SAHIB HUSSAIN @ SAHIB JANversusSTATE OF RAJASTHAN

                  [2013) 2 S.C.R. 1019


              SAHIB HUSSAIN @ SAHIB JAN                           A
                              v.
                  STATE OF RAJASTHAN
         (Criminal Appeal Nos. 2083-2084 of 2008)
                       APRIL 18, 2013
                                                                  B
         [P. SATHASIVAM AND M.Y. EQBAL, JJ.]

     PENAL CODE, 1860:

     s.302- Accused committing 5 murders including of three       C
children - Circumstantial evidence - Held: The deaths
established as homicidal in nature, evidence of witnesses,
extra-judicial confession, absconding of accused, his conduct
at the time of his a"est, recoveries of incriminating articles
made pursuant to disclosure statement, the motive and the
statement of accused u/s 313 CrPC, all connect him to the
                                                                  0
crime and establish his guilt - Judgment of High Court
affirming the conviction and commuting the death sentence
to imprisonment for 20 years with a further direction that
accused be not granted any remission meanwhile, upheld -
Sentence/Sentencing - Evidence - Circumstantial evidence          E
- Extra - judicial confession.

     SENTENCE/SENTENCING:

     Sentence for a fixed term with a further embargo on          F
remissions - Death sentence awarded by trial court to
accused found guilty of causing death of five persons
including of three children - Commuted by High Court to
imprisonment for 20 years with a further direction that accused
be not granted any remissions till then - Held: The decision      G
of High Courf cannot be faulted with in the light of well
reasoned judgments of Supreme Court over a decade -
Penal Code, 1860 - s.302.

                             1019                                 H
    1020   SUPREME COURT REPORTS              [2013] 2 S.C.R.

A      The appellant was prosecuted for causing death of
  5 persons including three children. The prosecution case
  was that on 27-10-2006 at 10.30 p.m., PW1 found the
  appellant talking to PW4 that he had finished 'S' the
  sister-in-law, three children and one 'MM'. PW1 rushed
8 towards their house and found 'MM' lying in a pool of
  blood outside the room and the bodies of the three
  children and 'S' lying inside the rooms. He informed the
  employer (PW2) over telephone. Subsequently, a written
  report was handed over to police. 'MM' also on the way
C to hospital. The trial court convicted the appellant u/s 302
  IPC and sentenced him to death. The High Court upheld
  the conviction, but commuted the sentence to life
  imprisonment for a period of 20 years and further directed
  that till then the accused should not get the benefit of any
  remission.
D
       Dismissing the appeals, the Court
       HELD: 1.1. It is not in dispute that in the incident in
  question 5 persons died and as per the post mortem
E reports, the deaths were due to multiple injuries on
  various parts of the bodies. It is also not in dispute that
  there is no direct eye witness to the incident. Even in the
  absence of eye-witness to the incident, if various
  circumstances prove that the appellant-accused was
F responsible for and involved in the gruesome murders,
  the decision of the court based on such circumstances
  cannot be faulted with. [para 6] [1028-B-D]
       1.2. The post mortem report, ante mortem injuries
  noted therein and the evidence of doctors show that all
G the five deaths were homicidal in nature. [para 7] [1028-E]
      1.3. The entire evidence of PWs 1 and 4, though they
  did not witness the occurrence, as rightly observed by
  the High Court, the manner in which they deposed before
H the court and the details stated by them are acceptable
    SAHIB HUSSAIN@ SAHIB JAN v. STATE OF              1021
                RAJASTHAN
and there is no valid reason to disbelieve their              A
statements. Their evidence very clearly establishes that
the appellant-accused was the person who was involved
in the incident occurred. [para 9) (1029-C]
     1.4. The extra-judicial confession, though a weak type   B
of evidence, can form the basis for conviction if the
confession made by the accused is voluntary, true and
trustworthy and inspires confidence. The appellant-
accused mentioned details of the incident to PW-4 and
the courts below accepted his version as reliable and         C
trustworthy. The evidence of PW-4 is reliable, acceptable
and inspires confidence. It supports the stand taken by
PW-1. It is also on record that PW-4 was the friend of the
appellant and they were residing in the same area. In
those circumstances, the confession made by the
appellant to PW-4 can be acted upon along with. other         D
material evidence. [para 1OJ (1029-D-G]
    1.5. On the basis of the disclosure statement made
by the appellant, a blood stained axe and the clothes
worn by him were recovered in the presence of PW-2 and        E
PW-3. Further, blood stained chappals were also seized.
On going through the evidence of PWs 2 and 3, both the
courts below have found that the recoveries are
acceptable and concluded that there is no reason to
disbelieve their statements. [para 11) (1029-H; 1030-A-C]     F

     1.6. Though the conduct of the appellant may not be
the main link in the chain ofcircumstances to prove his
guilt, however, absconding from the scene would
establish his guilt and rule out hypothesis of innocence.
It has come out from the evidence that immediately after      G
the incident, the accused left the village and boarded a
bus to Delhi. However, he was arrested in the way by PW-
16 at 2.20 a.m., on 28.10.2006. [para 12] (1030-C-D]

                                                              H
    1022    SUPREME COURT REPORTS              [2013] 2 S.C.R.


A      1.7. There is no proper explanation by the appellant
  even u/s 313 statement for his sudden departure from the
  scene and going to Delhi. In the absence of any reason,
  the conduct of the appellant supports the case. of the
  prosecution. Further, the appellant, when questioned by
B PW-16 in the bus, suppressed his original name and gave
  a false name and only on further interrogation, disclosed
  his original name. These aspects go against his conduct
  and support the case of the prosecution. [para 12-13]
  [1030-G-H; 1031-B]
c        1.8. As regards motive, PW-1 - the informant stated
    that the appellant had a quarrel with deceased 'S' on the
    day of Eid. This statement of PW-1 gets corroboration
    from the evidence of PW-4. [para 14] [1031-C-D]
D      1.9. Further the FSL report and DNA report matched
  with the blood group of the deceased and the blood ·
  group found on the chappals, pant, shirt and axe. As
  rightly concluded by the courts below, the reports
  support the case of the prosecution. In the statement of
E the accused recorded u/s 313 of the Code, he has neither
  denied nor stated about the incriminating circumstances
  relied on by the prosecution. [para 15-16] [1031-E-G]
      1.10. It is true that the prosecution could have
F examined the husband of he deceased, however, in view
  of various circumstances, merely because one person
  was not examined, the entire case of the prosecution ·
  cannot be thrown out. [para 17] [1032-A-B]
       1.11. This court is satisfied that all the circumstances
G relied on by the prosecution are reliable, acceptable and
  connect the appellant-accused to the crime and establish
  his guilt. The conclusion arrived at by the High Court is
  affirmed. [para 17] [1032-B-C]

H
    SAHIB HUSSAIN@ SAHIB JAN v. STATE OF             1023
                RAJASTHAN
       2.This Court, in many cases has commuted death A
 sentence to life imprisonment where the offence alleged
  is serious in nature, and while awarding life
  imprisonment, reiterated minimum imprisonment of 20
  years or 25 years or 30 years or 35 years, mentioning that
  if the appropriate Government wants to give remission, B
  the same has to be considered only after the expiry of the
 said period. Taking note of the facts in the instant case,
  the High Court commuted the death sentence into life
  imprisonment imposing certain restrictions, its decision .
  cannot be faulted with and in the light of well reasoned C
 judgments over a decade, this Court upholds the
. conclusion arrived at by the High Court including the
i reasons stated therein. [para 29 and 31] [1036-B-C; 1043-
  H; 1044-A-B]

     Shri Bhagwan vs. State of Rajasthan 2001 (3) SCR        D
656 = (2001) 6 SCC 296; Prakash Dhawal Khaimar (Patil) vs.
State of Maharashtra with State of Maharashtra vs. Sandeep
@ Babloo Prakash Khairnar (Patil) 2001 (5 ) Suppl.
 SCR 612 = (2002) 2 SCC 35; Ram Anup Singh and Ors. vs.
State of Bihar (2002) 6 SCC 686; Nazir Khan and Ors. vs.     E
                                      =
State of Delhi 2003 (2) Suppl. SCR '884 (2003) 8 SCC 461;
Swamy Shraddananda (2) @ Murali Manohar Mishra vs.
                                     =
State of Kamataka, 2008 (11) SCR 93 (2008) 13 SCC 767;
Haru Ghosh vs. State of West Bengal 2009 (13) SCR 847   =
(2009) 15 SCC 551 ; Ramraj @ Nanhoo @ Bihnu vs. State        F
                                    =
of Chhattisgarh 2009 (16) SCR 367 (2010) 1 SCC 573;
Neel Kumar @ Anil Kumar vs. The State of Haryana 2012
             =
(5) SCR 696 (2012) 5 SCC 766; Sandeep vs. State of UP
 2012 (5) SCR 952 = (2012) 6 SCC 107; Gurvail Singh @
Gala and Anr. vs. State of Punjab (2013) 2 SCC 713;          G
Jagmohan Singh vs. State of U.P. (1973) 1 SCC 20; Bachan
Singh vs. State of Punjab (1980) 2 SCC 684 - relied on.

    Sangeet and Anr. vs. State of Haryana (2013) 2 SCC
452- held inapplicable.
                                                             H
    1024    SUPREME COURT REPORTS                [2013) 2 S.C.R.


A                       Case Law Reference:
      2001 (3) SCR 656             relied on           para 19
      2001 (5) Suppl. SCR 612 relied on                para 20
      c2002) 6 sec 686             relied on           para 21
B
      2003 (2) Suppl. SCR 884 relied on                para 22
      2008 (11) SCR93              relied on           para 23
      2009 (13) SCR847             relied on           para 24
c     2009 (16) SCR367.            relied on           para 25
      2012 (5) SCR696              relied on           para 26
      2012 (5) SCR952              relied on           para 27
D     (2013) 2 sec 113             relied on           para 28
      (2013) 2 sec 452             held inapplicable para 29
      1973 (2) SCR 541             relied on           para 30

E     1980 (2) sec 684             relied on           para 30
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    Nos. 2083-2084 of 2008.
      From the Judgment & Order dated 05.03.2008 of the High
F Court Rajasthan at Jaipur in Crl. Appeal No. 91 of 2008.
        Pijush K. Roy, Kakali Roy for the Appellant.
       Archana Pathak Dave, Dr. Sumant Bharadwaj, Ankita
    Chaudhary, Mridula Ray, Milind Kumar for the Respondent.
G       The Judgment of the Court was delivered by
       P. SATHASIVAM, J. 1. These appeals are directed
  against the final judgment and order dated 05.03.2008 passed
  by the High Court of Judicature for Rajasthan at Jaipur in
H Criminal Death Reference No. 1 of 2007 and Criminal Appeal
    SAHIB HUSSAIN @ SAHIB JAN v. STATE OF                     1025
         RAJASTHAN [P. SATHASIVAM, J.]
Nos. 91 and 92 of 2008 whereby the High Court disposed of              A
the appeals filed by the appellant herein against the order of
conviction and sentence dated 13.12.2007 passed by the Court
of Additional Sessions Judge (Fast Track), Serial No. 1, Jaipur,
District Jaipur (Rajasthan) by commuting the sentence of death
to imprisonment for life.                                              B

     2. Brief facts:

    (a) It is an unfortunate incident of killing of five persons who
were residing at Bharti Colony, Kunda, Tehsil Aamer, District
Jaipur, Rajasthan.                                                     C

     (b) On 27.10.2006, at 10.30 p.m., one Zafar (PW-1)-the
informant, who was also residing at the above said place, while
on his way back home found the appellant herein talking to one
Satish (PW-4) that he had finished Seema Bhabhi (sister-in-            D
law) and also killed the three children and Munna Mawali. On
hearing this, PW-1 went towards their house and found that
Munna Mawali was lying in a pool of blood on the Chabutra
outside his room and his nephew Kalu was lying dead inside
the room and the bodies of Seema-the wife of Munna, lsha-              E
son of Lalu Chacha and Sonu-son of Munna were lying in pool
of blood in the other room. After seeing this, he ran towards
Satish (PW-4) and asked him about the appellant herein. PW-
4 informed him that he ran towards the Highway after changing
the clothes. Thereafter, PW-1 informed the same to Ballu Bhai          F
@ Ballu (PW-2) over telephone. After some time, a written
report was handed over to the S.H.O., Police Station, Aamer
by PW-1, at 12.30 a.m. Munna Mawali was removed to the
hospital by the police but he died on the way.

     (c) On the basis of the said information, a case being Crime      G
No. 466/2006 under Section 302 of the Indian Penal Code,
1860 (in short 'the IPC) was registered against Sahib Hussain.
Post mortem on the dead bodies was also performed.· After
investigation and filing of chargesheet, the case was committed
to the Court of Additional Sessions Judge (Fast Track), Serial         H
    1026     SUPREME COURT REPORTS                  [2013) 2 S.C.R.


A   No. 1, Jaipur, District Jaipur (Rajasthan) and numbered as
    Session Case No. 90/2006. During trial, it came to the
    knowledge of the court that there was a scuffle between the
    appellant herein and Seema (since deceased) on the day of
    Eid which resulted in such a gruesome act. However, taking
s   note of circumstantial evidence, the Additional Sessions
    Judge, by order dated 13.12.2007, convicted the appellant-
    accused for the offence punishable under Section 302 of IPC
    and sentenced him to death.

       (d) Aggrieved by the said order, the appellant-accused
C preferred appeals being Criminal Appeal Nos. 91 and 92 of
  2008 before the High Court. Death Reference No. 1 of 2007
  under Section 366 of the Code of Criminal Procedure, 1973
  (in short 'the Code) was also preferred by the trial court for
  confirmation of the death sentence. By impugned judgment
D dated 05.03.2008, the High Court disposed of the appeals filed
  by the appellant-accused by commuting the sentence of death
  to the imprisonment for life and also made a direction that he
  shall not be released from the prison unless he serve out at
  least 20 years of imprisonment including the period already
E undergone and also he shall not get the benefit of any remission
  either by the State or by the Government of India on any
  auspicious occasion.

         (e) Aggrieved by the said order, the appellant preferred
F   these appeals from jail by way of special leave before this Court.

        3. Heard Mr. Pijush K. Roy, learned amicus curiae for the
    appellant-accused and Ms. Archana Pathak Dave, learned
    counsel for the State of Rajasthan.

G Contentions:

        4. (a) Mr. Pijush K. Roy, learned amicus, after taking us
 . through the entire materials, submitted that there is no direct
   eye witness to speak about the incident and the case of the
H prosecution entirely rests upon circumstantial evidence.
    SAHIB HUSSAIN@ SAHIB JAN v. STATE OF                      1027
         RAJASTHAN [P. SATHASIVAM, J.]
According to him, the circumstances relied on by the                   A
prosecution have not been satisfactorily established and, in any
event, the circumstances said to have been established
against the appellant do not provide a complete chain to bring
home the guilt against the appellant. He further submitted that
the FIR itself is doubtful, there are contradictions with regard       B
to the place where the accused has first of all disclosed about
the incident to Salish (PW-4), a number of infirmities in the
statements of witnesses in respect of the fact that the place of
incident was surrounded by many housesholds, no reliable
person was examined on the side of the prosecution and                 c
recovery of weapon (Axe), clothes, pair of chappal etc. are
doubtful, hence, he prayed for acquittal of the appellant-
accused. Alternatively, Mr. Roy contended that the High Court
was not justified in ·passing the order taking away the right of
remission by the Government before completion of 20 years'             0
of imprisonment.

        (4)(b) On the other hand, Ms. Archana Pathak Dave,
  learned counsel for the State, after taking us through all the
  materials submitted that the prosecution has fully established
  various circumstances which speak about the guilt of the             E
  appellant including the recoveries, extra judicial confession,
  conduct of the appellant mentioning false name at the time of
 .his arrest etc. She further submitted that there is no denial in
  his statement under Section 313 of the Code that he was
  absconding from the scene of occurrence till he was arrested         F
  and the evidence of PWs 1 & 4 with regard to the same are
. also consistent and reliable. Ms. Archana also submitted that
  taking note of the fact that the appellant caused the death of 5
  persons and the High Court has commuted the death sentence
  into life imprisonment, based on various earlier decisions of this   G
 Court, the High Court justified in imposing restrictions in
 granting remission before completion of 20 years' of
 imprisonment.

     5. We have carefully considered the rival contentions and · H
    1028    SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A   perused all the materials including oral and documentary
    evidence.

    Discussion:

        6. It is not in dispute that in the incident in question 5
B persons, viz., Seema, Munna Mawali, Kalu, lsha and Sonu died
  and as per the post mortem reports, the deaths were due to
  multiple injuries on various parts of the bodies. It is also not in
  dispute that there is no direct eye witness to the incident which
  occurred around 10.30 p.m., on 27.10.2006. Even in the
C absence of eye-witness to the incident, if various
  circumst~nces prove that the appellant-accused was .,
  responsible and involved in the gruesome murders, the decision ·
  of the Court based on such circumstances cannot be faulted
  with. However, we have to see whether the circumstances
D relied on by the prosecution have been fully established or not?

        7. The post mortem report, ante mortem injuries noted
  therein and the evidence of doctors concerned show that all the
  five deaths were homicidal in nature. Since the above aspect
                                                                    1
E is not seriously disputed, there is no reason to refer the nature
  of injuries and the ultimate opinion of the doctor who conducted 1
  the post mortem.

       8. The prosecution heavily relied on the evidence of Jafar
  (PW-1) and Satish (PW-4). PW-1, in his evidence has stated
F that he used to reside with one Ballu Bhai in Bharti Colony
  Kunda, Aamer. According to him, Ballu Bhai had many
  elephants and he used to ride one of his elephant. Munna and .
  Munna Mawali (since deceased) were also elephant riders. He
  further explained that on the day of the occurrence, around
G 10.30 p.m., while he was going to his home, he noticed the
  appellant-accused talking to Satish (PW-4) th~t he had
  committed the murder of Seema Bhabai, Munna Mawalai and
  three children. On hearing this, he immediately rushed to their
  house and noticed that Munna Mawali was lying outside his
H room in pool of blood and inside the rooms, Seema and three
    SAHIB HUSSAIN @ SAHIB JAN v. STATE OF                 1029
         RAJASTHAN [P. SATHASIVAM, J.]
children were lying dead. In addition to the evidence of PW-1,     A
one Satish, who was examined as PW-4, supported the
testimony of Jafar (PW-1). In his evidence, he explained that
he was an elephant rider and used to ride the elephant of Ballu
Bhai and also residing at the .above said place. He further
stated that at about 10.30 p.m., the appellant-accused came        B
to him and disclosed about the incident.

     9. A perusal of the entire evidence of PWs 1 & 4, though
they did not witness the occurrence, as rightly observed by the
High Court, the manner in which they deposed before the Court      C
and the details stated by them are acceptable and there is no
valid reason to disbelieve their statements. Their evidence very
clearly establishes that the appellant-accused was the person
who was involved in the incident occurred.

     10. The prosecution heavily relied on the extra judicial      D
confession. The extra judicial confession, though a weak type
of evidence, can form the basis for conviction if the confession
made by the accused is voluntary, true and trustworthy. In other
words, if it inspires the confidence, it can be acted upon. We
have already noted that the appellant-accused mentioned the        E
details of the incident to Satish (PW-4) and the courts below
accepted his version as reliable and trustworthy. Ms. Archana,
learned counsel for the State took us through the entire
evidence of Satish (PW-4) and on going through the same, we
are satisfied that his evidence is reliable, acceptable and        F
inspires our confidence. We have already noted that the
evidence of PW-4 supports the stand taken.by PW-1. It is also
on record that PW-4 was the friend of the appellant-accused
and they were residing in the same area. In those
circumstances, the confession made by the appellant to PW-4        G
can be acted upon along with other material evidence.

     11. Let us consider the recoveries made and relied upon
by the prosecution for proving the case. It is the case of the
prosecution that the appellant-accused was arrested on
28.10.2006, at 10.30 a.m. On the basis of his disclosure           H
    1030    SUPREME COURT REPORTS                [2013) 2 S.C.R.


A statement, a blood stained axe got recovered vide recovery
  memo (Exh. P-10) and the clothes worn by him, which were
  concealed in a room, got recovered vide recovery memo (Exh.
  P-11) in the presence of Mohd. Salim @ Ballu (PW-2) and
  Abdul Majid (PW-3). Further, a pair of blood stained chappal
B was also seized vide recovery memo (Ex.P-8). On going
  through the evidence of PWs 2 & 3, both the courts below found
  that the recoveries are acceptable and concluded that there is
  no reason to disbelieve their statements.

        12. Another important aspect relied on by.the prosecution
C is the conduct of the appellant-accused. Though it may no~ be.
  a main link in the chain of cir:cumstances to prove the guilt of
  the appellant-accused, however, absconding from the scene
  would establish the guilt of the accused and rule out hypothesis
  of innocence. In the case on hand, it has come out from the
D evidence that immediately after the incident, he left village
  Kunda and boarded a bus to Delhi. However, he was arrested
  at 2.20 a.m., on 28.10.2006, at old Barrier Shahjahanpur. It has
  come out from the evidence of Murari Lal (PW-16), sub-
  Inspector, Kotwali Jhunjhunu that on 28.10.2006, at about 2.00
E a.m., Commanding Officer, Behrod, informed him that one
  Sahib Hussain had absconded after committing murder of 5
  persons. He further explained that he recorded the said
  information in Rojnamcha (Exh. P-51). According to him,
  around 2.20 a.m., he stopped a bus at Shahjahanpur Barrier
F which was proceeding to Delhi from Jaipur and the appellant
  was sitting in that bus. When he asked the appellant about his
  identity, initially, he gave his name as Zakir Hussain but when
  he got panicked, it raised suspicion in his mind. On being
  interrogated, he disclosed his correct name as Sahib Hussain
G and, thereafter, he was handed over to Police Station Aamer.
  There is no proper explanation by the appellant-accused even
  under Section 313 statement for his sudden departure from the
  scene and going to Delhi. In the absence of any reason, the
  conduct of the appellant supports the case of the prosecution.
H
     SAHIB HUSSAIN@ SAHIB JAN v. STATE OF                  1031
          RAJASTHAN [P. SATHASIVAM, J.]
     13. Another aspect which goes against the conduct of the       A
 appellant which relates to the earlier paragraph is that when he
 was questioned by PW-16 in the bus, which was going to Delhi
 from Jaipur, he suppressed his original name and gave his
 name as Zakir Hussain and only on further interrogation, he
 disclosed his original name. As rightly pointed out by learned     B
 counsel for the State, there was no reason to suppress his
 original name and furnish false name to PW-16. These aspects
 go against his conduct and support the case of the prosecution.

      14. As regards motive, the prosecution relied on the
 evidence of Jafar (PW-1) - the informant, that the appellant had   C
 a quarrel with Seema (the deceased) on the day of Eid. The
 above statement of Jafar (PW-1) gets corroboration from the
 evidence of Satish (PW-4) who deposed before the Court that
 on the day of Eid there was a quarrel between the deceased
 and the accused. As rightly pointed out by learned counsel for     D
 the State, the above incident cannot be ruled out in view of the
 fact that while the appellant was inflicting blows using an axe
'on the person of Seema, Munna Mawali, Kalu, lsha and Sonu
 arrived there to help her but they were also done to death.
                                                                    E
      15. Another important aspect which supports the
 prosecution theory is the FSL report and DNA report which
 matches with the blood group of the deceased and the blood
 group found on the chappals, pant, shirt and axe. According to
 us, as rightly concluded by the courts below, the above reports    F
 support the case of the prosecution.

      16. In addition to the same, we also verified the statement
 of the accused recorded under Section 313 of the Code which
 shows that the appellant has neither denied nor stated about
 the incriminating circumstances r~lied on by the prosecution.      G
     17. Ttiough Mr. Roy, learned counsel for the appellant-
accused has stated that the FIR itself is doubtful, on going
through the same, along with other materials relied on by the
prosecution, we are satisfied that the FIR was not deliberately     H
    1032    SUPREME COURT REPORTS                 (2013) 2 S.C.R.

A withheld by the prosecution. Learned counsel for the appellant
  has also pointed out that non-examination of Munna-the
  husband of the deceased Seema, is fatal to the case of the
  prosecution. It is true that the prosecution could have examined
  Munna, however, in view of various circumstances stated by the
B prosecution, we are of the view that merely because one
  person was not examined, the entire case of the prosecution
  cannot be thrown out. We are satisfied that all the circumstances
  relied on by the prosecution are reliable, acceptable and
  connect the appellant-accused in respect of the guilt in
c question. We are in agreement with the conclusion arrived at
  by the High Court.
        18. Regarding the alternative argument, viz., that the
  direction of the High Court that the appellant shall not be
  released from prison unless he has served out 20 years of
D imprisonment including the period already undergone by him
  and not entitled to the benefit of any remission either from the
  State or from the Government of India on any auspicious
  occasion, let us consider various earlier decisions of this Court
  on this aspect. In other words, we are posing a question
E whether the courts are warranted to limit the remission power
  under the Code for whatsoever reasons?

         19. In the case of Shri Bhagwan vs. State of Rajasthan
    (2001} 6 sec 296, this Court held as under:
F       "24 Therefore, in the interest of justice, we commute the
        death sentence imposed upon the appellant and direct
        that the appellant shall undergo the sentence of
        imprisonment for life. We further direct that the appellant
        shall not be released from the prison unless she had
G       served out at least 20 years of imprisonment including the
        period already undergone. by the appellant. n

       20. In Prakash Dhawal Khairnar (Patil) vs. State of
    Maharashtra With State of Maharashtra vs. Sandeep @
H
    SAHIB HUSSAIN@ SAHIB JAN v. STATE OF                   1033
         RAJASTHAN [P. SATHASIVAM, J.]
Babloo Prakash Khaimar (Patil) (2002) 2 SCC 35, this Court          A
held as under:

          "24 ... .In this case also, considering the facts and
    circumstances, we set aside the death sentence and
    direct that for murders committed by him, he shall served       B
    out at least 20 years of imprisonment including the period
    already undergone by him."

     21. In Ram Anup Singh and Ors. vs. State of Bihar (2002)
6 SCC 686; a three-Judge Bench of this Court held as follows:
                                                                    c
    "27 ..... Therefore, on a careful consideration of all the
    relevant circumstances we are of the view that the
    sentence of death is not warranted in this case. We,
    therefore, set aside the death sentence awarded by the
    Trial Court and confirmed by the High Court to appellants       o
    Lallan Singh and Babban Singh. We instead sentence
    them to suffer rigorous imprisonment for life with the
    condition that they shall not be released before completing
    an actual term of 20 years including the period already
    undergone by them."
                                                                    E
   22. In Nazir Khan and Ors. vs. State of Delhi (2003) 8
SCC 461, this Court concluded,

     "44 .... Considering the gravity of the offence and the
     dastardly nature of the acts and consequences which have       F
     flown out and, would have flown in respect, of the life
     sentence, incarceration for the period of 20 years would
     be appropriate. The accused appellants would not be
     entitled to any remission from the, aforesaid period of 20
     years."                                                        G
    23. In Swamy Shraddananda (2) @ Murali Manohar
Mishra vs. State of Kamataka, (2008) 13 SCC 767, this aspect
has been considered in detail by a three-Judge Bench of this
Court which we are going to refer in the later part of our order.
                                                                    H
     1034    SUPREME COURT REPORTS                  [2013] 2 S.C.R

'A      24. In Haru Ghosh vs. State of West Bengal (2009) 15
     SCC 551, this Court held as under:

                "43. That leaves us with a question as to what
         sentence should be passed. Ordinarily, it would be the
 B       imprisonment for life. However, that would be no
         punishment to the appellant/accused, as he is already
         under the shadow of sentence of imprisonment for life,
         though he has been bailed out by the High Court. Under
         the circumstance, in our opinion, it will be better to take
         the course taken by this Court in the case of Swamy
 c       Shraddananda (cited supra), where the Court referred to
         the hiatus between the death sentence on one part and the
         life imprisonment, which actually might come to 14 years'
         imprisonment. In that case, the Court observed that the
         convict must not be released from the prison for rest of his
 D       life or for the actual term, as specified in the order, as the
         case may be.

         44. We do not propose to send the appellant/accused for
         the rest of his life; however, we observe that the life
 E       imprisonment in case of the appellant/accused shall not be
         less than 35 years of actual jail sentence, meaning thereby,
         the appellant/accused would have to remain in jail for
         minimum 35 years.

        45. With this observation, the appeal is disposed of,
 F      however, the death sentence is not confirmed and instead,
        would be substituted by the sentence that we have
        indicated."
      25. In Ramraj @ Nanhoo @ Bihnu vs. State of
 G Chhattisgarh (2010) 1 SCC 573, this Court held,

         "25. In the present case, the facts are such that the
         petitioner is fortunate to have escaped the death penalty.
         We do not think that this is a fit case where the petitioner
         should be released on completion of 14 years
 H
    SAHIB HUSSAIN @ SAHIB JAN v. STATE OF                  1035
         RAJASTHAN [P. SATHASIVAM, J.]
    imprisonment. The petitioner's case for premature release      A
    may be taken up by the concerned authorities after he
    completes 20 years imprisonment, including remissions
    earned."

    26. Neel Kumar @ Anil Kumar vs. The State of Haryana           B
(2012) 5 SCC 766, this Court held as follows:

    "39. Thus, in the facts and circumstances of the case, we
    set aside the death sentence and award life imprisonment.
    The Appellant must serve a minimum of 30 years in jail
    without remissions, before consideration of his case for       C
    pre-mature release."

    27. In Sandeep vs. State of UP (2012) 6 SCC 107, this
Court observed as follows:

    "75. Taking note of the above decision and also taking into    D
    account the facts and circumstances of the case on hand,
    while holding that the imposition of death sentence to the
    accused Sandeep was not warranted and while awarding
    life imprisonment we hold that accused Sandeep must
    serve a minimum of 30 years in jail without remissions         E
    before consideration of his case for premature release."

    28. In the case of Gurvai/ Singh @ Gala and Anr. vs. State
of Punjab (2013) 2 SCC 713, this Court concluded:
                                                                   F
    "20 .... Considering the totality of facts and circumstances
    of this case we hold that imposition of death sentence on
    the Appellants was not warranted but while awarding life
    imprisonment to the Appellants, we hold that they must
    serve a minimum of thirty years in jail without remission.
    The sentence awarded by the trial court and confirmed by       G
    the High Court is modified as above. Under such
    circumstance, we modify the sentence from death to life
    imprisonment. Applying the principle laid down oy this
    Court in Sandeep (supra), we are of the view that the
                                                                   H
    1036    SUPREME COURT REPORTS                 (2013) 2 S.C.R.


A       minimum sentence of thirty years would be an adequate
        punishment, so far as the facts of this case are concerned."

       29. It is clear that since more than a decade, in many
  cases, whenever death sentence has been commuted to life
  imprisonment where the offence alleged is serious in nature,
8
  while awarding life imprisonment, this Court reiterated minimum
  years of imprisonment of 20 years or 25 years or 30 years or
  35 years, mentioning thereby, if the appropriate Government
  wants to give remission, the same has to be considered only
C after the expiry of the said period. No doubt, the said aspect
  was not agreeable by this Court in the case of Sangeet and
  Anr. vs. State of Haryana (2013) 2 SCC 452 in which it was
  held as under:

        "54. A reading of some recent decisions delivered by this
D       Court seems to suggest that the remission power of the
        appropriate Government has effectively been nullified by
        awarding sentences of 20 years, 25 years and in some
        cases without any remission. Is this permissible? Can this
        Court (or any Court for that matter) restrain the appropriate
E       Government from granting remission of a sentence to a
        convict? What this Court has done in Swamy
        Shraddananda and several other cases, by giving a
        sentence in a capital offence of 20 years or 30 years
        imprisonment without remission, is to effectively injunct the
F       appropriate Government from exercising its power of
        remission for the specified period. In our opinion, this issue
        needs further and greater discussion, but as at present
        advised, we are of the opinion that this is not permissible. ·
        The appropriate Government cannot be told that it is
        prohibited from granting remission of a sentence. Similarly,
G       a convict cannot be told that he cannot apply for a
        remission in his sentence, whatever the reason."

      In this case: though the Division Bench raised a doubt
  about the decision of a three-Judge Bench in Swamy
H Shraddananda (supra), yet the same has not been referred to
    SAHIB HUSSAIN @ SAHIB JAN v. STATE OF                   1037
         RAJASTHAN [P. SATHASIVAM, J.]
a larger Bench. In Swamy Shraddananda (supra), after taking          A
note of remissions by various State Governments without
adequate reasons or even on flimsy grounds, in order to set
right the same, a three-Judge Bench analysed all the relevant
aspects including the earlier decisions and discussed them in
the following paragraphs:                                            B

    "88. It is thus to be seen that both in Karnataka and Bihar
    remission is granted to life convicts by deemed conversion
    of life imprisonment into a fixed term of 20 years. The
    deemed conversion of life imprisonment into one for fixed        C
    term by executive orders issued by the State Governments
    apparently flies in the face of a long line of decisions by
    this Court and we are afraid no provision of law was
    brought to our notice to sanction such a course. It is thus
    to be seen that life convicts are granted remission and
    released from prison on completing the fourteen-year term        D
    without any sound legal basis. One can safely assume that
    the position would be no better in the other States. This
    Court can also take judicial notice of the fact that remission
    is allowed to life convicts in the most mechanical manner
    without any sociological or psychiatric appraisal of the         E
    convict and without any proper assessment as to the effect
    of the early release of a particular convict on the society.
    The grant of remission is the rule and remission is denied,
    one may say, in the rarest of rare cases.
                                                                     F
    89. Here, it may be noted that this has been the position
    for a very long time. As far back as in 1973, in Jagmohan
    Singh a Constitution Bench of this Court made the
    following observation:

    "14 .... In the context of our criminal law which punishes       G
    murder, one cannot ignore the fact that life imprisonment
    works out in most cases to a dozen years of imprisonment
    and it may be seriously questioned whether that sole
    alternative will be an adequate substitute for the death
    penalty." (emphasis added)                                       H
    1038   SUPREME COURT REPORTS                   [2013] 2 S.C.R.


A      Five years after Jagmohan, Section 433-A was inserted
       in the Code of Criminal Procedure, 1973 imposing a
       restriction on the power of remission or commutation in
       certain cases. After the introduction of Section 433-A
       another Constitution Bench of this Court in Bachan Singh
B      made the following observation:

       "156. It may be recalled that in Jagmohan this Court had
       observed that, in practice, life imprisonment amounts to 12
       years in prison. Now, Section 433-A restricts the power
       of remission and commutation conferred on the
c      appropriate Government under Sections 432 and 433, so
       that a person who is sentenced to imprisonment for life or
       whose death sentence is commuted to imprisonment for
       life must serve actual imprisonment for a minimum of 14
       ye~rs."
D
       Thus all that is changed by Section 433-A is that before
       its insertion an imprisonment for life in most cases worked
       <?Ut to a dozen years of imprisonment and after its
       introduction it works out to fourteen years' imprisonment.
E      But the observation in Jagmohan that this cannot be
       accepted as an adequate substitute for the death penalty
       still holds true.

       90. Earlier in this judgment it was noted that in the decision
       in Shri Bhagwan there is a useful discussion on the legality
F      of remission in the case of life convicts. The judgment in
       Shri Bhagwan, refers to and quotes from the earlier
       decision in State of M.P. v. Ratan Singh which in turn
       quotes a passage from the Constitution Bench decision
       in Gopal Vinayak Godse. It will be profitable to reproduce
G      here the extract from Ratan Singh:

       "4. As regards the first point, namely, that the prisoner could
       be released automatically on the expiry of 20 years under
       the Punjab Jail Manual or the Rules framed under the
H      Prisons Act, the matter is no longer res integra and stands
SAHIB HUSSAIN@ SAHIB JAN v. STATE OF                  1039
    -RAJASTHAN [P. SATHASIVAM, J.]
concluded by a decision of this Court in Gopal Vinayak         A
Godse v. State of Maharashtra, where the Court, following
a decision of the Priw Counsel in Pandit Kishori Lal v.
King Emperor observed as follows:
'4 .... Under that section a person transported for life or    B
any other terms before the enactment of the said section
would be treated as a person sentenced to rigorous
imprisonment for life or for the said term.

5. If so the next question is whether there is any provision
of law whereunder a sentence for life imprisonment,            C
without any formal remission by appropriate Government,
can be automatically treated as one for a definite period.
No such provision is found in the Penal Code, Code of
Criminal Procedure or the Prisons Act. ... A sentence of
transportation for life or imprisonment for life must prima    D
facie be treated as transportation or imprisonment for the
whole of the remaining period of the convicted person's
natural life.'

The Court further observed thus:                               E
'7. ... But the Prisons Act does not confer on any authority
a power to commute or remit sentences; it provides only
for the regulation of prisons and for the treatment of
prisoners confined therein. Section 59 of the Prisons Act
confers a power on the State Government to make rules,         F
inter alia, for rewards for good conduct. Therefore, the
rules made under the Act should be construed within the
scope of the ambit of the Act. ... Under the said rules the
order of an appropriate Government under Section 401,
Criminal Procedure Code, are a prerequisite for a release.     G
No other rule has been brought to our notice which confers
an indefeasible right on a prisoner sentenced to
transportation for life to an unconditional release on the
expiry of a particular term including remissions. The rules
                                                               H
    1040   SUPREME COURT REPORTS                   [2013) 2 S.C.R.


A      under the Prisons Act do not substitute a lesser sentence
       for a sentence of transportation for life.

       8.... The question of remissioh is exclusively within the
       province of the appropriate Government; and in this case
       it is admitted that, though the appropriate Government
B
       made certain remissions under Section 401 of the Code
       of Criminal Procedure, it did not remit the entire sentence.
       We, therefore, hold that the petitioner has not yet acquired
       any right to release.'
c      It is, therefore, manifest from the decision of this Court that
       the Rules framed under the Prisons Act or under the Jail
       Manual do not affect the total period which the prisoner has
       to suffer but merely amount to administrative instructions
       regarding the various remissions to be given to the
D      prisoner from time to time in accordance with the rules. This
       Court further pointed out that the question of remission of
       the entire sentence or a part of it lies within the exclusive
       domain of the appropriate Government under Section 401
       of the Code of Criminal Procedure and neither Section 57
E      of the Penal Code nor any Rules or local Acts can stultify
       the effect of the sentence of life imprisonment given by the
       court under the Penal Code. In other words, this Court has
       clearly held that a sentence for life would ensure till the
       lifetime of the accused as it is not possible to fix a
F      particular period the prisoner's death and remissions given
       under the Rules could not be regarded as a substitute for
       a sentence of transportation for life."
                                               (emphasis supplied)

G      Further, in para 23, the judgment in Shri Bhagwan
       observed as follows:

       "23. In Maru Ram v. Union of India a Constitution Bench
       of this Court reiterated the aforesaid position and
       observed that the inevitable conclusion is that since in
H
 SAHIB HUSSAIN@ SAHIB JAN v. STATE OF                   1041
      RAJASTHAN [P. SATHASIVAM, J.]
 Section 433-A we deal only with life sentences, remissions      A
 lead nowhere and cannot entitle a prisoner to release.
 Further, in Laxman Naskar v. State of WB., after referring
 to the decision of Gopal Vinayak Godse v. State of
 Maharashtra, the Court reiterated that sentence for
 'imprisonment for life' ordinarily means imprisonment for       B
 the whole of the remaining period of the convicted persol)'s
 natural life; that a convict undergoing such sentence may
 earn remissions of his part of sentence under the Prison
 Rules but such remissions in the absence of an order of
 an appropriate Government remitting the entire balance of       c
 his sentence under this section does not entitle the convict
 to be released automatically before the full life term if
 served. It was observed that though under the relevant
  Rules a sentent:e for imprisonment for life is equated with
 the definite period of 20 years, there is no indefeasible       0
 right of such prisoner to be unconditionally released on the
 expiry of such particular term, including remissions and that
 is only for the purpose of working out the remissions that
 the said sentence is equated with definite period and not
  for any other purpose. n
                                                                 E
                                       (emphasis supplied)

 91. The legal position as enunciated in Pandit Kishori Lal,
 Gopal Vinayak Godse, Maru Ram, Ratan Singh and Shri
 Bhagwan and the unsound way in which remission is               F
 actually allowed in cases of life imprisonment make out a
 very strong case to make a special category 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          G
 category beyond the application of remission.

  92. The matter may be looked at from a slightly different
  angle. The issue of sentencing has two aspects. A
  sentence may be excessive and unduly harsh or it may be
• highly disproportionately inadequate. When an appellant        H
    1042   SUPREME COURT REPORTS                 [2013] 2 S.C.R.

A      comes to this Court carrying a death sentence awarded
       by the trial court and confirmed by the High Court, this
       Court may find, as in the present appeal, that the case just
       falls short of the rarest of the rare category and may feel
       somewhat reluctant in endorsing the death sentence. But
B      at the same time, having regard to the nature of the crime,
       the, Court may strongly feel that a sentence of life
       imprisonment subject to remission normally works out to
       a term of 14 years would be grossly disproportionate and
       inadequate. What then should the Court do? If the Court's
c      option is limited only to two punishments, one a sentence
       of imprisonment, for all intents and purposes, of not more
       than 14 years and the other death, the Court may feel
       tempted and find itself nudged into endorsing the death
       penalty. Such a course would indeed be disastrous. A far
       more just, reasonable and proper course would be to
D
       expand the options and to take over what, as a matter of .
       fact, lawfully belongs to the Court i.e. the vast hiatus
       between 14 years' imprisonment and death. It needs to be
       emphasised that the Court would take recourse to the
       expanded option primarily because in the facts of the case,
E      the sentence of 14 years' imprisonment would amount to
       no punishment at all.

       93. Further, the formalisation of a special category of
       sentence, though for an extremely few number of cases,
F      shall have the great advantage of having the death penalty
       on the statute book but to actually use it as little as
       possible, really in the rarest of rare cases. This would only
       be a reassertion of the Constitution Bench decision In
       Bachan Singh besides being in accord with the modem
G      trends in penology.

       94. In the light of the discussions made above we are
       clearly of the view that there is a good and strong basis
       for the Court to substitute a death sentence by life
       imprisonment or by a term in excess of fourteen years and
H
    SAHIB HUSSAIN@ SAHIB JAN v. STATE OF                      1043
         RAJASTHAN [P. SATHASIVAM, J.]
     further to direct that the convict must not be released from      A
     the prison for the rest of his life or for the actual term as
     specified in the order, as the case may be.

     95. In conclusion, we agree with the view taken by Sinha,
     J. We accordingly substitute the death sentence given to          B
     the appellant by the trial court and confirmed by the High
     Court by imprisonment for life and direct that he shall not
     be released from prison till the rest of his life."

       30. It is clear that in Swamy Shraddananda (supra), this
  Court noted the observations made by this Court in Jagmohan          C
  Singh vs. State of U.P., (1973) 1 SCC 20 and 5 years after
 the judgment in Jagmohan's case, Section 433-A was inserted
  in the Code imposing a restriction on the power of remission
  or commutation in certain cases. After the introduction of
  Section 433-A another Constitution Bench of this Court in            D
  Bachan Singh vs. State of Punjab, (1980) 2 SCC 684, with
· reference to power with regard to Section 433-A which restricts
  the power of remission and commutation conferred on the
  appropriate Government, noted various provisions of Prisons
  Act, Jail Manual etc. and concluded that reasonable and proper       E
  course would be to expand the option between 14 years
  imprisonment and death. The larger Bench has also
  emphasized that "the Court would take recourse to the
  extended option primarily because in the facts of the case the
  sentence of 14 years' imprisonment would amount to no                F
  punishment at all." In the light of the detailed discussion by the
  larger Bench, we are of the view that the observations made
  in Sangeet's case (supra) are not warranted. Even otherwise,
  the above principles, as enunciated in Swami Shraddananda
  (supra) are applicable only when death sentence is commuted          G
 to life imprisonment and not in all cases where the Court
  imposes sentence for life.

    31. Taking note of the fact that the prosecution has
established the guilt by way of circumstantial evidence, analyzed
and discussed earlier, and of the fact that in the case on hand        H
    1044      SUPREME COURT REPORTS                [2013] 2 S.C.R.


A 5 persons died and also of the fact that the High Court
  commuted the death sentence into life imprisonment imposing
  certain restrictions, the decision of the High Court cannot be
  faulted with and in the light of well reasoned judgments over a
  decade, we agree with the conclusion arrived at by the High
B Court including the reasons stated therein.

          32. Consequently, both the appeals fail and are dismissed.

       33. We record our appreciation for the assistance
  rendered by learned amicus curiae and the counsel for the
C State.

   R.P.                                        Appeals dismisse~.