- (1.) The appellant was tried by the learned Sessions Judge, Puri, under S. 302, 352 and 323 of the Penal Code. The main charge against the appellant was that on 21/01/1972 he committed the murder of his adoptive brother Khetra Mohan Mohanty. The learned Sessions Judge convicted the appellant under S. 302 and sentenced him to imprisonment for life. The appellant filed an appeal against that judgment and the High court of orissa, Cuttack, issued a notice to the appellant asking him to show cause why the sentence should not be enhanced. The appeal was thereafter heard by a Division Bench which confirmed the conviction of the appellant under S. 302 and enhanced the sentence to death. This appeal, by special leave, is directed against the judgment of the High court, but the special leave is restricted to the question of sentence.
(2.) Mr. Nandy, appearing on behalf of the appellant argues that the prosecution has not established its case beyond a reasonable doubt but such an argument is not open to him because the special leave was granted by this court on the question of sentence only.
(3.) The main argument advanced' by the learned Counsel on thequestion of sentence is that the sessions court having exercised its discretion in awarding to the appellant the sentence of imprisonment for life, the High court was not justified in interfering with that discretion and in enhancing the sentence to death. It is urged that the State government had not filed any application for the enhancement of sentence and that also was a reason why the High court should have been slow to interfere with the discretion exercised by the Sessions Judge.;