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Saturday, January 10, 2015

The sentences imposed on the appellant could be ordered to be run concurrently = CRIMINAL APPEAL NO. 2387 OF 2014 (Arising out of SLP (Crl.) No. 2487/2014) O.M. CHERIAN @ THANKACHAN …..Appellant Versus STATE OF KERALA & ORS. ….Respondents


                        IN THE SUPREME COURT OF INDIA


                      CRIMINAL APPEAL NO. 2387  OF 2014
                  (Arising out of SLP (Crl.) No. 2487/2014)

O.M. CHERIAN @ THANKACHAN                   …..Appellant


STATE OF KERALA & ORS.                          ….Respondents

                               J U D G M E N T

R. Banumathi, J.

            Leave granted.
2.          This appeal arises out of the judgment dated  27.11.2013  passed
in Crl. Appeal No. 910/2006  by which the High  Court  of  Kerala  confirmed
the conviction of the appellant/1st accused under Sections 498A and 306  IPC
and also the sentence of imprisonment imposed on him.
3.          Briefly stated, case  of  the  prosecution  is  that  the    1st
accused married Lillikutty and their marriage was  solemnized  on  11.2.1988
and they continued their stay in House bearing No. MP. VIII/84 of  Karulayai
Amsom along with other accused, who are the father, mother  and  brother  of
the appellant.  The allegation levelled is that in  the  matrimonial  house,
the  appellant/1st  accused  and  other  accused  ill-treated  and  tortured
Lillikutty, compelling her to take the extreme step of  putting  an  end  to
her life by committing suicide.  During the marital life, Lillikutty  had  a
premature delivery.  When she became pregnant again in 1993, it  is  alleged
that   A-1 provided her with some tablets and Lillikutty had a  miscarriage.
 During her marital life Lillikutty delivered  a  child  who  did  not  live
long. On 23.2.1996 Lillikutty poured kerosene oil on herself and also  drank
some, which was later cleared away.  On  23.2.1996,  a  mediation  talk  had
been scheduled and PW-1 and the relatives of Lillikutty were also to  attend
the mediation talks but  when  the  meeting  was  so  scheduled,  Lillikutty
committed  suicide  by  hanging.  On  the  first  information  by  PW-1,   a
neighbour of  the  accused,  law  was  set  in  motion.  Initially  FIR  was
registered for unnatural death under Section 174 Cr.P.C. and  on  subsequent
complaint,  the same was altered to one for the  offences  punishable  under
Sections 498A and 306 IPC.  PW-4 conducted autopsy and submitted  the  post-
mortem  report.   PW-14,   investigating   officer,   had   taken   up   the
investigation and seized the documents and  material  objects  and  examined
the witnesses and laid the charge sheet  against  the  appellant  and  other
accused.  In the trial court, PWs 1 to 15 were examined and Exs. P-1  to  P-
25 were marked and MOs 1 to 18 were identified. The accused were  questioned
under Section 313 Cr.P.C. and they denied  all  the  incriminating  evidence
and circumstances brought out in evidence against them.
4.          Upon consideration of evidence, the trial  court  convicted  the
appellant/1st accused under Section 498A IPC and sentenced  him  to  undergo
two years of rigorous imprisonment and to pay a fine of  Rs.5,000/-  and  in
default of payment of fine, to undergo further  imprisonment  of  one  year.
For the offence punishable under Section 306 IPC, the trial court  sentenced
him to undergo rigorous imprisonment for seven years and to pay  a  fine  of
Rs.50,000/-  and  in  default  of  payment  of  fine,  to  undergo   further
imprisonment of three years.  The substantive  sentences  of  the  appellant
were ordered to run consecutively.  Accused 2  to  4  were  convicted  under
Section 498A IPC and were sentenced to undergo imprisonment  for  two  years
and to pay fine of Rs. 5,000/- with default clause of one  year.   The  High
Court confirmed  the  conviction  and  also  the  sentence  of  imprisonment
imposed upon all the accused.
5.          Being aggrieved, the appellant/1st accused  has  preferred  this
appeal.  This Court issued  notice  only  on  the  limited  question  as  to
whether the sentence can be made to run  concurrently,  instead  of  running
consecutively.  This Court by order dated 18.7.2014  observed  that  Section
31 Cr.P.C. was not noticed by this  Court  in  Mohd.  Akhtar  Hussain  alias
Ibrahim  Ahmed  Bhatti  vs.  Asstt.  Collector  of   Customs   (Prevention),
Ahmedabad & Anr. (1988) 4 SCC 183 and referred the matter to  be  considered
by a larger Bench in order to settle the law and thus, the matter is  before
us. The order of Reference is as follows:
“The  petitioner  herein  was  concurrently  convicted  for  offences  under
Section  498A  and  Section  306  IPC  and  sentenced  to  undergo  rigorous
imprisonment for 2 years and 7 years  respectively  on  the  above-mentioned
two counts apart from paying certain amounts of fine, the details  of  which
may not be necessary.

Both the Courts directed that the sentences should run consecutively.

By an order dated 31st March, 2014, notice was issued limited  only  to  the
question whether the direction whereby the sentences  were  ordered  to  run
consecutively is legally tenable.

Learned counsel for the petitioner has placed reliance on the  judgments  of
this  Court  in  Mohd.  Akhtar  Hussain   alias  Ibrahim  Ahmed  Bhatti  vs.
Assistant Collector of Customs (Prevention), Ahmedabad and Another (1988)  4
SCC 183 and Manoj alias Panu vs. State of  Haryana  (2014)  2  SCC  153  and
argued that when an accused is found guilty of more than one offence at  the
same  trial,  though   separate  conviction  is  recorded  on  each  of  the
different charges and different sentences are imposed,  such  sentences  are
required to be directed to run concurrently.

This Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti  case  (supra)
at para (10) held as under:

    ‘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.  It is proper and legitimate to have  concurrent
sentences. But this rule has no application if the transaction  relating  to
offences is not the same or the facts  constituting  the  two  offences  are
quite different.”

In Manoj  alias Panu vs.  State  of  Haryana  (supra)     the  Bench  simply
followed the earlier judgment.

From the judgment in Mohd. Akhtar Hussain alias Ibrahim  Ahmed  Bhatti  case
(supra), it appears that Section 31 of the  Criminal Procedure Code was  not
noticed by this Court when this Court observed as extracted above.

Section 31 (1) of the Cr. P.C. reads as follows:-

31. Sentence in cases of conviction  of   several  offences  at  one  trial.
‘(1) When a person is convicted at one trial of two or  more  offences,  the
Court may, subject to the provisions of Section 71 of the Indian Penal  Code
(45 of 1860), sentence  him for such  offences, to the several   punishments
prescribed  therefore  which  such  Court  is  competent  to  inflict;  such
punishments when consisting of imprisonment to commence the  one  after  the
expiration of the other in such order as the Court may  direct,  unless  the
Court directs that  such punishments shall run concurrently.’


Therefore, the statutory stipulation is clear  that  normally  sentences  in
such cases are to run consecutively.

Hence we find it difficult for us to accept the statement  of  law  made  in
the above mentioned two cases. We, therefore, deem it appropriate  that  the
matter be considered by a Bench of appropriate strength to settle  the  law.
We direct the Registry to place the papers before Hon’ble the Chief  Justice
of India for appropriate orders.”

6.          Learned counsel for the appellant Mr. Jayanth Muthraj  contended
that when a person is convicted at one  trial  for  two  or  more  offences,
Section 31 Cr.P.C. vests a discretion  in  the  Court  to  direct  that  the
punishment shall run concurrently and in the present case  the  trial  court
and the appellate court  have  not  properly  exercised  such  discretionary
power vested in them.   Learned counsel submitted that the section  provides
that where several sentences are imposed for  two  or  more  offences,  such
sentences will run one after the other  in  such  order  as  Court  directs,
unless the  Court  directs  running  of  punishments  concurrently  and  the
Court’s discretion to order concurrent running of sentences is  not  in  any
manner restricted.  It was contended that there  is  no  reason  to  presume
that general rule is that  sentences  will  run  one  after  the  other  and
exception is that punishments will run concurrently.   He further  submitted
that the judicial guideline  in  Mohd.  Akhtar  Hussain  is  in  no  way  in
conflict with Section 31 Cr.P.C.
7.          We have heard Ms. Bina Madhavan learned  counsel  appearing  for
the respondent–State of Kerala also, who supported the  view  taken  by  the
courts below. Learned counsel placed reliance  on  the  recent  judgment  of
this Court in Duryodhan Rout v. State of Orissa, 2014 (8) SCALE 96.
8.          We have given our thoughtful consideration  to  the  matter  and
perused the materials on record.
9.          Section 31 Cr.P.C. relates to the  quantum  of  punishment  that
the court has jurisdiction to pass where the accused is  convicted  for  two
or more offences at one trial.  Section 31 Cr.P.C.  reads as follows:-
“S.31. Sentence in cases of conviction of several offences  at  one  trial..
–(1) When a person is convicted at one trial of  two or more  offences,  the
Court may, subject to the provisions of Section 71 of the Indian Penal  Code
(45 of 1860), sentence him for such offences, to  the   several  punishments
prescribed  therefor which such   Court   is  competent   to  inflict;  such
punishments when consisting of imprisonment to commence the  one  after  the
expiration of the other in such order as the Court may  direct,  unless  the
Court directs  that such punishments shall run concurrently.

(2)   In the case of consecutive  sentences, it shall not be  necessary  for
the Court  by reason only  of  the  aggregate  punishment  for  the  several
offences being in excess  of  the  punishment   which  it  is  competent  to
inflict  on conviction of a single   offence,  to  send   the  offender  for
trial before a higher Court:

Provided that—

in no case shall such person be sentenced   to  imprisonment  for  a  longer
period than fourteen years;

the aggregate punishment  shall  not exceed twice  the amount of  punishment
 which the Court  is competent to inflict  for a single  offence.

(3)   For the purpose of appeal by a convicted person, the aggregate of  the
consecutive sentences passed against him under this section shall be  deemed
to be a single sentence.”

10.         Section 31 Cr.P.C. relates to the quantum  of  punishment  which
may be legally passed when there  is          (a)  one  trial  and  (b)  the
accused is convicted of “two or more offences”.   Section  31  Cr.P.C.  says
that subject to the provisions of Section 71 IPC, Court  may  pass  separate
sentences for two or more offences of which the  accused  is  found  guilty,
but the aggregate punishment must not exceed the limit fixed in the  proviso
(a) and (b) of sub-section (2) of Section  31  Cr.P.C.    In  Section  31(1)
Cr.P.C., since  the word “may” is used, in  our  considered  view,   when  a
person is convicted for two or more  offences at one trial,  the  court  may
exercise  its discretion in directing that  the  sentence for  each  offence
may either run consecutively or concurrently subject to the  provisions   of
Section  71 IPC.   But the aggregate  must not  exceed the limit   fixed  in
proviso  (a) and (b) of sub-section (2) of Section 31 Cr.P.C. that is –  (i)
 it should not exceed 14 years and (ii) it cannot exceed twice  the  maximum
imprisonment  awardable  by the sentencing court  for a single  offence.
11.         The words “unless the court directs that such punishments  shall
run concurrently” occurring in sub-section  (1)  of  Section  31,   make  it
clear that Section 31 Cr.P.C.  vests a discretion in  the  Court  to  direct
that the punishment shall run concurrently, when the accused  is   convicted
at one trial for two or more  offences.  It  is  manifest  from  Section  31
Cr.P.C. that the Court has the power and discretion  to  issue  a  direction
for concurrent running of the sentences when the  accused  is  convicted  at
one trial for two or more  offences.   Section  31  Cr.P.C.  authorizes  the
passing of  concurrent  sentences  in  cases  of  substantive  sentences  of
imprisonment.  Any sentence of imprisonment in default of fine has to be  in
excess of, and not concurrent with, any other sentence  of  imprisonment  to
which the convict may have been sentenced.
12.          The words  in  Section  31  Cr.P.C  “….sentence  him  for  such
offences, to the several punishments prescribed therefor  which  such  Court
is competent to inflict; such punishments when  consisting  of  imprisonment
to commence the one after the expiration of the other in such order  as  the
Court may direct” indicate that in case, the Court directs sentences to  run
one after the other, the Court  has  to  specify  the  order  in  which  the
sentences  are  to  run.   If  the  Court  directs  running   of   sentences
concurrently,  order  of  running  of  sentences  is  not  required  to   be
mentioned.   Discretion  to  order  running  of  sentences  concurrently  or
consecutively is judicial discretion of the Court which is to  be  exercised
as per established law of  sentencing.   The  court  before  exercising  its
discretion under Section 31 Cr.P.C.  is required to  consider  the  totality
of the facts and circumstances  of those offences against the accused  while
deciding whether sentences are to run consecutively or concurrently.
13.         Section 31 (1) Cr.P.C. enjoins a further direction by the  court
to specify the order in which one particular sentence shall  commence  after
the expiration of the other.   Difficulties arise  when  the  Courts  impose
sentence of imprisonment for life and also  sentences  of  imprisonment  for
fixed term.  In such cases, if the Court does not direct that the  sentences
shall run  concurrently,  then  the  sentences  will  run  consecutively  by
operation of Section 31 (1) Cr.P.C.  There is no  question  of  the  convict
first undergoing the  sentence  of  imprisonment  for  life  and  thereafter
undergoing the rest of the sentences of imprisonment for fixed term and  any
such direction would be unworkable.  Since  sentence  of  imprisonment   for
life  means jail till   the  end  of   normal  life   of  the  convict,  the
sentence  of  imprisonment  of   fixed   term   has   to   necessarily   run
concurrently  with life imprisonment.  In such case, it will be in order  if
the Sessions Judges exercise  their  discretion  in  issuing  direction  for
concurrent running of sentences.     Likewise  if  two  life  sentences  are
imposed on the convict, necessarily, Court has to direct those sentences  to
run concurrently.
14.         The opening words “in the case of consecutive sentences” in sub-
section (2) of Section 31  Cr.P.C.  make  it  clear  that  this  sub-section
refers to  a  case  in  which  “consecutive  sentences”  are  ordered.   The
provision says that if  an aggregate  punishment  for several  offences   is
found to be in excess of   punishment  which the  Court   is  competent   to
inflict  on a conviction of single offence, it shall not  be  necessary  for
the  Court  to   send  the  offender  for  trial  before   a  higher  court.
Proviso (a) is added to sub-section (2) of Section 31 Cr.P.C. to  limit  the
aggregate of sentences - that in  no  case,  the  aggregate  of  consecutive
sentences passed against an accused shall exceed fourteen years.   “Fourteen
years rule” contained in clause  (a)  of  the  proviso  to  Section  31  (2)
Cr.P.C. may not be applicable in relation to sentence  of  imprisonment  for
life, since imprisonment for life means the  convict  will  remain  in  jail
till the end of his normal life.
15.         In Ramesh Chilwal vs. State of Uttarakhand (2012)  11  SCC  629,
the accused was convicted under Section 302 IPC  and  sentenced  to  undergo
imprisonment for life.   Accused  was  also  convicted  under  Sections  2/3
[3(1)] of the U.P. Gangsters and Anti-Social  Activities  (Prevention)  Act,
1986 and sentenced  to undergo  rigorous  imprisonment  for  ten  years  and
under Section 27 of the Arms  Act  sentenced  to  further  undergo  rigorous
imprisonment  for seven years.  Considering the fact that  the  trial  court
had awarded  life sentence  under Section  302  IPC,   this  Court  directed
that all sentences imposed under Section 302 IPC,  Sections  2/3  [3(1)]  of
the Gangsters Act and Section 27  of  the  Arms  Act  to  run  concurrently.

16.         When the prosecution is based on  single  transaction  where  it
constitutes two  or  more  offences,  sentences  are  to  run  concurrently.
Imposing separate sentences, when the acts constituting  different  offences
form part of the single  transaction  is  not  justified.   So  far  as  the
benefit  available    to  the  accused  to  have  the   sentences   to   run
concurrently of several  offences  based  on  single  transaction,  in  V.K.
Bansal vs. State of Haryana & Anr. (2013) 7 SCC 211,  in  which  one  of  us
(Justice T.S. Thakur) was a member, this Court held as under:-
“… we may say that the legal position favours exercise of discretion to  the
benefit of the prisoner in cases where the prosecution is based on a  single
transaction no matter different complaints  in  relation  thereto  may  have
been filed as is the  position  in  cases  involving  dishonour  of  cheques
issued by the borrower towards repayment of a loan to the creditor.”

17.         This Court in the case of Mohd.  Akhtar  Hussain  alias  Ibrahim
Ahmed Bhatti vs. Asstt. Collector  of  Customs  (Prevention)  Ahmedabad  and
Anr., (1988) 4 SCC 183, recognized the basic rule of conviction arising  out
of a single transaction justifying the concurrent running of the  sentences.
 The following passage in this regard is relevant to be noted :-

“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.  It is proper and legitimate to have  concurrent
sentences.  But this rule has no application if the transaction relating  to
offences is not the same or the facts  constituting  the  two  offences  are
quite different.”

In Manoj alias Panu vs. State of  Haryana,  (2014)  2  SCC  153,  the  Bench
followed Mohd. Akhtar Hussain’s case.
18.         While  referring  the  matter  to  a  larger  Bench,  the  Bench
observed that in Mohd. Akhtar  Hussain’s case, Section 31  Cr.P.C.  was  not
noticed by this Court.    It is to be  pointed  out  that  in  Mohd.  Akhtar
Hussain’s case and Manoj’s case,  the  appellants  who  were  convicted  for
different counts of offences arose out of a  single  transaction,  favouring
the exercise of discretion to the benefit of the accused that the  sentences
shall run concurrently.  Those  decisions  are  not  cases  arising  out  of
conviction at one trial of two or more offences and therefore, reference  to
Section 31 Cr.P.C. in those cases was not necessitated.
19.         As pointed out earlier, Section 31 Cr.P.C.  deals  with  quantum
of punishment which may be legally passed when there is - (a) one trial  and
(b) the accused is convicted  of two or more offences.  Ambit of Section  31
is wide, covering not only  single  transaction  constituting  two  or  more
offences but also offences  arising out  of  two or more transactions.    In
the two judgments in Mohd. Akhtar Hussain and Manoj (supra), the issue  that
fell for consideration was the  imposition  of  sentence  for  two  or  more
offences arising out of the single transaction.  It is in that  context,  in
those cases, this Court held that the sentences shall run concurrently.
20.         Under Section 31 Cr.P.C. it is left to the  full  discretion  of
the Court to order the sentences to run concurrently in case  of  conviction
for two or more offences.  It is difficult  to  lay  down  any  straitjacket
approach in the matter of exercise of such discretion  by  the  courts.   By
and large, trial courts and appellate  courts  have  invoked  and  exercised
their discretion to issue directions for concurrent  running  of  sentences,
favouring the benefit to be given to the accused.   Whether a direction  for
concurrent running of sentences ought to be issued in  a  given  case  would
depend upon the nature of the offence or offences committed  and  the  facts
and circumstances of the case.  The discretion has  to  be  exercised  along
the judicial lines and not mechanically.
21.         Accordingly, we answer the Reference by  holding   that  Section
31 Cr.P.C. leaves full discretion with the Court  to  order  sentences   for
two or more  offences at one trial to run concurrently,  having   regard  to
the  nature  of  offences   and  attendant    aggravating    or   mitigating
circumstances.  We do not find any reason to hold that normal   rule  is  to
order the   sentence  to  be  consecutive  and  exception  is  to  make  the
sentences concurrent.  Of course, if the Court does not order  the  sentence
to be concurrent, one sentence may run after the other,  in  such  order  as
the Court may direct.  We also do not find any conflict in earlier  judgment
in Mohd. Akhtar Hussain and Section 31 Cr.P.C.
22.         Having answered the reference, the merits of the matter  can  be
gone into by the referring Bench; but we consider it appropriate to  dispose
of the appeal itself to avoid any further delay.  Adverting to  the  present
case, the learned counsel for the appellant contended  that  the  facts  and
circumstances of the case were not kept in view  to  invoke  the  discretion
for concurrent running of sentences. It  was  submitted  that  appellant  is
employed in Gulf countries  and    between 1988–1996, the appellant  visited
India only  four  times  and  there  could  not  have  been  any  continuous
harassment on his part and in the   said  facts  and  circumstances  of  the
case, the trial  court  and  the  High  Court   ought  to  have  judiciously
exercised their discretion in directing sentences to  run  concurrently  and
therefore,  prayer for intervention of this Court was made.
23.          The  trial  court  directed  the  sentences  imposed   on   the
appellant/accused under Sections 498A and  306  IPC  to  run  consecutively,
which was affirmed by the High Court.  When  the  trial  court  declines  to
exercise its discretion under Section 31 Cr.P.C. in  issuing  direction  for
concurrent running of sentences,  normally  the  appellate  court  will  not
interfere, unless the refusal to exercise such discretion  is  shown  to  be
arbitrary or unreasonable.   When the trial court as well as  the  appellate
court  declined  to  exercise  their  discretion,  normally  we  would  have
refrained  from  interfering  with  such  direction  of   the   courts   for
consecutive running of sentences.   But in the facts  and  circumstances  of
the present case, in our view, the sentences imposed on the appellant  could
be ordered to be run concurrently.  At the time of marriage,  the  appellant
was employed as a Painter at Delhi and after marriage, it is  stated    that
the appellant had secured an employment in Gulf countries and used to  visit
India once in two years only.   It is brought on evidence that in  a  period
of eight  years from  1988–1996,  he came on leave to India  for  only  four
times and finally  he  visited India while he was on leave during   January-
February 1996.  The  appellant  also  appears  to  have  taken  efforts  for
mediation to settle the differences and the mediation was scheduled to  take
place on 23.2.1996; but  Lillikutty  committed  suicide  on  the  same  day.
Keeping in view the totality of the facts and  circumstances  of  the  case,
the sentences imposed on the appellant for  the  offences  punishable  under
Sections 498A and 306 IPC are ordered to run concurrently and the appeal  is
disposed of with the above modifications.
24.         The reference is answered accordingly and the appeal allowed  in
part to the extent as indicated above.

                                                               (T.S. Thakur)

                                                         (Adarsh Kumar Goel)

                                                              (R. Banumathi)

New Delhi,
November 11, 2014

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