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2019 Supreme(Raj) 2787
IN THE HIGH COURT OF RAJASTHAN
Munishwar Nath Bhandari and Banwari Lal Sharma, JJ.
Dharmendra Kumar - Appellant
Versus
State Of Rajasthan - Respondent
Criminal Appeal No. 1491 of 2017
Decided On : 24-01-2019
Dharmendra Kumar, Adv., Rakesh Bharga, Adv., Sonia Shandilya, Adv.
Headnote:
Criminal Procedure Code,1973 - Section 31 – Indian Panel Code,1860 - Section 71 – Appeal Against conviction – Offence of murder - Appeals have been filed by accused-appellants against judgment accused have been convicted and sentenced for different offences - During course of hearing of appeal Public Prosecutor pointed out that despite murder of two persons and conviction for it sentence has not been given separately for each offence - Prosecutor submits that allegation against accused-appellants is not only for conspiracy but commission of offence IPC where two persons have been killed - One was wife of accused and other was his daughter - Appellants conspired and committed murder of two persons punishable Indian Panel Code - They have been convicted but separate sentence for each offence has not been given despite conviction for two murders trial court should have given separate sentence for separate offences - Held, Trial court would hear case in presence of accused - Accordingly both parties would remain present before trial court to argue case so that a fresh order is passed without further delay appeal is kept pending till then - It is clarified that for hearing of case on sentence as per direction of this court accused would remain present before trial court on date given above and so far accused is concerned he would be produced before trial court by Jail authority - It is seen that trial court while passing order on sentence failed to take into consideration each offence for which conviction has been given - They need to impose sentence separately for each offence - In instant case offence IPC has been committed twice but sentence has been given taking it to be a composite crime for offence – Order Accordingly
JUDGMENT
1. The appeals have been filed by the accused-appellants against the judgmeai dated 18.05.2017, passed by the Additional Sessions Judge No.20, Jaipur Metropolitan (Head-Quarter Chomu) in Session Case No.5/2013 (13/11), (25 /11) (54/11), thereby, the accused have been convicted and sentenced for different offences. During the course of hearing of the appeals, learned Public Prosecutor pointed out that despite murder of two persons and conviction for it, sentence ha not been given separately for each offence. It is required as per section 31 Cr.P.C and Section 71 IPC. The trial in regard to several offences can be one as per section 220 Cr.P.C. but sentence in case of conviction should be for each offence
2. Learned Public Prosecutor submits that the allegation against the accused-appellants is not only for conspiracy but commission of offence u/s 302 IPC where two persons have been killed. One was wife of accused Dharmendra and other was his daughter. The appellants conspired and committed murder of two persons punishable u/s 302 IPC. They have been convicted but separate sentence for each offence has not been given despite conviction for two murders. The trial court should have given separate sentence for separate offences. The prayer is to remit the matter to the trial court for passing appropriate order on sentence while keeping appeal pending before this court. A reference of the judgment of the Apex Court in the case of Mathuramalingam and Ors. vs. State , (2016) 8 SCC 313 has been given. There the issue was decided in reference to section 31 Cr.P.C. apart from other provisions.
3. The accused Dharmendra in person and learned counsel Mr.Rakesh Bhargava, in the connected appeal of Prerana have contested the issue. They stated that separate charges for each murder have not been framed thus trial court has rightly passed the order of conviction only for offence u/s.302 IPC. It is taking charge to be composite and otherwise no purpose would remain in sending matter back to the trial court. The sentence of life imprisonment has already been given and, even for second murder, if the same sentence is inflicted, it would run concurrently and not consecutively. The life imprisonment is for the natural life thus one cannot serve two life imprisonment, thereby, there is no purpose for remittance of the case. It is moreso when the appellant Dharmendra is behind bars for last 8 years. The prayer is not to remit the matter to the trial court, rather, if any error exists, this court may rectify it after hearing the appeal. This court itself may enhance the sentence. The prayer is accordingly not to accept the arguments raised by the learned Public Prosecutor.
4. We have considered rival submissions of the parties and perused the record.
5. It is a case where allegation against the appellant Dharmendra is for causing murder of wife and his daughter. It is after conspiracy for the offence. The dead bodies were suppressed, thus offence u/s 201 IPC has also been committed. The charges for offence were framed followed by trial. The prosecution could prove its case beyond doubt for commission of two murder by the accused. The trial court has sentenced accused to life imprisonment for the offence u/s 302 IPC forgetting that offence u/s 302 IPC was committed twice. The trial court was under an obligation to inflict separate punishment for separate offence in view of section 31 Cr.P.C. The aforesaid provision is quoted thus:-
SECTION 31 CR.P.C.
31. Sentences 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.
