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2002 DIGILAW 555 (KER)

Ulahannan @Yohannan v. State of Kerala

2002-08-13

M.R.HARIHARAN NAIR

body2002
Judgment :- The petitioner is presently undergoing imprisonment in the Central Prison, Trivandrum pursuant to the conviction for the offence under Section 302 and 307 of the I.P.C. imposed by the 4th Additional Sessions Court, Ernakulam in S.C.17/1991 which was confirmed by a Bench of this Court in Crl.A.127/1993. The petitioner had been convicted earlier in C.C.265.1989 of the J.F.C.M.Court, Kolencherry for the offence under Sections 323 and 326 read with Section 34 of the I.P.C. Though the said conviction was confirmed by the Appellate Court, this Court in C.R.P.671/1993 reduced the sentrence from R.I for two years and fine of Rs.500/- to R.I. for six months. The present prayer is that the sentences imposed in these two cases namely S.C.17/1991 of the 4th Additional Sessions Court, Ernakulam and in C.C.265/1989 of the J.F.C.M.Court, Kolencherry might be made concurrent. 2. The learned Public Prosecutor objects the prayer. It is pointed out that it was one of the victims in C.C.265/1989 who was done away within the incident that was the subject matter of S.C.17/1991 and that the two incidents took place within a span of less than 1 ½ months. 3. The petitioner was represented before me by Sri.P.T.Girijan engaged on a crown defence. He place reliance on the decision in Zahid Hussein and others v. State of West Bengal and another (2001 (3) SCC 750) to contend that it is appropriate to make the sentences in the two cases concurrent. 4. The subject matter of C.C.265/1989 was an incident of 10.5.1989, where the petitioner, being offended by the action of a shop keeper in permitting a woman to keep her bag in his shop and on getting no reply from PW1 who is the son of the shop owner Poulose as to why the bag was allowed to be left at the shop; assaulted PW1 with his hands. The second accused in the case also joined him and there was a scuffle in which the shop owner, his brother-PW2 and PW1 were assaulted. The present petitioner took out a soda water bottle from the shop and hit PW1 on his hand resulting in a fracture. 5. The incident in the murder case took place on 23.6.1989. The victim in that case was Poulose, father of PW1, who was injured in the order case. The present petitioner took out a soda water bottle from the shop and hit PW1 on his hand resulting in a fracture. 5. The incident in the murder case took place on 23.6.1989. The victim in that case was Poulose, father of PW1, who was injured in the order case. The accused was coming by a bicycle and on seeing the victim he got down from the bicycle, pushed it away and spat contemptuously and used obscene words against the victim. The victim asked him why he was trying to be aggressive against him and whether he was not satisfied with the act of beating his son in the other incident. The accused immediately took out a knife from his waist and tried to stab the victim. PW2 then intervened and requested him not to create any trouble. Asking him to go away, the accused stabbed him below the navel. He, there upon, called for help from his elder brother who is the victim who took a stone and hit at the accused. The petitioner warded off the same with his left hand and stabbed the victim below the nipple. He fell down on the road with bleeding injury to which he eventually succumbed. 6. Section 427 (1) of the Cr.P.C. reads as follows:- 427.Sentence on offender already sentenced for another offence-(1). When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. 7. As on 31.10.1992 when the Sessions Court pronounced judgment in the case the accused was already undergoing sentence imposed in C.C.265/1989 pursuant to judgment dated 10.5.1989. 7. As on 31.10.1992 when the Sessions Court pronounced judgment in the case the accused was already undergoing sentence imposed in C.C.265/1989 pursuant to judgment dated 10.5.1989. According to Section 427(i) quoted above the life imprisonment that he is to suffer based on the said judgment dated 31.10.1992 is to commence with the expiration of the imprisonment directed in Crl.R.P.671/1993 of this Court because there was no direction that the life imprisonment which is the subsequent was to run concurrently with the previous sentence. 8. This Court has held in Subramonian v. State of Kerala (1983 KLT 452) that it is possible to give a direction with regard to the concurrent running of sentence even after disposal of both the cases invoking Section 482 of the Cr.P.C. Taking into account the fact that the accused had a family which is supported by him and the possibility of difficult circumstances leading to the causing of death in the second case, it was held in "Subramonian" that the society has an obligation to convert him into useful citizen and that a prolonged jail life might not be conducive for that. Accordingly the benefit of concurrent running of sentence was allowed. 9. The facts involved in Zahid Hussein & others v. State of West Bengal & another (2001) (3) SCC 750) relied on by the petitioner are slightly different in so far as the life imprisonment that was imposed on the accused in that case was subject to Section 61 of the West Bengal Correctional Services Act which provided that for calculation of total period of imprisonment the period of imprisonment for life would be taken to be equivalent to the period of imprisonment for 20 years and there were also guidelines framed by the Government through the "West Bengal Rules for Superintendents and management of jails" where under grant of relief was possible based on answer to the following questions." (i) Whether the offence is an individual act of crime without affecting the society at large. (ii) Whether there is any chance of future recurrence of committing crime. (iii) Whether there is any fruitful purpose of confining of these convicts any more. (iv) Whether the convicts have lost potentiality in committing crime. (v) Socio-economic condition of the convicts families. 10. (ii) Whether there is any chance of future recurrence of committing crime. (iii) Whether there is any fruitful purpose of confining of these convicts any more. (iv) Whether the convicts have lost potentiality in committing crime. (v) Socio-economic condition of the convicts families. 10. Applying the said guidelines it was held by the Apex Court in the aforesaid case that the denial of premature release of the petitioner was improper. 11. In the present case no such specific rules are available and this court has held in Suo Motu Proceedings under Section 482 Cr.P.C. v. State of Kerala (2002(2) KLT 695) that no life convict can be released before he has actually undergone imprisonment for a period of atleast 14 years and that the constitutional powers available to the Government under Article 161 of the Constitution cannot be exercised on irrelevant and irrational considerations. 12. It is not evident as to whether the Kerala Government has invoked its powers under Section 433 of the Cr.P.C. to commute the sentence of imprisonment for life to imprisonment for a term not exceeding 14 years. The question of the benefit of premature release to the petitioner would depend upon the availability of the aforesaid benefit. That is to say, in case the Government has passed or passes any order commutting the life imprisonment imposed by the Sessions Court and confirmed by this Court in Crl.A.127/1993 into imprisonment for a period of 14 years, the petitioner could get the benefit of possibility of premature release. Only in that context the question whether the earlier sentence granted in C.C.265/1989 of the J.F.C.M.Court, Kolencherry can be made concurrent would arise. Otherwise the benefit claimed herein would be illusory because notwithstanding the grant of the benefit of set off the petitioner would be in the prison for his entire life. 13. Though the discretion available to the Court is very wide in the matter of granting relief under Section 427(i) of the Cr.P.C., unprincipled and unregulated benevolence may work out injustice. The discretion has to be exercised with due care and caution, lest the effect would result in injustice to the society as a whole. The aspects germane for consideration in the matter would definitely include the facts and circumstances and the nature of crimes committed by the accused, his sex, age, character and previous criminal record. The discretion has to be exercised with due care and caution, lest the effect would result in injustice to the society as a whole. The aspects germane for consideration in the matter would definitely include the facts and circumstances and the nature of crimes committed by the accused, his sex, age, character and previous criminal record. The possibility of the accused returning to a normal life, the possible danger to the society if he returns to his misdeeds and persists in his criminal activities etc. are also matters to be taken note of. 14. As far as the present petitioner is concerned, it cannot be stated that he is a habitual offender. Of course the acts done by him has affected the same victim more than once. All the same there is nothing to indicate that he was a danger to the society or that he was in the habit of assaulting people or was involved in similar criminal cases or criminal acts earlier. He is now aged 55 years. According to the medical certificate issued by the Medical Officer of the Central Prison, Trivandrum he has been under regular treatment for epilepsy and also suffers from recurrent episodes of transient loss of memory, probably due to cerebro vascular disease. When all these aspects are taken into consideration, I am of the view that the benefit of concurrent running of the sentences in C.C.265/1989 and S.C.17/91 deserves to be allowed so that he would be eligible for premature release subject to the Government passing of orders under Section 433 of the Cr.P.C. That is an aspect within the discretion of the Government. The petition is accordingly allowed. The reliefs that the petitioner might get in actual fact will, however, be regulated by the decisions of this court in the Bench decision dated 4.6.2002 (2002 (2) KLT 695) about which reference has already been made. Petition allowed as above.