IMPORTANT POINTS
When sentence of death penalty is altered to life imprisonment, it should mean rest of the life.
Section 302 prescribes maximum of death sentence and minimum of life imprisonment. Court cannot impose a sentence lesser than the minimum but can impose a sentence lesser than the maximum. Imposition of fixed term imprisonment for 25 years is not improper.
Power of the constitutional authorities under Article 71 and Article 161 are sacrosanct. Power u/s 433-A, on the other hand, is subject to judicial review.
Contention that Fixed term sentence is a judicial innovation not sanctioned by law rejected.
There is no fault in the High Court imposing a fixed term sentence while deciding an application for enhancing sentence of life imprisonment to death.
Appellate court cannot impose a sentence that the trial court could not impose.
Expanded option of sentence between death and life imprisonment is permissible.
Varying sentences can be imposed on individual accused depending upon conduct of accused persons before, during and after the proceedings and their socio-economic positions and the third accused being married and having children and remorse shown by him in prison.
Sentences should normally run concurrently.
Proper fine can be imposed for providing adequate compensation to the victim.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 28, 86 and 433 r/w section 53 and 302, Indian Penal Code, 1860 – Life imprisonment – Sentence of imprisonment for fixed term – Life imprisonment means sentence for remainder of one’s life – Section 433 only provides a minimum – There is no bar on the courts to impose punishment more than the minimum – It depends upon the facts of case and gravity of the offence – When sentence of death penalty is altered to life imprisonment, it should mean rest of the life – Courts duty bound to award sentence having regard to precedents and sanction of law. (Para 30)
       (2016) 7 SCC 1; (2008) 13 SCC 767 – Relied upon
       (2014) 11 SCC 1; (1981) 1 SCC 107; AIR 1961 SC 600; (1976) 3 SCC 470; (1991) 3 SCC 498; (1985) 2 SCC 580; (1980) 2 SCC 684; (1983) 3 SCC 470; (1973) 1 SCC 20 – Referred
       AIR 1961 SC 112; AIR 1961 SC 334 – Distinguished
       (b) Code of criminal Procedure, 1973 – Section 28 r/w section 302, Indian Penal Code, 1860 – Section 28 empowering court to impose sentence authorised by law – Section 302 prescribes maximum of death sentence and minimum of life imprisonment – Court cannot impose a sentence lesser than the minimum but can impose a sentence lesser than the maximum – Life imprisonment consistently held to mean whole of the remaining period of the convict’s natural life. (Para 32, 34)
       AIR 1961 SC 600; (1976) 3 SCC 470; (1981) 1 SCC 106; (2001) 3 SCC 750 – Relied upon
       2016 (7) SCALE 129 – Referred
       (c) Constitution of India – Article 71 and Article 161; and section 433-A, Code of Criminal Procedure, 1973 – Power of the constitutional authorities under Article 71 and Article 161 are sacrosanct – Power u/s 433-A, on the other hand, is subject to judicial review. (Para 33)
       (1981) 1 SCC 107; (2016) 7 SCC 1; AIR 2016 SC 3197 : 2016 (6) SCALE 105; (1989)1 SCC 204; (2006) 8 SCC 161 – Relied upon
       (d) Code of Criminal Procedure, 1973 – Section 433 r/w section 53 and 302, Indian Penal Code, 1860 – Fixed term sentence – Contention that it is a judicial innovation not sanctioned by law – Fixed term sentence adopts the view of “expanded option”, lesser than the maximum and within the expanded option of the minimum – Contention rejected. (Para 40)
       (e) Code of Criminal Procedure, 1973 – Section 368 – Contention that fixed term sentence can be passed only while commuting death sentence – Instantly trial court imposing sentence of life imprisonment – Prosecution filing application u/s 377 for enhancing sentence – High Court could have enhanced the sentence to death sentence – Instead, it imposed a fixed term sentence – No fault – Contention rejected. (Para 47)
       (2013) 9 SCC 778; (2013) 10 SCC 631; (2008) 13 SCC 767; (2001) 6 SCC 296; (2002) 2 SCC 35; (2002) 6 SCC 686; (2003) 8 SCC 461; (2009) 15 SCC 551; (2010) 1 SCC 573; (2012) 5 SCC 766; (2012) 6 SCC 107; (2012) 8 SCC 537; (1994) 4 SCC 353 – Referred
       (f) Criminal jurisprudence – Sentencing power of appellate court – Appellate court cannot impose a sentence that the trial court could not impose – Instantly, offence u/s 302 IPC – Trial court could impose death sentence – High Court imposing fixed term sentence while deciding on application of State u/s 377 CrPC – No fault. (Para 50)
       AIR 1966 SC 945; AIR 1971 SC 840 – Distinguished
       (g) Precedent – Contention that V. Sriharan runs counter to A.R. Antulay and hence per incuriam – Held fallacious. (Para 53)
       (2014) 11 SCC 1; (1988) 2 SCC 602; (2015) 10 SCC 333; (1975) 2 SCC 232; (1991) 4 SCC 139; (1964) 4 SCR 461; (1990) 1 SCC 109 – Referred
       (h) Code of Criminal Procedure, 1973 – Section 433-A – Remission – Accused not permitted to apply u/s 433-A because of sentence imposed by a court – No abrogation of any fundamental or statutory right – In case of justified sentence question of remission does not arise – Remission can be applied only after expiry of 14 years in case of life imprisonment – Expanded option of sentence between death and life imprisonment is permissible – V. Sriharan is binding precedent and A.R. Antulay does not apply. (Para 55)
       (2014) 11 SCC 1 – Relied upon
       (1988) 2 SCC 602 – Distinguished
       (i) Indian Penal Code, 1860 – Section 302/34 – Honour killing – High Court holding the brutal murder a honour killing – Yet taking in to all aggravating and mitigating circumstances refrained from imposing death sentence – No fault. (Para 66)
       (2006) 5 SCC 475; (2007) 12 SCC 654; (2011) 6 SCC 405; (2011) 6 SCC 396; (2003) 12 SCC 199; (2013) 13 SCC 1; (2010) 6 SCC 1 – Relied upon
       (1981) 1 SCC 107; (2014) 11 SCC 1 – Referred
       (j) Indian Penal Code, 1860 – Section 302/34 – Two accused sentenced to fixed term of 25 years while third accused was sentence to 20 years – Factors for varying sentences – Conduct of accused persons before, during and after the proceedings and their socio-economic positions and the third accused being married and having children and remorse shown by him in prison – Varying sentences by High Court cannot be faulted. (Para 75)
       (2013) 7 SCC 545 – Relied upon
       (k) Indian Penal Code, 1860 – Section 201 – Trial Court imposing life sentence and directed all sentences to run concurrently – High Court imposing sentence u/s 201 to run consequently – Sentence modified – To run concurrently. (Para 78)
       (2014) 11 SCC 1 – Relied upon
       (l) Indian Penal Code, 1860 – Section 302/34, 364/34 and 201/34 – Fine – High Court giving reasons for imposition of fine adverting to paying capacities of the accused persons – Adequate compensation is required to be granted to the victim – No interference required. (Para 79)
       Facts of the case:
       The three 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).
       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. However, separate sentences have been imposed in respect of other offences but they have been directed to be concurrent.
       The Supreme Court upheld the conviction and issued notices on issue of quantum of sentence.
       Finding of the Court:
       Imposition of sentence for fixed term is justified.
       Result: Appeals disposed of.

JUDGMENT :

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

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2016 Supreme(SC) 777

SUPREME COURT OF INDIADipak Misra, C. Nagappan, JJ.Vikas Yadav – AppellantsVersusState of U.P. and Ors. Etc. Etc. – RespondentsCRIMINAL APPEAL NOS. 1531-1533 OF 2015 WITH CRIMINAL APPEAL NOS. 1528-1530 OF 2015 Decided On : 03-10-2016

Cases Referred (47)

SUPREME COURT OF INDIA
Dipak Misra, C. Nagappan, JJ.
Vikas Yadav – Appellants
Versus
State of U.P. and Ors. Etc. Etc. – Respondents
CRIMINAL APPEAL NOS. 1531-1533 OF 2015 WITH CRIMINAL APPEAL NOS. 1528-1530 OF 2015
Decided On : 03-10-2016