Sentence/Sentencing: Trial of the appellant-accused for offence under two FIRs – Trial court convicted the accused – In both the cases sentence of rigorous life imprisonment was imposed – In respect of the first case trial court directed that the accused would not be considered for grant of remission till he underwent the actual sentence of 30 years – In respect of the second case trial court directed that the life sentence would start after the life sentence in first case was over and was to continue for the rest of the life of the accused – In High Court counsel for the accused stated that it did not intend to challenge the findings on conviction and confined the challenge to the sentence – High Court discussing the evidence found that the accused was rightly convicted – In respect of life sentences in the two cases High Court held that the sentences could not run consecutively in view of s. 427(2) of Cr.P.C. – Applying the principle of “just deserts” High Court reduced the sentence to the period already undergone i.e. 16 years and 10 months and directed to release the accused forthwith – High Court thereafter, corrected its judgment by deleting the portion, whereby it had reduced the sentence to the period already undergone and had directed release of the accused, as a typographical mistake – In appeal, accused challenged the modification order regarding the sentence and also challenged the conviction – Plea of accused that the statement of the counsel for the accused before High Court for not pressing challenge to his conviction, was made without such instruction from the accused – Held: Court records show that statement was made by the counsel on the instruction from the accused – However, notwithstanding such statement High Court had considered the matter on merit and held that conviction order by trial court was justified – The alteration of the punishment to the period already undergone, was not a typographical mistake – Therefore modification of its order by the High Court was beyond its jurisdiction – In view of s. 427 of Cr.P.C. order of consecutive sentences could not have been passed – However, High Court was not correct in removing the cap of 30 years – Thus, conviction is upheld; the life sentences would run concurrently and the accused would not have a right to seek remission till the completion of 30 years of RI – Code of the Criminal Procedure, 1973 – ss. 31 and
427. Remission of Sentence – Discussed.
Code of Criminal Procedure, 1973: s. 427 – Life sentences – Held: Cannot be given consecutively – They shall run concurrently – Sentence/Sentencing.
Dismissing the appeals filed by the accused and partly allowing those filed by the complainants and the State, the Court HELD: 1.1 It is not correct that Counsel for the appellant had made a statement before the High Court without instructions from the appellant. The High Court records “that the appellant does not press the appeal on merits with respect to the judgment of conviction” and specifically states that the statement is made ‘on instructions’ in this behalf. It is clear from the above that the counsel for the appellant had received the instructions not to press the case on merits. After the judgment was pronounced, at no stage, the appellant took the objection that the aforesaid statement was made without instructions. It is stated for the first time in the present appeals. The Court record has to be believed. If according to the aggrieved party there is some error, the only option with the aggrieved party is to approach that very court, seeking correction of that order. It was not done. Therefore, the Court has to proceed on the premise that the counsel for the appellant had made the aforesaid statement on instructions from the appellant. [Para 20] [636-D-H]
Muthuramalingam and others v. State represented by Inspector of Police (2016) 8 SCC 313 : [2016] 5 SCR
30 – followed.
State of Maharashtra v. Shrinivas Nayak and Another (1982) 2 SCC 463 : [1983] 1 SCR 8 – relied on. Jeetu @ Jitendra and Others v. State of Chhattisgarh (2013) 11 SCC 489 : [2012] 13 SCR 161 – referred to.
1.2 Notwithstanding, the said statement, discussion ensued on merits. The High Court has taken note of the witnesses who were examined by the prosecution to prove its charges in both the cases. The High Court has also taken note of MLC report which was duly proved by the prosecution. It has also gone through the testimony of FSL Expert (Ballistic Expert). Deposition of the police officials who played their part at different stages including investigation has also been taken note of. The testimony of certain other official witnesses is also kept in mind by the High Court with specific reference thereto. On the basis of such discussions, the High Court held that “the trial court based on the testimonies of various witnesses including eyewitness and based on the scientific evidence rightly convicted the appellant under Section 302 of the Indian Penal Code.” [Para 21] [637-A-B, E-F]
2. The Order dated February 14, 2017 deleting two lines from the main judgment dated December 24, 2016 does not stand judicial scrutiny, inasmuch as, by no stretch of imagination it can be treated as typographical error. When the judgment dated December 24, 2016 is read in its entirety on the issue of sentencing, it becomes apparent that the High Court, in its wisdom, thought it proper to modify the order of sentence to the period already undergone. [Para 23] [637-G-H]
3.1 In the first charge sheet in respect of 1st offence the trial court, while imposing sentence of life imprisonment, put a cap of 30 years thereby clearly stating that no remission would be permissible before that. Again, while inflicting life imprisonment in the second case, it stated that the sentence would be for whole life and would start only after completion of the sentence in the first offence. Thus the trial court awarded consecutive sentences. Both the cases were tried together. Conviction was recorded by one common judgment. Likewise sentences were also recorded by one common order. In this backdrop, the High Court has correctly come to conclusion that there was no question of giving consecutive sentences and sentences had to be concurrent. The High Court also specifically referred to Section 427 of CrPC., whereby “ When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.” [Paras 28-29] [639C-E, F-G]
3.2 Remissions are of two types. One type of remission is what is earned by a prisoner under the Prison Rules or other relevant rules. The other remission is by the appropriate Government in exercise of its power under Section 432 of the Criminal Procedure Code. Therefore, when a remission of the substantive sentence is granted under Section 432, then and then only giving credit to the earned remission can take place and not otherwise. Similarly, in the case of a life imprisonment, meaning thereby the entirety of one’s life, unless there is a commutation of such sentence for any specific period, there would be no scope to count the earned remission. The special category of sentence, to be considered in substitute of death penalty by imposing a life sentence i.e. the entirety of the life or a term of imprisonment which can be less than full life term but more than 14 years is beyond application of remission. Section 31 of Cr.P.C. be so interpreted as to prevent any anomaly or irrationality. So interpreted Section 31(1) CrPC must mean that sentences awarded by the court for several offences committed by the prisoner shall run consecutively (unless the court directs otherwise) except where such sentences include imprisonment for life which can and must run concurrently. If more than one life sentences are awarded to the prisoner, the same would get superimposed over each other. This will imply that in case the prisoner is granted the benefit of any remission or commutation qua one such sentence, the benefit of such remission would not ipso facto extend to the other.” Thus, the order of the High Court removing the cap of 30 years is not correct and that portion has to be set aside. [Paras 30 and 31] [639-H; 640-A-D; 641-A-B]
Union of India v. V. Sriharan @ Murugan & Ors. (2016)
7 SCC 1 : 2015 (13) SCALE; Muthuramalingam and others v. State represented by Inspector of Police (2016)
8 SCC 313 : [2016] 5 SCR 30 – followed.
4. The conviction of the appellant is sustained. However, sentences in both the cases shall run concurrently. The net effect thereof would be that the appellant is given life imprisonment in both the cases with the condition that he will have no right to seek remission till the completion of 30 years of rigorous imprisonment. [Para 33] [641-F-G]
Swamy Shraddananda (I) v. State of Karnataka (2007)
12 SCC 288 : [2007] 7 SCR 616; Swamy
Shraddananda (II) v. State of Karnataka (2008) 13 SCC 767 : [2008] 11 SCR 93; Shri Bhagwan v. State of Rajasthan (2016) 6 SCC 296; Union of India v. V. Sriharan @ Murugan & Ors. (2016) 7 SCC 1 : 2015
(13) SCALE; Birju v. State of M.P. (2014) 3 SCC 421 : [2014] 1 SCR 1047; Sumer Singh v. Surajbhan Sing and Ors. [2014 (3) JCC 2282]; State of M.P. v. Babulal AIR 2008 SC 582 : [2007] 12 SCR 795; Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 : [2009] 15 SCR 712; Gopal Singh v. State of Uttarakhand 2013
(2) SCALE 533; Dulla and Ors. v. State AIR 1958 All
198 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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