house. No one had said what actually took place inside it.

7. As a necessary consequence of setting aside the conviction of the applicant under Section 302, I.P.C., while affirming his conviction under Section 201, I.P.C., as no special leave to appeal was granted against his conviction, this Court had to dispose of the case by pas