Kerala High Court issues guidelines to be followed by trial courts on sentencing [Read Judgment]

While setting aside the conviction in a murder case, the Kerala High Court recently issued a slew of directions regarding sentencing by lower courts. [Devarajan v State of Kerala].A Division Bench of Justices K Vinod Chandran and C Jayachandran allowed a criminal appeal, setting aside the conviction and sentence imposed by a Sessions Judge for the offence of murder punishable under Section 302 of the Indian Penal Code.The Bench noticed certain inconguirties in the sentencing, and issued the following guidelines to be followed by trial courts in the future :While sentencing the convicted person along with substantive sentence prescribed, there should also be a fine which has to be imposed. This is mandatory and distinct from the compensation liable to be imposed and paid under Section 357 of Criminal Procedure Code, which arises only in the context of a sentence where fine is not mandatory. The Sessions Judge did not deem it fit to impose a fine under Section 302 of IPC but he had no discretion to not impose the fine. 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. 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 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. .The observations of the Court came in the judgement on a criminal appeal filed challenging the accused/petitioner's conviction by a lower court.The prosecution case was that 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 convicted the accused and sentenced him to life imprisonment under Section 302 of the Indian Penal Codem, 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 directed that the accused will be liable to undergo the default sentence before the substantive sentence, if the compensation is not paid forthwith..Considering the facts and circumstances of the case, the Court disagreed with the finding of the trial court that there is no reason to discredit the witnesses, especially for reason of the suppression practiced by them was not satisfactorily explained. The analysis of the entire evidence led by the prosecution failed to impress on the Court 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 enhances the doubts we entertain. There is also no scientific evidence available connecting the accused to the crime", the Court found.Therefore, it allowed the appeal and acquitted the accused.Advocates Pranoy K Kottaram and George Mathews appeared for the appellant. Public Prosecutor Sreejith VS appeared for the State..[Read Judgment]