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2001 DIGILAW 569 (PNJ)

Dinu v. State Of Haryana

2001-05-21

AMAR DUTT

body2001
JudgmentJudgment Amar Dutt, J. 1. The petitioners are seeking to challenge the judgment of the Additional Sessions Judge, Gurgaon by which the appeal filed against the conviction and sentence recorded against them by the Sub Divisional Judicial Magistrate, Nuh was dismissed. 2. The case against the petitioners was registered on a letter sent by Jag Mohan, Range Forest Officer indicating that on 6.1.1999, the employees of the Forest Department, namely, Dharambir, Forest Guard, Abdul Wahid, Dharmendera and Prem Singh had found the petitioners and their family members cutting Shisham trees with axes on Nuh-Tauru road near village Palla. When Maman Singh, Kanwal Singh and Hari Ram, Forest Duroga had also reached the spot and they asked the reason of cutting of Shisham trees, the petitioners attacked the forest officials with axes and lathis and caused injuries to Abdul, Dharambir and Dharmendera. On the basis of this letter, an F.I.R. under Sections 353, 332 and 379 IPC was registered against Tofiq, Hassam, Deena, Sabbu and Sahun and on completion of the investigation the challan was put in Court against all of them. When the Court, on going through the papers sent up with the challan framed a charge-sheet under Sections 332, 353, 379 IPC against all the accused, they pleaded not guilty and claimed trial. The prosecution examined 9 witnesses and when examined under Section 313 Cr.P.C., the accused denied the prosecution case and examined Farrukh and Juber in their defence. After hearing the arguments, the trial Court fixed the criminal liability in the case on the petitioners and sentenced them to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/- each and in default of payment of fine to further undergo simple imprisonment for a period of one month under Section 332 IPC. They were further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- each and in default of payment of fine to further undergo simple imprisonment for a period of one month under Section 379 IPC. The appeal was dismissed. Hence, the present revision. 3. I have heard Shri T.P.S. Mann, appearing for the petitioners and Shri Rajesh Bhardwaj, Assistant Advocate General, Haryana. 4. 1,000/- each and in default of payment of fine to further undergo simple imprisonment for a period of one month under Section 379 IPC. The appeal was dismissed. Hence, the present revision. 3. I have heard Shri T.P.S. Mann, appearing for the petitioners and Shri Rajesh Bhardwaj, Assistant Advocate General, Haryana. 4. The submissions of the learned counsel have been confined only to the argument that even if the facts and circumstances of the case are accepted to be true, the ends of justice require that the sentence imposed on the petitioners should be ordered to run concurrently. 5. I have carefully considered the arguments advanced by the learned counsel for the parties. 6. The relief, which is being sought in the present case, on cursory examination, appears to be very innocuous, but on close scrutiny was found to require a more detailed examination. The solitary judicial precedent available in Khuda Bux and others v. State, A.I.R. (38) 1951 Allahabad 637, commented upon the aspect as under :- "I find that Mags. invariably make the several sentences concurrent without exercising any discretion in the matter. It is laid down in Section 35 of the Code that one sentence of imprisonment will commence after the expiration of the other sentence of imprisonment unless the Ct. directs that such sentences shall run concurrently. Obviously the normal rule is that the sentences should be consecutive & they may be made to run concurrently only if there is some reason. Whether the sentences should run consecutively or concurrently is left to the discretion of the Ct. but the Ct. must exercise its discretion judicially. It must not exercise it arbitrarily and must not on every occasion blindly order the sentences to run concurrently as if there were no alternative; but this is done by nearly every Mag. I scarcely remember even one instance in which a Mag. ordered two sentences to run consecutively. In the present case there was no justification for ordering the sentences, which themselves were inadequate, to run concurrently; the appets. should have been punished cumulatively for the different offences committed by them. I would have very much liked to make the sentences consecutive, but I am not sure if I can do so without a notice of enhancement having been given to the appellants. should have been punished cumulatively for the different offences committed by them. I would have very much liked to make the sentences consecutive, but I am not sure if I can do so without a notice of enhancement having been given to the appellants. I am inclined to the view that making the sentences run consecutively instead of concurrently does not amount to enhancement. But this question was not argued at the Bar & as I am not quite certain that it does not amount to enhancement, I would refrain from making the alteration." too does not give any indication regarding the circumstances in which the sentences should be directed to run concurrently and when the Courts should order that the same should run consecutively. A perusal of Section 31 Cr.P.C. makes it clear that the power of the Court to sentence for several offences at one trial is made subject to the provisions of Section 781 IPC. A combined reading of both these provisions shows that although no guide-lines have in law been provided to indicate the manner in which the Courts should exercise the powers to sentence concurrently or consecutively as the same would necessarily involve the exercise of judicial discretion yet in cases where the offences committed by an accused are totally independent of one another, it may not be possible for the trial Court to direct that sentence imposed by it should run concurrently just as in cases where offences charged merely form part of series of offences which are only aggravated form of one another, the Court would be obliged in view of the provisions of Section 71 IPC to direct that the sentences imposed should run concurrently. The basic principle which may have to be borne in mind is that the accused should not get an impression that he has, on account of the Courts order, been able to get away without being sentenced for an offence which was totally independent of the other offences for which he has been convicted and sentenced. 7. In the present case, the petitioner had been apprehended while committing an offence under Section 379 IPC. He resisted the intervention by the officials of the Forest Department and thereby committed an additional offence under Section 332 IPC. 7. In the present case, the petitioner had been apprehended while committing an offence under Section 379 IPC. He resisted the intervention by the officials of the Forest Department and thereby committed an additional offence under Section 332 IPC. The conviction recorded in such a case, as would also be the case where during apprehension while committing an offence an accused resists his arrest and causes injuries to the officer trying to apprehend him, could not have been ordered to run concurrently and the view taken by the Courts below cannot be faulted with. Thus, finding no merit in this petition the same is dismissed.