Shiva Kumar @ Shiva @ Shivamurthy vs State Of Karnataka

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 942 OF 2023 (Arising out of Special Leave Petition (Crl.) No.3400 of 2017)

Shiva Kumar @ Shiva @ Shivamurthy …Appellant

versus

State of Karnataka ...Respondent

J U D G M E N T

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 (Fast­Track Court) Signature Not Verified

sentenced the appellant to undergo rigorous imprisonment for Digitally signed by Anita Malhotra Date: 2023.03.28 17:13:45 IST Reason:

the rest of his life. The appellant preferred an appeal before

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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 21 st April 2017, notice was issued

by this Court only on sentence.

SUBMISSIONS

3. The learned counsel appearing for the appellant­accused

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.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 Karnataka2. He invited our attention to paragraph 105 of

the decision of the Constitution Bench in the case of V. 1 2016 (7) SCC 1 2 2008 (13) SCC 767

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Sriharan1, 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

fixed­term 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 Rajasthan3 and in the

case of Gurvail Singh alias Gala v. State of Punjab4.

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

3 2013 (9) SCC 778 4 2013 (10) SCC 631

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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,

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imprisonment (either rigorous or simple), forfeiture of property

and fine. It is also a settled position that when an offender is

sentenced to undergo imprisonment for life, the incarceration

can continue till the end of the life of the accused. However, it

is subject to a grant of remission under the provisions of the

Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) and the

Constitutional powers vested in the Hon’ble Governor and the

Hon’ble President of India, as the case may be. While imposing

a life sentence, if it is directed that the accused shall not be

released for a specific period, it becomes a modified

punishment. In such a case, before the expiry of the fixed

period provided, the power to grant remission under Cr.P.C.

cannot be exercised.

8. The learned counsel appearing for the appellant has relied

upon what is held in paragraph 56 of the decision of this Court

in the case of Swamy Shraddananda2, which reads thus:

“56. But this leads to a more important question about the punishment commensurate to the appellant's crime. The sentence of imprisonment for a term of 14 years, that goes under the euphemism of life imprisonment is equally, if not more, unacceptable. As a matter of fact, Mr. Hegde informed us that the appellant was taken in custody on 28­3­1994 and

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submitted that by virtue of the provisions relating to remission, the sentence of life imprisonment, without any qualification or further direction would, in all likelihood, lead to his release from jail in the first quarter of 2009 since he has already completed more than 14 years of incarceration. This eventuality is simply not acceptable to this Court. What then is the answer? The answer lies in breaking this standardisation that, in practice, renders the sentence of life imprisonment equal to imprisonment for a period of no more than 14 years; in making it clear that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court. This Court, therefore, must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but also by the High Courts, being the superior courts in their respective States. A suggestion to this effect was made by this Court nearly thirty years ago in Dalbir Singh v. State of Punjab [(1979) 3 SCC 745 : 1979 SCC (Cri) 848] . In para 14 of the judgment this Court held and observed as follows: (SCC p. 753) “14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case [Rajendra Prasad v. State of U.P., (1979) 3 SCC 646 : 1979 SCC (Cri) 749] .

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Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the men's life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder.” We think that it is time that the course suggested in Dalbir Singh [(1979) 3 SCC 745 :1979 SCC (Cri) 848] should receive a formal recognition by the Court.” (emphasis added)

9. In the case of V. Sriharan1, the Constitution Bench was

dealing with the question which is quoted in paragraph 50,

which reads thus:

“50. Having thus noted the relevant provisions in the Constitution, the Penal Code, the Criminal Procedure Code and the DSPE Act, we wish to deal with the questions referred for our consideration in seriatim. The first question framed for the consideration of the Constitution Bench reads as under : (V. Sriharan case [Union of

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India v. V. Sriharan, (2014) 11 SCC 1 :

(2014) 3 SCC (Cri) 1] , SCC p. 19, para 52)

“52.1. Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 :

(2009) 3 SCC (Cri) 113], a special category of sentence may be made for the very few 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 application of remission?”

10. While answering the question, the Constitution Bench

(majority view) held that imprisonment for life in terms of

Section 53 read with Section 45 of the IPC means

imprisonment for the rest of the life of the convict. In such a

case, right to claim remission, commutation etc. in accordance

with law will always be available. Thereafter, in paragraph

105, the Constitution Bench held thus:

“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

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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.” (emphasis added)

11. What is held by the Constitution Bench, cannot be

construed in a narrow perspective. The Constitution Bench

has held that there is a power which can be derived from the

IPC to impose a fixed term sentence or modified punishment

which can only be exercised by the High Court or in the event

of any further appeal, by the Supreme Court and not by any

other Court in this country. In addition, the Constitution

Bench held that power to impose a modified punishment of

providing any specific term of incarceration or till the end of

convict’s life as an alternative to death penalty, can be

exercised only by the High Court and the Supreme Court and

not by any other inferior Court.

12. In a given case, while passing an order of conviction for

an offence which is punishable with death penalty, the Trial

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Court may come to a conclusion that the case is not a ‘rarest of

the rare’ case. In such a situation, depending upon the

punishment prescribed for the offence committed, the Trial

Court can impose other punishment specifically provided in

Section 53 of the IPC. However, when a Constitutional Court

finds that though a case is not falling in the category of ‘rarest

of the rare’ case, considering the gravity and nature of the

offence and all other relevant factors, it can always impose a

fixed­term sentence so that the benefit of statutory remission,

etc. is not available to the accused. The majority view in the

case of V. Sriharan1 cannot be construed to mean that such a

power cannot be exercised by the Constitutional Courts unless

the question is of commuting the death sentence. This

conclusion is well supported by what the Constitution Bench

held in paragraph 104 of its decision, which reads thus:

“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

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that after the 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.” (emphasis added)

13. Hence, we have no manner of doubt that even in a case

where capital punishment is not imposed or is not proposed,

the Constitutional Courts can always exercise the power of

imposing a modified or fixed­term sentence by directing that a

life sentence, as contemplated by “secondly” in Section 53 of

the IPC, shall be of a fixed period of more than fourteen years,

for example, of twenty years, thirty years and so on. The fixed

punishment cannot be for a period less than 14 years in view

of the mandate of Section 433A of Cr.P.C.

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14. Now, we come to the facts of the case. The facts are such,

which will shock the conscience of any Court. The deceased

woman, who was happily married, worked in a prominent

company having an office at Electronic City, Bengaluru.

Considering the nature of her duty, she had to work till late

night or even till early in the morning. The company used to

provide her conveyance in the form of a car. The company

used to provide cars to employees on different designated

routes. On the fateful day, the deceased left the office at 2:00

a.m. in a vehicle provided by the company. She used to take a

vehicle plying on route no.131. On that day, she was informed

by the appellant, who was the driver, that the vehicle operating

on route no.131 was not available. The appellant told her that

she will have to travel by his vehicle operating on route no.405.

The deceased, accordingly, sat in the car driven by the

accused. The maternal uncle of the deceased lodged a

complaint by stating that the deceased was missing.

Ultimately, her dead body was recovered at the instance of the

appellant. The clothes on the person of the deceased, footwear,

etc. were found near the dead body. The prosecution

successfully established the charge of the offence of rape,

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punishable under Section 376 of the IPC as well as the offence

under Section 366 of IPC. The appellant–accused was also

convicted for the offence under Section 302. The life of the

victim was cut short in this brutal manner at the age of 28

years.

15. In many leading cities, IT hubs have been established. In

fact, Bengaluru is known as the Silicon Valley of India. Some

of these companies have customers abroad and that is why the

company staff members work at night. A large number of staff

members in such companies are women. The issue is of safety

and security of women working with such companies. We have

perused the judgment of the Trial Court. It is true that the

Trial Court could not have directed that the appellant shall not

be released till the rest of his life. The Trial Court noted the

fact that on the date of conviction, the 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 the appellant, the Trial

Court found that the case was not falling in the category of the

‘rarest of the rare’ cases. We must hasten to add that the fact

that the accused has no antecedents, is no consideration by

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itself for deciding whether the accused will fall in the category

of the ‘rarest of the rare’ cases. It all depends on several

factors. The State Government failed in its endeavour to get

capital punishment by way of filing an appeal.

16. This is one case where a Constitutional Court must

exercise the power of imposing a special category of modified

punishment. The High Court expressed the view that the

punishment imposed by the Trial Court was justified after

considering the balance sheet of aggravating and mitigating

circumstances. It is the duty of the Court to consider all

attending circumstances. The Court, while considering the

possibility of reformation of the accused, must note that

showing undue leniency in such a brutal case will adversely

affect the public confidence in the efficacy of the legal system.

The Court must consider the rights of the victim as well. After

having considered these circumstances, we are of the opinion

that this is a case where a fixed­term sentence for a period of

thirty years must be imposed.

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17. Accordingly, we modify the order of sentence of the Trial

Court for the offence punishable under Section 302 of the IPC.

We direct that the appellant shall undergo imprisonment for

life. We also direct that the appellant shall be released only

after he completes thirty years of actual sentence. The appeal

is partly allowed to the above extent.

.…………………J. (Abhay S. Oka)

..…………………J. (Rajesh Bindal) New Delhi;

March 28, 2023.

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