Kerala High Court Issues Directions To Be Followed By Trial Courts While Sentencing

The Kerala High Court has recently issued a set of recommendations to be observed by trial courts while sentencing the accused in criminal matters.The guidelines were issued by a Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran while allowing a criminal appeal, thereby reversing the conviction and sentence imposed by a Sessions Judge on the appellant for murder.Guidelines Issued:While sentencing the convicted person along with the substantive sentence prescribed, there should also be a fine that has to be imposed. This is mandatory and distinct from the compensation liable to be imposed and paid under Section 357 of the Criminal Procedure Code, which arises only in the context of a sentence where fine is not mandatory. The decision of the Supreme Court in Union of India v. Sriharan specifically found that the power conferred to specify the period of imprisonment beyond that provided for commutation/remission in Swami Shraddananda v. State of Karnataka is one specifically conferred on the Constitutional Courts and not on the Sessions Courts. Therefore, Sessions courts cannot specify the period of imprisonment for life as 14 years.The Supreme Court in Sharad Hiru Kolambe v. State of Maharashtra held that the default sentence would be in addition to the substantive sentence. It was also held that the default sentences cannot run concurrently relying on V.K Bansal v. State of Haryana since then the imposition of fine under each charge for which the accused has been found guilty would be rendered futile. Therefore, trial courts cannot direct that on failure to pay compensation, the default sentence will run first before the commencement of the substantive sentence of life imprisonment imposed for the offence.Section 357(2) provides that when a fine is imposed in a case in which an appeal is provided, the payment shall not be made before the period for presenting an appeal has elapsed and in the event of an appeal presented, not before the decision in the appeal. Therefore, trial courts shall not ask the accused to pay the compensation forthwith.Defects in the trial court's decision that led to the issuance of the guidelines:The Sessions Judge did not deem it fit to impose a fine under S.302. The punishment for murder is death or imprisonment for life and liability to fine. There is no discretion on the Judge not to impose the fine. The Judge has ordered compensation under S.357, which provision as available under S.357(1) Cr.P.C. is by applying the fine imposed in payment of compensation, to any person for any loss or injury caused by the offence under S.357(1)(b), (c) & (d). The Sessions Judge could not have specified the period of imprisonment for life as 14 years, since that period is applied only in commutation of sentence by the Government under S.433(b) of Cr.P.C. The Sessions Court directed that the accused will be liable to undergo the default sentence before the substantive sentence if the compensation is not paid forthwith. This direction to suffer the default sentence before the substantive sentence is unusual and irregular and compensation cannot be demanded to be paid immediately after conviction. Background:The Court was adjudicating upon a criminal appeal challenging the accused's conviction by a lower court. According to the prosecution, during a wedding eve party in 2006, the accused and the deceased engaged in a scuffle. Later that day, the accused is said to have beaten the deceased with a wooden stick while he was asleep, grievously injuring him and resulting in his death after four days.The trial court convicted the accused and sentenced him to life imprisonment under Section 302 of IPC, and specified it to be not less than 14 years. There was a further direction to pay compensation under Section 357 of CrPC of ₹1 lakh and in default, to undergo simple imprisonment for five years.It was directed that the accused will be liable to undergo the default sentence before the substantive sentence if the compensation is not paid forthwith.Advocates Pranoy K Kottaram and George Mathews appeared for the appellant. Public Prosecutor Sreejith V.S appeared for the State in the appeal. Upon finding the said defects, the Division Bench disagreed with the finding of the trial court and held that there was every reason to discredit the witnesses since the suppression practised by them was not 'satisfactorily explained'.Similarly, upon analysis of the entire prosecution evidence, the Court observed that it was not convinced of the guilt of the accused unequivocally and unerringly."The direct evidence led by the prosecution including the eye-witness testimony, in the overall circumstance of the case and the delay in registering a complaint restrains us from attaching any credence to such testimonies. The history of the occurrence spoken of by the witnesses at the hospitals is contrary to what they stated later. The inconsistencies pointed out in the version of the witnesses also...

Kerala High Court Issues Directions To Be Followed By Trial Courts While Sentencing

Hannah M Varghese

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