CHATAR SINGHversusSTATE OF M.P.

                                   CHATAR SINGH                                        A
                                            v.
                                    STATE OF M.P.

                                 NOVEMBER 24, 2006

                    [S.B. SINHA AND MARKANDEY KATJU, JJ.]                              B


           Sentence/Sentencing:

           Consecutive sentence-Maximum imprisonment-Accused convicted u/              C
     s. 364 !PC-High Court held that total period of Rigorous Imprisonment
     would he 20 years-Correctness of-Held, incorrect-In view of s. 3 I Ct. P. C,
     accused cannot be sentenced for period longer than 14 years-Penal Code,
     1860-Section 364-Code of Criminal Procedure, 1973-Section 31 and its
     proviso.
                                                                                       D
            Prosecution's case was that the accused kidnapped two boys and when
     his demand for ransom was not fulfilled, he killed them. He was prosecuted
     u/ss. 302, 201, 364, 365 and 120-B IPC. Trial Court held that there was no
     material to show that appellant had killed the victims and therefore conyicted
     appellant for offences punishable u/ss. 364 and 365 r/w. ss. 120-B and 201        E
('   and passed various sentences. On appeal, High Court accepted that prosecution
     could not establish that the boys were murdered by appellant, but upheld the
     finding of Sessions Judge as regards involvement of appellant for alleged
     commission of offence u/s. 364. The High Court held that the total period of
     rigorous imprisonment would be 20 years.
                                                                                       F
            In appeal to this Court, the appellant contended that the Trial Judge as
     also the High Court committed an error in sentencing the appellant to undergo
     20 years' Rigorous imprisonment in view of Section 31 Cr. P.C.

           Partly allowing the appeal, the Court
                                                                                       G
           HELD: The Provisos appended to Section 31 Cr.P.C clearly mandate that
     the accused could not be sentenced to imprisonment for a period longer than
     fourteen years. In view of this, the High Court committed a manifest error in
     sentencing the appellant for 20 years' Rigorous Imprisonment. The maximum
     sentence imposable being 14 years and having regard to the fact that the          H
                                          369
     370                     SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A appellant is in custody for more than 12 years, interest of justice would be
     sub-served if the appellant is directed to be sentenced to the period already
     undergone. [374-B)

          Kamalanantha & Ors. v. State of T.N., [2005) 5 SCC 194; K.
    Prabhakaran v. P. Jayarajan, [2005) I SCC 754 and Zulfiwar Ali & Anr. v.
B   State of UP., (1986] ALL. L.J. 1177, referred to.

            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.623 of
    2005.

         From the Final Judgment and Order dated 3-2-2004 of the High Court
C   of Madhya Pradesh at Jabalpur in Criminal Appeal No.2665/1998.

            T.N. Singh for the Appellant.

        N.M. Ghatate, C.D. Singh, Merusagar Samantharay and Kamakshi S.
    Mehlwal for the Respondent.
D
            The Judgment of the Court was delivered by

          S.B. SINHA, J. Interpretation and application of Section 31 of the
    Criminal Procedure Code, 1973 is involved in this appeal, which arises out of
    a judgment and order dated 3rd February, 2004 passed by a learned Single
E   Judge of the Madhya Pradesh High Court at Jabalpur in Criminal Appeal
    No.2665 of 1998.                                                                   ..
           In view of the question involved herein, we need not dilate on the
    factual matrix of the m~tter in great details. Suffice it say that the appellan~
F   herein was proceeded against in a case involving kidnapping of two boys
    Sudhir Kumar and Sushi! Kumar, aged about IO to 12 years. They were sons
    of Ramakant Katiyar (P. W.6). They had gone to attend school at about 7.30
    in the morning of 29th December, 1994. They were to return at about 1.30 p.m.,
    but, when they did not return till 5.30 p.m., a search for them was made. After
    the informant came back home, he was informed by his wife that one of the
G   classmate of the boys, namely, Gulabchandra Gour (P.W.7), had delivered his
    school bag informing that Satyendra (P. W. l 0) had asked him to do the same.
    P. W.6 went to the house of Satyendra to make inquiries about his son and
    came to learn that victim Sudhir Kumar had come to his house and handed
    over the bag stating that he was proceeding towards the farm. A First
    Information Report was lodged. Allegedly, the Chowkidar of the school,
H   namely, Ramesh Kumar (P.W.8) discovered certain wearing apparels as also
              CHATARSINGHv. STATEOFM.P. [S.B. SINHA,J.]                   371

 a letter demanding ransom of Rs.2,0001-. He handed over the trouser and the A
 letter to the police. On the next day, one Prakash Chandra Sharma came to
 the house of Ramakant and stated that he had found a letter in which it was
 stated that P. W.6 had committed a grave error in intimating the police. Therein
 it was, allegedly, mentioned that dead body of Sun ii Kumar was thrown in the
 'nallah' behind the 'durgha'. A search was made, but the dead body was not B
found. Allegedly, a demand of Rs.10,0001- towards ransom was made by a
 letter, which was marked as Exhibit Pll 0. On 6.1.1995, a dead body was
recovered, which was ultimately found to be that of Sushi! Kumar. P.W.6
received another letter on 17.1.1995, whereby he was asked to pay a sum of
Rs.20,0001-. In that letter it was said to have written that if the said amount
was not paid, Sudhir Kumar would be similarly dealt with. The dead body of C
Sudhir Kumar was thereafter found. During investigation, ~ppellant was
apprehended and ultimately, he was prosecuted for alleged commission of
offences under Section 302, 201, 364, 365 and 120-B of the Indian Penal Code,
1860 ('IPC', for short). The learned Trial Judge opined that there was no
material on record to show that the victims were killed by the appellant. It was
further not found that they were kidnapped for obtaining ransom or for D
murdering them. However, two letters were found to have been written by the
appellant. He, therefore, convicted the appellant for commission of offences
punishable under Sections 364 and 365 read with Sections 120-B and 20 I of
the Indian Penal Code and passed the following sentences :
      "UIS. 364 IPC           R.I. for 10 years,                                 E
      UIS. 364 IPC            R.I. for 10 years,
      UIS. 365 IPC            R. I. for 4 years,
      UIS. 365 IPC            R.I. for 4 years,
      UIS. 120-B IPC          R. I. for 5 years,                                 F
      UIS. 120-B IPC          R.I. for 5 years,
      U/S. 201 IPC            R.I. for 2 years."

      On appeal, the High Court accepted that the prosecution could not
establish that the boys were murdered by the appellant, but the finding of the   G
learned Sessions Judge as regards involvement of the appellant for alleged
commission of an offence under Section 364 was upheld, stating :

       ".. .In the present case the accused was responsible for abducting to
        young children. The learned trial Judge might have acquitted him of
        the offence punishable under Section 302 of the IPC but the fact         H
    372                      SUPREME COURT REPORTS (2006] SuPP. 9 S.C.R.

A           remains because of such abduction the young boys lost their lives.
            If they would not have been abduction (sic) their life-sparks would
            not have been extinguished and they would have in ordinary course
            of nature blossomed into young men and their parents would not
            have suffered agony and anguished for the loss of their lives. When
            there is such act by the accused, it not only projects ruthlessness and
B           totally insensitive proclivity but also creates a fear in the mind of the
            society. A person who creates phobia in the mind of collective, cannot
            be leniently dealt with. Keeping in view the totality of circumstances
            and regard being had to basic conception ofvictimology, I am inclined
            to hold that the sentences which have been directed to run
C           consecutively in respect of the offence under Section 364 of the IPC,
            should be maintained and accordingly it is so directed. As far as
            sentence in respect of other offences is concerned, the same would
            be concurrent. Thus, the total period of the rigorous imprisonment
            would be 20 years."

D         Mr. T.N. Singh, learned counsel appearing on behalf of the appellant
    would submit that the learned Trial Judge as also the High Court committed
    an error in sentencing the appellant to undergo 20 years' Rigorous
    Imprisonment in view of Section 31 of the Criminal Procedure Code. It was
    pointed out that the appellant had already been i:: jail for a period of more ....
E   than 12 years. The appellant, as noticed hereinbefore, was charged both
    under Section 364A IPC as also 102B IPC. He was not found guilty of any
    of the said charges. He was charged only under Sections 364 and 365 of the
    Indian Penal Code. The maximum sentence which could be imposed under
    Section 364 was 10 years and under Section 365 was 7 years. Fine could also
    be imposed, but the same has not been done.
F
          We, although, appreciate the anxiety on the part of the learned Sessions
    Judge as also the learned Judge of the High Court not to deal with such a
    matter leniently, but, unfortunately, it appears that the attention of the learned
    Judges was not drawn to the provision contained in Section 31 of the Criminal
    Procedure Code. The said provision reads thus :
G
            "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 oi'i'..:nc.:es,
            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
H           to inflict; such punishments, when consisting of imprisonment. to
             CHATARSINGHv. STATEOFM.P. [S.B. SINHA, J.]                   373

       commence the one after the expiration of the other in such order as        A
       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             B
       competent to inflict on conviction of a single offence, to send the
       offender for trial before a higher Court."

      Provisos appended the said Section clearly mandate that the accused
could not have been sentenced to imprisonment for a period longer than
fourteen years.                                                                   C
    Learned Sessions Judge as also the High Court, in our opinion, t}ms,
committed a serious illegality in passing the impugned judgment.

      In Kamalanantha & Ors. v. State a/TN., [2005] 5 SCC I94, this Court,
although, held that even the life imprisonment can be subject to consecutive      D
sentence, but it was observed :

           "Regarding the sentence, the trial court resorted to Section 31
       CrPC and ordered the sentence to run consecutively, subject to proviso
       (a) of the said section."
                                                                                  E
     Although, the power of the Court to impose consecutive sentence
under Section 31 of the Criminal Procedure Code was also noticed by a
Constitution Bench of this Court in K Prabhakaran v. P. Jayarajan, [2005]
I SCC 754, but, therein the question of construing proviso appended thereto
did not and could not have fallen for consideration.
                                                                                  F
      The question, however, came up for consideration in Zulfiwar Ali &
Anr. v. State of U. P., [ 1986] All.L.J. 1177, wherein it was held :

            "The opening words "In the case of consecutive sentences" in
       sub-s. 31(2) make it clear that this sub-section refers to a case in
       which "consecutive sentences" are ordered. After providing that in         G
       such a case if an aggregate of punishment for several offences is
       found to be in excess of punishment which the court is competent to
       inflict on a conviction of single offence, it shall not be necessary for
       the court to send the offender for trial before a higher court. After
       making such a provision, proviso (a) is added to this sub-section to       H
    374                      SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A           limit the aggregate of sentences which such a court pass while making
            the sentences consecutive. That is this proviso has provided that in
            no case the aggregate of consecutive sentences passed against an
            accused shall exceed 14 years. In tbe instant case the aggregate of the
            two sentences passed against the appellant being 28 years clearly
            infringes the above proviso. It is accordingly not liable to be
B           sustained."

           In view of the proviso appended to Section 31 of the Criminal Procedure
    Code, we are of the opinion that the High Court committed a manifest error
    in sentencing the appellant for 20 years' Rigorous Imprisonment. The maximum
C   sentence imposable being 14 years and having regard to the fact that the
    appellant is in custody for more than 12 years. Now, we are of the opinion
    that interest of justice would be. sub-served if the appellant is directed to be
    sentenced to the period already undergone.

          The appeal is allowed to the aforementioned extent. The appellant shall
D   be released forthwith if not wanted in connection with any other case.

    D.G.                                                    Appeal partly allowed.