Chatar Singh Vs. State of M.P [2006] Insc 863 (24 November 2006)
S.B.
Sinha & Markandey Katju S.B. Sinha, J.
Interpretation
and application of Section 31 of the Criminal Procedure Code, 1973 is involved
in this appeal, which arises out of a judgment and order dated 3rd February,
2004 passed by a learned Single Judge of the Madhya Pradesh High Court at Jabalpur
in Criminal Appeal No.2665 of 1998.
In
view of the question involved herein, we need not dilate on the factual matrix
of the matter in great details. Suffice it say that the appellant herein was
proceeded against in a case involving kidnapping of two boys Sudhir Kumar and Sushil
Kumar, aged about 10 to 12 years. They were sons of Ramakant Katiyar (P.W.6).
They had gone to attend school at about 7.30 in the morning of 29th December, 1994. They were to return at about 1.30 p.m., but, when they did not return till 5.30 p.m., a search for them was made. After the informant
came back home, he was informed by his wife that one of the classmate of the
boys, namely, Gulabchandra Gour (P.W.7), had delivered his school bag informing
that Satyendra (P.W.10) had asked him to do the same. P.W.6 went to the house
of Satyendra to make inquiries about his son and came to learn that victim Sudhir
Kumar had come to his house and handed over the bag stating that he was
proceeding towards the farm. A First Information Report was lodged. Allegedly,
the Chowkidar of the school, namely, Ramesh Kumar (P.W.8) discovered certain
wearing apparels as also a letter demanding ransom of Rs.2,000/-. He handed
over the trouser and the letter to the police. On the next day, one Prakash
Chandra Sharma came to the house of Ramakant and stated that he had found a
letter in which it was stated that P.W.6 had committed a grave error in intimating
the police. Therein it was, allegedly, mentioned that dead body of Sunil Kumar
was thrown in the 'nallah' behind the 'durgha'. A search was made, but the dead
body was not found. Allegedly, a demand of Rs.10,000/- towards ransom was made
by a letter, which was marked as Exhibit P/10. On 6.1.1995, a dead body was
recovered, which was ultimately found to be that of Sushil Kumar. P.W.6
received another letter on 17.1.1995, whereby he was asked to pay a sum of
Rs.20,000/-. In that letter it was said to have written that if the said amount
was not paid, Sudhir Kumar would be similarly dealt with. The dead body of Sudhir
Kumar was thereafter found. During investigation, appellant was apprehended and
ultimately, he was prosecuted for alleged commission of offences under Section
302, 201, 364, 365 and 120-B of the Indian Penal Code, 1860 ('IPC', for short).
The learned Trial Judge opined that there was no material on record to show
that the victims were killed by the appellant. It was further not found that they
were kidnapped for obtaining ransom or for murdering them. However, two letters
were found to have been written by the appellant. He, therefore, convicted the
appellant for commission of offences punishable under Sections 364 and 365 read
with Sections 120-B and 201 of the Indian Penal Code and passed the following
sentences :
"U/S.
364 IPC R.I. for 10 years, U/S. 364 IPC R.I. for 10 years, U/S. 365 IPC R.I.
for 4 years, U/S. 365 IPC R.I. for 4 years, U/S. 120-B IPC R.I. for 5 years,
U/S. 120-B IPC R.I. for 5 years, U/S. 201 IPC R.I. for 2 years." On
appeal, the High Court accepted that the prosecution could not establish that
the boys were murdered by the appellant, but the finding of the learned
Sessions Judge as regards involvement of the appellant for alleged commission
of an offence under Section 364 was upheld, stating :
"...In
the present case the accused was responsible for abducting to young children.
The learned trial Judge might have acquitted him of the offence punishable
under Section 302 of the IPC but the fact remains because of such abduction the
young boys lost their lives. If they would not have been abduction (sic) their
life-sparks would not have been extinguished and they would have in ordinary
course of nature blossomed into young men and their parents would not have
suffered agony and anguished for the loss of their lives. When there is such
act by the accused, it not only projects ruthlessness and totally insensitive
proclivity but also creates a fear in the mind of the society. A person who
creates phobia in the mind of collective, cannot be leniently dealt with.
Keeping
in view the totality of circumstances and regard being had to basic conception
of victimology, I am inclined to hold that the sentences which have been
directed to run consecutively in respect of the offence under Section 364 of
the IPC, should be maintained and accordingly it is so directed. As far as
sentence in respect of other offences is concerned, the same would be
concurrent. Thus, the total period of the rigorous imprisonment would be 20
years." Mr. T.N. Singh, learned counsel appearing on behalf of the
appellant would submit that the learned Trial Judge as also the High Court
committed an error in sentencing the appellant to undergo 20 years' Rigorous
Imprisonment in view of Section 31 of the Criminal Procedure Code. It was
pointed out that the appellant had already been in jail for a period of more
than 12 years. The appellant, as noticed hereinbefore, was charged both under
Section 364A IPC as also 102B IPC. He was not found guilty of any of the said
charges. He was charged only under Sections 364 and 365 of the Indian Penal
Code. The maximum sentence which could be imposed under Section 364 was 10
years and under Section 365 was 7 years. Fine could also be imposed, but the
same has not been done.
We,
although, appreciate the anxiety on the part of the learned Sessions Judge as
also the learned Judge of the High Court not to deal with such a matter
leniently, but, unfortunately, it appears that the attention of the learned
Judges was not drawn to the provision contained in Section 31 of the Criminal
Procedure Code. The said provision reads thus :
"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:" Provisos
appended the said Section clearly mandate that the accused could not have been
sentenced to imprisonment for a period longer than fourteen years.
Learned
Sessions Judge as also the High Court, in our opinion, thus, committed a
serious illegality in passing the impugned judgment.
In Kamalanantha
& Ors. vs. State of T.N. [(2005) 5 SCC 194], this Court,
although, held that even the life imprisonment can be subject to consecutive
sentence, but it was observed :
"Regarding
the sentence, the trial court resorted to Section 31 CrPC and ordered the
sentence to run consecutively, subject to proviso (a) of the said
section." Although, the power of the Court to impose consecutive sentence
under Section 31 of the Criminal Procedure Code was also noticed by a Constitution
Bench of this Court in K. Prabhakaran vs. P. Jayarajan [(2005) 1 SCC 754], but,
therein the question of construing proviso appended thereto did not and could
not have fallen for consideration.
The
question, however, came up for consideration in Zulfiwar Ali & Anr. vs.
State of U.P. [1986 All.L.J. 1177], wherein it
was held :
"The
opening words "In the case of consecutive sentences" in sub-s. 31(2)
make it clear that this sub- section refers to a case in which
"consecutive sentences" are ordered. After providing that in such a
case if an aggregate of 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. After making such a provision, proviso (a) is
added to this sub-section to limit the aggregate of sentences which such a
court pass while making the sentences consecutive. That is this proviso has
provided that in no case the aggregate of consecutive sentences passed against
an accused shall exceed 14 years. In the instant case the aggregate of the two
sentences passed against the appellant being 28 years clearly infringes the
above proviso. It is accordingly not liable to be sustained." In view of
the proviso appended to Section 31 of the Criminal Procedure Code, we are of
the opinion that the High Court committed a manifest error in sentencing the
appellant for 20 years' Rigorous Imprisonment. The maximum sentence imposable
being 14 years and having regard to the fact that the appellant is in custody
for more than 12 years. Now, we are of the opinion that interest of justice
would be sub- served if the appellant is directed to be sentenced to the period
already undergone.
The
appeal is allowed to the aforementioned extent. The appellant shall be released
forthwith if not wanted in connection with any other case.
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