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CASE NO.: Appeal (crl.)  454 of 2006

PETITIONER: Swamy Sharaddanandea @ Murali Monahar Mishra

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 18/05/2007

BENCH: Markandey Katju

JUDGMENT: J U D G M E N T

MARKANDEY KATJU, J.

1.      I have perused the judgment of my learned brother Hon’ble S.B.  Sinha, J. in this case.  The facts of the case have been narrated in the  judgment of my learned brother and hence I am not referring to them except  where necessary.   

2.      While I entirely agree with my learned brother that the conviction of  the appellant under Section 302 and other provisions of IPC imposed by the  Trial Court and High Court deserves to be upheld,  I express my inability  with my learned brother that the death sentence imposed by the Trial Court  and confirmed by the High Court should be reduced to life sentence.  In my  opinion this case falls within the category of rarest of rare cases and hence  the appellant deserves death sentence.

3.      In Aloke Nath Dutta & Ors.  vs.  State of West Bengal 2006(13)  SCALE 467 a Division Bench of this Court referred to the Constitution  Bench judgment of this Court in Bachan Singh  vs.  State of Punjab AIR  1980 SC 898 in which it is laid down that death penalty should only be  imposed in the rarest of rare cases.  In Machi Singh vs. State of Punjab  1983 (3) SCC 470 (vide paragraphs 32 to 37) a 3 Judge Bench of this Court  gave the following illustrations of murders which fall within the category of  ’rarest of rate cases’ and hence deserved death penalty.

(i)     When the murder is committed in an extremely  brutal, grotesque, diabolical, revolting or dastardly  manner so as to arouse intense and extreme  indignation of the community.

(ii)    When the murder is committed for a motive which  evinces total depravity and meanness; e.g. murder  by hired assassin for money or reward; or cold- blooded murder for gains of a person vis-‘-vis  whom the murderer is in a dominating position or  in a position of trust; or murder is committed in the  course of betrayal of the motherland.

(iii)   When murder of a member of a Scheduled Caste  or minority community, etc. is committed not for  personal reasons but in circumstances which  arouse social wrath; or in cases of "bride-burning"  or "dowry deaths" or when murder is committed in  order to remarry for the sake of extracting dowry  once again to marry another woman on account of

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infatuation.

(iv)    When the crime is enormous in proportion.  For  instance when multiple murders, say of all or  almost all the members of a family or a large  number of persons of a particular caste,  community, or locality, are committed.

(v)     When the victim of murder is an innocent child, or  a helpless woman or old or infirm person or a  person vis-‘-vis whom the murderer is in a  dominating position, or a public figure generally  loved and respected by the community.      

4.      In Bachan Singh’s case (supra), the Constitution bench observed that  the death penalty contemplated by Section 302 IPC is not unreasonable or  against the public interest, and it does not violate Articles 19 or 21 of the  Constitution.  In the same decision it was also observed (vide para 201) that  judicial discretion cannot be fettered by attempting to make  an exhaustive  enumeration one way or the other.  Hence, it follows that the 5 principles  referred to in Aloke Nath Dutta’s case (supra) justifying award of death  penalty can only be treated as illustrative and not exhaustive.  

5.      In Holiram Bordoloi  vs.  State of Assam 2005 (3) SCC 793 this  Court observed that pre-planned, calculated, cold-blooded murder has  always been regarded as one of an aggravated kind.  A murder diabolically  conceived and cruelly executed would justify the imposition of the death  penalty on the murderer.   

6.      In my opinion the facts of the present case clearly fall within the  category of rarest of rare cases as laid down by the Constitution Bench  Judgment in Bachan Singh’s case and in Machi Singh’s case (supra).  It  clearly comes within the first, second and fifth categories mentioned above,  and it falls under the category of rarest of rare cases deserving death  sentence.

7.      No doubt as observed in paragraph 173 of the judgment in                     Aloke Nath Dutta’s case (Supra)  there has been a growing demand in the  international fora that the death penalty should be abolished.  However,  in  my opinion, in India the death penalty cannot be abolished by a judicial  verdict as death sentence is contemplated by the Constitution and the I.P.C.   Thus  Article 72(1)(c) of the Constitution specifically mentions that the  President of India has the power to grant pardons, reprieves or suspension of  any death sentence.  Similarly Article 72(3) also contemplates the power in  the Governor of the State to suspend, remit or commute a death sentence.   Hence if we hold that the Courts have no power to impose a death sentence  we will really be amending the Constitution by a judicial verdict.  Again, if  we hold that the Courts have no power to impose death sentence merely  because the death sentence has been abolished in some foreign countries in  Europe or because there is a demand in the international fora that death  sentence should be abolished, we will be really amending the Constitution  by a judicial verdict.  In my opinion this Court has no power to amend the  Constitution by a judicial verdict.  The Constitution can only be amended by  Parliament in the manner prescribed by Article 368 of the Constitution.  This  Court cannot arrogate to itself the power of Parliament under the  Constitution and must maintain self-restraint.  Moreover, what has happened  in foreign countries cannot be automatically applied to our country where  the situation is different.   

8.      No doubt Parliament can abolish the death sentence by deleting it as  one of the punishments prescribed in the I.P.C or other statutes, but this  Court cannot do so.  The Court cannot legislate or amend the law.  There is  broad separation of powers under the Constitution and this Court must not

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ordinarily encroach into the legislative or executive domain as held by us in  Indian Drugs & Pharmaceuticals Ltd.  Vs.  The Workman of Indian  Drugs & Pharmaceuticals Ltd.  2007(1) SCC 408.  

9.      In my opinion the facts of the present case clearly fall within the  principle of the first, second and fifth category mentioned earlier in this  judgment and thus this case falls within the category of the rarest of rare  cases.  It is a case of a pre-planned and cold blooded murder diabolically  conceived and cruelly executed.

10.     Before coming to the facts of the case I would also like to say that  there cannot be an absolute principle of law that merely because there has  been a long lapse of the time from the commission of the offence and the  final conviction and sentence by this Court the death penalty can never be  imposed.   It all depends on the facts of each case.     It is well known that  now-a-days a long interval of time frequently occurs between the  commission of the offence and the final conviction by this Court (because of  the delays in the trial, appeals, etc.), and hence if we lay down any absolute  principle of law that merely because of this long interval death penalty  cannot be imposed then in all such cases merely because  of lapse of time  death penalty cannot be imposed even though the murder was cold blooded,  diabolical and heinous.  This again would be amending the Constitution by a  judicial verdict.  Moreover this would give encouragement to the accused  and their lawyers to delay proceedings in Court (by unnecessary  adjournments, interlocutory applications, etc.) to avoid the death penalty.  I,  therefore, cannot agree with the view that merely because a long lapse of  time has occurred between the commission of the offence and the final  decision of this Court the death penalty cannot be imposed.

11.     I also do not agree with the observations in paragraph 173 of the  Aloke Nath Dutta’s case (Supra) that in cases of circumstantial evidence  ordinarily the death penalty should not be awarded.  In my opinion no such  absolute proposition of the law can be been laid down.  It all depends on the  facts of each case.  Criminals have been hanged even on the basis of  circumstantial evidence.  Hence I cannot agree that we can lay down any  such absolute proposition as was laid down in Aloke Nath Dutta’s case  (Supra).  There is no principle of law that only direct evidence is strong and  reliable while circumstantial evidence is weak and unreliable.   Circumstantial evidence can be as strong and reliable as direct evidence, but  the only requirement is that the prosecution must establish beyond  reasonable doubt that there is a chain of links which connects the accused  with the crime.

12.     I may now deal with the facts of the present case which clearly shows  the diabolical, cold blooded, evil  mind of the appellant who has acted in a  most depraved, malevolent and condemnable manner, taking advantage of a  lady’s innocence.                

13.     The deceased Smt. Shakereh was married to one Mr. Akbar Khaleeli  who was in the Indian Foreign Service.  They had four daughters.  In 1983  the deceased along with her children visited the Nawab of Rampur who was  evidently a friend of the deceased and her husband.  The accused was at that  time assisting the Rampur royal family in the management of their landed  properties and he was introduced to the Khaleeli family.  After getting  acquainted with them the accused gained their confidence.  Since certain  matters relating to the properties of the deceased at Bangalore needed to be  sorted out she sought assistance of the accused having regard to his alleged  expertise in dealing with property matters.  The deceased Smt. Shakereh  who comes from a good family had inherited huge properties including  House No.81, Richmond Road, Bangalore, and other properties.   

14.     Since, Mr.Akbar Khaleeli had to go to Iran on his posting as a  diplomat, Smt. Shakereh came to Bangalore.  The accused also came to  Bangalore and was provided accommodation in the same house.  It is stated  that Shakereh had only daughters and she longed for a son.  The accused

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made her believe that he could bless her with a son.  In 1985, Akbar Khaleeli  and Smt. Shakereh divorced, and a few months thereafter the deceased  married the accused and both started living together in House No.81,  Richmond Road, Bangalore.   

15.     However, even after divorce and second marriage of Smt. Shakereh  her relationship with her parents and daughters remained unaffected and she  was in regular touch with her daughter Sabah, P.W. 5 by talking with her  over telephone or meeting her personally.  Sabah was a model and publisher  of a fashion magazine in Mumbai, and she would regularly telephone her  mother, sometimes twice a day.  She would also get telephone calls regularly  from her mother.  However, from May 1991, the deceased became  unavailable and when Sabah tried to contact her on telephone, the accused  informed her that her mother had gone to Hyderabad for the marriage of a  relative.  Telephone calls from the deceased to Sabah also stopped coming  from May 1991.  After four or five days Sabah again telephoned to her  mother’s house at Bangalore, and this time she was told by the accused that  Shakereh had gone to Kutch for a marriage of a big diamond merchant.   Again after four or five days Sabah telephoned to her mother’s house.  This  time the accused told her that her mother was facing income tax problems  and hence she was not in a position to talk to anyone.   

16.     Since Sabah was not able to speak to her mother despite repeated  endeavours and since telephone calls from her mother stopped coming to  her, she came  from Mumbai to Bangalore and went to House No.81,  Richmond Road.  She asked the accused as to where her mother was.  The  accused told her that since her mother was longing for a male baby she had  become pregnant and wanted a peaceful atmosphere for nine months.  When  Sabah asked where her mother had gone, the accused told her she was  admitted in Roosevelt Hospital, New York, since it was the best hospital.   Sabah then asked the accused to give the telephone number and address of  the hospital where her mother was admitted, but the accused refused to give  her the address or telephone number saying that since her mother wanted a  peaceful atmosphere the telephone number and address were unnecessary.   Later Sabah contacted the Roosevelt hospital at New York through a friend  and came to know that no woman of the name Shakereh was admitted in the  hospital.  Sabah then confronted the accused and told him that there was no  one  in the name of her mother in the hospital and asked the accused to tell  her where her mother was.  The accused told Sabah that since her mother  was pregnant and wanted  to keep it a secret and  rest for  nine months  so he  could not give her the correct address.   Sabah then asked the accused to at  least allow her to speak with her mother on telephone so that she could hear  her mother’s voice, but the accused did not do that.   Sabah came to  Bangalore but did not find her mother there.  At Bangalore whenever any  telephone rang the accused used to lift the receiver and tell Sabah that the  telephone was from her mother, but before Sabah could go near the  telephone, the telephone used to get disconnected and the accused told her  that the call was from her mother.   

17.     Sabah then returned to Mumbai.  Thereafter, the accused visited  Mumbai two or three times where he used to stay at Taj hotel, which is a  very costly hotel with two or three persons.  These two or three persons were  women.  In December 1991, the accused came to Mumbai  and stayed at Sea  Rock hotel (which is also a very expensive hotel).    The accused told Sabah  that he had come to attend a marriage.  Sabah went to the room of the  accused in the hotel and saw her mother’s passport there which showed that  her mother had not left India for any foreign country since 1989.  The  accused told Sabah that her mother was in India and asked her to be patient  for some more months.  In March 1992, Sabah rang the accused and told  him that it was already nine months since the time the accused told her that  Shakereh was pregnant and now he had to tell her the whereabouts  of her  mother otherwise she would lodge a police complaint.  To that,  the accused  told Sabah to remain patient and he would inform her in a day or two.   After  two or three days the accused informed her that her mother had given birth  to a male child.  When Sabah asked him to give the address of her mother

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the accused evaded the question and told her to wait for some more time.   The accused then asked Sabah to come to Bangalore where she could meet  Shakereh and the child.   Accordingly, Sabah informed the accused the date  of her journey and came to Bangalore by air but did not find either the  accused, her mother or the child at house No. 81, Richmond Road.   After  four hours of her arrival in the house, the accused came to the house and told  Sabah that he along with Shakereh were waiting for her at the airport and  when they did not find Sabah there, the accused left Shakereh in the farm  house.  The accused then told Sabah that her mother would be coming the  next day and there was no need to lodge any complaint.   

18.     Since the accused did not produce Shakereh and did not give Sabah  the whereabouts of her mother, Sabah returned to Mumbai and then again  came to Bangalore and lodged an FIR in Ashoknagar police station on  10.6.1992 stating that her mother had been missing.   

19.     The investigation was entrusted to the Central Crime Branch (CCB),  Bangalore on 26.3.1994 since the Ashok Nagar police did not make serious  efforts in the matter.  The Central Crime Branch suspecting the role of the  accused in the disappearance of Smt. Shakereh arrested the accused on  28.3.1994 and interrogated him thoroughly.  It is stated that during  interrogation the accused broke down and made the voluntary statement as  per Ex. P.175 disclosing that he had drugged Smt. Shakereh, put her in a  coffin like big box and had buried the box in the backyard of the house i.e.  House No. 81, Richmond Road, Bangalore.

20.     The Investigating Officer then sought for necessary permission from  the Sub-Divisional Magistrate for exhumation and on 30.3.1994 exhumation  proceedings were conducted at 81, Richmond Road, Bangalore as pointed  out by the accused.   At the exhumation, apart from the Taluka Executive  Magistrate, Mahazar witnesses, investigating team, a doctor trained in  forensic medicine were present.  After the exact place was marked by a  chalk indicating the place as the place of burial of the box containing the  body of Smt. Shakereh, the marked area was dug up after removal of some  stone slabs  and after considerable digging, a big wooden box lying inside  was noticed.  On removing the planks of the lid, it was noticed that the box  contained a foam bed and a bed-sheet on the top.  The same were removed  and underneath it, skeletal remains with nightie, long hair and feminine  articles like bangles, rings etc. were noticed.  The skeletal remains were  subjected to autopsy.  

21.     To confirm whether the skeleton was that of Smt. Shakereh, the skull  was sent to a forensic science laboratory along with a photograph of Smt.  Shakereh.  The Investigating Officer also sought the opinion of the experts  through DNA finger printing etc.  The experts confirmed that the skeleton  indeed was that of Smt. Shakereh.  The investigating team not only recorded  the statements of witnesses  (the servants, relatives etc.) but also the people  with whom the accused had dealings about the properties of the deceased,  the bank officials etc. as to the financial aspects and transaction of both the  accused and the deceased.  A large number of documentary records were  also collected.  The accused was then charged under Sections 302/201 IPC.

22.     As many as 39 witnesses were examined by the trial court.  The trial  court after considering the entire evidence sentenced the accused to death  and the death sentence was confirmed by the High Court.

23.     It has been submitted by the learned counsel for the appellant that  there are no eyewitnesses in the case.  In my opinion, there is convincing  circumstantial evidence to establish the guilt of the accused.

24.     As already stated above, it is not correct to say that only direct  evidence is  strong evidence while  circumstantial evidence is  weak  evidence.  Both kinds of evidence can be strong in a given situation. The  only requirement in circumstantial evidence is that the chain of links  connecting the accused with the crime should be established beyond

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reasonable doubt.   In my opinion, in this case the facts clearly establish the  chain of circumstances linking the accused with the crime.  These  circumstances are as follows:

(i)     The deceased was living with the accused in house  No.81, Richmond  Road, at the time when she  disappeared.  No one else was there as even the  servants had left (in the circumstances mentioned  below).    (ii)    During this period the deceased is alleged to have  executed a Will and a General Power of Attorney  in favour of the accused, and a large number of  bank accounts in different banks were opened in  joint names of the accused and the deceased.  The  bank lockers were also in the joint names.  They  started a private firm called S.S. Housing Private  Limited of which they were the only shareholders.   All these facts establish the strong motive of the  accused who wanted to grab the property of the  deceased.

(iii)   Till May 1991 whenever possible PW5 Sabah,  daughter of the deceased used to call the deceased  over the phone and talk with her or meet her  personally whenever she was in Bangalore and the  deceased would also telephone Sabah regularly,   but after May 1991  she was not allowed to talk to  her mother on telephone whenever she called her,  nor did the deceased call her.  Instead, the accused  gave evasive and contradictory replies whenever  Sabah used to telephone to try to talk to her  mother.  The accused said all kinds of lies, e.g.   that the deceased had gone to Hyderabad, then on  the next occasion that she had gone to Kutch,  thereafter that she was pregnant and had gone to  Roosevelt Hospital, New York, but on enquiry  when Sabah came to know that there was no such  lady in the name of Shakereh in the hospital, he  admitted that he had given a false statement etc.   All these facts point to the guilt of the accused who  kept telling lies constantly on every occasion  whenever Sabha contacted him.  

(iii)   It appears that the accused saw an opportunity to  kill the deceased when the maid-servant PW19  Josephine and her husband PW18 Raju received a  telegram informing them that the sister-in-law of  PW18 was sick in Andhra Pradesh and they were  required to go to that place. They got leave from  Shakereh and went to Andhra Pradesh.  Thus,  Shakereh was left alone in the house with the  accused and he got that opportunity to kill her.

(iv)    The dead body of Shakereh was found in the  backyard of the house at the pointing out of the  deceased. The statement of the accused was made  before the Executive Magistrate PW 3.  It has  come in evidence that the accused had gone to a  carpenter to get a box with wheels, which he kept  in the guest house.  This was the box utilized for  burying the body.  

(v)     During the investigation, it was disclosed that right  from 1991 the accused alone had been operating

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the joint  bank accounts and was not only  depositing the sale proceeds of the lands sold by  him after May 1991, but also withdrawing large  sums of money and had literally cleaned the bank  lockers jointly owned by him and the deceased.  

(vi)    On 30.3.1992 and 31.3.1992 the accused sold 34  plots out of the property belonging to the deceased  in the capacity of General Power of Attorney  holder to various people under registered sale  deeds for valuable considerations   

(vii)   In meetings/proceedings of the SS Housing  Company, he represented the presence of the  deceased for each of the meetings and signed  himself alone on her behalf as a General Power of  Attorney holder and these proceedings were  regularly sent to their Chartered Account.       

(viii)  The accused also replied to the queries of Income  Tax Authorities during 1993 one of which  purportedly contains his signature and the  signature of Smt. Shakereh which is apparently  forged.

(ix)     The accused suddenly became very rich after May  1991 (the time of disappearance of the deceased)  which is evident from the fact that he had done  huge property and financial transactions which  benefited him, he started staying in very expensive  hotels in Bombay etc. with women, etc. (including  the then Miss India vide statement of P.W.37 at  para 29)                          

25.     From the facts stated above it is evident that the deceased was not  seen alive from May 1991 onwards and no one was able to speak to her on  telephone, whereas, till May 1991 her daughter Sabah was regularly in  contact with her.  The accused was living with Shakereh as her husband and  when contacted by PW5 Sabah he told all kinds of lies about the whereabout  of Smt. Shakereh.

26.     The fact that Shakereh was murdered is indisputable.  If she had met a  natural death, there was no question of her being buried in the backyard of  the house without intimating any of her relatives including her daughter and  parents.   There is abundant expert evidence to establish that the skeleton  discovered in the box in the backyard was that of the deceased Shakereh.   There is also uncontroverted evidence that the said box in which her body  was kept was got prepared by the accused himself prior to the death of Smt.  Shakereh.  In my opinion, there is no manner of doubt that the accused killed  Shakereh and secretly buried her in the manner mentioned above in the  backyard of the house.  The fact that he kept the death news of the deceased  secret and he told lies repeatedly to her daughter Sabah (as stated above),  proves his guilty mind.  His act of selling  valuable property of the deceased  worth crores of rupees within a short time of the death of Shakreh with the  help of a defunct General Power of Attorney and the other material on  record clearly establish the guilt of the accused beyond reasonable doubt.  In  my opinion, the prosecution has convincingly succeeded in establishing all  the links in the chain of circumstances linking the accused with the crime.

27.     In my opinion, this is case of a cold blooded, calculated, diabolical  murder by the accused of an innocent lady who came from a good family,  but unfortunately due to her infatuation fell into his clutches.

28.     Learned counsel for the appellant submitted that there was no reason

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for the appellant to murder the deceased since the deceased had executed a  will in his favour.  In my opinion, this argument is not tenable because it is  well settled that a will comes into operation only on the death of the testator.   The deceased was only in her forties, and her natural death may have  occurred several decades later.  The appellant was obviously not willing to  wait for so long before he could grab her property and hence he decided to  murder her.  No doubt no poisonous substance was detected in the skeleton  of the deceased and hence the prosecution case that the accused mixed  poison in her tea could not be firmly established.  However, even if the exact  method of murder has not been established by the prosecution, I have no  manner of doubt that it was the appellant who murdered the deceased.   29.     During the course of hearing of the case we asked learned counsel for  the appellant as to what was the profession or qualification of the accused,  but he could not give any satisfactory answer.  It seems to us that the  accused is a cold-blooded, scallywag and rascal who had no proper  qualification or profession.  Such diabolical and cunning rogues are to be  found in abundance nowadays.  It is the total commercialization of society  which is responsible for this recent phenomenon.  People have become  greedy and wish to amass wealth by short cuts, even by committing heinous  crimes.  The appellant had changed his name and had become a ’Swamy’.   By some dubious means he had ingratiated himself into the house of the  Nawab of Rampur and there he developed contact with the deceased, who  was evidently having differences with her husband.  The accused pretended  to be a very simple and innocent person  and this made the deceased start  depending on him, particularly for looking after her property matters.    The  deceased brought the accused to her house in Bangalore where the deceased  married her and thereafter he determined to grab all her property after killing  her.  All the property transactions in this connection and other evidence  (narrated above) point only to this conclusion.  The accused is an  unmitigated and diabolical rogue who could go to any extent, including  murder to achieve his object of grabbing huge amount of property of the  deceased.  He was in a dominating position over the deceased who had  become dependant on him, and he took full advantage of this situation.  He  had motive and opportunity for committing this ghastly crime.

30.     In my opinion, this case clearly comes within the category of rarest of  rare cases and there will be gross travesty of justice if the death sentence is  not affirmed.  Hence, I dismiss this appeal and confirm the death sentence on  the accused.