Madhya Pradesh High Court
Khuma vs The State Of Madhya Pradesh on 28 July, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 28th OF JULY, 2022
CRIMINAL APPEAL No. 318 of 2016
Between:-
KHUMA S/O SHRI SARDAR DAHIMA BHIL, AGED
ABOUT 44 YEARS, OCCUPATION: AGRICULTURE
1.
SATSERA, TEH. THANDLA, DISTT. JHABUA
(MADHYA PRADESH)
REVSINGH S/O NANJUDA MEDA BHIL, AGED
ABOUT 42 YEARS, OCCUPATION: AGRICULTURE
2.
SATSERA TEHSIL THANDLA JHABUA (MADHYA
PRADESH)
.....APPELLANT
(BY MS. SONALI GUPTA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THRU. P.S. KAKANWANI, DISTT.
JHABUA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MUKESH KUMAWAT, GOVT. ADVOCATE)
CRIMINAL APPEAL No. 472 of 2016
Between:-
FARZAL S/O NARSINGH MACHAR BHEEL, AGED
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ABOUT 35 YEARS, OCCUPATION: AGRICULTURE
SATSERA TEHSIL THANDLA, P.S. KAKANWANI,
DISTT. JHABUA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI YASHPAL RATHORE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THRU. P.S. KAKANWANI, DISTT.
JHABUA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MUKESH KUMAWAT, GOVT. ADVOCATE)
These appeals coming on for final hearing this day,
JUSTICE VIVEK RUSIA passed the following:
JUDGMENT
Regard being had to the similitude of the offence involved in these appeals, with the joint request of the parties, appeals are finally heard and decided by this common judgment.
The appellants have filed these Criminal Appeals under Sections 374 of the Code of Criminal Procedure, 1973 against the judgment of conviction and sentence dated 23.12.2015 passed by the Additional Sessions Judge, Jhabua District - Jhabua in Sessions Trial No.308/2006-07, whereby the appellant sentenced to undergo as under:-
CONVICTION SENTENCE
Section Act Imprisonment Fine if Imprisonment in
deposited lieu of fine
details
148 IPC 02 years' R.I. Rs.1,000/- 01 month's R.I.
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436/149 IPC 10 years' R.I. Rs.5,000/- 03 months' R.I.
302/149 IPC Life Imprisonment Rs.5,000/- 03 months' R.I.
307/149 IPC Life Imprisonment Rs.5,000/- 03 months' R.I.
02. While awarding the aforesaid sentence, learned Sessions Judge has specifically mentioned that the aforesaid sentence shall run consecutively i.e. one after another.
03. At the very outset, learned counsel for the appellants submit that these appellants are in jail for more than 15 years and they are not assailing the findings recorded by the trial Court against them on merit but praying that in the exercise of the power conferred under Section 31 of the Cr.P.C., the sentences may kindly be directed to be run concurrently. Hence, these criminal appeals are heard on this limited issue.
04. As per the prosecution story, on 18.08.2006 near about 6:00 pm at Village - Satsaura, these appellants formed an unlawful assembly with the common intention to commit the murder of Daul Singh, Somla, Nanka and Saboor and to burn the house of Kala. The appellants armed with firearms came to burn the house of Kala. At that time Daulat Singh came to save the house then the appellant - Farjal fired two gunshots at him and he ran to his house but died on the way. Others accused also fired from their firearms from which others sustained injuries from pellets. An F.I.R. was registered against 14 accused persons out of which only three have been convicted as the remaining 7 accused remained absconding during the trial, two are already under trial from the date of registration of F.I.R. and two passed away during the trial. After -4- evaluating the evidence came on record vide judgment dated 23.12.2015, the trial Court has convicted the appellants for the aforementioned offences.
05. Learned counsel for the appellants submit that there is no criminal past of these appellants. They belong to Bheel Community, hence, by nature they always come into the group to commit any crime. There are in jail for the last 15 years. During the parole period, they never violated the conditions of the parole and surrendered before the jail authorities. In jail also they remained in discipline. It is further submitted by the learned counsel that the learned trial Court has not assigned any reason for awarding the sentence to run consecutively. Under Sections 302 and 307 they have been awarded Life Imprisonment, under Section 436 they have been awarded 10 years' R.I. and under Section 148 they have been awarded 02 years' R.I. Two sentences of Life Imprisonment cannot run one after other, therefore, these sentences are unworkable and ought not to have been awarded. Hence, the sentence may kindly suitably be modified with any other condition as deems fit by this Court.
06. Learned Government Advocate for the respondent / State opposes the aforesaid prayer by submitting that as per Section 31 of the Cr.P.C., all sentences are liable to be run consecutively unless the Court directs them to run concurrently, therefore, it was not required from the trial Court to pass an order for running the sentence consecutively because that is by way of the implication of -5- law. Looking to the facts and circumstances of the case, the Court is liable to pass a specific order for running the sentence concurrently. The appellants not only burnt the house of Kala but also fired gunshots at Daul Singh who was coming to save the house. Kala suffered the loss of Rs.2.5 lakh in the year 2006, therefore, he is liable to be compensated by these appellants.
07. We have heard learned counsel for the parties at length and perused the record.
08. The interpretation of Section 31 of the Cr.P.C. came up for consideration before the Apex Court in the case of O.M. Cherian Alias Thankachan v/s The State of Kerela & Others reported in (2015) 2 SCC 501, in which the Apex Court has held that Section 31 of the Cr.P.C. leaves full discretion of the Court to order the sentences for two or more offences of one trial to run concurrently having regard to the nature of the offences and attendant aggravating or mitigating circumstances. Paragraphs - 20 & 21 of aforesaid judgment are reproduced below:-
"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 -6- 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."
[Emphasis Supplied]
09. The Apex Court again in the case of Sunil Kumar Alias Sudhir Kumar & Another v/s The State of Uttar Pradesh reported in (2021) 5 SCC 560, in which the Apex Court has held that the Court of the first instance is under legal obligation while awarding multiple sentences to specify in clear terms as to whether they would run concurrently or consecutively. Once he is found guilty of any offence punishable under IPC or/and of an offence punishable under any other Special Act arising out of one trial or more. If the Court of the first instance is intending to the consecutive running of the sentence, there is yet another obligation on it to state the order (i.e. the sequence) in which they are to be executed and it is the duty of the High Court to examine this issue while hearing a criminal appeal filed against the judgment of conviction.
10. In the present case, the appellants along with other formed an unlawful assembly and went to the house of Kala to burn his -7- house. Kala had noticed that they are coming to him to take revenge, hence, he hid and saw that they burnt his house. when other persons came to save the house, the appellants started firing, therefore, they did not come with an intention to kill the deceased - Daul Singh. As the persons came to save the house, the appellants fired gunshots due to which Daul Singh suffered two injuries and succumbed and other have suffered pellet injuries. The trial Court has awarded two Life Imprisonments under Sections 302 & 307, 10 years' R.I. under Section 436/149 and 02 years' R.I. under Section 148 of the IPC.
11. The appellants are not habitual criminals, they are in jail since last 15 years. They all belong to Bheel community. Death was caused by gunshot injuries by one persons and others have been convicted for the offence punishable under section 307 of I.P.C. apart from other charges for which they have undergone the sentences. It is not the case of commission of heinous crime, they all are ready to compensate Kala whose house was burnt.
12. In the opinion of this Court, the present Criminal Appeals are allowed in part. Keeping in view of the facts and circumstances in totality, it is hereby directed that the sentences awarded to the appellants shall run concurrently. All the appellants shall pay compensation of Rs 25,000/- (Rupees Twenty Five Thousand Only) each to Kala. Subject to deposit of fine amount and payment of compensation they shall be released from jail if they are not required in any other offence .
-8-Let a copy of this judgment be kept in the connected appeal also.
Record of the trial Court be sent back along with a copy of this judgment.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.08.02 10:12:19 +05'30'