Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2387  OF 2014 (Arising out of SLP (Crl.) No. 2487/2014)  

O.M. CHERIAN @ THANKACHAN     …..Appellant

Versus

STATE OF KERALA & ORS.         ….Respondents

J U D G M E N T

R. Banumathi, J.

Leave granted.

2. This  appeal  arises  out  of  the  judgment  dated  

27.11.2013 passed in Crl. Appeal No. 910/2006  by which the  

High  Court  of  Kerala  confirmed  the  conviction  of  the  

appellant/1st accused under Sections 498A and 306 IPC and  

also the sentence of imprisonment imposed on him.

Page 2

3. Briefly  stated,  case of  the  prosecution is  that  the  

1st accused  married  Lillikutty  and  their  marriage  was  

solemnized  on  11.2.1988  and  they  continued  their  stay  in  

House bearing No. MP. VIII/84 of Karulayai Amsom along with  

other accused, who are the father, mother and brother of the  

appellant.  The allegation levelled is that in the matrimonial  

house, the appellant/1st accused and other accused ill-treated  

and  tortured  Lillikutty,  compelling  her  to  take  the  extreme  

step  of  putting  an  end  to  her  life  by  committing  suicide.  

During  the  marital  life,  Lillikutty  had a premature delivery.  

When she became pregnant again in 1993, it is alleged that  

A-1  provided  her  with  some  tablets  and  Lillikutty  had  a  

miscarriage.  During her marital life Lillikutty delivered a child  

who did not live long. On 23.2.1996 Lillikutty poured kerosene  

oil on herself and also drank some, which was later cleared  

away.  On 23.2.1996, a mediation talk had been scheduled  

and PW-1 and the relatives of Lillikutty were also to attend the  

mediation  talks  but  when  the  meeting  was  so  scheduled,  

Lillikutty  committed  suicide  by  hanging.  On  the  first  

information by PW-1,  a neighbour of the accused, law was set  

in  motion.  Initially  FIR  was  registered  for  unnatural  death  2

Page 3

under Section 174 Cr.P.C. and on subsequent complaint,  the  

same was altered to  one for  the  offences  punishable  under  

Sections 498A and 306 IPC.  PW-4 conducted autopsy and  

submitted  the  post-mortem  report.   PW-14,  investigating  

officer,  had  taken  up  the  investigation  and  seized  the  

documents and material objects and examined the witnesses  

and  laid  the  charge  sheet  against  the  appellant  and  other  

accused.  In the trial court, PWs 1 to 15 were examined and  

Exs. P-1 to P-25 were marked and MOs 1 to 18 were identified.  

The accused were questioned under Section 313 Cr.P.C. and  

they denied all the incriminating evidence and circumstances  

brought out in evidence against them.  

4. Upon  consideration  of  evidence,  the  trial  court  

convicted the appellant/1st accused under Section 498A IPC  

and  sentenced  him  to  undergo  two  years  of  rigorous  

imprisonment and to pay a fine of Rs.5,000/- and in default of  

payment of fine, to undergo further imprisonment of one year.  

For the offence punishable under Section 306 IPC, the trial  

court  sentenced  him  to  undergo  rigorous  imprisonment  for  

seven years and to pay a fine of Rs.50,000/- and in default of  

payment  of  fine,  to  undergo  further  imprisonment  of  three  3

Page 4

years.   The  substantive  sentences  of  the  appellant  were  

ordered to run consecutively.  Accused 2 to 4 were convicted  

under  Section  498A  IPC  and  were  sentenced  to  undergo  

imprisonment for two years and to pay fine of Rs. 5,000/- with  

default  clause  of  one  year.   The  High Court  confirmed the  

conviction  and  also  the  sentence  of  imprisonment  imposed  

upon all the accused.

5. Being  aggrieved,  the  appellant/1st accused  has  

preferred this appeal.  This Court issued notice only on the  

limited question as to whether the sentence can be made to  

run  concurrently,  instead  of  running  consecutively.   This  

Court  by  order  dated  18.7.2014  observed  that  Section  31  

Cr.P.C. was not noticed by this Court in Mohd. Akhtar Hussain  

alias  Ibrahim  Ahmed  Bhatti vs.  Asstt.  Collector  of  Customs  

(Prevention), Ahmedabad & Anr. (1988) 4 SCC 183 and referred  

the matter to be considered by a larger Bench in order to settle  

the  law  and  thus,  the  matter  is  before  us.  The  order  of  

Reference is as follows:

“The petitioner herein was concurrently convicted for  offences  under  Section  498A  and  Section  306  IPC  and  sentenced to undergo rigorous imprisonment for 2 years and  7  years  respectively  on  the  above-mentioned  two  counts  

4

Page 5

apart  from paying  certain  amounts  of  fine,  the  details  of  which may not be necessary.

Both the  Courts  directed  that  the  sentences  should  run consecutively.

By an order dated 31st March, 2014, notice was issued  limited only to the question whether the direction whereby  the sentences were ordered to run consecutively  is legally  tenable.

Learned counsel for the petitioner has placed reliance  on the  judgments  of  this  Court  in  Mohd.  Akhtar  Hussain  alias Ibrahim Ahmed Bhatti vs. Assistant Collector of Customs  (Prevention), Ahmedabad and Another (1988) 4 SCC 183 and  Manoj alias Panu vs.  State of  Haryana (2014) 2 SCC 153  and argued that when an accused is found guilty of more  than  one  offence  at  the  same  trial,  though   separate  conviction is recorded on each of the different charges and  different sentences are imposed, such sentences are required  to be directed to run concurrently.   

This  Court  in  Mohd.  Akhtar  Hussain  alias  Ibrahim  Ahmed Bhatti case (supra) at para (10) held as under:    

   ‘The basic rule of thumb over the years has  been  the  so-called  single  transaction  rule  for  concurrent  sentences.  If  a  given  transaction  constitutes  two  offences  under  two  enactments  generally,  it  is  wrong  to  have  consecutive  sentences.   It  is  proper  and  legitimate  to  have  concurrent  sentences.  But  this  rule  has  no  application if the transaction relating to offences  is not the same or the facts constituting the two  offences are quite different.”

In Manoj  alias Panu vs. State of Haryana (supra)    the  Bench simply  followed the earlier judgment.

From  the  judgment  in  Mohd.  Akhtar  Hussain  alias  Ibrahim Ahmed Bhatti case (supra), it appears that Section  31 of the  Criminal Procedure Code was not noticed by this  Court when this Court observed as extracted above.   

Section 31 (1) of the Cr. P.C. reads as follows:-

5

Page 6

31. Sentence in cases of conviction of  several  offences  at  one  trial.   ‘(1)  When  a  person  is  convicted at one trial of two or more offences, the  Court may, subject to the provisions of Section 71  of the Indian Penal Code (45 of 1860),  sentence  him  for  such   offences,  to  the  several  punishments  prescribed  therefore  which  such  Court is competent  to inflict;  such punishments  when  consisting  of  imprisonment  to  commence  the one after the  expiration of the other in such  order as the Court may direct, unless the Court  directs  that   such  punishments  shall  run  concurrently.’

(2)…………… (3)……………”

Therefore,  the  statutory  stipulation  is  clear  that  normally sentences in such cases are to run consecutively.

Hence we find it difficult for us to accept the statement  of  law  made  in  the  above  mentioned  two  cases.  We,  therefore, deem it appropriate that the matter be considered  by a Bench of  appropriate strength to settle the law.  We  direct  the  Registry  to  place  the papers  before  Hon’ble  the  Chief Justice of India for appropriate orders.”    

6. Learned  counsel  for  the  appellant  Mr.  Jayanth  

Muthraj  contended that  when a person is  convicted  at  one  

trial  for  two  or  more  offences,  Section  31  Cr.P.C.  vests  a  

discretion in the Court to direct that the punishment shall run  

concurrently and in the present case the trial court and the  

appellate court have not properly exercised such discretionary  

power vested in them.   Learned counsel submitted that the  

section provides that where several sentences are imposed for  

6

Page 7

two or more offences, such sentences will  run one after the  

other in such order as Court directs, unless the Court directs  

running  of  punishments  concurrently  and  the  Court’s  

discretion to order concurrent running of sentences is not in  

any  manner  restricted.   It  was  contended  that  there  is  no  

reason to presume that general rule is that sentences will run  

one after the other and exception is that punishments will run  

concurrently.   He further submitted that the judicial guideline  

in Mohd. Akhtar Hussain is in no way in conflict with Section  

31 Cr.P.C.        

7. We have heard Ms. Bina Madhavan learned counsel  

appearing  for  the  respondent–State  of  Kerala  also,  who  

supported  the  view  taken  by  the  courts  below.  Learned  

counsel placed reliance on the recent judgment of this Court  

in Duryodhan Rout v. State of Orissa, 2014 (8) SCALE 96.

8. We have given our thoughtful consideration to the  

matter and perused the materials on record.  

9. Section  31  Cr.P.C.  relates  to  the  quantum  of  

punishment that the court has jurisdiction to pass where the  

accused  is  convicted  for  two  or  more  offences  at  one  trial.  

Section 31 Cr.P.C.  reads as follows:- 7

Page 8

“S.31.  Sentence  in  cases  of  conviction  of   several  offences  at  one  trial..  –(1)  When  a  person  is  convicted  at  one  trial  of   two  or  more   offences, the Court may, subject to the provisions of   Section 71 of the Indian Penal Code (45 of 1860),   sentence  him  for  such  offences,  to  the   several   punishments prescribed  therefor which such  Court   is  competent   to  inflict;  such  punishments  when   consisting  of  imprisonment  to  commence  the  one   after the expiration of the other in such order as the   Court  may  direct,  unless  the  Court  directs   that   such punishments shall run concurrently.

(2) In the case of consecutive  sentences, it   shall not be necessary for the Court  by reason only   of  the  aggregate  punishment  for  the  several   offences being in excess of the punishment  which   it is competent to inflict  on conviction of a single   offence,  to  send   the  offender  for  trial  before  a   higher Court:

Provided that—

(a) in no case shall such person be sentenced  to   imprisonment  for  a  longer  period  than  fourteen years;

(b) the aggregate punishment  shall  not exceed   twice  the amount of punishment  which the   Court   is  competent  to  inflict   for  a  single   offence.  

(3) For  the  purpose  of  appeal  by  a   convicted person, the aggregate of the consecutive   sentences  passed against  him under  this  section   shall be deemed to be a single sentence.”    

10. Section  31  Cr.P.C.  relates  to  the  quantum  of  

punishment  which  may  be  legally  passed  when  there  is  

(a) one trial and (b) the accused is convicted of “two or more  

8

Page 9

offences”.   Section  31  Cr.P.C.  says  that  subject  to  the  

provisions  of  Section  71  IPC,  Court  may  pass  separate  

sentences for  two or more offences of  which the accused is  

found guilty, but the aggregate punishment must not exceed  

the limit fixed in the proviso (a) and (b) of sub-section (2) of  

Section 31 Cr.P.C.   In Section 31(1) Cr.P.C., since  the word  

“may”  is  used,  in  our  considered  view,   when  a  person  is  

convicted for two or more  offences at one trial, the court may  

exercise  its discretion in directing that  the  sentence for each  

offence  may either run consecutively or concurrently subject  

to the provisions  of Section  71 IPC.   But the aggregate  must  

not  exceed the limit  fixed in proviso  (a) and (b) of sub-section  

(2) of Section 31 Cr.P.C. that is – (i)  it should not exceed 14  

years  and  (ii)  it  cannot  exceed  twice  the  maximum  

imprisonment  awardable  by the sentencing court  for a single  

offence.  

11. The  words  “unless  the  court  directs  that  such   

punishments shall  run concurrently” occurring in sub-section  

(1) of Section 31,  make it clear that Section 31 Cr.P.C.  vests a  

discretion in the Court to direct that the punishment shall run  

concurrently, when the accused is  convicted at one trial for  9

Page 10

two or more  offences.  It is manifest from Section 31 Cr.P.C.  

that  the  Court  has  the  power  and  discretion  to  issue  a  

direction for  concurrent  running of  the sentences when the  

accused  is  convicted  at  one  trial  for  two  or  more  offences.  

Section  31  Cr.P.C.  authorizes  the  passing  of  concurrent  

sentences in cases of substantive sentences of imprisonment.  

Any sentence of imprisonment in default of fine has to be in  

excess  of,  and  not  concurrent  with,  any  other  sentence  of  

imprisonment to which the convict may have been sentenced.  

12.  The words in Section 31 Cr.P.C “….sentence him for  

such offences, to the several punishments prescribed therefor   

which  such  Court  is  competent  to  inflict;  such  punishments   

when consisting of imprisonment to commence the one after the   

expiration of the other in such order as the Court may direct”  

indicate that in case, the Court directs sentences to run one  

after the other, the Court has to specify the order in which the  

sentences  are  to  run.   If  the  Court  directs  running  of  

sentences concurrently, order of running of sentences is not  

required  to  be  mentioned.   Discretion  to  order  running  of  

sentences concurrently or consecutively is judicial discretion  

of the Court which is to be exercised as per established law of  10

Page 11

sentencing.  The court before exercising its discretion under  

Section 31 Cr.P.C.  is required to consider the totality  of the  

facts and circumstances  of those offences against the accused  

while deciding whether sentences are to run consecutively or  

concurrently.   

13. Section 31 (1) Cr.P.C. enjoins a further direction by  

the court to specify the order in which one particular sentence  

shall commence after the expiration of the other.   Difficulties  

arise when the Courts impose sentence of imprisonment for  

life  and also  sentences  of  imprisonment  for  fixed term.   In  

such cases,  if  the Court does not  direct that  the sentences  

shall  run  concurrently,  then  the  sentences  will  run  

consecutively by operation of Section 31 (1) Cr.P.C.  There is  

no  question  of  the  convict  first  undergoing  the  sentence  of  

imprisonment for life and thereafter undergoing the rest of the  

sentences  of  imprisonment  for  fixed  term  and  any  such  

direction  would  be  unworkable.  Since  sentence  of  

imprisonment  for life  means jail till  the end of  normal life  of  

the convict, the sentence of imprisonment of  fixed term has to  

necessarily run  concurrently  with life imprisonment.  In such  

case, it will be in order if the Sessions Judges exercise their  11

Page 12

discretion  in  issuing  direction  for  concurrent  running  of  

sentences.    Likewise if two life sentences are imposed on the  

convict,  necessarily,  Court  has  to  direct  those  sentences  to  

run concurrently.       

14. The  opening  words  “in  the  case  of  consecutive  

sentences”  in  sub-section (2)  of  Section 31 Cr.P.C.  make it  

clear  that  this  sub-section  refers  to  a  case  in  which  

“consecutive sentences” are ordered.  The provision says that if  

an aggregate  punishment  for several offences  is found to be  

in excess of   punishment  which the Court  is competent  to  

inflict   on  a  conviction  of  single  offence,  it  shall  not  be  

necessary for the  Court  to   send the offender for trial before  

a  higher  court.   Proviso  (a)  is  added  to  sub-section  (2)  of  

Section 31 Cr.P.C. to limit the aggregate of sentences - that in  

no case, the aggregate of consecutive sentences passed against  

an accused shall exceed fourteen years.  “Fourteen years rule”  

contained in clause (a) of the proviso to Section 31 (2) Cr.P.C.  

may not be applicable in relation to sentence of imprisonment  

for  life,  since  imprisonment  for  life  means  the  convict  will  

remain in jail till the end of his normal life.     

12

Page 13

15. In  Ramesh Chilwal vs.  State of Uttarakhand (2012)  

11 SCC 629, the accused was convicted under Section 302 IPC  

and sentenced to undergo imprisonment for life.  Accused was  

also convicted under Sections 2/3 [3(1)] of the U.P. Gangsters  

and Anti-Social Activities (Prevention) Act, 1986 and sentenced  

to  undergo  rigorous  imprisonment  for  ten  years  and  under  

Section  27  of  the  Arms  Act  sentenced  to  further  undergo  

rigorous imprisonment  for seven years.  Considering the fact  

that the trial court had awarded  life sentence  under Section  

302 IPC,  this Court directed that all sentences imposed under  

Section 302 IPC,  Sections 2/3 [3(1)] of the Gangsters Act and  

Section 27 of the Arms Act to run concurrently.          

16. When the prosecution is based on single transaction  

where it constitutes two or more offences, sentences are to run  

concurrently.   Imposing  separate  sentences,  when  the  acts  

constituting  different  offences  form  part  of  the  single  

transaction is not justified.  So far as the benefit available   to  

the  accused  to  have  the  sentences  to  run  concurrently  of  

several offences based on single transaction, in V.K. Bansal vs.  

State of Haryana & Anr. (2013) 7 SCC 211, in which one of us  

13

Page 14

(Justice  T.S.  Thakur)  was  a  member,  this  Court  held  as  

under:-

“…  we  may  say  that  the  legal  position  favours   exercise of discretion to the benefit of the prisoner   in cases where the prosecution is based on a single   transaction  no  matter  different  complaints  in   relation  thereto  may  have  been  filed  as  is  the   position  in  cases  involving  dishonour  of  cheques   issued  by  the  borrower  towards  repayment  of  a   loan to the creditor.”  

17. This  Court  in  the  case  of  Mohd.  Akhtar  Hussain  

alias  Ibrahim  Ahmed  Bhatti vs.  Asstt.  Collector  of  Customs  

(Prevention)  Ahmedabad  and  Anr., (1988)  4  SCC  183,  

recognized the basic rule of conviction arising out of a single  

transaction justifying the concurrent running of the sentences.  

The following passage in this regard is relevant to be noted :-

“The basic rule of thumb over the years has been  the so-called single transaction rule for concurrent  sentences.  If a given transaction constitutes two  offences  under  two  enactments  generally,  it  is  wrong to have consecutive sentences.  It is proper  and legitimate to have concurrent sentences.  But  this  rule  has  no  application  if  the  transaction  relating to offences is not the same or the facts  constituting the two offences are quite different.”

In Manoj alias Panu vs. State of Haryana, (2014) 2 SCC 153,  

the Bench followed Mohd. Akhtar Hussain’s case.

14

Page 15

18. While  referring  the  matter  to  a  larger  Bench,  the  

Bench observed that in Mohd. Akhtar  Hussain’s case, Section  

31  Cr.P.C.  was not noticed by this Court.    It is to be pointed  

out that in Mohd. Akhtar Hussain’s case and Manoj’s case, the  

appellants who were convicted for different counts of offences  

arose  out  of  a  single  transaction,  favouring  the  exercise  of  

discretion  to  the  benefit  of  the  accused  that  the  sentences  

shall run concurrently.  Those decisions are not cases arising  

out  of  conviction  at  one  trial  of  two  or  more  offences  and  

therefore, reference to Section 31 Cr.P.C. in those cases was  

not necessitated.

19. As pointed out earlier, Section 31 Cr.P.C. deals with  

quantum of  punishment which may be legally  passed when  

there is - (a) one trial and (b) the accused is convicted  of two  

or more offences.  Ambit of Section 31 is wide, covering not  

only single transaction constituting two or more offences but  

also offences  arising out  of  two or more transactions.   In the  

two judgments in  Mohd. Akhtar Hussain and  Manoj  (supra),  

the  issue  that  fell  for  consideration  was  the  imposition  of  

sentence  for  two or  more  offences  arising  out  of  the  single  

15

Page 16

transaction.  It is in that context, in those cases, this Court  

held that the sentences shall run concurrently.   

20. Under  Section  31  Cr.P.C.  it  is  left  to  the  full  

discretion  of  the  Court  to  order  the  sentences  to  run  

concurrently in case of conviction for two or more offences.  It  

is difficult to lay down any straitjacket approach in the matter  

of exercise of such discretion by the courts.  By and large, trial  

courts and appellate courts have invoked and exercised their  

discretion  to  issue  directions  for  concurrent  running  of  

sentences, favouring the benefit  to be given to the accused.  

Whether a direction for concurrent running of sentences ought  

to be issued in a given case would depend upon the nature of  

the  offence  or  offences  committed  and  the  facts  and  

circumstances of the case.  The discretion has to be exercised  

along the judicial lines and not mechanically.    

21. Accordingly,  we  answer  the  Reference  by  holding  

that Section  31 Cr.P.C. leaves full discretion with the Court to  

order sentences  for two or more  offences at one trial to run  

concurrently,  having  regard to the nature of offences  and  

attendant  aggravating  or mitigating  circumstances.  We do  

not find any reason to hold that normal   rule is to order the  16

Page 17

sentence  to  be  consecutive  and  exception  is  to  make  the  

sentences concurrent.  Of course, if the Court does not order  

the sentence to be concurrent, one sentence may run after the  

other, in such order as the Court may direct.  We also do not  

find any conflict in earlier judgment in Mohd. Akhtar Hussain  

and Section 31 Cr.P.C.                

22. Having  answered  the  reference,  the  merits  of  the  

matter  can  be  gone  into  by  the  referring  Bench;  but  we  

consider it appropriate to dispose of the appeal itself to avoid  

any further delay.  Adverting to the present case, the learned  

counsel  for  the  appellant  contended  that  the  facts  and  

circumstances of the case were not kept in view to invoke the  

discretion  for  concurrent  running  of  sentences.  It  was  

submitted that appellant is employed in Gulf countries  and  

between 1988–1996, the appellant visited India only four times  

and there could not have been any continuous harassment on  

his part and in the  said facts and circumstances of the case,  

the trial court and the High Court  ought to have judiciously  

exercised  their  discretion  in  directing  sentences  to  run  

concurrently  and  therefore,   prayer  for  intervention  of  this  

Court was made. 17

Page 18

23. The trial  court directed the sentences imposed on  

the appellant/accused under Sections 498A and 306 IPC to  

run  consecutively,  which  was  affirmed  by  the  High  Court.  

When the trial court declines to exercise its discretion under  

Section 31 Cr.P.C. in issuing direction for concurrent running  

of sentences, normally the appellate court will  not interfere,  

unless the refusal to exercise such discretion is shown to be  

arbitrary or unreasonable.   When the trial court as well as the  

appellate court declined to exercise their discretion, normally  

we would have refrained from interfering with such direction of  

the courts for consecutive running of sentences.   But in the  

facts and circumstances of the present case, in our view, the  

sentences imposed on the appellant could be ordered to be run  

concurrently.   At  the  time  of  marriage,  the  appellant  was  

employed as a Painter at Delhi and after marriage, it is stated  

that  the  appellant  had  secured  an  employment  in  Gulf  

countries and used to visit India once in two years only.   It is  

brought  on  evidence  that  in  a  period  of  eight   years  from  

1988–1996,  he came on leave to India for only four times and  

finally   he   visited  India  while  he  was  on  leave  during  

January-February 1996.  The appellant also appears to have  18

Page 19

taken efforts  for  mediation to settle  the differences and the  

mediation  was  scheduled  to  take  place  on  23.2.1996;  but  

Lillikutty committed suicide on the same day.  Keeping in view  

the  totality  of  the  facts  and circumstances  of  the  case,  the  

sentences  imposed  on  the  appellant  for  the  offences  

punishable under Sections 498A and 306 IPC are ordered to  

run concurrently and the appeal is disposed of with the above  

modifications.    

24. The  reference  is  answered  accordingly  and  the  

appeal allowed in part to the extent as indicated above.

…………………………….J. (T.S. Thakur)

…………………………….J. (Adarsh Kumar Goel)

…………………………….J. (R. Banumathi)  

New Delhi, November 11, 2014   

19