O.M CHERIAN @ THANKACHAN Vs. STATE OF KERALA & ORS

Tags Abetment Cruelty

Supreme Court of India (Full Bench (FB)- Three Judge)

Appeal (Crl.), 2387 of 2014, Judgment Date: Nov 11, 2014

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

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

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.’

(2)……………

(3)……………”

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.

…………………………….J.

(T.S. Thakur)

…………………………….J.

(Adarsh Kumar Goel)

…………………………….J.

(R. Banumathi)

New Delhi,

November 11, 2014

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