Madhya Pradesh High Court
Azad vs The State Of Madhya Pradesh on 19 December, 2022
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
CRIMINAL APPEAL No. 557 of 2011
BETWEEN:-
AZAD S/O SUBHAN NAYATA, AGED ABOUT
33 YEARS, OCCUPATION: AGRI
VILL.BALODA P.S.SADALPUR TEH.AND
DISTT.DHAR (MADHYA PRADESH)
.....APPELLANT
(BY SMT. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT.
THROUGH P.S. SADALPUR, DISTT. DHAR
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI AMIT SINGH SISODIA - GOVERNMENT ADVOCATE)
___________________________________________________________________
Reserved on : 14/12/2022
Pronounced on : 19/12/2022
________________________________________________________
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, JUSTICE SHRI VIJAY KUMAR SHUKLA
pronounced the following:
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SAN SOUMYA RANJAN
DALAI
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2
JUDGMENT
The present appeal is filed under Section 374(2) of the Code of Criminal
Procedure being aggrieved by the judgment of conviction and sentence by 2 nd
Additional Sessions Judge, Dhar dated 07.03.2011 in Sessions Trial
No.111/2010 whereby the appellant has been convicted under Section 302 of
the Indian Penal Code (hereinafter referred to as "IPC") on two counts and
sentenced for life imprisonment and to pay a fine of Rs.1000/-in default to
further undergo six months RI for the murder of Rafique @ Rashid. He has
also sentenced for life imprisonment and to pay a fine of Rs.1000/-, in default
to further undergo 6 months RI for the murder of Ahsan. He has also convicted
under Section 27 of the Arms Act and sentenced to RI for 3 years and to pay a
fine of Rs.1000/-, in default to further undergo 6 months RI.
2. The prosecution case in brief is that before 2 days back of the date
of the incident i.e. 10.12.2009, the appellant/accused Azad and his second wife
Pappi @ Rehana had quarrelled with Memuna, first wife of the appellant Azad
(P.W.1) and had beaten her in village Baloda. Because of the said Marpit with
her on 10.12.2009, Memuna telephoned her brother Ahsan and asked him to
come. Ahsan came to the house of accused Azad along with his cousin brother
Rashid. At 3 PM when they were talking with the appellant Azad, then
suddenly accused Azad got angry and rebuked Ahsan and said why he was
taking the side of his sister and slapped him. When Rashid tried to intervene,
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SAN SOUMYA RANJAN
DALAI the appellant also had beaten him. It is alleged that Pappi @ Rehana brought a
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12 bore gun from inside the house and gave it to the appellant and asked him
to kill both of them. The appellant fired one bullet on the head of Ahsan and
second bullet hit his right shoulder. One bullet also hit mandible of Rashid.
Ahsan died on the spot. Upon the report of Memuna, Police Sadalpur registered
the offences under Section 302, 307 and 34 of Indian Penal Code and under
Section 25 of Arms Act in Crime No.310/2009 against the appellant and co-
accused Pappi @ Rehana. During the course of treatment, Rafique @ Rashid
also died on 11.12.2009. The police, Sadalpur arrested the appellant and co-
accused Pappi @ Rehana and after investigation filed the charge-sheet in the
Court. The appellant and co-accused Pappi @ Rehana abjured their guilt. The
learned trial Court after the trial acquitted the co-accused Pappi @ Rehana, but
convicted and sentenced the appellant as above.
3. On the report of Memuna, a report was registered at Police Station
- Sadalpur vide Ex.P/1 by P.W.8 Devendra Singh Sengar, Thana In-charge,
Sadalpur. The post-mortem of both the dead bodies was carried out on
11.12.2009 by Dr. Narendra Pavaiya (PW-7). He opined that the deceased
Rafique @ Rashid died due to neuro-haemorrhagic wound caused by gun
injury within 24 hours. The said death was homicidal in nature. The post-
mortem report is Ex.P/14. Regarding the death of Ahsan, his post-mortem
report is Ex.P/15. It was opined that he died due to neuro-haemorrhagic shock
caused due to gun injury on heads and the said injury was caused within 24
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SAN SOUMYA RANJAN
DALAI hours of the examination. Devendra Singh Sengar (PW-8) prepared Naksha
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Panchnama of dead body Ex.P/17 and Ex.P/18 is Naksha Mauka. From the
spot, the blood-stained clothes, soil, one empty 12 bore cartridge and other 12
cartridges, pallets, plastic pieces and paper weight etc were seized by seizure
memo Ex.P/11. The appellant and the other co-accused were arrested. On the
disclosure statement of appellant, motorcycle was seized vide Ex.P/1 and on
his statement, one 12 bore gun and cartridges were seized vide Ex.P/7. His gun
licence was seized vide Ex.P/10. All the seized articles were sent to FSL Sagar.
The FSL report is Ex.P/22 and the other reports are Ex.P/23 and P/24. The
prosecution case is based on testimony of eyewitnesses, seizure of gun and FSL
report. PW-1 Memuna, who is wife of appellant, deposed that the appellant had
brought her after performing Natra. She stayed with the appellant for about 10-
12 years after the marriage. Thereafter she was expelled from the house after
quarrel with the appellant. The appellant married the other co-accused Pappi
@ Rehana. She filed a case in the Court and when she succeeded, the appellant
compromised and she was brought back to the house. In her statement, she
stated that at about 3 PM, accused had called his brother Ahsan and Rashid to
Baloda and asked them to take their sister along with them. At that time,
accused Azad got angry and rebuked Ahsan and said why he was taking the
side of his sister and slapped him. When Rashid tried to intervene, the appellant
also had beaten him. It is stated that Pappi @ Rehana brought a 12 bore gun
from inside the house and gave it to the appellant and asked him to kill both of
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SAN SOUMYA RANJAN
DALAI them. The appellant fired one bullet at the head of Ahsan, second bullet hit his
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right shoulder and one bullet also hit mandible of Rashid. Ahsan died on the
spot and Rashid survived for sometime and during the course of treatment, he
also died. In para-18 of the cross-examination, she had denied the suggestion
of the accused that Rashid and Ahsan had come to his house to kill him and at
that time, the accident of firing had taken place. She had also denied that the
appellant had fired on the deceased persons in his right to private defence. PW-
2 Bachchu stated that on the date of the incident, he had gone to the house of
Sikandar at Village - Baloda and he was standing outside the house of Azad
waiting for a bus. He had seen Ahsan and Rashid going to the house of Azad
on a motorcycle. He further deposed that wife of Azad brought 12 bore gun
and appellant Azad had fired on Ahsan on his head and he died at the spot.
Thereafter the appellant also fired on Rashid, which struck on his hand. He had
fired again which caused injury on the neck. Thereafter Rashid had also died.
After the incident, he had also seen the appellant Azad going on a bike carrying
12 bore gun on his shoulders. The statement of this witness was challenged by
the defence mainly on the ground that the brother of the deceased Rashid
Dilawar is Sarpanch of the village and, therefore, PW-2 is stating incorrect
facts before the Court and is falsely implicating the accused appellant.
4. Counsel for the appellant argued that there are contradictions in
the statement of PW-1 Memuna and PW-2 Bachchu and, therefore, their
testimony is not trustworthy. Upon going through the statement of PW-1
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SAN SOUMYA RANJAN
DALAI Memuna and PW-2 Bachchu, we do not find any material contradictions in
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their statement. Both the witnesses are formed on the incident that the appellant
had fired Ahsan and Rashid.
5. PW-7 Dr. Narendra Pavaiya, who had conducted the post-mortem
report had stated that on left cheek, and left side of neck was badly injured. On
the left auxiliary area, there was injury of the size of 2 x 3'' and 20 spots. There
was penetrating smoking wound and on the backside 6 x 6'' wound and on the
right arm, there was humorous fracture and 2 x 2" wound and on posterior
wound 3 x 3", in which 3 pellets were found. He opined that he died because
of fracture on maxilla bone, mandible and humorous and on the left side of
armpit, 3 pellets were found. He had sealed viscera clothes and pellets and
handed over to the police. The cause of death was neuro-haemorrhagic shock
due to gun-shot injury. He proved post-mortem report Ex.P/14. He also
deposed that he had done autopsy of deceased Ahsan. On his skull on half of
the left side, there was a fracture wound and brain tissue had come out. On left
frontal temporal, occipital, nosal and on left mandible, there was a fracture. On
shoulder there were 8 blackening spot and there was exit wound 3 x 2" in which
4 pellets were found. On the left hand, on palm, arm wounds and radius were
fractured. He stated that 4 pellets and cartridges were found in the body of
deceased Ahsan. He had sealed viscera, clothes, pellets and cartridges and
handed over to the police. Cause of death was neuro-haemorrhagic shock due
to grievous gunshot injury. The death was homicidal. His autopsy report is
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SAN SOUMYA RANJAN
DALAI
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Ex.P/15. Thus, it is proved that the death of Ahsan and Rafique was due to gun-
shot injury.
6. PW-8 Devendra Singh Sengar stated that on the disclosure
statement of Appellant, he had seized one 12 bore gun and its license. From
the spot, he collected bloodstained soil, empty cartridges and clothes and they
were sent for chemical examination to FSL. The seizure witnesses are PW-3
Gama, PW-4 Sohan Patidar and PW-5 Esarail. The seizure witnesses have
turned hostile, but there is nothing in the cross-examination of Devendra Singh
PW-8 to suggest that his testimony is not trustworthy and the seizure of gun,
empty cartridges, and the seizure of blood-stained soil is not proved. He in
para-12 of his cross-examination, he has specifically stated the number of the
gun which was seized from the accused vide Ex.P/7 and in the FSL report
Ex.P/22 also the number of the gun has been mentioned. In the statement under
Section 313 Cr.P.C., the accused admitted that the fire was made from the gun,
but due to accident. Thus, on reading of the statement of PW-8 and the other
evidences, the seizure of the gun and other articles cannot be doubted though
the seizure witnesses have turned hostile.
7. The seized articles gun, empty cartridges, clothes and
bloodstained soil were sent to FSL vide Ex.P/19 and Ex.P/20. The FSL report
is Ex.P/22. As per the report, the gun was in working condition and recently,
the fire was made from the gun which was Ex.A. It is further confirmed in the
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SAN SOUMYA RANJAN
DALAI said report that the empty cartridges were fired from gun Ex.A/1. In the clothes,
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jacket, T-shirt, banyan and pant of deceased Ahsan and Rashid, the gun whole
were found which were caused by gun-shot.
8. The plea of right to private defence was taken. He has examined
DW-3 Aashiq, who stated that the accused is his maternal uncle. He stated that
Ahsan and Rashid had gone to the house of appellant Azad and at that time
Azad was on the field. Azad, Ahsan, Rashid and Memuna were talking and at
that time a quarrel had taken place and Ahsan and Rashid started beating Azad
and Memuna was also beating Azad. At that time, Ahsan had taken out a pistol
from his pocket and fired on Azad, but he escaped. Thereafter Ahsan, Rashid
and Memuna entered into the house of the appellant Azad. Thereafter he had
2-3 gunshots. Then he had seen that Ahsan was lying there and he had received
gunshot injury and one gunshot injury was on the mouth of Rashid. Thereafter
Azad had gone there.
9. The story of the statement of DW-3 Aashiq is not trustworthy as
it is the first time the said witness has stated that a fire was made by Ahsan
from his pistol to the appellant. Further, the same cannot be pleaded in view of
the statement made by the appellant under Section 313 of Cr.P.C. He had not
taken the said plea. On the contrary, he stated that the fire was made
accidentally. He had also not pleaded right to private defence and otherwise
the defence has failed to prove its case of right to private defence.
10. The statement of eyewitness PW-1 Memuna is coupled with the
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SAN SOUMYA RANJAN
DALAI seizure of gun, empty cartridges, clothes etc. from the appellant. The FSL
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report has confirmed that the fire was made from the seized gun and as per the
testimony of PW-7 Dr. Narendra Pavaiya, it is established that both the
deceased died due to gun injury. The prosecution has proved its case beyond
any doubt that the appellant has caused gun injury to the deceased persons
Ahsan and Rashid and they died due to gun injury. The contradictions pointed
out by the learned counsel for the appellant in the statement of PW-1 Memuna
and PW-2 Bachchu are not material contradictions and, therefore, their
testimony cannot be ignored. The ocular evidence is well corroborated with
medical and chemical report. Thus, on assimilation of facts and evidence, we
do not find any error in the order of conviction and the appeal is dismissed.
The conviction is maintained.
11. Heard on sentence.
12. Learned counsel for the appellant submitted that the trial Court
has not observed that the sentences shall run concurrently and, therefore, the
sentence may be clarified that sentences have to run concurrently, otherwise
the same shall be read as consecutively.
13. The learned counsel for the appellant has contended, while relying
on the decisions in Nagaraja Rao v. Central Bureau of Investigation: (2015)
4 SCC 302 and Gagan Kumar v. State of Punjab: (2019) 5 SCC 154, that it is
obligatory for the Court awarding punishments to specify whether they shall
be running concurrently or consecutively; and the omission on the part of the
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SAN SOUMYA RANJAN
DALAI Trial Court and the High Court, to state the requisite specifications, cannot be
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allowed to operate detrimental to the interests of the accused-appellants. The
learned counsel has contended that though as per the mandate of Section 31
Cr.P.C, unless specified to run concurrently, the sentences do run
consecutively but for that purpose, the Court is required to direct the order in
which they would run; and no such direction having been given by the Trial
Court or by the High Court, it cannot be said that the Courts were consciously
providing for consecutive running of sentences. He referred the decision of the
Apex Court in the case of O.M. Cherian alias Thankachan v. State of Kerala
& Ors.: (2015) 2 SCC 501 that it is not the normal rule that multiple sentences
are to run consecutively.
14. The learned counsel for the appellant has referred to the decisions
in State of Punjab v. Gurmit Singh & Ors.: (1996) 2 SCC 384 and the State
of Madhya Pradesh v. Anoop Singh: (2015) 7 SCC 773 to submit that those
too were the cases involving offences under Sections 363, 366 and 376 with
victim being a minor; and therein, this Court has awarded the sentences running
concurrently. He further referred to the order passed by the Apex Court dated
25.05.2021 in the case of Sunil Kumar @ Sudhir Kumar & Anr. v. State of of
Uttar Pradesh [Criminal Appeal No.526 of 2021 (Arising from SLP (Crl.)
No.3549 of 2018)] where the apex Court in exercise of the powers under
Article 142 of the Constitution of India, modified the punishment awarded to
the convicts and awarded them maximum period of imprisonment to be served
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SAN SOUMYA RANJAN
DALAI by them in relation to offences in question shall be 14 years and not beyond.
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Relying on the judgment passed in the case of Gagan Kumar (supra), counsel
for the appellant submitted that it was necessary for the Magistrate to have
specified in the order by taking recourse to Section 31 of the Cr.P.C. as to
whether punishment of sentence of imprisonment so awarded for each offences
would run concurrently or consecutively. In para-19 of the order, the Apex
Court held that if the Magistrate failed in his duty, the Additional Sessions
Judge and the High Court should have noticed this error committed by the
Magistrate and should have corrected it and the interference was made in this
regard.
15. Counsel for the respondent/State submitted that in view of the
provisions of Section 31, since the Court has not stated that punishment is to
be run concurrently or consecutively then it has to be consecutively. He further
submitted that since it was a case of double murder, therefore, the Court has
intentionally did not award the sentence concurrently and the order passed by
the Supreme Court in the case of Sunil Kumar (supra) was in exercise of the
powers under Article 142 of the Constitution of India which is not a binding
precedent.
16. We have heard learned counsel for the parties on the said
question.
17. The provisions of Section 31 of Cr.P.C. reads as under:-
"31. Sentence in cases of conviction of several offences at one
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trial.--
SAN SOUMYA RANJAN
DALAI
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(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
a 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."
18. From Section 31(1) of Cr.P.C., it is clear that unless and until the
sentences are made concurrent, the sentences would run consecutively.
19. The Supreme Court in the case of O.M. Cherian Vs. State of
Kerala reported in (2015) 2 SCC 501 has held as under :
12. The words in Section 31 CrPC
"..... sentence him for such offences, to the several
punishments prescribed therefor which such court is
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competent to inflict; such punishments when consisting of
DALAI
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imprisonment to commence the one after the expiration of
the other in such order as the court may direct"
indicate that in case the court directs sentences to run one after the
other, the court has to specify the order in which the sentences are
to run. If the court directs running of sentences concurrently, order
of running of sentences is not required to be mentioned.
Discretion to order running of sentences concurrently or
consecutively is judicial discretion of the court which is to be
exercised as per the established law of sentencing. The court
before exercising its discretion under Section 31 CrPC is required
to consider the totality of the facts and circumstances of those
offences against the accused while deciding whether sentences are
to run consecutively or concurrently.
13. Section 31(1) CrPC enjoins a further direction by the court to
specify the order in which one particular sentence shall commence
after the expiration of the other. Difficulties arise when the courts
impose sentence of imprisonment for life and also sentences of
imprisonment for fixed term. In such cases, if the court does not
direct that the sentences shall run concurrently, then the sentences
will run consecutively by operation of Section 31(1) CrPC. There
is no question of the convict first undergoing the sentence of
imprisonment for life and thereafter undergoing the rest of the
sentences of imprisonment for fixed term and any such direction
would be unworkable. Since sentence of imprisonment for life
means jail till the end of normal life of the convict, the sentence
of imprisonment of fixed term has to necessarily run concurrently
with life imprisonment. In such case, it will be in order if the
Sessions Judges exercise their discretion in issuing direction for
concurrent running of sentences. Likewise if two life sentences
are imposed on the convict, necessarily, the court has to direct
those sentences to run concurrently.
20. The Supreme Court in the case of Muthuramalingam v. State,
reported in (2016) 8 SCC 313 has held as under :
"7. A careful reading of the above would show that the provision
is attracted only in cases where two essentials are satisfied viz.
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(1) a person is convicted at one trial, and
SAN SOUMYA RANJAN
DALAI
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(2) the trial is for two or more offences. It is only when both
these conditions are satisfied that the court can sentence the
offender to several punishments prescribed for the offences
committed by him provided the court is otherwise competent
to impose such punishments. What is significant is that such
punishments as the court may decide to award for several
offences committed by the convict when comprising
imprisonment shall commence one after the expiration of the
other in such order as the court may direct unless the court
in its discretion orders that such punishment shall run
concurrently. Sub-section (2) of Section 31 on a plain
reading makes it unnecessary for the court to send the
offender for trial before a higher court only because the
aggregate punishment for several offences happens to be in
excess of the punishment which such court is competent to
award provided always that in no case can the person so
sentenced be imprisoned for a period longer than 14 years
and the aggregate punishment does not exceed twice the
punishment which the court is competent to inflict for a
single offence."
8. Interpreting Section 31(1), a three-Judge Bench of this Court in
O.M. Cherian case declared that if two life sentences are imposed
on a convict the court must necessarily direct those sentences to
run concurrently. The Court said: (SCC pp. 509-10, para 13) "13.
Section 31(1) CrPC enjoins a further direction by the court to
specify the order in which one particular sentence shall commence
after the expiration of the other. Difficulties arise when the courts
impose sentence of imprisonment for life and also sentences of
imprisonment for fixed term. In such cases, if the court does not
direct that the sentences shall run concurrently, then the sentences
will run consecutively by operation of Section 31(1) CrPC. There
is no question of the convict first undergoing the sentence of
imprisonment for life and thereafter undergoing the rest of the
sentences of imprisonment for fixed term and any such direction
would be unworkable. Since sentence of imprisonment for life
means jail till the end of normal life of the convict, the sentence
of imprisonment of fixed term has to necessarily run concurrently
with life imprisonment. In such case, it will be in order if the
Sessions Judges exercise their discretion in issuing direction for
concurrent running of sentences. Likewise if two life sentences
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are imposed on the convict, necessarily, the court has to direct
those sentences to run concurrently."
SAN SOUMYA RANJAN
DALAI
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9. To the same effect is the decision of a two-Judge Bench of this
Court in Duryodhan Rout case in which this Court took the view
that since life imprisonment means imprisonment of full span of
life there was no question of awarding consecutive sentences in
case of conviction for several offences at one trial. Relying upon
the proviso to sub-section (2) of Section 31, this Court held that
where a person is convicted for several offences including one for
which life sentences can be awarded the proviso to Section 31(2)
shall forbid running of such sentences consecutively.
10. It would appear from the above two pronouncements that the
logic behind life sentences not running consecutively lies in the
fact that imprisonment for life implies imprisonment till the end
of the normal life of the convict. If that proposition is sound, the
logic underlying the ratio of the decisions of this Court in O.M.
Cherian and Duryodhan Rout cases would also be equally sound.
What then needs to be examined is whether imprisonment for life
does indeed imply imprisonment till the end of the normal life of
the convict as observed in O.M. Cherian and Duryodhan Rout
cases. That question, in our considered opinion, is no longer res
integra, the same having been examined and answered in the
affirmative by a long line of decisions handed down by this Court.
We may gainfully refer to some of those decisions at this stage."
21. The Supreme Court in the case of Kuldeep Vs. State of Haryana
reported in (2018) 18 SCC 652 and Gagan Kumar Vs. State of Punjab
reported in (2019) 5 SCC 154 has also held that if more than one offences are
committed in one transaction, then the sentences can be made concurrent.
22. Looking to the facts and circumstances of the case that the murder
of 2 persons was committed in one transaction, this Court is of the considered
view that the life sentences awarded by the trial Court for offence under Section
302 IPC on both counts must run concurrently. Accordingly, it is directed that
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DALAI
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the sentence for life imprisonment awarded by the trial Court for offence under
Section 302 IPC on both counts shall run concurrently.
23. With the aforesaid modification, the impugned judgment and
sentence is hereby affirmed. Thus, the appeal is dismissed on merit, but is
allowed in part to the extent of sentence and the sentences shall run
concurrently.
(VIJAY KUMAR SHUKLA) (RAJENDRA KUMAR (VERMA))
JUDGE JUDGE
Soumya
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Digitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.12.20
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