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2021 DIGILAW 1172 (GUJ)

HANIF @ HANIYO HUSEN CHANGAL v. STATE OF GUJARAT

2021-12-10

A.J.DESAI, SAMIR J.DAVE

body2021
JUDGMENT : A. J. DESAI, J. 1. By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the appellants - original convicts, namely, Hanif @ Haniyo Husen Changal, Shahejad Daud Sumra and Firoz Harun Fakir have challenged their conviction imposed vide judgment and order dated 30.9.2013 passed by learned Additional Sessions Judge, Bhuj - Kachchh in Sessions Case No.43 of 2013. By the said judgment and order, each of the convicts have been sentenced as under :- Sections under which convicts have been sentenced Period of sentence Sentence awarded to convicts Section 376 (2) (G) of the Indian Penal Code Rigorous imprisonment for a period of 10 years and fine of Rs.25,000/- and in default of payment of fine, further simple imprisonment for a period of two years. Appellant Nos.1,2 and 3 Section 377 of the Indian Penal Code Rigorous imprisonment for a period of 07 years and fine of Rs.25,000/- and in default of payment of fine, further simple imprisonment for a period of two years. Appellant Nos.1, 2 and 3 Section 450 of the Indian Penal Code Rigorous imprisonment for a period of 2 years and fine of Rs.3,000/- and in default of payment of fine, further simple imprisonment for a period of three months. Rigorous imprisonment for a period of 03 years and fine of Rs.3,000/- and in default of payment of fine, further simple imprisonment for a period of three months. Appellant No.1 Appellant Nos.2 and 3 Section 342 of the Indian Penal Code Rigorous imprisonment for a period of 06 months and fine of Rs.500/- and in default of payment of fine, further simple imprisonment for a period of fifteen days. Appellant Nos.1,2 and 3 Section 323 of the Indian Penal Code Rigorous imprisonment for a period of 03 months and fine of Rs.500/- and in default of payment of fine, further simple imprisonment for a period of fifteen days. Appellant Nos.1,2 and 3 Section 506 (2) of the Indian Penal Code Rigorous imprisonment for a period of 06 months and fine of Rs.500/- and in default of payment of fine, further simple imprisonment for a period of fifteen days. Appellant Nos.1,2 and 3 The learned Sessions Judge has ordered that the above sentences shall run separately. 2. The appeal came to be admitted by the coordinate Bench of this Court on 25.11.2013. Appellant Nos.1,2 and 3 The learned Sessions Judge has ordered that the above sentences shall run separately. 2. The appeal came to be admitted by the coordinate Bench of this Court on 25.11.2013. Registry has received Records and Proceedings from the learned Trial Court which have been placed before us. 3. Learned Additional Public Prosecutor has provided Jail records of each of the appellants. From the same, it appears that all the appellants came to be arrested on 16.4.2010 and from the said date, they are behind bars. During the pendency of the trial, they were not released on bail. From the Jail record, it appears that appellant No.1 - Hanif @ Haniyo Husen Changal has undergone sentence of 10 years and 24 days. The Appellant No.3 - Firoz Harun Fakir has undergone sentence of 10 years and 12 months. Both appellant Nos.1 and 2 are at present in Special Jail, Bhuj - Kachchh. As far as appellant No.2 - Shahejad Daud Sumra is concerned, as per his Jail record, it is found that when he was released on temporary bail on 2.1.2021 for a period of 26 days vide order dated 19.12.2020 passed by this Court, he has yet not surrendered and remained absconded. However, learned advocate appearing for the said convict - appellant No.2 has adopted the contentions raised by learned advocates appearing for other appellants and he would submit that he would abide by the decision that may be rendered by this Court qua other appellants. 4. Learned advocates Mr. Ashish M. Dagli, Pratik Barot and Abhaykumar P. Shah appearing for the respective appellants including the absconding appellant No.2, have submitted that they do not intend to challenge the conviction and sentence of the appellants imposed by the learned Sessions Judge. However, they would like to request this Court to exercise its power under Section 31 of the Code and requested this Court to order to run the sentences concurrently instead of consequently as ordered by the learned Sessions Judge for different offences. However, they would like to request this Court to exercise its power under Section 31 of the Code and requested this Court to order to run the sentences concurrently instead of consequently as ordered by the learned Sessions Judge for different offences. They would further submit that the maximum punishment imposed by learned Sessions Judge to each of the appellants is rigorous imprisonment for a period of 10 years for the offence punishable under Section 376 (2) (G) of the Indian Penal Code, whereas for other offences like Sections 377, 450, 342, 323 and 506 (2) of the Indian Penal Code, sentences for a period of 7 years to 3 months have been imposed. They would further submit that the sentences awarded in default of payment of fine may also be accordingly reduced. 5. Learned advocates appearing for the appellants would submit that it is an undisputed fact that each of the appellants were sentenced for different offences for which one trial was conducted and all the offences for which the appellants came to be convicted had taken places in a single crime and, therefore, this Court may exercise its power under Section 31 of the Code and pass appropriate order. 6. On the other hand, learned Additional Public Prosecutor appearing for the respondent - State would submit that it is the discretion of the Court to pass appropriate order. 7. We have heard learned advocates appearing for the respective appellants and learned Additional Public Prosecutor appearing for the respondent - State. Since the appellants have not challenged their conviction, we have not examined the case in detail on that aspect. We have also perused the provisions of Section 31 of the Code. For ready reference, Section 31 of the Code is reproduced below :- "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 Court directs that such punishments shall run concurrently. (2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that – (a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years; (b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. (3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence." 8. The Hon'ble Supreme Court in the case of O. M. Cherian alias Thankachan v. State of Kerala and others, (2015) 2 SCC 501 has observed in paragraphs 20 and 21 as under:- "20. Under Section 31 Cr.P.C. it is left to the full discretion of the Court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically. 21. Accordingly, we answer the Reference by holding that Section 31 Cr.P.C. leaves full discretion with the Court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the Court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the Court may direct. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the Court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the Court may direct. We also do not find any conflict in earlier judgment in Mohd. Akhtar Hussain and Section 31 Cr.P.C." 9. Similarly, the Hon'ble Supreme Court in the case of Manoj Alias Panu v. State of Haryana, (2014) 2 SCC 153 , the Hon'ble Supreme Court has held that when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences should be directed to run concurrently. Relevant observations in paragraph 11 and 12 are reproduced as under :- "11. We have heard the learned counsel for both the parties. The ground on which the appellant was awarded the sentence which was to run consecutively was due to the previous criminal record of the appellant for a similar type of offence of shooting in the court premises, which charge was proved as per Ex. P-1. This is the basis on which the trial court considered the extenuating circumstances into consideration to impose punishment for offences committed by the appellant, sentencing him to different periods for each one of the offences committed by him. The sentences were ordered to run consecutively, and the same was upheld by the High Court in exercise of its appellate jurisdiction. In view of the aforesaid legal position laid down by this Court regarding concurrent and consecutive sentences, the sentences imposed upon the appellant for different offences to run consecutively under the IPC and the Arms Act, are erroneous in law, as the same are contrary to law laid down by this Court as per the cases referred to supra upon which reliance has been rightly placed by the learned senior counsel on behalf of the appellant. 12. Further, having regard to the age of the appellant at the time of committing the offences, we feel it would not be just and proper to allow the sentences to run consecutively. 12. Further, having regard to the age of the appellant at the time of committing the offences, we feel it would not be just and proper to allow the sentences to run consecutively. As the offences committed by the appellant have been committed under a single transaction, it is well settled position of law that the sentences must run concurrently and not consecutively." 10. From perusal of Section 31 of the Code, it appears that each of the appellants has been sentenced for different offences for a single crime and single trial and the sentences were ordered to run consecutively and hence, considering the above provisions coupled with the above referred decision of the Hon'ble Supreme Court wherein the Hon'ble Supreme Court has held that there is no rule either way and to order concurrent or consecutive running of sentences of imprisonment is the discretion of the Court, we are of the opinion that appropriate order can be passed and accordingly, we pass the following order :- 9. The present appeal stands partly allowed. The impugned judgment and order dated 30.9.2013 passed by learned Additional Sessions Judge, Bhuj - Kachchh in Sessions Case No.43 of 2013 as regards awarding sentences under different Sections, as narrated above, is confirmed. However, the order passed by the learned Sessions Judge observing that the above sentences shall run consecutively is modified and it is ordered that the above sentences shall run concurrently. The amount of fine awarded by the learned Sessions Judge and the sentences imposed in default of the same is also not altered keeping in view the gravity of the offence. Hence, if the appellants pay the amount of fine, they shall be released on completion of their sentence of 10 years with benefit of set off. If they fail to pay the amount of fine, they shall have to undergo further sentence awarded by the learned Sessions Judge for default in payment of fine. As far as absconding appellant No.2 - Shahejad Daud Sumra is concerned, the Jail Authority as well as Police authority is hereby directed to take appropriate action for securing his presence in the custody. Registry is directed to send back the Records and Proceedings to the learned Sessions Court forthwith. Direct service is permitted.