‘For the offence of murder, minimum sentence is ‘life imprisonment’. For that reason, obviously, the High Court could not have modified the sentence to the one already undergone.’
The Supreme Court has observed that in a murder case, the high court as an appellate court, cannot modify the life imprisonment imposed by the trial court to period already undergone.
In a double murder case, Kalla (Jitendra) was sentenced by the trial court 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. The high court, which upheld the verdict, was of the view that the cap of 30 years must be removed.
The high court also 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, though it later corrected itself.
The bench comprising Justice AK Sikri and Justice Ashok Bhushan said: One thing is absolutely clear. In both the FIRs there was a charge of murder under Section 302, IPC. Conviction was recorded on both the charges by the trial court which was affirmed by the High Court as well. For the offence of murder, minimum sentence is ‘life imprisonment’. For that reason, obviously, the High Court could not have modified the sentence to the one already undergone. Therefore, modification in the aforesaid manner as done by the High Court was clearly erroneous. In fact, it appears that the High Court realised this mistake and, therefore, made amends by correcting this mistake vide orders dated February 14, 2017. However, that step taken by the High Court was beyond its jurisdiction. It could have been done only in appeal. That exercise is precisely done by this Court by setting aside that part of the order.
Senior Advocate Vibha Makhija, who appeared for the accused in this case, contended that the high court took a shortcut by recording the concession of the counsel for the accused that, insofar as conviction is concerned, it was not pressed. She submitted that such a concession should not have been accepted by the court and it was the bounden duty of the court to decide the case on merits. She also contended that no such instructions were given to the lawyer by the accused to give such a concession. On this count, she requested remand of the case to decide the issue of conviction afresh.
But the bench said that the high court judgment makes it clear that the counsel for the appellant had received the instructions not to press the case on merits. “However, fact remains that even thereafter he did not approach the High Court with the plea that he had not authorised his advocate to make such a statement. Law on this subject is well settled in the judgments cited by Mr. Hegde. The Court record has to be believed. If according to the aggrieved party there is some error, the only option with the aggrieved party is to approach that very court, seeking correction of that order. It was not done. Therefore, we have to proceed on the premise that the counsel for the appellant had made the aforesaid statement on instructions from the appellant,” the court said.
As regard the high court correcting itself, the bench said: “In fact, it appears that the High Court realised this mistake (modification of sentence to period already undergone) and, therefore, made amends by correcting this mistake vide orders dated February 14, 2017. However, that step taken by the High Court was beyond its jurisdiction. It could have been done only in appeal. That exercise is precisely done by this Court by setting aside that part of the order.”
The bench restored the cap of 30-year imprisonment ordered by the trial court and added that sentences in both the cases shall run concurrently.