Vijay vs State of Maharashtra

M.L. Tahaliyani, J.—Heard. This appeal challenges order passed by Ad-hoc Additional Sessions Judge-2, Wardha in Sessions Case No. 112 of 2010 convicting the appellants for the offences punishable u/s 304 (Part-II) read with Section 34 of the Indian Penal Code and Section 324 read with Section 34 of the Indian Penal Code.

Learned counsel Mr. Rai has attempted to point out some contradictions and omissions in the evidence of P.W. Nos. 1, 2, 6 and 13. The learned counsel Mr. Rai has particularly pointed out that a material portion of the evidence of P.W. 1 was found missing from the oral report filed by him in the Police Station. It is a matter of fact that the description of incident in respect of the assault on deceased Girish @ Chhotu Kulkarni is missing from the First Information Report. However, the incident in respect of the assault on Girish @ Chhotu Kulkarni has been described by P.W. 2 and P.W. 3. Though, initially P.W. 6 did not support, but later on he had also supported and he had given evidence that Girish Kulkarni was assaulted by the appellants by means of sticks.

The doctor, who had examined the deceased, had also been examined as P.W. No. 4. He had stated in his evidence that the deceased had died due to head injuries and they were sufficient to cause death in ordinary course of the nature. It is further stated by the doctor that the cause of death was haemorrhage and shock as a result of the head injury.

After having heard learned counsel Mr. Rai and after having examined the evidence of P.W. 1, 2, 4, 6 and 13 this Court indicated to learned counsel Mr. Rai that appellants do not have the case for acquittal. The learned counsel therefore, prayed that this Court may consider to reduce the substantive sentence and to direct that sentences for both convictions shall run concurrently.

Learned counsel Mr. Rai invited my attention to the final order of the impugned judgment in which there is no direction that the sentences imposed on the appellants shall run concurrently.

Sub-section (1) of section 427 of the Code of Criminal Procedure runs as under:

(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

As such discretion is given to the trial Court to direct that two sentences imposed in one and the same judgment could be directed to run concurrently. Running of the sentences consecutively is a rule and concurrent sentence is discretion of the Court. It was submitted by learned counsel Mr. Rai that deceased Girish @ Chhotu Kulkarni died during the same incident when P.W. 1, 2 and 6 had suffered injuries due to the assault by means of sticks on the part of the appellants. In the circumstances, it is submitted, the learned trial Court should have exercised its discretion in favour of the appellants.

Mr. Mirza has submitted that order does not require any interference inasmuch as one of the injured had succumbed to his injuries. It was submitted by Mr. Mirza that the learned trial Judge has rightly not issued any direction for concurrent running of the sentences. After having heard learned counsel Mr. Rai and learned Additional Public Prosecutor Mr. Mirza and after having gone through the evidence of eyewitnesses, I have come to a conclusion that the learned trial Court should have exercised discretion u/s 427 of the Code of Criminal Procedure in favour of the appellants, I have taken note of the fact that P.W. Nos. 1 and 2 had reached the spot earlier in time to the deceased and the deceased had come under the assault incidentally. In fact, the deceased was not target of the appellants. The appellants had no criminal antecedents. In the circumstances, I pass the following order.

i. The appeal is partly allowed.

ii. The conviction of the appellants for the offence punishable u/s 304 (Part-II) read with Section 34 of the Indian Penal Code and Section 324 read with Section 34 of the Indian Penal Code as well as sentences imposed on the appellants by the trial Court are maintained.

iii. It is, however, directed that the sentences imposed for the conviction u/s 304 (Part-II) read with Section 34 and Section 324 read with Section 34 of the Indian Penal Code shall run concurrently.

iv. Set off be given in accordance with Section 428 of the Code of Criminal Procedure.

The appeal stands disposed of accordingly.