Rekha v. The State Of Karnataka By Its

1. Revision petitioners/accused in respective revision petitions feeling aggrieved by judgment of first appellate Court on the file of I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, preferred these revision petitions in the chart shown below:

2. Parties to the revision petitions are referred with their ranks as assigned in the trial Court for the sake of convenience.

3. The factual matrix leading to the case of prosecution in all these cases can be stated in nutshell to the effect that accused Nos. 1 to 3 while proceeding on motorcycle bearing No. KA-22-EB-1596 were arrested on 19.07.2013 and during the course of investigation they have given voluntary statement as per Exs.P.8 to 13 and 15 to 17. On the basis of said voluntary statement, recovery was effected and the stolen articles have been seized at their instance involved in the above referred cases. The investigating officer on completion of investigation filed the charge sheet for the offences punishable under Sections 457, 380 and 411 of IPC.

4. The trial Court after appreciation of evidence placed on record by the prosecution in each cases referred above, convicted the accused and imposed sentence as per order of sentence in the chart shown below:

5. Respective accused as referred in the above chart feeling aggrieved by the judgment of conviction and order of sentence preferred appeal before the first appellate Court on the file of I Additional District and Sessions Judge, Bagalkot, sitting at Jamkhandi. The first appellate Court on re-appreciation of evidence on record dismissed all the appeals by judgment as referred above in the chart and confirmed the judgment of conviction and order of sentence as imposed by trial Court.

6. Revision petitioners/respective accused as referred above in the chart challenged the concurrent findings of both the Courts below contending that the recovery of stolen articles has not been proved by the prosecution. The Courts below have not properly appreciated the evidence on record. The Courts below would have given benefit under Section 427of Cr.P.C by ordering sentence of imprisonment to run concurrently. Otherwise, most part of the youth of accused will be spent in Jail to suffer the sentence. The approach and appreciation of evidence on record by both Courts below are contrary to law and evidence on record. Therefore, prayed for allowing all the revision petitions and to set-aside the judgment of both the Courts below. Consequently, to acquit accused from the charges leveled against them.

7. In response to notice in all the revision petitions, respondent appeared through learned High Court Government Pleader.

8. Heard the arguments of both sides.

9. On careful perusal of oral and documentary evidence placed on record by prosecution, it would go to show that on the strength of complaint filed by respective complainant different cases have been registered in the chart referred above. Accused Nos. 1 to 3 while they were proceeding on motorcycle bearing No. KA-22/EB-1596 they were apprehended and brought to the police station. Accused Nos. 1 to 3 during course of investigation have given voluntary statement as per Exs.P.8 to 13 and 15 to 17. At the instance of accused Nos. 1 to 3 stolen properties have been recovered under the panchanama. Accused Nos. 3 and 4 at serial Nos. 1 and 2 as shown in chart referred above have been convicted for receiving stolen property from accused Nos. 1 and 2 knowing it to be stolen properties for the offence under Section 411 of IPC. Whereas Accused Nos. 1 and 2 at serial Nos. 3 to 12 in the chart shown above have been convicted for the offences punishable under Sections 457 and 380 of IPC.

10. On going through the records of trial Court, it would go to show that the Courts below have recorded concurrent finding in holding that the stolen properties involved in the above referred cases have been recovered under the panchanama at the instance of accused Nos. 1 and 2 on the basis on voluntary statement Exs.P.8 to 13 and 15 to 17. The evidence of complainant and recovery panch witness and so also the evidence of investigating officer has been rightly appreciated and justified in holding that prosecution has proved the recovery of stolen article at the instance of accused Nos. 1 and 2, further, accused shown at serial Nos. 1 and 2 in the chart referred above received the stolen properties from accused Nos. 1 and 2 knowing it to be stolen property. Learned counsel for revision petitioners were unable to show or demonstrate any valid reasons to discredit the evidence of prosecution witnesses in proof of incident of theft and recovery of stolen properties at the instance of accused Nos. 1 and 2 from accused shown at serial Nos. 1 and 2 in the above chart.

11. Learned counsel for revision petitioners in each case argued that the Courts below should have ordered sentence to run concurrently by extending the benefit in terms of Section 427 of Cr.P.C. Otherwise, the entire youth of accused will be spent in the Jail itself. Learned High Court Government Pleader opposed the said submission by contending that the cases are registered based on the complaint filed by complainant in respective cases and under different crime numbers, so also the accused were not in custody in respective cases. Therefore, benefit of Section 427 Cr.P.C cannot be extended.

12. In order to better appreciate the rival contentions referred above, it would be profitable to re-produce Section 427 of Cr.P.C for ready reference which reads as under:

"Section 427-Sentence on offender already sentenced for another offence-(1) When a person already undergoing a sentence of imprisonment is sentenced on subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence as the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequently sentence shall run concurrently with 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, sentence to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

(2) when a person already undergoing a sentence of imprisonment of life is sentenced on subsequent conviction to imprisonment for term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence."

On plain reading of said proviso, it is evident that order regarding sentence to run concurrently with such previous sentence is purely discretion of Court.

13. Learned High Court Government Pleader relied on the judgment of Hon’ble Apex Court in MOHD. AKHTAR HUSSAIN ALIAS IBRAHIM AHMED BHATTI reported in (1988) 4 SCC 183, [LQ/SC/1988/439] wherein it has been observed and held that where second offence is distinct and different from the first one, the subsequent sentence should normally run consecutively. Learned High Court Government Pleader also relied another Apex Court judgment in State of STATE OF MAHARASTRA AND ANOTHER VS. NAJAKAT ALIA MUBARAK ALI reported in (2001) 6 SCC 311, [LQ/SC/2001/1268] wherein the Hon’ble Apex Court was considering the extending of benefit in terms of Section 428 of Cr.P.C and by majority judgment it has been held that benefit of set off can be extended for the period in detention in the same case. On the same principle reliance is also placed on another judgment of Hon’ble Apex Court in ATUL MANUBHAI PAREKH VS CENTRAL BUREAU OF INVESTIGATION, wherein the Hon’ble Apex Court while distinguishing situations dealt with Section 427 and 428 of Cr.P.C held in para in 20 of judgment as under:

"The facts on which the decision was rendered in NAJAKAT ALIA MUBARAK ALI's case are distinguishable from the facts of this case. In the said case, the convict was undergoing imprisonment in two cases in which he had been convicted and he claimed that he was entitled to a set off in respect of both cases. This court drawing inspiration from Section 427 on the concurrent running of sentences, held that the petitioner was entitled to set off in both cases in view of doctrine of merger of sentences when directed to run concurrently in a particular case where conviction is on many counts."

In view of the principles enunciated in this decision, the benefit of extending Section 428 in NAJAKAT ALIA's case based on doctrine of merger of sentence in the facts of the said case has no application to other cases.

14. It is also profitable to refer the subsequent judgment of Hon’ble Apex Court IN V.K.BANSAL VS. STATE OF HARIYAN AND OTHERS reported in (2013) 7 SCC 211, [LQ/SC/2013/709] while considering the effect of Section 427 (1) of Cr.P.C. has held as under:

"Section 427(1) Cr.P.C-Discretion of Court to direct sentences to run concurrently-when should be exercised-Court should exercised discretion judicially and not mechanically in each case, having regard to nature of offence and particular fact situation-No straitjacket approach can be laid down-However, only substantive sentences can be directed to run concurrently and sentences awarded in default of payment of fine/compensation cannot be directed to run concurrently.

"Single transaction rule-Where there was single transaction constituting offences, even if different complaint were filed in relation thereto, sentences can be directed to run concurrently."

In view of the principles enunciated in this decision of Hon'ble Apex Court to apply single transaction rule, it must be demonstrated before the Court that the offences are arising out of the single transaction then only benefit of sentence to run concurrently in terms of Section 427(1) can be extended. In the present case, on the basis of different complaint filed by the complainant with regard to the theft incident at different point of time, the aforementioned offences were alleged against accused and sentence in each case for different cases are ordered. The sentences in each case are ordered to run concurrently. The rule of single transaction being not involved in the present cases, the benefit of sentence to run concurrently in terms of Section 427(1) of Cr.P.C cannot be extended. Therefore, in view of the reasons stated above, the contention of revision petitioner in each case that accused are entitled to benefit of Section 427(1) of Cr.P.C for ordering to run sentence concurrently cannot be legally sustained.

15. Now coming to the question of imposition of sentence. The trial Court has sentenced to undergo simple imprisonment for a period of one year and fine of Rs. 1,000/- IDSI for one month for the offence under Section 411 of IPC to accused Nos. 3 and 4 shown at serial Nos. 1 and 2 in the chart referred above. The imposition of sentence and fine cannot be termed as unreasonable and same is required to be maintained. Insofar as accused Nos. 1 and 2 shown at serial Nos. 3 to 12 they are sentenced to undergo simple imprisonment for three years and pay a fine of Rs. 2,000/- IDSI six months for the offences under Section 457 of IPC. They are further sentenced to undergo simple imprisonment for two years and fine of Rs. 1,000/- IDSI for three months. Looking to the facts and circumstances of the case and nature of evidence placed on record by the prosecution, in my opinion the imposition of sentence of imprisonment for both offences under Sections 457 and 380 of IPC is on higher side. In view of the evidence on record, coupled with facts and circumstances of the case, if the accused Nos. 1 and 2 shown at serial Nos. 3 to 12 in the chart referred above are sentenced to undergo simple imprisonment for a period of two years for the offence under Section 457 of IPC, further to undergo simple imprisonment for one year for the offence under Section 380 of IPC is ordered by maintaining the fine amount and default sentence reduced to three months and two months respectively is ordered will meet the ends of justice. Therefore, only to the extent of modification of sentence, the interference of this Court is warranted. Consequently, proceed to pass the following:

ORDER

The revision petition filed by revision petitioners/accused are hereby partly allowed.

The judgment passed by the First Appellate Court on the file of I Additional District and Sessions Judge, Bagalkot, sitting at Jamkhandi, which confirmed the judgment of trial court on the file of Principle Senior Civil and JMFC, Jamakhandi, dated 30.09.2014 as referred above is ordered to be modified as under:

Modified sentences in each case are ordered to run concurrently.

Office is directed to transmit the Trial Court records along with copy of this order.