Allahabad High Court
Ram Kishore vs The State Of U.P. on 8 May, 2013
Bench: Zaki Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R
Court No. - 17
Case :- CRIMINAL APPEAL No. - 604 of 2013
Petitioner :- Ram Kishore
Respondent :- The State Of U.P.
Petitioner Counsel :- Begum Sabiha Kamal,Mohd. Shahid Akhtar
Respondent Counsel :- Govt. Advocate
Hon'ble Zaki Ullah Khan,J.
I have heard Smt. Begum Sabiha Kamal, learned counsel for the appellant as well as learned A.G.A. and have gone through the operating portion of the judgment of the learned lower court.
The instant appeal has been preferred against the judgment and order dated 1.03.2013 passed by Special Judge, Gangster Act/Additional Sessions Judge, Court No.5, Barabanki sentencing the appellant to undergo simple imprisonment of three years and also a fine of Rs. 5000/- under section 31 U.P. Gangsters Act and in default of payment of fine one month imprisonment was awarded. The court has also directed that appellant be sentenced to four years and eight months simple imprisonment under section 394 I.P.C. together with a fine of Rs. 5000/- and in default of payment of fine one month's additional imprisonment has been awarded. The court has also directed that the period already spent in jail shall be counted towards sentence.
Learned counsel for the appellant vehemently argued that she has moved the appeal on the point of sentence only and not on merits. During trial in the statement under section 313 Cr.P.C. the appellant has confessed his guilt and, therefore, the Presiding Officer was lenient in awarding the sentence and that is why the simple imprisonment has been awarded. The sentence has been passed considering his confession. The appeal itself is not maintainable on merits and therefore, he has filed appeal only on point of sentence. The first and foremost thing she has argued is that the appellant is in jail with effect from 26.04.2008 i.e. he has already undergone five years' rigorous imprisonment. The learned trial court did not make mention that the sentences shall run concurrently and, therefore, the appellant is being detained in prison to serve out the consecutive sentences although the bare intention of the court was to sentence the appellant concurrently but due to typographical error this mistake has been committed. An application has also been moved on behalf of the applicant for the correction of judgment and order but the trial court declined to accept its typographical error because under section 362 Cr.P.C. only clerical error can be rectified.
Learned counsel prayed that in view of confession of the accused the appellate court may grant him mercy because he has already undergone five years sentence and maximum sentence is four years and eight months.
Learned A.G.A. Pointed out that section 31 of the Cr.P.C. describes about the sentences at one trial. Section 31 is quoted below:-
"31.Sentence 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."
Learned A.G.A. pointed out that since the learned trial court did not mention that sentences shall run currently. It shall be treated as consecutive offence and appellant has to undergo four years and eight months and thereafter the other sentence i.e. three years i.e. in all he has to undergo i.e. four years and eight months + three years + sentence in default of payment of fine i.e. one month + one month i.e. total period of sentence seven years and ten months.
Learned A.G.A. argued that there is no confusion regarding judgment and order because it is crystal clear and learned trial court was competent to write concurrently but since it has not been written 'concurrently' that means the intention of the trial court was to pass order for consecutive sentence.
The sentence has been passed after considering his statement under section 313 Cr.P.C. in which the appellant has confessed his guilt and this is very evident from the operating portion of the judgment and order that the appellant has have awarded four years and eight months simple imprisonment. It means the learned trial court was sympathetic while passing the order because it awarded sentence of simple imprisonment whereas normally sentence of R.I. is a awarded under such heinous offence under sections 394 I.P.C.. But after conviction, the judge was sympathetic and passed the order that he shall undergo simple imprisonment in respect of rigorous imprisonment. It appears that while passing the sentence due to some reasons the word concurrently left to be added although it has written that the period already spent in the jail will be counted towards sentence.
Under these circumstances and in view of the fact that the sentence has been awarded after pleading guilty, I am of the opinion that instead of taking it consecutive punishment it should be read as 'concurrently' and since the appellant has undergone more than five years imprisonment; that means maximum sentence of four years and eight months and two months sentence in default of payment of fine and, therefore, he has completed the sentence.
Under these circumstances, the impugned judgment and order of conviction and sentence dated 01.03.2013 passed by Special Judge, Gangster Act/Additional Sessions Judge, Court No.5, Barabanki, in Gangster Case No.230-A of 2005, under section 394 I.P.C. and 3(1) U.P. Gangster Act, is liable to be modified to the extent that the sentences shall run currently.
The appeal is allowed and the judgment and order is modified to the extent that the sentences awarded to the appellant shall run concurrently. Since the appellant has already undergone the sentences awarded to him. He may be released forthwith if he is not wanted in any other case.
Registry of this Court is directed to communicate this judgment and order to the Court concerned as well as to the Superintendent of Jail concerned for immediate compliance.
Order Date :- 8.5.2013
Akhilesh/-
