# Shamsher Ali v. State of U.P

- **Citation:** (2024) 4 ILRA 1103
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-09
- **Case number:** Criminal Appeal No. 218 of 2024
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamsher-ali-v-state-of-u-p-51774
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 31 - Indian
Penal Code, 1860 - Sections 363, 366 &
376 - Criminal Appeal Against Sentencing -
Concurrent vs. Consecutive Sentences - Single
Transaction Rule - Proviso to Section 31(2)
Cr.P.C. - Judicial Discretion in Sentencing.
The appellant, Shamsher Ali, challenged the
sentencing
part
of
the
judgment
dated
10.01.2014 by the Additional District and
Sessions Judge, Bhadohi, in S.T. No. 20 of 2011,
arising from Case Crime No. 325 of 2010 under
Sections 363, 366, 376 IPC, P.S. Gopiganj, Sant
Ravi Das Nagar, Bhadohi. The appellant was
convicted and sentenced to 7 years' rigorous
imprisonment each for kidnapping (Section 363
IPC) and abduction with intent (Section 366
IPC), and 10 years' rigorous imprisonment for
rape (Section 376 IPC), with the trial court silent
on
whether
the
sentences
would
run
concurrently or consecutively, resulting in a
potential aggregate of 24 years' imprisonment.
Held: The appeal was disposed of, modifying the
sentencing order, as: (1) the trial court's failure
to specify whether sentences should run
concurrently or consecutively violated the legal
obligation under Section 31(1) Cr.P.C., per
Nagaraja
Rao
Vs
Central
Bureau
of
Investigation, (2015) 4 SCC 302; (2) the
aggregate sentence of 24 years contravened the
proviso to Section 31(2) Cr.P.C., which limits
consecutive sentences to 14 years, per Chatar
Singh Vs St. of M.P., AIR 2007 SC 319; (3) the
offences under Sections 363 and 366 IPC
formed part of a single transaction, with Section
366 being a graver version of Section 363,
warranting concurrent sentences under the
single transaction rule, per Mohd. Akhtar
Hussain Vs Assistant Collector of Customs, 1998
AIR 2143, and O.M. Cherian Vs St. of Kerala,
AIR 2015 SC 303; (4) no facts justified
maximum punishment under Sections 363 and
366 IPC or consecutive sentences, indicating a
lack of judicious exercise of discretion; (5) the
appellant, having served 10 years, was entitled
to relief, as consecutive sentences were
disproportionate and lacked justification in the
trial court's judgment. The sentences for
Sections 363, 366, and 376 IPC were upheld but
ordered
to
run
concurrently,
ensuring
compliance
with
Section
31
Cr.P.C.
and
balancing reformatory, retributive, and deterrent
sentencing principles.

List of Cases cited:

## Text

4 All. Shamsher Ali Vs. State of U.P.
1103
interfere in the present appeal against the
judgment of acquittal.

13. Consequently, this appeal is
summarily rejected under Section 384 of
the Code of Criminal Procedure.
----------
(2024) 4 ILRA 1103
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Appeal No. 218 of 2024

Shamsher Ali ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Suresh Chandra Mishra, Sri Mohd. Akhtar, Sri
Ramesh Kumar Pandey, Ms. Sufia Bano, Sri Rajiv
Upadhyaya

Counsel for the Respondent:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 31 - Indian
Penal Code, 1860 - Sections 363, 366 &
376 - Criminal Appeal Against Sentencing -
Concurrent vs. Consecutive Sentences - Single
Transaction Rule - Proviso to Section 31(2)
Cr.P.C. - Judicial Discretion in Sentencing.
The appellant, Shamsher Ali, challenged the
sentencing
part
of
the
judgment
dated
10.01.2014 by the Additional District and
Sessions Judge, Bhadohi, in S.T. No. 20 of 2011,
arising from Case Crime No. 325 of 2010 under
Sections 363, 366, 376 IPC, P.S. Gopiganj, Sant
Ravi Das Nagar, Bhadohi. The appellant was
convicted and sentenced to 7 years' rigorous
imprisonment each for kidnapping (Section 363
IPC) and abduction with intent (Section 366
IPC), and 10 years' rigorous imprisonment for
rape (Section 376 IPC), with the trial court silent
on
whether
the
sentences
would
run
concurrently or consecutively, resulting in a
potential aggregate of 24 years' imprisonment.
Held: The appeal was disposed of, modifying the
sentencing order, as: (1) the trial court's failure
to specify whether sentences should run
concurrently or consecutively violated the legal
obligation under Section 31(1) Cr.P.C., per
Nagaraja
Rao
Vs
Central
Bureau
of
Investigation, (2015) 4 SCC 302; (2) the
aggregate sentence of 24 years contravened the
proviso to Section 31(2) Cr.P.C., which limits
consecutive sentences to 14 years, per Chatar
Singh Vs St. of M.P., AIR 2007 SC 319; (3) the
offences under Sections 363 and 366 IPC
formed part of a single transaction, with Section
366 being a graver version of Section 363,
warranting concurrent sentences under the
single transaction rule, per Mohd. Akhtar
Hussain Vs Assistant Collector of Customs, 1998
AIR 2143, and O.M. Cherian Vs St. of Kerala,
AIR 2015 SC 303; (4) no facts justified
maximum punishment under Sections 363 and
366 IPC or consecutive sentences, indicating a
lack of judicious exercise of discretion; (5) the
appellant, having served 10 years, was entitled
to relief, as consecutive sentences were
disproportionate and lacked justification in the
trial court's judgment. The sentences for
Sections 363, 366, and 376 IPC were upheld but
ordered
to
run
concurrently,
ensuring
compliance
with
Section
31
Cr.P.C.
and
balancing reformatory, retributive, and deterrent
sentencing principles.

List of Cases cited:

1. Mohd. Akhtar Hussain Vs Assistant Collector
of Customs, 1998 AIR 2143

2. Chatar Singh Vs St. of M.P., AIR 2007 SC 319

3. O.M. Cherian Vs St. of Kerala, AIR 2015 SC
303

4. Muthuramalingam Vs St., (2016) 8 SCC 313

5.
Nagaraja
Rao
Vs
Central
Bureau
of
Investigation, (2015) 4 SCC 302

6. Sunil Kumar Vs St. of U.P., Criminal Appeal
No. 526 of 2021, decided on 25.05.2021

7. Yogesh Kumar Vs St. of Punj., CRR No. 3415
of 2019, decided on 01.06.2022
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Suganthi Suresh Kumar Vs Jagdeeshan,
(2002) 2 SCC 420

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Rajiv Upadhyaya,
Advocate holding brief of Ms. Sufiya
Bano, learned counsel for the appellant and
Sri L.D.Rajbhar, learned A.G.A. for the
State.

2. This criminal appeal has been
preferred by the appellant challenging the
judgment and order dated 10.01.2014, passed
by Addl. District and Sessions Judge,
Bhadohi in S.T. No. 20 of 2011 (State Vs.
Shamsher Ali) arising out of Case Crime No.
325 of 2010 under section 363, 366, 376
I.P.C. P.S. Gopiganj, District- Sant Ravi Das
Nagar,
Bhadohi,
where
appellant
got
convicted under sections 363, 366 and 376
I.P.C. and sentenced for seven years rigorous
imprisonment each under sections 363 and
366 I.P.C. and for 10 years rigorous
imprisonment under section 376 I.P.C.

3. The submission in brief of the
appellant is that he has been awarded a
substantive sentence of 7 years for an
offence under section 363 I.P.C. and
another substantive sentence of 7 years for
an offence under section 366 I.P.C. and
further substantive sentence of 10 years for
the offence under section 376 I.P.C. The
trial court did not specify whether such
sentences
shall
run
concurrently
or
consecutively. Resultantly, he is facing
prospect of imprisonment of 24 years,
which is too rigorous and severe. The
sentencing part of the order of the trial
court is therefore flawed.

4. Learned A.G.A. submits that
section 31 Cr.P.C. provides that where
accused is convicted at one trial of two or
more offences and the trial court has not
provided
for
concurrent
running
of
sentences, it shall run consecutively i.e. one
after the other.

5. During the course of arguments
it is, however fairly admitted by the State
that section 31 Cr.P.C. is subject to
provisions of section 71 of I.P.C. and
further that the proviso to section 31 (2)
provides that in no case, shall such person
be sentenced to imprisonment for a longer
period than 14 years and that in this case,
the aggregate punishment is 24 years.

6. Several important issues arise in
this matter, first, whether the trial court can
afford to not to mention how the sentences
are to run, whether concurrently or
consecutively.
Secondly,
whether
the
failure to mention the same is ignorable in
view of the facts and circumstances of the
matter. Related with this issue is the point
that whether the court intended that the
sentences should run consecutively and if
so, whether or not such a presumption will
lead
to
disproportionate
period
of
imprisonment and against the provision of
law as contained in section 31 (2) proviso
(a).

7. The Hon'ble Apex Court in
Mohd. Akhtar Hussain Alias Ibrahim vs
Assistant Collector Of Customs 1998 AIR
2143, while allowing the appeal, observed
that the basic rule of thumb over the years
has been the so called principles of "single
transaction rule" for concurrent sentence.
The Court held as below:

"2(i) The enormity of the crime
committed by the accused is relevant for
measuring the sentence. But the maximum
sentence awarded in one case against the
4 All. Shamsher Ali Vs. State of U.P.
1105
same
accused
is
not
irrelevant
for
consideration while giving the consecutive
sentence in the second case although it is
grave. The court has to consider the totality
of the sentences which the accused has to
under go if the sentences are to be
consecutive. The totality principle has
been accepted as correct principle for
guidance. [753E.F]
2(ii)
The
broad
expanse
of
discretion left by legislation to sentencing
courts should not be narrowed only to the
seriousness of the offence. No single
consideration can definitively determine
the proper sentence. In arriving at an
appropriate sentence, the court must
consider, and some times reject, many
factors. The court must `recognise, learn
to control and exclude' many diverse
data."

8. The Hon'ble Apex Court in
Chatar Singh Vs. State of M.P. (AIR 2007
SC 319), in Criminal Appeal No. 623 of
2005 decided on 24.11.2006, had a case
before it in which the accused was
convicted for several offences and was
convicted
for
different
period
of
imprisonment which added up to 28 years,
if allowed to run consecutively. The Court
observed in the light of provisions of
section 31(2) proviso (a) as below:

" After making such a provision,
proviso (a) is added to this sub-section to
limit the aggregate of sentences which
such a court pass while making the
sentences consecutive. That is this proviso
has provided that in no case the aggregate
of consecutive sentences passed against an
accused shall exceed 14 years. In the
instant case the aggregate of the two
sentences passed against the appellant
being 28 years clearly infringes the above
proviso. It is accordingly not liable to be
sustained."
In view of the proviso appended to
Section 31 of the Criminal Procedure Code,
we are of the opinion that the High Court
committed a manifest error in sentencing
the appellant for 20 years' Rigorous
Imprisonment. The maximum sentence
imposable being 14 years and having
regard to the fact that the appellant is in
custody for more than 12 years. Now, we
are of the opinion that interest of justice
would be sub- served if the appellant is
directed to be sentenced to the period
already undergone."

9.

In
O.M.
Cherian
@
Thankachan Vs. State of Kerela and Ors,
AIR 2015 Supreme Court 303, decided on
11.11.2014, the Apex Court had a criminal
appeal before it against a judgment where
the trial court had ordered two years
rigorous imprisonment under section 498
I.P.C.
and
further
7
years
rigorous
imprisonment under sections 306 I.P.C. and
the substantive sentences were ordered to
run consecutively. The Supreme Court
observed in para 19, 20 and 21 as below:

"19. As pointed out earlier, Section
31
Cr.P.C.
deals
with
quantum
of
punishment which may be legally passed
when there is - (a) one trial and
(b) the accused is convicted of two
or more offences. Ambit of Section 31 is
wide, covering not only single transaction
constituting two or more offences but also
offences arising out of two or more
transactions. In the two judgments in
Mohd. Akhtar Hussain and Manoj (supra),
the issue that fell for consideration was the
imposition of sentence for two or more
offences
arising
out
of
the
single
transaction. It is in that context, in those
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
cases, this Court held that the sentences
shall run concurrently.
20. Under Section 31 Cr.P.C. it is
left to the full discretion of the Court to
order the sentences to run concurrently in
case of conviction for two or more offences. It
is difficult to lay down any straitjacket
approach in the matter of exercise of such
discretion by the courts. By and large, trial
courts and appellate courts have invoked and
exercised their discretion to issue directions
for
concurrent
running
of
sentences,
favouring the benefit to be given to the
accused. Whether a direction for concurrent
running of sentences ought to be issued in a
given case would depend upon the nature of
the offence or offences committed and the
facts and circumstances of the case. The
discretion has to be exercised along the
judicial lines and not mechanically.
21. Accordingly, we answer the
Reference by holding that Section 31 Cr.P.C.
leaves full discretion with the Court to order
sentences for two or more offences at one
trial to run concurrently, having regard to
the nature of offences and attendant
aggravating or mitigating circumstances. We
do not find any reason to hold that normal
rule is to order the sentence to be consecutive
and exception is to make the sentences
concurrent. Of course, if the Court does not
order the sentence to be concurrent, one
sentence may run after the other, in such
order as the Court may direct. We also do not
find any conflict in earlier judgment in
Mohd. Akhtar Hussain and Section 31
Cr.P.C."

10. The Supreme Court further
observed that normally the appellate court
do not interfere unless the discretion
exercised is arbitrary or unreasonable.

11. The Supreme Court in Sunil
Kumar @ Sudhir Kumar and Anr Vs.
State of U.P. in Criminal Appeal No. 526
of 2021 decided on 25.05.2021 had a
question on the point of sentence before it
wherein the convict having convicted under
sections 363, 366 376(1) I.P.C. had already
undergone 13 years and two months of
imprisonment and found that the decisions
were silent on the point of concurrent or
consecutive running of sentences and
therefore, the convict faced a prospect of
sentence of 22 years. In the above noted
case, the Apex Court referred to the
judgment given in Muthuramalingam &
Ors.
v.
State:
(2016)
8
SCC 313
(paragraph 28) and observed in para 11 as
below:

"11. For what has been provided in
Section
31(1)
CrPC
read
with
the
expositions of this Court, it follows that the
Court of first instance is under legal
obligation,
while
awarding
multiple
sentences, to specify in clear terms as to
whether they would run concurrently or
consecutively. In the case of Nagaraja Rao
(supra), this Court expounded on this legal
obligation upon the Court of first instance
in the following terms:-
"11.
The
expressions
"concurrently"
and
"consecutively"
mentioned in the Code are of immense
significance while awarding punishment
to the accused once he is found guilty of
any offence punishable under IPC or/and
of an offence punishable under any other
Special Act arising out of one trial or
more. It is for the reason that award of
former enure to the benefit of the accused
whereas award of latter is detrimental to
the accused's interest. It is therefore,
legally obligatory upon the court of first
instance while awarding sentence to
specify in clear terms in the order of
conviction
as
to whether
sentences
awarded to the accused would run
4 All. Shamsher Ali Vs. State of U.P.
1107
"concurrently"
or
they
would
run
"consecutively"."

12. The Apex Court further in
para 12 and 13 observed that the court
of of first instance ought not to leave the
matter of consecutive or concurrent
running of sentences for deduction at
latter stage and that there is yet another
obligation on the trial court that is to
state the order i.e. the sequence in which
the consecutive sentence ought to be
executed.

In
the
end
the Apex
Court
discussing about Nagaraja Rao v. Central
Bureau of Investigation (2015) 4 SCC
302, held in para 21 as below:

"21. While closing on the matter,
we deem it appropriate to reiterate what
was expounded in the case of Nagaraja
Rao (supra), that it is legally obligatory
upon the Court of first instance, while
awarding
multiple
punishments
of
imprisonment, to specify in clear terms as
to whether the sentences would run
concurrently or consecutively. It needs
hardly an emphasis that any omission to
carry out this obligation by the Court of
first instance causes unnecessary and
avoidable prejudice to the parties, be it the
accused or be it the prosecution."

13. While referring to a number of
judicial pronouncements in the matter of
sentence, the High Court in Yogesh Kumar
Vs. State of Punjab and Another, in CRR
No. 3415 of 2019 with connected matters
decided on 01.06.2022, has observed in
para-35 as below:

" 35. Thus, while applying the
aforesaid principles of law, it would also be
essential to balance the principle of
sentencing in a manner that would restore
faith
of
people
in
the
system
of
administration of criminal justice and that
the judicial process is not seen siding with
an accused. The sentence imposed must not
seem to be a flea-bite sentence, a phrase
aptly used by the Hon'ble Supreme Court in
the matter of "Suganthi Suresh Kumar
versus Jagdeeshan" reported as (2002) 2
Supreme Court Cases
420. The sentencing must not only
show
reformatory
and
reprimanding
aspect, but must also take the retributive
aspect into consideration. Where the
violator of law has displayed lack of bona
fide and his culpability stands duly
established, the Court has to keep in mind
that the sentence so imposed should not
appeared to be lenient or fail to display any
deterrent effect. It cannot be the object of
law or the philosophy behind imposing of
sentence that the same promotes violation
or makes a violator-convict believe that he
40 of 53 CRR No. 3415 OF 2019 (O&M) &
connected cases -41- may commit multiple
offences and thereafter seek concurrent
running of the sentences. A transaction in
the nature of issuance of multiple cheques
towards discharge of one single liability
has a potential of great misuse on either
sides and just as it may incite an accused to
swell his liability and to not pay the same
despite issuance of multiple cheques, at the
same time, there is immense possibility that
the creditor secures multiple cheques for
each installment and lodges different
complaints against default of each cheque
and claim consecutive running of sentences
in each of the said cases to seek
confinement of a defaulter in custody for an
indefinite period. The crucial test thus is
the similarity of the transaction and not the
quantum of the money involved. A Court is
thus required to maintain a fine balance by
imposing
a
sentence
so
that
the
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
reformatory,
retributive
and
deterrent
effects are balanced well. "

14. Now, coming to the instant case,
the appellant has confined his arguments on
the sentencing part only, submitting that the
accused has been convicted for an offence
under sections 363 and 366 I.P.C. both and
that that he has been sentenced for 7 years in
each one of them. It may be noted that
section 366 I.P.C. includes the ingredients of
section 363 I.P.C. Section 363 I.P.C. punishes
a person who kidnaps the victim from lawful
guardianship and the maximum punishment
provided in this section is seven years while
section 366 I.P.C. punishes a person who has
kidnapped or abducted a woman with certain
intent and in such case, the punishment
provided is 10 years. Section 366 I.P.C. is a
graver version of section 363 I.P.C.

15. There are no such facts or
circumstances mentioned in the judgment to
justify the award of maximum term of
punishment under sections 363 I.P.C. or 366
I.P.C. Definitely the court is vested with
power
to
award
maximum
term
of
punishment but that power is to be exercised
in a judicious manner.

16. Moreover, the section 363 and
366 I.P.C. pertains to one transaction only and
it does not appeal to reason that two separate
sentences be provided which should run
consecutively by default. The approach of the
court has not been judicious to that extent.
The accused has further been convicted for
offence under section 376 I.P.C. and
sentenced
to
10
years
of
rigorous
imprisonment. Incidently, it may be noted
that 10 years have already elapsed, a fact
which has been admitted by the State. Further
it may be noted that if all the sentences are
allowed to run consecutively, the proviso to
section 31 Cr.P.C. shall stand flouted.
17. I went through the judgment to
fathom the facts and circumstances and the
gravity of the matter which may justify the
running of consecutive sentences but found
none. In my opinion, the sentencing part of
the order is flawed on two counts, first that it
is against the provisions of section 31 Cr.P.C.
and that the learned trial court has overlooked
the legal obligation to expressly provide for
whether the sentences shall run concurrently
or consecutively.

18. In my opinion, the sentencing
part of the order needs to be suitably
modified in the manner as below:

19. The terms of imprisonment
awarded by the trial court for each one of the
offences i.e. section 363, 366 and 376 I.P.C.
are upheld and that all the sentences shall run
concurrently.

20. Accordingly this appeal is
disposed of.

21. A copy of the order shall be
immediately transmitted to the trial court
concerned for necessary action.
----------
(2024) 4 ILRA 1108
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE RAM MANOHAR NARAYN
MISHRA, J.

Criminal Appeal No. 573 of 1983
&
Criminal Appeal No. 705 of 1983

Ajai Kumar Gupta ...Appellant
Versus
State of U.P. ...Respondent