VIKAS YADAV Vs. STATE OF U.P AND ORS. ETC. ETC

Tags Condonation Of Delay Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1531-1533 of 2015, Judgment Date: Oct 03, 2016

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1531-1533 OF 2015

Vikas Yadav …Appellant(s)

Versus

State of U.P. and Ors. Etc. Etc. …Respondent(s)

WITH

CRIMINAL APPEAL NOS. 1528-1530 OF 2015

J U D G M E N T

Dipak Misra, J.

The appellants in this batch of appeals stand convicted for the
offences under Sections 302, 364, 201 read with Section 34 of the Indian
Penal Code (IPC). This Court while hearing the special leave petitions on
17.08.2015 had passed the following order:-

“Delay condoned.

Having heard learned senior counsel for the petitioners at great
length, we are of the view, that the impugned orders call for no
interference whatsoever insofar as the conviction of the petitioners is
concerned. The conviction of the three petitioners, as recorded by the
courts below, is accordingly upheld.

Issue notice, on the quantum of sentence, returnable after six
weeks.”

2. On 16.06.2015 leave was granted. Thus, we are only concerned with
the legal defensibility and the justifiability of the imposition of
sentence.

3. The arguments in these appeals commenced on issues of law. Mr. U.R.
Lalit and Mr. Shekhar Naphade, learned senior counsel appearing for the
appellant in Criminal Appeal Nos. 1531-1533 of 2015 and Mr. Atul Nanda,
learned senior counsel appearing for the appellant in Criminal Appeal Nos.
1528-1530 of 2015 questioned the propriety of the sentence as the High
Court has imposed a fixed term sentence, i.e., 25 years for the offence
under Section 302 IPC and 5 years for offence under Section 201 IPC with
the stipulation that both the sentences would run consecutively. It is apt
to note here that separate sentences have been imposed in respect of other
offences but they have been directed to be concurrent. After advancing the
arguments relating to the jurisdiction of the High Court as well as this
Court on imposition of fixed term/period sentence, more so when the trial
court has not imposed death sentence, the learned counsel argued that the
factual score in the instant case did not warrant such harsh delineation as
a consequence disproportionate sentences have been imposed.

4. Keeping in view the chronology of advancement of arguments, we think
it apt to deal with the jurisdictional facet. If we negative the
proposition advanced by the learned counsel for the appellants, then only
we shall be required to proceed to deal with the facts as requisite to be
stated for the purpose of adjudicating the justifiability of imposition of
such sentence. If we accede to the first submission, then the second
aspect would not call for any deliberation. At this juncture, it is
necessary to state that the learned trial judge by order dated 30.05.2008
sentenced Vikas Yadav and Vishal Yadav to life imprisonment as well as
fine of one lakh each under Section 302 IPC and, in default of payment of
fine, to undergo simple imprisonment for one year. They were sentenced to
undergo simple imprisonment for ten years and fine of Rs. 50,000/- each for
their conviction under Section 364/34 IPC, in default to undergo simple
imprisonment for six months and rigorous imprisonment for five years and
fine of Rs. 10,000/- each under Section 201/34 IPC, in default, simple
imprisonment for three months. All sentences were directed to run
concurrently. Sukhdev Yadav @ Pehalwan who was tried separately because
of his abscondence in SC No. 76 of 2008 was convicted for the offences
under Sections 302/364/34 IPC and Section 201 and by order dated
12.07.2011, he was sentenced to undergo life imprisonment and fine of Rs.
10,000/- for commission of the offence under Section 302 IPC, in default,
to undergo rigorous imprisonment for two years; rigorous imprisonment for
seven years and fine of Rs. 5,000/- for commission of the offence under
Section 364 IPC, in default, to suffer rigorous imprisonment for six
months; rigorous imprisonment for three years and fine of Rs. 5,000/- for
his conviction under Section 201 IPC, in default, to undergo further
rigorous imprisonment for six months. All sentences were directed to be
concurrent.

5. Be it noted, the prosecution, – State of NCT of Delhi preferred an
appeal under Section 377 CrPC for enhancement of sentence of imprisonment
of life to one of death for the offence under Section 302 IPC. The High
Court addressed to number of issues, namely, (a) statutory provisions and
jurisprudence regarding imposition of the death penalty; (b) death sentence
jurisprudence – divergence in views; (c) life imprisonment – meaning and
nature of; (d) the authority of the judiciary to regulate the power of the
executive to remit the sentence or to put in other words jurisdiction of
the court to direct minimum term sentence in excess of imposition of 14
years; (e) if there are convictions for multiple offences in one case, does
the court have the option of directing that the sentences imposed thereon
shall run consecutively and not concurrently; (f) honour killing – whether
penalty of only the death sentence; (g) contours of the jurisdiction of the
High Court to enhance a sentence imposed by the trial court and competency
to pass orders under Section 357 of the CrPC in the appeal by the State or
revision by a complainant seeking enhancement of sentence; (h) sentencing
procedure and pre-sentencing hearing nature of; (i) concerns for the
victims – award of compensation to heal and as a method of reconciling
victim to the offender; (j) State’s liability to pay compensation; (k) fine
and compensation – constituents, reasonability and adequacy; (l) sentencing
principles; (m) jurisdiction of the appellate court while considering a
prayer for enhancement of the sentence; (n) if not death penalty, what
would be an adequate sentence in the present case; and (o) what ought to be
the fitnes in the present case.

6. Apart from the said aspects, the High Court also addressed to certain
aspects which are specific to the case at hand to which we will advert to
at a later stage.

7. The High Court, after addressing the aspects which we have catalogued
and some other fact specific issues, imposed the following sentences:-

“881. In view of the above discussion, we modify and enhance the sentence
imposed by the judgments dated 30th May, 2008 upon the defendants Vikas
Yadav, Vishal Yadav and 12th July, 2011 upon Sukhdev Yadav and direct that
they shall be liable to undergo the following sentences :-

(I)

(II) It is directed that the sentences for conviction of the offences under
Section 302/34 and Section 364/34 IPC shall run concurrently. The sentence
under Section 201/34 IPC shall run consecutively to the other sentences for
the discussion and reasons in paras 741 to 745 above.

(III) The amount of the fines shall be deposited with the trial court
within a period of six months from today.

(IV) We further direct that the fine amounts of Rs.50,00,000/- of each of
Vikas Yadav and Vishal Yadav when deposited with the trial court, are
forthwith disbursed in the following manner:

(V) Amount of fines deposited by Sukhdev Yadav and other fines deposited by
Vikas Yadav and Vishal Yadav shall be forwarded to the Delhi Legal Services
Authority to be utilised under the Victims Compensation Scheme.

(VI) In case an application for parole or remission is moved by the
defendants before the appropriate government, notice thereof shall be given
to Nilam Katara as well as Ajay Katara by the appropriate government and
they shall also be heard with regard thereto before passing of orders
thereon.

(VII) So far as Vikas Yadav is concerned, we also issue the following
directions:

(i) The period for the admission in AIIMS from 10th October, 2011 to 4th
November, 2011 (both days included) shall not be counted as a period for
which he has undergone imprisonment. His records and nominal rolls shall be
accordingly corrected by the jail authorities.
(ii) Vikas Yadav shall make payments of the following amounts to the
Government of NCT of Delhi:

|(i) |Amounts paid to AIIMS |: |Rs.50,750/- |
|(ii)|Towards security deployment |: |Rs.1,20,012/- |
| |during AIIMS | | |
|(iii|OPD visits |: |Rs.50,000/- |
|) | | | |
|(iv)|Taxi fare |: |Rs.18,500/- |
| |Total |: |Rs.2,39,262/- |

(VIII) So far as Vishal Yadav is concerned, we direct as hereafter :-

(i) The periods of the admissions in the Batra Hospital totalling 320 days
[32 days (from 7th July, 2008 to 7th August, 2008); 24 days (from 14th
August, 2008 to 6th September, 2008), 53 days (24th October, 2008 to 15th
December, 2008); 100 days (from 25th February, 2009 to 6th June, 2009); 71
days (from 7th October, 2009 to 16th December, 2009); 36 days (from 29th
September, 2010 to 3rd November, 2010); 4 days (from 14th October, 2011
to 17th October, 2011)] shall not be counted as a period which he has
undergone imprisonment. His records and nominal rolls shall be accordingly
corrected by the jail authorities.

(ii) Vishal Yadav shall make payments of the following amounts to the
Government of NCT of Delhi:

|(i) |Provision of security during the|: |Rs.14,75,184/- |
| |above seven hospital admissions | | |
| |post conviction | | |
|(ii)|During OPD hospital visits |: |Rs.50,000/- |
|(iii|Post conviction visits on taxi |: |Rs.14,700/- |
|) |fare | | |
| |Total |: |Rs.15,39,884/- |
| | | | |

(IX) The amounts directed to be paid by Vishal Yadav and Vikas Yadav at Sr.
Nos.(VI) and (VII) above shall be deposited within four months of the
passing of the present order.

(X) In the event of the failure to deposit the amount as directed at Sr.
Nos.(VI), (VII) and (VIII), the defaulting defendant (Vikas Yadav and
Vishal Yadav) shall be liable to undergo rigorous imprisonment of one year.
It is made clear that these directions are in addition to the substantive
sentences imposed upon them.”

8. We think it appropriate to deal with the aspect of legal
permissibility of the imposition of sentence first as the learned senior
counsel appearing for the appellants had argued quite astutely with regard
to the non-acceptability of such fixed term sentences and other facets
relating to it. After we answer the said issue, if needed, we shall dwell
upon the sustainability and warrantableness of the sentences in the facts
of the case.

9. Learned senior counsel for the appellants have advanced the following
propositions to bolster the first stand:-

(i) When the Indian Penal Code provides for only two punishments, i.e.,
imprisonment for life or death, the court by judge-made law cannot
introduce a third category of punishment.

(ii) The prescription of third category of punishment is contrary to
Sections 28 and 386 CrPC and Section 302 IPC.

(iii) Prescription of sentence is within the domain of the legislature and
the court can only impose such sentence what has been provided for by the
legislature and not invent one.

(iv) Wherever the legislature has thought it appropriate, it has provided
sentences by providing certain years, such as, offences punishable under
Sections 376A, 376D and 392 IPC; Section 20 of the Narcotic Drugs and
Psychotropic Substances Act, 1985; and when it is not provided for in the
IPC in respect of Section 302 IPC, the court cannot impose a third category
of sentence as that would tantamount to legislation by the judiciary.

(v) When the court imposes a third category of sentence, there is either
express or implied direction for not granting the remission as provided
under Section 433-A after expiry of 14 years which is legally not
permissible inasmuch as this Court in exercise of power under Article 142
of the Constitution cannot direct a statutory provision to be kept in
abeyance as a mode of sentencing structure.

(vi) The Constitution Bench decisions in K.M. Nanavati v. State of
Bombay[1]and Sarat Chandra Rabha and others v. Khagendranath Nath and
others[2] have not been considered by the majority in Union of India v. V.
Sriharan alias Murugan and others[3] and it, therefore, requires
reconsideration.
(vii) When the trial court has imposed the life sentence and the question
of commutation does not arise, as a logical corollary, imposition of fixed
term sentence is impermissible as has been held in Sahib Hussain alias
Sahib Jan v. State of Rajasthan[4] and Gurvail Singh alias Gala v. State of
Punjab[5]. In essence, in the absence of a death sentence, a fixed term
sentence cannot be imposed. The appellate court, assuming has the
authority, can impose only such sentence which could have been imposed by
the trial court as has been clearly held in Jagat Bahadur v. State of
Madhya Pradesh[6] and in Shankar Kerba Jadhav and others v. The State of
Maharashtra[7].

(viii) The Court when imposes sentence by saying “fixed term
sentence”, it takes away the power of the executive which is
constitutionally not permissible as per the pronouncements in K.M. Nanavati
(supra), Sarat Chandra Rabha (supra) and A.R. Antulay v. R.S. Naik and
another[8].
(ix) There is remotely any warrant to direct the sentence for life and
sentence imposed under Section 201 IPC to run consecutively, and it is a
palpable error which cannot be countenanced, and in fact, it runs counter
to the Constitution Bench decision in Muthuramalingam & Ors. v. State
represented by Insp. of Police[9].
(ix) The High Court has fallen into grave error by imposing 20 years of
sentence on Sukhdev Yadav, whereas Vikas Yadav and Vishal Yadav had been
sentenced for 25 years which demonstrates total non-application of mind.
(x) The issue of enhancement of sentence and fixed term was not referred
to the Constitution Bench but the Constitution Bench has dealt with the
same and, therefore, the decision in V. Sriharan (supra) suffers from
impropriety.
10. Mr. Dayan Krishnan, learned senior counsel appearing for the State of
NCT Delhi, in his turn, submits that the judgment rendered by the
Constitution Bench in V. Sriharan (supra) is absolutely correct and is a
binding precedent from all spectrums and does not require reconsideration.
Learned senior counsel further argued that the judgment rendered by the
Constitution Bench does not run counter to the principles set out in the
earlier two judgments in K. Nanavati (supra) and Shankar Kerba Jadhav
(supra) because the said judgments have been rendered in altogether
different contexts and the opinion expressed therein has to be understood
regard being had to the factual score that arose therein. According to the
learned counsel for the State, the constitutional courts have power to pass
fixed term sentence in the interest of justice. Defending the imposition
of sentence in the case, Mr. Krishnan would submit that when the State had
preferred an appeal for enhancement of sentence, i.e., from imprisonment of
life to death sentence, the decision of the High Court is absolutely
flawless. It is argued by him that the direction for the life sentence and
the sentence imposed under Section 201 IPC to be consecutive and not to run
concurrently cannot be found fault with as the High Court has ascribed
adequate reasons for the same and it is in consonance with the principle
stated in Muthuramalingam (supra) and if there is any deviation therein,
the same can be rectified by this Court.
11. Ms. Aparajita Singh, learned counsel appearing for the informant,
supported the stand of the State and emphasized that in a crime of honor
killing stringent punishment deserves to be imposed.
12. Presently, we shall proceed to deal with the contentions, and we make
it clear the delineation thereof shall not be in strict seriatim as the
contentions in a way overlap. Section 28 CrPC reads as follows:-

1 “28. Sentences which High Courts and Sessions Judges may pass.—

(1) A High Court may pass any sentence authorised by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence
authorised by law; but any sentence of death passed by any such Judge shall
be subject to confirmation by the High Court.

An Assistant Sessions Judge may pass any sentence authorised by law except
a sentence of death or of imprisonment for life or of imprisonment for a
term exceeding ten years.”

13. The submission of the learned senior counsel for the appellants is
that the High Court can pass any sentence “authorised by law” and a
Sessions Judge or an Additional Sessions Judge may pass any sentence
authorised by law but for any sentence of death passed by any such Judge
shall be subject to confirmation by the High Court and, therefore, no court
can impose a sentence if it is not authorised by law. The fulcrum of the
submission is that the said provision is substantive in nature and it is
not in the realm of adjective law. In this context, our attention has been
drawn to Section 386 CrPC. The said provision reads as follows:-
“386. Power of the Appellate Court.— After perusing such record and hearing
the appellant or his pleader, if he appears, and the Public Prosecutor, if
he appears, and in case of an appeal under section 377 or section 378, the
accused, if he appears, the Appellate Court may, if it considers that there
is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct
that further inquiry be made, or that the accused be re-tried or committed
for trial, as the case may be, or find him guilty and pass sentence on him
according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused,
or order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent,
or the nature and extent, of the sentence, but not so as to enhance the
Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or
order him to be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent,
or the nature and extent, of the sentence, so as to enhance or reduce the
same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be
just or proper; Provided that the sentence shall not be enhanced unless the
accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater
punishment for the offence which in its opinion the accused has committed,
than might have been inflicted for that offence by the Court passing the
order or sentence under appeal.”

14. Elaborating on the same, it is urged that an appellate court can
impose a sentence what the trial Judge could have imposed. The appellate
jurisdiction which is classically called ‘error jurisdiction’ only embraces
to rectify the errors and thereafter impose the sentence. It may dismiss,
alter or enhance the sentence depending upon the fact situation when an
appeal is preferred, but it does not possess the jurisdiction to impose any
sentence that does not have the sanction of law. In this context, learned
senior counsel have drawn our attention to Section 53 IPC. It is as
follows:-
“53. Punishments.—The punishments to which offenders are liable under the
provisions of this Code are—
First — Death;
Secondly.—Imprisonment for life;
Fourthly —Imprisonment, which is of two descriptions, namely:—
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly —Forfeiture of property;
Sixthly —Fine.”

15. According to them, the court cannot travel beyond Section 53 IPC
which deals with punishments. Section 302 IPC provides for punishment for
murder. It is as follows:-
“302. Punishment for murder.—Whoever commits murder shall be punished with
death, or imprisonment for life, and shall also be liable to fine.”

16. Mr. Lalit and Mr. Naphade would contend that the court can either
impose sentence of imprisonment for life or sentence of death but any other
fixed term sentence is totally inconceivable in terms of the statute. In
respect of an offence under Section 302, life is the minimum and the
maximum is the death sentence and, therefore, the court has a choice
between the two and is not entitled to follow any other path, for that
would be violative of the sanctity of Article 21 of the Constitution which
clearly stipulates that no person shall be deprived of his life or personal
liberty except according to the procedure established by law. Learned
counsel for the appellants submit that imposition of sentence for a fixed
term is contrary to the procedure established by law and hence,
impermissible.
17. We shall first see how the Constitution Bench in V. Sriharan (supra)
has dealt with this aspect. The three-Judge Bench in Union of India v. V.
Sriharan alias Murugan and others[10] framed certain questions for
consideration by the Constitution Bench. The Constitution Bench in V.
Sriharan (supra) reproduced the said questions and thereafter formulated
the core questions for answering the same. After adverting to the same,
the Court observed that the issues raised were of utmost critical concern
for the whole country as the decision on the questions would determine the
procedure for awarding sentence and the criminal justice system.
Thereafter, the Court referred to the authority in Swamy Shraddananda (2)
v. State of Maharashtra[11] and framed the following questions:-
“2.1. Maintainability of this writ petition under Article 32 of the
Constitution by the Union of India.
2.2. (i) Whether imprisonment for life means for the rest of one’s life
with any right to claim remission?
(ii) Whether as held in Shraddananda case (2), a special category of
sentence; instead of death; for a term exceeding 14 years and put that
category beyond application of remission can be imposed?
2.3. Whether the appropriate Government is permitted to grant remission
under Sections 432/433 of the Criminal Procedure Code, 1973 after the
parallel power was exercised under Article 72 by the President and under
Article 161 by the Governor of the State or by the Supreme Court under its
constitutional power(s) under Article 32?
2.4. Whether the Union or the State has primacy for the exercise of power
under Section 432(7) over the subject-matter enlisted in List III of the
Seventh Schedule for grant of remission?
2.5. Whether there can be two appropriate Governments under Section 432(7)
of the Code?
2.6. Whether the power under Section 432(1) can be exercised suo motu, if
yes, whether the procedure prescribed under Section 432(2) is mandatory or
not?
2.7. Whether the expression “consultation” stipulated in Section 435(1) of
the Code implies “concurrence”?”

18. We have reproduced the entire paragraph for the sake of completeness
and understanding. The issues that have been raised by Mr. Lalit and Mr.
Naphade fundamentally relate to the issues in para 2.2. The majority in the
Constitution Bench, after referring to the decisions in Maru Ram v. Union
of India and others[12], Gopal Vinayak Godse v. State of Maharashtra and
others[13] and State of Madhya Pradesh v. Ratan Singh and others[14],
opined that the legal position is quite settled that the life imprisonment
only means the entirety of the life unless it is curtailed by remissions
validly granted under the Criminal Procedure Code by the appropriate
Government or under Articles 72 and 161 of the Constitution by the
Executive Head viz. the President or the Governor of the State
respectively. The Court referred to the decision in Ashok Kumar alias Golu
v. Union of India and others[15], wherein it was specifically ruled that
the decision in Bhagirath v. Delhi Administration[16] does not run counter
to Godse (supra) and Maru Ram (supra). The relevant paragraph from Ashok
Kumar (supra) is reproduced below:-
“15. It will thus be seen from the ratio laid down in the aforesaid two
cases that where a person has been sentenced to imprisonment for life the
remissions earned by him during his internment in prison under the relevant
remission rules have a limited scope and must be confined to the scope and
ambit of the said rules and do not acquire significance until the sentence
is remitted under Section 432, in which case the remission would be subject
to limitation of Section 433-A of the Code, or constitutional power has
been exercised under Articles 72/161 of the Constitution. In Bhagirath case
the question which the Constitution Bench was required to consider was
whether a person sentenced to imprisonment for life can claim the benefit
of Section 428 of the Code which, inter alia, provides for setting off the
period of detention undergone by the accused as an undertrial against the
sentence of imprisonment ultimately awarded to him”.
19. Referring to Section 57 IPC, [pic]the decision in Ashok Kumar (supra)
reiterated the legal position as under:-
‘9. … The provision contained in Section 57 that imprisonment for life has
to be reckoned as equivalent to imprisonment for 20 years is for the
purpose of calculating fractions of terms of punishment. We cannot press
that provision into service for a wider purpose.’

20. It has been held in V. Sriharan (supra) that the said observations
are consistent with the ratio laid down in Godse (supra) and Maru Ram
(supra).
21. Thereafter, the majority in V. Sriharan (supra) quoted a paragraph
from Bhagirath’s case (supra) which pertained to set-off under Section 428
CrPC which is to the following effect:-
“11. … The question of setting off the period of detention undergone by an
accused as an undertrial prisoner against the sentence of life imprisonment
can arise only if an order is passed by the appropriate authority under
Section 432 or Section 433 of the Code. In the absence of such order,
passed generally or specially, and apart from the provisions, if any, of
the relevant Jail Manual, imprisonment for life would mean, according to
the rule in Gopal Vinayak Godse, imprisonment for the remainder of life.”

22. Thereafter, the Court in V. Sriharan (supra) observed:-

“We fail to see any departure from the ratio of Godse case; on the contrary
the aforequoted passage clearly shows approval of that ratio and this
becomes further clear from the final order passed by the Court while
allowing the appeal/writ petition. The Court directed that the period of
detention undergone by the two accused as undertrial prisoners would be set
off against the sentence of life imprisonment imposed upon them, subject to
the provisions contained in Section 433-A and, ‘provided that orders have
been passed by the appropriate authority under Section 433 of the Criminal
Procedure Code’. These directions make it clear beyond any manner of doubt
that just as in the case of remissions so also in the case of set-off the
period of detention as undertrial would enure to the benefit of the convict
provided the appropriate Government has chosen to pass an order under
Sections 432/433 of the Code. The ratio of Bhagirath case, therefore, does
not run counter to the ratio of this Court in Godse or Maru Ram.

xxxxx xxxxx

61. Having noted the abovereferred to two Constitution Bench decisions in
Godse and Maru Ram which were consistently followed in the subsequent
decisions in Sambha Ji Krishan Ji[17], Ratan Singh, Ranjit Singh[18], Ashok
Kumar and Subash Chander[19]. The first part of the first question can be
conveniently answered to the effect that imprisonment for life in terms of
Section 53 read with Section 45 of the Penal Code only means imprisonment
for rest of the life of the prisoner subject, however, to the right to
claim remission, etc. as provided under Articles 72 and 161 of the
Constitution to be exercisable by the President and the Governor of the
State and also as provided under Section 432 of the Criminal Procedure
Code”.

23. After so stating, the majority addressed to the concept of remission.
It opined that:-
“As far as remissions are concerned, it consists of two types. One type of
remission is what is earned by a prisoner under the Prison Rules or other
relevant rules based on his/her good behaviour or such other stipulations
prescribed therein. The other remission is the grant of it by the
appropriate Government in exercise of its power under Section 432 of the
Criminal Procedure Code. Therefore, in the latter case when a remission of
the substantive sentence is granted under Section 432, then and then only
giving credit to the earned remission can take place and not otherwise.
Similarly, in the case of a life imprisonment, meaning thereby the entirety
of one’s life, unless [pic]there is a commutation of such sentence for any
specific period, there would be no scope to count the earned remission. In
either case, it will again depend upon an answer to the second part of the
first question based on the principles laid down in Swamy Shraddananda
(2).”

24. After dwelling upon the said aspect, the Court referred to the
principles stated in paragraphs 91 and 92 in Swamy Shraddananda (2)
(supra). It adverted to the facts in Swamy Shraddananda (2) (supra) and
analysed that this Court had made a detailed reference to the decisions in
Bachan Singh v. State of Punjab[20], Machhi Singh and others v. State of
Punjab[21], and Jagmohan Singh v. State of U.P.[22] where the principle of
rarest of the rare case was formulated. After referring to the said
decisions, the majority reproduced paragraphs 34, 36, 43, 45, and 47 of
Swamy Shraddananda (2) (supra) and came to hold that:-
“66. After noting the above principles, particularly culled out from the
decision in which the very principle, namely, “the rarest of rare cases”,
or an “exceptional case” or an “extreme case”, it was noted that even
thereafter, in reality in later decisions neither the rarest of the rare
case principle nor Machhi Singh categories were followed uniformly and
consistently. In this context, the learned Judges also noted some of the
decisions, namely, Aloke Nath Dutta v. State of W.B.[23] This Court in
Swamy Shraddananda (2) also made a reference to a report called “Lethal
Lottery, The Death Penalty in India” compiled jointly by Amnesty
International India and People’s Union for Civil Liberties, Tamil Nadu, and
Puducherry wherein a study of the Supreme Court judgments in death penalty
cases from 1950 to 2006 was referred to and one of the main facets made in
the Report (Chapters 2 to 4) was about the Court’s lack of uniformity and
consistency in awarding death sentence. This Court also noticed the ill
effects it caused by reason of such inconsistencies and lamented over the
same in the following words in para 52: [Swamy Shraddananda (2) case, SCC
p. 790]
“52. 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 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 lopsided and presents a poor reflection of the
system of criminal administration of justice. This situation is a matter of
concern for this Court and needs to be remedied.”

25. The larger Bench endorsed the anguish expressed by the Court and
opined that the situation is a matter of serious concern for this Court and
it wished to examine whether the approach made thereafter by this Court
does call for any interference or change or addition or mere confirmation.
Be it noted, the three-Judge Bench in Swamy Shraddananda (supra) took note
of the plan devised by the accused, the betrayal of trust, the magnitude of
criminality and the brutality shown in the commission of the ghastly crime
and the manner in which the deceased was sedated and buried while she was
alive. The Court, taking into consideration the materials brought on
record in entirety, imposed the sentence of fixed term imprisonment instead
of sentence of death.
26. The issue arose before the Constitution Bench with regard to the
mandate of Section 433 CrPC. The majority took note of the fact that the
said provision was considered at length and detailed reference was made to
Sections 45, 53, 54, 55, 55A, 57 and other related provisions in the IPC in
Swamy Shraddananda(2) (supra) to understand the sentencing procedure
prevalent in the Court. Thereafter, the majority reproduced paragraphs 91
and 92 from the said judgment which we think are required to be reproduced
to appreciate the controversy:-
“91. The legal position as enunciated in Kishori Lal[24], Gopal Vinayak
Godse, Maru Ram, Ratan Singh and Shri Bhagwan[25] 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 [pic]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.

92. 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 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 subject to remission normally
works out to a term of 14 years would be grossly disproportionate and
inadequate. What then should the Court 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 emphasised 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.”
[Emphasis supplied]

27. Thereafter, the majority adverted to the concurring opinion of Fazal
Ali, J. in Maru Ram’s case and reproduced copiously from it and opined
thus:-
“Keeping the above hard reality in mind, when we examine the issue, the
question is “whether as held in Shraddananda (2), a special category of
sentence; instead of death; for a term exceeding 14 years and putting that
category beyond application of remission is good in law? When we analyse
the issue in the light of the principles laid down in very many judgments
starting from Godse, Maru Ram, Sambha Ji Krishan Ji, Ratan Singh, it has
now come to stay that when in exceptional cases, death penalty is altered
as life sentence, that would only mean rest of one’s lifespan”.

28. At that juncture, the issue arose with regard to the interpretation
of Section 433-A CrPC. In that context, the majority opined:-
“In this context, the submission of the learned Solicitor General on the
interpretation of Section 433-A CrPC assumes significance. His contention
was that under Section 433-A CrPC what is prescribed is only the minimum
and, therefore, there is no restriction to fix it at any period beyond 14
years and up to the end of one’s lifespan. We find substance in the said
submission. When we refer to Section 433-A, we find that the expression
used in the said [pic]section for the purpose of grant of remission
relating to a person convicted and directed to undergo life imprisonment,
it stipulates that “such person shall not be released from prison unless he
had served at least fourteen years of imprisonment” (emphasis supplied).
Therefore, when the minimum imprisonment is prescribed under the statute,
there will be every justification for the court which considers the nature
of offence for which conviction is imposed on the offender for which
offence the extent of punishment either death or life imprisonment is
provided for, it should be held that there will be every justification and
authority for the court to ensure in the interest of the public at large
and the society, that such person should undergo imprisonment for a
specified period even beyond 14 years without any scope for remission. In
fact, going by the caption of the said Section 433-A, it imposes a
restriction on powers of remission or commutation in certain cases. For a
statutory authority competent to consider a case for remission after the
imposition of punishment by court of law it can be held so, then a judicial
forum which has got a wider scope for considering the nature of offence and
the conduct of the offender including his mens rea to bestow its judicial
sense and direct that such offender does not deserve to be released early
and required to be kept in confinement for a longer period, it should be
held that there will be no dearth in the authority for exercising such
power in the matter of imposition of the appropriate sentence befitting the
criminal act committed by the convict.”
(Emphasis Supplied)

29. As we notice, there has been advertence to various provisions of IPC,
namely, Sections 120-B(1), 121, 132, 194, 195-A, 302, 305, 307 (Second
Part), 376-A, 376-E, 396 and 364-A and certain other provisions of other
Acts. The Court observed that death sentence is an exception rather than a
rule and where even after applying such great precautionary prescription
when the trial courts reach a conclusion to impose the maximum punishment
of death, further safeguards are provided under the Criminal Procedure Code
and the special Acts to make a still more concretised effort by the higher
courts to ensure that no stone is left unturned before the imposition of
such capital punishments. After so stating, the majority referred to the
report of Justice Malimath Committee and Justice Verma Committee, and in
that context, observed that:-
“91. We also note that when the Report of Justice Malimath Committee was
submitted in 2003, the learned Judge and the members did not have the
benefit of the law laid down in Swamy Shraddananda (2). Insofar as Justice
Verma Committee Report of 2013 is concerned, the amendments introduced
after the said Report in Sections 370(6), 376-A, 376-D and 376-E, such
prescription stating that life imprisonment means the entirety of the
convict’s life does not in any way conflict with the well-thought out
principles stated in Swamy Shraddananda (2). In fact, Justice Verma
Committee Report only reiterated the proposition that a life imprisonment
means the whole of the remaining period of the convict’s natural life by
referring to Mohd. Munna[26], Rameshbhai Chandubhai Rathod (2) v. State of
Gujarat[27] and State of U.P. v. Sanjay Kumar[28] and nothing more.
Further, the said amendment can only be construed to establish that there
should not be any reduction in the life sentence and it should remain till
the end of the convict’s lifespan.

30. The purpose of referring to the aforesaid analysis is only to
understand the gravity and magnitude of a case and the duty of the Court
regard being had to the precedents and also the sanction of law.
31. Dealing with the procedure as a substantive part, the majority opined
that:-
“Such prescription contained in the Criminal Procedure Code, though
procedural, the substantive part rests in the Penal Code for the ultimate
confirmation or modification or alteration or amendment or amendment of the
punishment. Therefore, what is apparent is that the imposition of death
penalty or life imprisonment is substantively provided for in the Penal
Code, procedural part of it is prescribed in the Criminal Procedure Code
and significantly one does not conflict with the other. Having regard to
such a dichotomy being set out in the Penal Code and the Criminal Procedure
Code, which in many respects to be operated upon in the adjudication of a
criminal case, the result of such thoroughly defined distinctive features
have to be clearly understood while operating the definite provisions, in
particular, the provisions in the Penal Code providing for capital
punishment and in the alternate the life imprisonment”.
[Underlining is ours]

32. We need not advert to other aspects that have been dwelt upon by the
Constitution Bench, for we are not concerned with the same. The submission
of the learned senior counsel for the appellants is that there is an
apparent error in the Constitution Bench decision as it has treated the
provisions of CrPC as procedural. On a reading of the decision, it is
manifest that the majority has explained how there is cohesive co-existence
of CrPC and IPC. We may explain it in this manner. Section 28 CrPC
empowers the court to impose sentence authorized by law. Section 302 IPC
authorizes the court to either award life imprisonment or death. As
rightly submitted by Mr. Lalit and Mr. Naphade, there is a minimum and
maximum. Life imprisonment as held in Gopal Vinayak Godse (supra), Ratan
Singh (supra), Sohan Lal v. Asha Ram and others[29] and Zahid Hussein and
others v. State of W.B. and another[30] means the whole of the remaining
period of the convict’s natural life. The convict is compelled to live in
prison till the end of his life. Sentence of death brings extinction of
life on a fixed day after the legal procedure is over, including the ground
of pardon or remission which are provided under Articles 71 and 161 of the
Constitution. There is a distinction between the conferment of power by a
statute and conferment of power under the Constitution. The same has been
explained in Maru Ram (supra) and V. Sriharan (supra). Recently, a two-
Judge Bench in State of Gujarat & Anr. v. Lal Singh @ Manjit Singh &
Ors.[31] in that context has observed thus:-
“In Maru Ram (supra) the constitutional validity of Section 433-A CrPC
which had been brought in the statute book in the year 1978 was called in
question. Section 433-A CrPC imposed restrictions on powers of remission or
commutation in certain cases. It stipulates that where a sentence of
imprisonment for life is imposed on conviction of a person for an offence
for which death is one of the punishments 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 has served at least fourteen years of imprisonment. The
majority in Maru Ram (supra) upheld the constitutional validity of the
provision. The Court distinguished the statutory exercise of power of
remission and exercise of power by the constitutional authorities under the
Constitution, that is, Articles 72 and 161. In that context, the Court
observed that the power which is the creature of the Code cannot be equated
with a high prerogative vested by the Constitution in the highest
functionaries of the Union and the States, for the source is different and
the substance is different. The Court observed that Section 433-A CrPC
cannot be invalidated as indirectly violative of Articles 72 and 161 of the
Constitution. Elaborating further, the majority spoke to the following
effect:-

“… Wide as the power of pardon, commutation and release (Articles 72 and
161) is, it cannot run riot; for no legal power can run unruly like John
Gilpin on the horse but must keep sensibly to a steady course. Here, we
come upon the second constitutional fundamental which underlies the
submissions of counsel. It is that all public power, including
constitutional power, shall never be exercisable arbitrarily or mala fide
and, ordinarily, guidelines for fair and equal execution are guarantors of
the valid play of power. …”

33. In Kehar Singh and another v. Union of India and another[32] the
Constitution Bench has opined that the power to pardon is part of the
constitutional scheme and it should be so treated in the Indian Republic.
There has been further observation that it is a constitutional
responsibility of great significance to be exercised when the occasion
arises in accordance with the discretion contemplated by the context. The
Court has also held that exercise of the said power squarely falls within
the judicial domain and can be exercised by the court by judicial review.
In Epuru Sudhakar and another v. Govt. of A.P. and others[33] , in the
concurring opinion, S.H. Kapadia, J. (as His Lordship then was) stated
thus:-
“Exercise of executive clemency is a matter of discretion and yet subject
to certain standards. It is not a matter of privilege. It is a matter of
performance of official duty. It is vested in the President or the
Governor, as the case may be, not for the benefit of the convict only, but
for the welfare of the people who may insist on the performance of the
duty. This discretion, therefore, has to be exercised on public
considerations alone. The President and the Governor are the sole judges of
the sufficiency of facts and of the appropriateness of granting the pardons
and reprieves. However, this power is an enumerated power in the
Constitution and its limitations, if any, must be found in the Constitution
itself. Therefore, the principle of exclusive cognizance would not apply
when and if the decision impugned is in derogation of a constitutional
provision. This is the basic working test to be applied while granting
pardons, reprieves, remissions and commutations.”

And, again:-
“… The Rule of Law is the basis for evaluation of all decisions. The
supreme quality of the Rule of Law is fairness and legal certainty. The
principle of legality occupies a central plan in the Rule of 26 Law. Every
prerogative has to be subject to the Rule of Law. That rule cannot be
compromised on the grounds of political expediency. To go by such
considerations would be subversive of the fundamental principles of the
Rule of Law and it would amount to setting a dangerous precedent. The Rule
of Law principle comprises a requirement of “Government according to law”.
The ethos of “Government according to law” requires the prerogative to be
exercised in a manner which is consistent with the basic principle of
fairness and certainty. Therefore, the power of executive clemency is not
only for the benefit of the convict, but while exercising such a power the
President or the Governor, as the case may be, has to keep in mind the
effect of his decision on the family of the victims, the society as a whole
and the precedent it sets for the future.”

34. We have referred to the aforesaid aspect extensively as it has been
clearly held that the power of the constitutional authorities under Article
71 and Article 161 of the Constitution has to remain sacrosanct but the
power under Section 433-A CrPC which casts a restriction on the appropriate
functionary of the Government can judicially be dealt with.
35. To elaborate, though the power exercised under Article 71 and Article
161 of the Constitution is amenable to judicial review in a limited sense,
yet the Court cannot exercise such power. As far as the statutory power
under Section 433-A is concerned, it can be curtailed when the Court is of
the considered opinion that the fact situation deserves a sentence of
incarceration which be for a fixed term so that power of remission is not
exercised. There are many an authority to support that there is imposition
of fixed term sentence to curtail the power of remission and scuttle the
application for consideration of remission by the convict. It is because in
a particular fact situation, it becomes a penological necessity which is
permissible within the concept of maximum and the minimum. There is no
dispute over the maximum, that is, death sentence. However, as far as
minimum is concerned the submission of the learned counsel for the
appellants is courts can say “imprisonment for life” and nothing else. It
cannot be kept in such a strait-jacket formula. The court, as in the case
at hand, when dealing with an appeal for enhancement of sentence from
imprisonment of life to death, can definitely say that the convict shall
suffer actual incarceration for a specific period. It is within the domain
of judiciary and such an interpretation is permissible. Be it noted, the
Court cannot grant a lesser punishment than the minimum but can impose a
punishment which is lesser than the maximum. It is within the domain of
sentencing and constitutionally permissible.
36. We must immediately proceed to state that similar conclusion has been
reached by the majority in V. Sriharan (supra) and other cases, Mr. Lalit
and Mr. Naphade would submit that the said decision having not taken note
of the principles stated in K.M. Nanavati (supra) and Sarat Chandra Rabha
(supra) is not a binding precedent. In K.M. Nanavati (supra), the
question that arose before the Constitution Bench pertained to the extent
of the power conferred on the Governor of a State under Article 161 of the
Constitution; and whether the order of the Governor can impinge on the
judicial power of this Court with particular reference to its power under
Article 142 of the Constitution. Be it stated, the petitioner therein was
convicted under Section 302 IPC and sentenced to imprisonment for life.
After the judgment was delivered by the High Court and the writ was
received by the Sessions Judge, he issued warrant of arrest of the accused
for the purpose of sending him to the police officer in-charge of the City
Sessions Court. The warrant was returned unserved with the report that it
could not be served in view of the order passed by the Governor of Bombay
suspending the sentence upon the petitioner. In the meantime, an
application for leave to appeal to Supreme Court was made soon after the
judgment was pronounced by the High Court and the matter was fixed for
hearing. On that day, an unexecuted warrant was placed before the
concerned Bench which directed that the matter is to be heard by a larger
Bench in view of the unusual and unprecedented situation. A Special Bench
of five Judges of the High Court heard the matter and the High Court
ultimately held that as the sentence passed upon the accused had been
suspended, it was not necessary for the accused to surrender and,
therefore, Order XXI Rule 5 of the Supreme Court Rules would not apply to
the case. The High Court opined that the order passed by the Governor was
not found to be unconstitutional. A petition was filed for special leave
challenging the conviction and sentence and an application was filed
seeking exemption stating all the facts. The matter was ultimately
referred to the Constitution Bench, and the larger Bench analyzing various
facets of the Constitution, came to hold thus:-
“21. In the present case, the question is limited to the exercise by the
Governor of his powers under Article 161 of the Constitution suspending the
sentence during the pendency of the special leave petition and the appeal
to this court; and the controversy has narrowed down to whether for the
period when this court is in seizin of the case the Governor could pass the
impugned order, having the effect of suspending the sentence during that
period. There can be no doubt that it is open to the Governor to grant a
full pardon at any time even during the pendency of the case in this court
in exercise of what is ordinarily called “mercy jurisdiction”. Such a
pardon after the accused person has been convicted by the court has the
effect of completely absolving him from all punishment or disqualification
attaching to a conviction for a criminal offence. That power is essentially
vested in the head of the Executive, because the judiciary has no such
“mercy jurisdiction”. But the suspension of the sentence for the period
when this court is in seizin of the case could have been granted by this
court itself. If in respect of the same period the Governor also has power
to suspend the sentence, it would mean that both the judiciary and the
executive would be functioning in the same field at the same time leading
to the possibility of conflict of jurisdiction. Such a conflict was not and
could not have been intended by the makers of the Constitution. But it was
contended by Mr Seervai that the words of the Constitution, namely, Article
161 do not warrant the conclusion that the power was in any way limited or
fettered. In our opinion there is a fallacy in the argument insofar as it
postulates what has to be established, namely, that the Governor’s power
was absolute and not fettered in any way. So long as the judiciary has the
power to pass a particular order in a pending case to that extent the power
of the Executive is limited in view of the words either of Sections 401 and
426 of the Code of Criminal Procedure and Articles 142 and 161 of the
Constitution. If that is the correct interpretation to be put on these
provisions in order to harmonise them it would follow that what is covered
in Article 142 is not covered by Article 161 and similarly what is covered
by Section 426 is not covered by Section 401. On that interpretation Mr
Seervai would be right in his contention that there is no conflict between
the prerogative power of the sovereign state to grant pardon and the power
of the courts to deal with a pending cage judicially.”

And again:-

“As a result of these considerations we have come to the conclusion that
the order of the Governor granting suspension of the sentence could only
operate until the matter became sub judice in this court on the filing of
the petition for special leave to appeal. After the filing of such a
petition this court was seized of the case which would be dealt with by it
in accordance with law. It would then be for this Court, when moved in that
behalf, either to apply Rule 5 of Order 21 or to exempt the petitioner from
the operation of that Rule. It would be for this court to pass such orders
as it thought fit as to whether the petitioner should be granted bail or
should surrender to his sentence or to pass such other or further orders as
this court might deem fit in all the circumstances of the case. It follows
from what has been said that the Governor had no power to grant the
suspension of sentence for the period during which the matter was sub
judice in this court.”

37. Relying on the same, it is urged that when a constitutional court
adds a third category of sentence, it actually enters into the realm of
Section 433-A CrPC which rests with the statutory authority. According to
the learned senior counsel for the appellants, after the conviction is
recorded and sentence is imposed, the court has no role at the subsequent
stage. But when higher sentence is imposed, there is an encroachment with
the role of the executive. In this context, learned senior counsel have
drawn our attention to the principles stated in another Constitution Bench
judgment in Sarat Chandra Rabha (supra), wherein it has been held that the
effect of pardon is different than remission which stands on a different
footing altogether. The Constitution Bench, explaining the same, proceeded
to state thus:-
“4. … In the first place, an order of remission does not wipe out the
offence; it also does not wipe out the conviction. All that it does is to
have an effect on the execution of the sentence; though ordinarily a
convicted person would have to serve out the full sentence imposed by a
court, he need not do so with respect to that part of the sentence which
has been ordered to be remitted. An order of remission thus does not in any
way interfere with the order of the court; it affects only the execution of
the sentence passed by the court and frees the convicted person from his
liability to undergo the full term of imprisonment inflicted by the court,
though the order of conviction and sentence passed by the court still
stands as it was. The power to grant remission is executive power and
cannot have the effect which the order of an appellate or revisional court
would have of reducing the sentence passed by the trial court and
substituting in its place the reduced sentence adjudged by the appellate or
revisional court. This distinction is well brought out in the following
passage from Weater’s Constitutional Law on the effect of reprieves and
pardons vis-à-vis the judgment passed by the court imposing punishment, at
p. 176, para 134:
“A reprieve is a temporary suspension of the punishment fixed by law. A
pardon is the remission of such punishment. Both are the exercise of
executive functions and should be distinguished from the exercise of
judicial power over sentences. ‘The judicial power and the executive power
over sentences are readily distinguishable,’ observed Justice Sutherland.
To render a judgment is a judicial function. To carry the judgment into
effect is an executive function. To cut short a sentence by an act of
clemency is an exercise of executive power which abridges the enforcement
of the judgment but does not alter it qua judgment’.”

Though, therefore, the effect of an order of remission is to wipe out that
part of the sentence of imprisonment which has not been served out and thus
in practice to reduce the sentence to the period already undergone, in law
the order of remission merely means that the rest of the sentence need not
be undergone, leaving the order of conviction by the court and the sentence
passed by it untouched. In this view of the matter the order of remission
passed in this case though it had the effect that the appellant was
released from jail before he had served the full sentence of three years’
imprisonment, and had actually served only about sixteen months’
imprisonment, did not in any way affect the order of conviction and
sentence passed by the court which remained as it was. Therefore the terms
of Section 7(b) would be satisfied in the present case and the appellant
being a person convicted and sentenced to three years’ rigorous
imprisonment would be disqualified, as five years had not passed since his
release and as the Election Commission had not removed his
disqualification.”

38. The analysis made in the aforesaid passage is to be appropriately
appreciated. In the said case, the controversy arose with regard to the
rejection of the nomination paper of the returned candidate on the ground
that he was not disqualified under Section 7(b) of the Representation of
the People Act, 1951. The Election Tribunal came to hold that the
nomination paper of the candidate was wrongly rejected and the allegation
pertaining to corrupt practice was not established. On the first count,
the election was set aside. The successful candidate preferred an appeal
before the High Court which came to hold that the nomination paper of the
respondent before it was properly rejected. However, it concurred with the
view expressed as regards corrupt practice by the tribunal. The rejection
of nomination paper of the candidate was found to be justified by the High
Court as he had been sentenced to undergo rigorous imprisonment for three
years and five years had not passed since his release. He was sentenced to
three years but the sentence was remitted by the government in exercise of
power under Section 401 of old CrPC. The contention of the appellant
before the tribunal was that in view of the remission, sentence, in effect,
was reduced to a period of less than two years and, therefore, he could not
be said to have incurred disqualification within the meaning of Section
7(b) of the said Act. The High Court formed the opinion that the
remission of sentence did not have the same effect as free pardon and would
not have the effect on reducing the sentence passed on the appellant. In
that context, this Court has held what we have quoted hereinabove. What is
being sought to be argued on the basis of the aforequoted passage is that
the court does not have any role in the matter of remission. It is
strictly within the domain of the executive.
39. On a careful reading of both the decisions, we have no iota of doubt
in our mind that they are not precedents for the proposition that the court
cannot impose a fixed term sentence. The power to grant remission is an
executive power and it cannot affect the appeal or revisional power of the
court. The powers are definitely distinct. However, the language of
Section 433-A CrPC empowers the executive to grant remission after expiry
of 14 years and it only enables the convict to apply for remission. There
can be a situation as visualized in Swamy Shraddananda (2) (supra).

40. Learned senior counsel would submit that it is a judicial innovation
or creation without sanction of law and according to them, the majority
view of the Constitution Bench is not a seemly appreciation of Section 433-
A CrPC. In our considered opinion, the majority view is absolutely correct
and binding on us being the view of the Constitution Bench and that apart,
we do not have any reason to disagree with the same for referring it to a
larger Bench. We are of the convinced opinion that the situation that has
been projected in Swamy Shraddananda (2) (supra) and approved in V.
Sriharan (supra) speaks eloquently of judicial experience and the fixed
term sentence cannot be said to be unauthorized in law. Section 302 IPC
authorizes imposition of death sentence. The minimum sentence is
imprisonment for life which means till the entire period of natural life of
the convict is over. The courts cannot embark upon the power to be
exercised by the Executive Heads of the State under Article 71 and Article
161 of the Constitution. That remains in a different sphere and it has
its independent legal sanctity. The court while imposing the sentence of
life makes it clear that it means in law whole of life. The executive has
been granted power by the legislature to grant remission after expiry of
certain period. The court could have imposed the death sentence. However,
in a case where the court does not intend to impose a death sentence
because of certain factors, it may impose fixed term sentence keeping in
view the public concept with regard to deterrent punishment. It really
adopts the view of “expanded option”, lesser than the maximum and within
the expanded option of the minimum, for grant of remission does not come in
after expiry of 14 years. It strikes a balance regard being had to the
gravity of the offence. We, therefore, repel the submission advanced by
the learned senior counsel for the appellants.
41. In this context, another submission deserves to be noted. It is
canvassed by the learned senior counsel for the appellants that the issue
of enhancement and scope of enhancement was not referred to the
Constitution Bench. The reference order which has been quoted in V.
Sriharan (supra) has been brought to our notice to highlight the point that
in the absence of a reference by the concerned Bench, the Constitution
Bench could not have adverted to the said aspect. The said submission is
noted only to be rejected. The larger Bench has framed the issues which
deserve to be answered and, as seen from the entire tenor of the judgment,
it felt that it is obliged to address the issue regard being had to the
controversy that arises in number of cases. In fact, as is evincible,
question Nos. (i) and (ii) of paragraph 2.2 have been specifically posed in
this manner. We do not think that there is any impediment on the part of
the Constitution Bench to have traversed on the said issues. In fact, in
our view, the Constitution Bench has correctly adverted to the same and
clarified the legal position and we are bound by it.
42. The next contention which is canvassed on behalf of the appellants is
that when the High Court exercised the power under Section 368 CrPC and
thinks of commuting the death sentence, then only it can pass a fixed term
sentence and not otherwise. In this regard, we have been commended to the
authorities in Sahib Hussain (supra) and Gurvail Singh (supra). In
Sahib Hussain (supra), the Court took note of the decision in Shri Bhagwan
v. State of Rajasthan[34] wherein this Court had commuted the death
sentence imposed on the appellant therein and directed that the appellant
shall undergo the sentence of imprisonment for life with the further
direction that the appellant shall not be released from the prison unless
he had served out at least 20 years of imprisonment including the period
already undergone by him. The authority in Prakash Dhawal Khairnar
(Patil) v. State of Maharashtra[35] was noticed wherein the Court set aside
the death sentence and directed that the appellant therein shall suffer
imprisonment for life but he shall not be released unless he had served out
at least 20 years of imprisonment including the period already undergone by
him. The two-Judge Bench referred to Ram Anup Singh and others v. State of
Bihar[36], Nazir Khan and others vs. State of Delhi[37], Swamy
Shraddananda (2) (supra), Haru Ghosh v. State of West Bengal[38], Ramraj v.
State of Chhattisgarh[39], Neel Kumar alias Anil Kumar v. State of
Haryana[40], Sandeep v. State of U.P.[41] and Gurvail Singh (supra) and
held that:-
“It is clear that since more than a decade, in many cases, whenever death
sentence has been commuted to life imprisonment where the offence alleged
is serious in nature, while awarding life imprisonment, this Court
reiterated minimum years of imprisonment of 20 years or 25 years or 30
years or 35 years, mentioning thereby, if the appropriate Government wants
to give remission, the same has to be considered only after the expiry of
the said period….”

Thereafter, the Court referred to Swamy Shraddananda (2) (supra) and
the pronouncement in Shri Bhagwan (supra) and opined thus:-

“36. It is clear that in Swamy Shraddananda, this Court noted the
observations made by this Court in Jagmohan Singh v. State of U.P. and five
years after the judgment in Jagmohan case, Section 433-A was inserted in
the Code imposing a restriction on the power of remission or commutation in
certain cases. After the introduction of Section 433-A another Constitution
Bench of this Court in Bachan Singh v. State of Punjab, with reference to
power with regard to Section 433-A which restricts the power of remission
and commutation conferred on the appropriate Government, noted various
provisions of the Prisons Act, Jail Manual, etc. and concluded that
reasonable and proper course would be to expand the option between 14
years' imprisonment and death. The larger Bench has also emphasised that:
[Swamy Shraddananda (2) case, SCC p. 805, para 92]

“92. … 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.”

In the light of the detailed discussion by the larger Bench, we are of the
view that the observations made in Sangeet case[42] are not warranted. Even
otherwise, the above principles, as enunciated in Swamy Shraddananda are
applicable only when death sentence is commuted to life imprisonment and
not in all cases where the Court imposes sentence for life.”

43. Learned senior counsel have emphasized on the last part of the
aforequoted passage to buttress the stand that when the trial judge had not
imposed the death sentence, the question of commutation did not arise and
hence the High Court could not have imposed a fixed term sentence and could
have only affirmed the sentence of imprisonment for life.
44. In Gurvail Singh (supra), the Court was dealing with the petition
under Article 32 of the Constitution for issue of a direction to convert
the sentence of the petitioner from 30 years without remission to a
sentence of life imprisonment and further to declare that this Court is not
competent to fix a particular number of years (with or without remission)
when it commutes the death sentence to life imprisonment while upholding
the conviction of the accused under Section 302 IPC. The two-Judge Bench
referred to the decision in Sangeet (supra) which has also been referred in
Sahib Hussain (supra) and, thereafter, the Court observed:-
“6. The issue involved herein has been raised before this Court time and
again. Two-Judge as well as three-Judge Benches have several times
explained the powers of this Court in this regard and it has consistently
been held that the Court cannot interfere with the clemency powers
enshrined under Articles 72 and 161 of the Constitution of India or any
rule framed thereunder except in exceptional circumstances. So far as the
remissions, etc. are concerned, these are executive powers of the State
under which, the Court may issue such directions if required in the facts
and circumstances of a particular case.”

After so stating, the Court referred to Swamy Shraddananda (2)
(supra) and State of Uttar Pradesh. v. Sanjay Kumar[43] and reproduced a
passage from Sanjay Kumar (supra) which we think seemly to quote:-
“24. … The aforesaid judgments make it crystal clear that this Court has
merely found out the via media, where considering the facts and
circumstances of a particular case, by way of which it has come to the
conclusion that it was not the ‘rarest of rare cases’, warranting death
penalty, but a sentence of 14 years or 20 years, as referred to in the
guidelines laid down by the States would be totally inadequate. The life
imprisonment cannot be equivalent to imprisonment for 14 years or 20 years,
rather it always meant as the whole natural life. This Court has always
clarified that the punishment so awarded would be subject to any order
passed in exercise of the clemency powers of the President of India or the
Governor of the State, as the case may be. Pardons, reprieves and
remissions are granted in exercise of prerogative power. There is no scope
of judicial review of such orders except on very limited grounds, for
example, non-application of mind while passing the order; non-consideration
of relevant material; or if the order suffers from arbitrariness. The power
to grant pardons and to commute sentences is coupled with a duty to
exercise the same fairly and reasonably. Administration of justice cannot
be perverted by executive or political pressure. Of course, adoption of
uniform standards may not be possible while exercising the power of pardon.
Thus, such orders do not interfere with the sovereign power of the State.
More so, not being in contravention of any statutory or constitutional
provision, the orders, even if treated to have been passed under Article
142 of the Constitution do not deserve to be labelled as unwarranted. The
aforesaid orders have been passed considering the gravity of the offences
in those cases that the accused would not be entitled to be considered for
premature release under the guidelines issued for that purpose i.e. under
the Jail Manual, etc. or even under Section 433-A of the Code of Criminal
Procedure.”

45. Thereafter, the two-Judge Bench referred to the pronouncement in
Sahib Hussain (supra) and opined thus:-
“12. Thus, it is evident that the issue raised in this petition has been
considered by another Bench and after reconsidering all the relevant
judgments on the issue the Court found that the observations made in
Sangeet were unwarranted i.e. no such observations should have been made.
This Court issued orders to deprive a convict from the benefit of
remissions only in cases where the death sentence has been commuted to life
imprisonment and it does not apply in all the cases wherein the person has
been sentenced to life imprisonment.”

46. Mr. Krishnan, learned senior counsel appearing for the State, in his
turn, has commended us to three passages from V. Sriharan (supra). They
read as under:-
“103. In fact, while saying so we must also point out that such exercise of
power in the imposition of death penalty or life imprisonment by the
Sessions Judge will get the scrutiny by the Division Bench of the High
Court mandatorily when the penalty is death and invariably even in respect
of life imprisonment gets scrutinised by the Division Bench by virtue of
the appeal remedy provided in the Criminal Procedure Code. Therefore, our
conclusion as stated above can be reinforced by stating that the punishment
part of such specified offences are always examined at least once after the
Sessions Court’s verdict by the High Court and that too by a Division Bench
consisting of two Hon’ble Judges.

104. That apart, in most of such cases where death penalty or life
imprisonment is the punishment imposed by the trial court and confirmed by
the Division Bench of the High Court, the convict concerned will get an
opportunity to get such verdict tested by filing further appeal by way of
special leave to this Court. By way of abundant caution and as per the
prescribed law of the Code and the criminal jurisprudence, we can assert
that after the [pic]initial finding of guilt of such specified grave
offences and the imposition of penalty either death or life imprisonment,
when comes under the scrutiny of the Division Bench of the High Court, it
is only the High Court which derives the power under the Penal Code, which
prescribes the capital and alternate punishment, to alter the said
punishment with one either for the entirety of the convict’s life or for
any specific period of more than 14 years, say 20, 30 or so on depending
upon the gravity of the crime committed and the exercise of judicial
conscience befitting such offence found proved to have been committed.

105. We, therefore, reiterate that, the power derived from the Penal Code
for any modified punishment within the punishment provided for in the Penal
Code for such specified offences can only be exercised by the High Court
and in the event of further appeal only by the Supreme Court and not by any
other Court in this country. To put it differently, the power to impose a
modified punishment providing for any specific term of incarceration or
till the end of the convict's life as an alternate to death penalty, can be
exercised only by the High Court and the Supreme Court and not by any other
inferior Court”.

Relying on the aforesaid passages, it is contended by him that the
decisions cited by the appellants are, no more good law and, in fact, have
been impliedly overruled in view of what has been stated by the
Constitution Bench.
47. We do not think it appropriate to enter into the said debate. In the
instant case, the prosecution had preferred an appeal under Section 377
CrPC before the High Court for enhancement of sentence of imposition of
life to one of death. On a reading of the said provision, there can be no
trace of doubt that the High Court could have enhanced the sentence of
imposition of life to death. In this context, we may usefully refer to
Jashubha Bharatsinh Gohil and others v. State of Gujarat[44] wherein it has
been ruled thus:-

“12. It is needless for us to go into the principles laid down by this
Court regarding the enhancement of sentence as also about the award of
sentence of death, as the law on both these subjects is now well settled.
There is undoubtedly power of enhancement available with the High Court
which, however, has to be sparingly exercised. No hard and fast rule can be
laid down as to in which case the High Court may enhance the sentence from
life imprisonment to death. …”

Thus, the power is there but it has to be very sparingly used. In the
instant case, the High Court has thought it appropriate instead of imposing
death sentence to impose the sentence as it has done. Therefore, the
sentence imposed by the High Court cannot be found fault on that score.
48. At this stage we think it appropriate to deal with another facet of
the said submission. It is strenuously urged that the High Court can
impose the punishment what the trial court can impose. In Jagat Bahadur
(supra) it has been held that:-
“An appeal court is after all ‘a Court of error’, that is, a court
established for correcting an error. If, while purporting to correct an
error, the court were to do something which was beyond the competence of
the trying court, how could it be said to be correcting an error of the
trying court? No case has been cited before us in which it has been held
that the High Court, after setting aside an acquittal, can pass a sentence
beyond the competence of the trying court. Therefore, both on principle and
authority it is clear that the power of the appellate court to pass a
sentence must be measured by the power of the court from whose judgment an
appeal has- been brought before it.”

49. In Jadhav (supra) the Court ruled that:-
“An appeal is a creature of a statute and the powers and jurisdiction of
the appellate court must be circumscribed by the words of the statute. At
the same time a Court of appeal is a “Court of error” and its normal
function is to correct the decision appealed from and its jurisdiction
should be co-extensive with that of the trial court. It cannot and ought
not to do something which the trial court was not competent to do. There
does not seem to be any fetter to its power to do what the trial court
could do.”

50. We have reproduced the said passages as the learned senior counsel
appearing for the appellant would contend as the court of appeal is only a
“Court of error” and its jurisdiction should be co-extensive with that of
the trial court. Both the decisions dealt with different kind of offences
where the sentence has been prescribed to be imposed for a particular by
the trial court and in that context the Court held that the appellate court
could not have imposed a sentence beyond the competence of the trial court.
If the trial court has no jurisdiction to impose such a sentence, the High
Court as a “Court of error” cannot pass a different harsher sentence. There
can be no dispute over the proposition stated in the said two authorities.
But in the case at hand, the appellants were convicted under section 302
IPC and the trial court could have been impose the sentence of death and
that apart, the appeal has been preferred by the State. Thus, the ratio
laid down in the said authorities is not applicable to the case at hand.
51. The next submission that is put forth is that the decision in V.
Sriharan (supra) runs counter to the principles stated in A.R. Antulay
(supra). Explicating the said stand, it is argued that in the said case
the Constitution Bench had directed that the case of the petitioner should
be tried by the learned Judge of the High Court as he was tried for the
offence under the Prevention of Corruption Act, 1988. The Bench of seven-
Judges recalled that order on three counts, namely, a trial under the
Prevention of Corruption Act, 1988 has to be held by a special Judge
appointed under the said Act and this Court has no jurisdiction to direct
the trial to be held by a High Court Judge; that the statutory right of the
petitioner for filing an appeal to the High Court could not be taken away
by this Court; and that the earlier direction abridged the right of the
petitioner therein under Articles 14 and 21 of the Constitution. Drawing
an analogy it is contended that V. Sriharan (supra) takes away the
statutory right of the convict to apply for commutation/remission under
Sections 432 and 433 CrPC, and also affects the right under Article 21 of
the Constitution. Learned senior counsel for the appellants would contend
that the principles stated in A.R. Antulay (supra) have not been kept in
view in V. Sriharan (supra) and, therefore, it is not a binding precedent
and a two-Judge Bench should either say that it is per incuriam or refer it
to a larger Bench. With regard to declaring a larger Bench judgment
per incuriam, learned senior counsel for the appellants have drawn
inspiration from the authority in Fibre Boards Private Limited, Bangalore
v. Commissioner of Income-Tax, Bangalore[45]. In that case, the two-Judge
Bench referred to Mamleshwar Prasad v. Kanhaiya Lal[46] and State of U.P.
and another v. Synthetics and Chemicals Ltd. and another[47] and took note
of the earlier Constitution Bench judgment in State of Orissa v. M.A.
Tulloch and Co.[48], and held thus:-

“35. The two later Constitution Bench judgments in Rayala Corpn. (P) Ltd.
v. Director of Enforcement[49] and Kolhapur Canesugar Works Ltd. v. Union
of India[50] also did not have the benefit of the aforesaid exposition of
the law. It is clear that even an implied repeal of a statute would fall
within the expression “repeal” in Section 6 of the General Clauses Act.
This is for the reason given by the Constitution Bench in M.A. Tulloch &
Co. that only the form of repeal differs but there is no difference in
intent or substance. If even an implied repeal is covered by the expression
“repeal”, it is clear that repeals may take any form and so long as a
statute or part of it is obliterated, such obliteration would be covered by
the expression “repeal” in Section 6 of the General Clauses Act.”

52. Be it noted, the Court followed the principles stated in M.A.
Tulloch and Co. (supra) and not in Rayala Corpn. (P) Ltd. (supra). In
State of U.P. v. Synthetics and Chemicals Ltd.[51] a two-Judge Bench of
this Court held that one particular conclusion of a Bench of seven-Judges
in Synthetics and Chemicals Ltd. and others v. State of U.P. and others[52]
as per incuriam. The two-Judge Bench in Synthetics and Chemicals Ltd.
(supra) opined thus:-
“36. The High Court, in our view, was clearly in error in striking down the
impugned provision which undoubtedly falls within the legislative
competence of the State, being referable to Entry 54 of List II. We are
firmly of the view that the decision of this Court in Synthetics[53] is not
an authority for the proposition canvassed by the assessee in challenging
the provision. This Court has not, and could not have, intended to say that
the Price Control Orders made by the Central Government under the IDR Act
imposed a fetter on the legislative power of the State under Entry 54 of
List II to levy taxes on the sale or purchase of goods. The reference to
sales tax in paragraph 86 of that judgment was merely accidental or per
incuriam and has, therefore, no effect on the impugned levy.”

53. The observations speak for themselves. We are not inclined to enter
into the doctrine of precedents and the principle of per incuriam in the
instant case. Suffice it to say that the grounds on which it is urged that
the Constitution Bench decision in V. Sriharan (supra) runs counter to the
larger Bench decision in A.R. Antulay (supra) are fallacious. In A.R.
Antulay (supra), the High Court had no jurisdiction to try the case under
the Prevention of Corruption Act, 1988 and consequently, by virtue of a
direction the accused was losing the right to appeal. Both could not have
been done and that is why, the larger Bench reviewed the Constitution Bench
judgment. For better appreciation, we may reproduce what Mukherjee, J. (as
His Lordship then was) speaking for three learned Judges had to say:-

“.. By reason of giving the directions on February 16, 1984 this Court had
also unintentionally caused the appellant the denial of rights under
Article 14 of the Constitution by denying him the equal protection of law
by being singled out for a special procedure not provided for by law. When
these factors are brought to the notice of this Court, even if there are
any technicalities this Court should not feel shackled and decline to
rectify that injustice or otherwise the injustice noticed will remain
forever a blot on justice. It has been said long time ago that “actus
curiae neminem gravabit” — an act of the court shall prejudice no man. This
maxim is founded upon justice and good sense and affords a safe and certain
guide for the administration of the law.”

And again:-

“In the aforesaid view of the matter the appeal is allowed; all proceedings
in this matter subsequent to the directions of this Court on 16-2-1984 as
indicated before are set aside and quashed. The trial shall proceed in
accordance with law, that is to say under the Act of 1952 as mentioned
hereinbefore.”

The majority concurred with the said opinion.

54. In the case at hand, the question of forum of trial does not arise.
What is fundamentally argued is that the right of the appellants to submit
an application is abrogated. An attempt has been made to elevate the same
to a constitutional right. The right of an appeal and abrogation thereof by
a direction of this Court is totally different and that is the principle
which compelled the larger Bench to recall its order. They applied the
principle of ex debito justitiae and passed the order reproduced
hereinabove.

55. Having adverted to the factual scenario, we have to understand the
obtaining situation. In the present context, a convict is not permitted to
submit an application under Section 433-A CrPC because of sentence imposed
by a Court. There is no abrogation of any fundamental or statutory right.
If the imposition of sentence is justified, as a natural corollary the
principle of remission does not arise. The principle for applying remission
arises only after expiry of 14 years if the Court imposes sentence of
imprisonment for life. When there is exercise of expanded option of
sentence between imprisonment for life and death sentence, it comes within
the sphere or arena of sentencing, We have already held that the said
exercise of expanded option is permissible as has been held in many a
judgment of this Court and finally by the Constitution Bench. The said
exercise, on a set of facts, has a rationale. It is based on a sound
principle. Series of judgments have been delivered by this Court stating in
categorical terms that imprisonment for life means remaining of the whole
period of natural life of the convict. The principle of exercise of
expanded expansion has received acceptance because the Court when it does
not intend to extinguish the spark of life of the convict by imposing the
death sentence. We have already discussed that facet earlier and not
accepted the submission to refer the matter to the larger Bench. We have no
hesitation in holding that the principles stated in A.R. Antulay (supra) do
not apply to the application to be preferred under Section 433-A CrPC, and,
therefore, the judgment in V. Sriharan (supra) is a binding precedent.

56. The next aspect that is required to be deliberated upon is the factual
score of the case that would include the genesis of crime, the nature of
involvement, the manner in which it has been executed, the antecedents of
the appellants, the motive that has moved the appellants to do away with a
young life, the gravity and the social impact of the crime, the suffering
of the family of the victim, the fear of the collective when such a crime
takes place, the category to which the High Court has fitted it, after
expressing its disinclination not to impose the death sentence and other
connected factors.
57. It is submitted by the learned counsel for the appellants that the
imposition of fixed term sentence is highly disproportionate and
unjustified in the particular facts of the case, for as the conviction is
based on the circumstantial evidence and as per the materials brought on
record only a single blow was inflicted not by any lethal weapon but by a
hammer. Though the High Court has referred to various aggravating and
mitigating circumstances, yet, it has misdirected itself by holding that
the motive of crime is “honour killing”. That apart, the High Court has
taken into consideration the false plea of alibi, intimidation of
witnesses, misleading of the police in the matter of recovery, intimidation
of the public prosecutor, the factum of abscondence, conviction in another
case, the inhuman treatment of the deceased, commission of murder while the
appellants had the trust of the deceased, the depravity of the mind,
reflection of cold bloodedness in commission of the crime, the brutality
that shocks the judicial conscience, absence of probability of reformation
of the convicts and such other aspects of which some are not relevant and
some have not been duly considered while imposing such harsh punishment.
58. It is urged by them, the approach of the High Court dealing with
death penalty and arriving at the conclusion that the case is not a rarest
of rare one has completely misdirected itself and, therefore, the
imposition of fixed term sentence is wholly unsustainable. They have
commended us to the authorities in Shankar Kisanrao Khade v. State of
Maharashtra[54], Oma alias Omprakash and another v. State of Tamil
Nadu[55], Mohd. Farooq Abdul Gafur and another v. State of Maharashtra[56],
Mohinder Singh v. State of Punjab[57] and Mangesh v. State of
Maharashtra[58].
59. Learned counsel for the State submits that the crime was premeditated
and diabolic in nature and the same is evincible from the discussion of the
judgment of conviction of the High Court and the said findings are beyond
assail as no leave has been granted in that regard and the Special Leave
Petition has been dismissed. According to the learned counsel for the
State, the said findings which find place in the judgment of conviction are
not subject to criticism and can be relied upon to describe the nature of
commission of crime. Mr. Krishnan, would further submit that the sentence
imposed is not disproportionate.
60. On a careful scrutiny of the judgment of conviction, it is seen that
the High Court has taken note of the facts that the deceased Nitish Katara
and Bharti Yadav (sister of Vikas Yadav; first cousin sister of Vishal
Yadav and; daughter of Shri D.P. Yadav who was also the employer of Sukhdev
@ Pehalwan) were in an intimate relationship aiming towards permanency;
that the family members of Bharti Yadav, including Vikas and Vishal Yadav,
were opposed to this relationship; that the aversion stemmed from the
reason that Nitish Katara did not belong to the same caste as that of
Bharti Yadav, that his family belonged to the service class and belonged to
economically lower strata; that Vishal Yadav and Sukhdev @ Pehalwan had not
been invited to the wedding and had no reason for being there, other than
perpetration of the crime; that Nitish Katara was abducted from the wedding
venue by the appellants with the common intention to murder him; that in
furtherance of their common intention Nitish Katara was thereafter murdered
by the appellants; that after murdering Nitish Katara, the appellants
removed his clothes, wrist watch and mobile from his person and set aflame
his dead body with the intention of preventing identification of the body
and destroying evidence of the commission of the offence; that immediately
after the incident, the three appellants absconded; that the dead body of
Nitish Katara was found at 9.30 a.m. in the morning of 17th February, 2002
in a completely burnt, naked and unidentifiable condition on the Shikharpur
Road which was recovered by the Khurja Police; that the body was having a
lacerated wound on the head, a fracture in the skull, laceration and
hematoma in the brain immediately below the fracture; that Vikas and Vishal
Yadav deliberately misled the police and took them to three places in Alwar
(Rajasthan) to search for Tata Safari vehicle which was obviously not
there; that Vikas and Vishal Yadav jointly misled the police to the taxi
stand behind Shamshan Ghat(cremation ground) in Panipat to search for the
Tata Safari which was again not there, and, enroute to Chandigarh for the
same purpose, got recovered the Tata Safari Vehicle bearing registration
No. PB-07H 0085 recovered from the burnt down factory premises of M/s. A.B.
Coltex Limited; that the appellant Sukhdev @ Pehalwan absconded for over
three and half years despite extensive searches, raids, issuance of
coercive process, attachment even at his native village and that he could
be arrested only on the 23rd of February, 2005 after he fired at police
patrol party.
61. From the aforesaid findings recorded by the High Court it is vivid that
crime was committed in a planned and cold blooded manner with the motive
that has emanated due to feeling of some kind uncalled for and unwarranted
superiority based on caste feeling that has blinded the thought of “choice
available” to a sister - a representative of women as a class. The High
Court in its judgment of conviction has unequivocally held that it is a
“honour killing” and the said findings apart from being put to rest, also
gets support from the evidence brought on record. The circumstantial
evidence by which the crime has been established, clearly lead to one
singular conclusion that the anger of the brother on the involvement of the
sister with the deceased, was the only motive behind crime. While dwelling
upon the facet of honour killing the High Court in the judgment of
conviction has held:-
“2023. The instant case manifests that even in a household belonging to the
highest class in society, (one in which you can make day trips with friends
from Ghaziabad to Mumbai just to celebrate a birthday; owns multiple
businesses and properties, luxury vehicles etc.) what can happen to even a
young, educated, articulate daughter if she attempted to break away from
the conventional caste confines and explored a lifetime alliance with a
member of another caste. Especially one who was also perceived to be of a
lesser economic status.
2024. We have found that immediately after Shivani Gaur’s wedding, Bharti
was completely segregated and confined by her family. On the 17th of
February 2002 itself, she was spirited away from her residence in Ghaziabad
to Faridabad. The police could record her statement under Section 161 of
the Cr.P.C. only on the 2nd of March 2002 that too under the eagle eye of
her father, a seasoned politician. Shortly thereafter, she was sent out of
India to U.K. and kept out of court for over three and a half years. Her
testimony is evidence of the influence of her brothers and family as she
prevaricates over trivial matters and denies established facts borne out by
documentary evidence. Finally, when she must have been stretched to the
utmost, she succumbs to their pressures when she concedes a deviously put
suggestion.
2025. Undoubtedly, the family of Nitish Katara has suffered at his demise
and thereafter. Having given our thought to this issue, we are of the view
that apart from the deceased and his family, there is one more victim in an
“honour killing”.”

62. In this context we may refer with profit to the decision in Lata
Singh v. State of U.P. and another[59] wherein it has been observed that:-

“The caste system is a curse on the nation and the sooner it is destroyed
the better. In fact, it is dividing the nation at a time when We have to be
united to face the challenges before the nation unitedly. Hence, inter-
caste marriages are in fact in the national interest as they will result in
destroying the caste system. However, disturbing news are coming from
several parts of the country that young men and women who undergo inter-
caste marriage, are threatened with violence, or violence is actually
committed on them. In our opinion, such acts of violence or threats or
harassment are wholly illegal and those who commit them must be severely
punished. This is a free and democratic country, and once a person becomes
a major he or she can marry whosoever he/she likes.”

And again:-
“We sometimes hear of “honour” killings of such persons who undergo inter-
caste or inter-religious marriage of their own free will. There is nothing
honourable in such killings, and in fact they are nothing but barbaric and
shameful acts of murder committed by brutal, feudal-minded persons who
deserve harsh punishment. Only in this way can we stamp out such acts of
barbarism.”

63. In Maya Kaur Baldevsingh Sardar and another v. State of
Maharashtra[60] this Court was constrained to observe thus:-

“26. We also notice that while judges tend to be extremely harsh in dealing
with murders committed on account of religious factors they tend to become
more conservative and almost apologetic in the case of murders arising out
of caste on the premise (as in this very case) that society should be given
time so that the necessary change comes about in the normal course. Has
this hands-off approach led to the creation of the casteless utopia or even
a perceptible movement in that direction? The answer is an emphatic ‘No’ as
would be clear from mushrooming caste-based organisations controlled and
manipulated by self-appointed commissars who have arrogated to themselves
the right to be the sole arbiters and defenders of their castes with the
licence to kill and maim to enforce their diktats and bring in line those
who dare to deviate. Resultantly the idyllic situation that we perceive is
as distant as ever. In this background is it appropriate that we throw up
our hands in despair waiting ad infinitum or optimistically a millennium or
two for the day when good sense would prevail by a normal evolutionary
process or is it our duty to help out by a push and a prod through the
criminal justice system? We feel that there can be only one answer to this
question.”

64. In Arumugam Servai v. State of Tamil Nadu[61], the Court reiterated
the principle stated in Lata Singh(supra) and proceeded to state that:-
“12. We have in recent years heard of “Khap Panchayats” (known as “Katta
Panchayats” in Tamil Nadu) which often decree or encourage honour killings
or other atrocities in an institutionalised way on boys and girls of
different castes and religion, who wish to get married or have been
married, or interfere with the personal lives of people. We are of the
opinion that this is wholly illegal and has to be ruthlessly stamped out.
As already stated in Lata Singh case3, there is nothing honourable in
honour killing or other atrocities and, in fact, it is nothing but barbaric
and shameful murder. Other atrocities in respect of personal lives of
people committed by brutal, feudal-minded persons deserve harsh punishment.
Only in this way can we stamp out such acts of barbarism and feudal
mentality. Moreover, these acts take the law into their own hands, and
amount to kangaroo courts, which are wholly illegal.”

65. In Bhagwan Dass v. State (NCT of Delhi)[62] the Court after referring
to Lata Singh’s case (supra) was in anguish to observe:-
“….In our opinion honour killings, for whatever reason, come within the
category of the rarest of rare cases deserving death punishment. It is time
to stamp out these barbaric, feudal practices which are a slur on our
nation. This is necessary as a deterrent for such outrageous, uncivilised
behaviour. All persons who are planning to perpetrate “honour” killings
should know that the gallows await them.”

66. Be it stated, though the High Court treated the murder as “honour
killing”, yet regard being had to other factors did not think appropriate
to impose extreme penalty of death sentence. We may hasten to clarify that
we have highlighted the factum of “honour killing”, as that is a seminal
ground for imposing the fixed term sentence of twenty-five years for the
offences under section 302/34 IPC on the two accused persons, who though
highly educated in good educational institutions, had not cultivated the
ability to abandon the depricable feelings and attitude for centuries.
Perhaps, they have harboured the fancy that it is an idea of which time had
arrived from time immemorial and ought to stay till eternity.
67. One may feel “My honour is my life” but that does not mean sustaining
one’s honour at the cost of another. Freedom, independence, constitutional
identity, individual choice and thought of a woman be a wife or sister or
daughter or mother cannot be allowed to be curtailed definitely not by
application of physical force or threat or mental cruelty in the name of
his self-assumed honour. That apart, neither the family members nor the
members of the collective has any right to assault the boy chosen by the
girl. Her individual choice is her self-respect and creating dent in it is
destroying her honour. And to impose so called brotherly or fatherly honor
or class honor by eliminating her choice is a crime of extreme brutality,
more so, when it is done under a guise. It is a vice, condemnable and
deplorable perception of “honour”, comparable to medieval obsessive
assertions.
68. Apart from the issue of honour killing, the High Court has also
adjudicated to the brutal manner in which the crime has been committed.
Mr. Lalit, learned senior counsel has highlighted on infliction of a single
blow. The High Court appreciating the material brought on record, has
given a graphic description.
69. The High Court has also taken note of the impact of post-offence
events and observed that the deceased was burnt to such a point that his
own mother could only suggest the identification from the small size of one
unburnt palm with fingers of the hand that the body appeared to be that of
her deceased son. The identification had to be confirmed by DNA testing.
While imposing the sentence, the High Court has been compelled to observe
that the magnitude of vengeance of the accused and the extent to which they
had gone to destroy the body of the deceased after his murder shows the
brutality involved in the crime and the maladroit efforts that were made to
destroy the evidence. From the evidence brought on record as well as the
analysis made by the High Court, it is demonstrable about the criminal
proclivity of the accused persons, for they have neither the respect for
human life nor did they have any concern for the dignity of a dead person.
They had deliberately comatosed the feeling that even in death a person has
dignity and when one is dead deserves to be treated with dignity. That is
the basic human right. The brutality that has been displayed by the accused
persons clearly exposes the depraved state of mind.
70. The conduct during the trial has also been emphasized by the High
Court because it is not an effect to protect one-self, but the arrogance
and the impunity shown in which they set up false defense and instilled
shivering fear in the mind and heard of witnesses with the evil design of
defeating the prosecution case. In fact, as has been recorded by the High
Court, the public prosecutor was also not spared. The factum of
abscondance and non-cooperation with the investigating team and also an
maladroit effort to mislead the investigators have been treated as
aggravating circumstances on the basis of authorities in Praveen Kumar v
State of Karnataka[63] and Yakub Abdul Razak Memon v State of
Maharashtra[64].

71. The criminal antecedents of accused Vikas Yadav has been referred to
in detail by the High Court. He was prosecuted in “Jesica Lal murder case”
and convicted under Section 201/120-B IPC and sentenced to undergo rigorous
imprisonment for four years and to pay a fine of Rs.2000 and, in default,
of payment of fine, to further undergo imprisonment for three months. This
Court in Sidhartha Vashisht alias Manu Sharma v State (NCT of Delhi)[65]
affirmed the conviction. The conclusion reached while affirming the
decision of the High Court, is as follows:-

“303. (9) The High Court has rightly convicted the other two accused,
namely, Amardeep Singh Gill @ Tony Gill and Vikas Yadav after appreciation
of the evidence of PWs 30 and 101.”

During the period, the said Vikas Yadav was on bail, he committed the
present crime.

72. Learned counsel for the appellants have submitted about the conduct
of the appellants in jail during their custody and have highlighted that
fourteen years in jail is of tremendous mental agony. In Maru Ram (supra),
Krishna Iyer, J., to appreciate the despair in custody, thought it apposite
to reproduce the bitter expression, from the poem, namely, The Ballad of
Reading Gaol by Oscar Wilde. The poet wrote:-
“I know not whether Laws be right,
Or whether Laws be wrong,
All that we know who lie in gaol
Is that the wall is strong;
And that each day is like a year,
A year whose days are long.”
(emphasis added)
In the said judgment, further lines from the poem have been reproduced,
which read thus:-
“Something was dead in each of us,
And what was dead was Hope.
* * *
The vilest deeds like poison weeds
Bloom well in prison air:
It is only what is good in Man”

Despite the aforesaid quotation in Maru Ram (supra), the Court upheld
the validity of Section 433-A.
73. In V. Sriharan (supra), the majority in the Constitution Bench has
succinctly stated thus:-
“ As far as the argument based on ray of hope is concerned, it must be
stated that however much forceful the contention may be, as was argued by
Mr.Dwivedi, the learned senior counsel appearing for the State, it must be
stated that such ray of hope was much more for the victims who were done to
death and whose dependants were to suffer the aftermath with no solace
left. Therefore, when the dreams of such victims in whatever manner and
extent it was planned, with reference to oneself, his or her dependants and
everyone surrounding him was demolished in an unmindful and in some case in
a diabolic manner in total violation of the Rule of Law which is prevailing
in an organized society, they cannot be heard to say only their rays of
home should prevail and kept intact.”

And again:-
“Therefore, we find no scope to apply the concept of ray of hope to come
for the rescue of such hardened, heartless offenders, which if considered
in their favour will only result in misplaced sympathy and again will be
not in the interest of the society. Therefore, we reject the said argument
outright.”

The said conclusion meets the argument so assiduously propounded by Mr.
Lalit, learned senior counsel appearing for the appellant.

74. The next contention that is canvassed pertains to non-application of
mind by the High Court while imposing the sentence, for two accused persons
have been sentenced for twenty-five years and Sukhdev, the other appellant,
has been sentenced to twenty years. The High Court, while dealing with
Vikas Yadav and Vishal Yadav has opined that they had misused the process
of law while in jail and in their conduct there is no sign of any kind of
remorse or regret. As far as the Sukhdev is concerned, the High Court has
taken his conduct in jail which had been chastened and punishment was
imposed once. The High Court has taken note of the fact that Sukhdev was
the employee of the father of Vikas Yadav and he is a married man with five
children and on account of his incarceration, his family is in dire stress.
A finding has been returned that he is not a person of substantial means
and has lesser paying capacity. On the basis of these facts and
circumstances, the High Court has drawn a distinction and imposed slightly
lesser sentence in respect of Sukhdev.

74A. Thus analyzed, we find that the imposition of fixed term sentence on
the appellants by the High Court cannot be found fault with. In this
regard a reference may be made to a passage from Guru Basavaraj vs State of
Karnataka[66], wherein while discussing about the concept of appropriate
sentence, the Court has expressed thus:-

“18. Just punishment is the collective cry of the society. While the
collective cry has to be kept uppermost in the mind, simultaneously the
principle of proportionality between the crime and punishment cannot be
totally brushed aside. The principle of just punishment is the bedrock of
sentencing in respect of a criminal offence. A punishment should not be
disproportionately excessive. The concept of proportionality allows a
significant discretion to the Judge but the same has to be guided by
certain principles. In certain cases, the nature of culpability, the
antecedents of the accused, the factum of age, the potentiality of the
convict to become a criminal in future, capability of his reformation and
to lead an acceptable life in the prevalent milieu, the effect – propensity
to become a social threat or nuisance, and sometimes lapse of time in the
commission of the crime and his conduct in the interregnum bearing in mind
the nature of the offence, the relationship between the parties and
attractability of the doctrine of bringing the convict to the value-based
social mainstream may be the guiding factors. Needless to emphasise, these
are certain illustrative aspects put forth in a condensed manner. We may
hasten to add that there can neither be a straitjacket formula nor a
solvable theory in mathematical exactitude. It would be dependent on the
facts of the case and rationalized judicial discretion. Neither the
personal perception of a Judge nor self-adhered moralistic vision nor
hypothetical apprehensions should be allowed to have any play. For every
offence, a drastic measure cannot be thought of. Similarly, an offender
cannot be allowed to be treated with leniency solely on the ground of
discretion vested in a court. The real requisite is to weigh the
circumstances in which the crimeincarcination meaning] has been committed
and other concomitant factors which we have indicated hereinbefore and also
have been stated in a number of pronouncements by this Court. On such
touchstone, the sentences are to be imposed. The discretion should not be
in the realm of fancy. It should be embedded in conceptual essence of just
punishment.”

75. Judged on the aforesaid parameters, we reiterate that the imposition
of fixed terms sentence is justified.

76. The next submission pertains to the direction by the High Court with
regard to the sentence imposed under Section 201 to run consecutively.
Learned counsel for the appellants have drawn our attention to the
Constitution Bench decision in V. Sriharan (supra) . The larger Bench was
dealing with the following question:-
“Whether consecutive life sentences can be awarded to a convict on being
found guilty of a series of murders for which he has been tried in a single
trial?”

77. Learned counsel appearing for the appellants have drawn out attention
to the analysis whether a person sentenced to undergo imprisonment for life
when visited with the “term sentence” should suffer them consecutively or
concurrently. The larger Bench in that context has held thus:-
“We do not, however, think so. The power of the Court to direct the order
in which sentences will run is unquestionable in view of the language
employed in Section 31 of the Cr.P.C. The Court can, therefore,
legitimately direct that the prisoner shall first undergo the term sentence
before the commencement of his life sentence. Such a direction shall be
perfectly legitimate and in tune with Section 31. The converse however may
not be true for if the Court directs the life sentence to start first it
would necessarily imply that the term sentence would run concurrently.
That is because once the prisoner spends his life in jail, there is no
question of his undergoing any further sentence.”

78. In the instant case, the trial Court has imposed the life sentence
and directed all the sentences to be concurrent. The High Court has
declined to enhance the sentence from imprisonment for life to death, but
has imposed a fixed term sentence. It curtails the power of remission
after fourteen years as envisaged under Section 433-A. In such a
situation, we are inclined to think that the principle stated by the
aforesaid Constitution Bench would apply on all fours. The High Court has
not directed that the sentence under Section 201/34 IPC shall run first
and, thereafter, the fixed term sentence will commence. Mr. Dayan
Krishnan, learned senior counsel appearing for the State has argued that
this Court should modify the sentence and direct that the appellants shall
suffer rigorous imprisonment for the offence punishable under Section
201/34 IPC and, thereafter, suffer the fixed term sentences. Similar
argument has been made in the written submission by the learned counsel for
the informant. As the High Court has not done it, we do not think that it
will be appropriate on the part of this Court in the appeal preferred by
the appellants to do so. Therefore, on this score we accept the submission
of the learned counsel for the appellants and direct that the sentence
imposed for the offence punishable under Section 201/34 IPC shall run
concurrently with the sentence imposed for other offences by the High
Court.

79. The last plank of submission advanced by the learned counsel for the
appellant pertains to imposition of fine by the High Court. The High Court
has already given the reasons and also adverted to the paying capacities.
The concept of victim compensation cannot be marginalized. Adequate
compensation is required to be granted. The High Court has considered all
the aspects and enhanced the fine, determined the compensation and
prescribed the default clause. We are not inclined to interfere with the
same.

80. Consequently, the appeals are disposed of with the singular
modification in the sentence i.e. the sentence under Section 201/34 IPC
shall run concurrently. Needless to say, all other sentences and
directions will remain intact.

………………………,J.
(Dipak Misra)

………………………,J.
(C. Nagappan)
New Delhi
October 3, 2016

-----------------------
[1]

AIR 1961 SC 112
[2] AIR 1961 SC 334
[3] (2016) 7 SCC 1
[4] (2013) 9 SCC 778
[5] (2013) 10 SCC 631

[6] AIR 1966 SC 945
[7] AIR 1971 SC 840
[8] (1988) 2 SCC 602
[9] 2016 (7) SCALE 129
[10] (2014) 11 SCC 1
[11] (2008) 13 SCC 767
[12] (1981) 1 SCC 107
[13] AIR 1961 SC 600
[14] (1976) 3 SCC 470
[15] (1991) 3 SCC 498
[16] (1985) 2 SCC 580
[17] (1974) 1 SCC 196
[18] (1984) 1 SCC 31
[19] (2001) 4 SCC 458
[20] (1980) 2 SCC 684
[21] (1983) 3 SCC 470
[22] (1973) 1 SCC 20
[23] (2007) 12 SCC 230
[24] Kishori Lal v. King Emperor, 1914 SCC OnLine PC 81
[25] (2001) 6 SCC 296
[26] (2005) 7 SCC 764
[27] (2011) 2 SCC 764
[28] (2012) 8 SCC 537
[29] (1981) 1 SCC 106
[30] (2001) 3 SCC 750
[31] AIR 2016 SC 3197 : 2016 (6) SCALE 105
[32] (1989)1 SCC 204
[33] (2006) 8 SCC 161
[34] (2001) 6 SCC 296
[35] (2002) 2 SCC 35
[36] (2002) 6 SCC 686
[37] (2003) 8 SCC 461
[38] (2009) 15 SCC 551
[39] (2010) 1 SCC 573
[40] (2012) 5 SCC 766
[41] (2012) 6 SCC 107
[42] Sangeet v. State of Haryana, (2013) 2 SCC 452
[43] (2012) 8 SCC 537
[44] (1994) 4 SCC 353
[45] (2015) 10 SCC 333
[46] (1975) 2 SCC 232
[47] (1991) 4 SCC 139
[48] (1964) 4 SCR 461
[49] (1969) 2 SCC 412
[50] (2000) 2 SCC 536
[51] (1991) 4 SCC 139
[52] (1990) 1 SCC 109
[53] (1990) 1 SCC 109
[54] (2013) 5 SCC 546
[55] (2013) 3 SCC 440
[56] (2010) 14 SCC 641
[57] (2013) 3 SCC 294
[58] (2011) 2 SCC 123
[59] (2006) 5 SCC 475
[60] (2007) 12 SCC 654
[61] (2011) 6 SCC 405
[62] (2011) 6 SCC 396
[63] (2003) 12 SCC 199
[64] (2013) 13 SCC 1
[65] (2010) 6 SCC 1
[66] (2013) 7 SCC 545

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