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SUPREME COURT OF INDIA
ABHAY S. OKA, RAJESH BINDAL, JJ.
Shiva Kumar @ Shiva @ Shivamurthy – Appellant
Versus
State of Karnataka – Respondent
Criminal Appeal No. 942 of 2023 (Arising out of Special Leave Petition (Crl.) No. 3400 of 2017)
Decided On : 28-03-2023
(A) Criminal Procedure Code, 1973 – Section 432 – Indian Penal Code, 1860 – Sections 45 and 53 – Life sentence – When an offender is sentenced to undergo imprisonment for life, incarceration can continue till end of life of accused – However, it is subject to grant of remission under provisions of Code of Criminal Procedure, 1973 and Constitutional powers vested in Governor and President of India, as the case may be – While imposing life sentence, if it is directed that accused shall not be released for a specific period, it becomes a modified punishment – In such a case, before expiry of fixed period provided, power to grant remission under Cr.P.C. cannot be exercised – In a given case, while passing an order of conviction for an offence which is punishable with death penalty, Trial Court may come to a conclusion that case is not a ‘rarest of rare’ case – In such a situation, depending upon punishment prescribed for offence committed, Trial Court can impose other punishment specifically provided in Section 53 of IPC – However, when a Constitutional Court finds that though a case is not falling in the category of ‘rarest of the rare’ case, considering gravity and nature of offence and all other relevant factors, it can always impose a fixed-term sentence so that benefit of statutory remission, etc. is not available to accused. (Paras 7 and 12)
(B) Indian Penal Code, 1860 – Sections 366, 376 and 302 read with Sections 45 ands 53 – Criminal Procedure Code, 1973 – Sections 432 and 433-A – Kidnapping, rape and murder – Life sentence – Even in a case where capital punishment is not imposed or is not proposed, Constitutional Courts can always exercise power of imposing a modified or fixed-term sentence – Fixed punishment cannot be for a period less than 14 years in view of mandate of Section 433A of Cr.P.C. – Life of victim was cut short in this brutal manner at the age of 28 years – Fact that accused has no antecedents, is no consideration by itself for deciding whether accused will fall in category of ‘rarest of the rare’ cases – It all depends on several factors – State Government failed in its endeavour to get capital punishment by way of filing an appeal – This is one case where a Constitutional Court must exercise power of imposing a special category of modified punishment – It is duty of Court to consider all attending circumstances – Court, while considering possibility of reformation of accused, must note that showing undue leniency in such a brutal case will adversely affect public confidence in efficacy of legal system – Court must consider rights of victim as well – This is a case where a fixed-term sentence for a period of thirty years must be imposed – Appellant shall undergo imprisonment for life. (Paras 14, 15, 16 and 17)
Facts of the case:
Appellant has been convicted for the offences punishable under Sections 366, 376 and 302 of the Indian Penal Code, 1860. Controversy is limited to the sentence for the offence punishable under Section 302 of IPC. Trial Court sentenced appellant to undergo rigorous imprisonment for rest of his life.
Findings of Court:
Trial Court noted fact that on the date of conviction, age of the appellant was 27 years and he had a wife and small child as well as aged parents. Considering these factors along with the fact that this was the first offence committed by appellant, Trial Court found that the case was not falling in the category of ‘rarest of the rare’ cases.
Result : Appeal Partly allowed.
JUDGMENT :
Abhay S. Oka, J.
1. Heard learned counsel for the parties.
FACTUAL ASPECTS
2. The appellant has been convicted for the offences punishable under Sections 366, 376 and 302 of the Indian Penal Code, 1860 (for short, ‘IPC’). The controversy is limited to the sentence for the offence punishable under Section 302 of the IPC. The learned Sessions Judge (Fast-Track Court) sentenced the appellant to undergo rigorous imprisonment for the rest of his life. The appellant preferred an appeal before the High Court to challenge the conviction and sentence. The State Government preferred an appeal for enhancement of the sentence. The High Court, by the impugned judgment, dismissed both appeals. On 21st April 2017, notice was issued by this Court only on sentence.
SUBMISSIONS
3. The learned counsel appearing for the appellant-accused submitted that in view of the law laid down by the Constitution Bench of this Court in the case of Union of India v. V. Sriharan alias Murugan & Ors., 2016 (7) SCC 1, a modified sentence can be imposed only by the Constitutional Courts and not by the Sessions Courts. He submitted that the Constitutional Courts can grant life sentence either for the entirety of life or for a specific period, only while commuting the death penalty imposed on an accused. If the death penalty is not imposed, the Courts are powerless to impose a modified sentence. He also relied upon a decision of this Court in the case of Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka, 2008 (13) SCC 767. He invited our attention to paragraph 105 of the decision of the Constitution Bench in the case of V. Sriharan (Supra), wherein this Court has laid down that a modified sentence can be an alternative only to the death penalty. He, therefore, submitted that the Constitution Bench held that a fixed-term sentence or modified sentence can be imposed by way of substitution for the death penalty.
4. He submitted that even the subsequent decisions of this Court show that imposition of a modified sentence was made only in the cases where the death penalty has been commuted. He relied upon the decision of this Court in the case of Sahib Hussain alias Sahib Jan v. State of Rajasthan, 2013 (9) SCC 778 and in the case of Gurvail Singh alias Gala v. State of Punjab, 2013 (10) SCC 631.
5. On facts, he pointed out that at the time of the commission of the offence, the appellant’s age was 22 years. He pointed out that the appellant has a young wife, a small child and aged parents. Moreover, he has no antecedents and poses no threat to society. Moreover, his conduct in jail is all throughout satisfactory and in fact, he has completed B.A. degree course while in jail. Lastly, he pointed out that the appellant has undergone sentence for approximately seventeen years and two months.
6. The submission of the learned counsel appearing for the respondent – State is that the Constitutional Courts are not powerless to impose modified sentences considering the gravity of the offence, the conduct of the accused and other relevant factors even though the death penalty has not been imposed. He submitted that the power of the Constitutional Courts to grant a modified sentence could not be circumscribed by holding that the said power can be exercised only when the question is of commuting the death sentence. By pointing out findings of the Trial Court and the High Court, he submitted that in the facts of this case, the most stringent punishment was contemplated. He submitted that in any case, the High Court, after considering all the factual aspects, has reiterated the view taken by the Sessions Court by imposing a sentence for the entirety of the appellant’s life.
OUR VIEW
7. Under Chapter III of the IPC, different punishments have been provided. Section 53 provides for five categories of punishments: the death penalty, imprisonment for life, imprisonment (either rigorous or simple), forfeiture of property and fine. It is also a settled position that whe
(1) Life sentence – When an offender is sentenced to undergo imprisonment for life, incarceration can continue till end of life of accused – However, it is subject to grant of remission under provisi....
Sessions Court cannot impose life sentence for rest of life of accused. High Court can impose such sentence.
Life sentence – A special category of sentence, instead of death, can be substituted by punishment of imprisonment for life or for a term exceeding 14 years and that category can be put beyond applic....
(1) Kidnapping and rape of girl child – When a sentence of imprisonment for a term not less than 20 years which may extend upto life imprisonment is imposed, convict is also liable to suffer a senten....
The sentencing option of imprisonment for life without the possibility of remission or commutation is available to both the trial court and the High Court, but not to the Supreme Court unless it is e....
The main legal point established is the applicability of life imprisonment for the remainder of life in cases of heinous crimes, as upheld by the court in this judgment.
Direction for 10-year sentence under gang rape provision to run consecutively after life imprisonment overruled by Constitution Bench; life sentences superimposed, not consecutive, preventing additio....
Point of Law : While multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be ....
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