Sharaddanandea @ Murali Monahar Mishra Vs. State of Karnataka  Insc 648 (18
MARKANDEY KATJU, J.
1. I have perused the judgment of my learned brother Hon'ble S.B.
Sinha, J. in this case. The facts of the case have been narrated in the
judgment of my learned brother and hence I am not referring to them except
2. While I entirely agree with my learned brother that the conviction of the
appellant under Section 302 and other provisions of IPC imposed by the Trial
Court and High Court deserves to be upheld, I express my inability with my
learned brother that the death sentence imposed by the Trial Court and
confirmed by the High Court should be reduced to life sentence. In my opinion
this case falls within the category of rarest of rare cases and hence the
appellant deserves death sentence.
3. In Aloke Nath Dutta & Ors. vs. State of West Bengal 2006(13) SCALE
467 a Division Bench of this Court referred to the Constitution Bench judgment
of this Court in Bachan Singh vs. State of Punjab AIR 1980 SC 898 in which it
is laid down that death penalty should only be imposed in the rarest of rare
cases. In Machi Singh vs. State of Punjab 1983 (3) SCC 470 (vide paragraphs 32
to 37) a 3 Judge Bench of this Court gave the following illustrations of
murders which fall within the category of 'rarest of rate cases' and hence
deserved death penalty.
(i) When the murder is committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse intense and extreme
indignation of the community.
(ii) When the murder is committed for a motive which evinces total depravity
and meanness; e.g. murder by hired assassin for money or reward; or cold-
blooded murder for gains of a person vis-`-vis whom the murderer is in a
dominating position or in a position of trust; or murder is committed in the
course of betrayal of the motherland.
(iii) When murder of a member of a Scheduled Caste or minority community,
etc. is committed not for personal reasons but in circumstances which arouse
social wrath; or in cases of "bride-burning"
or "dowry deaths" or when murder is committed in order to remarry
for the sake of extracting dowry once again to marry another woman on account
(iv) When the crime is enormous in proportion. For instance when multiple
murders, say of all or almost all the members of a family or a large number of
persons of a particular caste, community, or locality, are committed.
(v) When the victim of murder is an innocent child, or a helpless woman or
old or infirm person or a person vis-`-vis whom the murderer is in a dominating
position, or a public figure generally loved and respected by the community.
4. In Bachan Singh's case (supra), the Constitution bench observed that the
death penalty contemplated by Section 302 IPC is not unreasonable or against
the public interest, and it does not violate Articles 19 or 21 of the
Constitution. In the same decision it was also observed (vide para 201) that
judicial discretion cannot be fettered by attempting to make an exhaustive
enumeration one way or the other. Hence, it follows that the 5 principles
referred to in Aloke Nath Dutta's case (supra) justifying award of death
penalty can only be treated as illustrative and not exhaustive.
5. In Holiram Bordoloi vs. State of Assam 2005 (3) SCC 793 this Court
observed that pre-planned, calculated, cold-blooded murder has always been
regarded as one of an aggravated kind. A murder diabolically conceived and
cruelly executed would justify the imposition of the death penalty on the
6. In my opinion the facts of the present case clearly fall within the
category of rarest of rare cases as laid down by the Constitution Bench
Judgment in Bachan Singh's case and in Machi Singh's case (supra). It clearly
comes within the first, second and fifth categories mentioned above, and it
falls under the category of rarest of rare cases deserving death sentence.
7. No doubt as observed in paragraph 173 of the judgment in Aloke Nath
Dutta's case (Supra) there has been a growing demand in the international fora
that the death penalty should be abolished. However, in my opinion, in India
the death penalty cannot be abolished by a judicial verdict as death sentence
is contemplated by the Constitution and the I.P.C.
Thus Article 72(1)(c) of the Constitution specifically mentions that the
President of India has the power to grant pardons, reprieves or suspension of
any death sentence. Similarly Article 72(3) also contemplates the power in the
Governor of the State to suspend, remit or commute a death sentence.
Hence if we hold that the Courts have no power to impose a death sentence we
will really be amending the Constitution by a judicial verdict. Again, if we
hold that the Courts have no power to impose death sentence merely because the
death sentence has been abolished in some foreign countries in Europe or
because there is a demand in the international fora that death sentence should
be abolished, we will be really amending the Constitution by a judicial
verdict. In my opinion this Court has no power to amend the Constitution by a
judicial verdict. The Constitution can only be amended by Parliament in the
manner prescribed by Article 368 of the Constitution. This Court cannot
arrogate to itself the power of Parliament under the Constitution and must
maintain self-restraint. Moreover, what has happened in foreign countries
cannot be automatically applied to our country where the situation is
8. No doubt Parliament can abolish the death sentence by deleting it as one
of the punishments prescribed in the I.P.C or other statutes, but this Court
cannot do so. The Court cannot legislate or amend the law. There is broad
separation of powers under the Constitution and this Court must not ordinarily encroach
into the legislative or executive domain as held by us in Drugs &
Pharmaceuticals Ltd. 2007(1) SCC 408.
9. In my opinion the facts of the present case clearly fall within the
principle of the first, second and fifth category mentioned earlier in this
judgment and thus this case falls within the category of the rarest of rare
cases. It is a case of a pre-planned and cold blooded murder diabolically
conceived and cruelly executed.
10. Before coming to the facts of the case I would also like to say that
there cannot be an absolute principle of law that merely because there has been
a long lapse of the time from the commission of the offence and the final
conviction and sentence by this Court the death penalty can never be imposed.
It all depends on the facts of each case. It is well known that now-a-days a
long interval of time frequently occurs between the commission of the offence
and the final conviction by this Court (because of the delays in the trial,
appeals, etc.), and hence if we lay down any absolute principle of law that
merely because of this long interval death penalty cannot be imposed then in
all such cases merely because of lapse of time death penalty cannot be imposed
even though the murder was cold blooded, diabolical and heinous. This again
would be amending the Constitution by a judicial verdict. Moreover this would
give encouragement to the accused and their lawyers to delay proceedings in
Court (by unnecessary adjournments, interlocutory applications, etc.) to avoid
the death penalty. I, therefore, cannot agree with the view that merely because
a long lapse of time has occurred between the commission of the offence and the
final decision of this Court the death penalty cannot be imposed.
11. I also do not agree with the observations in paragraph 173 of the Aloke
Nath Dutta's case (Supra) that in cases of circumstantial evidence ordinarily
the death penalty should not be awarded. In my opinion no such absolute
proposition of the law can be been laid down. It all depends on the facts of
each case. Criminals have been hanged even on the basis of circumstantial
evidence. Hence I cannot agree that we can lay down any such absolute
proposition as was laid down in Aloke Nath Dutta's case (Supra). There is no
principle of law that only direct evidence is strong and reliable while
circumstantial evidence is weak and unreliable.
Circumstantial evidence can be as strong and reliable as direct evidence,
but the only requirement is that the prosecution must establish beyond
reasonable doubt that there is a chain of links which connects the accused with
12. I may now deal with the facts of the present case which clearly shows
the diabolical, cold blooded, evil mind of the appellant who has acted in a
most depraved, malevolent and condemnable manner, taking advantage of a lady's
13. The deceased Smt. Shakereh was married to one Mr. Akbar Khaleeli who was
in the Indian Foreign Service. They had four daughters. In 1983 the deceased
along with her children visited the Nawab of Rampur who was evidently a friend
of the deceased and her husband. The accused was at that time assisting the Rampur
royal family in the management of their landed properties and he was introduced
to the Khaleeli family. After getting acquainted with them the accused gained
their confidence. Since certain matters relating to the properties of the
deceased at Bangalore needed to be sorted out she sought assistance of the
accused having regard to his alleged expertise in dealing with property
matters. The deceased Smt. Shakereh who comes from a good family had inherited
huge properties including House No.81, Richmond Road, Bangalore, and other
14. Since, Mr.Akbar Khaleeli had to go to Iran on his posting as a diplomat,
Smt. Shakereh came to Bangalore. The accused also came to Bangalore and was
provided accommodation in the same house. It is stated that Shakereh had only
daughters and she longed for a son. The accused made her believe that he could
bless her with a son. In 1985, Akbar Khaleeli and Smt. Shakereh divorced, and a
few months thereafter the deceased married the accused and both started living
together in House No.81, Richmond Road, Bangalore.
15. However, even after divorce and second marriage of Smt. Shakereh her
relationship with her parents and daughters remained unaffected and she was in
regular touch with her daughter Sabah, P.W. 5 by talking with her over
telephone or meeting her personally. Sabah was a model and publisher of a
fashion magazine in Mumbai, and she would regularly telephone her mother,
sometimes twice a day. She would also get telephone calls regularly from her
mother. However, from May 1991, the deceased became unavailable and when Sabah
tried to contact her on telephone, the accused informed her that her mother had
gone to Hyderabad for the marriage of a relative. Telephone calls from the
deceased to Sabah also stopped coming from May 1991. After four or five days
Sabah again telephoned to her mother's house at Bangalore, and this time she
was told by the accused that Shakereh had gone to Kutch for a marriage of a big
Again after four or five days Sabah telephoned to her mother's house. This
time the accused told her that her mother was facing income tax problems and
hence she was not in a position to talk to anyone.
16. Since Sabah was not able to speak to her mother despite repeated
endeavours and since telephone calls from her mother stopped coming to her, she
came from Mumbai to Bangalore and went to House No.81, Richmond Road. She asked
the accused as to where her mother was. The accused told her that since her
mother was longing for a male baby she had become pregnant and wanted a
peaceful atmosphere for nine months. When Sabah asked where her mother had
gone, the accused told her she was admitted in Roosevelt Hospital, New York,
since it was the best hospital.
Sabah then asked the accused to give the telephone number and address of the
hospital where her mother was admitted, but the accused refused to give her the
address or telephone number saying that since her mother wanted a peaceful
atmosphere the telephone number and address were unnecessary.
Later Sabah contacted the Roosevelt hospital at New York through a friend
and came to know that no woman of the name Shakereh was admitted in the hospital.
Sabah then confronted the accused and told him that there was no one in the
name of her mother in the hospital and asked the accused to tell her where her
mother was. The accused told Sabah that since her mother was pregnant and
wanted to keep it a secret and rest for nine months so he could not give her
the correct address. Sabah then asked the accused to at least allow her to
speak with her mother on telephone so that she could hear her mother's voice,
but the accused did not do that. Sabah came to Bangalore but did not find her
mother there. At Bangalore whenever any telephone rang the accused used to lift
the receiver and tell Sabah that the telephone was from her mother, but before Sabah
could go near the telephone, the telephone used to get disconnected and the
accused told her that the call was from her mother.
17. Sabah then returned to Mumbai. Thereafter, the accused visited Mumbai
two or three times where he used to stay at Taj hotel, which is a very costly
hotel with two or three persons. These two or three persons were women. In
December 1991, the accused came to Mumbai and stayed at Sea Rock hotel (which
is also a very expensive hotel). The accused told Sabah that he had come to
attend a marriage. Sabah went to the room of the accused in the hotel and saw
her mother's passport there which showed that her mother had not left India for
any foreign country since 1989. The accused told Sabah that her mother was in India
and asked her to be patient for some more months. In March 1992, Sabah rang the
accused and told him that it was already nine months since the time the accused
told her that Shakereh was pregnant and now he had to tell her the whereabouts
of her mother otherwise she would lodge a police complaint. To that, the
accused told Sabah to remain patient and he would inform her in a day or two.
After two or three days the accused informed her that her mother had given
birth to a male child. When Sabah asked him to give the address of her mother
the accused evaded the question and told her to wait for some more time.
The accused then asked Sabah to come to Bangalore where she could meet
Shakereh and the child. Accordingly, Sabah informed the accused the date of her
journey and came to Bangalore by air but did not find either the accused, her mother
or the child at house No. 81, Richmond Road. After four hours of her arrival in
the house, the accused came to the house and told Sabah that he along with
Shakereh were waiting for her at the airport and when they did not find Sabah
there, the accused left Shakereh in the farm house. The accused then told Sabah
that her mother would be coming the next day and there was no need to lodge any
18. Since the accused did not produce Shakereh and did not give Sabah the
whereabouts of her mother, Sabah returned to Mumbai and then again came to
Bangalore and lodged an FIR in Ashoknagar police station on 10.6.1992 stating
that her mother had been missing.
19. The investigation was entrusted to the Central Crime Branch (CCB),
Bangalore on 26.3.1994 since the Ashok Nagar police did not make serious
efforts in the matter. The Central Crime Branch suspecting the role of the
accused in the disappearance of Smt. Shakereh arrested the accused on 28.3.1994
and interrogated him thoroughly. It is stated that during interrogation the
accused broke down and made the voluntary statement as per Ex. P.175 disclosing
that he had drugged Smt. Shakereh, put her in a coffin like big box and had
buried the box in the backyard of the house i.e.
House No. 81, Richmond Road, Bangalore.
20. The Investigating Officer then sought for necessary permission from the
Sub-Divisional Magistrate for exhumation and on 30.3.1994 exhumation
proceedings were conducted at 81, Richmond Road, Bangalore as pointed out by
the accused. At the exhumation, apart from the Taluka Executive Magistrate,
Mahazar witnesses, investigating team, a doctor trained in forensic medicine
were present. After the exact place was marked by a chalk indicating the place
as the place of burial of the box containing the body of Smt. Shakereh, the
marked area was dug up after removal of some stone slabs and after considerable
digging, a big wooden box lying inside was noticed. On removing the planks of
the lid, it was noticed that the box contained a foam bed and a bed-sheet on
the top. The same were removed and underneath it, skeletal remains with
nightie, long hair and feminine articles like bangles, rings etc. were noticed.
The skeletal remains were subjected to autopsy.
21. To confirm whether the skeleton was that of Smt. Shakereh, the skull was
sent to a forensic science laboratory along with a photograph of Smt.
Shakereh. The Investigating Officer also sought the opinion of the experts
through DNA finger printing etc. The experts confirmed that the skeleton indeed
was that of Smt. Shakereh. The investigating team not only recorded the
statements of witnesses (the servants, relatives etc.) but also the people with
whom the accused had dealings about the properties of the deceased, the bank
officials etc. as to the financial aspects and transaction of both the accused
and the deceased. A large number of documentary records were also collected.
The accused was then charged under Sections 302/201 IPC.
22. As many as 39 witnesses were examined by the trial court. The trial
court after considering the entire evidence sentenced the accused to death and
the death sentence was confirmed by the High Court.
23. It has been submitted by the learned counsel for the appellant that
there are no eyewitnesses in the case. In my opinion, there is convincing
circumstantial evidence to establish the guilt of the accused.
24. As already stated above, it is not correct to say that only direct
evidence is strong evidence while circumstantial evidence is weak evidence.
Both kinds of evidence can be strong in a given situation. The only requirement
in circumstantial evidence is that the chain of links connecting the accused
with the crime should be established beyond reasonable doubt. In my opinion, in
this case the facts clearly establish the chain of circumstances linking the
accused with the crime. These circumstances are as follows:
(i) The deceased was living with the accused in house No.81, Richmond Road,
at the time when she disappeared. No one else was there as even the servants
had left (in the circumstances mentioned below).
(ii) During this period the deceased is alleged to have executed a Will and
a General Power of Attorney in favour of the accused, and a large number of
bank accounts in different banks were opened in joint names of the accused and
the deceased. The bank lockers were also in the joint names. They started a
private firm called S.S. Housing Private Limited of which they were the only
All these facts establish the strong motive of the accused who wanted to
grab the property of the deceased.
(iii) Till May 1991 whenever possible PW5 Sabah, daughter of the deceased
used to call the deceased over the phone and talk with her or meet her
personally whenever she was in Bangalore and the deceased would also telephone
Sabah regularly, but after May 1991 she was not allowed to talk to her mother
on telephone whenever she called her, nor did the deceased call her. Instead,
the accused gave evasive and contradictory replies whenever Sabah used to
telephone to try to talk to her mother. The accused said all kinds of lies,
that the deceased had gone to Hyderabad, then on the next occasion that she
had gone to Kutch, thereafter that she was pregnant and had gone to Roosevelt
Hospital, New York, but on enquiry when Sabah came to know that there was no
such lady in the name of Shakereh in the hospital, he admitted that he had
given a false statement etc.
All these facts point to the guilt of the accused who kept telling lies
constantly on every occasion whenever Sabha contacted him.
(iii) It appears that the accused saw an opportunity to kill the deceased
when the maid-servant PW19 Josephine and her husband PW18 Raju received a
telegram informing them that the sister-in-law of PW18 was sick in Andhra
Pradesh and they were required to go to that place. They got leave from
Shakereh and went to Andhra Pradesh. Thus, Shakereh was left alone in the house
with the accused and he got that opportunity to kill her.
(iv) The dead body of Shakereh was found in the backyard of the house at the
pointing out of the deceased. The statement of the accused was made before the
Executive Magistrate PW 3. It has come in evidence that the accused had gone to
a carpenter to get a box with wheels, which he kept in the guest house. This
was the box utilized for burying the body.
(v) During the investigation, it was disclosed that right from 1991 the
accused alone had been operating the joint bank accounts and was not only
depositing the sale proceeds of the lands sold by him after May 1991, but also
withdrawing large sums of money and had literally cleaned the bank lockers
jointly owned by him and the deceased.
(vi) On 30.3.1992 and 31.3.1992 the accused sold 34 plots out of the
property belonging to the deceased in the capacity of General Power of Attorney
holder to various people under registered sale deeds for valuable
considerations (vii) In meetings/proceedings of the SS Housing Company, he
represented the presence of the deceased for each of the meetings and signed
himself alone on her behalf as a General Power of Attorney holder and these
proceedings were regularly sent to their Chartered Account.
(viii) The accused also replied to the queries of Income Tax Authorities
during 1993 one of which purportedly contains his signature and the signature
of Smt. Shakereh which is apparently forged.
(ix) The accused suddenly became very rich after May 1991 (the time of
disappearance of the deceased) which is evident from the fact that he had done
huge property and financial transactions which benefited him, he started
staying in very expensive hotels in Bombay etc. with women, etc. (including the
then Miss India vide statement of P.W.37 at para 29)
25. From the facts stated above it is evident that the deceased was not seen
alive from May 1991 onwards and no one was able to speak to her on telephone,
whereas, till May 1991 her daughter Sabah was regularly in contact with her.
The accused was living with Shakereh as her husband and when contacted by PW5
Sabah he told all kinds of lies about the whereabout of Smt. Shakereh.
26. The fact that Shakereh was murdered is indisputable. If she had met a
natural death, there was no question of her being buried in the backyard of the
house without intimating any of her relatives including her daughter and
parents. There is abundant expert evidence to establish that the skeleton
discovered in the box in the backyard was that of the deceased Shakereh.
There is also uncontroverted evidence that the said box in which her body
was kept was got prepared by the accused himself prior to the death of Smt.
Shakereh. In my opinion, there is no manner of doubt that the accused killed
Shakereh and secretly buried her in the manner mentioned above in the backyard
of the house. The fact that he kept the death news of the deceased secret and
he told lies repeatedly to her daughter Sabah (as stated above), proves his
guilty mind. His act of selling valuable property of the deceased worth crores
of rupees within a short time of the death of Shakreh with the help of a
defunct General Power of Attorney and the other material on record clearly
establish the guilt of the accused beyond reasonable doubt. In my opinion, the
prosecution has convincingly succeeded in establishing all the links in the
chain of circumstances linking the accused with the crime.
27. In my opinion, this is case of a cold blooded, calculated, diabolical
murder by the accused of an innocent lady who came from a good family, but
unfortunately due to her infatuation fell into his clutches.
28. Learned counsel for the appellant submitted that there was no reason for
the appellant to murder the deceased since the deceased had executed a will in
his favour. In my opinion, this argument is not tenable because it is well
settled that a will comes into operation only on the death of the testator.
The deceased was only in her forties, and her natural death may have
occurred several decades later. The appellant was obviously not willing to wait
for so long before he could grab her property and hence he decided to murder
her. No doubt no poisonous substance was detected in the skeleton of the
deceased and hence the prosecution case that the accused mixed poison in her
tea could not be firmly established. However, even if the exact method of
murder has not been established by the prosecution, I have no manner of doubt
that it was the appellant who murdered the deceased.
29. During the course of hearing of the case we asked learned counsel for
the appellant as to what was the profession or qualification of the accused,
but he could not give any satisfactory answer. It seems to us that the accused
is a cold-blooded, scallywag and rascal who had no proper qualification or
profession. Such diabolical and cunning rogues are to be found in abundance
nowadays. It is the total commercialization of society which is responsible for
this recent phenomenon. People have become greedy and wish to amass wealth by
short cuts, even by committing heinous crimes. The appellant had changed his
name and had become a 'Swamy'.
By some dubious means he had ingratiated himself into the house of the Nawab
of Rampur and there he developed contact with the deceased, who was evidently
having differences with her husband. The accused pretended to be a very simple
and innocent person and this made the deceased start depending on him,
particularly for looking after her property matters. The deceased brought the
accused to her house in Bangalore where the deceased married her and thereafter
he determined to grab all her property after killing her. All the property
transactions in this connection and other evidence (narrated above) point only
to this conclusion. The accused is an unmitigated and diabolical rogue who
could go to any extent, including murder to achieve his object of grabbing huge
amount of property of the deceased. He was in a dominating position over the
deceased who had become dependant on him, and he took full advantage of this
situation. He had motive and opportunity for committing this ghastly crime.
30. In my opinion, this case clearly comes within the category of rarest of
rare cases and there will be gross travesty of justice if the death sentence is
not affirmed. Hence, I dismiss this appeal and confirm the death sentence on
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