SC: Consecutive sentences of conviction


Court :
Supreme Court of India

Brief :
The Supreme Court bench comprising of Justices Sudhansu Jyoti Mukhopadhaya and Dipak Misra citing 31(2) of the Cr.P.C. has held that if a person is convicted of several offences, including one that of life imprisonment, the no consecutive sentence can be imposed. Highlight: ''Section 31 of Cr.P.C. relates to sentence in cases of conviction of several offences at one trial. Proviso to Sub Section (2) to Section 31 lays down the embargo whether the aggregate punishment of prisoner is for a period of longer than 14 years. In view of the fact that life imprisonment means imprisonment for full and complete span of life, the question of consecutive sentences in case of conviction for several offences at one trial does not arise. Therefore, in case a person is sentenced of conviction of several offences, including one that of life imprisonment, the proviso to Section 31(2) shall come into play and no consecutive sentence can be imposed.''

Citation :
-

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 2277-2278  OF 2009

DURYODHAN ROUT    … APPELLANT

VERSUS

STATE OF ORISSA             … RESPONDENT

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

These appeals are directed against the common judgment 

dated 8

th

 January, 2008 passed by the High Court of Orissa at 

Cuttack in Death Reference Case No.2 of 2007 and J. Crl. 

A.No.12 of 2007. By the impugned judgment, the High Court 

upheld the conviction of the appellant for the offence under 

Section  376,  302  and  201  IPC.  However,  taking  into 

consideration the facts and circumstances of the case, the 

age of the appellant, his family background and the fact 

that the appellant had no criminal antecedent, the capital 

sentence  for  the  offence  under  Section  302  IPC  has  been 

commuted to life imprisonment; and rest of sentence remain 

unaltered.

2. The case of the prosecution is that on 11

th

2004, at about 3 p.m. accused Duryodhan Rout, on the pretext 

REPORTABLE

 September, 

Page 1

1

that the deceased, Subhasini, a minor girl aged about 10 

years would talk over phone with his brother, Bamodev Bhoi 

took her on a bicycle. When the evening set in, the accused 

alone  returned  to  the  village  and  on  enquiry  about 

Subhasini, by Mulia Bhoi (PW-5), father of the deceased, he 

told that she had gone with a woman of Ranibandha to her 

house. On the next day, as she did not return Mulia Boi (PW-

5) again questioned the accused regarding the where about of 

the  deceased.  The  accused  confessed  in  presence  of  Rabi 

Biswal (PW-3), Dasarathi Bhoi (PW-4) and Subashini Bhoi that 

he killed the deceased by pressing her neck. With the help 

of these three witnesses, Mulia Bhoi (PW-5) took the accused 

to Thakurgarh P.S. got the FIR scribed by one Laxman Senapti 

and lodged it before Udit Narayan Pany, Officer-in-charge of 

the  said  Police  Station.  A  P.S.  Case  No.51  dated  12

September, 2004 under Section 302/201 IPC was instituted. 

The accused was arrested, his statement was recorded under 

Section 27 of the Indian Evidence Act on the basis of which 

he went to the spot made recovery of the dead body of the 

deceased,  held  inquest  over  it,  seized  the  Chadi 

(underwear)  of  the  victim  lying  near  the  spot,  prepared 

seizure list in respect thereof and sent the dead body to 

Adhamalik Hospital for autopsy. He also seized the wearing 

apparels  of  the  accused,  forwarded  to  the  Court  on  13

December, 2004 and handed over charge of investigation of 

th 

th 

Page 2

2

the  case  to  the  C.I.  of  Police.  After  completion  of 

investigation, Investigating Officer (I.O.) submitted charge 

sheet against the accused under Sections 376/302/201 IPC.

3. Learned  Session  Judge  secured  the  presence  of  the 

accused, framed charges u/s 376/302/201 I.P.C. The accused 

pleaded not guilty and claimed to be tried. 

4. In  order  to  establish  its  case,  the  prosecution 

examined 8 witnesses. The accused examined himself as DW-1 

besides examined DW-2, his father to prove his stand. After 

assessing the evidence on record, the Trial Court found the 

accused guilty for the offence under Sections 376(f)/302/201 

IPC convicted him thereunder and sentenced him to death for 

the offence punishable under Section 302 IPC. The Session 

Judge also sentenced him to undergo RI for 10 years and to 

pay a fine of Rs.5,000/- for the offence punishable under 

Section 376(f)IPC and RI for one year and to pay a fine of 

Rs.1,000/- for the offence punishable under Section 201 IPC. 

It was further ordered that in default of payment of fine, 

the convict would suffer imprisonment for one year for the 

offence punishable under Section 376(f) IPC and three months 

for the offence punishable under Section 201 IPC and the 

substantive sentences would run consecutively. 

5. The  High  Court,  as  noticed  above  in  Reference, 

converted  the  capital  sentenced  to  life  imprisonment  but 

ordered that rest of the sentence remain unaltered.

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3

6. Admittedly, there was no eye-witness to the occurrence, 

the  order  of  conviction  was  based  on  the  circumstantial 

evidence only. From the evidence of Paramla Nahak (PW-1) and 

Pechi @ Bilas Bhoi (PW-2), it transpires that on the date 

occurrence at about 4 p.m. while they were making chips by 

braking boulders by the side of road, they saw the accused 

carrying the deceased on a cycle and at about 5 p.m. they 

saw him returning alone. Mulia Bhoi (PW-5) and Kalpana Bhoi 

(PW-6),  the  father  and  the  mother  of  the  deceased 

respectively, stated that the accused took the deceased on a 

cycle  on  the  pretext  that  the  later  would  talk  to  her 

brother, working at Bargarh, over phone from the house of 

Bijaya Bhoi of village Anandpur. While the accused was in 

Police custody, he confessed his guilt which was recorded 

under Ext.7. The Ext.7 reflects that on 11

th

 September, 2004 

afternoon  he  took  the  deceased  near  Arakhkuda  Salabani 

Jungle, undraped her and then committed rape on her. When 

she cried. He strangulated her to death and left the dead 

body covering it with branches of trees. On the basis of 

statement of the accused the I.O recovered the dead body and 

the  Chadi  (underwear)  of  the  deceased  lying  nearby, from 

Arakhkuda Salabani Jungle. The statement of the accused made 

before the Police Officer which distinctly relates to the 

facts of recovery is admissible under the law.

Page 4

4

7. Dr. Narayan Udgata (PW-9) stated that on 12

th

2004 he was attached to Sub-Divisional Hospital, Athamallik 

as a Specialist in O and G. On that date at 5 p.m. on Police 

requisition, he conducted autopsy over the dead body of the 

deceased-Subhasini  Bhoi  aged  about  10 years  and  found  as 

follows:

"(i) Bleeding from nostrils and mouth and both the ears 

with small clotting of blood.

 (ii) Eyes were half opened.

(iii) Bloody froth present in the nostrils and mouth.

(iv) Stool had been discharged from anus.

(v) Thumb  marks  were  present  on  the  front  of  the

neck.

(vi) Two linear abrasions of size 3” x 4” on the front of  

the neck due to scratching by some sharp weapon

like human nail.

(vii) Finger  marks  were present  on both sides  of  the 

neck and back of the neck.

(viii) Extravasation  of  blood  in  to  the  sub-cutaneous 

tissues  under  the  thumb  and  finger  marks  and

adjacent muscles of the neck.

(ix) Muscles of  neck corresponding to the thumb and

finger marks were mildly lacerated.

(x) Multiple abrasions (linear)  of  size varying from 2”

and  3”  on  both  sides  of  scapular  region.  Most 

probably caused by weapon like human nails.

(xi) Multiple abrasions on the back of both buttocks due 

to friction on a rough surface,  like rough ground

and the abrasions were associated with very mild

bleeding. The size of multiple abrasions varies from

½” x ½” to ¾” x ½”.

(xii) Laceration of  the vagina with bleeding with clots, 

most probably because of attempt to introduce the

penis-forcibly.  The penis most  probably was large

in size and the vaginal orifice of the deceased girl, 

aged  about  10  years  was  very  narrow.  The

laceration appears to have been caused by several 

attempts to introduce the penis into the vagine.

(xiii) All  the injuries were ante mortem in nature.  The

throttling was also ante mortem in nature.  There

was  no  evidence  of  seminal  fluid  in  or  around

vagina or on any part of the body of anywhere in 

the clothings of the victim.

 September, 

Page 5

5

According to Dr. Narayan Udgata (PW-9), the cause of 

death  was  due  to  throttling  and  probably  homicidal  in 

nature.  He  further  stated  that  the  accused  might  have 

attempted three to four times to introduce his penis into 

the vaginal orifice of the deceased. From his evidence, it 

further transpires that on 13

th

 September, 2004, he examined 

the accused and found seminal fluid marks on his pant. He 

also found one linear abrasion of size ¼ on the postero-

lateral aspect of the left elbow and another linear abrasion 

of the same size on the medial aspect of his right knees. 

According to him, those injuries might have been caused 12 

hours earlier to the alleged incident. Therefore, it is not 

safe to hold that in course of rape and murder of deceased, 

the  accused  sustained  those  injuries.  Dr.  Narayan  Udgata 

(PW-9),however, could not notice any sign of recent sexual 

intercourse on the private part of the accused. 

8. Mulia Bhoi (PW-5), stated that the accused confessed 

before him and Rabindra Biswal  (PW-3) and Dasarathi  Bhoi 

(PW-4) that he killed the deceased. Rabindra Biswal (PW-3) 

and Dasarathi Bhoi (PW-4) turned hostile and did not support 

the prosecution. However, Kalpana Bhoi (PW-6) corroborated 

this part of evidence of Mulia Bhoi (PW-5). When asked by 

Mulia Bhoi (PW-5) regarding the whereabout of the deceased, 

accused told that she went with a woman of Ranibandha, which 

was found to be incorrect.

Page 6

6

9. The Trial Court convicted the appellant on the basis of 

the chain of circumstantial evidence available against the 

accused.  It  was  found  that  the  accused  carried  on  the 

deceased in his cycle at about 4 p.m. but returned alone at 

5 p.m. He confessed to have murdered the deceased before 

Mulia Bhoi (PW-5). On the basis of the statement of the 

accused recorded under Section 27 of the Evidence Act, the 

I.O. discovered the dead body; the opion of the Doctor was 

that  the  deceased  was  raped  and  murdered.  The  Doctor 

examined the accused and found seminal fluid marks on his 

pant.  The accused  gave false statement  that  the  deceased 

went with a woman of Ranibandha. Paramla Nahak (PW-1) and 

Pechi  @  Bilas  Bhoi  (PW-2)saw  the  accused  carried  the 

deceased on a cycle at about 4 p.m. and returned alone one 

hour thereafter. Thus, the accused was last seen with the 

deceased. There is nothing to indicate that within one hour, 

there was any scope for anybody else, other than the accused 

to commit rape and murder of the deceased. The chain of 

circumstances of the case thereby leads to the hypothesis 

that the accused and the accused alone was the author of the 

crime, and therefore, the Trial Court rightly convicted the 

accused under Sections 376(f)/302/201 IPC.

10. During the arguments, learned counsel for the appellant 

mainly argued on the  question of consecutive sentence as 

passed by the Trial Court and upheld by the High Court. It 

Page 7

7

was contended that Trial Court and the High Court wrongly 

held that the sentences under Sections 376(f)/302/201 IPC to 

run consecutively.

11. The question arises whether the judgment passed by the 

Trial  Court  as  affirmed  by  the  High  Court,  that  the 

sentences  under  Sections  376(f)/302/201  IPC  are  to  run 

consecutively is contrary to the proviso to sub Section (2) 

of  Section  31  of  the  Code  of  Criminal  Procedure,  1973 

(hereinafter referred to as “Cr.P.C.”).

12. According to the learned Counsel for the respondent-

State of Orissa proviso to Sub Section (2) of Section 31 of 

the Cr.P.C. cannot be made applicable to a conviction for 

life imprisonment under Section 302 IPC.

13. It was submitted that imprisonment can be rigorous or 

simple (Section 60 of the Indian Penal Code). As far as life 

imprisonment is concerned, there is no such classification. 

The first classification was attempted by the Law Commission 

of India through its 39

th

 report to qualify it as rigorous 

but the same was never translated into legislation. But such 

submission is not based on any reasoning. 

14. In order to fully appreciate the question involved in 

the  present  case  it  is  desirable  to  notice  the  relevant 

provisions of Criminal Procedure Code and Indian Penal Code.

15. Section 31 of the Cr.P.C. relates to sentences in cases 

of  conviction  of  several  offences  at  one  trial.  Under 

Page 8

8

proviso to Sub Section (2) of Section 31 of Cr.P.C. in no 

case a person can be sentenced to imprisonment for a period 

longer  than  fourteen  years  and  the  aggregate  punishment 

shall not exceed twice the amount of punishment which the 

Court is competent to inflict for a single offence. Section 

31 of Cr.P.C. reads as follows:

“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. 

Page 9

9

(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.”

16. Section 45 of the Indian Penal Code defines life as 

“The word “life” denotes the life of a human being, unless 

the contrary appears from the context”.

The word “imprisonment” has not been defined either in 

the Code of Criminal Procedure or in the Indian Penal Code.

As  per  the  General  Clauses  Act,  1897  under  Section 

3(27)  –  “imprisonment”  shall  mean  imprisonment  of  either 

description  as  defined  in  the  Indian  Penal  Code.  The 

definition  of  imprisonment  under  the  General  Clauses  Act 

would,  therefore,  in  case  of  life  imprisonment  mean 

imprisonment for life/imprisonment for the remainder of the 

convict’s life.

We are not in agreement with submission made on behalf 

of  the  State  that  imprisonment  for  life  has  not  been 

included  in  the  definition  of  term  ‘imprisonment’  under 

Section 3(27) of the General Clauses Act, 1897.

17. Imprisonment for life is not confined to 14 years of 

imprisonment. A reading of Section 55 IPC and Section 433 

and 433A Cr.P.C. would indicate that only the appropriate 

Government can commute the sentence for imprisonment of life 

for  a  term  not  exceeding  fourteen  years  or  exceeds  the 

Page 10

10

release  for  such  person  unless  he  has  served  at  least 

fourteen years of imprisonment. 

Section 57 of the Indian Penal Code merely relates to 

calculating fractions of terms of punishment by providing a 

numerical value of 20 years to life imprisonment. 

Section  53  of  the  Indian  Penal  Code  lists  the 

punishments  to which  offenders  are  liable  under  the  Code 

which reads as follows:

“First-Death;

 Secondly-Imprisonment for life;

 Fourthly-Imprisonment, which is of two

          Descriptions, namely:-

 (1)Rigorous, that is, with hard labour;

 (2)Simple

 Fifty-Forfeiture of property;

 Sixthly-Fine.”

Therefore, a person sentenced to life imprisonment is 

bound to serve the remainder of his life in prison unless 

the sentence is commuted by the appropriate Government in 

terms  of  the  Section  55,  433  and  433A  of  the  Code  of 

Criminal Procedure.

18. In Gopal Vinayak Godse vs. The State of Maharashtra & 

Ors., AIR 1961 SC 600, the Constitution Bench of this Court 

while dealing with the question as to whether there is any 

provision  of  law  whereunder  a  sentence  for  life 

imprisonment,  without  any  formal  remission  by  the 

Page 11

11

appropriate Government can be automatically treated as one 

for a definite period. In the said case this Court held:

“5. If  so,  the  next  question  is  whether

there is any provision of law where under a

sentence for life imprisonment, without any

formal  remission by appropriate Government,

can  be  automatically  treated  as  one  for  a

definite period. No such provision is found

in the Indian Penal Code, Code of Criminal

Procedure or the Prisons Act. Though the Government

of

India

stated

before

the

Judicial

 

Committee

in

the

case

cited

supra

that,

having

regard

to

Section

57

of

the

Indian

Penal

 

Code,

20

years'

imprisonment

was

equivalent

 

to

a

sentence

of

transportation

for

life,

the

 

Judicial

Committee

did

not

express

its

final

 

opinion

on

that

question.

The

Judicial

Committee

observed

in that

case thus

at p. 10:

“Assuming  that  the  sentence  is  to  be

regarded  as  one  of  twenty  years,  and

subject to remission for good conduct,

he had not earned remission sufficient

to entitle him to discharge at the time

of his application, and it was therefore

 rightly  dismissed,  but  in  saying

this,  Their  Lordships  are  not  to  be

taken as meaning that a life sentence

must in all cases be treated as one of

not more than twenty years, or that the

convict is necessarily entitled to remission.”

Section 57 of the Indian Penal Code has no

real bearing on the question raised before

us.  For  calculating  fractions  of  terms  of

punishment the section provides that transportation

 for  life  shall  be  regarded  as

equivalent to imprisonment for twenty years.

It does not say that transportation for life

shall  be  deemed  to  be  transportation  for

twenty years for all purposes; nor does the

amended section which substitutes the words

“imprisonment  for life” for “transportation

for life” enable the drawing of any such all

embracing fiction. A sentence of transporta-

Page 12

12

tion for life or imprisonment for life must

prima facie be treated as transportation or

imprisonment for the whole of the remaining

period  of  the  convicted  person's  natural

life.”

19. In  State  of  Madhya  Pradesh  vs.  Ratan  Singh  &  Ors., 

(1976)  3  SCC  470,  this  Court  held  that  sentence  of 

imprisonment for life does not automatically expire at the 

end of 20 years. This Court held:

“9. From a review of the authorities and

the statutory provisions of the Code of Criminal

 Procedure  the  following  propositions

emerge:

“(1)  that  a  sentence  of  imprisonment  for

life does not automatically expire at the end

of 20 years including the remissions, because

the  administrative  rules  framed  under  the

various Jail Manuals or under the Prisons Act

cannot supersede the statutory provisions of

the Indian Penal Code. A sentence of imprisonment

for

life

means

a

sentence

for

the

entire

life

of

the

prisoner

unless

the

appropriate

 Government  chooses  to  exercise  its

discretion  to  remit  either  the  whole  or  a

part of the sentence under Section 401 of the

Code of Criminal Procedure;”

20. This Court in  Naib Singh vs. State of Punbaj & Ors., 

(1983)  2  SCC  454,  relying  upon  the  judgment  made  by  the 

Privy  Council  in  ‘Kishor  Lal’ and  Constitution  Bench 

decision of this Court in  ‘Gopal Vinayak Godse’  held that 

the  appellant  in  the  said  case  was  liable  to  serve  the 

sentence until the remainder of his life in prison. 

21. In Ashok Kumar vs. Union of India & Ors., (1991) 3 SCC 

498, this Court held that the expression “life imprisonment” 

Page 13

13

must be read in the context of Section 45 of the Indian 

Penal Code which would mean imprisonment for the full or 

complete  span  of  life.  This  Court  further  held  that  the 

provisions in Section 57 that imprisonment for life shall be 

reckoned as equivalent to imprisonment for 20 years is for 

the purpose of working out the fraction of the terms of 

punishment.

22. This Court endorsed the view taken by this Court in the 

case of Niab Singh, the Privy Council judgment in  Kishori 

Lal and the judgment in the case of Gopal Vinayak Godse in 

Satpal vs. State of Haryana & Anr., (1992) 4 SCC 172.

23. In Subash Chander vs. Krishan Lal & Ors., (2001) 4 SCC 

458,  this  Court  held  that  life  imprisonment  means 

imprisonment for the whole of the remaining period of the 

convicted  person’s  natural  life  unless  the  appropriate 

Government  chooses  to  exercise  its  discretion  to  remit 

either the whole or a part of the sentence under Section 401 

Cr.P.C.

Similar  was  the  view  taken  by  this  Court  in  Shri 

Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296.

24. This Court reiterated that life imprisonment was not 

equivalent to imprisonment for 14 years or 20 years in Mohd. 

Munna vs. Union of India & Ors., (2005) 7 SCC 417. The Court 

held that the life imprisonment means imprisonment for whole 

of the remaining period of the convicted person’s natural 

Page 14

14

life. There is no provision either in the Indian Penal Code 

or in the Criminal Procedure Code, whereby life imprisonment 

could  be  treated  as  either  14 years or  20  years  without 

there  being  of  formal  remission  by  the  appropriate 

Government.

25. In Swamy Shraddananda vs.State of Karnataka, (2008) 13 

SCC 767, this Court while substituting the sentence of death 

to life imprisonment held that the prisoner shall not be 

released from prison till the rest of his life.

Similar view was taken by this Court in Sangeet & Anr. 

vs. State of Haryana, (2013) 2 SCC 452. In the said case 

this Court held that a prisoner serving a life sentence has 

no indefeasible right to release on completion of either 14 

years or 20 years imprisonment. A convict undergoing life 

imprisonment is expected to remain in custody till the end 

of  his  life  subject  to  any  remission  granted  by  the 

appropriate Government under Section 432 Cr.P.C.

26.  From the aforesaid decisions rendered by this Court, 

it is  clear that a sentence of imprisonment for life means 

a  sentence  for  entire  life  of  the  prisoner  unless  the 

appropriate Government chooses to exercise its discretion to 

remit either the whole or a part of the sentence under the 

provisions of the Criminal Procedure Code.

27. Section 31 of Cr.P.C. relates to sentence in cases of 

conviction of several offences at one trial. Proviso to Sub 

Page 15

15

Section (2) to Section 31 lays down the embargo whether the 

aggregate punishment of prisoner is for a period of longer 

than 14 years. In view of the fact that life imprisonment 

means imprisonment for full and complete span of life, the 

question of consecutive sentences in case of conviction for 

several offences at one trial does not arise. Therefore, in 

case  a  person  is  sentenced  of  conviction  of  several 

offences,  including  one  that  of  life  imprisonment,  the 

proviso  to  Section  31(2)  shall  come  into  play  and  no 

consecutive sentence can be imposed.

28. In the case of  Kamalanantha and others vs. State of 

T.N., (2005) 5 SCC 194, this Court held:

“75. 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.

76. The contention  of  Mr  Jethmalani that the

term “imprisonment” enjoined in Section 31 CrPC

does not include imprisonment for life is unacceptable.

The

term

“imprisonment”

is

not

defined

 

under

the

Code

of

Criminal

Procedure.

Section

31

 

of

the

Code

falls

under

Chapter

III

of

the

Code

 

which

deals

with

power

of

courts.

Section

28

of

 

the

Code

empowers

the

High

Court

to

pass

any

sentence

authorised

by

law.

Similarly,

the

Sessions

 

Judge

and

Additional

Sessions

Judge

may

pass

any

 

sentence

authorised

by

law,

except

the

sentence

of

 

death

which

shall

be

subject

to

confirmation

by

 

the

High

Court.

In

our

opinion

the

term

“imprisonment”

 

would include the sentence of imprisonment

for

life.”

29. The aforesaid judgment was relied upon by this Court in 

Chatar Singh vs. State of M.P., (2006) 12 SCC 37, and held:

Page 16

16

“9. 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.  Prab-

hakaran v. P. Jayarajan

2

, but,  therein the ques-

tion of construing proviso appended thereto did

not and could not have fallen for consideration.

10. The question, however, came up for consideration

in

Zulfiwar

Ali

v.

State

of

U.P.

it was held: (All LJ p. 1181, para 25)

“25. The opening words ‘In the case of consecutive

 sentences’ in  sub-section  (2)  of

Section 31 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.”

3

 wherein 

11. 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

subserved

if

the

appellant

is

directed

to

be

sentenced

to

the

period

 

already

undergone.”

Page 17

17

30. In  the  recent  judgment  in  Ramesh  Chilwal  alias 

Bambayya vs. State of Uttarakhand, (2012) 11 SCC  629, this 

Court held:

“4. Since this Court issued notice only to

clarify  the  sentence  awarded  by  the  trial

Judge, there is no need to go into all the

factual details. We are not inclined to modify

 the  sentence.  However,  considering  the

fact that the trial Judge has awarded life

sentence for an offence under Section 302, in

view of Section 31 of the Code of Criminal

Procedure, 1973, we make it clear that all

the sentences imposed  under IPC, the Gangsters

Act

and

the

Arms

Act

are

to

run

concurrently.”

31. In  view  of  the  aforesaid  discussions  and  decisions 

rendered by this Court, we hold that the Trial Court was not 

justified  in  imposing  the  sentence  under  Section 

376(f)/302/201  IPC  to  run  consecutively.  The  High  court 

failed to address the said issue.

32. For the reasons stated above, while we are not inclined 

to interfere with the order of conviction and the sentence, 

considering the fact that the accused has been awarded life 

imprisonment for the offence under Section 302, we direct 

that all the sentences imposed under Indian Penal Code are 

to  run  concurrently.  The  judgment  passed  by  the  Session 

Judge as affirmed by the High Court stands modified to the 

extent  above.  The  appeals  are  allowed  in  part  with  the 

aforesaid observations. 

Page 18

18

……………………………………………………………………………J.

                  (SUDHANSU JYOTI MUKHOPADHAYA)

……………………………………………………………………………J.

               (DIPAK MISRA)

NEW DELHI,

JULY 01, 2014.

Page 19

19

ITEM NO.1D               COURT NO.6                 SECTION IIB

(For Judgment)

               S U P R E M E  C O U R T  O F  I N D I A

                          RECORD OF PROCEEDINGS

Criminal Appeal No(s). 2277-2278/2009

DURYODHAN ROUT                                     Appellant(s)

                                VERSUS

STATE OF ORISSA                                    Respondent(s)

Date : 01/07/2014 These appeals were called on for pronouncement

of Judgment today.

For Appellant(s) Mr. T. N. Singh ,Adv.

For Respondent(s) Mr. Shibashish Misra ,Adv.

        Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya pronounced

the reportable judgment of the Bench comprising His Lordship and

Hon'ble Mr. Justice Dipak Misra.

The  appeals  are  allowed  in  terms  of  the  signed  reportable

judgment.

Page 20

(MEENAKSHI KOHLI)                               (USHA SHARMA)

  COURT MASTER                                   COURT MASTER 

[Signed reportable judgment is placed on the file]

Page 21

 

Vineet Kumar
on 03 July 2014
Published in Criminal Law
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