REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2133 OF 2017

JITENDRA @ KALLA .....APPELLANT(S)

VERSUS

STATE OF GOVT. OF NCT OF DELHI .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NOS. 2135-2136 OF 2017

CRIMINAL APPEAL NO. 2134 OF 2017

CRIMINAL APPEAL NO. 2139 OF 2017

AND

CRIMINAL APPEAL NOS. 2137-2138 OF 2017

J U D G M E N T

A.K. SIKRI, J.

Criminal Appeal Nos. 2133 of 2017 and 2134 of 2017 are

filed  by  Jitendra  @  Kalla  (hereinafter  referred  to  as  the

“appellant”) against whom two FIRs, namely, FIR No. 67 of 1999

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under Sections 302/307/34 of the Indian Penal Code (for short,

“IPC”)  and FIR No. 68 of  1999 under Sections 120B/302, IPC

were registered.  After investigation and filing of charge sheets in

both the incidents, the charges under aforesaid provisions were

framed and trial took place. The trial court convicted the appellant

by a common judgment dated July 01, 2013.  Though we would

take note of the facts, which are relevant for these appeals, in

some detail hereinafter, it would be pertinent to mention at this

stage  that  as  per  the  case  of  the  prosecution  the  appellant

murdered one Anil Badana on March 10, 1999 in the marriage

reception of one, Vijay, within the area of Police Station Keshav

Puram. Apart from other persons, one, Sumit Nayyar, son of Kimti

Lal  Nayyar  was  eyewitness  to  the  said  incident  and  had

immediately informed the police about the murder of Anil Badana

by  making  PCR  calls  wherein  he  had  specifically  named  the

appellant as a person who had committed the crime.  As per the

prosecution,  in  order  to  liquidate  this  eyewitness  also,  on  the

same night, intervening March 10 and 11, 1999, at around 12:30

am, the appellant went to he house of Sumit Nayyar in Mukherjee

Nagar, Delhi and rang doorbell. Sumit’s father, Kimti Lal Nayyar

came out to check as to who had rung doorbell  of  his house,

someone fired upon with a gun and three bullets hit  his body.

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The investigation revealed that it is the appellant who had shot

dead Kimti Lal Nayyar as well.  The two FIRs mentioned above

pertain to these two incidents.   

2. After  recording  the  finding  of  guilt  in  both  the  cases  and

convicting the appellant for the charges framed against him in the

FIR No.  67 of  1999 the appellant   was sentenced to rigorous

imprisonment  for  life  with  a  direction  that  he  shall  not  be

considered  for  grant  of  remission  till  he  undergoes  the  actual

sentence of 30 years plus fine in the sum of Rs. 3 lac.  In default

of  payment  of  fine further  simple imprisonment for  a period of

three years was awarded.  Out of the aforesaid fine of Rs. 3 lac, a

sum of Rs. 1 lac was to be paid to the State and balance of Rs. 2

lac  was directed to  be paid  to  the family  of  deceased — Anil

Badana as compensation under Section 357 of Code of Criminal

Procedure (For short, ‘CrPC”).  For offences under Section 307 of

the IPC, the appellant was sentenced to rigorous imprisonment

for 10 years and a fine of Rs. 1 lac, in default of payment of fine

further  simple  imprisonment  for  a  period  of  one  year.  These

sentences are to run concurrently.  Insofar as conviction under

FIR No. 68 of 1999 are concerned, the appellant was sentenced

to undergo rigorous imprisonment for life by making it clear that it

is till the rest of his life and he was also directed to pay a fine of

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Rs. 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 case would start running consequent to and only

after the conclusion of sentence imposed in FIR No. 67 of 1999.   

3. Against these convictions, the appellant filed two appeals before

the High Court which were decided by a common judgment dated

December 24, 2016.  During the arguments, the counsel for the

appellant  made  a  statement  at  the  Bar  to  the  effect  that  the

appellant did not intend to press the challenge to the findings of

conviction  recorded   by  the  Trial  Court  and  confined  his

submissions only to the sentencing part.   

4. Still, the High Court discussed the evidence which was produced

by  the  prosecution  in  both  the  cases  and  remarked  that  the

appellant was rightly convicted.  

5. Thereafter,  the High Court went into the question of respective

sentences which are given in each of the cases by the trial court.

The argument  of  the counsel  for  the appellant  challenging the

sentence  of  life  imprisonment,  with  the  condition  that  the

appellant would have to undergo the actual sentence of 30 years

without any remission and life imprisonment in the second case to

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mean that it would be for the rest of his life, was challenged by

the learned counsel for the respondent.  

6. After taking note of reasons which were given by the trial court in

awarding  specific  sentences  in  the  two cases,  the  High  Court

found that two broad issues arise for consideration which are as

follows:

(i) The first issue which arose for consideration was whether

the order  of  the trial  court  that  both  the sentences are  to run

consecutively requires interference or not”?  

(ii) If the sentences are not to run consecutively, whether the

order on sentence in both the appeals requires interference?     

7. Insofar as issue no. (i) is concerned, the High Court referred to

the  provisions  of  Section  427(2)  of  the  CrPC on  the  basis  of

which  it  concluded  that  it  was  not  to  run  consecutively.

Thereafter, the High Court adverted to the issue no. (ii) and in the

process took note of various judgments1, on the basis of which it

concluded that the trial court exceeded its jurisdiction in  awarding

the sentences in the aforesaid manner.  The discussion in this

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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behalf is contained in para 52 of the judgment of the High Court

which reads as under:

“55. In view of the decision rendered by the five Judge Bench of the Supreme Court in the case of Union of India v.  V.  Sriharan  @  Murugan  and  Ors.  (supra),  more particularly as held in paragraphs 103 and 104, we are of the view that the trial court exceeded its jurisdiction. Even otherwise, we are of the view that the trial court in this case has acted in utter haste by passing the order on sentence on  the  same  day  with  a  per-determined  mind.   Having regard to the gravity of  the matter,  the trial  court  should have allowed reasonable opportunity to the counsel for the accused  to  address  arguments  on  sentence.   The  trial court  has  shown  utter  impatience  and  also  incorrectly applied the law.  We may notice that the Full Bench of the Supreme Court in the case of Union of India v. V. Sriharan @ Murugan and Ors. (supra) held that the ratio laid down in the case of Swamy Shraddananda (supra) with a very special category of sentence instead of death for a terms exceeding  14  years  and  put  that  category  beyond application  of  remission  is  well-founded.   We  have extracted above the aforegoing paragraph 92  in the case of  Swamy  Shraddananda  (II)    v.  State  of  Karnataka wherein the Hon’ble Supreme Court discussed a situation where a sentence may be excessive and duly harsh or may be highly  disproportionately  inadequate.   The Court  may find that a case falls short of the rarest of the rare category. But at the same time, having regard to the nature of the crime, the court  may  strongly feel that a sentence of life imprisonment  that  subject  to  remission  which  normally works  out  to  a  term  of  14  years  may  be  grossly disproportionate  and  inadequate.   Faced  with  this quandary with two alternates, i.e., either death or life of not more than 14 years,  the Court  may be led to passing a death sentence.  The Court cautioned of such a prejudice and viewed such a condition to be disastrous and held the Court would take recourse to the expanded option.”

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8. Thereafter, the Court discussed the adequacy of sentence in the

circumstances of the two cases in which the appellant had been

convicted and went through various judgments2 of this Court.

9. After  taking  note  of  the  principles  laid  down in  the  judgments

taken  note  of  by  the  High  Court,  the  Court  summed  up  the

position as under:

“We believe that  being a civilised society—a tooth for  a tooth and an eye for an eye ought not to be the criterion and as such the question of there being acting under any haste in regard to the life imprisonment would not arise; rather  our jurisprudence speaks of the factum of the law courts  being  slow  in  that  direction  and  it  is  in  that perspective a reasonable proportion has to be maintained between the heinousness of the crime and the punishment. While it is true, punishment disproportionately severe ought not  to be passed but  that  does not  even clothe the law courts,  however,  with  an  opinion  to  award  the  sentence which would be manifestly inadequate having due regard to  the  nature  of  offence  since  an  inadequate  sentence would not subserve the cause of justice to the society.  The Courts  would  draw  a  balance-sheet  of  aggravating  and mitigating circumstances. Both aspects have to be given their  respective  weightage.   The  Court  has  to  strike  a balance between the two and see towards which side the scale/balance of  justice tilts.   The principle  of  proportion between the crime and the punishment is the principle of “just  deserts”  that  serves  as  the  foundation  of  every criminal  sentence that  is  justifiable.   In  other  words,  the “doctrine of  proportionality”  has a valuable application to the  sentencing  policy  under  the  Indian  Criminal Jurisprudence.   Thus,  the  court  will  not  only  have  to examine  what  is  just  but  also  as  to  what  the  accused deserves  keeping  in  view  the  impact  on  the  society  at large.    

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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10. On  the  application  of  the  aforesaid  principles,  the  High  Court

concluded that the punishments awarded to the appellant were

excessive in nature and modified the same by removing the cap

of 30 years and sentencing the appellant to the period already

undergone,  i.e.,  16  years  and  10  months.   The  direction  was

given to release the appellant forthwith if not required in any other

case.  The aforesaid judgment was delivered on December 24,

2016.  Thereafter, the High Court listed the matter of its own for

directions  on  February  14,  2017  as  according  to  it,  a

typographical  error  was noticed in the said judgment.   On this

day, following order was passed:

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

“…..to the period already undergone by the appellant i.e. 16 years and 10 month.” “…..The appellant be released forthwith, if not required in any other case…...”

Mr. Sharma, learned counsel for the appellant, submits that he has no contact with the appellant.

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

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11. In  these  appeals,  both  the  aforesaid  orders  have  been

challenged.  The appellant has challenged his conviction insofar

as the trial in two cases is concerned. It may be noted that the

appellant was satisfied with the orders dated December 24, 2016

as per which he was released on serving the sentence already

undergone. However, after the correction in the said order dated

February 14, 2017, he chose to challenge the conviction as well

and filed the instant appeals.  Other two appeals are filed by the

families of the victims in two cases questioning the modification of

sentence by the High Court vide judgment dated December 24,

2016.   Even  the  State  has  filed  the  appeal  against  the

modification order.

12. We may record that  in  the special  leave petitions filed  by the

appellant though the notice was issued on April  07,  2017, this

Court refused to stay the orders dated February 14, 2017 and

directed the appellant to surrender.  He was permitted to make an

application for bail with the observation that the same would be

considered  on  its  own  merits.   The  appellant,  accordingly,

surrendered and, at present, he is in jail. The appellant did move

the  application  for  bail.   However,  instead  of  hearing  the

argument in the said application, the Court decided to hear these

appeals finally.  This is how the matters were heard on merits.

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13. In  the  aforesaid  context,  three  questions  have  arisen  for

consideration, which are as follows:

(i) Whether  the  appellant  has been rightly  convicted  for  the

offences mentioned in the two chargesheets? Here, the incidental

question is as to whether  the appellant  can raise such a plea

when it was not pressed before the High Court.

(ii) Whether  the  order  of  the  High  Court  modifying  the

sentences as awarded by the trial court is proper and justified?

(iii) Whether the High Court could pass the ‘correction’ orders

on February 14, 2017 on the ground that typographical error had

been noticed in the main judgment dated December 24, 2016?

14. Ms.  Vibha  Makhija,  learned  senior  counsel  appearing  for  the

appellant made a fervent plea to the effect that the manner in

which this case has progressed from the stage of trial till the High

Court would reflect that the appellant has been given a raw deal

and his case has not been properly dealt with either by the trial

court or the High Court, insofar as conviction of the appellant in

the two cases is concerned.  Form the events that took place in

the trial court, she laboured to demonstrate that it depicted biased

investigation and there was even judicial bias which resulted in

denial of fair trial.  According to her, conviction was illegal and

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even the sentences passed by the trial court were contrary to law.

According to her, the same mistake occurred at the High Court

level  as  the  High  Court  took  a  shortcut  by  recording  the

concession  of  the  counsel  for  the  appellant  that  insofar  as

conviction is concerned it was not pressed.  She also submitted

that though the High Court, in the first instance, gave a partial

relief by reducing the sentence to the period already undergone

but thereafter committed a grave error in rectifying the said order

which was beyond its powers.  Her submission was that the order

of  sentence  already  undergone  could,  by  no  imagination,  be

termed as "typographical error" 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 dated December 24, 2016 releasing

the appellant after surrendering the sentence already undergone

was not correct in law, such an error could be rectified only by a

higher forum as the High Court had become functus officio after

delivering its judgment of December 24, 2016.     

On  the  basis  of  the  aforesaid  submissions,  plea  of  the

learned senior  counsel  was that  the matter  should be remitted

back to the High Court for fresh consideration on merits, i.e., on

the  issue  of  conviction  as  well  as  on  the  sentence,  if  the

conviction is sustained by the High Court on fresh consideration.

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15. In  an  attempt  to  commend  this  Court  to  accept  the  aforesaid

approach, Ms. Makhija made submissions at two levels.  In the

first  instance,  it  was  argued  that  even  if  the  counsel  for  the

appellant had made a statement that she was not pressing the

case  insofar  as  conviction  is  concerned,  such  a  concessions

should  not  have  been  accepted  by  the  Court  and  it  was  the

bounden  duty  of  the  court  to  decide  the  case  on  merits.   In

support of this submission, she referred to the judgment of this

Court  in  Jeetu  @  Jitendra  and  Others  v.  State  of

Chhattisgarh3, relevant portion thereof is reproduced hereunder:

“23. At this juncture, we are obliged to state that when a convicted person prefers an appeal, he has the legitimate expectation to be dealt  with by the courts in accordance with law. That apart,  he has intrinsic faith in the criminal justice dispensation system and it is the sacred duty of the adjudicatory system to remain alive to the said faith.  He has embedded trust in his counsel that he shall put forth his case to the best of his ability assailing the conviction and to do full justice to the case. That apart, a counsel is expected  to  assist  the  courts  in  reaching  a  correct conclusion.  Therefore,  it  is  the obligation of  the court  to decide the appeal on merits and not accept the concession and proceed to deal with the sentence, for the said mode and method defeats the fundamental purpose of the justice delivery system. We are compelled to note here that we have  come across  many  cases  where  the  High  Courts, after recording the non-challenge to the conviction, have proceeded to dwell upon the proportionality of the quantum of  sentence.  We may clearly  state  that  the  same being impermissible in law should not be taken resort to. It should be borne in mind that  a convict  who has been imposed substantive sentence is deprived of his liberty, the stem of life that should not ordinarily be stenosed, and hence, it is

3 (2013) 11 SCC 489  

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the duty of  the Court  to see that the cause of  justice is subserved with serenity in accordance with the established principles of law.

16. She submitted that apart from the above legal position, insofar as

present case is concerned no such instructions were given to the

lawyer by the appellant to give such a concession.

17. At second level, the learned senior advocate tried to submit that

there were various circumstances in the case which would reflect

that it was an arguable case on merits and, therefore, there was

no question of giving up the issue of conviction.  In this behalf,

she  flagged  the  aspects  of  improper  motive,  inimical

eyewitnesses, contradiction in the testimony of those witnesses,

non-examination  of  independent  witnesses  even  when  the

murder of Anil Badana took place in a marriage function where so

many  persons  were  present,  father  of  the  groom  had  turned

hostile,  recoveries  which  were  made  were  illegal,  forensic

examination was conducted after much delay and circumstances

of second murder were also suspicious.  Her passionate plea was

that had chance been given to the appellant,  there could have

been detailed arguments on these aspects, with a possibility of

favourable verdict for the appellant.

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18. Mr. A.N.S. Nadkarni, learned Additional Solicitor General as well

as  Ms.  Kiran  Suri,  learned Senior  Advocate  appearing  for  the

State strongly refuted the aforesaid submissions.  They submitted

that  during  the  arguments  before  the  High  Court  when it  was

found  that  the  appellant  had  no  case  on  merits,  his  counsel

pleaded only on sentencing.  It was also argued that statement of

the counsel is specifically recorded in para 6 of the High Court

judgment  and  the  sanctity  of  the  court  record  has  to  be

maintained  which  cannot  be  questioned  by  approaching  the

higher forum.  It was emphasised that inspite of this statement,

the High Court had, in fact, gone into the evidence and satisfied

its conscience to the effect that the trial court had come to a right

conclusion  about  the  conviction  of  the  appellant.   In  this

backdrop, the judgment cited by the appellant was not applicable.

They also briefly touched the merits of the case in the context of

replying to the arguments of the learned counsel for the appellant

and submitted that the issues flagged now on which the learned

senior  counsel for  the appellant  wanted to argue, do not  even

arise from the record.     It  was contended that  nothing of  the

nature was even put to the prosecution witnesses and an attempt

to find the alleged loopholes in the prosecution case was made

for the first time before this Court.  Insofar as sentence given by

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the trial court is concerned, it was argued that the trial court was

perfectly  justified  in  putting  a  cap  of  30  years’  rigorous

imprisonment  before the request  for  remission can be granted

referring  to  the  Constitution  Bench  judgment  of  this  Court  in

Sriharan @ Murugan (supra).

19. Mr. Sanjay R. Hegde, learned senior counsel who appeared for

the  complainant  in  one  case  and  Mr.  Prashant  Bhushan,

Advocate who appeared for complainant in other case, supported

the aforesaid submissions of the State.  It was additionally argued

that even if the ‘correction’ order dated February 14, 2017 was

wrong,  since  the  appeals  were  preferred  against  the  main

judgment dated December 24, 2016, this Court could always go

into the issue as to whether modification of sentence carried out

by the High Court was proper or not.   

On the aspect that the statement contained in para 6 of the

judgment  of  the  High  Court  could  not  be  questioned  by  the

appellant,  Mr.  Hegde referred to  the judgment  of  this  Court  in

State of Maharashtra v. Shrinivas Nayak and Another4.   He

also relied upon the judgment in Muthuramalingam and others

v. State represented by Inspector of Police5   

4 (1982) 2 SCC 463 5 (2016) 8 SCC 313

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20. Having noted the submissions of the counsel for the parties, we

proceed to discuss three questions formulated above.  Insofar as

question No. 1 is concerned, the contention of Ms. Makhija that

counsel for the appellant had made a statement before the High

Court without instructions from the appellant cannot be accepted.

We  may  reproduce  paragraph  6  of  the  High  Court  judgment

which states to the contrary.  It reads as under:

“6.   At  the  outset,  learned  counsel  for  the  appellant  on instructions  has  submitted  that  the  appellant  does  not press the appeals on merits with respect to the judgment on  conviction  but  has  laid  challenge  to  the  order  on sentence passed in  both the appeals.”

It records “that the appellant does not press the appeal on

merits with respect to the judgment of conviction” and specifically

states that the statement is made ‘on instructions’ in this behalf.

It is clear from the above that the counsel for the appellant had

received the instructions not to press the case on merits.  After

the judgment was pronounced, at no stage, the appellant took the

objection  that  the  aforesaid  statement  was  made  without

instructions.  It is stated for the first time in these appeals and the

special leave petitions were filed  in March, 2017, only after the

High  Court  had  passed  orders  dated  February  14,  2017

"correcting" earlier order dated December 24, 2016 by terming it

as typographical error.  It is argued by the appellant that since the

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order of sentence passed in the judgment dated December 24,

2016 went in his favour, he was not bothered about the aforesaid

statement  of  his  counsel.   However,  fact  remains  that  even

thereafter he did not approach the High Court with the plea that

he had not authorised his advocate to make such a statement.

Law on this subject is well settled in the judgments cited by Mr.

Hegde.  The Court record has to be believed.  If according to the

aggrieved  party  there  is  some  error,  the  only  option  with  the

aggrieved party is to approach that very court, seeking correction

of that order.  It was not done.  Therefore, we have to proceed on

the  premise  that  the  counsel  for  the  appellant  had  made  the

aforesaid statement on instructions from the appellant.   

21. Notwithstanding,  the  said  statement,  it  was  necessary  for  the

High Court to still go through the record to satisfy as to whether

the conviction is properly recorded.  We find that this exercise has

in fact been duly undertaken by the High Court.  After recording

the  statement  in  para  6,  discussion  ensued  on  merits  from

paragraph 7 onwards.   The High Court has taken note of the

witnesses who were examined by the prosecution to prove its

charges in both the cases.  It has mentioned that the prosecution

based  on  the  testimony  of  eyewitnesses  thereafter  brief

description  of  the  depositions  of  these  witnesses  have  been

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recorded by the High Court.  The High Court has also taken note

of MLC report which was duly proved by the prosecution.  It has

also gone through the testimony of FSL Expert (Ballistic Expert).

Deposition of the police officials who played their part at different

stages including investigation has also been taken note of.  The

testimony of certain other official witnesses is also kept in mind by

the High Court with specific reference thereto.  On the basis of

such  discussions,  the  High  Court  has  made  the  following

observations qua each of these cases:-

“22.   Based  on  the  testimonies  of  these  witnesses,  the trial  court  held  the  appellant  to  be  guilty.   Although  the counsel for the appellant had submitted that he does not challenge the judgment on conviction yet we have carefully examined the testimonies of these witnesses and, in our view, the trial court has correctly held the appellant to be guilty.

29.   In our view, the trial court based on the testimonies of various witnesses including eyewitness and based on the scientific  evidence  rightly  convicted  the  appellant  under Section 302 of the Indian Penal Code.”  

 22. We, therefore, do not find any force in this argument and decide

this issue against the appellant.

23. Before dealing with Question No. 2, it would be apt to first discuss

Question No. 3.  We are of the view that order dated February 14,

2017 deleting two lines from the main judgment dated December

24,  2016 does not  stand judicial  scrutiny,  inasmuch as,  by no

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stretch of  imagination it  can be treated as typographical  error.

When  the  judgment  dated  December  24,  2016  is  read  in  its

entirety on the issue of sentencing, a brief narration whereof has

already  been given  above,  it  becomes apparent  that  the  High

Court,  in  its  wisdom, thought  it  proper  to   modify  the order  of

sentence to the period already undergone.  As pointed out above,

the High Court took note of various judgments including of the

Supreme Court.  Thereafter in paragraph 61, it made categorical

averments that in a civilised society, a tooth for a tooth ad an eye

for an eye ought not to be the criterion in awarding the sentence.

It also observed that the Court was required to pass a sentence

which  is  neither  dispassionately  severe  nor  manifestly

inadequate. For this purpose, it is required 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 principles and having regard to the nature of the offence and the methodology adopted, we are convinced that the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict’s life  as  an  alternate  to  death  penalty,  can  be  exercised depending  on  the  facts  of  the  case.   Further,  the punishment awarded to the appellant herein is in excess of the requirement of the situation and as such the mitigating facts put forth by the learned counsel for the appellant are meant  to  invite  mercy  on the  appellant.   We are of  the

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considered view that to meet the ends of justice, the cap of 30 years must be removed.  Hence, we modify the order on  sentence  to  the  period  already undergone  by  the appellant, i.e, 16 years and 10 months.”  

24. It does not need further elaboration to hold that the last sentence

in  the  aforesaid  paragraph  by  which  the  Court  modified  the

punishment to the period already undergone, i.e., 16 years and

10 months was not a typographical error.

25. One  thing  is  absolutely  clear.   In  both  the  FIRs  there  was  a

charge  of  murder  under  Section  302,  IPC.   Conviction  was

recorded  on  both  the  charges  by  the  trial  court  which  was

affirmed by the High Court as well.  For the offence of murder,

minimum  sentence  is  ‘life  imprisonment’.  For  that  reason,

obviously, the High Court could not have modified the sentence to

the  one  already  undergone.   Therefore,  modification  in  the

aforesaid  manner  as  done  by  the  High  Court  was  clearly

erroneous.  In fact, it  appears that the High Court realised this

mistake and, therefore, made amends by correcting this  mistake

vide orders dated February 14, 2017.  However,  that step taken

by the High Court was beyond its jurisdiction.  It could have been

done only in appeal.  That exercise is precisely done by this Court

by setting aside that part of the order.

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26. Order dated February 14, 2017, therefore, cannot hold the ground

and is hereby set aside.

27. We  now take  up  the  second  issue.   This  question  arises  for

consideration because of the reason that main judgment dated

December 24,  2016 is  challenged by the two complainants as

well as the State.

28. To  answer  this  issue,  we  are  called  upon  to  decide  related

question, viz. whether the manner of imposition of sentences by

the trial court was justified?  To recapitulate, in the first charge

sheet  in  respect  of  1st offence  the  trial  court,  while  imposing

sentence  of  life  imprisonment,  put  a  cap  of  30  years  thereby

clearly  stating  that  no  remission  would  be  permissible  before

them.  Again, while inflicting life imprisonment in the second case,

it stated that the sentence would be for whole life and would start

only after completion of the sentence in the first offence.  In other

words,  it  awarded  consecutive  sentences  and  not  concurrent

sentences.

29. Both the cases were tried together.  Conviction was recorded by

one common judgment.  Likewise sentences were also recorded

by one common order.   In  this  backdrop,  the  High  Court  has

correctly come to conclusion that there was no question of giving

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consecutive sentences and sentences had to be concurrent. For

coming to this conclusion various judgments on the point were

noted.  The High Court also specifically referred to Section 427 of

CrPC. relevant portion whereof reads as under:

“S. 427 :  (1)   xxx xxx xxx

(2) When a person already  undergoing a sentence of imprisonment  for  life  is  sentenced  on  a  subsequent conviction to imprisonment for a term or imprisonment for life,  the subsequent sentence shall  run concurrently with such previous sentence.”

30. We now advert to the issue of 30 years’ cap while awarding life

conviction.    This aspect  is  now conclusively  determined by a

Constitution  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  Prison  Rules  or  other  relevant  rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Criminal Procedure Code. Therefore, in the  latter  case  when  a  remission  of  the  substantive sentence is granted under Section 432, then and then only giving credit to the earned remission can take place and not otherwise. Similarly, in the case of a life imprisonment, meaning thereby the entirety of one's life, unless there is a commutation  of  such  sentence  for  any  specific  period, there would be no scope to count the earned remission. In either  case,  it  will  again depend upon an answer  to the second part  of  the first  question based on the principles laid  down  in  Swamy  Shraddananda  (2) v. State  of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113

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63. With that when we come to the second part of the first question which pertains to the special category of sentence to be considered in substitute of death penalty by imposing a  life  sentence  i.e.  the  entirety  of  the  life  or  a  term  of imprisonment which can be less than full life term but more than 14 years and put that category beyond application of remission which has been propounded 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 a prisoner condemned to undergo life imprisonment is directed to do so twice over. It has, therefore, carved out an exception to the general rule to clearly recognise that in the  case  of  life  sentences  for  two  distinct  offences separately tried and held proved the sentences cannot be directed  to  run  consecutively.  The  provisions  of  Section 427(2) CrPC apart, in Ranjit Singh case [Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC 304 : 1991 SCC (Cri) 965] , this Court has in terms held that since life sentence implies imprisonment  for  the remainder  of  the life  of  the convict, consecutive life sentences cannot be awarded as humans have only one life. That logic, in our view, must extend to Section  31  CrPC also  no  matter  Section  31  does  not  in terms make a provision analogous to Section 427(2) of the Code. The provision must, in our opinion, be so interpreted as  to  prevent  any  anomaly  or  irrationality.  So interpreted Section 31(1) CrPC must mean that sentences awarded by the  court  for  several  offences  committed  by  the  prisoner shall run consecutively (unless the court directs otherwise) except where such sentences include imprisonment for life which can and must run concurrently. We are also inclined to hold that if more than one life sentences are awarded to the prisoner, the same would get superimposed over each other. This will imply that in case the prisoner is granted the benefit  of  any  remission  or  commutation  qua  one  such sentence, the benefit of such remission would not ipso facto extend to the other."

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32. As a consequence, the order of the High Court removing the cap

of 30 years is not correct and that portion has to be set aside.

33. The upshot of the aforesaid discussion would be to conclude as

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 is set aside meaning thereby the life sentence with 30

years’ cap without remission was awarded by the trial  court  is

upheld.   Further,  direction  of  the  High  Court  in  modifying  the

sentence to the one already undergone is also set aside.

(c) Rest of the judgment dated December 24, 2016 of the High

Court  is  upheld.   Effect  thereof  is  that  the  conviction  of  the

appellant is sustained.  However, sentences in  both the cases

shall run concurrently.  The net effect thereof would be that the

appellant  is given life imprisonment in both the cases with the

condition  that  he  will  have  no  right  to  seek  remission  till  the

completion of 30 years of rigorous imprisonment.

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Resultantly, the appeals of the appellant are dismissed and

that of  complainants and the State are partially  allowed to the

aforesaid extent and disposed of in the aforesaid manner.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; OCTOBER 25, 2018  

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