Rajasthan High Court - Jaipur
Mukesh Khandelwal @ Devendra Kumar S/O ... vs State Of Rajasthan Through Pp on 29 January, 2019
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 444/2018
1. Mukesh Khandelwal @ Devendra Kumar S/o Shri
Devkinandan, B/c Brahamin, Aged About 44 Years, R/o
Puraini Police Station Chharra District Aligarh (UP). (At
present in Central Jail Jaipur)
2. Udaiveer @ Makoy S/o Shri Ramphal B/c Jat, Aged About
25 Years, R/o Dilalpur Police Station Barla District Aligarh
(UP). (At present in Central Jail Jaipur)
3. Raju @ Rajua S/o Shri Ramphal B/c Jat, Aged About 38
Years, R/o Dilalpur Police Station Barla District Aligarh
(UP). (At present in Central Jail Jaipur)
----Accused-Appellants
Versus
The State of Rajasthan through P.P.
----Respondent
For Appellant(s) : Mr. Dinesh Choudhary For Respondent(s) : Mr. Aladeen Khan, P.P. HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA Order 29/01/2019 This appeal has been filed against the order dated 20.10.2018, passed by learned Additional Sessions Judge No.1, Jaipur Metropolitan, in Session Case No. 7/2007. The accused- appellants have been convicted and sentenced as under:-
Under Section 364 IPC Life imprisonment with fine of (Appellant No. 1) and Rs. 1,00,000/-, in case of 364/120-B IPC (Appellant default in payment of fine, to Nos. 2 & 3) further undergo one year simple imprisonment.
Under Section 302/120-B Life imprisonment with fine of IPC Rs. 1,00,000/-, in case of (Downloaded on 05/06/2021 at 11:12:27 PM) (2 of 11) [CRLAD-444/2018] default in payment of fine, to further undergo one year simple imprisonment. Under Section 397/120-B Ten years simple imprisonment. IPC Under Section 201/120-B Seven years simple IPC imprisonment with fine of Rs. 1,00,000/-, in case of default in payment of fine, to further undergo one year simple imprisonment.
The facts of the case show that allegation against the appellants is for commission of murder of two persons in the occurrence. The trial Court found evidence against the appellants for commission of offence not only under Section 302 IPC but under Section 120-B IPC apart from Section 201/120-B IPC. The trial Court, however, failed to pass an order for sentence for each offence. It has taken offence under Section 302 IPC to be composite, whereas, for two murders, the charge under trial can be common so as conviction but sentence has to be separate. The issue aforesaid has been discussed by this Court elaborately in the case of Dharmendra Kumar vs. State of Rajasthan (D.B. Criminal Appeal No. 1491/2017), decided on 24th January, 2019.
The relevant paras of the said judgment are quoted hereunder :-
"The trial court has sentenced accused to life imprisonment for the offence u/s 302 IPC forgetting that offence u/s 302 IPC was committed twice. The trial court was under an obligation to inflict separate punishment for separate offence in view of section 31 Cr.P.C. The aforesaid provision is quoted thus:- (Downloaded on 05/06/2021 at 11:12:27 PM)
(3 of 11) [CRLAD-444/2018]
Section 31 Cr.P.C.
31. Sentences 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-
(a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years;
(b) 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 (Downloaded on 05/06/2021 at 11:12:27 PM) (4 of 11) [CRLAD-444/2018] sentences passed against him under this section shall be deemed to be a single sentence.
Section 31 Cr.P.C. provides for sentence in case of conviction for several offences in one trial. The aforesaid provision makes a reference of section 71 IPC. The said provision is also quoted hereunder alongwith illustration for ready reference:-
Section 71 IPC
71. Limit of punishment of offence made up of several offences.--Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. 1[Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.] Illustrations
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily (Downloaded on 05/06/2021 at 11:12:27 PM) (5 of 11) [CRLAD-444/2018] causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.
(b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y. Section 71 IPC provides for punishment of offence made up of several offences and it has been explained by illustrations. At this stage, reference of section 220 Cr.P.C. would also be relevant and said provisions is also quoted hereunder:-
Section 220 Cr.P.C.
220. Trial for more than one offence.
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub- (Downloaded on 05/06/2021 at 11:12:27 PM)
(6 of 11) [CRLAD-444/2018] section (2) of section 212 or in sub- section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined adifferent offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860.
Section 220 Cr.P.C. provides for one trial for more than one offence. The accused can be charged for more than one offence and, in that case, there would be a common trial but (Downloaded on 05/06/2021 at 11:12:27 PM) (7 of 11) [CRLAD-444/2018] sentence would be separate. It has been illustrated and explained hereunder. If an accused has committed offence u/s 302, 307 and 326 IPC then separate sentence need to be inflicted for each offence. In the same manner, if an accused has murdered two persons then he has to be sentenced for two offences u/s 302 IPC for which he has been convicted. It cannot be that despite two murders, the sentence would be only for one murder leaving other. The aforesaid has been explained even by the Apex Court in the case of Mathuramalingam (supra), the relevant paras 7 and 8 of the said judgment are quoted hereunder:-
7. A careful reading of the above would show that the provision is attracted only in cases where two essentials are satisfied viz. (1) a person is convicted at one trial and (2) the trial is for two or more offences. It is only when both these conditions are satisfied that the Court can sentence the offender to several punishments prescribed for the offences committed by him provided the Court is otherwise competent to impose such punishments. What is significant is that such punishments as the Court may decide to award for several offences committed by the convict when comprising imprisonment shall commence one after the expiration of the other in such order as the Court may direct unless the (Downloaded on 05/06/2021 at 11:12:27 PM) (8 of 11) [CRLAD-444/2018] Court in its discretion orders that such punishment shall run concurrently. Sub-section (2) of Section 31 on a plain reading makes it unnecessary for the Court to send the offender for trial before a higher Court only because the aggregate punishment for several offences happens to be in excess of the punishment which such Court is competent to award provided always that in no case can the person so sentenced be imprisoned for a period longer than 14 years and the aggregate punishment does not exceed twice the punishment which the court is competent to inflict for a single offence.
Interpreting Section 31(1), a three-Judge Bench of this Court in O.M. Cherian's case (supra) declared that if two life sentences are imposed on a convict the Court must necessarily direct those sentences to run concurrently. The Court said:
Section 31(1) Code of Criminal Procedure 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) Code of Criminal Procedure. There (Downloaded on 05/06/2021 at 11:12:27 PM) (9 of 11) [CRLAD-444/2018] 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, the court has to direct those sentences to run concurrently.
8. To the same effect is the decision of a two-
Judge Bench of this Court in Duryodhan Rout's case (supra) in which this Court took the view that since life imprisonment means imprisonment of full span of life there was no question of awarding consecutive sentences in case of conviction for several offences at one trial. Relying upon the proviso to Sub-section (2) of Section 31, this Court held that where a person is convicted for several offences including one for which life sentences can be awarded the proviso to Section 31(2) shall forbid running of such sentences consecutively.
(Downloaded on 05/06/2021 at 11:12:27 PM)
(10 of 11) [CRLAD-444/2018] The Apex Court has considered and decided the issue by referring to a case of several offences in one incident by an accused. There, common charges would be framed followed by common trial but after conviction, sentence has to be separate for each offence. In the instant case, the trial court has given sentence for the offence u/s 302 IPC ignoring that said offence was committed twice by the accused-appellants. Separate sentence should have been given for each offence for which accused have been convicted. It is not only for section 302 IPC but even for Section 201 IPC. The trial court has failed to inflict the sentence for each offence separately and, for that, even if ignored offence u/s120B IPC."
The trial Court has committed an error in passing the order on sentence for the offence under Sections 302, 120-B and 201 IPC. It is in ignorance of the fact that two murders have taken place and the allegation of suppression of evidence in regard to two murders was made apart from offence under Section 120-B IPC. The accused have been convicted for it. Separate sentence for each offence should have been given.
Accordingly, the matter is remitted to the trial Court for passing a fresh order for the offence under Sections 302, 120-B and 201/120-B IPC. It would obviously be in presence of the accused. The order of sentence in regard to second offence under Sections 302, 120-B and 201/120-B IPC would be passed. (Downloaded on 05/06/2021 at 11:12:27 PM)
(11 of 11) [CRLAD-444/2018] We are not causing interference in the order of conviction. It is also not in the order of sentence for one offence under Sections 302, 120-B and 201/120-B IPC. It is, however, with the observation that the appellants would be at liberty to challenge the order of conviction and even sentence by maintaining a separate appeal after the order of the trial Court. The order herein would not affect rights of the appellants for the aforesaid and this order should not be taken in confirmation to the order of conviction and sentence. It would remain subject to challenge by the appellants in the appeal.
The trial court would hear the case in the presence of the accused on 25.02.2019. The Superintendent, Central Jail, Jaipur is directed to produce the accused-appellants Mukesh Khandelwal @ Devendra Kumar, Udaiveer @ Makoy and Raju @ Rajua before the trial Court on the aforesaid date.
The counsel appearing for the accused undertake to represent the accused-appellants before the trial court on 25.02.2019.
With the aforesaid, the appeal stands disposed of. (BANWARI LAL SHARMA),J (M.N. BHANDARI),J S. Kumawat/54 (Downloaded on 05/06/2021 at 11:12:27 PM) Powered by TCPDF (www.tcpdf.org)