REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.454 OF 2006

Swamy Shraddananda @ Murali Manohar Mishra … Appellant  

Vs.

State of Karnataka … Respondent

J U D G M E N T

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

1

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

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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 façade of deception he went on

14

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

15

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

16

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

17

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

18

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.

19

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.”

20

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

21

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

22

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.

23

(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-à-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

24

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

25

the victim is a person vis-à-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

26

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

27

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

28

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

29

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

30

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

31

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

32

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

33

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

34

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

35

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

36

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 750.

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

37

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 745.

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

38

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

39

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).

47. In  Nazir Khan & others  Vs.  State of  Delhi,  (2003) 8 SCC 461,

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

40

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

41

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

42

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

43

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.

44

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

45

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

46

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

47

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

48

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

49

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

50

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.

51

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

52

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,

53

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:

54

“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.

55

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.

56

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

57

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

58

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]

59

..………………………….J. [Aftab Alam]

New Delhi,  

July 22, 2008.        

60