JITENDRA @ KALLAversusSTATE OF GOVT. OF NCT OF DELHI

622                      [2018]REPORTS
               SUPREME COURT   12 S.C.R. 622                [2018] 12 S.C.R.


A                            JITENDRA @ KALLA
                                         v.
                    STATE OF GOVT. OF NCT OF DELHI
                     (Criminal Appeal No. 2133 of 2017 etc.)
B                              OCTOBER 25, 2018
                [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
             Sentence/Sentencing: Trial of the appellant-accused for
      offence under two FIRs – Trial court convicted the accused – In
      both the cases sentence of rigorous life imprisonment was imposed –
C
      In respect of the first case trial court directed that the accused would
      not be considered for grant of remission till he underwent the actual
      sentence of 30 years – In respect of the second case trial court
      directed that the life sentence would start after the life sentence in
      first case was over and was to continue for the rest of the life of the
D     accused – In High Court counsel for the accused stated that it did
      not intend to challenge the findings on conviction and confined the
      challenge to the sentence – High Court discussing the evidence
      found that the accused was rightly convicted – In respect of life
      sentences in the two cases High Court held that the sentences could
      not run consecutively in view of s. 427(2) of Cr.P.C. – Applying the
E
      principle of “just deserts” High Court reduced the sentence to the
      period already undergone i.e. 16 years and 10 months and directed
      to release the accused forthwith – High Court thereafter, corrected
      its judgment by deleting the portion, whereby it had reduced the
      sentence to the period already undergone and had directed release
F     of the accused, as a typographical mistake – In appeal, accused
      challenged the modification order regarding the sentence and also
      challenged the conviction – Plea of accused that the statement of
      the counsel for the accused before High Court for not pressing
      challenge to his conviction, was made without such instruction from
      the accused – Held: Court records show that statement was made
G
      by the counsel on the instruction from the accused – However,
      notwithstanding such statement High Court had considered the
      matter on merit and held that conviction order by trial court was
      justified – The alteration of the punishment to the period already
      undergone, was not a typographical mistake – Therefore
H
                                        622
JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                      623


modification of its order by the High Court was beyond its              A
jurisdiction – In view of s. 427 of Cr.P.C. order of consecutive
sentences could not have been passed – However, High Court was
not correct in removing the cap of 30 years – Thus, conviction is
upheld; the life sentences would run concurrently and the accused
would not have a right to seek remission till the completion of 30
                                                                        B
years of RI – Code of the Criminal Procedure, 1973 – ss. 31 and
427.
      Remission of Sentence – Discussed.
      Code of Criminal Procedure, 1973: s. 427 – Life sentences –
Held: Cannot be given consecutively – They shall run concurrently –     C
Sentence/Sentencing.
      Dismissing the appeals filed by the accused and partly
allowing those filed by the complainants and the State, the Court
      HELD: 1.1 It is not correct that Counsel for the appellant
had made a statement before the High Court without instructions         D
from the appellant. The High Court records “that the appellant
does not press the appeal on merits with respect to the judgment
of conviction” and specifically states that the statement is made
‘on instructions’ in this behalf. It is clear from the above that the
counsel for the appellant had received the instructions not to          E
press the case on merits. After the judgment was pronounced,
at no stage, the appellant took the objection that the aforesaid
statement was made without instructions. It is stated for the first
time in the present appeals. 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,         F
seeking correction of that order. It was not done. Therefore, the
Court has to proceed on the premise that the counsel for the
appellant had made the aforesaid statement on instructions from
the appellant. [Para 20] [636-D-H]
      Muthuramalingam and others v. State represented by                G
      Inspector of Police (2016) 8 SCC 313 : [2016] 5 SCR
      30 – followed.
      State of Maharashtra v. Shrinivas Nayak and Another
      (1982) 2 SCC 463 : [1983] 1 SCR 8 – relied on.
                                                                        H
624            SUPREME COURT REPORTS                     [2018] 12 S.C.R.


A           Jeetu @ Jitendra and Others v. State of Chhattisgarh
            (2013) 11 SCC 489 : [2012] 13 SCR 161 – referred to.
            1.2 Notwithstanding, the said statement, discussion ensued
      on merits. The High Court has taken note of the witnesses who
      were examined by the prosecution to prove its charges in both
B     the cases. The High Court has also taken note of MLC report
      which was duly proved by the prosecution. It has also gone
      through the testimony of FSL Expert (Ballistic Expert).
      Deposition of the police officials who played their part at different
      stages including investigation has also been taken note of. The
      testimony of certain other official witnesses is also kept in mind
C     by the High Court with specific reference thereto. On the basis
      of such discussions, the High Court held that “the trial court
      based on the testimonies of various witnesses including
      eyewitness and based on the scientific evidence rightly convicted
      the appellant under Section 302 of the Indian Penal Code.” [Para
D     21] [637-A-B, E-F]
            2. The 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 stretch of imagination it can
      be treated as typographical error. When the judgment dated
E     December 24, 2016 is read in its entirety on the issue of
      sentencing, it becomes apparent that the High Court, in its
      wisdom, thought it proper to modify the order of sentence to the
      period already undergone. [Para 23] [637-G-H]
             3.1 In the first charge sheet in respect of 1st offence the
F     trial court, while imposing sentence of life imprisonment, put a
      cap of 30 years thereby clearly stating that no remission would
      be permissible before that. 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. Thus the trial court awarded
G     consecutive sentences. Both the cases were tried together.
      Conviction was recorded by one common judgment. Likewise
      sentences were also recorded by one common order. In this
      backdrop, the High Court has correctly come to conclusion that
      there was no question of giving consecutive sentences and
H     sentences had to be concurrent. The High Court also specifically
JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                    625


referred to Section 427 of CrPC., whereby “ When a person already     A
undergoing a sentence of 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.” [Paras 28-29] [639-
C-E, F-G]
                                                                      B
       3.2 Remissions are of two types. One type of remission is
what is earned by a prisoner under the Prison Rules or other
relevant rules. The other remission is by the appropriate
Government in exercise of its power under Section 432 of the
Criminal Procedure Code. Therefore, when a remission of the
substantive sentence is granted under Section 432, then and then      C
only giving credit to the earned remission can take place and not
otherwise. Similarly, in the case of a life imprisonment, meaning
thereby the entirety of one’s life, unless there is a commutation
of such sentence for any specific period, there would be no scope
to count the earned remission. The special category of sentence,      D
to be considered in substitute of death penalty by imposing a life
sentence i.e. the entirety of the life or a term of imprisonment
which can be less than full life term but more than 14 years is
beyond application of remission. Section 31 of Cr.P.C. be so
interpreted as to prevent any anomaly or irrationality. So
interpreted Section 31(1) CrPC must mean that sentences               E
awarded by the court for several offences committed by the
prisoner shall run consecutively (unless the court directs
otherwise) except where such sentences include imprisonment
for life which can and must run concurrently. If more than one life
sentences are awarded to the prisoner, the same would get             F
superimposed over each other. This will imply that in case the
prisoner is granted the benefit of any remission or commutation
qua one such sentence, the benefit of such remission would not
ipso facto extend to the other.” Thus, the order of the High Court
removing the cap of 30 years is not correct and that portion has
to be set aside. [Paras 30 and 31] [639-H; 640-A-D; 641-A-B]          G

      Union of India v. V. Sriharan @ Murugan & Ors. (2016)
      7 SCC 1 : 2015 (13) SCALE; Muthuramalingam and
      others v. State represented by Inspector of Police (2016)
      8 SCC 313 : [2016] 5 SCR 30 – followed.
                                                                      H
626           SUPREME COURT REPORTS                    [2018] 12 S.C.R.


A           4. The conviction of the appellant is sustained. However,
      sentences in both the cases shall run concurrently. The net effect
      thereof would be that the appellant is given life imprisonment in
      both the cases with the condition that he will have no right to
      seek remission till the completion of 30 years of rigorous
      imprisonment. [Para 33] [641-F-G]
B
           Swamy Shraddananda (I) v. State of Karnataka (2007)
           12 SCC 288 : [2007] 7 SCR 616; Swamy
           Shraddananda (II) v. State of Karnataka (2008) 13
           SCC 767 : [2008] 11 SCR 93; Shri Bhagwan v. State of
           Rajasthan (2016) 6 SCC 296; Union of India v. V.
C          Sriharan @ Murugan & Ors. (2016) 7 SCC 1 : 2015
           (13) SCALE; Birju v. State of M.P. (2014) 3 SCC 421 :
           [2014] 1 SCR 1047; Sumer Singh v. Surajbhan Sing
           and Ors. [2014 (3) JCC 2282]; State of M.P. v. Babulal
           AIR 2008 SC 582 : [2007] 12 SCR 795; Jameel v.
D          State of Uttar Pradesh (2010) 12 SCC 532 : [2009] 15
           SCR 712; Gopal Singh v. State of Uttarakhand 2013
           (2) SCALE 533; Dulla and Ors. v. State AIR 1958 All
           198 – referred to.
                            Case Law Reference
E     [2007] 7 SCR 616                 referred to       Para 7
      [2008] 11 SCR 93                 referred to       Para 7
      (2016) 6 SCC 296                 referred to       Para 7
      (2016) 7 SCC 1                   referred to       Para 7
F
                                       followed          Para 30
      [2014] 1 SCR 1047                referred to       Para 7
      2014 (3) JCC 2282]               referred to       Para 7
      [2007] 12 SCR 795                referred to       Para 8
G
      [2009] 15 SCR 712                referred to       Para 8
      2013 (2) SCALE 533               referred to       Para 8
      AIR 1958 All 198                 referred to       Para 8
      [2012] 13 SCR 161                referred to       Para 15
H
JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                               627


[1983] 1 SCR 8                         relied on            Para 19              A
[2016] 5 SCR 30                        followed             Paras 19, 31
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2133 of 2017
      From the Judgment and Order dated 24.12.2016 of the High Court             B
of Delhi at New Delhi in Criminal Appeal No. 966 of 2013.
                                   WITH
       Criminal Appeal Nos. 2135-2136, 2134, 2139, 2137-2138 of 2017.
      A. N. S. Nadkarni, ASG, Ms. Vibha Dutt Makhija, Sanjay R.
                                                                                 C
Hegde, Ms. Kiran Suri, Sr. Advs., Manish Kumar, Piyush Kaushik, Amit
Kumar, Nakul Jain, Y. Saratchand, Varun Kapur, Ms. Divya Roy, Prashant
Bhushan, A Rohen Singh, Randhir Kumar, Vivek Kumar, Naveen Kumar,
Kumar Mihir, Pranjal Kishore, Kumar Mihir, B. V. Balaram Das, A. K.
Srivastava, R. K. Verma, S. K. Pathak, B. Krishna Prasad, Advs. for
the appearing parties.                                                           D
       The Judgment of the Court was delivered by
       A. K. SIKRI, J. Criminal Appeal Nos. 2133 of 2017 and 2134 of
2017 are filed by Jitendra @ Kalla (hereinafter referred to as the
“appellant”) against whom two FIRs, namely, FIR No. 67 of 1999 under
Sections 302/307/34 of the Indian Penal Code (for short, “IPC”) and              E
FIR No. 68 of 1999 under Sections 120B/302, IPC were registered.
After investigation and filing of charge sheets in both the incidents, the
charges under aforesaid provisions were framed and trial took place.
The trial court convicted the appellant by a common judgment dated
July 01, 2013. Though we would take note of the facts, which are                 F
relevant for these appeals, in some detail hereinafter, it would be pertinent
to mention at this stage that as per the case of the prosecution the appellant
murdered one Anil Badana on March 10, 1999 in the marriage reception
of one, Vijay, within the area of Police Station Keshav Puram. Apart
from other persons, one, Sumit Nayyar, son of Kimti Lal Nayyar was
eyewitness to the said incident and had immediately informed the police          G
about the murder of Anil Badana by making PCR calls wherein he had
specifically named the appellant as a person who had committed the
crime. As per the prosecution, in order to liquidate this eyewitness also,
on the same night, intervening March 10 and 11, 1999, at around 12:30
am, the appellant went to the house of Sumit Nayyar in Mukherjee Nagar,          H
628             SUPREME COURT REPORTS                             [2018] 12 S.C.R.


A     Delhi and rang doorbell. Sumit’s father, Kimti Lal Nayyar came out to
      check as to who had rung doorbell of his house, someone fired upon
      with a gun and three bullets hit his body. The investigation revealed that
      it is the appellant who had shot dead Kimti Lal Nayyar as well. The two
      FIRs mentioned above pertain to these two incidents.
B             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
C     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
D     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
E     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.
F            3. Against these convictions, the appellant filed two appeals
      before the High Court which were decided by a common judgment dated
      December 24, 2016. During the arguments, the counsel for the appellant
      made a statement at the Bar to the effect that the appellant did not
      intend to press the challenge to the findings of conviction recorded by
G     the Trial Court and confined his submissions only to the sentencing part.
            4. Still, the High Court discussed the evidence which was
      produced by the prosecution in both the cases and remarked that the
      appellant was rightly convicted.
            5. Thereafter, the High Court went into the question of respective
H     sentences which are given in each of the cases by the trial court. The
    JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                                629
                      [A. K. SIKRI, J.]

argument of the counsel for the appellant challenging the sentence of                 A
life imprisonment, with the condition that the appellant would have to
undergo the actual sentence of 30 years without any remission and life
imprisonment in the second case to mean that it would be for the rest of
his life, was challenged by the learned counsel for the respondent.
       6. After taking note of reasons which were given by the trial                  B
court in awarding specific sentences in the two cases, the High Court
found that two broad issues arise for consideration which are as follows:
(i) The first issue which arose for consideration was whether the order
of the trial court that both the sentences are to run consecutively requires
interference or not”?                                                                 C
(ii) If the sentences are not to run consecutively, whether the order on
sentence in both the appeals requires interference?
        7. Insofar as issue no. (i) is concerned, the High Court referred
to the provisions of Section 427(2) of the CrPC on the basis of which it
concluded that it was not to run consecutively. Thereafter, the High                  D
Court adverted to the issue no. (ii) and in the process took note of various
judgments1, on the basis of which it concluded that the trial court exceeded
its jurisdiction in awarding the sentences in the aforesaid manner. The
discussion in this behalf is contained in para 52 of the judgment of the
High Court which reads as under:                                                      E
           “55. In view of the decision rendered by the five Judge Bench
           of the Supreme Court in the case of Union of India v. V. Sriharan
           @ Murugan and Ors. (supra), more particularly as held in
           paragraphs 103 and 104, we are of the view that the trial court
           exceeded its jurisdiction. Even otherwise, we are of the view              F
           that the trial court in this case has acted in utter haste by passing
           the order on sentence on the same day with a per-determined
           mind. Having regard to the gravity of the matter, the trial court
           should have allowed reasonable opportunity to the counsel for

1
    (i) Swamy Shraddananda (I) v. State of Karnataka [(2007) 12 SCC 288];
                                                                                      G
    (ii) Swamy Shraddananda (II) v. State of Karnataka [(2008) 13 SCC 767];
    (iii) Shri Bhagwan v. State of Rajasthan [(2016) 6 SCC 296];
    (iv) Union of India v. V. Sriharan @ Murugan & Ors. [(2016) 7 SCC 1 = 2015 (13)
          SCALE];
    (v) Birju v. State of M.P. [(2014) 3 SCC 421];
    (vi) Sumer Singh v. Surajbhan Sing and Ors. [2014 (3) JCC 2282]                   H
630                SUPREME COURT REPORTS                              [2018] 12 S.C.R.


A                the accused to address arguments on sentence. The trial court
                 has shown utter impatience and also incorrectly applied the law.
                 We may notice that the Full Bench of the Supreme Court in the
                 case of Union of India v. V. Sriharan @ Murugan and Ors.
                 (supra) held that the ratio laid down in the case of Swamy
                 Shraddananda (supra) with a very special category of sentence
B
                 instead of death for a terms exceeding 14 years and put that
                 category beyond application of remission is well-founded. We
                 have extracted above the aforegoing paragraph 92 in the case
                 of Swamy Shraddananda (II) v. State of Karnataka wherein the
                 Hon’ble Supreme Court discussed a situation where a sentence
C                may be excessive and duly harsh or may be highly
                 disproportionately inadequate. The Court may find that a case
                 falls short of the rarest of the rare category. But at the same
                 time, having regard to the nature of the crime, the court may
                 strongly feel that a sentence of life imprisonment that subject to
                 remission which normally works out to a term of 14 years may
D
                 be grossly disproportionate and inadequate. Faced with this
                 quandary with two alternates, i.e., either death or life of not more
                 than 14 years, the Court may be led to passing a death sentence.
                 The Court cautioned of such a prejudice and viewed such a
                 condition to be disastrous and held the Court would take recourse
E                to the expanded option.”
             8. Thereafter, the Court discussed the adequacy of sentence in
      the circumstances of the two cases in which the appellant had been
      convicted and went through various judgments2 of this Court.
             9. After taking note of the principles laid down in the judgments
F     taken note of by the High Court, the Court summed up the position as
      under:
                 “We believe that being a civilised society—a tooth for a tooth
                 and an eye for an eye ought not to be the criterion and as such
                 the question of there being acting under any haste in regard to
G                the life imprisonment would not arise; rather our jurisprudence
                 speaks of the factum of the law courts being slow in that direction
      2
          (i) State of M.P. v. Babulal [AIR 2008 SC 582];
          (ii) Jameel v. State of Uttar Pradesh; [(2010) 12 SCC 532]
          (iii) Gopal Singh v. State of Uttarakhand [2013 (2) SCALE 533]
          (iv) Dulla and Ors. v. State [AIR 1958 All 198]
H
JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                               631
                  [A. K. SIKRI, J.]

        and it is in that perspective a reasonable proportion has to be          A
        maintained between the heinousness of the crime and the
        punishment. While it is true, punishment disproportionately severe
        ought not to be passed but that does not even clothe the law
        courts, however, with an opinion to award the sentence which
        would be manifestly inadequate having due regard to the nature
                                                                                 B
        of offence since an inadequate sentence would not subserve the
        cause of justice to the society. The Courts would draw a balance-
        sheet of aggravating and mitigating circumstances. Both aspects
        have to be given their respective weightage. The Court has to
        strike a balance between the two and see towards which side
        the scale/balance of justice tilts. The principle of proportion          C
        between the crime and the punishment is the principle of “just
        deserts” that serves as the foundation of every criminal sentence
        that is justifiable. In other words, the “doctrine of proportionality”
        has a valuable application to the sentencing policy under the Indian
        Criminal Jurisprudence. Thus, the court will not only have to
                                                                                 D
        examine what is just but also as to what the accused deserves
        keeping in view the impact on the society at large.
        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         E
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,               F
following order was passed:
        “This matter has been listed today for directions. A typographical
        error was noticed post delivery this judgment dated 24.12.2016
        in the concluding portion. The error is rectified and the
        extraneous sentence, which crept in, is deleted.                         G
          “…..to the period already undergone by the appellant i.e. 16
          years and 10 month.”
          “…..The appellant be released forthwith, if not required in any
          other case…...”
                                                                                 H
632            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A             Mr. Sharma, learned counsel for the appellant, submits that he
              has no contact with the appellant.
              Let a copy of this order be sent to Superintendent Central Jail
              for appropriate action and DASTI be also given to the counsel
              for the parties, under the signatures of the Court Master.”
B             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
C     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.
D
             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.
E     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.
            13. In the aforesaid context, three questions have arisen for
F     consideration, which are as follows:
              (i) Whether the appellant has been rightly convicted for the
              offences mentioned in the two chargesheets? Here, the incidental
              question is as to whether the appellant can raise such a plea
              when it was not pressed before the High Court.
G
              (ii) Whether the order of the High Court modifying the sentences
              as awarded by the trial court is proper and justified?
              (iii) Whether the High Court could pass the ‘correction’ orders
              on February 14, 2017 on the ground that typographical error had
              been noticed in the main judgment dated December 24, 2016?
H
    JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                          633
                      [A. K. SIKRI, J.]

       14. Ms. Vibha Makhija, learned senior counsel appearing for the          A
appellant made a fervent plea to the effect that the manner in which this
case has progressed from the stage of trial till the High Court would
reflect that the appellant has been given a raw deal and his case has not
been properly dealt with either by the trial court or the High Court, insofar
as conviction of the appellant in the two cases is concerned. From the
                                                                                B
events that took place in the trial court, she laboured to demonstrate that
it depicted biased investigation and there was even judicial bias which
resulted in denial of fair trial. According to her, conviction was illegal
and even the sentences passed by the trial court were contrary to law.
According to her, the same mistake occurred at the High Court level as
the High Court took a shortcut by recording the concession of the counsel       C
for the appellant that insofar as conviction is concerned it was not pressed.
She also submitted that though the High Court, in the first instance, gave
a partial relief by reducing the sentence to the period already undergone
but thereafter committed a grave error in rectifying the said order which
was beyond its powers. Her submission was that the order of sentence
                                                                                D
already undergone could, by no imagination, be termed as “typographical
error” and on that pretext “corrected” by the High Court in such a manner,
unknown to the law. She also argued that even if the order dated
December 24, 2016 releasing the appellant after surrendering the
sentence already undergone was not correct in law, such an error could
be rectified only by a higher forum as the High Court had become                E
functus officio after delivering its judgment of December 24, 2016.
       On the basis of the aforesaid submissions, plea of the learned
senior counsel was that the matter should be remitted back to the High
Court for fresh consideration on merits, i.e., on the issue of conviction as
well as on the sentence, if the conviction is sustained by the High Court       F
on fresh consideration.
       15. In an attempt to commend this Court to accept the aforesaid
approach, Ms. Makhija made submissions at two levels. In the first
instance, it was argued that even if the counsel for the appellant had
made a statement that she was not pressing the case insofar as conviction
is concerned, such a concessions should not have been accepted by the           G
Court and it was the bounden duty of the court to decide the case on
merits. In support of this submission, she referred to the judgment of
this Court in Jeetu @ Jitendra and Others v. State of Chhattisgarh3,
relevant portion thereof is reproduced hereunder:
3
    (2013) 11 SCC 489                                                           H
634            SUPREME COURT REPORTS                            [2018] 12 S.C.R.


A             “23. At this juncture, we are obliged to state that when a
              convicted person prefers an appeal, he has the legitimate
              expectation to be dealt with by the courts in accordance with
              law. That apart, he has intrinsic faith in the criminal justice
              dispensation system and it is the sacred duty of the adjudicatory
              system to remain alive to the said faith. He has embedded trust
B
              in his counsel that he shall put forth his case to the best of his
              ability assailing the conviction and to do full justice to the case.
              That apart, a counsel is expected to assist the courts in reaching
              a correct conclusion. Therefore, it is the obligation of the court
              to decide the appeal on merits and not accept the concession
C             and proceed to deal with the sentence, for the said mode and
              method defeats the fundamental purpose of the justice delivery
              system. We are compelled to note here that we have come
              across many cases where the High Courts, after recording the
              non-challenge to the conviction, have proceeded to dwell upon
              the proportionality of the quantum of sentence. We may clearly
D
              state that the same being impermissible in law should not be
              taken resort to. It should be borne in mind that a convict who has
              been imposed substantive sentence is deprived of his liberty, the
              stem of life that should not ordinarily be stenosed, and hence, it
              is the duty of the Court to see that the cause of justice is subserved
E             with serenity in accordance with the established principles of
              law.
            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.
F            17. At second level, the learned senior advocate tried to submit
      that there were various circumstances in the case which would reflect
      that it was an arguable case on merits and, therefore, there was no
      question of giving up the issue of conviction. In this behalf, she flagged
      the aspects of improper motive, inimical eyewitnesses, contradiction in
G     the testimony of those witnesses, non-examination of independent
      witnesses even when the murder of Anil Badana took place in a marriage
      function where so many persons were present, father of the groom had
      turned hostile, recoveries which were made were illegal, forensic
      examination was conducted after much delay and circumstances of
      second murder were also suspicious. Her passionate plea was that had
H
JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                           635
                  [A. K. SIKRI, J.]

chance been given to the appellant, there could have been detailed           A
arguments on these aspects, with a possibility of favourable verdict for
the appellant.
       18. Mr. A.N.S. Nadkarni, learned Additional Solicitor General as
well as Ms. Kiran Suri, learned Senior Advocate appearing for the State
strongly refuted the aforesaid submissions. They submitted that during       B
the arguments before the High Court when it was found that the appellant
had no case on merits, his counsel pleaded only on sentencing. It was
also argued that statement of the counsel is specifically recorded in para
6 of the High Court judgment and the sanctity of the court record has to
be maintained which cannot be questioned by approaching the higher
forum. It was emphasised that inspite of this statement, the High Court      C
had, in fact, gone into the evidence and satisfied its conscience to the
effect that the trial court had come to a right conclusion about the
conviction of the appellant. In this backdrop, the judgment cited by the
appellant was not applicable. They also briefly touched the merits of the
case in the context of replying to the arguments of the learned counsel      D
for the appellant and submitted that the issues flagged now on which the
learned senior counsel for the appellant wanted to argue, do not even
arise from the record. It was contended that nothing of the nature was
even put to the prosecution witnesses and an attempt to find the alleged
loopholes in the prosecution case was made for the first time before this
Court. Insofar as sentence given by the trial court is concerned, it was     E
argued that the trial court was perfectly justified in putting a cap of 30
years’ rigorous imprisonment before the request for remission can be
granted referring to the Constitution Bench judgment of this Court in
Sriharan @ Murugan (supra).
       19. Mr. Sanjay R. Hegde, learned senior counsel who appeared          F
for the complainant in one case and Mr. Prashant Bhushan, Advocate
who appeared for complainant in other case, supported the aforesaid
submissions of the State. It was additionally argued that even if the
‘correction’ order dated February 14, 2017 was wrong, since the appeals
were preferred against the main judgment dated December 24, 2016,            G
this Court could always go into the issue as to whether modification of
sentence carried out by the High Court was proper or not.
      On the aspect that the statement contained in para 6 of the
judgment of the High Court could not be questioned by the appellant,
Mr. Hegde referred to the judgment of this Court in State of Maharashtra     H
636               SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A     v. Shrinivas Nayak and Another4. He also relied upon the judgment in
      Muthuramalingam and others v. State represented by Inspector of
      Police 5
             20. Having noted the submissions of the counsel for the parties,
      we proceed to discuss three questions formulated above. Insofar as
B     question No. 1 is concerned, the contention of Ms. Makhija that counsel
      for the appellant had made a statement before the High Court without
      instructions from the appellant cannot be accepted. We may reproduce
      paragraph 6 of the High Court judgment which states to the contrary. It
      reads as under:
C                “6. At the outset, learned counsel for the appellant on instructions
                 has submitted that the appellant does not press the appeals on
                 merits with respect to the judgment on conviction but has laid
                 challenge to the order on sentence passed in both the appeals.”
             It records “that the appellant does not press the appeal on merits
D     with respect to the judgment of conviction” and specifically states that
      the statement is made ‘on instructions’ in this behalf. It is clear from the
      above that the counsel for the appellant had received the instructions not
      to press the case on merits. After the judgment was pronounced, at no
      stage, the appellant took the objection that the aforesaid statement was
      made without instructions. It is stated for the first time in these appeals
E     and the special leave petitions were filed in March, 2017, only after the
      High Court had passed orders dated February 14, 2017 “correcting”
      earlier order dated December 24, 2016 by terming it as typographical
      error. It is argued by the appellant that since the order of sentence
      passed in the judgment dated December 24, 2016 went in his favour, he
F     was not bothered about the aforesaid statement of his counsel. 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
G     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.
      4
          (1982) 2 SCC 463
H     5
          (2016) 8 SCC 313
JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                             637
                  [A. K. SIKRI, J.]

       21. Notwithstanding, the said statement, it was necessary for the       A
High Court to still go through the record to satisfy as to whether the
conviction is properly recorded. We find that this exercise has in fact
been duly undertaken by the High Court. After recording the statement
in para 6, discussion ensued on merits from paragraph 7 onwards. The
High Court has taken note of the witnesses who were examined by the
                                                                               B
prosecution to prove its charges in both the cases. It has mentioned that
the prosecution based on the testimony of eyewitnesses thereafter brief
description of the depositions of these witnesses have been recorded by
the High Court. The High Court has also taken note of MLC report
which was duly proved by the prosecution. It has also gone through the
testimony of FSL Expert (Ballistic Expert). Deposition of the police           C
officials who played their part at different stages including investigation
has also been taken note of. The testimony of certain other official
witnesses is also kept in mind by the High Court with specific reference
thereto. On the basis of such discussions, the High Court has made the
following observations qua each of these cases:-
                                                                               D
        “22.Based on the testimonies of these witnesses, the trial court
        held the appellant to be guilty. Although the counsel for the
        appellant had submitted that he does not challenge the judgment
        on conviction yet we have carefully examined the testimonies of
        these witnesses and, in our view, the trial court has correctly
        held the appellant to be guilty.                                       E

        29. In our view, the trial court based on the testimonies of various
        witnesses including eyewitness and based on the scientific
        evidence rightly convicted the appellant under Section 302 of
        the Indian Penal Code.”
                                                                               F
        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,          G
2016 does not stand judicial scrutiny, inasmuch as, by no stretch of
imagination it can be treated as typographical error. When the judgment
dated December 24, 2016 is read in its entirety on the issue of sentencing,
a brief narration whereof has already been given above, it becomes
apparent that the High Court, in its wisdom, thought it proper to modify
the order of sentence to the period already undergone. As pointed out          H
638             SUPREME COURT REPORTS                           [2018] 12 S.C.R.


A     above, the High Court took note of various judgments including of the
      Supreme Court. Thereafter in paragraph 61, it made categorical
      averments that in a civilised society, a tooth for a tooth ad an eye for an
      eye ought not to be the criterion in awarding the sentence. It also observed
      that the Court was required to pass a sentence which is neither
      dispassionately severe nor manifestly inadequate. For this purpose, it is
B
      required to give due regard to the nature of offence and draw a balance-
      sheet of aggravating and mitigating circumstances. After this discussion,
      the Court modified the order of sentence in the following manner:
              “62. In the contextual facts, on considering the aforesaid principles
              and having regard to the nature of the offence and the
C             methodology adopted, we are convinced that the power to impose
              a modified punishment providing for any specific term of
              incarceration or till the end of the convict’s life as an alternate to
              death penalty, can be exercised depending on the facts of the
              case. Further, the punishment awarded to the appellant herein is
D             in excess of the requirement of the situation and as such the
              mitigating facts put forth by the learned counsel for the appellant
              are meant to invite mercy on the appellant. We are of the
              considered view that to meet the ends of justice, the cap of 30
              years must be removed. Hence, we modify the order on sentence
              to the period already undergone by the appellant, i.e, 16 years
E             and 10 months.”
             24. It does not need further elaboration to hold that the last
      sentence in the aforesaid paragraph by which the Court modified the
      punishment to the period already undergone, i.e., 16 years and 10 months
      was not a typographical error.
F            25. 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
G     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.
H
JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                              639
                  [A. K. SIKRI, J.]

That exercise is precisely done by this Court by setting aside that part of     A
the order.
     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           B
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,   C
put a cap of 30 years thereby clearly stating that no remission would be
permissible before that. 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                D
sentences.
       29. Both the cases were tried together. Conviction was recorded
by one common judgment. Likewise sentences were also recorded by
one common order. In this backdrop, the High Court has correctly come
to conclusion that there was no question of giving consecutive sentences
                                                                                E
and sentences had to be concurrent. For coming to this conclusion various
judgments on the point were noted. The High Court also specifically
referred to Section 427 of CrPC. relevant portion whereof reads as
under:
        “S. 427 : (1) xxx         xxx     xxx
                                                                                F
        (2) When a person already undergoing a sentence of
        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.”
       30. We now advert to the issue of 30 years’ cap while awarding
life conviction. This aspect is now conclusively determined by a                G
Constitution Bench judgment of this Court in Sriharan @ Murugam
(Supra) wherein this Court held as under:
        “62. As far as remissions are concerned, it consists of two types.
        One type of remission is what is earned by a prisoner under the
                                                                                H
640            SUPREME COURT REPORTS                         [2018] 12 S.C.R.


A            Prison Rules or other relevant rules based on his/her good
             behaviour or such other stipulations prescribed therein. The other
             remission is the grant of it by the appropriate Government in
             exercise of its power under Section 432 of the Criminal Procedure
             Code. Therefore, in the latter case when a remission of the
             substantive sentence is granted under Section 432, then and then
B
             only giving credit to the earned remission can take place and not
             otherwise. Similarly, in the case of a life imprisonment, meaning
             thereby the entirety of one’s life, unless there is a commutation
             of such sentence for any specific period, there would be no scope
             to count the earned remission. In either case, it will again depend
C            upon an answer to the second part of the first question based on
             the principles laid down in Swamy Shraddananda (2) v. State
             of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113
             63. With that when we come to the second part of the first question
             which pertains to the special category of sentence to be
D            considered in substitute of death penalty by imposing a life
             sentence i.e. the entirety of the life or a term of imprisonment
             which can be less than full life term but more than 14 years and
             put that category beyond application of remission which has been
             propounded in paras 91 and 92 of Swamy Shraddananda
             (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC
E            (Cri) 113 and has come to stay as on this date.”
            31. Judgement by the Constitution Bench in Muthuramalingam
      (Supra) deals with this aspect very clearly, in the following words:
             “23. Parliament, it manifests from the provisions of Section 427(2)
F            CrPC, was fully cognizant of the anomaly that would arise if a
             prisoner condemned to undergo life imprisonment is directed to
             do so twice over. It has, therefore, carved out an exception to
             the general rule to clearly recognise that in the case of life
             sentences for two distinct offences separately tried and held
             proved the sentences cannot be directed to run consecutively.
G            The provisions of Section 427(2) CrPC apart, in Ranjit Singh
             case [Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC 304 :
             1991 SCC (Cri) 965] , this Court has in terms held that since life
             sentence implies imprisonment for the remainder of the life of
             the convict, consecutive life sentences cannot be awarded as
H            humans have only one life. That logic, in our view, must extend
 JITENDRA @ KALLA v. STATE OF GOVT. OF NCT OF DELHI                              641
                   [A. K. SIKRI, J.]

         to Section 31 CrPC also no matter Section 31 does not in terms          A
         make a provision analogous to Section 427(2) of the Code. The
         provision must, in our opinion, be so interpreted as to prevent
         any anomaly or irrationality. So interpreted Section 31(1) CrPC
         must mean that sentences awarded by the court for several
         offences committed by the prisoner shall run consecutively (unless
                                                                                 B
         the court directs otherwise) except where such sentences include
         imprisonment for life which can and must run concurrently. We
         are also inclined to hold that if more than one life sentences are
         awarded to the prisoner, the same would get superimposed over
         each other. This will imply that in case the prisoner is granted
         the benefit of any remission or commutation qua one such                C
         sentence, the benefit of such remission would not ipso facto
         extend to the other.”
      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            D
as under:
         (a) Order dated February 14, 2017 is set aside.
         (b) Insofar as judgment dated December 24, 2016 is concerned,
         the modification of sentence as carried out by the High Court is        E
         set aside meaning thereby the life sentence with 30 years’ cap
         without remission was awarded by the trial court is upheld.
         Further, direction of the High Court in modifying the sentence to
         the one already undergone is also set aside.
         (c) Rest of the judgment dated December 24, 2016 of the High            F
         Court is upheld. Effect thereof is that the conviction of the
         appellant is sustained. However, sentences in both the cases
         shall run concurrently. The net effect thereof would be that the
         appellant is given life imprisonment in both the cases with the
         condition that he will have no right to seek remission till the
         completion of 30 years of rigorous imprisonment.                        G
      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.
Kalpana K. Tripathy                                       Appeals disposed of.
                                                                                 H