Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2387 OF 2014

(Arising out of SLP (Crl.) No. 2487/2014)

O.M. CHERIAN @ THANKACHAN …..Appellant

Versus

STATE OF KERALA & ORS. ….Respondents

J U D G M E N T

R. Banumathi, J.

Leave granted.

2. This appeal arises out of the judgment dated

27.11.2013 passed in Crl. Appeal No. 910/2006 by which the

High Court of Kerala confirmed the conviction of the

appellant/1

st

accused under Sections 498A and 306 IPC and

also the sentence of imprisonment imposed on him.

Page 2 3. Briefly stated, case of the prosecution is that the

1

st

accused married Lillikutty and their marriage was

solemnized on 11.2.1988 and they continued their stay in

House bearing No. MP. VIII/84 of Karulayai Amsom along with

other accused, who are the father, mother and brother of the

appellant. The allegation levelled is that in the matrimonial

house, the appellant/1

st

accused and other accused ill-treated

and tortured Lillikutty, compelling her to take the extreme

step of putting an end to her life by committing suicide.

During the marital life, Lillikutty had a premature delivery.

When she became pregnant again in 1993, it is alleged that

A-1 provided her with some tablets and Lillikutty had a

miscarriage. During her marital life Lillikutty delivered a child

who did not live long. On 23.2.1996 Lillikutty poured kerosene

oil on herself and also drank some, which was later cleared

away. On 23.2.1996, a mediation talk had been scheduled

and PW-1 and the relatives of Lillikutty were also to attend the

mediation talks but when the meeting was so scheduled,

Lillikutty committed suicide by hanging. On the first

information by PW-1, a neighbour of the accused, law was set

in motion. Initially FIR was registered for unnatural death

2

Page 3 under Section 174 Cr.P.C. and on subsequent complaint, the

same was altered to one for the offences punishable under

Sections 498A and 306 IPC. PW-4 conducted autopsy and

submitted the post-mortem report. PW-14, investigating

officer, had taken up the investigation and seized the

documents and material objects and examined the witnesses

and laid the charge sheet against the appellant and other

accused. In the trial court, PWs 1 to 15 were examined and

Exs. P-1 to P-25 were marked and MOs 1 to 18 were identified.

The accused were questioned under Section 313 Cr.P.C. and

they denied all the incriminating evidence and circumstances

brought out in evidence against them.

4. Upon consideration of evidence, the trial court

convicted the appellant/1

st

accused under Section 498A IPC

and sentenced him to undergo two years of rigorous

imprisonment and to pay a fine of Rs.5,000/- and in default of

payment of fine, to undergo further imprisonment of one year.

For the offence punishable under Section 306 IPC, the trial

court sentenced him to undergo rigorous imprisonment for

seven years and to pay a fine of Rs.50,000/- and in default of

payment of fine, to undergo further imprisonment of three

3

Page 4 years. The substantive sentences of the appellant were

ordered to run consecutively. Accused 2 to 4 were convicted

under Section 498A IPC and were sentenced to undergo

imprisonment for two years and to pay fine of Rs. 5,000/- with

default clause of one year. The High Court confirmed the

conviction and also the sentence of imprisonment imposed

upon all the accused.

5. Being aggrieved, the appellant/1

st

accused has

preferred this appeal. This Court issued notice only on the

limited question as to whether the sentence can be made to

run concurrently, instead of running consecutively. This

Court by order dated 18.7.2014 observed that Section 31

Cr.P.C. was not noticed by this Court in Mohd. Akhtar Hussain

alias Ibrahim Ahmed Bhatti vs. Asstt. Collector of Customs

(Prevention), Ahmedabad & Anr. (1988) 4 SCC 183 and referred

the matter to be considered by a larger Bench in order to settle

the law and thus, the matter is before us. The order of

Reference is as follows:

“The petitioner herein was concurrently convicted for

offences under Section 498A and Section 306 IPC and

sentenced to undergo rigorous imprisonment for 2 years and

7 years respectively on the above-mentioned two counts

4

Page 5 apart from paying certain amounts of fine, the details of

which may not be necessary.

Both the Courts directed that the sentences should

run consecutively.

By an order dated 31

st

March, 2014, notice was issued

limited only to the question whether the direction whereby

the sentences were ordered to run consecutively is legally

tenable.

Learned counsel for the petitioner has placed reliance

on the judgments of this Court in Mohd. Akhtar Hussain

alias Ibrahim Ahmed Bhatti vs. Assistant Collector of Customs

(Prevention), Ahmedabad and Another (1988) 4 SCC 183 and

Manoj alias Panu vs. State of Haryana (2014) 2 SCC 153

and argued that when an accused is found guilty of more

than one offence at the same trial, though separate

conviction is recorded on each of the different charges and

different sentences are imposed, such sentences are required

to be directed to run concurrently.

This Court in Mohd. Akhtar Hussain alias Ibrahim

Ahmed Bhatti case (supra) at para (10) held as under:

‘The basic rule of thumb over the years has

been the so-called single transaction rule for

concurrent sentences. If a given transaction

constitutes two offences under two enactments

generally, it is wrong to have consecutive

sentences. It is proper and legitimate to have

concurrent sentences. But this rule has no

application if the transaction relating to offences

is not the same or the facts constituting the two

offences are quite different.”

In Manoj alias Panu vs. State of Haryana (supra) the

Bench simply followed the earlier judgment.

From the judgment in Mohd. Akhtar Hussain alias

Ibrahim Ahmed Bhatti case (supra), it appears that Section

31 of the Criminal Procedure Code was not noticed by this

Court when this Court observed as extracted above.

Section 31 (1) of the Cr. P.C. reads as follows:-

5

Page 6 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 therefore 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)……………

(3)……………”

Therefore, the statutory stipulation is clear that

normally sentences in such cases are to run consecutively.

Hence we find it difficult for us to accept the statement

of law made in the above mentioned two cases. We,

therefore, deem it appropriate that the matter be considered

by a Bench of appropriate strength to settle the law. We

direct the Registry to place the papers before Hon’ble the

Chief Justice of India for appropriate orders.”

6. Learned counsel for the appellant Mr. Jayanth

Muthraj contended that when a person is convicted at one

trial for two or more offences, Section 31 Cr.P.C. vests a

discretion in the Court to direct that the punishment shall run

concurrently and in the present case the trial court and the

appellate court have not properly exercised such discretionary

power vested in them. Learned counsel submitted that the

section provides that where several sentences are imposed for

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Page 7 two or more offences, such sentences will run one after the

other in such order as Court directs, unless the Court directs

running of punishments concurrently and the Court’s

discretion to order concurrent running of sentences is not in

any manner restricted. It was contended that there is no

reason to presume that general rule is that sentences will run

one after the other and exception is that punishments will run

concurrently. He further submitted that the judicial guideline

in Mohd. Akhtar Hussain is in no way in conflict with Section

31 Cr.P.C.

7. We have heard Ms. Bina Madhavan learned counsel

appearing for the respondent–State of Kerala also, who

supported the view taken by the courts below. Learned

counsel placed reliance on the recent judgment of this Court

in Duryodhan Rout v. State of Orissa, 2014 (8) SCALE 96.

8. We have given our thoughtful consideration to the

matter and perused the materials on record.

9. Section 31 Cr.P.C. relates to the quantum of

punishment that the court has jurisdiction to pass where the

accused is convicted for two or more offences at one trial.

Section 31 Cr.P.C. reads as follows:-

7

Page 8 “S.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.

(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.”

10. Section 31 Cr.P.C. relates to the quantum of

punishment which may be legally passed when there is

(a) one trial and (b) the accused is convicted of “two or more

8

Page 9 offences”. Section 31 Cr.P.C. says that subject to the

provisions of Section 71 IPC, Court may pass separate

sentences for two or more offences of which the accused is

found guilty, but the aggregate punishment must not exceed

the limit fixed in the proviso (a) and (b) of sub-section (2) of

Section 31 Cr.P.C. In Section 31(1) Cr.P.C., since the word

“may” is used, in our considered view, when a person is

convicted for two or more offences at one trial, the court may

exercise its discretion in directing that the sentence for each

offence may either run consecutively or concurrently subject

to the provisions of Section 71 IPC. But the aggregate must

not exceed the limit fixed in proviso (a) and (b) of sub-section

(2) of Section 31 Cr.P.C. that is – (i) it should not exceed 14

years and (ii) it cannot exceed twice the maximum

imprisonment awardable by the sentencing court for a single

offence.

11. The words “unless the court directs that such

punishments shall run concurrently” occurring in sub-section

(1) of Section 31, make it clear that Section 31 Cr.P.C. vests a

discretion in the Court to direct that the punishment shall run

concurrently, when the accused is convicted at one trial for

9

Page 10 two or more offences. It is manifest from Section 31 Cr.P.C.

that the Court has the power and discretion to issue a

direction for concurrent running of the sentences when the

accused is convicted at one trial for two or more offences.

Section 31 Cr.P.C. authorizes the passing of concurrent

sentences in cases of substantive sentences of imprisonment.

Any sentence of imprisonment in default of fine has to be in

excess of, and not concurrent with, any other sentence of

imprisonment to which the convict may have been sentenced.

12. The words in Section 31 Cr.P.C “….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”

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 established law of

10

Page 11 sentencing. The court before exercising its discretion under

Section 31 Cr.P.C. 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) Cr.P.C. 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) Cr.P.C. 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

11

Page 12 discretion in issuing direction for concurrent running of

sentences. Likewise if two life sentences are imposed on the

convict, necessarily, Court has to direct those sentences to

run concurrently.

14. The opening words “in the case of consecutive

sentences” in sub-section (2) of Section 31 Cr.P.C. make it

clear that this sub-section refers to a case in which

“consecutive sentences” are ordered. The provision says that if

an aggregate punishment for several offences is found to be

in excess of punishment which the Court is competent to

inflict on a conviction of single offence, it shall not be

necessary for the Court to send the offender for trial before

a higher court. Proviso (a) is added to sub-section (2) of

Section 31 Cr.P.C. to limit the aggregate of sentences - that in

no case, the aggregate of consecutive sentences passed against

an accused shall exceed fourteen years. “Fourteen years rule”

contained in clause (a) of the proviso to Section 31 (2) Cr.P.C.

may not be applicable in relation to sentence of imprisonment

for life, since imprisonment for life means the convict will

remain in jail till the end of his normal life.

12

Page 13 15. In Ramesh Chilwal vs. State of Uttarakhand (2012)

11 SCC 629, the accused was convicted under Section 302 IPC

and sentenced to undergo imprisonment for life. Accused was

also convicted under Sections 2/3 [3(1)] of the U.P. Gangsters

and Anti-Social Activities (Prevention) Act, 1986 and sentenced

to undergo rigorous imprisonment for ten years and under

Section 27 of the Arms Act sentenced to further undergo

rigorous imprisonment for seven years. Considering the fact

that the trial court had awarded life sentence under Section

302 IPC, this Court directed that all sentences imposed under

Section 302 IPC, Sections 2/3 [3(1)] of the Gangsters Act and

Section 27 of the Arms Act to run concurrently.

16. When the prosecution is based on single transaction

where it constitutes two or more offences, sentences are to run

concurrently. Imposing separate sentences, when the acts

constituting different offences form part of the single

transaction is not justified. So far as the benefit available to

the accused to have the sentences to run concurrently of

several offences based on single transaction, in V.K. Bansal vs.

State of Haryana & Anr. (2013) 7 SCC 211, in which one of us

13

Page 14 (Justice T.S. Thakur) was a member, this Court held as

under:-

“… we may say that the legal position favours

exercise of discretion to the benefit of the prisoner

in cases where the prosecution is based on a single

transaction no matter different complaints in

relation thereto may have been filed as is the

position in cases involving dishonour of cheques

issued by the borrower towards repayment of a

loan to the creditor.”

17. This Court in the case of Mohd. Akhtar Hussain

alias Ibrahim Ahmed Bhatti vs. Asstt. Collector of Customs

(Prevention) Ahmedabad and Anr., (1988) 4 SCC 183,

recognized the basic rule of conviction arising out of a single

transaction justifying the concurrent running of the sentences.

The following passage in this regard is relevant to be noted :-

“The basic rule of thumb over the years has been

the so-called single transaction rule for concurrent

sentences. If a given transaction constitutes two

offences under two enactments generally, it is

wrong to have consecutive sentences. It is proper

and legitimate to have concurrent sentences. But

this rule has no application if the transaction

relating to offences is not the same or the facts

constituting the two offences are quite different.”

In Manoj alias Panu vs. State of Haryana, (2014) 2 SCC 153,

the Bench followed Mohd. Akhtar Hussain’s case.

14

Page 15 18. While referring the matter to a larger Bench, the

Bench observed that in Mohd. Akhtar Hussain’s case, Section

31 Cr.P.C. was not noticed by this Court. It is to be pointed

out that in Mohd. Akhtar Hussain’s case and Manoj’s case, the

appellants who were convicted for different counts of offences

arose out of a single transaction, favouring the exercise of

discretion to the benefit of the accused that the sentences

shall run concurrently. Those decisions are not cases arising

out of conviction at one trial of two or more offences and

therefore, reference to Section 31 Cr.P.C. in those cases was

not necessitated.

19. As pointed out earlier, Section 31 Cr.P.C. deals with

quantum of punishment which may be legally passed when

there is - (a) one trial and (b) the accused is convicted of two

or more offences. Ambit of Section 31 is wide, covering not

only single transaction constituting two or more offences but

also offences arising out of two or more transactions. In the

two judgments in Mohd. Akhtar Hussain and Manoj (supra),

the issue that fell for consideration was the imposition of

sentence for two or more offences arising out of the single

15

Page 16 transaction. It is in that context, in those cases, this Court

held that the sentences shall run concurrently.

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

16

Page 17 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.

22. Having answered the reference, the merits of the

matter can be gone into by the referring Bench; but we

consider it appropriate to dispose of the appeal itself to avoid

any further delay. Adverting to the present case, the learned

counsel for the appellant contended that the facts and

circumstances of the case were not kept in view to invoke the

discretion for concurrent running of sentences. It was

submitted that appellant is employed in Gulf countries and

between 1988–1996, the appellant visited India only four times

and there could not have been any continuous harassment on

his part and in the said facts and circumstances of the case,

the trial court and the High Court ought to have judiciously

exercised their discretion in directing sentences to run

concurrently and therefore, prayer for intervention of this

Court was made.

17

Page 18 23. The trial court directed the sentences imposed on

the appellant/accused under Sections 498A and 306 IPC to

run consecutively, which was affirmed by the High Court.

When the trial court declines to exercise its discretion under

Section 31 Cr.P.C. in issuing direction for concurrent running

of sentences, normally the appellate court will not interfere,

unless the refusal to exercise such discretion is shown to be

arbitrary or unreasonable. When the trial court as well as the

appellate court declined to exercise their discretion, normally

we would have refrained from interfering with such direction of

the courts for consecutive running of sentences. But in the

facts and circumstances of the present case, in our view, the

sentences imposed on the appellant could be ordered to be run

concurrently. At the time of marriage, the appellant was

employed as a Painter at Delhi and after marriage, it is stated

that the appellant had secured an employment in Gulf

countries and used to visit India once in two years only. It is

brought on evidence that in a period of eight years from

1988–1996, he came on leave to India for only four times and

finally he visited India while he was on leave during

January-February 1996. The appellant also appears to have

18

Page 19 taken efforts for mediation to settle the differences and the

mediation was scheduled to take place on 23.2.1996; but

Lillikutty committed suicide on the same day. Keeping in view

the totality of the facts and circumstances of the case, the

sentences imposed on the appellant for the offences

punishable under Sections 498A and 306 IPC are ordered to

run concurrently and the appeal is disposed of with the above

modifications.

24. The reference is answered accordingly and the

appeal allowed in part to the extent as indicated above.

…………………………… .J.

(T.S. Thakur)

…………………………… .J.

(Adarsh Kumar Goel)

…………………………… .J.

(R. Banumathi)

New Delhi,

November 11, 2014

19