Rajasthan High Court - Jaipur
Dharmendra Kumar vs State Of Rajasthan Through Pp on 24 January, 2019
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1491/2017
Dharmendra Kumar
----Appellant
Versus
State Of Rajasthan Through Pp
----Respondent
Connected With
D.B. Criminal Appeal No. 1203/2017
Prerana W/o Shri Dharmendra Kumar, D/o Shri Prabhakar @
Prabhu Das Kodape B/c Maratha, R/o C-183, Adarsh Nagar, Near
Union Bank, Ajmer, Present Address C-175, Chandra Bardai Nagar,
Ajmer. At Present Confined At Confined At Central Jail, Jaipur.
----Appellant
Versus
State Of Rajasthan Through P.p.
----Respondent
For Appellant(s) : Mr. Dharmendra Kumar-appellant
present in person
Mr. Rakesh Bhargava
For Respondent(s) : Mrs. Sonia Shandilya, PP
Mr. Jagdish, ASI
Mr. Shishram, HC-764
Mr. Sandeep, HC-4069
Mr. Kailesh, HC-9733
Mr. Sharwan, HC-10094
HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI
HON'BLE MR. JUSTICE BANWARI LAL SHARMA
Order
24/01/2019
Reportable
The appeals have been filed by the accused-appellants
against the judgment dated 18.5.2017, passed by the Additional
Sessions Judge No.20, Jaipur Metropolitan (Head-Quarter Chomu)
in Session Case No.5/2013 (13/11), (25/11) (54/11), thereby, the
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accused have been convicted and sentenced for different offences.
During the course of hearing of the appeals, learned Public
Prosecutor pointed out that despite murder of two persons and
conviction for it, sentence has not been given separately for each
offence. It is required as per section 31 Cr.P.C. and Section 71 IPC.
The trial in regard to several offences can be one as per section
220 Cr.P.C. but sentence in case of conviction should be for each
offence.
Learned Public Prosecutor submits that the allegation against
the accused-appellants is not only for conspiracy but commission
of offence u/s 302 IPC where two persons have been killed. One
was wife of accused Dharmendra and other was his daughter. The
appellants conspired and committed murder of two persons
punishable u/s 302 IPC. They have been convicted but separate
sentence for each offence has not been given despite conviction
for two murders. The trial court should have given separate
sentence for separate offences. The prayer is to remit the matter
to the trial court for passing appropriate order on sentence while
keeping appeal pending before this court. A reference of the
judgment of the Apex Court in the case of Mathuramalingam
and Ors. vs. State (2016) 8 SCC 313 has been given. There the
issue was decided in reference to section 31 Cr.P.C. apart from
other provisions.
The accused Dharmendra in person and learned counsel Mr.
Rakesh Bhargava, in the connected appeal of Prerana have
contested the issue. They stated that separate charges for each
murder have not been framed thus trial court has rightly passed
the order of conviction only for offence u/s 302 IPC. It is taking
charge to be composite and otherwise no purpose would remain in
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sending matter back to the trial court. The sentence of life
imprisonment has already been given and, even for second
murder, if the same sentence is inflicted, it would run concurrently
and not consecutively. The life imprisonment is for the natural life
thus one cannot serve two life imprisonment, thereby, there is no
purpose for remittance of the case. It is moreso when the
appellant Dharmendra is behind bars for last 8 years. The prayer
is not to remit the matter to the trial court, rather, if any error
exists, this court may rectify it after hearing the appeal. This court
itself may enhance the sentence. The prayer is accordingly not to
accept the arguments raised by the learned Public Prosecutor.
We have considered rival submissions of the parties and perused the record.
It is a case where allegation against the appellant Dharmendra is for causing murder of wife and his daughter. It is after conspiracy for the offence. The dead bodies were suppressed, thus offence u/s 201 IPC has also been committed.
The charges for offence were framed followed by trial. The prosecution could prove its case beyond doubt for commission of two murder by the accused. 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:-
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 (4 of 10) [CRLA-1491/2017] 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 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 (5 of 10) [CRLA-1491/2017] 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 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- 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 (6 of 10) [CRLA-1491/2017] 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 a different 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 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 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 (7 of 10) [CRLA-1491/2017] 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 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 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 (8 of 10) [CRLA-1491/2017] 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.
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. Separate sentence should have been given for each offence for which accused has 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 the offence u/s 120B IPC.
The defect aforesaid has been pointed out by the learned Public Prosecutor during the course of arguments and as it goes to the root of the case, thus, we called upon the accused in person (9 of 10) [CRLA-1491/2017] and learned counsel for the accused in connected case to address the argument on it. The main submissions of the learned counsel for the accused as well as accused in person is that instead of remitting the case, alteration in the sentence be made by this court itself.
We are unable to accept the aforesaid prayer as in an appeal by the accused, the punishment cannot be enhanced, rather, for that, matter needs to be remitted to the trial court. This court can enhance punishment in an appeal for it but not in an appeal by the accused.
The issue of delay has been raised by the accused but we find that hearing of the appeal has been taken by this court recently and, immediately thereupon, the defect in the order has been pointed out by the learned Public Prosecutor.
Accordingly, we find reasons to remit the case to the trial court for hearing and to pass a fresh order on sentence. The sentence for one offence u/s 302 IPC has already been given and challenge to it would be considered in the pending appeal thus without disturbing the order for sentence for offence u/s 302, 201 and 120B IPC, matter is remitted to pass order of sentence separately for the offence u/s 302, 201 and 120B IPC in regard to second murder.
The appeal of the appellants is accordingly kept pending. The remittance of the case is limited to the issue given above. Thus, trial court is directed to hear the appellants and pass order, as given above.
The trial court would hear the case in the presence of the accused. Accordingly, both the parties would remain present before the trial court on 12.2.2019 to argue the case so that a (10 of 10) [CRLA-1491/2017] fresh order is passed without further delay. The appeal is kept pending til then. It is clarified that for hearing of the case on sentence, as per direction of this court, the accused Prerana would remain present before the trial court on the date given above and so far accused Dharmendra is concerned, he would be produced before the trial court by the Jail authority.
It is seen that the trial court, while passing order on sentence, failed to take into consideration each offence for which conviction has been given. They need to impose sentence separately for each offence. In the instant case, the offence u/s 302 IPC has been committed twice but sentence has been given taking it to be a composite crime for offence u/s 302 IPC.
The Registry is directed to circulate this order to all the District Judges who would circulate it to all the Sub-Ordinate Courts.
The Registry is directed to immediately send record back to the trial court with the direction that after passing order on sentence, it would be returned forthwith.
A copy of this order would be given to appellant Dharmendra. It would be served through Superintendent, Central Jail, Jaipur. It is also with direction to produce accused Dharmendra before the trial court on 12.2.2019.
The appeal to be listed immediately after a fresh order pursuant the direction given above. The counsel appearing for the accused undertake to produce her before the trial court on 12.2.2019.
(BANWARI LAL SHARMA),J (M.N. BHANDARI),J Brijesh 50-51 Powered by TCPDF (www.tcpdf.org)