The Supreme Court bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose on Friday directed the appellant, a rape convict, and the state of Uttar Pradesh to file 2-page briefs on whether the 13 years plus imprisonment undergone by the said convict was concurrent or consecutive in nature as sentenced by the trial court.
The next hearing in the matter (Sunil Kumar v State of UP)was deferred to May 25. The counsel for the appellant submitted that he emailed to the court the translated version of impugned order of trial court.
Vinod Diwakar, the Additional Advocate General of Uttar Pradesh, read out Section 31 of the Code of Criminal Procedure that in case of awarding sentence concurrent or consecutive, the court has to specifically mention in case of concurrent sentence, while for consecutive sentence, the order need not explicitly speak. Justice Bose submitted that if there are same set of allegations, then it will run concurrently.
Amit Pai, counsel for the appellant, quoted para 28 of judgment of Muthuramalingam and ors v. State ( CRL.APP- 231 OF 2009) passed by Constitutional Bench of this apex court, such paragraph 28 states, “The above view runs contrary to the ratio of this Court’s decision in Cherian’s case (supra) and Duryodhan Rout’s case (supra). That apart the view taken in Kamalanantha’s case has not noticed the basic premise that a life sentence once awarded would imply that a prisoner shall spend the remainder of his life in prison. Once that happens there is no question of his undergoing another life sentence. To the extent the decision in Kamalanantha’s case takes the view that the Court can for each offence award suitable punishment which may include multiple sentences of imprisonment for life for multiple offences punishable with death, there is and can be no quarrel with the stated proposition. The Court can and indeed ought to exercise its powers of awarding the sentence sanctioned by law which may include a life sentence. But if the decision in Kamalanantha purports to hold that sentence of imprisonment for life can also be directed to run consecutively, the same does not appear to be sound for the reasons we have already indicated earlier. We need to remember that award of multiple sentences of imprisonment for life so that such sentences are super imposed over one another is entirely different from directing such sentence to run consecutively.”
Justice Maheshwari observed: “The trial court neither speaks about concurrent or consecutive. The petitioner has served 5 years under Section 363, 7 years under Section 366, 10 years for 376 IPC.”
Justice Maheshwari posed a query to UP AAG Vinod Diwakar: “Can you tell us, under which section/part of IPC has he completed or undergoing his sentence at present?.”
To which Diwakar replied: “I cannot say after seeing the order of trial court. I am concerned about the age of the victim girl. At present, she has reached 8th class.”
Justice Maheshwari: “The High Court has already dealt with it. The man has already completed his sentence under defined sections/part under IPC, if this sentence is consecutive.”
The UP AAG submitted, “The maximum sentence under Section 376 IPC is 10 years and had the sentence been concurrent, the appellant would have come out by this time.”
The petitioner had challenged the order of the Allahabad High Court, wherein the High Court had partly allowed the appeal by modifying the sentence of the Trial Court, stating, “Additional imprisonment imposed by the Trial Court against the petitioner, in default of payment of fine, is quite disproportionate and ends of justice will be served, if the appellant-accused is sentenced to additional imprisonment of one month, three months and five months, in default of payment of fine imposed by learned trial court under Sections 363, 366, 376(1) IPC, respectively. Accordingly, the appeal deserves to be partly allowed.”
The prosecution case is that a girl of 13 years had gone to school on January 15 and when she didn’t return, her father filed a complaint with police. After running pillar to post, the father of the victim girl got information that she has been enticed away by Fahimuddin. Thereafter, a case under Section 363, 366, 376 of IPC was lodged Fahimuddin and present petitioner (who was the co-accused).
Thereafter, the trial court after examining the witness of the prosecution and after hearing the accused held that petitioner Sunil Kumar is guilty under Sections 363, 366 and 376. (ILNS) KY/GM