Guidelines to be followed during sentencing by trial court; Kerala High Court issues directions

The Kerala High Court recently issued a number of directions regarding sentencing by lower courts while setting aside the conviction of accused in a murder case punishable under section 302 of IPC.

A Division Bench of Justices K Vinod Chandran and C Jayachandran while allowing the criminal appeal, set aside the conviction and sentence imposed by a Sessions Judge for the offence of murder punishable under Section 302 of the IPC.

The Bench observed that, “one irregularity insofar as the sentencing is concerned. When we have set aside the conviction; the issue on sentencing may not be relevant, but we deem it appropriate to speak on it to serve as a guideline for the Lower Courts.”

According to the prosecution case on an evening in January 2006, while a wedding eve party was going on, there ensued two scuffles between the accused and the deceased; that later led to the accused beating the asleep deceased with a wooden stick, grievously injuring him and resulting in his death after four days.

The trial court had convicted the accused and sentenced him to life imprisonment under Section 302 of the Indian Penal Code, which was specified to be not less than 14 years. There was a further direction to pay compensation under Section 357 of the Code of Criminal Procedure of ₹1 lakh and in default, to undergo simple imprisonment for five years.

It was also directed that the accused would be liable to undergo the default sentence before the substantive sentence, if the compensation was not paid forthwith.

Taking into account the factual matrix of the case, the bench disagreed with the finding of the trial court that there was no reason to discredit the witnesses, especially for reason of the suppression practiced by them was not satisfactorily explained.

"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 enhances the doubts we entertain. There is also no scientific evidence available connecting the accused to the crime", the bench noted.

The bench passed the following directions -

1. 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, 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 Section 433(b) of CrPC.
2. The direction of the trial court that the default sentence on failure to pay compensation is to run first before the commencement of the substantive sentence of imprisonment for life imposed for the offence, is highly irregular. 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 VK 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.
3. The direction to pay compensation immediately runs contrary to statutory provisions. Sub-section (2) of S. 357 provides that when 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.

[Case title - Devarajan v State of Kerala]