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SUKUMARAN NAIR V/S STATE OF KERALA , decided on Friday, November 11, 1988.
[ In the High Court of Kerala, Crl.R.P. No.134, 233 of 1988, Crl.R.C. No. 102 of 1988 . ] 11/11/1988
Advocate(s) : K.C. Stephen; C. Raghavan;
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  "1988 (2) KLT 1018 "  ==   "1988 (2) KLJ 789 "  

    Subject Index:Criminal P.C.1973 S.427 S.211 S.236 & S.248(3)     1. Petitioner in Crl. R.P. 134 of 1988 is the first accused in C.C. 150 of 1986 on the file of judicial Magistrate of First Class Kodungallur while petitioner in Crl. R.P. 233 of 1988 is the second accused therein. Petitioners challenge the conviction and sentence imposed on them. In Crl. R.C. 102 of 1988 the aforesaid petitioners were directed to show cause why the sentence imposed on them should not be enhanced.2. Courts below found petitioners guilty of offences under S.457 461 and 392 read with S.34 IPC on the charge that they in furtherance of their common intention committed lurking house trespass and robbery on the night of 29-12-1984. pw. 2-wife of pw. 1 was sleeping in her room with her sister-in-law. She woke up and switched on the light and saw the first accused standing near her bed with a dagger pointed at her. She would say that the second accused was also present armed with a dagger. A1 asked Pw2 to switch off the light and then she was taken to another room by both the accused. They removed her gold chain and ear studs putting her in fear of death. They took the keys opened an almirah and removed articles kept therein. Pursuant to information given by first accused a gold ingot was recovered. At an identification parade conducted by pw 6 Magistrate Pw2 identified both the accused. On this evidence Courts below found the charge.3. Learned counsel for petitioners submitted that the recovery would implicate only the first accused and that there was no evidence against the second accused. Both accused were identified by Pw2. Evidence of identification is unimpeachable. In these circumstances conviction was only proper. In revision this court will not sit as a third court on facts and re-appreciate evidence. Evidence will be considered to ascertain the propriety legality and correctness of the findings. I have been taken through the evidence in extenso and I am satisfied that the findings made on good evidence are not vitiated by illegality irregularity or impropriety to warrant interference in revision. Conviction is confirmed. Trial Magistrate directed the sentences imposed in the case to run consecutively. But he directed that the sentence will run concurrently with the sentence in C. C. 217 of 1986.4. The Sessions Judge directed consecutive sentences to be concurrent. The sentencing exercise by Courts below were made without due application of mind. It is brought to my notice that the first accused (Sukumaran) has twenty two convictions against him. Likewise second accused (Chellappan) has suffered ten convictions. I wonder whether the courts below were cognisant of these facts when they directed sentences to run concurrently. There is nothing to indicate that the Trial Magistrate was aware of the facts when he ordered concurrency. Not different appears to be the case with the Sessions Judge.5. S.427 of the Code directs that one sentence takes effect after the other. The sentencing Court has the discretion to direct concurrency. The investiture of such discretion presupposes that it will be exercised on sound principles and not on impulses whims or humour. Unprincipled exercise or unregulated benevolence ill-behoves judicial function. Casual directions made regarding concurrency often go against the express provisions of the Statute. Such exercises are not justified.6. S.211 of the Code provides for enhanced punishment. This Section is hardly ever seen invoked. Likewise. S.236 and 248 (3) too often go unnoticed by trial courts. They are more than antique pieces to be left on the mantel piece. I do not suggest that in all cases and under all circumstances these provisions must be given effect to. But it could not be that there are no cases for application of these provisions. I have seldom seen an instance where these provisions have been invoked. I am not sure whether the situation is consequent on non-application of mind. It is the duty of the court to give effect to enacted legislation. Personal predictions have no place in this area. As observed by the U.S. Supreme Court in Furman v. Georgia (33 L.Ed. 346):We should not allow our personal preferences as to the wisdom of legislative and congressional action or our distaste for such action to guide our judicial decision in cases such as these. Temptations to cross that policy line are very great.Besides. law roust meet contemporary challenges.:There are contemporary world challenges which if the system cannot meet will destroy it.(Lord Scarman-Hamlyn Law Lectures).This is particularly true of criminal law the failure of which has sometimes promoted godfathers mafia and professional criminals.7. However I do not propose to take notice of these convictions for the purpose of enhancement in the absence of an appeal by the State. In this view while confirming the conviction and sentence the rule issued in Crl. R.C. 102 of 1988 will stand discharged. But I make it clear that the sentences imposed on the accused in the different cases shall run consecutively.