Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 884 (KAR)

PRAKASH v. STATE OF KARNATAKA

2017-06-02

K.N.PHANEENDRA

body2017
JUDGMENT : K.N. Phaneendra, J. At the outset, the learned counsel for the appellant has filed a Memo dated 02.06.2017, which reads thus :- "The appellant herein has filed the appeals against conviction for the offences punishable under section 397 of IPC in both the appeals. It is submitted that the appellant herein does not intend to argue the appeal on merits but the appellant herein would like to argue the matter on sentence as such this Hon'ble Court be pleased to hear the appeal only on sentence and pass Judgment accordingly without touching the appeal on merits in the interest of justice." 2. In view of the memo filed and the submissions made, the learned counsel for the appellant is heard with regard to the sentence passed by the Trial Court in both the cases. 3. It is seen from the records of Crl.A. No. 699/2012 that appellant has filed the appeals against the judgment of conviction and sentence passed in SC No. 27/2011, for the offence punishable under section 397 of IPC. After holding him guilty, the Trial Court has convicted him for the offence punishable under section 397 of IPC and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for six months; Further, it is seen from the records of Cri. A. No. 700/2012, that the appellant has filed the appeal against the judgment of conviction and sentence passed in SC No. 84/2007 for the offence punishable under section 397 of IPC. After holding him guilty, the Trial Court has convicted him for the offence punishable under section 397 of IPC and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for one year. 4. It is contended by the learned counsel for the appellant in both the cases that the Trial Court has not taken into consideration the custody of the accused during trial of the accused in SC No. 27/2011, in respect of the punishment imposed by the Trial Court in SC No. 84/2007 which has already been undergone by the accused. 4. It is contended by the learned counsel for the appellant in both the cases that the Trial Court has not taken into consideration the custody of the accused during trial of the accused in SC No. 27/2011, in respect of the punishment imposed by the Trial Court in SC No. 84/2007 which has already been undergone by the accused. It is contended in both the cases, that throughout, the accused has already undergone more than six years, 11 months of imprisonment and he will be completing 7 years imprisonment within a period of one month. Therefore, the previous imprisonment undergone by the accused has not been considered by the Trial Court and not given set-off in respect of the imprisonment already undergone by the accused. Therefore, the learned counsel contends that the accused person may be released from jail considering that he has already undergone substantial period of imprisonment, treating the period of imprisonment already undergone by him as sufficient punishment. 5. In this regard, it is worth to refer the date of arrest and the period of detention undergone by the accused in both the cases. 6. It is seen from the records, that, sofar as SC No. 84/2007 is concerned, incident was occurred on 09.11.2006. The accused was arrested on 12.11.2006, whereas the offence sofar it relates to the case in SC No. 27/2011 is occurred, the incident was occurred on 10.08.2010 and the accused was arrested on 12.11.2010. On calculation, from 12.11.2006 the accused had been in custody till 05.03.2007 i.e., (113 days). Thereafter, he was released on bail on 05.03.2007. Therefore, he was in custody in connection with SC No. 84/2007 for a period of 113 days. 7. Again he was arrested on 12.11.2010 in connection with SC No. 27/2011 and since then he has been in Judicial Custody. From 12.11.2010 uptill date i.e., 02.06.2017, if it is calculated, it is seen that he has been in Judicial Custody nearly for a total period of 6 years, 11 months. When the trial in SC No. 27/2011 was going on, throughout the accused was in custody. But during the period of trial in SC No. 27/2011, for a period of 113 days of detention, has not been taken into consideration by the Trial Court. Whether set-off was given by the Trial Court or not is to be looked into by this Court. 8. But during the period of trial in SC No. 27/2011, for a period of 113 days of detention, has not been taken into consideration by the Trial Court. Whether set-off was given by the Trial Court or not is to be looked into by this Court. 8. It is worth to refer in this regard a decision of the Hon'ble Apex Court reported in (2016) 10 SCC 307 between Benson v. State of Kerala, wherein it is observed that :- "Section 427 (1) - Person already undergoing a sentence of imprisonment - Subsequent conviction and sentence - Running of - Subsequent sentence, held, would normally commence at the expiration of imprisonment to which he was previously sentenced - However, such normal rule is subject to a qualification, and it is within the powers of Court to direct that subsequent sentence shall run concurrently with the previous sentence and not consecutively." 9. In another decision reported in 2000 Crl. LJ 4662 between Amavasai and another v. Inspector of Police, Valliyanur and others, wherein the Hon'ble Apex Court has observed that :- "Section 427 of Cr.P.C. - Several sentences - Execution of- Benefit of all the sentences to run concurrently - Appellants convicted in 4-5 different cases - Occurrence in all cases took place between 3-5 months - Offence found against each of them in all the cases u/S.395 of IPC - Appellants sentenced to undergo rigorous imprisonment for seven years in each case - Appellants claiming the benefit under Section 427 of Cr.P.C. in order to avoid undergoing of imprisonment for total period of 28 or 35 years in jail - Benefit would be given to the accused after serving the sentence of 7 years awarded in one case - To meet the ends of justice held the appellants to undergo total period of 14 years of imprisonment in respect of all convictions passed against them." 10. In another decision reported in 2004 Cri LJ (NOC) 33 (Kar) between Bhimasha-nkar v. State of Karnataka, wherein it has held that :- "Sections 427 and 482 - Imposition of multiple sentences - Order not specifying as to whether sentences should run concurrently or consecutively - Is erroneous - Though in absence of such direction it is to be presumed that Court intended sentences to be consecutive - In facts and circumstances of the case accused cannot be made to suffer for it, more so, when he has already undergone sentence - In exercise of inherent powers directions given in such circumstances shall run concurrently." Therefore, u/S. 427 of Cr.P.C. it is the discretion vested with the Court to pass appropriate order depending upon the facts and circumstances of each case. In this background, let me consider the imprisonment already undergone by the accused, whether it is sufficient to give set-off to him and release him forthwith. 11. It is seen that SC No. 27/2011 was concluded vide order dated 27.04.2011 by that time in connection with the said case, the accused had already undergone punishment imposed in the said case to some extent. During that period, the accused was taken into custody in the year 2010 and continued to be in custody in connection with SC No. 27/2011. Therefore, it goes without saying that the period undergone i.e., 113 days between 12.11.2006 to 5.3.2007, which is the period of imprisonment in SC No. 84/2007 i.e., he has to undergo seven years period of imprisonment by the time he was arrested, he has already undergone 113 days of detention in connection with SC No. 84/2007. Subsequently, on 12.11.2010 he was arrested and for a period of six years, seven months he has undergone punishment in connection with the case in SC No. 27/2011. Hence, it is deemed that he was undergoing punishment in SC No. 84/2007 also. Therefore, I am of the opinion that there is no allegation against this man that he is habitual offender and no other cases are shown to the court that he is involved in any other cases. Further, accused is aged about 27 years as on the date of the first offence and his prime youth period of more than six years has already gone in jail. Further, accused is aged about 27 years as on the date of the first offence and his prime youth period of more than six years has already gone in jail. Definitely, he would have repented for the act committed by him and he may come out as a good citizen of the country. 12. Looking to the above said facts and circumstances of the case, when the accused has already undergone more than six years, eleven months and odd days of imprisonment, the said period can be considered as sentence imposed and served by the accused in SC No. 84/2007 as well in SC No. 27/2011 giving the benefit of set-off for the period already undergone by him. Hence, I am of the opinion that the period already undergone by him in jail can be treated as the sentence passed by the Trial Court in the above said two cases and there is no legal impediment to release the accused forthwith if he is not required in any other case and also subject to depositing the fine amount imposed by the Trial Court in the above said two cases forthwith. 13. Hence, I proceed to pass the following :- ORDER 1. Both the appeals are partly allowed. The judgment of conviction and sentence passed by the Trial Court for the offence punishable under section 397 of IPC is confirmed. The sentence imposed by the Trial Court in the above said two cases is modified to the extent of imprisonment, which has already been served by the accused in the jail. Therefore, the accused shall be released on depositing of the fine amount before the Trial Court if he is not required in any other case. The Trial Court after receipt of the fine amount imposed by him shall issue release order for release of the accused forthwith in the above said two cases i.e., in SC No. 84/2007 and SC No. 27/2011.