SHIVA KUMAR @ SHIVA @ SHIVAMURTHY versus STATE OF KARNATAKA on 28 March 2023

SHIVA KUMAR @ SHIVA @ SHIVAMURTHY

v.

STATE OF KARNATAKA

(Criminal Appeal No. 942 of 2023)

MARCH 28, 2023

[ABHAY S. OKA AND RAJESH BINDAL, JJ.]

Penal Code, 1860 – ss.366, 376 and 302 – Power to imposemodified punishment – Appellant convicted u/ss. 366, 376 and 302IPC – Trial Court sentenced the appellant to undergo rigorousimprisonment for the rest of his life – High Court dismissed theappeal preferred by the appellant challenging the conviction andsentence – In appeal before the Supreme Court, appellant contendedthat in view of the law laid down by the Constitutional Bench in thecase of Union of India v. V. Sriharan alias Murugan & Ors., a modifiedsentence can be imposed only by the Constitutional Courts and notby the Sessions Courts – Held: The Constitution Bench in the caseof V. Sriharan case held that power to impose a modified punishmentof providing any specific term of incarceration or till the end ofconvict’s life as an alternative to death penalty, can be exercisedonly by the High Court and the Supreme Court and not by anyother inferior Court – Trial Court could not have directed that theappellant shall not be released till the rest of his life – Even in acase where capital punishment is not imposed, the ConstitutionalCourts can always exercise the power of imposing a modified orfixed-term sentence by directing that a life sentence shall be of afixed period of more than fourteen years – In the given circumstancesof the case, a fixed-term sentence for a period of thirty yearsimposed.

Partly allowing the appeal, the Court

HELD : 1. While imposing a life sentence, if it is directedthat the accused shall not be released for a specific period, itbecomes a modified punishment. In such a case, before the expiryof the fixed period provided, the power to grant remission underCr.P.C. cannot be exercised. [Para 7][674-B]

2. What is held by the Constitution Bench, cannot beconstrued in a narrow perspective. The Constitution Bench has

A

B

CD

EF

G

H

Aheld that there is a power which can be derived from the IPC toimpose a fixed term sentence or modified punishment which canonly be exercised by the High Court or in the event of any furtherappeal, by the Supreme Court and not by any other Court in thiscountry. In addition, the Constitution Bench held that power toimpose a modified punishment of providing any specific term ofBincarceration or till the end of convict’s life as an alternative todeath penalty, can be exercised only by the High Court and theSupreme Court and not by any other inferior Court. [Para 11][676-F-G]

3. When a Constitutional Court finds that though a case isCnot falling in the category of ‘rarest of the rare’ case, consideringthe gravity and nature of the offence and all other relevant factors,it can always impose a fixed-term sentence so that the benefit ofstatutory remission, etc. is not available to the accused. Themajority view in the case of V. Sriharan cannot be construed toDmean that such a power cannot be exercised by the ConstitutionalCourts unless the question is of commuting the death sentence.[Para 12][677-A-C]

4. This Court has no manner of doubt that even in a casewhere capital punishment is not imposed or is not proposed, theEConstitutional Courts can always exercise the power of imposinga modified or fixed-term sentence by directing that a life sentence,as contemplated by “secondly” in Section 53 of the IPC, shall beof a fixed period of more than fourteen years, for example, oftwenty years, thirty years and so on. The fixed punishment cannotbe for a period less than 14 years in view of the mandate of SectionF433A of Cr.P.C. [Para 13][677-G-H; 678-A]

5. It is true that the Trial Court could not have directedthat the appellant shall not be released till the rest of his life.The Trial Court noted the fact that on the date of conviction, theage of the appellant was 27 years and he had a wife and smallGchild as well as aged parents. Considering these factors alongwith the fact that this was the first offence committed by theappellant, the Trial Court found that the case was not falling inthe category of the ‘rarest of the rare’ cases. This Court musthasten to add that the fact that the accused has no antecedents, H

A

is no consideration by itself for deciding whether the accusedwill fall in the category of the ‘rarest of the rare’ cases. [Para15][678-G-H; 679-A]

6. This is one case where a Constitutional Court mustexercise the power of imposing a special category of modifiedpunishment. The High Court expressed the view that thepunishment imposed by the Trial Court was justified afterconsidering the balance sheet of aggravating and mitigatingcircumstances. It is the duty of the Court to consider all attendingcircumstances. The Court, while considering the possibility ofreformation of the accused, must note that showing undueleniency in such a brutal case will adversely affect the publicconfidence in the efficacy of the legal system. The Court mustconsider the rights of the victim as well. After having consideredthese circumstances, this Court is of the opinion that this is acase where a fixed-term sentence for a period of thirty years mustbe imposed. [Para 16][679-B-D]

B

C

D

Union of India v. V. Sriharan alias Murugan & Ors.2016 (7) SCC 1 : [2015] 14 SCR 613 – followed.

Swamy Shraddananda (2) alias Murali Manohar Mishrav. State of Karnataka 2008 (13) SCC 767 : [2008] 11SCR 93; Sahib Hussain alias Sahib Jan v. State ofRajasthan 2013 (9) SCC 778 : [2013] 2 SCR 1019;Gurvail Singh alias Gala v. State of Punjab 2013 (10)SCC 631 : [2013] 17 SCR 983 – referred to.

E

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.942 of 2023.

From the Judgment and Order dated 31.05.2016 of the High Courtof Karnataka at Bengaluru in CRLA No.245 of 2011.

H

K. Parameshwar, Shekhar G Devasa, Manish Tiwari, Ms.Thashmitha Muthanna, Prashant Dixit, Vishwanath Chaturvedi, ShashiBhushan, Sunil Ambavelil for M/s. Devasa & Co., Advs. for the Appellant.

A

Shubhranshu Padhi, Vishal Banshal, Ms. Rajeshwari Shankar,Niroop Sukrithy, Ovias Moh., Advs. for the Respondent.

BThe Judgment of the Court was delivered by ABHAY S. OKA, J.

1. Heard learned counsel for the parties.

FACTUAL ASPECTSC

2. The appellant has been convicted for the offences punishableunder Sections 366, 376 and 302 of the Indian Penal Code, 1860 (forshort, ‘IPC’). The controversy is limited to the sentence for the offencepunishable under Section 302 of the IPC. The learned Sessions Judge(Fast-Track Court) sentenced the appellant to undergo rigorousDimprisonment for the rest of his life. The appellant preferred an appealbefore the High Court to challenge the conviction and sentence. TheState Government preferred an appeal for enhancement of the sentence.The High Court, by the impugned judgment, dismissed both appeals. On21[st] April 2017, notice was issued by this Court only on sentence.

ESUBMISSIONS

ESUBMISSIONS

3. The learned counsel appearing for the appellant-accusedsubmitted that in view of the law laid down by the Constitution Bench ofthis Court in the case of Union of India v. V. Sriharan alias Murugan& Ors.[1], a modified sentence can be imposed only by the ConstitutionalFCourts and not by the Sessions Courts. He submitted that theConstitutional Courts can grant life sentence either for the entirety oflife or for a specific period, only while commuting the death penaltyimposed on an accused. If the death penalty is not imposed, the Courtsare powerless to impose a modified sentence. He also relied upon adecision of this Court in the case of Swamy Shraddananda (2) aliasGMurali Manohar Mishra v. State of Karnataka[2]. He invited ourattention to paragraph 105 of the decision of the Constitution Bench inthe case of V. Sriharan[1], wherein this Court has laid down that a modifiedsentence can be an alternative only to the death penalty. He, therefore,1 2016 (7) SCC 1H2 2008 (13) SCC 767

submitted that the Constitution Bench held that a fixed-term sentence ormodified sentence can be imposed by way of substitution for the deathpenalty.

4. He submitted that even the subsequent decisions of this Courtshow that imposition of a modified sentence was made only in the caseswhere the death penalty has been commuted. He relied upon the decisionof this Court in the case of Sahib Hussain alias Sahib Jan v. State ofRajasthan[3]and in the case of Gurvail Singh alias Gala v. State ofPunjab[4].

5. On facts, he pointed out that at the time of the commission ofthe offence, the appellant’s age was 22 years. He pointed out that theappellant has a young wife, a small child and aged parents. Moreover,he has no antecedents and poses no threat to society. Moreover, hisconduct in jail is all throughout satisfactory and in fact, he has completedB.A. degree course while in jail. Lastly, he pointed out that the appellanthas undergone sentence for approximately seventeen years and twomonths.

6. The submission of the learned counsel appearing for therespondent – State is that the Constitutional Courts are not powerless toimpose modified sentences considering the gravity of the offence, theconduct of the accused and other relevant factors even though the deathpenalty has not been imposed. He submitted that the power of theConstitutional Courts to grant a modified sentence could not becircumscribed by holding that the said power can be exercised only whenthe question is of commuting the death sentence. By pointing out findingsof the Trial Court and the High Court, he submitted that in the facts ofthis case, the most stringent punishment was contemplated. He submittedthat in any case, the High Court, after considering all the factual aspects,has reiterated the view taken by the Sessions Court by imposing a sentencefor the entirety of the appellant’s life.

OUR VIEW

7. Under Chapter III of the IPC, different punishments have beenprovided. Section 53 provides for five categories of punishments: thedeath penalty, imprisonment for life, imprisonment (either rigorous orsimple), forfeiture of property and fine. It is also a settled position that 3 2013 (9) SCC 778

4 2013 (10) SCC 631

AB

CD

E

F

G

H

Awhen an offender is sentenced to undergo imprisonment for life, theincarceration can continue till the end of the life of the accused. However,it is subject to a grant of remission under the provisions of the Code ofCriminal Procedure, 1973 (for short, ‘Cr.P.C.’) and the Constitutionalpowers vested in the Hon’ble Governor and the Hon’ble President ofIndia, as the case may be. While imposing a life sentence, if it is directedBthat the accused shall not be released for a specific period, it becomes amodified punishment. In such a case, before the expiry of the fixedperiod provided, the power to grant remission under Cr.P.C. cannot beexercised.

8. The learned counsel appearing for the appellant has relied uponCwhat is held in paragraph 56 of the decision of this Court in the case ofSwamy Shraddananda[2], which reads thus:

“56. But this leads to a more important question about thepunishment commensurate to the appellant’s crime. The sentenceof imprisonment for a term of 14 years, that goes under theDeuphemism of life imprisonment is equally, if not more,unacceptable. As a matter of fact, Mr. Hegde informed us thatthe appellant was taken in custody on 28-3-1994 and submittedthat by virtue of the provisions relating to remission, the sentenceof life imprisonment, without any qualification or further directionEwould, in all likelihood, lead to his release from jail in the firstquarter of 2009 since he has already completed more than 14years of incarceration. This eventuality is simply not acceptableto this Court. What then is the answer? The answer lies in breakingthis standardisation that, in practice, renders the sentence of lifeimprisonment equal to imprisonment for a period of no more thanF14 years; in making it clear that the sentence of life imprisonmentwhen awarded as a substitute for death penalty would becarried out strictly as directed by the Court. This Court,therefore, must lay down a good and sound legal basis forputting the punishment of imprisonment for life, awardedGas substitute for death penalty, beyond any remission andto be carried out as directed by the Court so that it may befollowed, in appropriate cases as a uniform policy not onlyby this Court but also by the High Courts, being thesuperior courts in their respective States. A suggestion tothis effect was made by this Court nearly thirty years ago in Dalbir H

Singh v. State of Punjab [(1979) 3 SCC 745 : 1979 SCC (Cri)848] . In para 14 of the judgment this Court held and observed asfollows: (SCC p. 753)

“14. The sentences of death in the present appeal are liable tobe reduced to life imprisonment. We may add a footnote to theruling in Rajendra Prasad case [Rajendra Prasad v. Stateof U.P., (1979) 3 SCC 646 : 1979 SCC (Cri) 749] .

Taking the cue from the English legislation on abolition, wemay suggest that life imprisonment which strictly meansimprisonment for the whole of the men’s life but in practiceamounts to incarceration for a period between 10 and 14 yearsmay, at the option of the convicting court, be subject to thecondition that the sentence of imprisonment shall last aslong as life lasts, where there are exceptional indicationsof murderous recidivism and the community cannot run therisk of the convict being at large. This takes care of judicialapprehensions that unless physically liquidated the culprit mayat some remote time repeat murder.”

We think that it is time that the course suggested in Dalbir Singh[(1979) 3 SCC 745 :1979 SCC (Cri) 848] should receive a formalrecognition by the Court.”

9. In the case of V. Sriharan[1], the Constitution Bench was dealingwith the question which is quoted in paragraph 50, which reads thus:

“50. Having thus noted the relevant provisions in the Constitution,the Penal Code, the Criminal Procedure Code and the DSPE Act,we wish to deal with the questions referred for our considerationin seriatim. The first question framed for the consideration of theConstitution Bench reads as under : (V. Sriharan case [Unionof India v. V. Sriharan, (2014) 11 SCC 1 : (2014) 3 SCC (Cri) 1], SCC p. 19, para 52)

“52.1. Whether imprisonment for life in terms of Section53 read with Section 45 of the Penal Code meantimprisonment for rest of the life of the prisoner or a convictundergoing life imprisonment has a right to claim remissionand whether as per the principles enunciated in paras 91

A

BC

D

E

F

G

H

676SUPREME COURT REPORTS

Ato 93 of Swamy Shraddananda (2) [Swamy Shraddananda(2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC(Cri) 113], a special category of sentence may be made forthe very few cases where the death penalty might besubstituted by the punishment of imprisonment for life orimprisonment for a term in excess of fourteen years and toBput that category beyond application of remission?”

10. While answering the question, the Constitution Bench (majorityview) held that imprisonment for life in terms of Section 53 read withSection 45 of the IPC means imprisonment for the rest of the life of theconvict. In such a case, right to claim remission, commutation etc. inCaccordance with law will always be available. Thereafter, in paragraph105, the Constitution Bench held thus:

“105. We, therefore, reiterate that the power derived fromthe Penal Code for any modified punishment within thepunishment provided for in the Penal Code for suchDspecified offences can only be exercised by the High Courtand in the event of further appeal only by the Supreme Courtand not by any other court in this country. To put it differently,the power to impose a modified punishment providing for anyspecific term of incarceration or till the end of the convict’s life asEan alternate to death penalty, can be exercised only by the HighCourt and the Supreme Court and not by any other inferior court.”

11. What is held by the Constitution Bench, cannot be construedin a narrow perspective. The Constitution Bench has held that there is aFpower which can be derived from the IPC to impose a fixed termsentence or modified punishment which can only be exercised by theHigh Court or in the event of any further appeal, by the Supreme Courtand not by any other Court in this country. In addition, the ConstitutionBench held that power to impose a modified punishment of providingGany specific term of incarceration or till the end of convict’s life as analternative to death penalty, can be exercised only by the High Courtand the Supreme Court and not by any other inferior Court.

12. In a given case, while passing an order of conviction for anoffence which is punishable with death penalty, the Trial Court maycome to a conclusion that the case is not a ‘rarest of the rare’ case. InH

such a situation, depending upon the punishment prescribed for theoffence committed, the Trial Court can impose other punishmentspecifically provided in Section 53 of the IPC. However, when aConstitutional Court finds that though a case is not falling in the categoryof ‘rarest of the rare’ case, considering the gravity and nature of theoffence and all other relevant factors, it can always impose a fixed-termsentence so that the benefit of statutory remission, etc. is not availableto the accused. The majority view in the case of V. Sriharan[1]cannot beconstrued to mean that such a power cannot be exercised by theConstitutional Courts unless the question is of commuting the deathsentence. This conclusion is well supported by what the ConstitutionBench held in paragraph 104 of its decision, which reads thus:

“104. That apart, in most of such cases where death penalty orlife imprisonment is the punishment imposed by the trial court andconfirmed by the Division Bench of the High Court, the convictconcerned will get an opportunity to get such verdict tested byfiling further appeal by way of special leave to this Court. By wayof abundant caution and as per the prescribed law of theCode and the criminal jurisprudence, we can assert thatafter the initial finding of guilt of such specified graveoffences and the imposition of penalty either death or lifeimprisonment, when comes under the scrutiny of theDivision Bench of the High Court, it is only the High Courtwhich derives the power under the Penal Code, whichprescribes the capital and alternate punishment, to alterthe said punishment with one either for the entirety of theconvict’s life or for any specific period of more than 14 years,say 20, 30 or so on depending upon the gravity of the crimecommitted and the exercise of judicial conscience befittingsuch offence found proved to have been committed.”

13. Hence, we have no manner of doubt that even in a case wherecapital punishment is not imposed or is not proposed, the ConstitutionalCourts can always exercise the power of imposing a modified orfixed-term sentence by directing that a life sentence, as contemplatedby “secondly” in Section 53 of the IPC, shall be of a fixed period ofmore than fourteen years, for example, of twenty years, thirty years and A

B

C

D

E

F

G

H

Aso on. The fixed punishment cannot be for a period less than 14 years inview of the mandate of Section 433A of Cr.P.C.

14. Now, we come to the facts of the case. The facts are such,which will shock the conscience of any Court. The deceased woman,who was happily married, worked in a prominent company having anBoffice at Electronic City, Bengaluru. Considering the nature of her duty,she had to work till late night or even till early in the morning. The companyused to provide her conveyance in the form of a car. The company usedto provide cars to employees on different designated routes. On thefateful day, the deceased left the office at 2:00 a.m. in a vehicle providedby the company. She used to take a vehicle plying on route no.131. OnCthat day, she was informed by the appellant, who was the driver, that thevehicle operating on route no.131 was not available. The appellant toldher that she will have to travel by his vehicle operating on route no.405.The deceased, accordingly, sat in the car driven by the accused. Thematernal uncle of the deceased lodged a complaint by stating that theDdeceased was missing. Ultimately, her dead body was recovered at theinstance of the appellant. The clothes on the person of the deceased,footwear, etc. were found near the dead body. The prosecutionsuccessfully established the charge of the offence of rape, punishableunder Section 376 of the IPC as well as the offence under Section 366of IPC. The appellant–accused was also convicted for the offence underESection 302. The life of the victim was cut short in this brutal manner atthe age of 28 years.

15. In many leading cities, IT hubs have been established. In fact,Bengaluru is known as the Silicon Valley of India. Some of thesecompanies have customers abroad and that is why the company staffFmembers work at night. A large number of staff members in suchcompanies are women. The issue is of safety and security of womenworking with such companies. We have perused the judgment of theTrial Court. It is true that the Trial Court could not have directed that theappellant shall not be released till the rest of his life. The Trial CourtGnoted the fact that on the date of conviction, the age of the appellantwas 27 years and he had a wife and small child as well as aged parents.Considering these factors along with the fact that this was the first offencecommitted by the appellant, the Trial Court found that the case was notfalling in the category of the ‘rarest of the rare’ cases. We must hastento add that the fact that the accused has no antecedents, is noH

Analysis

consideration by itself for deciding whether the accused will fall in thecategory of the ‘rarest of the rare’ cases. It all depends on severalfactors. The State Government failed in its endeavour to get capitalpunishment by way of filing an appeal.

16. This is one case where a Constitutional Court must exercisethe power of imposing a special category of modified punishment. TheHigh Court expressed the view that the punishment imposed by the TrialCourt was justified after considering the balance sheet of aggravatingand mitigating circumstances. It is the duty of the Court to consider allattending circumstances. The Court, while considering the possibility ofreformation of the accused, must note that showing undue leniency insuch a brutal case will adversely affect the public confidence in theefficacy of the legal system. The Court must consider the rights of thevictim as well. After having considered these circumstances, we are ofthe opinion that this is a case where a fixed-term sentence for a periodof thirty years must be imposed.

17. Accordingly, we modify the order of sentence of the TrialCourt for the offence punishable under Section 302 of the IPC. Wedirect that the appellant shall undergo imprisonment for life. We alsodirect that the appellant shall be released only after he completes thirtyyears of actual sentence. The appeal is partly allowed to the aboveextent.

Ankit Gyan

Appeal partly allowed.

(Assisted by : Raoul Savant and Aarsh Choudhary, LCRAs)

A

B

C

DE

F

G

H