V. Ramkumar, J.

In this petition filed under Section 482 Cr.P.C., the petitioners who were accused Nos.1 and 3 in S.C. No. 315 of 1998 on the file of the Additional Sessions Court (Fast Track Court-I), Thiruvananthapuram seek a direction that the substantive sentences of imprisonment for life and rigorous imprisonment for five years imposed on them under Sections 302 and 449 I.P.C. may be directed to run concurrently and not consecutively. The petitioners are now serving the sentence in the Open Prison, Nettukaltheri in Thiruvananthapuram district.

THE BACKGROUND FACTS

2. The facts leading to this petition can be summarised as follows:- S.C. No. 315 of 1998 before the Additional Sessions Court (Fast Track Court-I), Trivandrum was a case charge-sheeted by the Kanjiramkulam Police in Crime No.51 of 1997 against nine accused persons for offences punishable under Sections 143, 147, 148, 427,449 and 302 read with Section 149 I.P.C. The nine persons who were charge-sheeted were:-

1. Shibu (1st petitioner herein)

2. Suresh Babu @ Thambu

3. Sivadasan @ Dasan (2nd petitioner herein)

4. Sivarajan @ Sivadasan

5. Shemi @ Sohan

6. Kumar @ Kappakka

7. Santhosh

8. Sasi

9. Anil Kumar @ Ani

Out of the nine accused persons, A5 was absconding and the case against him was split up and re-filed. The remaining 8 accused persons faced trial. The learned Additional Sessions Judge after trial as per judgment dated 6.07.2004 acquitted A2, A4 and A6 to A9 of all the offences and A1 and A3 of the offences punishable under sections 143,147,148,427 and 149 IPC, but convicted A1 and A3 of the offences punishable under Sections 302 and 449 read with 34 IPC. For the above conviction the trial Judge sentenced A1 and A3 (the petitioners herein) as follows:-

"So I sentence A1 and A3 for their conviction under section 302 r/w 34 IPC to undergo imprisonment for life each and to pay a fine of Rs. 25,000/- (Rupees twenty five thousand only) each, in default of payment of fine, to undergo R.I for 3 (three) years each. I further sentence A1 and A3 for their conviction under section 449 r/w 34 IPC to undergo R.I for 5(five) years each and to pay fine of Rs. 10,00/- (Ten thousand only) each, in default of payment of fine, to undergo R.I for 2(two) years each. The substantive sentences shall run consecutively."

The petitioners preferred Crl. Appeal No.1484/2004 before this Court challenging the conviction entered and the sentence passed against them. As per judgment dated 29.10.2007, this Court dismissed the appeal, confirming the conviction entered and the sentence passed. The 2nd petitioner herein (A3) preferred S.L.P(Crl.)No.4749 of 2009 before the Supreme Court of India challenging the judgment passed by this Court. As per order dated 7.07.2009, the Hon'ble Supreme Court of India dismissed the S.L.P on the ground of delay as also on merits. Even-though the 2nd petitioner preferred a review petition as Review Petition (Crl.) No.656 of 2009 in S.L.P(Crl.)No.4749/2009 contending that by virtue of the statutory mandate under Section 427(2) Cr.P.C., the substantive sentence of imprisonment under Section 449 I.P.C. should have been directed to run only concurrently and not consecutively with the sentence of imprisonment for life, the said Review Petition was dismissed by the Supreme Court on 9.12.2009. It is thereafter that the petitioners have filed the present petition under Section 482 Cr.P.C. seeking the aforesaid direction.

3. I heard Advocate Sri. Revikrishnan, the learned counsel appearing for the petitioners and Advocate Sri. C.S. Hrithwik the learned Public Prosecutor who defended the State.

The Stand of the Prosecution

4. Sri. Hrithwik, the learned Public Prosecutor made the following submissions before me opposing the prayer of the petitioners:-

The trial court had specifically directed that the sentences imposed on the petitioners under Section 302 and 449 I.P.C. shall run consecutively. The said direction was not challenged by the petitioners in Crl. Appeal 1284/2004 file