JITENDRA @ KALLA versus STATE OF GOVT. OF NCT OF DELHI on 25 October 2018

SUPREME COURT REPORTS[2018] 12 S.C.R. 622

[2018] 12 S.C.R.

JITENDRA @ KALLA

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STATE OF GOVT. OF NCT OF DELHI

(Criminal Appeal No. 2133 of 2017 etc.)

BOCTOBER 25, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Sentence/Sentencing: Trial of the appellant-accused foroffence under two FIRs – Trial court convicted the accused – Inboth the cases sentence of rigorous life imprisonment was imposed –CIn respect of the first case trial court directed that the accused wouldnot be considered for grant of remission till he underwent the actualsentence of 30 years – In respect of the second case trial courtdirected that the life sentence would start after the life sentence infirst case was over and was to continue for the rest of the life of theDaccused – In High Court counsel for the accused stated that it didnot intend to challenge the findings on conviction and confined thechallenge to the sentence – High Court discussing the evidencefound that the accused was rightly convicted – In respect of lifesentences in the two cases High Court held that the sentences couldnot run consecutively in view of s. 427(2) of Cr.P.C. – Applying theEprinciple of “just deserts” High Court reduced the sentence to theperiod already undergone i.e. 16 years and 10 months and directedto release the accused forthwith – High Court thereafter, correctedits judgment by deleting the portion, whereby it had reduced thesentence to the period already undergone and had directed releaseFof the accused, as a typographical mistake – In appeal, accusedchallenged the modification order regarding the sentence and alsochallenged the conviction – Plea of accused that the statement ofthe counsel for the accused before High Court for not pressingchallenge to his conviction, was made without such instruction fromthe accused – Held: Court records show that statement was madeGby the counsel on the instruction from the accused – However,notwithstanding such statement High Court had considered thematter on merit and held that conviction order by trial court wasjustified – The alteration of the punishment to the period alreadyundergone, was not a typographical mistake – ThereforeH

modification of its order by the High Court was beyond itsjurisdiction – In view of s. 427 of Cr.P.C. order of consecutivesentences could not have been passed – However, High Court wasnot correct in removing the cap of 30 years – Thus, conviction isupheld; the life sentences would run concurrently and the accusedwould not have a right to seek remission till the completion of 30years of RI – Code of the Criminal Procedure, 1973 – ss. 31 and427.

Remission of Sentence – Discussed.

Code of Criminal Procedure, 1973: s. 427 – Life sentences –Held: Cannot be given consecutively – They shall run concurrently –Sentence/Sentencing.

Dismissing the appeals filed by the accused and partlyallowing those filed by the complainants and the State, the Court HELD: 1.1 It is not correct that Counsel for the appellanthad made a statement before the High Court without instructionsfrom the appellant. The High Court records “that the appellantdoes not press the appeal on merits with respect to the judgmentof conviction” and specifically states that the statement is made‘on instructions’ in this behalf. It is clear from the above that thecounsel for the appellant had received the instructions not topress the case on merits. After the judgment was pronounced,at no stage, the appellant took the objection that the aforesaidstatement was made without instructions. It is stated for the firsttime in the present appeals. The Court record has to be believed.If according to the aggrieved party there is some error, the onlyoption with the aggrieved party is to approach that very court,seeking correction of that order. It was not done. Therefore, theCourt has to proceed on the premise that the counsel for theappellant had made the aforesaid statement on instructions fromthe appellant. [Para 20] [636-D-H]

Muthuramalingam and others v. State represented byInspector of Police (2016) 8 SCC 313 : [2016] 5 SCR30 – followed.

State of Maharashtra v. Shrinivas Nayak and Another(1982) 2 SCC 463 : [1983] 1 SCR 8 – relied on.

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AJeetu @ Jitendra and Others v. State of Chhattisgarh(2013) 11 SCC 489 : [2012] 13 SCR 161 – referred to.

1.2 Notwithstanding, the said statement, discussion ensuedon merits. The High Court has taken note of the witnesses whowere examined by the prosecution to prove its charges in bothBthe cases. The High Court has also taken note of MLC reportwhich was duly proved by the prosecution. It has also gonethrough the testimony of FSL Expert (Ballistic Expert).Deposition of the police officials who played their part at differentstages including investigation has also been taken note of. Thetestimony of certain other official witnesses is also kept in mindCby the High Court with specific reference thereto. On the basisof such discussions, the High Court held that “the trial courtbased on the testimonies of various witnesses includingeyewitness and based on the scientific evidence rightly convictedthe appellant under Section 302 of the Indian Penal Code.” [Para D21] [637-A-B, E-F]

2. The Order dated February 14, 2017 deleting two linesfrom the main judgment dated December 24, 2016 does not standjudicial scrutiny, inasmuch as, by no stretch of imagination it canbe treated as typographical error. When the judgment datedEDecember 24, 2016 is read in its entirety on the issue ofsentencing, it becomes apparent that the High Court, in itswisdom, thought it proper to modify the order of sentence to theperiod already undergone. [Para 23] [637-G-H]

3.1In the first charge sheet in respect of 1[st] offence theFtrial court, while imposing sentence of life imprisonment, put acap of 30 years thereby clearly stating that no remission wouldbe permissible before that. Again, while inflicting lifeimprisonment in the second case, it stated that the sentencewould be for whole life and would start only after completion ofthe sentence in the first offence. Thus the trial court awardedGconsecutive sentences. Both the cases were tried together.Conviction was recorded by one common judgment. Likewisesentences were also recorded by one common order. In thisbackdrop, the High Court has correctly come to conclusion thatthere was no question of giving consecutive sentences andHsentences had to be concurrent. The High Court also specifically referred to Section 427 of CrPC., whereby “ When a person alreadyundergoing a sentence of imprisonment for life is sentenced on asubsequent conviction to imprisonment for a term orimprisonment for life, the subsequent sentence shall runconcurrently with such previous sentence.” [Paras 28-29] [639-C-E, F-G]

3.2Remissions are of two types. One type of remission iswhat is earned by a prisoner under the Prison Rules or otherrelevant rules. The other remission is by the appropriateGovernment in exercise of its power under Section 432 of theCriminal Procedure Code. Therefore, when a remission of thesubstantive sentence is granted under Section 432, then and thenonly giving credit to the earned remission can take place and nototherwise. Similarly, in the case of a life imprisonment, meaningthereby the entirety of one’s life, unless there is a commutationof such sentence for any specific period, there would be no scopeto count the earned remission. The special category of sentence,to be considered in substitute of death penalty by imposing a lifesentence i.e. the entirety of the life or a term of imprisonmentwhich can be less than full life term but more than 14 years isbeyond application of remission. Section 31 of Cr.P.C. be sointerpreted as to prevent any anomaly or irrationality. Sointerpreted Section 31(1) CrPC must mean that sentencesawarded by the court for several offences committed by theprisoner shall run consecutively (unless the court directsotherwise) except where such sentences include imprisonmentfor life which can and must run concurrently. If more than one lifesentences are awarded to the prisoner, the same would getsuperimposed over each other. This will imply that in case theprisoner is granted the benefit of any remission or commutationqua one such sentence, the benefit of such remission would notipso facto extend to the other.” Thus, the order of the High Courtremoving the cap of 30 years is not correct and that portion hasto be set aside. [Paras 30 and 31] [639-H; 640-A-D; 641-A-B]

Unionof India v. V. Sriharan @ Murugan & Ors.(2016)7 SCC 1 : 2015 (13)SCALE;Muthuramalingam andothers v. State represented by Inspector of Police (2016)8 SCC 313 : [2016] 5 SCR 30 – followed.

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A4. The conviction of the appellant is sustained. However,sentences in both the cases shall run concurrently. The net effectthereof would be that the appellant is given life imprisonment inboth the cases with the condition that he will have no right toseek remission till the completion of 30 years of rigorousimprisonment. [Para 33] [641-F-G]B

Swamy Shraddananda (I) v. State of Karnataka(2007)12 SCC 288 : [2007] 7 SCR 616; SwamyShraddananda (II) v. State of Karnataka(2008) 13SCC 767 : [2008] 11 SCR 93; Shri Bhagwan v. State ofRajasthan (2016) 6 SCC 296; Union of India v. V.CSriharan @ Murugan & Ors.(2016) 7 SCC 1 : 2015(13) SCALE;Birju v. State of M.P.(2014) 3 SCC 421 :[2014] 1 SCR 1047; Sumer Singh v.Surajbhan Singand Ors.[2014 (3) JCC 2282];State of M.P. v. BabulalAIR 2008 SC 582 : [2007] 12 SCR 795; Jameel v.DState of Uttar Pradesh (2010) 12 SCC 532 : [2009] 15SCR 712;Gopal Singh v. State of Uttarakhand2013(2) SCALE 533; Dulla and Ors. v. StateAIR 1958 All198 – referred to.

Case Law Reference

[1983] 1 SCR 8relied onPara 19

[2016] 5 SCR 30followedParas 19, 31

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2133 of 2017

From the Judgment and Order dated 24.12.2016 of the High Courtof Delhi at New Delhi in Criminal Appeal No. 966 of 2013.

WITH

Criminal Appeal Nos. 2135-2136, 2134, 2139, 2137-2138 of 2017.

A. N. S. Nadkarni, ASG, Ms. Vibha Dutt Makhija, Sanjay R.Hegde, Ms. Kiran Suri, Sr. Advs., Manish Kumar, Piyush Kaushik, AmitKumar, Nakul Jain, Y. Saratchand, Varun Kapur, Ms. Divya Roy, PrashantBhushan, A Rohen Singh, Randhir Kumar, Vivek Kumar, Naveen Kumar,Kumar Mihir, Pranjal Kishore, Kumar Mihir, B. V. Balaram Das, A. K.Srivastava, R. K. Verma, S. K. Pathak, B. Krishna Prasad, Advs. forthe appearing parties.

The Judgment of the Court was delivered by

A. K. SIKRI, J. Criminal Appeal Nos. 2133 of 2017 and 2134 of2017 are filed by Jitendra @ Kalla (hereinafter referred to as the“appellant”) against whom two FIRs, namely, FIR No. 67 of 1999 underSections 302/307/34 of the Indian Penal Code (for short, “IPC”) andFIR No. 68 of 1999 under Sections 120B/302, IPC were registered.After investigation and filing of charge sheets in both the incidents, thecharges under aforesaid provisions were framed and trial took place.The trial court convicted the appellant by a common judgment datedJuly 01, 2013. Though we would take note of the facts, which arerelevant for these appeals, in some detail hereinafter, it would be pertinentto mention at this stage that as per the case of the prosecution the appellantmurdered one Anil Badana on March 10, 1999 in the marriage receptionof one, Vijay, within the area of Police Station Keshav Puram. Apartfrom other persons, one, Sumit Nayyar, son of Kimti Lal Nayyar waseyewitness to the said incident and had immediately informed the policeabout the murder of Anil Badana by making PCR calls wherein he hadspecifically named the appellant as a person who had committed thecrime. As per the prosecution, in order to liquidate this eyewitness also,on the same night, intervening March 10 and 11, 1999, at around 12:30am, the appellant went to the house of Sumit Nayyar in Mukherjee Nagar, A

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ADelhi and rang doorbell. Sumit’s father, Kimti Lal Nayyar came out tocheck as to who had rung doorbell of his house, someone fired uponwith a gun and three bullets hit his body. The investigation revealed thatit is the appellant who had shot dead Kimti Lal Nayyar as well. The twoFIRs mentioned above pertain to these two incidents.B2. After recording the finding of guilt in both the cases and B2. After recording the finding of guilt in both the cases andconvicting the appellant for the charges framed against him in the FIRNo. 67 of 1999 the appellant was sentenced to rigorous imprisonmentfor life with a direction that he shall not be considered for grant of remissiontill he undergoes the actual sentence of 30 years plus fine in the sum ofRs. 3 lac. In default of payment of fine further simple imprisonment forCa period of three years was awarded. Out of the aforesaid fine of Rs. 3lac, a sum of Rs. 1 lac was to be paid to the State and balance of Rs. 2lac was directed to be paid to the family of deceased — Anil Badana ascompensation under Section 357 of Code of Criminal Procedure (Forshort, ‘CrPC”). For offences under Section 307 of the IPC, the appellant Dwas sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1lac, in default of payment of fine further simple imprisonment for a periodof one year. These sentences are to run concurrently. Insofar asconviction under FIR No. 68 of 1999 are concerned, the appellant wassentenced to undergo rigorous imprisonment for life by making it clearthat it is till the rest of his life and he was also directed to pay a fine ofERs. 3 lac in this case also which was to be shared in the same manner,namely, Rs. 1 lac to the State and Rs. 2 lac to the family of deceased —Kimti Lal Nayyar. The trial court also directed that sentence in this casewould start running consequent to and only after the conclusion ofsentence imposed in FIR No. 67 of 1999.F

3. Against these convictions, the appellant filed two appealsbefore the High Court which were decided by a common judgment datedDecember 24, 2016. During the arguments, the counsel for the appellantmade a statement at the Bar to the effect that the appellant did notintend to press the challenge to the findings of conviction recorded byGthe Trial Court and confined his submissions only to the sentencing part.

4. Still, the High Court discussed the evidence which wasproduced by the prosecution in both the cases and remarked that theappellant was rightly convicted.

5. Thereafter, the High Court went into the question of respectiveHsentences which are given in each of the cases by the trial court. The argument of the counsel for the appellant challenging the sentence oflife imprisonment, with the condition that the appellant would have toundergo the actual sentence of 30 years without any remission and lifeimprisonment in the second case to mean that it would be for the rest ofhis life, was challenged by the learned counsel for the respondent.

6. After taking note of reasons which were given by the trialcourt in awarding specific sentences in the two cases, the High Courtfound that two broad issues arise for consideration which are as follows:

(i) The first issue which arose for consideration was whether the orderof the trial court that both the sentences are to run consecutively requiresinterference or not”?

(ii) If the sentences are not to run consecutively, whether the order onsentence in both the appeals requires interference?

7. Insofar as issue no. (i) is concerned, the High Court referredto the provisions of Section 427(2) of the CrPC on the basis of which itconcluded that it was not to run consecutively. Thereafter, the HighCourt adverted to the issue no. (ii) and in the process took note of variousjudgments[1], on the basis of which it concluded that the trial court exceededits jurisdiction in awarding the sentences in the aforesaid manner. Thediscussion in this behalf is contained in para 52 of the judgment of theHigh Court which reads as under:

“55. In view of the decision rendered by the five Judge Benchof the Supreme Court in the case of Union of India v. V. Sriharan@ Murugan and Ors. (supra), more particularly as held inparagraphs 103 and 104, we are of the view that the trial courtexceeded its jurisdiction. Even otherwise, we are of the viewthat the trial court in this case has acted in utter haste by passingthe order on sentence on the same day with a per-determinedmind. Having regard to the gravity of the matter, the trial courtshould have allowed reasonable opportunity to the counsel for 1 (i) Swamy Shraddananda (I) v. State of Karnataka [(2007) 12 SCC 288];

(ii) Swamy Shraddananda (II) v. State of Karnataka [(2008) 13 SCC 767];

(iii) Shri Bhagwan v. State of Rajasthan [(2016) 6 SCC 296];

(iv) Union of India v. V. Sriharan @ Murugan & Ors. [(2016) 7 SCC 1 = 2015 (13) SCALE];

(v) Birju v. State of M.P. [(2014) 3 SCC 421];

(vi) Sumer Singh v. Surajbhan Sing and Ors. [2014 (3) JCC 2282]

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Athe accused to address arguments on sentence. The trial courthas shown utter impatience and also incorrectly applied the law.We may notice that the Full Bench of the Supreme Court in thecase of Union of India v. V. Sriharan @ Murugan and Ors.(supra) held that the ratio laid down in the case of SwamyShraddananda (supra) with a very special category of sentenceBinstead of death for a terms exceeding 14 years and put thatcategory beyond application of remission is well-founded. Wehave extracted above the aforegoing paragraph 92 in the caseof Swamy Shraddananda (II) v. State of Karnataka wherein theHon’ble Supreme Court discussed a situation where a sentenceCmay be excessive and duly harsh or may be highlydisproportionately inadequate. The Court may find that a casefalls short of the rarest of the rare category. But at the sametime, having regard to the nature of the crime, the court maystrongly feel that a sentence of life imprisonment that subject toremission which normally works out to a term of 14 years mayDbe grossly disproportionate and inadequate. Faced with thisquandary with two alternates, i.e., either death or life of not morethan 14 years, the Court may be led to passing a death sentence.The Court cautioned of such a prejudice and viewed such acondition to be disastrous and held the Court would take recourseEto the expanded option.”

8. Thereafter, the Court discussed the adequacy of sentence inthe circumstances of the two cases in which the appellant had beenconvicted and went through various judgments[2 ]of this Court.

9. After taking note of the principles laid down in the judgmentsFtaken note of by the High Court, the Court summed up the position asunder:

“We believe that being a civilised society—a tooth for a toothand an eye for an eye ought not to be the criterion and as suchthe question of there being acting under any haste in regard toGthe life imprisonment would not arise; rather our jurisprudencespeaks of the factum of the law courts being slow in that direction 2 (i) State of M.P. v. Babulal [AIR 2008 SC 582];

(ii) Jameel v. State of Uttar Pradesh; [(2010) 12 SCC 532]

(iii) Gopal Singh v. State of Uttarakhand [2013 (2) SCALE 533]

(iv) Dulla and Ors. v. State [AIR 1958 All 198]

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and it is in that perspective a reasonable proportion has to bemaintained between the heinousness of the crime and thepunishment. While it is true, punishment disproportionately severeought not to be passed but that does not even clothe the lawcourts, however, with an opinion to award the sentence whichwould be manifestly inadequate having due regard to the natureof offence since an inadequate sentence would not subserve thecause of justice to the society. The Courts would draw a balance-sheet of aggravating and mitigating circumstances. Both aspectshave to be given their respective weightage. The Court has tostrike a balance between the two and see towards which sidethe scale/balance of justice tilts. The principle of proportionbetween the crime and the punishment is the principle of “justdeserts” that serves as the foundation of every criminal sentencethat is justifiable. In other words, the “doctrine of proportionality”has a valuable application to the sentencing policy under the IndianCriminal Jurisprudence. Thus, the court will not only have toexamine what is just but also as to what the accused deserveskeeping in view the impact on the society at large.

10. On the application of the aforesaid principles, the High Courtconcluded that the punishments awarded to the appellant were excessivein nature and modified the same by removing the cap of 30 years andsentencing the appellant to the period already undergone, i.e., 16 yearsand 10 months. The direction was given to release the appellant forthwithif not required in any other case. The aforesaid judgment was deliveredon December 24, 2016. Thereafter, the High Court listed the matter ofits own for directions on February 14, 2017 as according to it, atypographical error was noticed in the said judgment. On this day,following order was passed:

“This matter has been listed today for directions. A typographicalerror was noticed post delivery this judgment dated 24.12.2016in the concluding portion. The error is rectified and theextraneous sentence, which crept in, is deleted.

“…..to the period already undergone by the appellant i.e. 16years and 10 month.”

“…..The appellant be released forthwith, if not required in anyother case…...”

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AMr. Sharma, learned counsel for the appellant, submits that hehas no contact with the appellant.

Let a copy of this order be sent to Superintendent Central Jailfor appropriate action and DASTI be also given to the counselfor the parties, under the signatures of the Court Master.”

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11. In these appeals, both the aforesaid orders have beenchallenged. The appellant has challenged his conviction insofar as thetrial in two cases is concerned. It may be noted that the appellant wassatisfied with the orders dated December 24, 2016 as per which he wasreleased on serving the sentence already undergone. However, afterCthe correction in the said order dated February 14, 2017, he chose tochallenge the conviction as well and filed the instant appeals. Other twoappeals are filed by the families of the victims in two cases questioningthe modification of sentence by the High Court vide judgment datedDecember 24, 2016. Even the State has filed the appeal against themodification order.D

12. We may record that in the special leave petitions filed by theappellant though the notice was issued on April 07, 2017, this Courtrefused to stay the orders dated February 14, 2017 and directed theappellant to surrender. He was permitted to make an application for bailwith the observation that the same would be considered on its own merits.EThe appellant, accordingly, surrendered and, at present, he is in jail. Theappellant did move the application for bail. However, instead of hearingthe argument in the said application, the Court decided to hear theseappeals finally. This is how the matters were heard on merits.

13. In the aforesaid context, three questions have arisen forFconsideration, which are as follows:

(i) Whether the appellant has been rightly convicted for theoffences mentioned in the two chargesheets? Here, the incidentalquestion is as to whether the appellant can raise such a pleawhen it was not pressed before the High Court.

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(ii) Whether the order of the High Court modifying the sentencesas awarded by the trial court is proper and justified?

(iii) Whether the High Court could pass the ‘correction’ orderson February 14, 2017 on the ground that typographical error hadbeen noticed in the main judgment dated December 24, 2016?

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14. Ms. Vibha Makhija, learned senior counsel appearing for theappellant made a fervent plea to the effect that the manner in which thiscase has progressed from the stage of trial till the High Court wouldreflect that the appellant has been given a raw deal and his case has notbeen properly dealt with either by the trial court or the High Court, insofaras conviction of the appellant in the two cases is concerned. From theevents that took place in the trial court, she laboured to demonstrate thatit depicted biased investigation and there was even judicial bias whichresulted in denial of fair trial. According to her, conviction was illegaland even the sentences passed by the trial court were contrary to law.According to her, the same mistake occurred at the High Court level asthe High Court took a shortcut by recording the concession of the counselfor the appellant that insofar as conviction is concerned it was not pressed.She also submitted that though the High Court, in the first instance, gavea partial relief by reducing the sentence to the period already undergonebut thereafter committed a grave error in rectifying the said order whichwas beyond its powers. Her submission was that the order of sentencealready undergone could, by no imagination, be termed as “typographicalerror” and on that pretext “corrected” by the High Court in such a manner,unknown to the law. She also argued that even if the order datedDecember 24, 2016 releasing the appellant after surrendering thesentence already undergone was not correct in law, such an error couldbe rectified only by a higher forum as the High Court had becomefunctus officio after delivering its judgment of December 24, 2016.

On the basis of the aforesaid submissions, plea of the learnedsenior counsel was that the matter should be remitted back to the HighCourt for fresh consideration on merits, i.e., on the issue of conviction aswell as on the sentence, if the conviction is sustained by the High Courton fresh consideration.

15. In an attempt to commend this Court to accept the aforesaidapproach, Ms. Makhija made submissions at two levels. In the firstinstance, it was argued that even if the counsel for the appellant hadmade a statement that she was not pressing the case insofar as convictionis concerned, such a concessions should not have been accepted by theCourt and it was the bounden duty of the court to decide the case onmerits. In support of this submission, she referred to the judgment ofthis Court in Jeetu @ Jitendra and Others v. State of Chhattisgarh[3],relevant portion thereof is reproduced hereunder:

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“23. At this juncture, we are obliged to state that when aconvicted person prefers an appeal, he has the legitimateexpectation to be dealt with by the courts in accordance withlaw. That apart, he has intrinsic faith in the criminal justicedispensation system and it is the sacred duty of the adjudicatorysystem to remain alive to the said faith. He has embedded trustin his counsel that he shall put forth his case to the best of hisability assailing the conviction and to do full justice to the case.That apart, a counsel is expected to assist the courts in reachinga correct conclusion. Therefore, it is the obligation of the courtto decide the appeal on merits and not accept the concessionand proceed to deal with the sentence, for the said mode andmethod defeats the fundamental purpose of the justice deliverysystem. We are compelled to note here that we have comeacross many cases where the High Courts, after recording thenon-challenge to the conviction, have proceeded to dwell uponthe proportionality of the quantum of sentence. We may clearlystate that the same being impermissible in law should not betaken resort to. It should be borne in mind that a convict who hasbeen imposed substantive sentence is deprived of his liberty, thestem of life that should not ordinarily be stenosed, and hence, itis the duty of the Court to see that the cause of justice is subservedwith serenity in accordance with the established principles oflaw.

16. She submitted that apart from the above legal position, insofaras present case is concerned no such instructions were given to thelawyer by the appellant to give such a concession.

17. At second level, the learned senior advocate tried to submitthat there were various circumstances in the case which would reflectthat it was an arguable case on merits and, therefore, there was noquestion of giving up the issue of conviction. In this behalf, she flaggedthe aspects of improper motive, inimical eyewitnesses, contradiction inthe testimony of those witnesses, non-examination of independentwitnesses even when the murder of Anil Badana took place in a marriagefunction where so many persons were present, father of the groom hadturned hostile, recoveries which were made were illegal, forensicexamination was conducted after much delay and circumstances ofsecond murder were also suspicious. Her passionate plea was that had chance been given to the appellant, there could have been detailedarguments on these aspects, with a possibility of favourable verdict forthe appellant.

18. Mr. A.N.S. Nadkarni, learned Additional Solicitor General aswell as Ms. Kiran Suri, learned Senior Advocate appearing for the Statestrongly refuted the aforesaid submissions. They submitted that duringthe arguments before the High Court when it was found that the appellanthad no case on merits, his counsel pleaded only on sentencing. It wasalso argued that statement of the counsel is specifically recorded in para6 of the High Court judgment and the sanctity of the court record has tobe maintained which cannot be questioned by approaching the higherforum. It was emphasised that inspite of this statement, the High Courthad, in fact, gone into the evidence and satisfied its conscience to theeffect that the trial court had come to a right conclusion about theconviction of the appellant. In this backdrop, the judgment cited by theappellant was not applicable. They also briefly touched the merits of thecase in the context of replying to the arguments of the learned counselfor the appellant and submitted that the issues flagged now on which thelearned senior counsel for the appellant wanted to argue, do not evenarise from the record. It was contended that nothing of the nature waseven put to the prosecution witnesses and an attempt to find the allegedloopholes in the prosecution case was made for the first time before thisCourt. Insofar as sentence given by the trial court is concerned, it wasargued that the trial court was perfectly justified in putting a cap of 30years’ rigorous imprisonment before the request for remission can begranted referring to the Constitution Bench judgment of this Court inSriharan @ Murugan (supra).

19. Mr. Sanjay R. Hegde, learned senior counsel who appearedfor the complainant in one case and Mr. Prashant Bhushan, Advocatewho appeared for complainant in other case, supported the aforesaidsubmissions of the State. It was additionally argued that even if the‘correction’ order dated February 14, 2017 was wrong, since the appealswere preferred against the main judgment dated December 24, 2016,this Court could always go into the issue as to whether modification ofsentence carried out by the High Court was proper or not.

On the aspect that the statement contained in para 6 of thejudgment of the High Court could not be questioned by the appellant,Mr. Hegde referred to the judgment of this Court in State of Maharashtra A

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Av. Shrinivas Nayak and Another[4]. He also relied upon the judgment inMuthuramalingam and others v. State represented by Inspector ofPolice[5]

20. Having noted the submissions of the counsel for the parties,we proceed to discuss three questions formulated above. Insofar asBquestion No. 1 is concerned, the contention of Ms. Makhija that counselfor the appellant had made a statement before the High Court withoutinstructions from the appellant cannot be accepted. We may reproduceparagraph 6 of the High Court judgment which states to the contrary. Itreads as under:

C“6. At the outset, learned counsel for the appellant on instructionshas submitted that the appellant does not press the appeals onmerits with respect to the judgment on conviction but has laidchallenge to the order on sentence passed in both the appeals.”

It records “that the appellant does not press the appeal on meritsDwith respect to the judgment of conviction” and specifically states thatthe statement is made ‘on instructions’ in this behalf. It is clear from theabove that the counsel for the appellant had received the instructions notto press the case on merits. After the judgment was pronounced, at nostage, the appellant took the objection that the aforesaid statement wasmade without instructions. It is stated for the first time in these appealsEand the special leave petitions were filed in March, 2017, only after theHigh Court had passed orders dated February 14, 2017 “correcting”earlier order dated December 24, 2016 by terming it as typographicalerror. It is argued by the appellant that since the order of sentencepassed in the judgment dated December 24, 2016 went in his favour, heFwas not bothered about the aforesaid statement of his counsel. However,fact remains that even thereafter he did not approach the High Courtwith the plea that he had not authorised his advocate to make such astatement. Law on this subject is well settled in the judgments cited byMr. Hegde. The Court record has to be believed. If according to theaggrieved party there is some error, the only option with the aggrievedGparty is to approach that very court, seeking correction of that order. Itwas not done. Therefore, we have to proceed on the premise that thecounsel for the appellant had made the aforesaid statement on instructionsfrom the appellant.

4 (1982) 2 SCC 463H5 (2016) 8 SCC 313

21. Notwithstanding, the said statement, it was necessary for theHigh Court to still go through the record to satisfy as to whether theconviction is properly recorded. We find that this exercise has in factbeen duly undertaken by the High Court. After recording the statementin para 6, discussion ensued on merits from paragraph 7 onwards. TheHigh Court has taken note of the witnesses who were examined by theprosecution to prove its charges in both the cases. It has mentioned thatthe prosecution based on the testimony of eyewitnesses thereafter briefdescription of the depositions of these witnesses have been recorded bythe High Court. The High Court has also taken note of MLC reportwhich was duly proved by the prosecution. It has also gone through thetestimony of FSL Expert (Ballistic Expert). Deposition of the policeofficials who played their part at different stages including investigationhas also been taken note of. The testimony of certain other officialwitnesses is also kept in mind by the High Court with specific referencethereto. On the basis of such discussions, the High Court has made thefollowing observations qua each of these cases:- “22.Based on the testimonies of these witnesses, the trial courtheld the appellant to be guilty. Although the counsel for theappellant had submitted that he does not challenge the judgmenton conviction yet we have carefully examined the testimonies ofthese witnesses and, in our view, the trial court has correctlyheld the appellant to be guilty.

29. In our view, the trial court based on the testimonies of variouswitnesses including eyewitness and based on the scientificevidence rightly convicted the appellant under Section 302 ofthe Indian Penal Code.”

22. We, therefore, do not find any force in this argument and decidethis issue against the appellant.

23. Before dealing with Question No. 2, it would be apt to firstdiscuss Question No. 3. We are of the view that order dated February14, 2017 deleting two lines from the main judgment dated December 24,2016 does not stand judicial scrutiny, inasmuch as, by no stretch ofimagination it can be treated as typographical error. When the judgmentdated December 24, 2016 is read in its entirety on the issue of sentencing,a brief narration whereof has already been given above, it becomesapparent that the High Court, in its wisdom, thought it proper to modifythe order of sentence to the period already undergone. As pointed out A

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Aabove, the High Court took note of various judgments including of theSupreme Court. Thereafter in paragraph 61, it made categoricalaverments that in a civilised society, a tooth for a tooth ad an eye for aneye ought not to be the criterion in awarding the sentence. It also observedthat the Court was required to pass a sentence which is neitherdispassionately severe nor manifestly inadequate. For this purpose, it isBrequired to give due regard to the nature of offence and draw a balance-sheet of aggravating and mitigating circumstances. After this discussion,the Court modified the order of sentence in the following manner:

“62. In the contextual facts, on considering the aforesaid principlesand having regard to the nature of the offence and theCmethodology adopted, we are convinced that the power to imposea modified punishment providing for any specific term ofincarceration or till the end of the convict’s life as an alternate todeath penalty, can be exercised depending on the facts of thecase. Further, the punishment awarded to the appellant herein isDin excess of the requirement of the situation and as such themitigating facts put forth by the learned counsel for the appellantare meant to invite mercy on the appellant. We are of theconsidered view that to meet the ends of justice, the cap of 30years must be removed. Hence, we modify the order on sentenceto the period already undergone by the appellant, i.e, 16 yearsEand 10 months.”

24. It does not need further elaboration to hold that the lastsentence in the aforesaid paragraph by which the Court modified thepunishment to the period already undergone, i.e., 16 years and 10 monthswas not a typographical error.F

25. One thing is absolutely clear. In both the FIRs there was acharge of murder under Section 302, IPC. Conviction was recorded onboth the charges by the trial court which was affirmed by the HighCourt as well. For the offence of murder, minimum sentence is ‘lifeimprisonment’. For that reason, obviously, the High Court could notGhave modified the sentence to the one already undergone. Therefore,modification in the aforesaid manner as done by the High Court wasclearly erroneous. In fact, it appears that the High Court realised thismistake and, therefore, made amends by correcting this mistake videorders dated February 14, 2017. However, that step taken by the HighCourt was beyond its jurisdiction. It could have been done only in appeal.

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That exercise is precisely done by this Court by setting aside that part ofthe order.

26. Order dated February 14, 2017, therefore, cannot hold theground and is hereby set aside.

27. We now take up the second issue. This question arises forconsideration because of the reason that main judgment dated December24, 2016 is challenged by the two complainants as well as the State.

28. To answer this issue, we are called upon to decide relatedquestion, viz. whether the manner of imposition of sentences by the trialcourt was justified? To recapitulate, in the first charge sheet in respectof 1[st] offence the trial court, while imposing sentence of life imprisonment,put a cap of 30 years thereby clearly stating that no remission would bepermissible before that. Again, while inflicting life imprisonment in thesecond case, it stated that the sentence would be for whole life andwould start only after completion of the sentence in the first offence. Inother words, it awarded consecutive sentences and not concurrentsentences.

29. Both the cases were tried together. Conviction was recordedby one common judgment. Likewise sentences were also recorded byone common order. In this backdrop, the High Court has correctly cometo conclusion that there was no question of giving consecutive sentencesand sentences had to be concurrent. For coming to this conclusion variousjudgments on the point were noted. The High Court also specificallyreferred to Section 427 of CrPC. relevant portion whereof reads asunder:

“S. 427 : (1) xxxxxxxxx(2) When a person already undergoing a sentence ofimprisonment for life is sentenced on a subsequent conviction toimprisonment for a term or imprisonment for life, the subsequentsentence shall run concurrently with such previous sentence.”

30. We now advert to the issue of 30 years’ cap while awardinglife conviction. This aspect is now conclusively determined by aConstitution Bench judgment of this Court in Sriharan @ Murugam(Supra) wherein this Court held as under:

“62. As far as remissions are concerned, it consists of two types.One type of remission is what is earned by a prisoner under the A

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Prison Rules or other relevant rules based on his/her goodbehaviour or such other stipulations prescribed therein. The otherremission is the grant of it by the appropriate Government inexercise of its power under Section 432 of the Criminal ProcedureCode. Therefore, in the latter case when a remission of thesubstantive sentence is granted under Section 432, then and thenonly giving credit to the earned remission can take place and nototherwise. Similarly, in the case of a life imprisonment, meaningthereby the entirety of one’s life, unless there is a commutationof such sentence for any specific period, there would be no scopeto count the earned remission. In either case, it will again dependupon an answer to the second part of the first question based onthe principles laid down in Swamy Shraddananda (2) v. Stateof Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113

63. With that when we come to the second part of the first questionwhich pertains to the special category of sentence to beconsidered in substitute of death penalty by imposing a lifesentence i.e. the entirety of the life or a term of imprisonmentwhich can be less than full life term but more than 14 years andput that category beyond application of remission which has beenpropounded in paras 91 and 92 of Swamy Shraddananda(2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC(Cri) 113 and has come to stay as on this date.”

31. Judgement by the Constitution Bench in Muthuramalingam(Supra) deals with this aspect very clearly, in the following words:

“23. Parliament, it manifests from the provisions of Section 427(2)CrPC, was fully cognizant of the anomaly that would arise if aprisoner condemned to undergo life imprisonment is directed todo so twice over. It has, therefore, carved out an exception tothe general rule to clearly recognise that in the case of lifesentences for two distinct offences separately tried and heldproved the sentences cannot be directed to run consecutively.The provisions of Section 427(2) CrPC apart, in Ranjit Singhcase [Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC 304 :1991 SCC (Cri) 965] , this Court has in terms held that since lifesentence implies imprisonment for the remainder of the life ofthe convict, consecutive life sentences cannot be awarded ashumans have only one life. That logic, in our view, must extend to Section 31 CrPC also no matter Section 31 does not in termsmake a provision analogous to Section 427(2) of the Code. Theprovision must, in our opinion, be so interpreted as to preventany anomaly or irrationality. So interpreted Section 31(1) CrPCmust mean that sentences awarded by the court for severaloffences committed by the prisoner shall run consecutively (unlessthe court directs otherwise) except where such sentences includeimprisonment for life which can and must run concurrently. Weare also inclined to hold that if more than one life sentences areawarded to the prisoner, the same would get superimposed overeach other. This will imply that in case the prisoner is grantedthe benefit of any remission or commutation qua one suchsentence, the benefit of such remission would not ipso factoextend to the other.”

32. As a consequence, the order of the High Court removing thecap of 30 years is not correct and that portion has to be set aside.

33. The upshot of the aforesaid discussion would be to concludeas under:

(a) Order dated February 14, 2017 is set aside.

(b) Insofar as judgment dated December 24, 2016 is concerned,the modification of sentence as carried out by the High Court isset aside meaning thereby the life sentence with 30 years’ capwithout remission was awarded by the trial court is upheld.Further, direction of the High Court in modifying the sentence tothe one already undergone is also set aside.

(c) Rest of the judgment dated December 24, 2016 of the HighCourt is upheld. Effect thereof is that the conviction of theappellant is sustained. However, sentences in both the casesshall run concurrently. The net effect thereof would be that theappellant is given life imprisonment in both the cases with thecondition that he will have no right to seek remission till thecompletion of 30 years of rigorous imprisonment.

Resultantly, the appeals of the appellant are dismissed and that ofcomplainants and the State are partially allowed to the aforesaid extentand disposed of in the aforesaid manner.

Kalpana K. Tripathy Appeals disposed of.

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