2007 Supreme(SC) 804

2007(4) Supreme 329
SUPREME COURT OF INDIA
(From Karnataka High Court)
S.B. Sinha, J
Swamy Shraddananda @ Murali Manohar Mishra — Petitioner
versus
State of Karnataka — Respondent
Appeal (crl.) 454 of 2006
Decided on : 18-05-2007

IMPORTANT POINTS
In the event of the deceased dying in an unnatural circumstance in her bed room, which was occupied only by her and her husband, onus of proof to show under what circumstances death occurred lies on the husband.
It is not permissible to start with the confession and find corroborative evidence thereof and come back to the confession again for the purpose of arriving at a conclusion of guilt.
Reasons must be detailed setting clearly why any punishment other than the maximum punishment will not suffice.
Planning which went into committing the murder is an important point to consider.
It can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident.
In criminal cases character of accused is immaterial by the mandate of sections 53 and 54. Therefore bad character of the accused by itself should not be a determinative factor.
‘Life sentence’ must be meant to be ‘life sentence’.

Headnote:Criminal Trial – Burden of proof – In the event of the deceased dying in an unnatural circumstance in her bed room, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf – Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against him – Onus of proof to show under what circumstances death occurred lies on the husband. (Paras 36 and 37).

       AIR 1984 SC 1622; 2007 (1) SCALE 19: JT 2007 (1) SC 239; AIR 1972 SC 2077; JT 2006 (9) SC 50 – Referred to.

       Indian Evidence Act, 1872 – Sections 26 and 27 – “Fact discovered” envisaged under Section 27 of the Indian Evidence Act, 1872 embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given in that behalf must relate distinctly to that effect – In a confession made before the police only that part which would come within the purview of Section 27 would be admissible and not the rest – The court while analyzing the evidence and appreciating the same cannot take note of confession made before the police – It is also not permissible to start with the confession and find corroborative evidence thereof and come back to the confession again for the purpose of arriving at a conclusion of guilt. (Paras 41, 44 and 45).

       2006 (13) SCALE 467; AIR 1947 PC 67; (1969) 2 SCC 872; (1995) 4 SCC 430; (2000) 6 SCC 269 – Relied upon.

       Indian Penal Code, 1860 – Section 302 – When each of the circumstances leading to the pointing out the guilt of the appellant and appellant alone had been established, the cumulative effect thereof would be that all the links in the chain are complete and the conclusion of the guilt is fully established. (Para 47).

       AIR 1952 SC 159 – Referred to.

       Indian Penal Code, 1860 – Section 302 – Death sentence – Although abolition of death penalty is not advocated, it must be given serious consideration whether the case falls in the category of rarest of rare cases – There is a growing demand in the international fora and in particular the second Optional Protocol to the International Covenants on Civil and Political Rights and the Protocol to the American Constitution on Human Rights that death penalty should be abolished – Court had also applied the doctrine of proportionality in awarding death penalty – Any decision on sentencing aspect would require assessing more than one variables, however, we do not have a sentencing policy; therefore each case may have to be considered on its own merit, but there should be consistency in awarding death penalty. (Paras 50, 52, 54, 58, 59, 61, 62 and 64).

       (1980) 2 SCC 684; (1982) 3 SCC 24; AIR 1982 SC 849 – Relied upon.

       (2002) UKPC 11: 12 BHRC 219; (2002) UKPC 12; (1983) 2 SCR 6903; (2002) 2 AC 284; (2006) 1 WLR 1623; (2007) UKPC 7; (2003) 8 SCC 224; 2006 (14) SCALE 15; 2007 (3) SCALE 157; (2003) NICC 1; 408 U.S. 238 (1972) – Referred to.

       Code of Criminal Procedure, 1973– Section 354(3) – Caution in setting maximum punishment is necessary – Discretion of Judiciary is of critical and seminal value – Reasons must be detailed setting clearly why any punishment other than the maximum punishment will not suffice – Such reasons must relate not to the crime but to the criminal – Death sentence would be warranted only if the security of the state and society, public order in the interest of the general public compelled that course Current global trend must be considered in awarding death penalty. (Paras 68 and 72, 76 to 78)

       (2006) 7 SCC 442; 2006 (14) SCALE 27; 2007 (3) SCALE 106 – Relied upon.

       Jagmohan Singh case (1973); Ediga Anamma (1974); (1979) 3 SCR 646; (1980) 2 SCC 684; 2006 (13) SCALE 600; 2007 (2) SCALE 42; AIR 2006 SCW 5712; (2004) 10 SCC 682; (2001) 9 SCC 50 – Referred to.

       Criminal Trial – Circumstantial evidence – Convictions based on seemingly conclusive circumstantial evidence should not be presumed as full proof incidences and the fact that the same are circumstantial evidence based must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability – Though all murders are cruel but cruelty may vary in its degree of culpability and it is only then the culpability assumes the proportion of extreme depravity that “special reasons” can legitimately be said to exist – Planning which went into committing the murder is an important point to consider. (Paras 89 and 94 to 96)

       (2004) 2 SCC 694; 1990 Supp (1) SCC 133 – Relied upon.

       52 Ga. 82, 85 (1874); 74 Ala. 26, 29-30 (1883); 205 F. Supp. 2d 256, 267 (S.D.N.Y. 2002) – Referred to.

       Indian Penal Code, 1860 – Section 302 and section 235(2), Code of Criminal Procedure, 1973 – It can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident – It could, of course, be a rare incident – Appellant made a confession before the High Court u/s 235(2), Cr. P.C. and the High Court took the same into consideration in the main judgment which could not be done – In view of the appellant being 64 years old and already in custody for a period of 16 years, sentence commuted to life imprisonment. (Paras 97,99 and 100).

       Indian Evidence Act, 1872 – Sections 53 and 54 – In criminal cases character of accused is immaterial by the mandate of sections 53 and 54 – Therefore bad character of the accused by itself should not be a determinative factor. (Para 98).

       Indian Penal Code, 1860 – Section 302 – In a case of this nature ‘life sentence’ must be meant to be ‘life sentence’. (Para 100).

       (2001) 4 SCC 458; (2002) 6 SCC 686; (2002) 2 SCC 35; (2001) 6 SCC 296; (2005) 7 SCC 417 – Relied upon.

       Facts of the case :

       The deceased Smt. Shakereh was married to one Mr. Akbar Khaleeli who was in the Indian Foreign Service. They had four daughters. In 1983 the deceased along with her children visited the Nawab of Rampur who was evidently a friend of the deceased and her husband. The accused was at that time assisting the Rampur royal family in the management of their landed properties and he was introduced to the Khaleeli family. After getting acquainted with them the accused gained their confidence. Since certain matters relating to the properties of the deceased at Bangalore needed to be sorted out she sought assistance of the accused having regard to his alleged expertise in dealing with property matters.

       Since her husband had to go to Iran on his posting as a diplomat, the deceased came to Bangalore. The accused also came to Bangalore and was provided accommodation in the same house. The deceased had only daughters and she longed for a son. The accused made her believe that he could bless her with a son. In 1985, the deceased and her husband divorced, and a few months thereafter the deceased married the accused and both started living together in deceased’s House No.81, Richmond Road, Bangalore.

       Deceased’s daughter, Sabah was a model and publisher of a fashion magazine in Mumbai, and she would telephone her mother and also get telephone calls regularly from her mother. However, from May 1991, the deceased became unavailable and when Sabah tried to contact her on telephone, the accused informed her that her mother had gone to Hyderabad for the marriage of a relative. Telephone calls from the deceased to Sabah also stopped coming from May 1991. After four or five days Sabah again telephoned to her mother’s house at Bangalore, and this time she was told by the accused that the deceased had gone to Kutch for a marriage of a big diamond merchant. Again after four or five days Sabah telephoned to her mother’s house. This time the accused told her that her mother was facing income tax problems and hence she was not in a position to talk to anyone.

       Sabah came from Mumbai to Bangalore and went to House No.81, Richmond Road. She asked the accused as to where her mother was. The accused told her that she had become pregnant and wanted a peaceful atmosphere for nine months and that she was admitted in Roosevelt Hospital, New York, since it was the best hospital but refused to give her the address or telephone number. Later Sabah contacted the Roosevelt hospital at New York and came to know that no woman of the name Shakereh was admitted in the hospital. When confronted, the accused and told her that since her mother was pregnant and wanted to keep it a secret and rest for nine months so he could not give her the correct address. The accused even did not allow her to speak to the deceased. Sabah came to Bangalore but did not find her mother there. At Bangalore whenever any telephone rang the accused used to lift the receiver and tell Sabah that the telephone was from her mother, but before Sabah could go near the telephone, the telephone used to get disconnected.

       Thereafter, the accused used to visit Mumbai and staying at Taj hotel or Sea Rock hotel, with two or three women. On last occasion, Sabah saw her mother’s passport n the troom of the accused there which showed that her mother had not left India for any foreign country since 1989. The accused told Sabah that her mother was in India and asked her to be patient for some more months. In March 1992 after the nine month’s period was over, Sabah rang the accused and told him that now he had to tell her the whereabouts of her mother otherwise she would lodge a police complaint. After two or three days the accused informed her that her mother had given birth to a male child and asked her to come to Bangalore where she could meet the deceased and the child. Accordingly, Sabah came to Bangalore but did not find either the accused, her mother or the child at house No. 81, Richmond Road. After four hours of her arrival in the house, the accused came to the house and told Sabah that he along with Shakereh were waiting for her at the airport and when they did not find Sabah there, the accused left Shakereh in the farm house. The accused then told Sabah that her mother would be coming the next day and there was no need to lodge any complaint.

       Since the accused did not produce Shakereh and did not give Sabah the whereabouts of her mother, Sabah lodged an FIR in Ashoknagar police station on 10.6.1992 stating that her mother had been missing.

       Findings of the Court :

       It can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident.

       In view of the appellant being 64 years old and already in custody for a period of 16 years, sentence commuted to life imprisonment.