Swamy Shraddananda @ Murali
Monahar Mishra Vs. State of Karnataka [2008] INSC 1207 (22 July 2008)
Judgment
REPORTABLE IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.454
OF 2006 Swamy Shraddananda @ Murali Manohar Mishra ... Appellant State of
Karnataka ... Respondent
AFTAB ALAM,J.
1.
Death
to a cold blooded murderer or life, albeit subject to severe restrictions of
personal liberty, is the vexed question that once again arises before this
court. A verdict of death would cut the matter cleanly, apart from cutting
short the life of the condemned person. But a verdict of imprisonment for life
is likely to give rise to certain questions. (Life after all is full of
questions!). How would the sentence of imprisonment 2 for life work out in
actuality? The Court may feel that the punishment more just and proper, in the
facts of the case, would be imprisonment for life with life given its normal
meaning and as defined in section 45 of the Indian Penal Code. The Court may be
of the view that the punishment of death awarded by the trial court and
confirmed by the High Court needs to be substituted by life imprisonment,
literally for life or in any case for a period far in excess of fourteen years.
The Court in its judgment may make its intent explicit and state clearly that
the sentence handed over to the convict is imprisonment till his last breath
or, life permitting, imprisonment for a term not less than twenty, twenty five
or even thirty years. But once the judgment is signed and pronounced, the
execution of the sentence passes into the hands of the executive and is
governed by different provisions of law. What is the surety that the sentence
awarded to the convict after painstaking and anxious deliberation would be
carried out in actuality? The sentence of imprisonment for life, literally,
shall not by application of different kinds of remission, turn out to be the
ordinary run of the mill life term that works out to no more than fourteen
years. How can the sentence of imprisonment for life (till its full natural
span) given to a convict as a substitute for the death sentence be viewed
differently and segregated from the ordinary life imprisonment given as the
sentence of first choice? These are the questions that arise for consideration
in this case.
2.
The
conviction of the appellant, Swamy Shardanannda @ Murali Manohar Mishra under
Sections 302 and 201 of the Indian Penal Code has attained finality and is no
longer open to scrutiny. The appellant was convicted by the learned XXV City Sessions
Judge, Bangalore City, under the aforesaid two sections by judgement and order
dated 20 May, 2005 in SC No.212/1994. The Sessions Judge sentenced him to death
for the offence of murder and to a term of five years rigorous imprisonment and
fine of rupees ten thousand for causing disappearance of evidences of the
offence; in default of payment of fine the direction was to undergo simple
imprisonment for one year. The appellant's appeal (Criminal Appeal No.1086 of
2005) against the judgment and order passed by the trial court and the
reference made by the Sessions Judge under section 366 of the Code of Criminal
Procedure (Criminal Referred Case No.6 of 2005) were heard together by the
Karnataka High Court. The High Court confirmed the conviction and the death
sentence awarded to the appellant and by judgment and order dated 19 September,
2005 dismissed the appellant's appeal and accepted the reference made by the
trial court without any modification in the conviction or sentence. Against the
High Court judgment the appellant has come to this Court in this appeal. The
Appeal was earlier heard by a bench of two judges. Both the honourable judges
unanimously upheld the appellant's conviction for the two offences but they
were unable to agree to the punishment meted out to 4 the appellant. S. B.
Sinha J. felt that in the facts and circumstances of the case the punishment of
life imprisonment, rather than death would serve the ends of justice. He,
however, made it clear that the appellant would not be released from prison
till the end of his life. M. Katju J., on the other hand, took the view that
the appellant deserved nothing but death.
It is thus on the
limited, though very important and intractable question of sentence that this
appeal has come before us.
3.
This
takes us to the facts of the case that has all the elements of high drama. It
has a man's vile greed coupled with the devil's cunning; a woman's craving for
a son, coupled with extreme credulity and gullibility and a daughter's deep and
abiding love for her mother coupled with remarkable perseverance to see through
the lies behind her mother's mysterious disappearance. But a man's life can not
be decided in three sentences and we must see the prosecution case, as
established up to this court in some greater detail.
4.
Shakereh,
the deceased victim of the crime, came from a highly reputed and wealthy
background. She was the grand daughter of Sir Mirza Ismail, a former Dewan of
the Princely State of Mysore and the daughter of Mr. Ghulam Hussain Namaze and
Mrs. Gauhar Taj Namaze.
She held vast and
very valuable landed properties in her own right.
Among her various
properties was a bungalow at No.81, Richmond Road, Bangalore, constructed over
nearly 38000 square foot of land that 5 she had got in Hiba (oral gift) from
her parent's side. Another was a large piece of land measuring 40,000 square
foot on Wellington Street that she had got in dowry at the time of marriage.
Shakereh was married to Mr. Akbar Khaleeli, a member of the Indian Foreign
Service. They had four daughters from the marriage. Shakereh came to know the
appellant, Murali Manohar Mishra who called himself Swamy Shraddananda, for the
first time in 1983 when she and her family were visiting the erstwhile Nawab of
Rampur in New Delhi. The appellant was introduced as someone who was looking
after the Rampur properties and was said to be quite adept in managing urban
landed estates. Shakereh, at that time was facing some difficulties under the
urban land ceiling law and she asked the appellant to come over to Bangalore
and help her in sorting out the problems concerning her properties. Soon
thereafter Akbar Khaleeli was posted as a diplomat to Iran. In those days Iran
was not a family-station for Indian diplomats and hence, he went alone leaving
Shakereh behind in Bangalore. The appellant then came to Bangalore and started
living in a part of her house, 81 Richmond Road, purportedly to assist in the
proper management of her properties. Apparently, more than helping in property
matters he worked on her suppressed though strong desire for a son and was able
to convince her that with his occult powers he could make her beget a son. In
1985, Shakereh and Akbar Khaleeli got divorced. Shakereh then proceeded to
marry the appellant. She paid no 6 heed to the opposition from family and
friends and finally got married to the appellant on 17 April, 1986 under the
Special Marriage Act and the marriage was registered at the Sub-Registrar's
Office, Mayo Hall, Bangalore. After marriage they lived together at 81 Richmond
Road. For domestic chores they engaged a couple, a man called Raju to work as
gardener-cum handyman and his wife Josephine to work as maid servant.
They lived in the
servant's quarter of the bungalow.
5.
The
daughters from the first marriage were most of the time staying abroad.
6.
After
marriage Shakereh not only showered her love and affection on the appellant but
also her material wealth. She executed a testamentary will in his favour
besides a general Power of Attorney appointing him as her agent and attorney.
She opened a number of bank accounts jointly with the appellant and also took
several bank lockers in their joint names. They also started together a private
company called S. S. Housing Private Limited of which they alone were the
partners.
7.
Notwithstanding
her matrimonial adventures Shakereh's relations with her daughters and her
parents continued to be more or less as before. They met from time to time and
kept in touch by speaking on the telephone at regular intervals.
8.
Then
by the end of May 1991, Shakereh suddenly and mysteriously disappeared. She was
last met by her mother Mrs. Gauhar 7 Namaze (examined before the trial court
as PW-25) on 13 April, 1991.
Her daughter, Sabah
Khaleeli (examined as PW-5) last spoke to her on telephone on 19 April, 1991
and according to the two servants, Raju and Josephine (PWs-18 & 19
respectively), they last saw her in the company of the appellant in the morning
of 28 May, 1991. Thereafter, Shakereh was not seen or spoken to by anyone. At
that time she was about forty years old.
9.
When
Sabah did not receive any call from her mother nor was she able to get through
to her on telephone she enquired about her from the appellant who said that she
had gone to Hyderabad. In June 1991, when she contacted again he told her that
her mother had gone to Kutch to attend the wedding of a wealthy diamond
merchant. A week later he told her that Shakereh was keeping a low profile due
to some income tax problems. Exasperated by the evasive and vague replies by
the appellant, Sabah came down to Bangalore but found no trace of her mother in
her house. The appellant then said that Shakereh was pregnant and she had gone
to the United States of America to deliver the child. He also said that she had
got herself admitted in Roosevelt Hospital. Sabah made enquiries and came to
learn that Roosevelt Hospital records did not show admission of anyone by the
name of Shakereh or matching her description. She confronted the appellant and
accused him of giving false information about her mother. He tried to explain
that Shakereh 8 had, in fact, gone to London but she wanted to keep her
whereabouts confidential. However all stories fabricated by the appellant about
her mother lay totally exposed to Sabah when she called on him in a hotel room
in Bombay and chanced upon the passport of her mother lying around. A glance at
the passport made it clear that its holder had not gone to the United States or
the United Kingdom or as a matter of fact anywhere out of the country. At this
stage, she came to Bangalore and lodged a written complaint at Ashok Nagar
Police Station where it was registered on 10 June 1992 simply as a woman
missing complaint bearing Cr.No.417/1992.
10.
The
search for the `missing' woman started in a rather lukewarm way but the
appellant thought that the time had come to start covering his flanks. He went
to the court seeking anticipatory bail. In the bail petition he declared his
total innocence and stated that perennial litigation with close relations drove
Shakereh to acute depression and in that state, while he was away from
Bangalore, she left the house in a fit of anger without leaving any signs as to
where she was headed. He was able to obtain anticipatory bail, initially on
certain condition that was later on greatly relaxed.
11.
The
investigation by Ashok Nagar police station did not yield any results but the
persistence of Sabah paid off. In March 1994, the Central Crime Branch
(C.C.B.), Bangalore took over the investigation of the 9 complaint about the
`missing' Shakereh. The case came under the charge of C. Veeraiah, CPI, CCB (PW
37) who, suspecting the role of the appellant in the disappearance of Shakereh,
subjected him to close interrogation. Under intense interrogation the appellant
broke down and owned up to having killed Shakereh. He narrated in detail the
manner of her killing and disposing of her body. He stated that he put the body
of Shakereh inside a large wooden box (that he had earlier got made for the
purpose) and got the box dropped into a pit (that he had got specially dug up)
in the grounds of 81 Richmond Road just outside their common bed- room. He then
got the pit filled up by earth and the ground-surface cemented and covered up
with stone slabs. He volunteered to take the Investigating Officer (IO) to the
place and identify the exact spot where Shakereh lay buried inside the wooden
box. The appellant made the following statement before the IO on 28 March 1994.
"If I am taken I
will show the place where the wooden box was prepared and the person who
prepared it, the persons who transported the box and the people who helped in
digging out the pit and the crow bar, spade, pan used for digging pit, the
cement bags and the spot where Shakereh is buried and I exhume the dead body of
the deceased and show you.
The statement what
all I had earlier given to Ashok Nagar police was a false statement given
intentionally just to escape myself."
The IO then obtained
an exhumation order from the Magistrate and after completing the other legal
formalities, on March 30, 1994 brought the 10 appellant to 81 Richmond Road
along with the exhumation team. They were taken by the appellant to the rear of
the house passing through the dinning hall and the kitchen. The place was open
to the sky but was enclosed on all the four sides by high walls; the floor was
made of kadapa slabs cemented at the joints. The place had no other access
apart from the entry through the kitchen. There the appellant identified the
exact spot where the wooden box, with the body of Shakereh inside it, lay buried
and marked it with a piece of chalk. The exhumation process started at 10.30
a.m. and the whole process was video graphed (as per MO18).
12.
As
pointed out by the appellant, first the stone slabs were removed and the
cemented portion below the slabs was broken up. Then the ground below was dug
up and sure enough a large wooden box was found lying deep under. The box had
inside it, on top, a foam mattress, a pillow and a bed-sheet. Under the
mattress was a skeleton with a sleeping gown around it. The bones had all
become disjointed. The skeleton and the long hair tufts lying around the skull
were taken out and the forensic experts rearranged the bones and also fixed the
skull and the mandibles.
There was no doubt
that it was a human skeleton. Mrs. Gauhar Taj Namaze identified a red stone
ring and two black rings found in the wooden box (that must have slipped down
the fingers after the flesh decayed away) as belonging to her daughter
Shakereh. The sleeping 11 gown that was around the skeleton was identified by
the maid as belonging to her mistress Shakereh.
13.
The
post mortem examination was held on the same day from 4.45 to about 6 p.m.
14.
The
skull along with an undisputed photograph of Shakereh was sent to the Forensic
Science Laboratory for matching and identification by Photo Superimposition
method. The skeletal remains were subjected to D.N.A. fingerprinting. Both the
tests gave the same result and left no room for doubt that the skeleton was of
Shakereh.
15.
On
31 March, 1994 the IO once again took the appellant to 81 Richmond Road. This
time the appellant took the IO to the bedroom and showed the window that opened
on the enclosed space from where the skeleton of the deceased was recovered on
the previous day. He also explained that he had got the lower part of the
room's wall broken down to make a clearing through which the wooden box
containing Shakereh's body was pushed out of the room and into the pit. He also
produced before the IO pills of eight different kinds and the cheque books of
different bank accounts.
16.
The
other aspect of the case is equally significant in that it provides the motive
for the murder. It came to light during investigation that after Shakereh
disappeared (or, in retrospect, was killed by the appellant) he went about
selling off her properties as fast as possible. On 12 30 and 31 March, 1992,
in two days, the appellant sold 34 plots carved out of Shakereh's properties to
various people under registered sale- deeds using the General Power of Attorney
executed by her in his favour.
The joint bank
accounts were simply used to deposit large sums being the sale proceeds of the
lands sold by him and to withdraw the amounts as soon as those were credited to
the account. Needless to say that from May 1991, it was the appellant alone who
operated the joint bank accounts. He also literally cleaned out the bank
lockers that Shakereh had taken in their joint names.
17.
In
all the meetings of the S. S. Housing Company, he represented the presence of
Shakereh and signed the proceedings for himself and for her as holder of her
General Power of Attorney. The proceedings of the meetings were regularly sent
to their Chartered Accountant.
18.
The
appellant also gave regular replies to the queries of the Income Tax
authorities, one of which, of the year 1993 contains his signature and the
signature of Shakereh which is apparently forged.
19.
In
light of the large amount of evidences unearthed against the appellant he was
charged with the commission of murder of his wife Shakereh. As is evident, the
case against the appellant was completely based on circumstantial evidence. But
the prosecution proved its case to the hilt by examining 39 witnesses and
producing before the court a large 13 number of exhibits, both material (MOs.
1 to 33) and documentary (P1 to P267).
20.
These
are, in brief, the facts of the case. On these facts, Mr. Sanjay Hegde, learned
counsel for the State of Karnataka, supported the view taken by Katju J. (as
indeed by the High Court and the trial court) and submitted that the appellant
deserved nothing less than death. In order to bring out the full horror of the
crime Mr. Hegde reconstructed it before the court. He said that after five
years of marriage Shakereh's infatuation for the appellant had worn thin. She
could see through his fraud and see him for what he was, a lowly charlatan. The
appellant could sense that his game was up but he was not willing to let go all
the wealth and the lavish life style that he had gotten used to. He decided to
kill Shakereh and take over all her wealth directly. In furtherance of his aim
he conceived a terrible plan and executed it to perfection. He got a large pit
dug up at a `safe' place just outside their bed room. The person who was to lie
into it was told that it was intended for the construction of a soak- pit for
the toilet. He got the bottom of one of the walls of the bedroom knocked off
making a clearing to push the wooden box through; God only knows saying what to
the person who was to pass through it. He got a large wooden box (7x2x2 feet)
made and brought to 81 Richmond Road where it was kept in the guest house;
mercifully out of sight of the person for whom it was meant. Having thus
completed all 14 his preparations he administered a very heavy dose of
sleeping drugs to her on 28 May, 1991 when the servant couple, on receiving
information in the morning regarding a death in their family in a village in
Andhra Pradesh asked permission for leave and some money in advance.
However, before
giving them the money asked for and letting them go, the appellant got the
large wooden box brought from the guest house to the bedroom by Raju (with the
help of three or four other persons called for the purpose) where, according to
Raju, he saw Shakereh (for the last time) lying on the bed, deep in sleep.
After the servants had gone away and the field was clear the appellant
transferred Shakereh along with the mattress, the pillow and the bed sheet from
the bed to the box, in all probability while she was still alive. He then shut
the lid of the box and pushed it through the opening made in the wall into the
pit, dug just outside the room, got the pit filled up with earth and the
surface cemented and covered with stone slabs.
21.
What
the appellant did after committing murder of Shakereh was, according to Mr.
Hegde even more shocking. He continued to live, like a ghoul, in the same house
and in the same room and started a massive game of deception. To Sabah, who
desperately wanted to meet her mother or at least to talk to her, he constantly
fed lies and represented to the world at large that Shakereh was alive and well
but was simply avoiding any social contacts. Behind the fagade of deception he
went on 15 selling Shakereh's properties as quickly as possible to convert
those into cash for easy appropriation. In conclusion Mr. Hegde submitted that
it was truly a murder most foul and Katju J. was perfectly right in holding
that this case came under the first, second and the fifth of the five
categories, held by this Court as calling for the death sentence, in Machhi
Singh & Ors. vs. State of Punjab, (1983) 3 SCC 470.
22.
In
order to properly appreciate the decision in Machhi Singh it would be necessary
to first go to its precursor, the Constitution Bench decision in Bachan Singh
vs. State of Punjab, AIR 1980 SC 898 and to an earlier Constitution Bench
decision in Jagmohan Singh vs. State of U.P., AIR 1973 SC 947, that is the
precursor of Bachan Singh. The decisions in Jagmohan Singh and Bachan Singh
deal with the recurrent debate on abolition of death penalty and are primarily
concerned with the question of legitimacy of the death sentence. Jagmohan
relates to the period when the requirement for the court to state reasons for
not giving death sentence but giving the alternate sentence of life
imprisonment in a capital offence was done away with by deletion of Section
367(5) in the Code of Criminal Procedure, 1898 and the requirement to state
reasons for giving death sentence and not the alternate of life imprisonment
under Section 354(3) of the Code of Criminal Procedure, 1973 was yet to be
introduced. Bachan Singh relates to the period after the Code of Criminal
Procedure, 1973 came into force that gives to the accused the 16 right of
pre-sentence hearing under Section 235(2) and under Section 354(3) casts an
obligation on the court to state the `special reasons' for awarding the
sentence of death and not its alternate, the imprisonment for life or
imprisonment for a term of years. On both occasions the court upheld the
Constitutional validity of death sentence for murder and the other capital
offences in the Penal Code.
23.
We
are not concerned here with the issue of the Constitutionality of death
sentence that stands conclusively settled by two Constitution Bench decisions.
What is of importance for our present purpose is that both the Constitution
Benches firmly declined to be drawn into making any standardisation or
categorisation of cases for awarding death penalty? It was strongly urged
before the Court that in order to save the sentence of death from the vice of
arbitrariness it was imperative for the Court to lay down guide lines, to mark
and identify the types of murder that would attract the punishment of death,
leaving aside the other kinds of murder for the lesser option of the sentence
of imprisonment for life.
In Jagmohan the Court
turned down the submission observing (in paragraph 25 of the judgment) as
follows:
"In India this
onerous duty is cast upon Judges and for more than a century the Judges are
carrying out this duty under the Indian Penal Code. The impossibility of laying
down standards is at the very core of the criminal law as administered in India
which invests the Judges with a very wide discretion in the matter of fixing
the degree of punishment. That discretion in the matter of sentence is as
already pointed out, liable 17 to be corrected by superior courts. Laying down
of standards to the limited extent possible as was done in the Model Judicial
Code would not serve the purpose. The exercise of judicial discretion on well
recognized principles is in the final analysis the safest possible safeguards
for the accused."
(Emphasis added)
Barely seven years later, the same argument was advanced with even greater
force before another Constitution Bench in Bachan Singh vs. State of Punjab
(supra). It was contended that under Section 354(3) the requirement of giving
`special reasons' for awarding death sentence was very loose and it left the
doors open for imposition of death penalty in an arbitrary and whimsical
manner. It was further contended that for the sake of saving the Constitutional
validity of the provision the Court must step in to clearly define its scope by
unmistakably marking the types of grave murders and other capital offences that
would attract death penalty rather than the alternate punishment of imprisonment
for life.
24.
As
on the earlier occasion, in Bachan Singh too the Court rejected the submission.
The Court did not accept the contention that asking the Court to state special
reasons for awarding death sentence amounted to leaving the Court to do
something that was essentially a legislative function. The Court held that the
exercise of judicial discretion on well established principles and on the facts
of each case was not the same as to legislate. On the contrary, the Court
observed, any attempt to 18 standardise or to identify the types of cases for
the purpose of death sentence would amount to taking up the legislative
function. The Court said that a `standardization or sentencing discretion is a
policy matter which belongs to the sphere of legislation' and `the Court would
not by overleaping its bounds rush to do what Parliament, in its wisdom, warily
did not do.'
25.
The
Court also rejected the other submission that unless it precisely defined the
scope of Section 354(3) and clearly marked the types of grave murders and
capital offences there would always be the chance of imposition of death
penalty in an arbitrary and whimsical manner. In paragraph 168 of the judgment
the Court observed as follows:
"Now, remains
the question whether this Court can lay down standards or norms restricting the
area of the imposition of death penalty to a narrow category of murders."
It discussed the
issue at length from paragraphs 169 to 195 and firmly refused to do any
categorisation or standardisation of cases for the purpose of death sentence.
In the lengthy discussion on the issue, the Court gave over half a dozen
different reasons against the argument urging for standardisation and
categorisation of cases; it also cited the American experience to show the
futility of any such undertaking. A perusal of that part of the judgment shows
that a very strong plea was made before the Court for standardisation and
categorisation of cases for 19 the purpose of death sentence. Nonetheless the
Court remained resolute in its refusal to undertake the exercise. In this
regard the court agreed with the view earlier taken in Jagmohan and observed
that it was not possible to make an exhaustive enumeration of aggravating or
mitigating circumstances which should be taken into consideration when
sentencing an offender. It extracted the passage from Jagmohan that quoted with
approval the observation from an American decision in McGautha vs.
California, (1971)
402 US 183 "The infinite variety of cases and facets to each case would
make general standards either meaningless `boiler plate' or a statement of the
obvious that no Jury/Judge would need."
It also reiterated
the observation in Jagmohan that such "standardisation"
is well-nigh
impossible.
26.
Arguing
against standardisation of cases for the purpose of death sentence the Court
observed that even within a single category offence there are infinite,
unpredictable and unforeseeable variations. No two cases are exactly identical.
There are countless permutations and combinations which are beyond the
anticipatory capacity of the human calculus. The Court further observed that
standardisation of the sentencing process tends to sacrifice justice at the
altar of blind uniformity.
27.
It
is significant to note that the Court was extremely wary of dealing with even
the question of indicating the broad criteria which should guide the Courts in
sentencing a convict of murder. It reminded itself of the observation of
Stewart, J. in Greg vs. Georgia, `while we have an obligation to ensure that the
constitutional bounds are not overreached, we may not act as judges as we might
as legislatures'.
Having thus cautioned
itself, though the Court recorded the suggestions of Dr.Chitale, one of the
counsels appearing in the case, as regards the `aggravating circumstances' and
the `mitigating circumstances', it was careful not to commit itself to Dr.
Chitale's categories. In paragraph 200 the judgment recorded the `aggravating
circumstances' suggested by Dr.Chitale, but in paragraph 201 it observed as follows:
"Stated broadly,
there can be no objection to the acceptance of these indicators but as we have
indicated already, we would prefer not to fetter judicial discretion by
attempting to make an exhaustive enumeration one way or the other."
Similarly, in
paragraph 204 the judgment recorded the `mitigating circumstances' as suggested
by Dr.Chitale. In paragraph 205, however, it observed as follows:
"We will do no
more than to say that these are undoubtedly relevant circumstances and must be
given great weight in the determination of sentence.
Some of these factors
like extreme youth can instead be of compelling importance."
21 In the end, the
Court following the decision in Jagmohan left the sentencing process exactly as
it came from the legislative, flexible and responsive to each case on its
merits, subject to the discretion of the Court and in case of any error in
exercise of the discretion subject further to correction by the Superior
Court(s). The Court observed:
"In Jagmohan,
this Court had held that this sentencing discretion is to be exercised
judicially on well-recognised principles, after balancing all the aggravating
and mitigating circumstances of the crime. By "well-recognised
principles" the Court obviously meant the principles crystallized by
judicial decisions illustrating as to what were regarded as aggravating or
mitigating circumstances in those cases. The legislative changes since Jagmohan
- as we have discussed already - do not have the effect of abrogating or
nullifying those principles. The only effect is that the application of those
principles is now to be guided by the paramount beacons of legislative policy
discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty
can be inflicted only in gravest cases of extreme culpability; (2) In making
choice of the sentence, in addition to the circumstances of the offence, due
regard must be paid to the circumstances of the offender also."
Earlier in the
judgment while reaffirming Jagmohan, subject of course to certain adjustments
in view of the legislative changes (section 354(3) the Court observed:
"The expression
"special reasons" in the context of this provision, obviously means
"exceptional reasons" founded on the exceptionally grave
circumstances of the particular case relating to the crime as well as the
criminal. Thus, the legislative policy now writ large and clear on the face of
Section 354(3) is that on conviction for murder and other 22 capital offences
punishable in the alternative with death under the Penal Code, the extreme
penalty should be imposed only in extreme cases."
(Emphasis added) In
conclusion the Constitution Bench decision in Bachan Singh said:
".........It is,
therefore, imperative to voice the concern that courts, aided by the broad
illustrative guidelines indicated by us, will discharge the onerous function
with evermore scrupulous care and humane concern, directed along the highroad
of legislative policy outlined in Section 354(3) viz. that for persons
convicted of murder, life imprisonment is the rule and death sentence an
exception. A real and abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That ought not to be
done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed."
(Emphasis added) The
Bachan Singh principle of `rarest of rare cases' came up for consideration and
elaboration in the case of Machhi Singh. It was a case of extraordinary
brutality. On account of a family feud Machhi Singh the main accused in the
case, along with eleven accomplices, in course of a single night, conducted
raids on a number of villages killing seventeen people, men, women and children
for no reason other than they were related to one Amar Singh and his sister
Piyaro Bai. The death sentence awarded to Machhi Singh and two other accused by
the Trial Court and affirmed by the High Court was also confirmed by this
Court. In Machhi Singh the Court put itself in the position of the `Community'
and 23 observed that though the `Community' revered and protected life because
`the very humanistic edifice is constructed on the foundation of reverence for
life principle' it may yet withdraw the protection and demand death penalty,
"It may do so `in rarest of rare cases' when its collective conscience is
so shocked that it will expect the holders of the judicial power centre to
inflict death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty. The community may entertain
such a sentiment when the crime is viewed from the platform of the motive for,
or the manner of commission of the crime, or the anti-social or abhorrent
nature of the crime, such as for instance :
I. Manner of
commission of murder 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.
For instance, (i)
when the house of the victim is set aflame with the end in view to roast him
alive in the house.
24 (ii) when the
victim is subjected to inhuman acts of torture or cruelty in order to bring
about his or her death.
(iii) when the body
of the victim is cut into pieces or his body is dismembered in a fiendish
manner.
II. Motive for commission
of murder When the murder is committed for a motive which evinces total
depravity and meanness. For instance when (a) a hired assassin commits murder
for the sake of money or reward (b) a cold-blooded murder is committed with a
deliberate design in order to inherit property or to gain control over property
of a ward or a person under the control of the murderer or vis-`-vis whom the
murderer is in a dominating position or in a position of trust, or (c) a murder
is committed in the course for betrayal of the motherland.
III. Anti-social or
socially abhorrent nature of the crime (a) 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. For instance when 25
such a crime is committed in order to terrorize such persons and frighten them
into fleeing from a place or in order to deprive them of, or make them
surrender, lands or benefits conferred on them with a view to reverse past
injustices and in order to restore the social balance.
(b) In cases of
`bride burning' and what are known as `dowry deaths' or when murder is
committed in order to remarry for the sake of extracting dowry once again or to
marry another woman on account of infatuation.
IV. Magnitude of
crime 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. Personality of
victim of murder When the victim of murder is (a) an innocent child who could
not have or has not provided even an excuse, much less a provocation, for
murder (b) a helpless woman or a person rendered helpless by old age or
infirmity (c) when 26 the victim is a person vis-`-vis whom the murderer is in
a position of domination or trust (d) when the victim is a public figure
generally loved and respected by the community for the services rendered by him
and the murder is committed for political or similar reasons other than
personal reasons."
In Machhi Singh the
Court held that for practical application the rarest of rare cases principle
must be read and understood in the background of the five categories of murder
cases enumerated in it. Thus the standardisation and classification of cases
that the two earlier Constitution Benches had resolutely refrained from doing
finally came to be done in Machhi Singh.
28. In Machhi Singh
the Court crafted the categories of murder in which `the Community' should
demand death sentence for the offender with great care and thoughtfulness. But
the judgment in Machhi Singh was rendered on 20 July, 1983, nearly twenty five
years ago, that is to say a full generation earlier. A careful reading of the
Machhi Singh categories will make it clear that the classification was made
looking at murder mainly as an act of maladjusted individual criminal(s). In
1983 the country was relatively free from organised and professional crime.
Abduction for Ransom
and Gang Rape and murders committed in course of those offences were yet to
become a menace for the society 27 compelling the Legislature to create
special slots for those offences in the Penal Code. At the time of Machhi
Singh, Delhi had not witnessed the infamous Sikh carnage. There was no attack
on the country's Parliament.
There were no bombs
planted by terrorists killing completely innocent people, men, women and
children in dozens with sickening frequency.
There were no private
armies. There were no mafia cornering huge government contracts purely by
muscle power. There were no reports of killings of social activists and
`whistle blowers'. There were no reports of custodial deaths and rape and fake
encounters by police or even by armed forces. These developments would
unquestionably find a more pronounced reflection in any classification if one
were to be made to day.
Relying upon the
observations in Bachan Singh, therefore, we respectfully wish to say that even
though the categories framed in Machhi Singh provide very useful guidelines,
nonetheless those cannot be taken as inflexible, absolute or immutable.
Further, even in those categories, there would be scope for flexibility as
observed in Bachan Singh itself.
29. The matter can be
looked at from another angle. In Bachan Singh it was held that the expression
"special reasons" in the context of the provision of Section 354(3)
obviously means "exceptional reasons"
founded on the
exceptionally grave circumstances of the particular case relating to the crime
as well as the criminal. It was further said that on 28 conviction for murder
and other capital offences punishable in the alternative with death under the
Penal Code, the extreme penalty should be imposed only in extreme cases. In
conclusion it was said that the death penalty ought not to be imposed save in
the rarest of rare cases when the alternative option is unquestionably
foreclosed. Now, all these expressions "special reasons",
"exceptional reasons", "founded on the exceptional grave
circumstances", "extreme cases" and "the rarest of the rare
cases" unquestionably indicate a relative category based on comparison
with other cases of murder. Machhi Singh for the purpose of practical
application sought to translate this relative category into absolute terms by
framing the five categories. (In doing so, it is held by some, Machhi Singh
considerably enlarged the scope for imposing death penalty that was greatly
restricted by Bachan Singh!).
30. But the relative
category may also be viewed from the numerical angle, that is to say, by
comparing the case before the Court with other cases of murder of the same or
similar kind, or even of a graver nature and then to see what punishment, if
any was awarded to the culprits in those other cases. What we mean to say is
this, if in similar cases or in cases of murder of a far more revolting nature
the culprits escaped the death sentence or in some cases were even able to
escape the criminal justice system altogether it would be highly unreasonable
and unjust to pick on the condemned person and confirm the death penalty
awarded to 29 him/her by the courts below simply because he/she happens to be
before the Court. But to look at a case in this perspective this Court has
hardly any field of comparison. The court is in a position to judge `the rarest
of rare cases' or an `exceptional case' or an `extreme case' only among those
cases that come to it with the sentence of death awarded by the trial court and
confirmed by the High Court. All those cases that may qualify as the rarest of
rare cases and which may warrant death sentence but in which death penalty is
actually not given due to an error of judgment by the trial court or the High
Court automatically fall out of the field of comparison. More important are the
cases of murder of the worst kind, and their number is by no means small, in
which the culprits, though identifiable, manage to escape any punishment or are
let off very lightly.
Those cases never
come up for comparison with the cases this Court might be dealing with for
confirmation of death sentence. To say this is because our Criminal justice
System, of which the court is only a part, does not work with a hundred percent
efficiency or anywhere near it, is not to say something remarkably new or
original. But the point is, this Court, being the highest court of the Land,
presiding over a Criminal Justice System that allows culprits of the most
dangerous and revolting kinds of murders to slip away should be extremely wary
in dealing with death sentence and should resort to it, in the words of Bachan
Singh, only when the other alternative is unquestionably foreclosed. We are
not 30 unconscious of the simple logic that in case five crimes go undetected
and unpunished that is no reason not to apply the law to culprits committing
the other five crimes. But this logic does not seem to hold good in case of
death penalty. On this logic a convict of murder may be punished with
imprisonment for as long as you please. But death penalty is something entirely
different. No one can undo an executed death sentence.
31. That is not the
end of the matter. Coupled with the deficiency of the Criminal Justice System
is the lack of consistency in the sentencing process even by this Court. It is
noted above that Bachan Singh laid down the principle of the rarest of rare
cases. Machhi Singh, for practical application crystallised the principle into
five definite categories of cases of murder and in doing so also considerably
enlarged the scope for imposing death penalty. But the unfortunate reality is
that in later decisions neither the rarest of rare cases principle nor the
Machhi Singh categories were followed uniformly and consistently. In Aloke Nath
Dutta vs. State of West Bengal, 2006 (13) SCALE 467, Sinha J. gave some very
good illustrations from a number of recent decisions in which on similar facts
this Court took contrary views on giving death penalty to the convict (see
paragraphs 154 to 182, pp.504-510 SCALE). He finally observed that `courts in
the matter of sentencing act differently although the fact situation may appear
to be somewhat similar' and further `it is 31 evident that different benches
had taken different view in the matter'.
Katju J. in his order
passed in this appeal said that he did not agree with the decision in Aloke
Nath Dutt in that it held that death sentence was not to be awarded in a case
of circumstantial evidence. Katju J. may be right that there can not be an
absolute rule excluding death sentence in all cases of circumstantial evidence
(though in Aloke Nath Dutta it is said `normally' and not as an absolute rule).
But there is no denying the illustrations cited by Sinha J. which are a matter
of fact.
32. The same point is
made in far greater detail in a report called, "Lethal Lottery, The Death
Penalty in India" compiled jointly by Amnesty International India and
Peoples Union For Civil Liberties, Tamil Nadu & Puducherry. The report is
based on the study of Supreme Court judgments in death penalty cases from 1950
to 2006. One of the main points made in the report (see chapter 2 to 4) is
about the Court's lack of uniformity and consistency in awarding death
sentence.
33. The truth of the
matter is that the question of death penalty is not free from the subjective
element and the confirmation of death sentence or its commutation by this Court
depends a good deal on the personal predilection of the judges constituting the
bench.
34. The inability of
the Criminal Justice System to deal with all major crimes equally effectively
and the want of uniformity in the sentencing process by the Court lead to a
marked imbalance in the end results. On 32 the one hand there appears a small
band of cases in which the murder convict is sent to the gallows on
confirmation of his death penalty by this Court and on the other hand there is
a much wider area of cases in which the offender committing murder of a similar
or a far more revolting kind is spared his life due to lack of consistency by
the Court in giving punishments or worse the offender is allowed to slip away unpunished
on account of the deficiencies in the Criminal Justice System. Thus the overall
larger picture gets asymmetric and lop-sided and presents a poor reflection of
the system of criminal administration of justice. This situation is matter of
concern for this Court and needs to be remedied.
35. These are some of
the larger issues that make us feel reluctant in confirming the death sentence
of the appellant.
36. Coming now to the
facts of the case it is undeniable that the appellant killed Shakereh in a
planned and cold blooded manner but at least this much can be said in his
favour that he devised the plan so that the victim could not know till the end
and even for a moment that she was betrayed by the one she trusted most.
Further though the way of killing appears quite ghastly it may be said that it
did not cause any mental or physical pain to the victim. Thirdly, as noted by
Sinha J. the appellant confessed his guilt at least partially before the High
Court.
37. We must not be
understood to mean that the crime committed by the appellant was not very grave
or the motive behind the crime was not 33 highly depraved. Nevertheless, in
view of the above discussion we feel hesitant in endorsing the death penalty
awarded to him by the trial court and confirmed by the High Court. The absolute
irrevocability of the death penalty renders it completely incompatible to the
slightest hesitation on the part of the court. The hangman's noose is thus
taken off the appellant's neck.
38. But this leads to
a more important question about the punishment commensurate to the appellant's
crime. The sentence of imprisonment for a term of 14 years, that goes under the
euphemism of life imprisonment is equally, if not more, unacceptable. As a
matter of fact, Mr. Hegde informed us that the appellant was taken in custody
on 28 March, 1994 and submitted that by virtue of the provisions relating to
remission, the sentence of life imprisonment, without any qualification or
further direction would, in all likelihood, lead to his release from jail in
the first quarter of 2009 since he has already completed more than 14 years of
incarceration. This eventuality is simply not acceptable to this Court.
What then is the
answer? The answer lies in breaking this standardisation that, in practice,
renders the sentence of life imprisonment equal to imprisonment for a period of
no more than 14 years; in making it clear that the sentence of life
imprisonment when awarded as a substitute for death penalty would be carried
out strictly as directed by the Court. This Court, therefore, must lay down a
good and 34 sound legal basis for putting the punishment of imprisonment for
life, awarded as substitute for death penalty, beyond any remission and to be
carried out as directed by the Court so that it may be followed, in appropriate
cases as a uniform policy not only by this Court but also by the High Courts,
being the superior Courts in their respective States. A suggestion to this
effect was made by this Court nearly thirty years ago in Dalbir Singh and
others vs. State of Punjab, (1979) 3 SCC 745. In paragraph 14 of the judgment
this Court held and observed as follows:
"14. The
sentences of death in the present appeal are liable to be reduced to life
imprisonment. We may add a footnote to the ruling in Rajendra Prasad case.
Taking the cue from the English legislation on abolition, we may suggest that
life imprisonment which strictly means imprisonment for the whole of the men's
life but in practice amounts to incarceration for a period between 10 and 14
years may, at the option of the convicting court, be subject to the condition
that the sentence of imprisonment shall last as long as life lasts, where there
are exceptional indications of murderous recidivism and the community cannot
run the risk of the convict being at large. This takes care of judicial
apprehensions that unless physically liquidated the culprit may at some remote
time repeat murder."
[Emphasis added] We
think that it is time that the course suggested in Dalbir Singh should receive a
formal recognition by the Court.
39. As a matter of
fact there are sufficient precedents for the Court to take such a course. In a
number of cases this court has substituted death 35 penalty by life
imprisonment or in some cases for a term of twenty years with the further
direction that the convict would not be released for the rest of his life or
until the twenty year term was actually served out. In this case too Sinha J.
passed exactly the same order. After declining to confirm the death sentence given
to the appellant he proceeded to give the following direction.
"However, while
saying so, we (sic) direct that in a case of this nature `life sentence' must
be meant to be `life sentence'. Such a direction can be given, as would appear
from some precedents."
Sinha J. then
mentioned the following five cases in which this Court had passed similar
orders.
40. In Subhash
Chander vs. Krishan La & others, (2001) 4 SCC 458, five accused persons,
including Krishan Lal were put on trial for committing multiple murders. The
trial court acquitted one of the accused but convicted the rest of them and
sentenced each of them to death. In the death reference/appeals preferred by
the convicted accused, the High Court confirmed the conviction of all the four
accused but commuted their death sentence to life imprisonment. One Subhash
Chander (PW-2) came to this Court in appeal. On a consideration of the material
facts this Court felt that the High Court was not justified in commuting the
sentence of death of at least one accused, Krishan Lal.
But then the counsel
appearing on his behalf implored that instead of 36 death penalty this Court
might order for imprisonment of Krishan Lal for the remaining period of his
life. This Court took note of the counsel's submission as follows:
"Faced with the
situation Mr. U. R. Lalit, Senior Counsel appearing for the aforesaid
respondents submitted that instead of depriving Krishan Lal (A-1) of his life,
the Court can pass appropriate order to deprive the aforesaid accused person of
his liberty throughout his life. Upon instructions, the learned Senior Counsel
submitted that the said Krishan Lal, if sentenced to life imprisonment would
never claim his premature release or commutation of his sentence on any ground.
We record such a submission made on behalf of the said accused, upon
instructions."
(Emphasis added) This
Court accepted the plea made by the counsel and passed the following order:
"However, in the
peculiar circumstances of the case, apprehending imminent danger to the life of
Subhash Chander and his family in future, taking on record the statement made
on behalf of Krishan Lal (A-1), we are inclined to hold that for him the
imprisonment for life shall be the imprisonment in prison for the rest of his
life. He shall not be entitled to any commutation or premature release under
Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or
any other statute and the rules made for the purposes of grant of commutation
and remissions."
(Emphasis added) In
Subhash Chander this court referred to an earlier judgment in State of M.P. vs.
Ratan Singh, (1976) 3 SCC 470, in which it was held that a 37 sentence of
imprisonment for life means a sentence for the entire life of the prisoner
unless the appropriate Government chooses to exercise its discretion to remit
either the whole or a part of the sentence under Section 401 of the Code of
Criminal Procedure. The Court also referred to the earlier decisions in Sohan
Lal vs. Asha Ram, (1981) 1 SCC 106 (This is a mistake since Sohan Lal is a
completely different case;
apparently the
reference was to Maru Ram vs. Union of India on page 107 of the same report),
Bhagirath vs. Delhi Administration, (1985) 2 SCC 580 and Zahid Hussein vs.
State of West Bengal, (2001) 3 SCC 41. In Shri Bhagwan vs. State of Rajasthan,
(2001) 6 SCC 296, the appellant, who was 20 years old at the time of commission
of the offence, had come to this Court, condemned to death by the trial court
and the High Court. According to prosecution, he had killed five members of a
family by mercilessly battering them to death. The manner of killing was brutal
and the circumstances of the crime exhibited crass ingratitude on the
appellant's part. The motive was theft of gold ornaments and other articles
belonging to the victim family. In this case, K. G. Balakrishnan, J. (as the
Hon'ble the Chief Justice was at that time) who wrote the judgment for the
Court commuted the death sentence awarded to the appellant to imprisonment for
life subject to the direction that he would not be released from the prison
until he had served out at least 20 years of imprisonment including the period
already undergone by him. In this 38 case there is also a very useful
discussion with regard to the provisions of commutation and remission in the
Code of Criminal Procedure and the prison rules to which we shall advert later
on in this judgment.
42. In Prakash Dhawal
Khairnar (Patil) vs. State of Maharashtra, (2002) 2 SCC 35, the condemned
appellant had committed the murder of his own brother, their mother and four
members of his brother's family because the deceased brother was not
partitioning the property which the appellant claimed to be joint family
property. In the totality of circumstances this Court set aside the death
sentence awarded to the appellant but directed that for the murders committed
by him, he would suffer imprisonment for life and further that he would not be
released from prison until he had served out at least 20 years of imprisonment
including the period already undergone by him. For giving such a direction, the
court referred to the decisions in Shri Bhagwan (supra) and Dalbir Singh V. The
State of Punjab, (1979) 3 SCC
43. In Ram Anup Singh
& others V. State of Bihar, (2002) 6 SCC 686, there were a father and his
two sons before this court. They had killed the father's brother, the brother's
wife, his daughter and his son-in-law.
On conviction for the
murders the father was sentenced to life imprisonment but the two sons were
given the death penalty. This Court once again interfered and set aside the
death sentence awarded by the trial court and confirmed by the High Court to
the two sons and instead 39 sentenced them to suffer rigorous imprisonment for
life with the condition that they would not be released before completing an
actual term of 20 years including the period of imprisonment already undergone
by them. Reference was made to the decisions in Shri Bhagwan, Dalbir Singh and
Prakash Dhawal Khairnar (Patil) (supra).
44. The fifth
decision mentioned by Sinha J. was in Mohd. Munna vs. Union of India, (2005) 7
SCC 417. In this case it was basically held that in the absence of an order of
remission formally passed by the appropriate government, there was no provision
in the Penal Code or in the Code of Criminal Procedure under which a sentence
of life imprisonment could be treated as for a term of 14 years or 20 years and
further that a convict undergoing imprisonment for life could not claim
remission as a matter of right.
45. To this list of
five cases mentioned by Sinha J. one could add one or two more.
46. In Jayawant
Dattatraya Suryarao vs. State of Maharashtra, (2001) 10 SCC 109, this Court had
before it a batch of five analogous cases. There were three appeals on behalf
of three of the accused convicted by the trial court; another appeal by the
State in regard to the accused who were acquitted by the trial court and a
death reference in regard to one of the appellants, Subhashsingh
Shobhanathsingh Thakur (A-6) who was given sentences of death on two counts,
one under the 40 provisions of the Terrorist and Disruptive Activities
(Prevention) Act (TADA) and the other under section 120-B of the Penal Code.
According to the
prosecution case the appellants, along with a number of other co-accused, armed
with highly sophisticated weapons had raided J.J.Hospital in Mumbai where the
victim, a member of another underworld gang, was admitted for treatment. In the
hospital they made indiscriminate firing killing not only their target but also
two policemen who were on guard duty and injuring several others. The court
confirmed the conviction of appellant No.6 but modified the sentence from death
penalty to imprisonment for life - till rest of life. For the direction given
by it the court referred to the decisions in Subhash Chander (supra), State of
Madhya Pradesh (supra), Shri Bhagwan (supra), Sohan Lal (supra), Bhagirath vs.
Delhi Administration (supra) and Zahid Hussein (supra).three of the appellants
before the Court were sentenced to death for committing offences punishable
under Section 364-A read with Section 120-B, IPC. They were also convicted
under the provisions of Terrorist and Disruptive Activities (Prevention) Act
(TADA) with different terms of imprisonment for those offences. This Court,
however, commuted the death sentence of the three appellants but having regard
to the gravity of the offences and the dastardly nature of their acts directed
for their 41 incarceration for a period of 20 years with the further direction
that the accused-appellants would not be entitled to any remission from the
term of 20 years. Reference was made to the earlier decisions in Ashok Kumar
vs. Union of India, (1991) 3 SCC 498 and Sat Pal vs. State of Haryana, (1992) 4
SCC 172.
48. On a perusal of
the seven decisions discussed above and the decisions referred to therein it
would appear that this Court modified the death sentence to imprisonment for
life or in some cases imprisonment for a term of twenty years with the further
direction that the convict must not be released from prison for the rest of his
life or before actually serving out the term of twenty years, as the case may
be, mainly on two premises; one, an imprisonment for life, in terms of section
53 read with section 45 of the Penal Code meant imprisonment for the rest of
life of the prisoner and two, a convict undergoing life imprisonment has no
right to claim remission. In support of the second premise reliance is placed
on the line of decisions beginning from Gopal Vinayak Godse vs. The State of
Maharashtra, 1961 (3) SCR 440 and coming down to Mohd. Munna vs. Union of India
(supra).
49. In course of
hearing of the appeal before us strong doubts were raised over the application
of the second premise for putting a sentence of imprisonment beyond remission.
It was contended that to say that a convict undergoing a sentence of
imprisonment had no right to claim 42 remission was not the same as the Court,
while giving the punishment of imprisonment, suspending the operation of the
statutory provisions of remission and restraining the appropriate government
from discharging its statutory function.
50. In this
connection an interesting development was brought to our notice. We were
informed that Subhashsingh Shobhanathsingh Thakur whose death sentence was
modified by this Court to imprisonment for life - till rest of life by its
judgment dated 5 November, 2001 in Jayawant Dattatraya Suryarao vs. State of
Maharashtra, (supra) has filed a writ petition under Article 32 of the
Constitution before this Court (Writ Petition (Criminal) No. 36 of 2008:
Subhashsingh Shobhanathsingh Thakur vs. The State of Maharashtra) challenging,
on substantially the same grounds, the order of the Court, in so far as it
directed for the non application of the statutory provisions of remission to his
case.
51. Our attention was
also invited to a decision of this Court in State (Government of NCT of Delhi)
vs. Prem Raj, (2003) 7 SCC 121. In this case, Prem Raj, the accused respondent
before the court was convicted by the trial court under Section 7 read with
Section 13(1)(d) and 13(2) of the Prevention of Corruption Act and was
sentenced to undergo rigorous imprisonment for two years and a fine of Rs.500/-
under Section 7. He was additionally sentenced to undergo imprisonment for
3-1/2 years and 43 a fine of Rs.1, 000/- under Section 13(2) of the Act,
subject to the direction that the two sentences would run concurrently. In
appeal, on a plea made on the question of sentence, a learned Single Judge of
the High Court enhanced the amount of fine to Rs.15, 000/- in lieu of the
sentences of imprisonment and directed that on deposit of the amount of fine
the State government, being the `appropriate government' would formalize the
matter by passing an appropriate order under Section 433 (c) of the Code of Criminal
Procedure. This Court, on appeal by the State, held that the question of
remission lay within the domain of the appropriate government and it was not
open to the High Court to give a direction of that kind. In the case of Prem
Raj the Court referred to two earlier decisions in Delhi Administration vs.
Manohar Lal, (2002) 7 SCC 222 and State of Punjab vs. Kesar Singh, (1996) 5 SCC
495 and in paragraph 13 of the decision observed as follows :
"An identical
question regarding exercise of power in terms of Section 433 of the Code was
considered in Delhi Admn. (now NCT of Delhi) vs. Manohar Lal.
The Bench speaking
through one of us (Doraiswamy Raju,J.) was of the view that exercise of power
under Section 433 was an executive discretion. The High Court in exercise of
its revisional jurisdiction had no power conferred on it to commute the
sentence imposed where a minimum sentence was provided for the offence. In
State of Punjab vs. Kesar Singh, this Court observed as follows [though it was
in the context of Section 433(b)]: (SCC pp.595-96, para 3)"
"The mandate of
Section 433 Cr. P. C. enables the Government in an appropriate case to commute
the sentence of a convict and to prematurely order his 44 release before
expiry of the sentence as imposed by the courts.....That apart, even if the
High Court could give such a direction, it could only direct consideration of
the case of premature release by the Government and could not have ordered the
premature release of the respondent itself. The right to exercise the power
under Section 433 Cr. P. C.
vests in the
Government and has to be exercised by the Government in accordance with the
rules and established principles. The impugned order of the High Court cannot,
therefore, be sustained and is hereby set aside."
Relying upon the
aforesaid two decisions this Court set aside the order of the court but left it
open to the accused to move the appropriate Government for such relief as may
be available in law. It was further clarified that it would be at the sole
discretion of the Government to exercise the power conferred on it in
accordance with law.
52. Before us it was
submitted that just as the Court could not direct the appropriate government
for granting remission to a convicted prisoner, it was not open to the Court to
direct the appropriate government not to consider the case of a convict for
grant of remission in sentence. It was contended that giving punishment for an
offence was indeed a judicial function but once the judgment was pronounced and
punishment awarded the matter no longer remained in the hands of the Court. The
execution of the punishment passed into the hands of the executive and under
the scheme of the statute the Court had no control over the execution.
53. In our view, the
submission is wholly misconceived and untenable and the decision in the case of
Prem Raj has no application to the issue under consideration.
54. At this stage, it
will be useful to take a very brief look at the provisions with regard to
sentencing and computation, remission etc. of sentences. Section 45 of the
Penal Code defines "life" to mean the life of the human being, unless
the contrary appears from the context. Section 53 enumerates punishments, the
first of which is death and the second, imprisonment for life. Sections 54 and
55 give to the appropriate Government the power of commutation of the sentence
of death and the sentence of imprisonment for life respectively. Section 55A
defines "appropriate Government". Section 57 provides that in
calculating fractions of terms of punishment, imprisonment for life shall be
reckoned as equivalent to imprisonment for twenty years. It is now conclusively
settled by a catena of decisions that the punishment of imprisonment for life
handed down by the Court means a sentence of imprisonment for the convict for
the rest of his life. (See the decisions of this Court in Gopal Vinayak Godse
vs. The State of Maharashtra &others, (1961) 3 SCR 440 (Constitution
Bench); Dalbir Singh & others vs. State of Punjab, (1979) 3 SCC 745; Maru
Ram vs. Union of India, (1981) 1 SCC 107 (Constitution Bench); Naib Singh vs.
State of Punjab, (1983) 2 SCC 454;
Ashok Kumar alias
Golu vs. Union of India, (1991) 3 SCC 498; Laxman 46 Naskar (Life Convict) vs.
State of W.B.,, (2000) 7 SCC 626; Zahid Hussein vs. State of West Bengal,
(2001) 3 SCC 750; Kamalanantha vs. State of Tamil Nadu, (2005) 5 SCC 194;
Mohd.Munna vs. Union of India, (2005) 7 SCC 416 and C.A.Pious vs. State of
Kerala, (2007) 8 SCC 312).
55. It is equally
well-settled that Section 57 of the Penal Code does not in any way limit the
punishment of imprisonment for life to a term of twenty years. Section 57 is
only for calculating fractions of terms of punishment and provides that
imprisonment for life shall be reckoned as equivalent to imprisonment for
twenty years. (See : Gopal Vinayak Godse (supra) and Ashok Kumar alias Golu
(supra). The object and purpose of Section 57 will be clear by simply referring
to Sections 65, 116, 119, 129 and 511 of the Penal Code.
56. This takes us to
the issue of computation and remission etc. of sentences. The provisions in
regard to computation, remission, suspension etc. are to be found both in the
Constitution and in the statutes. Articles 72 and 161 of the Constitution deal
with the powers of the President and the Governors of the State respectively to
grant pardons, reprieves, respites or remissions of punishment or to suspend,
remit or commute the sentence of any person convicted of any offence.
Here it needs to be
made absolutely clear that this judgment is not concerned at all with the
Constitutional provisions that are in the nature 47 of the State's sovereign
power. What is said hereinafter relates only to provisions of commutation,
remission etc. as contained in the Code of Criminal Procedure and the Prisons
Acts and the Rules framed by the different States.
57. Section 432 of
the Code of Criminal Procedure deals with the power to suspend or remit
sentences and Section 433 with the power to commute sentences. Section 433A,
that was inserted in the Code by an amendment made in 1978, imposes restriction
on powers of remission or commutation in certain cases. It reads as follows:
"Restriction on
powers of remission or computation in certain cases - Notwithstanding anything
contained in section 432, where a sentence of imprisonment for life is imposed
on conviction of a person for an offence for which death is one of the
punishment provided by laws or where a sentence of death imposed on a person
has been commuted under section 433 into one of imprisonment for life, such
person shall not be released from prison unless he had at least fourteen years
of imprisonment."
Section 434 gives
concurrent power to the Central Government in case of death sentence and
Section 435 provides that in certain cases the State Government must act only
after consultation with the Central Government.
58. From the Prison
Act and the Rules it appears that for good conduct and for doing certain duties
etc. inside the jail the prisoners are given some days' remission on a monthly,
quarterly or annual basis. The days 48 of remission so earned by a prisoner
are added to the period of his actual imprisonment (including the period
undergone as an under trial) to make up the term of sentence awarded by the
Court. This being the position, the first question that arises in mind is how
remission can be applied to imprisonment for life. The way in which remission
is allowed, it can only apply to a fixed term and life imprisonment, being for
the rest of life, is by nature indeterminate.
59. Mr. U. U. Lalit,
learned counsel appearing for the Informant, suggested that for applying
remission to a sentence of imprisonment for life it would be necessary to first
commute the sentence to a fixed term, say for a term of 20 years and then to
apply the remissions earned by the prisoner to the commuted period and that
would work out to 14 years of actual incarceration.
60. To throw light on
the question Mr. Hegde submitted a note on remission of sentences of
imprisonment as followed in the State of Karnataka, with specific reference to
the facts of this case. The note also encloses the relevant extracts from the
Karnataka Prison Rules, 1974 and the Karnataka Prison Manual, 1978. Chapter XII
of the Karnataka Prison Manual deals with the remission system; Rule 215
defines remission of sentence and provides for three kinds of remissions,
namely, ordinary remission, special remission and remission by the State
Government. But 49 what is significant for our purpose is the stipulation made
in Rule 214(c) which reads as follows:
"The sentence of
all prisoners sentenced to imprisonment for life or to more than 20 years
imprisonment in the aggregate to imprisonment for life and imprisonment for
exceeding in the aggregate 20 years, shall for the these Rules be deemed to be
sentence of imprisonment for 20 years .
(Emphasis added) In
the note submitted by the counsel it is explained that the cases of life
convicts are first considered for remission by an Advisory Board constituted
under Rule 814. The proposals for premature release of life convicts, convicted
after 18 December, 1978 (the date of introduction of Section 433A in the Code)
are placed before the Advisory Board, as provided under Government Order No. HD
92 PRR 88, dated 17 July, 1989 on completion of 13 years and 8 months of
imprisonment including the under trial period. The recommendations of the Board
go to the Inspector General of Prisons together with all the records and are
finally placed before the Government for considering the premature release of
the prisoners on completing 14 years of imprisonment. The State Government
considers the recommendations of the Advisory Board and gives directions either
for the forthwith release of the prisoner or that the prisoner would be
released in the ordinary course on the expiry of the sentence, less the period
of remission earned. In case of a life convict if 50 no order of premature
release is passed there can be no release by the mere lapse of time since a
life sentence is for the rest of life.
61. To the question
whether any specific orders are passed by the Government to commute the
sentence of life imprisonment to imprisonment for 20 years or less, the answer
is given in the note, as follows:
"In addition to
what is stated in para 3.1, it may be added that cases of life imprisonment
pass through the Advisory Board and their recommendations are examined by the
Head of the Department viz., Additional Director General of Police and
Inspector General of Prisons who later forwards them to the Government for passing
final orders. That is how the sentence of life imprisonment is commuted for a
term of 20 years or less as per provisions of Sections 54 and 55 of the IPC and
Section 433A Cr. P. C."
It is further stated
in the note as follows:
"Experience
shows that in respect of life convicts an assumption can be made that the total
sentence is 20 years and if the convict earns all categories of remissions in
the normal course it may come to 6 years which is less than one third of 20
years. This is also in consonance with Order 214(C) of the Prisons Manual which
for the purposes of the rules deems a sentence of imprisonment for life to be a
sentence of imprisonment for twenty years."
[Emphasis added] In
the note, it is further stated that in the event the appellant's sentence is
modified to life imprisonment, his case for premature release would come up
before the Advisory Board in January 2009. The Board shall 51 then make its
recommendation in light of the instructions contained in Chapter XLIV of the
Karnataka Prisons Manual. The recommendation of the Board will be examined by
the Head of the Department and thereafter the State Government will pass
appropriate orders regarding commutation of his sentence.
62. We also got some
enquiries made on the issue of premature release of a life convict in the State
of Bihar and came to learn that the process follows basically a similar
pattern. In Bihar too the order for early release of a convicted prisoner is
passed by the State Government in the Department of Law (Justice) on the basis
of recommendations made by the Bihar State Sentence Remission Board. But there
also the significant thing is the conversion of life imprisonment into
imprisonment for a fixed term. In this regard the Government Letter
No.A/PM-03/81-550 dated 21 January, 1984 was brought to our notice. The letter
begins by stating the Government decision that for grant of remission to a life
convict and for his release from prison, imprisonment for life will be deemed
to be imprisonment for a term of 20 years. Then in paragraph 1 in the letter,
in its original form it was stated that a life convict would not be entitled to
the benefit of set off under Section 428 of the Code of Criminal Procedure,
1973 for the period of incarceration as an under trial. Paragraph 1 of the
letter was, however, deleted by letter No. 3115 dated 23 May, 1985 following
the decision of this Court in Bhagirath vs.
52 Delhi
Administration (supra). Paragraph 2 of the letter as it originally stood
stipulated that an accused who is given the punishment of imprisonment for life
in a capital offence or whose death sentence is commuted to life imprisonment
under Section 433 of the Code as well as an accused who was awarded life
sentence after 18 December, 1978 would be released from prison (a) only on
completion of 14 years of actual imprisonment; and (b) when the total period of
their imprisonment and the days of remission add up to 20 years. Paragraph 2 of
this letter too was later deleted by Government letter No. 2939, dated 29 June,
2007 that provided that the decision to release a convict undergoing life
imprisonment for a capital offence or whose death sentence is commuted to life
imprisonment would be taken by the State Government or by the State Sentence
Remission Board constituted by the Government.
63. It is thus to be
seen that both in Karnataka and Bihar remission is granted to life convicts by
deemed conversion of life imprisonment into a fixed term of 20 years. The
deemed conversion of life imprisonment into one for fixed term by executive
orders issued by the State Governments apparently flies in the face of a long
line of decisions by this Court and we are afraid no provision of law was
brought to our notice to sanction such a course. It is thus to be seen that
life convicts are granted remission and released from prison on completing the
fourteen year term without any sound legal basis. One can safely assume that
the position would be 53 no better in the other States. This Court can also
take judicial notice of the fact that remission is allowed to life convicts in
the most mechanical manner without any sociological or psychiatric appraisal of
the convict and without any proper assessment as to the effect of the early
release of a particular convict on the society. The grant of remission is the
rule and remission is denied, one may say, in the rarest of the rare cases.
64. Here, it may be
noted that this has been the position for a very long time. As far back as in
1973, in Jagmohan Singh (supra) a Constitution Bench of this Court made the
following observation:
"In the context
of our criminal law which punishes murderer, one cannot ignore the fact that
life imprisonment works out in most cases to a dozen years of imprisonment and
it may be seriously questioned whether that sole alternative will be an
adequate substitute for the death penalty."
(Emphasis added) Five
years after Jagmohan, Section 433A was inserted in the Code of Criminal
Procedure, 1973 imposing a restriction on the power of remission or commutation
in certain cases. After the introduction of Section 433A another Constitution
Bench of this Court in Bachan Singh (supra) made the following observation:
"It may be
recalled that in Jagmohan this Court had observed that, in practice, life
imprisonment amounts to 12 years in prison. Now, Section 433A restricts the
power of remission and commutation conferred on the appropriate Government
under Sections 432 and 433, 54 so that a person who is sentenced to
imprisonment for life or whose death sentence is commuted to imprisonment for
life must serve actual imprisonment for a minimum of 14 years."
Thus all that is
changed by Section 433A is that before its insertion an imprisonment for life
in most cases worked out to a dozen years of imprisonment and after its
introduction it works out to fourteen years' imprisonment. But the observation
in Jagmohan that this cannot be accepted as an adequate substitute for the
death penalty still holds true.
65. Earlier in this
judgment it was noted that the decision in Shri Bhagwan (supra) there is a
useful discussion on the legality of remission in the case of life convicts.
The judgment in Shri Bhagwan, in paragraph 22, refers to and quotes from the
earlier decision in State of M.P. vs.
Ratan Singh (supra)
which in turn quotes a passage from the Constitution Bench decision in Gopal
Vinayek Godse (supra). It will be profitable to reproduce here the extract from
Ratan Singh:
"4. As regards
the first point, namely, that the prisoner could be released automatically on
the expiry of 20 years under the Punjab Jail Manual or the Rules framed under
the Prisons Act, the matter is no longer res integra and stands concluded by a
decision of this Court in Gopal Vinayak Godse v. State of Maharashtra, (1961) 3
SCR 440 where the Court, following a decision of the Privy Counsel in Pandit
Kishori Lal v. King Emperor, AIR 1954 PC 64 observed as follows:
55 "Under that
section a person transported for life or any other terms before the enactment
of the said section would be treated as a person sentenced to rigorous
imprisonment for life or for the said term.
If so the next
question is whether there is any provision of law whereunder a sentence for
life imprisonment, without any formal remission by appropriate Government, can
be automatically treated as one for a definite period. No such provision is
found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.
* * * * * A sentence
of transportation for life or imprisonment for life must prima facie be treated
as transportation or imprisonment for the whole of the remaining period of the
convicted person's natural life".
The Court further
observed thus:
"But the Prisons
Act does not confer on any authority a power to commute or remit sentences; it
provides only for the regulation of prisons and for the treatment of prisoners
confined therein. Section 59 of the Prisons Act confers a power on the State
Government to make rules, inter alia, for rewards for good conduct. Therefore,
the rules made under the Act should be construed within the scope of the ambit
of the Act......Under the said rules the order of an appropriate Government
under Section 401 Criminal Procedure Code, are a pre-requisite for a release.
No other rule has been brought to our notice which confers an indefeasible right
on a prisoner sentenced to transportation for life to an unconditional release
on the expiry of a particular term including remissions. The rules under the
Prisons Act do not substitute a lesser sentence for a sentence of
transportation for life.
56 The question of
remission is exclusively within the province of the appropriate Government; and
in this case it is admitted that, though the appropriate Government made
certain remissions under Section 401 of the Code of Criminal Procedure, it did
not remit the entire sentence. We, therefore, hold that the petitioner has not
yet acquired any right to release'.
It is, therefore,
manifest from the decision of this Court that the Rules framed under the
Prisons Act or under the Jail Manual do not affect the total period which the
prisoner has to suffer but merely amount to administrative instructions
regarding the various remissions to be given to the prisoner from time to time
in accordance with the rules. This Court further pointed out that the question
of remission of the entire sentence or a part of it lies within the exclusive
domain of the appropriate Government under Section 401 of the Code of Criminal
Procedure and neither Section 57 of the Indian Penal Code nor any Rules or
local Acts can stultify the effect of the sentence of life imprisonment given
by the court under the Indian Penal Code. In other words, this Court has
clearly held that a sentence for life would ensure till the lifetime of the
accused as it is not possible to fix a particular period the prisoner's death
and remissions given under the Rules could not be regarded as a substitute for
a sentence of transportation for life."
Further, in paragraph
23, the judgment in Shri Bhagwan observed as follows:
"In Maru Ram vs.
Union of India, (1981) 1 SCC 107, a Constitution Bench of this Court reiterated
the aforesaid position and observed that the inevitable conclusion is that
since in Section 433A we deal only with life sentences, remissions lead nowhere
and cannot entitle a prisoner to release. Further, in Laxman Naskar (Life
Convict) vs. State of W.B. & Anr., (2000) 7 SCC 626, after referring to the
decision of the case of Gopal Vinayak Godse vs. 57 State of Maharashtra,
(1961) 3 SCR 440, the court reiterated that sentence for "imprisonment for
life"
ordinarily means
imprisonment for the whole of the remaining period of the convicted person's
natural life; that a convict undergoing such sentence may earn remissions of
his part of sentence under the Prison Rules but such remissions in the absence
of an order of an appropriate Government remitting the entire balance of his
sentence under this section does not entitled the convict to be released
automatically before the full life term if served. It was observed that though
under the relevant Rules a sentence for imprisonment for life is equated with
the definite period of 20 years, there is no indefeasible right of such
prisoner to be unconditionally released on the expiry of such particular term,
including remissions and that is only for the purpose of working out the
remissions that the said sentence is equated with definite period and not for
any other purpose."
The legal position as
enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Mau Ram, Ratan Singh and
Shri Bhagwan and the unsound way in which remission is actually allowed in
cases of life imprisonment make out a very strong case to make a special
category for the very few cases where the death penalty might be substituted by
the punishment of imprisonment for life or imprisonment for a term in excess of
fourteen years and to put that category beyond the application of remission.
66. The matter may be
looked at from a slightly different angle. The issue of sentencing has two
aspects. A sentence may be excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to this court carrying a
death sentence awarded by the trial court and confirmed by the High Court, this
Court may find, as in 58 the present appeal, that the case just falls short of
the rarest of the rare category and may feel somewhat reluctant in endorsing
the death sentence. 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 normally works out to a term of 14 years would be grossly
disproportionate and inadequate. What then the Court should do? If the Court's
option is limited only to two punishments, one a sentence of imprisonment, for
all intents and purposes, of not more than 14 years and the other death, the
court may feel tempted and find itself nudged into endorsing the death penalty.
Such a course would indeed be disastrous. A far more just, reasonable and
proper course would be to expand the options and to take over what, as a matter
of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years'
imprisonment and death. It needs to be emphasized that the Court would take
recourse to the expanded option primarily because in the facts of the case, the
sentence of 14 years imprisonment would amount to no punishment at all.
67. Further, the
formalisation of a special category of sentence, though for an extremely few
number of cases, shall have the great advantage of having the death penalty on
the statute book but to actually use it as little as possible, really in the
rarest of the rare cases. This would only be a 59 reassertion of the
Constitution Bench decision in Bachan Singh (supra) besides being in accord
with the modern trends in penology.
68. In light of the
discussions made above we are clearly of the view that there is a good and
strong basis for the Court to substitute a death sentence by life imprisonment
or by a term in excess of fourteen years and further to direct that the convict
must not be released from the prison for the rest of his life or for the actual
term as specified in the order, as the case may be.
69. In conclusion we
agree with the view taken by Sinha J. We accordingly substitute the death
sentence given to the appellant by the trial court and confirmed by the High
court by imprisonment for life and direct that he shall not be released from
prison till the rest of his life.
70. This appeal
stands disposed off with the aforesaid directions and observations.
.................................
J. [B.N.Agrawal]
.................................
J. [G.S.Singhvi]
.................................J.
[Aftab Alam]
New
Delhi, July 22, 2008.
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