SHIVA KUMAR @ SHIVA @ SHIVAMURTHYversusSTATE OF KARNATAKA

                          [2023] 4 S.C.R. 669                            669


         SHIVA KUMAR @ SHIVA @ SHIVAMURTHY                               A
                                  v.
                     STATE OF KARNATAKA
                 (Criminal Appeal No. 942 of 2023)
                         MARCH 28, 2023                                  B
        [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 and 302
IPC – Trial Court sentenced the appellant to undergo rigorous
imprisonment for the rest of his life – High Court dismissed the         C
appeal preferred by the appellant challenging the conviction and
sentence – In appeal before the Supreme Court, appellant contended
that in view of the law laid down by the Constitutional Bench in 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        D
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, can be exercised
only by the High Court and the Supreme Court and not by any
other inferior Court – Trial Court could not have directed that the      E
appellant shall not be released till the rest of his life – Even in a
case where capital punishment is not imposed, the Constitutional
Courts can always exercise the power of imposing a modified or
fixed-term sentence by directing that a life sentence shall be of a
fixed period of more than fourteen years – In the given circumstances
of the case, a fixed-term sentence for a period of thirty years          F
imposed.
      Partly allowing the appeal, the Court
      HELD : 1. While imposing a life sentence, if it is directed
that the accused shall not be released for a specific period, it
                                                                         G
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]
      2. What is held by the Constitution Bench, cannot be
construed in a narrow perspective. The Constitution Bench has
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                                 669
670            SUPREME COURT REPORTS                      [2023] 4 S.C.R.


A     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
B
      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. [Para 11][676-
      F-G]
            3. When a Constitutional Court finds that though a case is
C     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 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. Sriharan cannot be construed to
D     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]
            4. This Court has no manner of doubt that even in a case
      where capital punishment is not imposed or is not proposed, the
E     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, 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
F     433A of Cr.P.C. [Para 13][677-G-H; 678-A]
            5. 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
G     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. This Court must
      hasten to add that the fact that the accused has no antecedents,
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  SHIVA KUMAR @ SHIVA @ SHIVAMURTHY v. STATE OF                        671
                  KARNATAKA

is no consideration by itself for deciding whether the accused         A
will fall in the category of the ‘rarest of the rare’ cases. [Para
15][678-G-H; 679-A]
      6. 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                 B
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        C
confidence in the efficacy of the legal system. The Court must
consider the rights of the victim as well. After having considered
these circumstances, this Court is of the opinion that this is a
case where a fixed-term sentence for a period of thirty years must
be imposed. [Para 16][679-B-D]                                         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                E
      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
                                                                       F
[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
                                                                       G
     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.
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672               SUPREME COURT REPORTS                       [2023] 4 S.C.R.


A          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.
B              The Judgment of the Court was delivered by
               ABHAY S. OKA, J.
               1. Heard learned counsel for the parties.
               FACTUAL ASPECTS
C
             2. The appellant has been convicted for the offences punishable
      under Sections 366, 376 and 302 of the Indian Penal Code, 1860 (for
      short, ‘IPC’). The controversy is limited to the sentence for the offence
      punishable under Section 302 of the IPC. The learned Sessions Judge
      (Fast-Track Court) sentenced the appellant to undergo rigorous
D     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.
E              SUBMISSIONS
             3. The learned counsel appearing for the appellant-accused
      submitted that in view of the law laid down by the Constitution Bench of
      this Court in the case of Union of India v. V. Sriharan alias Murugan
      & Ors.1, a modified sentence can be imposed only by the Constitutional
F     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
G     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
H         2008 (13) SCC 767
     SHIVA KUMAR @ SHIVA @ SHIVAMURTHY v. STATE OF                             673
              KARNATAKA [ABHAY S. OKA, J.]

submitted that the Constitution Bench held that a fixed-term sentence or       A
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         B
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         C
appellant has a young wife, a small child and aged parents. Moreover,
he has no antecedents and poses no threat to society. Moreover, his
conduct in jail is all throughout satisfactory and in fact, he has completed
B.A. degree course while in jail. Lastly, he pointed out that the appellant
has undergone sentence for approximately seventeen years and two
months.                                                                        D

        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               E
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        F
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         G
provided. Section 53 provides for five categories of punishments: the
death penalty, imprisonment for life, imprisonment (either rigorous or
simple), forfeiture of property and fine. It is also a settled position that
3
    2013 (9) SCC 778
4
    2013 (10) SCC 631                                                          H
674             SUPREME COURT REPORTS                           [2023] 4 S.C.R.


A     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
B
      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
C     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
D           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 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
E           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
F           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
G           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
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  SHIVA KUMAR @ SHIVA @ SHIVAMURTHY v. STATE OF                             675
           KARNATAKA [ABHAY S. OKA, J.]

      Singh v. State of Punjab [(1979) 3 SCC 745 : 1979 SCC (Cri)           A
      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           B
         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 means
         imprisonment for the whole of the men’s life but in practice
         amounts to incarceration for a period between 10 and 14 years      C
         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    D
         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.”
                                                                            E
                                                      (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,         F
      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)
                                                                            G
         “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
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676            SUPREME COURT REPORTS                            [2023] 4 S.C.R.


A               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
B
                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
C     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
D           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
E           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
F     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
G     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 Court may
      come to a conclusion that the case is not a ‘rarest of the rare’ case. In
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  SHIVA KUMAR @ SHIVA @ SHIVAMURTHY v. STATE OF                                677
           KARNATAKA [ABHAY S. OKA, J.]

such a situation, depending upon the punishment prescribed for the             A
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 fixed-term
                                                                               B
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:                 C
      “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      D
      of abundant caution and as per the prescribed law of the
      Code and the criminal jurisprudence, we can assert 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              E
      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              F
      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       G
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, shall be of a fixed period of
more than fourteen years, for example, of twenty years, thirty years and
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678             SUPREME COURT REPORTS                            [2023] 4 S.C.R.


A     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.
             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
B     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
C     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
D     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, 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
E     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
F     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
G     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
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   SHIVA KUMAR @ SHIVA @ SHIVAMURTHY v. STATE OF                                   679
            KARNATAKA [ABHAY S. OKA, J.]

consideration by itself for deciding whether the accused will fall in the          A
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               B
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              C
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.
       17. Accordingly, we modify the order of sentence of the Trial               D
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.                                                                            E

Ankit Gyan                                                Appeal partly allowed.
(Assisted by : Raoul Savant and Aarsh Choudhary, LCRAs)



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