2018 Supreme(SC) 1080

SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
Jitendra @ Kalla - Appellant
Versus
State of Govt. of NCT of Delhi - Respondent
Criminal Appeal Nos. 2133, 2135-2136, 2134, 2139 & 2137-2138 of 2017
Decided On : 25-10-2018

IMPORTANT POINTS
Court record has to be believed.
High Court has no jurisdiction to modify its judgment. This can only be done in appeal.
A sentence lesser that the minimum (like anything less than life imprisonment u/s 302) cannot be awarded.
There is no infirmity in award of life imprisonment with cap of 30 years without remission.

Headnote:(a) Administration of justice – High Court recording counsel for appellant stated on instructions from appellant that the appellant does no wish to press for the appeal on merits with respect to the judgment of conviction – Now counsel for appellant stating in Supreme Court that the counsel before the High Court was not given such instructions by the appellant – If that be so, appellant should have taken steps for correction of that mistake of his counsel – This was not done – Well settled that Court record has to be believed – Contention rejected. (Para 20)

       (1982) 2 SCC 463; (2016) 8 SCC 313 – Relied upon

       (b) Criminal trial – Conviction – In spite of the counsel for appellant not pressing for appeal on merits high Court going into it – Analysing evidence in detail and affirming conviction –No error. (Para 21, 22)

       (c) Administration of justice – Judicial discipline – High Court, after delivering judgment and pronouncing sentence modifying the name in the name of correcting some typographical error – Relevant portion of previous judgment purportedly corrected by subsequent judgment cannot be said to be typographical error. (Para 23, 24)

       (d) Criminal jurisprudence – Sentencing – A sentence lesser that the minimum cannot be awarded – Minimum sentence u/s 302 is life imprisonment – Trial court awarding life imprisonment in both FIRs charging appellant with murder of two different persons – High court modifying the sentence to the period undergone, i.e., 16 years and 10 months – Not permissible – Realising this mistake and calling it typographical error, High Court purportedly correcting it – Beyond jurisdiction – It could only be done in appeal – that portion of High Court judgment set aside. (Para 25)

       Code of Criminal Procedure, 1973 – Section 427 – Trial court by a common judgment in two FIRs of murder awarding sentence of life imprisonment in both cases – The first sentence capped at 30 years without remission – Second sentence to commence after completion of he first – Not in conformity with section 427 – Sentences should be directed to run concurrently. (Para 29)

       Indian Penal Code, 1860 – Section 302 – Sentence of life imprisonment – Cap of 30 years without remission – No infirmity. (Para 30, 31)

       (2016) 7 SCC 1 : 2015 (13) SCALE; (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113 – Relied upon

       (2016) 6 SCC 296; (2014) 3 SCC 421; 2014 (3) JCC 2282; AIR 2008 SC 582; (2010) 12 SCC 532; 2013 (2) SCALE 533; AIR 1958 All 198; (2013) 11 SCC 489; AIR 1958 All 198; (2013) 11 SCC 489 – Referred

       Facts of the case:

       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 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.

       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 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.

       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.

       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.

       Finding of the Court:

       Impugned judgment is not sustainable being beyond jurisdiction.

       Result: Appeals of appellants dismissed and those of complainants partly allowed.