Jitendra @ Kalla vs State Of Govt Of Nct Of Delhi

2. After recording the finding of guilt in both the cases and convicting the appellant for the charges framed against him in the FIR No. 67 of 1999 the appellant was sentenced to rigorous imprisonment for life with a direction that he shall not be considered for grant of remission till he undergoes the actual sentence of 30 years plus fine in the sum of Rs. 3 lac. In default of payment of fine further simple imprisonment for a period of three years was awarded. Out of the aforesaid fine of Rs. 3 lac, a sum of Rs. 1 lac was to be paid to the State and balance of Rs. 2 lac was directed to be paid to the family of deceased — Anil Badana as compensation under Section 357 of Code of Criminal Procedure (For short, ‘CrPC”). For offences under Section 307 of the IPC, the appellant was sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1 lac, in default of payment of fine further simple imprisonment for a period of one year. These sentences are to run concurrently. Insofar as conviction under FIR No. 68 of 1999 are concerned, the appellant was sentenced to undergo rigorous imprisonment for life by making it clear that it is till the rest of his life and he was also directed to pay a fine of Criminal Appeal No.2133 of 2017 a/w Other connected matters Page 3 of 25 Rs. 3 lac in this case also which was to be shared in the same manner, namely, Rs. 1 lac to the State and Rs. 2 lac to the family of deceased — Kimti Lal Nayyar. The trial court also directed that sentence in this case would start running consequent to and only after the conclusion of sentence imposed in FIR No. 67 of 1999.

10. On the application of the aforesaid principles, the High Court concluded that the punishments awarded to the appellant were excessive in nature and modified the same by removing the cap of 30 years and sentencing the appellant to the period already undergone, i.e., 16 years and 10 months. The direction was given to release the appellant forthwith if not required in any other case. The aforesaid judgment was delivered on December 24, 2016. Thereafter, the High Court listed the matter of its own for directions on February 14, 2017 as according to it, a typographical error was noticed in the said judgment. On this day, following order was passed:

11. In these appeals, both the aforesaid orders have been challenged. The appellant has challenged his conviction insofar as the trial in two cases is concerned. It may be noted that the appellant was satisfied with the orders dated December 24, 2016 as per which he was released on serving the sentence already undergone. However, after the correction in the said order dated February 14, 2017, he chose to challenge the conviction as well and filed the instant appeals. Other two appeals are filed by the families of the victims in two cases questioning the modification of sentence by the High Court vide judgment dated December 24, 2016. Even the State has filed the appeal against the modification order.

12. We may record that in the special leave petitions filed by the appellant though the notice was issued on April 07, 2017, this Court refused to stay the orders dated February 14, 2017 and directed the appellant to surrender. He was permitted to make an application for bail with the observation that the same would be considered on its own merits. The appellant, accordingly, surrendered and, at present, he is in jail. The appellant did move the application for bail. However, instead of hearing the argument in the said application, the Court decided to hear these appeals finally. This is how the matters were heard on merits. Criminal Appeal No.2133 of 2017 a/w Other connected matters Page 9 of 25

16. She submitted that apart from the above legal position, insofar as present case is concerned no such instructions were given to the lawyer by the appellant to give such a concession.

22. We, therefore, do not find any force in this argument and decide this issue against the appellant.

23. Before dealing with Question No. 2, it would be apt to first discuss Question No. 3. We are of the view that order dated February 14, 2017 deleting two lines from the main judgment dated December 24, 2016 does not stand judicial scrutiny, inasmuch as, by no Criminal Appeal No.2133 of 2017 a/w Other connected matters Page 18 of 25 stretch of imagination it can be treated as typographical error.

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26. Order dated February 14, 2017, therefore, cannot hold the ground and is hereby set aside.

27. We now take up the second issue. This question arises for consideration because of the reason that main judgment dated December 24, 2016 is challenged by the two complainants as well as the State.

28. To answer this issue, we are called upon to decide related question, viz. whether the manner of imposition of sentences by the trial court was justified? To recapitulate, in the first charge sheet in respect of 1st offence the trial court, while imposing sentence of life imprisonment, put a cap of 30 years thereby clearly stating that no remission would be permissible before them. Again, while inflicting life imprisonment in the second case, it stated that the sentence would be for whole life and would start only after completion of the sentence in the first offence. In other words, it awarded consecutive sentences and not concurrent sentences.

imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.”

32. As a consequence, the order of the High Court removing the cap of 30 years is not correct and that portion has to be set aside.

33. The upshot of the aforesaid discussion would be to conclude as under:

Resultantly, the appeals of the appellant are dismissed and that of complainants and the State are partially allowed to the aforesaid extent and disposed of in the aforesaid manner.

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