Shiva Kumar @ Shiva @ Shivamurthy v. State of

SHIVA KUMAR @ SHIVA @ SHIVAMURTHY v. STATE OF KARNATAKA (Criminal Appeal No. 942 of 2023) MARCH 28, 2023 [ABHAY S. OKA AND RAJESH BINDAL, JJ.] Penal Code, 1860 – ss.366, 376 and 302 – Power to impose modified punishment – Appellant convicted u/ss. 366, 376 a nd 302 IPC – Trial Court sentenced the appellant to underg o rigorous imprisonment for the rest of his life – High Court dismissed the appeal preferred by the appellant challenging the c onviction and sentence – In appeal before the Supreme Court, appellant contende d that in view of the law laid down by the Constitutional Bench i n the case of Union of India v. V. Sriharan alias Murugan & Ors., a modified sentence can be imposed only by the Constitutional Courts and not by the Sessions Courts – Held: The Constitution Bench in the case of V. Sriharan case 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, ca n be exercised only by the High Court and the Supreme Court and no t by any other inferior Court – Trial Court could not have directed that the appellant shall not be released till the rest of his l ife – Even in a case where capital punishment is not imposed, the Con stitutional Courts can always exercise the power of imposing a m odified or fixed-term sentence by directing that a life sentenc e shall be of a fixed period of more than fourteen years – In the given circ umstances of the case, a fixed-term sentence for a period of thirty years imposed. Partly allowing the appeal, the Court HELD : 1. While imposing a life sentence, if it is dire cted that the accused shall not be released for a specif ic 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. [Para 7][674-B]

¶2What is held by the Constitution Bench, cannot b e construed in a narrow perspective. The Constitution Be nch has held that there is a power which can be derived from th e IPC to impose a fixed term sentence or modified punishment wh ich 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 i n this country. In addition, the Constitution Bench held that p ower to impose a modified punishment of providing any specific te rm of incarceration or till the end of convict’s life as an altern ative to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior Court. [Para 11][676-F-G]

¶3When a Constitutional Court finds that though a case is not falling in the category of ‘rarest of the rare’ case, cons idering the gravity and nature of the offence and all other relevant factors, it can always impose a fixed-term sentence so that the b enefit of statutory remission, etc. is not available to the a ccused. The majority view in the case of V. Sriharan 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. [Para 12][677-A-C]

¶4This Court has no manner of doubt that even in a case where capital punishment is not imposed or is not propose d, the Constitutional Courts can always exercise the power of imposing a modified or fixed-term sentence by directing that a life sentence, as contemplated by “secondly” in Section 53 of the IPC, shal l be of a fixed period of more than fourteen years, for exa mple, 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. [Para 13][677-G-H; 678-A]

¶5It is true that the Trial Court could not have dir ected that the appellant shall not be released till the r est of his life. The Trial Court noted the fact that on the date of convict ion, the age of the appellant was 27 years and he had a wife and sm all child as well as aged parents. Considering these fac tors along with the fact that this was the first offence commit ted by the appellant, the Trial Court found that the case was not fall ing in the category of the ‘rarest of the rare’ cases. This Cou rt must hasten to add that the fact that the accused has no ant ecedents, is no consideration by itself for deciding whether the accused will fall in the category of the ‘rarest of the rare’ case s. [Para 15][678-G-H; 679-A]

¶6This is one case where a Constitutional Court mu st exercise the power of imposing a special category o f 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 mi tigating circumstances. It is the duty of the Court to consider all attending circumstances. The Court, while considering the pos sibility of reformation of the accused, must note that showing undue leniency in such a brutal case will adversely affec t the public confidence in the efficacy of the legal system. The Court must consider the rights of the victim as well. After havi ng considered these circumstances, this Court is of the opinion tha t this is a case where a fixed-term sentence for a period of thirty years must be imposed. [Para 16][679-B-D] Union of India v. V. Sriharan alias Murugan & Ors. 2016 (7) SCC 1 : [2015] 14 SCR 613 – followed. Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka 2008 (13) SCC 767 : [2008] 11 SCR 93; Sahib Hussain alias Sahib Jan v. State of Rajasthan 2013 (9) SCC 778 : [2013] 2 SCR 1019; Gurvail Singh alias Gala v. State of Punjab 2013 (10) SCC 631 : [2013] 17 SCR 983 – referred to. Case Law Reference [2015] 14 SCR 613 followed Para 3 [2008] 11 SCR 93 referred to Para 3 [2013] 2 SCR 1019 referred to Para 4 [2013] 17 SCR 98 referred to Para 4 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.942 of 2023. From the Judgment and Order dated 31.05.2016 of the High Court of Karnataka at Bengaluru in CRLA No.245 of 2011. KARNATAKA K. Parameshwar, Shekhar G Devasa, Manish Tiwari, Ms . Thashmitha Muthanna, Prashant Dixit, Vishwanath Chaturvedi, Shashi Bhushan, Sunil Ambavelil for M/s. Devasa & Co., Advs. for the Appellant. Shubhranshu Padhi, Vishal Banshal, Ms. Rajeshwari Shankar, Niroop Sukrithy, Ovias Moh., Advs. for the Respondent. The Judgment of the Court was delivered by

ABHAY S. OKA, J.

¶1Heard learned counsel for the parties. FACTUAL ASPECTS

¶2The 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 under go 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

¶3The 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.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 e ntirety of life or for a specific period, only while commuting the death pe nalty imposed on an accused. If the death penalty is not imposed, the Courts are powerless to impose a modified sentence. He also reli ed upon a decision of this Court in the case of Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka 2. He invited our attention to paragraph 105 of the decision of the Constitution Bench in the case of V. Sriharan1, wherein this Court has laid down that a modified sentence can be an alternative only to the death penalty. He, therefore, 1 2016 (7) SCC 1 2 2008 (13) SCC 767 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.

¶4He 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.

¶5On 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, h is 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.

¶6The 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 pow er 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

¶7Under Chapter III of the IPC, different punishments have been provided. Section 53 provides for five categories of puni shments: the death penalty, imprisonment for life, imprisonment (either rigorous or simple), forfeiture of property and fine. It is also a settled position that 3 2013 (9) SCC 778 4 2013 (10) SCC 631 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 Constituti onal powers vested in the Hon’ble Governor and the Hon’ble Pre sident 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 f ixed period provided, the power to grant remission under Cr.P.C. cannot be exercised.

¶8The 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 Shraddananda 2, which reads thus: “56. But this leads to a more important question about t he punishment commensurate to the appellant’s crime. The sentence of imprisonment for a term of 14 years, that goes under t he euphemism of life imprisonment is equally, if not m ore, unacceptable. As a matter of fact, Mr. Hegde informed u s that the appellant was taken in custody on 28-3-1994 and 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 t he first quarter of 2009 since he has already completed more than 1 4 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, award ed 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 th e 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] . Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly mean s 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 las t as long as life lasts, where there are exceptional indic ations 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)

¶9In 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 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 l ife or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission ?”

¶10While 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, commutati on 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 t he 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.” (emphasis added)

¶11What 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 fix ed term sentence or modified punishment which can only be exercised by t he 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 pro viding 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 H igh Court and the Supreme Court and not by any other inferior Court.

¶12In a given case, while passing an order of conviction for an offence which is punishable with death penalty, the Trial Court may come to a conclusion that the case is not a ‘rarest of th e rare’ case. In such a situation, depending upon the punishment prescribed for t he offence committed, the Trial Court can impose other punishment specifically provided in Section 53 of the IPC. Howe ver, 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 natur e of the offence and all other relevant factors, it can always impose a fixed-term sentence so that the benefit of statutory remission, etc. is not available to the accused. The majority view in the case of V. Sriharan1cannot be construed to mean that such a power cannot be exerc ised by the Constitutional Courts unless the question is of commuting the de ath sentence. This conclusion is well supported by what the Con stitution 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 t hat after the initial finding of guilt of such specifie d 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 befi tting such offence found proved to have been committed.” (emphasis added)

¶13Hence, 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 mo dified or fixed-term 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.

¶14Now, we come to the facts of the case. The facts are such, which will shock the conscience of any Court. The deceased w oman, 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 accus ed. 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 de ceased, footwear, etc. were found near the dead body. The p rosecution successfully established the charge of the offence of rape, 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.

¶15In many leading cities, IT hubs have been established. In fact, Bengaluru is known as the Silicon Valley of India. Som e of these companies have customers abroad and that is why the compan y staff members work at night. A large number of staff members in such companies are women. The issue is of safety and security of w omen 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 lif e. The Trial Court noted the fact that on the date of conviction, the age of the appel lant 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 antece dents, is no consideration by itself for deciding whether the accused will fall in the category of the ‘rarest of the rare’ cases. It all dep ends on several factors. The State Government failed in its endeavour to get capital punishment by way of filing an appeal.

¶16This 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 i n such a brutal case will adversely affect the public confi dence 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 fixed-term sentence for a period of thirty years must be imposed.

¶17Accordingly, we modify the order of sentence of the Trial Court for the offence punishable under Section 302 of the IPC. W e 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 t o the above extent. Ankit Gyan Appeal partly allowed. (Assisted by : Raoul Savant and Aarsh Choudhary, LC RAs)