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Tuesday, December 10, 2013

Section 31 of Cr.P.C. - the sentences imposed were ordered to run consecutively - not run concurrently on ground of previous criminal history - offences done in single transaction - Confirmed by High court - Apex court held No = Manoj @ Panu ... Appellant vs. State of Haryana ... Respondent = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41057

 Section 31 of Cr.P.C. - the sentences imposed were ordered to  run consecutively - not run  concurrently on ground of previous criminal history - offences done in single transaction - Confirmed by High court - Apex court held No =

Whether the sentences imposed were ordered to  run
consecutively on the ground that the accused Manoj was  a  previous  convict
for committing an  identical  offence  and  in  the  present  case,  he  has
committed a very heinous crime of shooting in the court premises  and  thus,
it was ordered that the sentences imposed on him shall not run  concurrently
and the substantive sentences imposed on him shall run consecutively, is maintainable ?   =    

The courts below failed to consider the settled legal position and also  the
provisions of Section 31 of Cr.P.C. and the  decision  in  Chatar  Singh  v.
State of M.P.[1] wherein it was observed that in a sentence  for  conviction
for several offences, accused cannot be  sentenced  to  imprisonment  for  a
period longer than 14 years.  Therefore,  the  order  passed  by  the  lower
courts in sentencing the appellant for  more  than  14  years  is  not  only
perverse but also illegal and is liable to be set aside.

      Reliance was also placed upon the judgment  in  Mohd.  Akhtar  Hussain
alias Ibrahim Ahmed Bhatti v.   Asst.  Collector  of  Customs  (Prevention),
Ahmedabad & Anr.[2] in support of the proposition of law laid down  by  this
Court on the issue of concurrent  or  consecutive  sentences,  the  relevant
portion of which is extracted hereunder :

      “10. The basic rule of thumb over the years has  been  the  so  called
      single  transaction  rule  for  concurrent  sentences.  If   a   given
      transaction constitutes two offences under two  enactments  generally,
      it is wrong to have consecutive sentences…”




The same position of law was adopted by this Court in the case of  State  of
Punjab v. Madan Lal[3] by observing in para 5 that :-
   “5. The majority view in State of Maharashtra  v.  Najakat  Alia  Mubarak
   Ali[4] was to the similar effect.  It was held in para 17 as follows:


       “17. In the above context, it is apposite  to  point  out  that  very
      often it happens, when an accused  is  convicted  in  one  case  under
      different counts of offences  and  sentenced  to  different  terms  of
      imprisonment under each such count, all such sentences are directed to
      run concurrently. The idea behind it is that the  imprisonment  to  be
      suffered by him for one count of offence will, in fact and  in  effect
      be imprisonment for other counts as well.”

       

    The ground  on
which the appellant was awarded the sentence which was to run  consecutively
was due to the previous criminal record of the appellant for a similar  type
of offence of shooting in the court premises, which  charge  was  proved  as
per Ex. P-1. 
This is the basis on  which  the  trial  court  considered  the
extenuating  circumstances  into  consideration  to  impose  punishment  for
offences committed by the appellant, sentencing  him  to  different  periods
for each one of the offences committed by him. 
The  sentences  were  ordered
to run consecutively, and the same was upheld by the High Court in  exercise
of its appellate jurisdiction. 
In view of the aforesaid legal position  laid
down by this Court  regarding  concurrent  and  consecutive  sentences,  the
sentences  imposed  upon  the  appellant  for  different  offences  to   run
consecutively under the IPC and the Arms Act, are erroneous in law,  as  the
same are contrary to law laid down by this Court as per the  cases  referred
to supra upon which reliance has been rightly placed by the  learned  senior
counsel on behalf of the appellant.

12.   Further, having regard to the age of the  appellant  at  the  time  of
committing the offences, we feel it would not be just and  proper  to  allow
the sentences to  run  consecutively.  
As  the  offences  committed  by  the
appellant have been  committed  under  a  single  transaction,  it  is  well
settled position of law that the sentences must  run  concurrently  and  not
consecutively.

  NON - REPORTABLE

           IN THE SUPREME COURT OF INDIA         CRIMINAL APPELLATE
                                JURISDICTION


                      CRIMINAL APPEAL NO. 2063 of 2013
               (Arising out of S.L.P. (Crl.) No. 7707 OF 2013)


Manoj @ Panu                                 ... Appellant

                vs.

State of Haryana                        ... Respondent





                               J U D G M E N T



V. Gopala Gowda, J.

      Leave granted. The application for bail is rejected.

2.    This  appeal  is  filed  by  the  appellant–Manoj  against  the  final
judgment and order dated 13.05.2013 passed by the High  Court  of  Punjab  &
Haryana at Chandigarh in Criminal Appeal No. 1357-SB  of  2007  whereby  the
High Court has confirmed the conviction and sentence passed by  the  learned
Additional Sessions Judge (Fast Track Court), Bhiwani in Sessions  Case  No.
21-RBT of 2006  dated 23.04.2007 for the offences punishable  under  Section
307 of Indian Penal Code, 1860 (I.P.C. in short) and Sections 25 and  27  of
the Arms Act and sentenced the appellant-Manoj as under:-

|Under Section 307, IPC            |Rigorous imprisonment for a period|
|                                  |of ten years and to pay fine of   |
|                                  |Rs.5000/-. In default of payment  |
|                                  |of fine to further undergo        |
|                                  |rigorous imprisonment for a period|
|                                  |of six months.                    |
|Under Section 25 of Arms Act      |Rigorous imprisonment for a period|
|                                  |of three years and to pay fine of |
|                                  |Rs.2000/-. In default of payment  |
|                                  |of fine to further undergo        |
|                                  |rigorous imprisonment for a period|
|                                  |of two months.                    |
|Under Section 27 of Arms Act      |Rigorous imprisonment for a period|
|                                  |of three years and to pay fine of |
|                                  |Rs.2000/-. In default of payment  |
|                                  |of fine to further undergo        |
|                                  |rigorous imprisonment for a period|
|                                  |of two months.                    |


The sentences were ordered to run consecutively in terms of  Section  31  of
Cr.P.C.

3.    The case of the prosecution is that on 10.08.2005, when Satender  (PW-
7), with other accused persons in  some  other  case,  was  being  taken  to
judicial lock-up by the complainant-Head Constable Ram Kishan (PW-11)  after
producing him in the court of Additional Sessions Judge,  Bhiwani,  a  voice
was heard saying “Manoj, Anil is going, shoot him”. Thereafter, a  boy  shot
Satender from the back side and the shot hit Satender on  his  right  thigh.
The assailants were chased and  the  person  who  had  fired  the  shot  was
allegedly apprehended at the spot with a pistol. On inquiry,  his  name  was
disclosed as Manoj @ Panu. On the basis of the statement of  Head  Constable
Ram Kishan the PW-11, FIR No. 136 of 2005 for  offences  under  Section  307
IPC and under Sections 25 and 27 of the  Arms  Act  was  registered.  During
investigation, it was found that it was  a  case  of  mistaken  identity  as
Satender (PW-7) was shot in place of one  Anil.  The  injured  Satender  was
sent for  treatment  at  Government  Hospital,  Bhiwani.  After  preliminary
treatment, he was referred to PGIMS, Rohtak.

4.    On 23.08.2005 the  injured  Satender  gave  his  statement  (Exh.  DA)
stating that on 10.08.2005 he was brought to the District Court, Bhiwani  as
under trial in the murder case of one Ramesh Masta. After his attendance  in
the court he was heading towards judicial lock-up with  PW-11.  On  reaching
the gate of the court PW-11 saw Pawan Masta alias  Munna  S/o  Ramesh  Masta
and Rohtash Sharma (father-in-law  of  Ramesh  Masta)  and  a  boy  who  was
standing in front of them.  All the above  three  pointed  towards  Satender
saying he is the same boy. On this, the fourth boy present with  them  fired
three shots at Satender (PW-7). Thereafter, all  the  three  raised  fingers
and asked if result is seen, “Anjam dekh lia?”

5.    The co-accused Sudhir was arrested by  the  police  on  31.8.2005.  On
30.10.2005 the charge-sheet under  Section  173  Cr.P.C.  was  prepared  and
submitted in the  court  of  Illaqa  Magistrate.  The  District  Magistrate,
Bhiwani issued sanction order on 31.10.2005 under Section  39  of  the  Arms
Act pertaining to a pistol of .315 bore. It was also noted in  the  sanction
order that the said pistol was recovered from the appellant. On  14.12.2005,
the matter was committed for trial to the court of the Sessions  Judge.  The
prosecution listed 28  witnesses  to  be  examined  against  the  appellant.
However, the prosecution examined only 13 witnesses dropping 15 witnesses.

6.     The  learned  Sessions  Judge  vide  his  judgment  and  order  dated
23.04.2007 convicted the appellant under Section 307  IPC  and  Sections  25
and 27 of the Arms Act and acquitted all  the  other  accused  persons.  The
Sessions Judge held that from every angle, the prosecution has  successfully
proved the guilt of the accused for the offence under  Section  307  of  the
IPC, and that he has  fired  two  shots  at  Satender  with  the  intent  of
committing murder and as for offences under Sections 25 and 27 of  the  Arms
Act, it was observed that it has been sufficiently  proved  on  record  that
the accused Manoj was apprehended on the spot with a  pistol  along  with  4
live cartridges.  The learned Sessions  Judge  vide  order  dated  23.4.2007
passed the order of sentence  and  the  appellant  was  ordered  to  undergo
rigorous imprisonment for 10 years under Section 307,  IPC  and  to  pay   a
fine of Rs.5000/- and in default of payment  of  fine,  to  undergo  further
rigorous imprisonment for six months,  and  3  years  rigorous  imprisonment
each under Sections 25 and 27 of the Arms Act and to pay a fine of Rs.2000/-
 each and in  default  of  payment  of  fine  to  undergo  further  rigorous
imprisonment for two months each. The sentences imposed were ordered to  run
consecutively on the ground that the accused Manoj was  a  previous  convict
for committing an  identical  offence  and  in  the  present  case,  he  has
committed a very heinous crime of shooting in the court premises  and  thus,
it was ordered that the sentences imposed on him shall not run  concurrently
and the substantive sentences imposed on him shall run consecutively.

7.    Being aggrieved by the same, the appellant filed Criminal  Appeal  No.
1357-SB of 2007 before the High Court of Punjab & Haryana at Chandigarh.

8.    The High Court vide judgment and order dated 13.5.2013  dismissed  his
appeal and confirmed the conviction and sentence passed by the  trial  court
observing that the facts and circumstances of the case do not  persuade  the
court to show any mercy in the matter of sentence on the accused as  he  has
a tendency  of  repeating  commission  of  similar  offences  in  the  court
premises. It was further stated that the accused cannot be permitted to  use
the court premises as a battle ground, and  the  trial  court  having  given
cogent reasons for the sentences to run consecutively in  terms  of  Section
31 of the CrPC, the  High  Court  was  totally  disinclined  to  reduce  the
sentence or to lift the consecutive sentences passed  by  the  trial  court.
Hence, the accused filed this appeal urging various grounds  in  support  of
the questions of law raised by him.

9.    The grounds urged by the learned senior counsel for the appellant  Mr.
U.U. Lalit are stated hereunder :-

      It was submitted that the courts below have committed a grave error of
law by convicting the appellant despite the  prosecution  having  failed  to
prove the case against the appellant and having not  considered  the  tender
age of 18 years of the appellant as also  that  the  appellant  has  already
undergone almost six years of imprisonment. He also contended  that  as  per
the law laid down by this Court the punishment  and  sentence  for  offences
under a single transaction should have run  concurrently  and  that  in  the
present case, the firing incident pertains to a single  FIR,  and  that  the
courts below failed to understand that the consecutive sentences awarded  in
the present case are disproportionate to the facts.

      The learned senior counsel for the appellant  further  contended  that
the courts below failed to consider the settled legal position and also  the
provisions of Section 31 of Cr.P.C. and the  decision  in  Chatar  Singh  v.
State of M.P.[1] wherein it was observed that in a sentence  for  conviction
for several offences, accused cannot be  sentenced  to  imprisonment  for  a
period longer than 14 years.  Therefore,  the  order  passed  by  the  lower
courts in sentencing the appellant for  more  than  14  years  is  not  only
perverse but also illegal and is liable to be set aside.

      Reliance was also placed upon the judgment  in  Mohd.  Akhtar  Hussain
alias Ibrahim Ahmed Bhatti v.   Asst.  Collector  of  Customs  (Prevention),
Ahmedabad & Anr.[2] in support of the proposition of law laid down  by  this
Court on the issue of concurrent  or  consecutive  sentences,  the  relevant
portion of which is extracted hereunder :

      “10. The basic rule of thumb over the years has  been  the  so  called
      single  transaction  rule  for  concurrent  sentences.  If   a   given
      transaction constitutes two offences under two  enactments  generally,
      it is wrong to have consecutive sentences…”




The same position of law was adopted by this Court in the case of  State  of
Punjab v. Madan Lal[3] by observing in para 5 that :-
   “5. The majority view in State of Maharashtra  v.  Najakat  Alia  Mubarak
   Ali[4] was to the similar effect.  It was held in para 17 as follows:


       “17. In the above context, it is apposite  to  point  out  that  very
      often it happens, when an accused  is  convicted  in  one  case  under
      different counts of offences  and  sentenced  to  different  terms  of
      imprisonment under each such count, all such sentences are directed to
      run concurrently. The idea behind it is that the  imprisonment  to  be
      suffered by him for one count of offence will, in fact and  in  effect
      be imprisonment for other counts as well.”



10.   On the other hand,  Mr.  Manjit  Singh,  Additional  Advocate  General
appearing for the  respondent-State  has  sought  to  justify  the  impugned
judgment contending that the High Court on re-appreciation  of  evidence  on
record has rightly concurred with the  findings  of  fact  recorded  on  the
points raised and not interfered with the sentence imposed  by  the  learned
Sessions Judge and, therefore, the same does not call  for  interference  by
this Court.

11.   We have heard the learned counsel for both the parties.
The ground  on
which the appellant was awarded the sentence which was to run  consecutively
was due to the previous criminal record of the appellant for a similar  type
of offence of shooting in the court premises, which  charge  was  proved  as
per Ex. P-1.
This is the basis on  which  the  trial  court  considered  the
extenuating  circumstances  into  consideration  to  impose  punishment  for
offences committed by the appellant, sentencing  him  to  different  periods
for each one of the offences committed by him.
The  sentences  were  ordered
to run consecutively, and the same was upheld by the High Court in  exercise
of its appellate jurisdiction.
In view of the aforesaid legal position  laid
down by this Court  regarding  concurrent  and  consecutive  sentences,  the
sentences  imposed  upon  the  appellant  for  different  offences  to   run
consecutively under the IPC and the Arms Act, are erroneous in law,  as  the
same are contrary to law laid down by this Court as per the  cases  referred
to supra upon which reliance has been rightly placed by the  learned  senior
counsel on behalf of the appellant.

12.   Further, having regard to the age of the  appellant  at  the  time  of
committing the offences, we feel it would not be just and  proper  to  allow
the sentences to  run  consecutively.  
As  the  offences  committed  by  the
appellant have been  committed  under  a  single  transaction,  it  is  well
settled position of law that the sentences must  run  concurrently  and  not
consecutively.

13.   Hence, the appellant is entitled to the relief as prayed for  in  this
case  and  the  sentences  are  modified  to  run   concurrently   and   not
consecutively   and for this reason, we  hold  that  the  sentence  must  be
reduced to 10 years in total with regard to the aforesaid  settled  position
of law, as also keeping in view the tender age of the appellant on the  date
of the offence.

14.   The appeal is partly allowed in  the  above  terms  by  modifying  the
judgment of the High Court, by reducing the sentence to 10 years  in  total,
the remainder of which he must serve.





                             …………………………………………………………………J.
                     [SUDHANSU JYOTI MUKHOPADHAYA]


                        ……………………………………………………………………J.
                                  [V. GOPALA GOWDA]



New Delhi,
December 9, 2013

-----------------------
[1]     (2006) 12 SCC 37
[2]    (1988) 4 SCC 183
[3]    (2009) 5 SCC 238
[4]    (2001) 6 SCC 311


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