SUNIL KUMAR @ SUDHIR KUMAR & ANR. versus THE STATE OF UTTAR PRADESH on 25 May 2021

630

SUPREME COURT REPORTS

[2021] 6 S.C.R.

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SUNIL KUMAR @ SUDHIR KUMAR & ANR.

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THE STATE OF UTTAR PRADESH

(Criminal Appeal No. 526 of 2021)

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MAY 25, 2021

[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]

Sentence/Sentencing: Sentences to run concurrently orconsecutively – Duty of Court of first instance to specify – Held: Itis legally obligatory upon the court of first instance while awardingCmultiple punishments of imprisonment to specify in clear terms as towhether the sentences would run concurrently or consecutively – Ifthe Court of first instance does not specify the concurrent runningof sentences, the inference, primarily, is that the Court intendedsuch sentences to run consecutively, though, the Court of firstDinstance ought not to leave this matter for deduction at the laterstage – Moreover, if the Court of first instance is intendingconsecutive running of sentences, there is yet another obligationon it to state the order (i.e., the sequence) in which they are to beexecuted.

ECode of Criminal Procedure, 1973: s.31(1) – Held: s.31(1)vests complete discretion with the Court to order the sentences fortwo or more offences at one trial to run concurrently having regardto the nature of offences and the surrounding factors – There cannotbe any straitjacket approach in the matter of exercise of suchdiscretion by the Court; but this discretion has to be judiciouslyFexercised with reference to the nature of the offence/s committedand the facts and circumstances of the case – However, if thesentences (other than life imprisonment) are not provided to runconcurrently, one would run after the other, in such order as theCourt may direct.G

Code of Criminal Procedure, 1973: s.220 – The ‘singletransaction’ principle is essentially referable to s.220 whichprovides that if more offences than one are committed in one seriesof acts so connected together as to form the same transaction, thenthe accused may be charged with and tried at one trial for everyHsuch offence – In a given case, after such trial for multiple offences, if the accused is convicted and awarded different punishments,concurrent running thereof may be provided depending on the factsand the relevant surrounding factors.

Partly allowing the appeal, the Court

HELD: 1.1 It is beyond a shadow of doubt that Section 31(1)CrPC vests complete discretion with the Court to order thesentences for two or more offences at one trial to run concurrentlyhaving regard to the nature of offences and the surroundingfactors. Even though it cannot be said that consecutive runningis the normal rule but, it is also not laid down that multiplesentences must run concurrently. There cannot be any straitjacketapproach in the matter of exercise of such discretion by the Court;but this discretion has to be judiciously exercised with referenceto the nature of the offence/s committed and the facts andcircumstances of the case. However, if the sentences (other thanlife imprisonment) are not provided to run concurrently, one wouldrun after the other, in such order as the Court may direct.[Para 10][639-B-D]

1.2 For what has been provided in Section 31(1) CrPC readwith the expositions of this Court, it follows that the Court offirst instance is under legal obligation while awarding multiplesentences to specify in clear terms as to whether they would runconcurrently or consecutively. [Para 11][639-D-E]

Nagaraja Rao v. Central Bureau of Investigation (2015)

4 SCC 302 : [2015] 12 SCR 424 – relied on.

1.3If the Court of first instance does not specify theconcurrent running of sentences, the inference, primarily, is thatthe Court intended such sentences to run consecutively, though,as aforesaid, the Court of first instance ought not to leave thismatter for deduction at the later stage. Moreover, if the Court offirst instance is intending consecutive running of sentences, thereis yet another obligation on it to state the order (i.e., the sequence)in which they are to be executed. The disturbing part of the matterherein is that not only the Trial Court omitted to state the requisitespecifications, even the High Court missed out such flaws in theorder of the Trial Court. [Para 12][639-H; 640-A-B]

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A2. The ‘single transaction’ principle is essentially referableto Section 220 CrPC, which provides that if more offences thanone are committed in one series of acts so connected togetheras to form the same transaction, then the accused may be chargedwith and tried at one trial for every such offence. In a given case,after such trial for multiple offences, if the accused is convictedBand awarded different punishments, concurrent running thereofmay be provided depending on the facts and the relevantsurrounding factors. The principle related with ‘single transaction’cannot be imported for dealing with the question at hand.[Para 14][640-E-F]CManoj alias Panju v. State of Haryana (2014) 2 SCC153 : [1996] 1 SCR 532; Nagaraja Rao v. CentralBureau of Investigation (2015) 4 SCC 302 : [2015] 12SCR 424; Gagan Kumar v. State of Punjab (2019) 5SCC 154 : [2019] 3 SCR 367 – distinguished.

DState of Punjab v. Gurmit Singh & Ors.(1996) 2 SCC384; State of Madhya Pradesh v. Anoop Singh (2015)7 SCC 773 : [2015] 6 SCR 960 – held inapplicable.

3. The offences in question were committed in the year2008 i.e, before amendment of IPC by the Amending Act 13 ofE2013; the appellants have continuously served about 13 yearsand 2 months of imprisonment; and nothing adverse in regard totheir conduct while serving the sentences has been placed onrecord. The requirements of complete justice to the cause couldadequately be met by providing that the maximum period ofFimprisonment to be served by the appellants shall be 14 yearsand not beyond. [Para 17][642-D-E, F-G]

Muthuramalingam & Ors. v. State (2016) 8 SCC 313 :[2016] 5 SCR 30 – followed.

O.M. Cherian alias Thankachan v. State of Kerala &GOrs. (2015) 2 SCC 501 : [2014] 11 SCR 140 – reliedon.

Mohan Baitha & Ors. v. State of Bihar & Anr. (2001) 4SCC 350; Mohd. Akhtar Hussain alias Ibrahim Ahmed H

Bhatti v. Assistant Collector of Customs (Prevention),Ahmedabad & Anr. (1988) 4 SCC 183 : [1988] 2 Suppl.SCR 747 – distinguished.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 526 of 2021.

From the Judgment and Order dated 21.02.2018 of the High Courtof Judicature at Allahabad in Criminal appeal No. 7399 of 2008.

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Pai Amit, Deepak Raj Premi, Parashuram A.L., Manaswi Agrawal,Rohit R. Saboo, Ms. Ranu Purohit, Ms. Pankhuri Bhardwaj, Ms. BhavanaDuhoon, Satyam Tandon, Advs. for the appellants.

Vinod Diwakar, AAG, Sarvesh Singh Baghel, B.N. Dubey, Ms.Shivranjani Ralawata, Advs. for the respondent.

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The following Judgment of the Court was delivered:

JUDGMENT

Leave granted.

2. In view of the order dated 13.04.2018 passed by this Courtwhile granting permission to file Special Leave Petition and issuing notice,the scope of this appeal is restricted to the question of sentence; and theappellants herein, after their conviction of offences under Sections 363,366 and 376(1) of the Indian Penal Code, 1860 (‘IPC’), have already G

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Aundergone 13 years and 2 months of imprisonment. In the givencircumstances, we have heard learned counsel for the parties finally atthis stage itself.

2.1. Even the short question involved in this matter carries thepeculiarities of its own, as noticed infra.B

3. As regards relevant background aspects, suffice it to noticethat on 03.02.2008, Case Crime No. 44 of 2008 for offences underSections 363 and 366 Indian Penal Code, 1860 (‘IPC’) came to beregistered at Police Station, T.P. Nagar, Meerut on the basis of a writtencomplaint that the complainant’s 13-year-old daughter, who had gone toCschool on 15.01.2008, had not returned; and after a lot of efforts, thecomplainant came to know that the accused-appellant No. 2 Faimuddin@ Feru @ Sonu had enticed his daughter. In the course of investigation,the victim girl was recovered and, ultimately, the charge-sheet was filedagainst the appellants for offences under Sections 363, 366 and 376IPC. They were tried in Sessions Trial No. 575 of 2008 wherein, theDCourt of Additional District and Sessions Judge, Fast Track Court No. 5,Meerut, in its judgement and order dated 12.09.2008, convicted them ofoffences under Sections 363, 366 and 376(1) IPC.

4. After having recorded conviction as aforesaid, the Trial Courtsentenced the appellants to several punishments in the following manner:Erigorous imprisonment for a term of 5 years with fine of Rs. 2,000/- andin default, further imprisonment for 6 months for the offence under Section363 IPC; rigorous imprisonment for a term of 7 years with fine of Rs.3,000/- and in default, further imprisonment for 1 year for the offenceunder Section 366 IPC; and rigorous imprisonment for a term of 10Fyears with fine of Rs. 5,000/- and in default, further imprisonment for1½ years for the offence under Section 376(1) IPC. However, the TrialCourt did not specify as to whether the punishments of imprisonmentwould run concurrently or consecutively; and if they were intended torun consecutively, the Trial Court did not specify the order in which onepunishment of imprisonment was to commence after expiration of theGother.

5. As against the judgment and order of the Trial Court, only theappellant No. 1 Sunil Kumar @ Sudhir Kumar preferred an appeal beforethe High Court of Judicature at Allahabad, being Criminal Appeal No.7399 of 2008. However, learned counsel for the appellant before theHHigh Court confined his arguments only on the point of sentence and did

not press on the point of conviction. Thus, the conviction recorded bythe Trial Court attained finality, for the appellant No. 2 having not filedthe appeal and for the appellant No. 1, even after filing the appeal, havingnot challenged the same. Accordingly, the High Court, examined onlythe question of sentence qua the appellant No. 1 and, in its impugnedjudgement and order dated 21.02.2018, while holding that the defaultstipulations were rather disproportionate, proceeded to modify the orderof sentencing only to the extent that in the event of default in payment offine, the accused-appellant (i.e., the appellant No. 1) shall undergoadditional imprisonment for the terms of 5 months, 3 months and 1 monthfor the offences under Sections 376(1), 366 and 363 IPC respectively.However, the High Court, even after taking note of the fact that theaccused-appellant had already undergone 10 years of imprisonment, didnot consider that the Trial Court had neither provided for concurrentrunning of sentences nor provided the order of running of sentences, ifthey were to run consecutively. Interestingly, while the Trial Courtsentenced the appellants for offences under Sections 363, 366 and 376(1)in that order, the High Court provided for modification of defaultstipulations in converse order i.e., for offences under Sections 376(1),366 and 363 IPC respectively.

6. For the reason that the decisions aforesaid were silent on thepoint of concurrent or consecutive running of sentences, the JailSuperintendent, District Jail, Meerut, while issuing certificates ofconfinement on 14.03.2018, stated that the accused-appellants hadundergone 10 years and 1 month of imprisonment but, there being nomention in the sentencing order about concurrent running of sentences,they were serving 22 years of imprisonment. Faced with such apredicament, the accused-appellants have approached this Court.

7. While confining his arguments to the question of sentence,learned counsel for the appellants Mr. Amit Pai has industriously putforward the submissions with reference to Section 31 of the Code ofCriminal Procedure, 1973 (‘CrPC’) and a good number of the decisionsof this Court.

7.1. The learned counsel has contended, while relying on thedecisions in Nagaraja Rao v. Central Bureau of Investigation: (2015)4 SCC 302 and Gagan Kumar v. State of Punjab: (2019) 5 SCC154, that it is obligatory for the Court awarding punishments to specifywhether they shall be running concurrently or consecutively; and the AB

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Aomission on the part of the Trial Court and the High Court, to state therequisite specifications, cannot be allowed to operate detrimental to theinterests of the accused-appellants. The learned counsel has contendedthat though as per the mandate of Section 31 CrPC, unless specified torun concurrently, the sentences do run consecutively but, for that purpose,the Court is required to direct the order in which they would run; and noBsuch direction having been given by the Trial Court or by the High Court,it cannot be said that the Courts were consciously providing forconsecutive running of sentences. Further, with reference to the decisionin O.M. Cherian alias Thankachan v. State of Kerala & Ors.: (2015)

2 SCC 501, the learned counsel would urge that it is not the normal ruleCthat multiple sentences are to run consecutively.

7.2. The learned counsel Mr. Pai has also attempted to adoptanother line of argument that concurrent or consecutive running ofsentences is also to be governed by ‘single transaction’ principle, asdiscernible from a combined reading of Sections 31(1) and 220(1) CrPC.DIn this regard, apart from the aforesaid decisions in Nagaraja Rao andGagan Kumar,the learned counsel has also relied upon the decisions inMohan Baitha & Ors. v. State of Bihar & Anr.: (2001) 4 SCC 350;Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. AssistantCollector of Customs (Prevention), Ahmedabad & Anr.: (1988) 4SCC 183; and Manoj alias Panju v. State of Haryana: (2014) 2ESCC 153 and has submitted that looking to the nature of accusation,there was no reason for the Courts to direct consecutive running ofsentences in the present case.

7.3. Further, the learned counsel for the appellants has referred tothe decisions in State of Punjab v. Gurmit Singh & Ors.: (1996) 2FSCC 384 and State of Madhya Pradesh v. Anoop Singh: (2015) 7SCC 773 to submit that those too were the cases involving offencesunder Sections 363, 366 and 376 with victim being a minor; and therein,this Court has awarded the sentences running concurrently.

7.4. The learned counsel has also argued that though the appellantGNo. 2 did not prefer appeal against the judgment and order of the TrialCourt, this Court permitted him to file SLP by the order dated 13.04.2018;and, therefore, benefit of reduction of default sentence, as ordered bythe High Court, deserves to be extended to the appellant No. 2 too.

7.5. The learned counsel Mr. Pai, even while frankly pointing outHthe observations of the Constitution Bench in Muthuramalingam &

Ors. v. State: (2016) 8 SCC 313 (paragraph 28), to the effect that sub-section (2) of Section 31 has no application to a case tried by the Courtof Sessions nor sub-section (2) forbids a direction for consecutive runningof sentences awardable by the Court of Sessions, has made a ferventappeal that the appellants have already undergone over 13 years ofimprisonment; and if ordained to serve for a total term of 22 years byconsecutive running of sentences, it would be highly disproportionate tothe actual punishment they need to suffer in this case.

8. On the other hand, the learned AAG Mr. Vinod Diwakar has,firmly as also fairly, put forward the views on behalf of the respondent-State in opposition to the contentions aforesaid.

8.1. The learned AAG Mr. Diwakar would submit that Section 31CrPC vests a discretion in the Trial Court to direct whether or not thesentences would run concurrently when the accused is convicted at onetrial of two or more offences but, in the present case, after noticing thegravity and nature of offences i.e., kidnapping and rape of a 13-year-oldgirl, the Trial Court has exercised its discretion and did not mention thatthe sentences would be running concurrently; and, therefore, ipso facto,they are to run consecutively.

8.2. The learned AAG has also submitted that the principles relatedwith commission of offences in a single transaction do not lead to theproposition that different sentences in relation to multiple offences shallinvariably be running concurrently; and has referred to the enunciationsin O.M. Cherian (supra).The learned AAG has further referred to theConstitution Bench decision in the case of Muthuramalingam (supra)to submit that except life imprisonments, the other term sentencesawarded by the Court for several offences do run consecutively, unlessdirected otherwise.

8.3. The learned AAG for the State would submit that concurrentrunning of sentences, as provided in any particular case, relates to thefacts and circumstances pertaining to that case and the appellants cannotclaim any parity for concurrent running of sentences with reference toany other decided case, even if relating to the offences of similar nature.The learned AAG would argue that in the present case, looking to thenature and gravity of offences, the Trial Court has exercised its discretionin not directing concurrent running of sentences, which only means thatthe sentences are to run consecutively; and that an omission on the partof the Trial Court in not specifying the order of running cannot mean thatthe sentences are to run concurrently.

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A9. We have given thoughtful consideration to the rival submissionsand have examined the record of the case with reference to the lawapplicable.

10. The contentions urged in this matter essentially revolve aroundthe provisions contained in Section 31(1) CrPC. The contours of theseBprovisions have been succinctly delineated and explained by this Courtin the case of O.M. Cherian (supra) in the following terms: - “20. Under Section 31 CrPC it is left to the full discretion of thecourt to order the sentences to run concurrently in case of convictionfor two or more offences. It is difficult to lay down any straitjacketCapproach in the matter of exercise of such discretion by the courts.By and large, trial courts and appellate courts have invoked andexercised their discretion to issue directions for concurrent runningof sentences, favouring the benefit to be given to the accused.Whether a direction for concurrent running of sentences ought tobe issued in a given case would depend upon the nature of theDoffence or offences committed and the facts and circumstancesof the case. The discretion has to be exercised along the judiciallines and not mechanically.

21. Accordingly, we answer the reference by holding that Section31 CrPC leaves full discretion with the court to order sentencesEfor two or more offences at one trial to run concurrently, havingregard to the nature of offences and attendant aggravating ormitigating circumstances. We do not find any reason to hold thatnormal rule is to order the sentence to be consecutive and exceptionis to make the sentences concurrent. Of course, if the court doesFnot order the sentence to be concurrent, one sentence may runafter the other, in such order as the court may direct. We also donot find any conflict in the earlier judgment in Mohd. AkhtarHussain and Section 31 CrPC.”

10.1. In Muthuramalingam (supra), the basic question beforeGthe Constitution Bench was as to whether consecutive life sentencescould be awarded to a convict on being found guilty of a series of murders,for which, he had been tried in a single trial. In the course of determinationof this question, the Constitution Bench dealt with several dimensions ofsentencing, particularly those relating to multiple sentences and observed,inter alia, that,-H

“23……So interpreted Section 31(1) CrPC must mean thatsentences awarded by the court for several offences committedby the prisoner shall run consecutively (unless the court directsotherwise) except where such sentences include imprisonmentfor life which can and must run concurrently….”

10.2. Thus, it is beyond a shadow of doubt that Section 31(1)CrPC vests complete discretion with the Court to order the sentencesfor two or more offences at one trial to run concurrently having regardto the nature of offences and the surrounding factors. Even though itcannot be said that consecutive running is the normal rule but, it is alsonot laid down that multiple sentences must run concurrently. There cannotbe any straitjacket approach in the matter of exercise of such discretionby the Court; but this discretion has to be judiciously exercised withreference to the nature of the offence/s committed and the facts andcircumstances of the case. However, if the sentences (other than lifeimprisonment) are not provided to run concurrently, one would run afterthe other, in such order as the Court may direct.

11. For what has been provided in Section 31(1) CrPC read withthe expositions of this Court, it follows that the Court of first instance isunder legal obligation while awarding multiple sentences to specify inclear terms as to whether they would run concurrently or consecutively.In the case of Nagaraja Rao (supra),this Court expounded on this legalobligation upon the Court of first instance in the following terms:- “11. The expressions “concurrently” and “consecutively”mentioned in the Code are of immense significance while awardingpunishment to the accused once he is found guilty of any offencepunishable under IPC or/and of an offence punishable under anyother Special Act arising out of one trial or more. It is for thereason that award of former enure to the benefit of the accusedwhereas award of latter is detrimental to the accused’s interest.It is therefore, legally obligatory upon the court of first instancewhile awarding sentence to specify in clear terms in the order ofconviction as to whether sentences awarded to the accused wouldrun “concurrently” or they would run “consecutively”.”

12. As noticed, if the Court of first instance does not specify theconcurrent running of sentences, the inference, primarily, is that the Courtintended such sentences to run consecutively, though, as aforesaid, theCourt of first instance ought not to leave this matter for deduction at the A

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Alater stage. Moreover, if the Court of first instance is intending consecutiverunning of sentences, there is yet another obligation on it to state theorder (i.e., the sequence) in which they are to be executed. The disturbingpart of the matter herein is that not only the Trial Court omitted to statethe requisite specifications, even the High Court missed out such flawsin the order of the Trial Court.B

13. Even when we find the aforementioned shortcomings in theorders passed by the Trial Court as also by the High Court, the questionis as to whether the sentences awarded to the appellants could beconsidered as running concurrently? As noticed, the omission to statewhether the sentences awarded to the accused would run concurrentlyCor would run consecutively essentially operates against the accusedbecause, unless stated so by the Court, multiple sentences runconsecutively, as per the plain language of Section 31(1) CrPC readwith the expositions in Muthuramalingam and O.M. Cherian (supra).The other omission to state the order of consecutive running cannotDipso facto lead to concurrent running of sentences.

14. Faced with the position that the stated omissions will not, bythemselves, provide a room for concurrent running of sentences, learnedcounsel for the appellants has endeavoured to invoke the ‘singletransaction’ principle. In our view, the said principle is essentially referableEto Section 220 CrPC, which provides that if more offences than one arecommitted in one series of acts so connected together as to form thesame transaction, then the accused may be charged with and tried atone trial for every such offence. In a given case, after such trial formultiple offences, if the accused is convicted and awarded differentpunishments, concurrent running thereof may be provided depending onFthe facts and the relevant surrounding factors. We are afraid, the principlerelated with ‘single transaction’ cannot be imported for dealing with thequestion at hand.

14.1. In the case of Mohan Baitha (supra),this Court observedthat the expression ‘same transaction’, from its very nature, is incapableGof an exact definition and it is not possible to enunciate any comprehensiveformula of universal application for the purpose of determining whethertwo or more acts constitute the same transaction. The question involvedin that case did not relate to sentence but to the inquiry and trial ofdifferent offences pertaining to Sections 304-B, 498-A, 120-B and 406HIPC and territorial jurisdiction of the Magistrate in Bihar when the alleged incident constituting one of the offences, i.e., under Section 304-B IPC,had taken place in the State of Uttar Pradesh. Of course, in the case ofMohd. Akhtar Hussain (supra),this Court indicated that if a transactionconstitutes two offences under two enactments, generally it is wrong tohave consecutive sentences but this Court hastened to observe that sucha rule shall have no application if the transaction relating to the offencesis not the same or the facts concerning the two offences are quitedifferent. Significantly, in that case, consecutive running of sentencesawarded to accused-appellant, in two different cases pertaining to theGold (Control) Act, 1968 and the Customs Act, 1962, was upheld by thisCourt with the finding that the two offences for which the appellant wasprosecuted were ‘quite distinct and different’. The only modificationordered by this Court was concerning the term of imprisonment for thelatter conviction while disapproving its enhancement from 4 years to 7years by the High Court after noticing that he was already sentenced toimprisonment for a term of 7 years in the first offence. The trial andconviction in the case of Manoj alias Panju(supra) had been for offenceunder Section 307 IPC as also under Sections 25 and 27 of the ArmsAct. In the case of Nagaraja Rao (supra), the trial and conviction hadbeen of offences under Section 381 IPC and Section 52 of the PostOffice Act, 1898. In the case of Gagan Kumar (supra), offences wereunder Sections 279 and 304-A IPC. These decisions, essentiallyproceeding on their own facts, do not make out a case for interferencein favour of the appellants.

15. The punishments awarded by this Court in the cases of GurmitSingh and Anoop Singh (supra), relate to the individual facts andcircumstances and cannot be adopted as the precedents for the purposeof particular quantum of sentences and their concurrent running.Significantly, in both the said cases, the conviction was recorded by thisCourt after setting aside the impugned orders of acquittal. The orderspassed by this Court, for striking a just balance in the matter of sentencingafter reversing the acquittal, cannot be applied to the present case whereconviction recorded by the Court of first instance was not even challenged,and has attained finality.

16. For what has been discussed hereinabove, we are not inclinedto accept the principal part of the submissions of learned counsel for theAppellants. However, the other part of his submissions, that requiringthe appellants to serve a total term of 22 years in prison would be highly A

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Adisproportionate to the actual punishment they need to suffer in this case,cannot be brushed aside as altogether unworthy of consideration.

17. We have taken note of the observations of the ConstitutionBench in Muthuramalingam (supra), which were made in the contextof a previous decision of this Court, where the eventuality of consecutiveBrunning of life sentences was obviated with reference to the proviso tosub-section (2) of Section 31. The Constitution Bench though endorsedthe view that consecutive life sentences cannot be awarded but observedthat the proviso to sub-section (2) of Section 31 CrPC cannot be reliedupon to support this conclusion and also observed that sub-section (2) ofSection 31 CrPC has no application to a case tried by the Court ofCSessions nor sub-section (2) forbids a direction for consecutive runningof sentences awardable by the Court of Sessions.

17.1. Even when sub-section (2) of Section 31 CrPC is not directlyapplicable, some of the relevant features of the present case are that theoffences in question were committed in the year 2008 i.e, beforeDamendment of IPC by the Amending Act 13 of 2013; the appellantshave continuously served about 13 years and 2 months of imprisonment;and nothing adverse in regard to their conduct while serving the sentenceshas been placed on record. In the given set of circumstances, we havepondered over the question as to what ought to be the order for a justEbalance on the requirements of punishment on one hand and reasonablerelease period for the appellants on the other, while keeping in view theoverall scheme of awarding of punishments and execution thereof,including the ancillary aspects referable to Sections 433 and 433A CrPCas also Section 55 IPC whereunder, serving of a term of 14 years evenin the sentence of imprisonment for life is the bottom line (subject to theFexercise of powers of commuting by the appropriate Government inaccordance with other applicable principles). After anxious considerationof all the relevant factors, we are of the view that the requirements ofcomplete justice to the cause before us could adequately be met byproviding that the maximum period of imprisonment to be served by theGappellants shall be 14 years and not beyond.

18. However, the submission for extending the benefit ofmodification of default stipulations qua the appellant no.2 carries theshortcoming that the said appellant did not prefer appeal against thejudgment and order of the Trial Court. This is coupled with the fact thatHin the root cause of this matter, the initial accusation of enticing the victim was made against the appellant No.2. In view of the overallcircumstances and the principal subject matter of this appeal, we find noreason to re-open the issue which was not taken up by the appellantNo.2 at the relevant stage.

19. In view of the above, in exercise of powers under Article 142of the Constitution of India, we provide for modification of the punishmentawarded to the appellants in the manner that the maximum period ofimprisonment to be served by them in relation to offences in questionshall be 14 years and not beyond. It goes without saying that this orderof modification is passed only in the peculiar facts and circumstances ofthis case.

19.1. However, the requirement of payment of fine and the defaultstipulations, as applicable to the appellant No.1 in terms of the order ofthe High Court and to the appellant No.2 in terms of the order of theTrial Court, shall remain intact. Learned counsel for the appellants submitsthat as per his instructions, the appellant No.1 has deposited the fineamount. The submission is taken on record. However, it is made clearthat in default in payment of fine, the defaulter-appellant shall undergorespective default sentences consecutively and in the order they havebeen imposed, for offences under Sections 363, 366, and 376(1) IPC.

20. The appeal is partly allowed, as aforesaid.

21. While closing on the matter, we deem it appropriate to reiteratewhat was expounded in the case of Nagaraja Rao (supra), that it islegally obligatory upon the Court of first instance, while awarding multiplepunishments of imprisonment, to specify in clear terms as to whetherthe sentences would run concurrently or consecutively. It needs hardlyan emphasis that any omission to carry out this obligation by the Court offirst instance causes unnecessary and avoidable prejudice to the parties,be it the accused or be it the prosecution.

Devika Gujral

Appeal partly allowed.

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