Holding

Imposition of a fixed‑term sentence is a valid exercise of judicial power and the High Court's direction for concurrent running of the Section 201/34 IPC sentence is upheld.

Summary

The appellants Vikas Yadav, Vishal Yadav and Sukhdev Yadav were convicted of murder, kidnapping and related offences (IPC ss.302, 364, 34, 201) and sentenced to life imprisonment with additional fixed‑term sentences. The State appealed for enhancement of the life sentence to death; the High Court instead imposed a fixed‑term sentence of 25 years for the murder and directed the sentences for ss.201/34 IPC to run concurrently with the other sentences. The Supreme Court examined whether a fixed‑term sentence is permissible where the statute provides only life imprisonment or death, the scope of appellate courts to modify sentences, the proper running of multiple sentences, and the effect of Section 433‑A CrPC on remission. It held that a fixed‑term sentence is within the judiciary’s domain and may be imposed to curtail remission, and that the High Court’s direction for concurrent running of the ss.201/34 IPC sentence is appropriate. Consequently, the appeals were disposed of with the modification that the ss.201/34 IPC sentence shall run concurrently with the other sentences.

Issues considered

Whether a court may impose a fixed‑term sentence for offences under Section 302 IPC where the statute authorises only life imprisonment or death.
Whether an appellate court can enhance or alter a sentence beyond the competence of the trial court.
Whether sentences for multiple offences, including a fixed‑term sentence and life imprisonment, should run concurrently or consecutively.
Whether Section 433‑A CrPC can be curtailed by the judiciary to prevent remission.
Whether the powers under Articles 71 and 161 of the Constitution are amenable to judicial review in the context of sentencing.

Legislation cited

Code of Criminal Procedure, 1973s. 28, s. 31, s. 357, s. 377, s. 378, s. 386, s. 433-A
Constitution of Indias. 142, s. 161, s. 32, s. 71
Indian Penal Code, 1860s. 201, s. 302, s. 34, s. 364
Representation of the People Act, 1951s. 7(b)

Subjects

honour killingfixed term sentencelife imprisonmentdeath penaltysentencing principlesremissionSection 433-A CrPCappellate jurisdictionconcurrent sentencesCriminal Procedure CodeIndian Penal Code

Judgment

[2016] 8 S.C.R. 872

A VIKAS YADAV
v.
STATE OF U.P. AND ORS. ETC. ETC.
(Criminal Appeal Nos. 1531-1533 of2015)
B
OCTOBER 03, 2016
[DIPAK MISRA AND C. NAGAPPAN, JJ.]
Sentence/Sentencing:
Fixed term sentence - Imposition of, permissibility - Held: It
C is within the domain of judiciary to direct that convict shall suffer
actual incarnation for a specific period- Fixed term sentence cannot
be said to be unauthorised in law.
Principle of sentencing - Held: The appellate court cannot
impose a sentence beyond the competence of the trial court - If the
D trial court has no jurisdiction to impose a particular sentence, the
High Court as a "Court of error" cannot pass a different harsher
sentence.
Sentencing in multiple offences - Concurrent or consecutive
- In the instant case, trial court imposed life sentence and directed
E all the sentences to run concurrent - High Court declined to enhance
the sentence from imprisonment for life to death, but imposed a
fixed term sentence - Whether a person sentenced to undergo
imprisonment for life when visited with the 'term sentence' should
suffer them consecutively or concurrently - Held: High Court did
F not direct that the sentence u/ss.201134 !PC shall run first and,
thereafter, the fixed term sentence will commence - As the High
Court has not done it, it is held inappropriate in the appeal preferred
by the appellants to do so - Therefore, sentence imposed for the
offence punishable ulss.201134 !PC to run concurrently with the
sentence imposed for other offences by the High Court """' Penal
G Code, 1860 - ss.201134.
Fixed term sentence - lmpositio11 of - Honour killing - Nitish
Katara case - High Court imposed a fixed term sentence i.e. 25
years for offence uls.302 !PC -Appellant's plea that the court can
either impose sentence of imprisonment for life or sentence of death
H
872
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 873

but it is not permissible to impose any other fixed term sentence - A
Held: The circumstantial evidence by which the crime was
established, clearly led to one singular conclusion that the anger
of the accused persons on the involvement of the sister with the
deceased, was the only motive behind crime - Crime was committed
in planned and cold blooded manner with a motive that emanated B
from unwarranted superiority based on caste feeling that blinded
the thought of choice available to a sister - The factum of "honour
killing" was a seminal ground for imposing the fixed term sentence
of twenty-five years for the offences under ss.302134 !PC on the
two accused persons, who though highly educated had not
cultivated the ability to abandon the depricable feelings and attitude C
prevailing for centuries - Even after murdering the victim-deceased,
the accused displayed their vengeance by destroying the body of
the deceased which demonstrated the criminal tendency for they
had neither respect for human life nor any concern for the dignity
of a dead person - The brutality displayed by accused persons D
clearly exposed depraved state of mind - Imposition of fixed term
on appellants cannot be found fault with.
Code of Criminal Procedure, 1973: s.433-A - Exercise of
power under, scope - Held: Statutory power uls. 433-A can be
curtailed when the Court is of the considered opinion that the fact
situation deserves a sentence of incarnation which be for a fixed E
term so that power of remission is not exercised - Sentence/
Sentencing.
Constitution of India: Arts. 71and161 -Judicial review, scope
- Held: The courts cannot embark 11pon the power to be exercised
by the Executive Heads of the State under Art. 71 and Art.161 of the F
Constitution.
Disposing of the appeals, the Court
HELD: 1.1. Though the power exercised under Article 71
and Article 161 of the Constitution is amenable to judicial review G
.in a limited sense, yet the Court cannot exercise such power.
Section 433-A CrPC empowers the executive to grant remission
after expiry of 14 years. The statutory power under Section 433-
A can be curtailed when the Court is of the considered opinion
that the fact situation deserves a sentence of incarceration which
H
874 SUPREME COURT REPORTS [2016] 8 S.C.R.

A be for a fixed term so that power of remission is not exercised.
There are many an authority to support that there is imposition
of fixed term sentence to curtail the power of remission and scuttle
the application for consideration of remission by the convict. It is
because in a particular fact situation, it becomes a penological
necessity which is permissible within the concept of maximum
B
and the minimum. There is no dispute over the maximum, that
is, death sentence. · The court, as in the case at hand, when
dealing with an appeal for enhancement of sentence from
imprisonment of life to death, can definitely say that the convict
shall suffer actual incarceration for a specific period. It is within
c the domain of judiciary and such an interpretation is permissible.
The Court cannot grant a lesser punishment than the minimum
but can impose a punishment which is lesser than the maximum.
[Para 35][905-F-H; 906-A-C]
1.2. The fixed term sentence cannot be said to be
D unauthorized in law. Section 302 IPC authorizes imposition of
death sentence. The minimum sentence is imprisonment for life
which means till the entire period of natural life of the convict is
over. That remains in a different sphere and it has its independent
legal sanctity. The executive has been granted power by the
legislature to grant remission after expiry of certain period. The
E court could have imposed the death sentence. However, in a
case where the court does not intend to impose a death sentence
because of certain factors, it may impose fixed term sentence
keeping in view the public concept with regard to deterrent
punishment. It really adopts the view of "expanded option",
F lesser than the maximum and within the expanded option of the
minimum, for grant of remission docs not come in after expiry of
14 years. It strikes a balance regard being had to the gravity of
the offence. [Para 40)(911-F-H; 912-A-B]
Union ofIndia v. V. Sriharan alias Murugan and others
G (2016) 7 sec 1 - followed.
2. The appellate court cannot impose a sentence beyond
the competence of the trial court. If the trial court has no
jurisdiction to impose such a sentence, the High Court as a
"Court of error" cannot pass a different harsher sentence. But
H in the case at hand, the appellants were convicted under section
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 875

302 IPC and the trial court could have been impose the sentence A
of death. [Para 50][919-D-E]
Jashubha Bharatsinh Gohil and others v. State of
Gujarat (1994) 4 SCC 353 - relied on.
Jagat Bahadur v. State of Madhya Pradesh AIR 1966
SC 945: 1966 SCR 822; Shankar Kerba Jadhav and B
others v. The State of Maharashtra AIR (1971) SC 840:
1970 (2) SCR 227; A.R. Antulay v. R.S. Naik and
another (1988) 2 SCC 602: 1988 (1) Suppl. SCR 1 -
held inapplicable.
3. The crime was committed in a planned and cold blooded c
manner with the motive that has emanated due to feeling of some
kind uncalled for and unwarranted superiority based on caste
feeling that has blinded tpe thought of "choice available" to a
sister - a representative of women as a class. The High Court in
its judgment of conviction has unequivocally held that it is a D
"honour killing" and the said findings apart from being put to
rest, also gets support from the evidence brought on record. The
circumstantial evidence by which the crime was established,
clearly led to one singular conclusion that the anger of the brother
on the involvement of the sister with the deceased, was the only
motive behind crime. The High Court treated the murder as E
"honour killing", yet regard being had to other factors did not
think appropriate to impose extreme penalty of death sentence.
The factum of"honour killing" was a seminal ground for imposing
the fixed term sentence of twenty-five years for the offences under
section 302/34 IPC on the two accused persons, who though F
highly educated in good educational institutions, had not cultivated
the ability to abandon the depricable feelings and attitude for
centuries. The High Court also took note of the impact of post-
offence events and observed that the deceased was burnt to such
a point that his own mother could only suggest the identification
from the small size of one unburnt palm with fingers of the hand G
that the body appeared to be that of her deceased son. The
identification had to be confirmed by DNA testing. While imposing
the sentence, the High Court was compelled to observe that the
magnitude of vengeance of the accused and the extent to which
they had gone to destroy the body of the deceased after his murder H
876 SUPREME COURT REPORTS [2016] 8 S.C.R.

A shows the brutality involved in the crime and the maladroit efforts
that were made to destroy the evidence. The evidence on record
as well as the analysis made by the High Court demonstrate the
criminal proclivity of the accused persons, for they have neither
the respect for human life nor did they have any concern for the
B dignity of a dead person. They had deliberately comatosed the
feeling that even in death a person has dignity and when one is .
dead deserves to be treated with dignity. That is the basic human
right. The brutality that has been displayed by the accused
persons clearly exposes the depraved state of mind. [Paras 61,
66 and 69][925-E-F; 928-G-H; 929-A, E-H; 930-A]
c Lata Singh v. State of U. P. and another (2006) 5 SCC
475: 2006 (3) Suppl. SCR 350; Maya Kaur
Baldevsingh Sardar and another v. State of
Maharashtra (2007) 12 SCC 654: 2007 (10) SCR 752;
Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC
D 405: 2011 (5) SCR 488; Bha?;J1 an Dass 1( State (NCT
1

of Delhi) (2011) 6 sec 396: 2011 (6) scR 330 -
relied on.
Shankar Kisanrao Khade v. State of Maharashtra
(2013) 5 SCC 546: 2013 (6) SCR 949; Oma alias
E Omprakash and another v. State of Tamil Nadu (2013)
3 SCC 440: 2012 (13) SCR 740; Mohd. Farooq Abdul
Gafur and another v. State of Maharashtra (2010) 14
SCC 641: 2009 (12) SCR 1093; Mohinder SinRh" State
of Punjab (2013) 3 SCC 294: 2013 (3) SCR 90;
Mangesh v. State of Maharashtra (2011) 2 SCC 123:
F 2011 (1) SCR 72 - referred to.
4. The conduct during the trial was also emphasized by the
High Court because it is not an effect to protect one-self, but the
arrogance and the impunity shown in which they set up false
defense and instilled shivering fear in the mind of witnesses with
G the evil design of defeating the prosecution case. In fact, as was
recorded by the High Court, the public prosecutor was also not
spared. The factum of abscondance and non-cooperation with
the investigating team and also an maladroit effort to mislead the
investigators were treated as aggravating circumstances. [Para
H 70][930-A-CJ
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 877

Praveen Kumar v. State of Karnataka (2003) 12 SCC A
199; Yakub Abdul Razak Memon v. State of
Maharashtra (2013) 13 SCC 1: 2013 (15) SCR 1;
Sidhartha Vashisht alias Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1: 2010 (4) SCR 103 - relied
on.
B
5. The High Court, while dealing with two accused opined
that. they had misused the process of law while in jail and in their
conduct there is no sign of any kind of remorse or regret. Thus,
the imposition of fixed term sentence on the appellants by the
High Court cannot be found fault with. The sentence imposed for
the offence punishable under Section 201/34 IPC shall run C
concurrently with the sentence imposed for other offences by
the High Court. [Paras 74, 74A and 78)[932-D, F; 934-G-H]
Maru Ram v. Union of India and others (1981) 1 SCC
107; Guru Basavaraj ,. State of Karnataka (2013) 7
sec 545 - relied on. D

K.M Nanavati v. State of Bombay AIR 1961 SC 112:
1.961 SCR 497; Sarai Chandra Rabha and others v.
Khagendranath Nath and others AIR 1961 SC 334:
1961 SCR 133; Sahib Hussain alias Sahib Jan v. State
of Rajasthan (2013) 9 SCC 778: 2013 (2) SCR 1019; E
Gurvail Singh alias Gala v. State of Punjab (2013) 10
SCC 631; Muthuramalingam & Ors. v. State represented
by Insp. of Police 2016 (7) SCALE 129; Union of India
v. V. Sriharan alias Murugan and others (2014) 11 SCC
1; Sli•a111y Shraddananda (2) v. State of Maharashtra F
(2008) 13 SCC 767: 2008 (11) SCR 93; Gopal Vinayak
Godse v. State of Maharashtra and others AIR 1961
SC 600: 1961 SCR 440; State of Madhya Pradesh v.
Ratan Singh and others (1976) 3 SCC 470: 1976 (0)
Suppl. SCR 552; Ashok Kumar alias Golu v. Union of
India and others (1991) 3 SCC 498: 1991 (2) SCR G
858; Bhagirath v. Delhi Administration (1985) 2 SCC
580: 1985 (3) SCR 743; Bachan Singh v. State of ,f

Punjab (1980) 2 SCC 684; Machhi Singh and others
v. State of Punjab (1983) 3 SCC 470: 1983 (3) SCR
413; Jagmohan Singh v. State of U.P. (1973) 1 SCC H
878 SUPREME COURT REPORTS [2016] 8 S.C.R.

A 20: 1973 (2) SCR 541; Sohan Lal v. Asha Ram and
others (1981) 1 SCC 106; Zahid Hussein and others v.
State of W.B. and another (2001) 3 SCC 750: 2001 (2)
SCR 442; State of Gujarat & Anr. v. Lal Singh@ Manjit
Singh & Ors. AIR 2016 SC 3197:2016 (6) SCALE
105; Kehar Singh and another v. Union of India and
B
another (1989) 1 SCC 204:1988 (3) Suppl. SCR 1102;
Epuru Sudhakar and another v. Govt. ofA.P. and others
(2006) 8 sec 161:2006 (7) Suppl. SCR 81; Shri
Bhagwan v. State of Rajasthan (2001) 6 SCC 296: 2001
(3) SCR 656; Prakash Dhm1,al Khairnar (Patil) l( State
c of Maharashtra (2002) 2 SCC 35:2001 (5) Suppl.
SCR 612; Ram Anup Singh and others v. State of Bihar
(2002) 6 SCC 686; Nazir Khan and others vs. State of
Delhi (2003) 8 sec 461: 2003 (2) Suppl. SCR 884;
Haru Ghosh v. State of West Bengal (2009) 15 SCC
551: 2009 (13) SCR 847; Ramraj v. State of
D
Chhattisgarh (2010) 1 SCC 573: 2009 (16) SCR 367;
Neel Kumar alias Anil Kumar v. State of Haryana
(2012) 5 SCC 766: 2012 (5) SCR 696; Sandeep v.
State of U.P. (2012) 6 SCC 107: 2012 (5) SCR 952;
State of Uttar Pradesh. v. Sanjay Kumar 2012 8 SCC
E 537: 2012 (7) SCR 359; Fibre Boards Private Limited,
Bangalore v. Commissioner of Income-Tax, Bangalore
Mamleshwar Prasad v. Kanhaiya Lal (1975) 2 SCC 232:
1975 (3) SCR 834; State of U.P. and another v.
Synthetics and Chemicals Ltd. and another (1991) 4
SCC 139; State of Orissa v. MA. Tulloch and Co. (1964)
F
4 SCR 461; Synthetics and Chemicals Ltd. and others
v. State of U.P. and others (1990) 1 SCC 109: 1989 (1)
Suppl. SCR 623 - referred to.
Case Law Reference
G 1961 SCR 497 referred to Para 9(vi)
1961 SCR 133 referred to Para 9(vi)
(2016) 1 sec 1 followed Para 9(vi)
2013 (2) SCR 1019 referred to Para 9(vii)
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 879

(2013) 10 sec 631 referred to Para 9(vii) A
1966 SCR 822 held inapplicable Para 9(vii)
1970 (2) SCR 227 held inapplicable Para 9(vii)
1988 (1) Snppl. SCR 1 held inapplicable Para 9(viii)
2016 (7) SCALE 129 referred to Para 9(ix) B
(2014) 11 sec 1 referred to Para 17
2008 (11) SCR 93 referred to Para 17
<1?81) 1 sec 101 relied on Para 18
1961 SCR 440 referred to Para 18
c
1976 (0) Suppl. SCR 552 referred to Para 18
1991 (2) SCR 858 referred to Para 18
1985 (3) SCR 743 referred to Para 18
D
(1980) 2 sec 684 referred to Para 24
1983 (3) SCR 413 referred to Para 24
1973 (2) SCR 541 referred to Para24
(1981) 1 sec 106 referred to Para 32
E
2001 (2) SCR 442 referred to Para32
2016 (6) SCALE 105 referred to Para32
1988 (3) Suppl. SCR 1102 referred to Para33
2006 (7) Suppl. SCR 81 referred to Para33 F
2001 (3) SCR 656 referred to Para42
2001 (5) Suppl. SCR 612 referred to Para 42
(2002) 6 sec 686 referred to Para 42
2003 (2) Suppl. SCR 884 referred to Para42 G
2009 (13) SCR 847 referred to Para 42
2009 (16) SCR 367 referred to Para 42
2012 (5) SCR 696 referred to Para 42
H
880 SUPREME COURT REPORTS [2016] 8 S.C.R.

A 2012 (5) SCR 952 referred to Para 42
2012 (7) SCR 359 referred to Para 44
(1994) 4 sec 353 relied on. Para47
2015 (8) SCR 906 referred to Para 51
B 1975 (3) SCR 834 referred to Para 51
(1991) 4 sec 139 referred to Para 51, 52
(1964) 4 SCR 461 referred to Pant 51
1989 (1) Suppl. SCR 623 referred to Para 52
c 2013 (6) SCR 949 referred to Para 58
2012 (13) SCR 740 referred to Para 58
2009 (12) SCR 1093 referred to Para 58
2013 (3) SCR 90 referred to Pa1·a 58
D
2011 (1) SCR 72 referred to Para 58
2006 (3) Suppl. SCR 350 relied on Para 62
2007 (10) SCR 752 relied on Para 63
2011 (5) SCR 488 relied on Para 64
E
2011 (6) SCR 330 relied on Para 65
(2003) 12 sec 199 relied on Para 70
2013 (15) SCR 1 relied on Para 70

F 2010 (4) SCR 103 relied on Para 71
(2013) 1 sec 545 relied on Para 70A
CRIMINAL APPLLLATE JURISDICTION: Criminal Appeal
Nos. l531-1533of2015.
From the Judgment and Order dated 02.04.2014 of the High Court
G of Delhi at New Delhi in Criminal Revision Petition No. 369 of2008.

WITH
Crl.A. Nos. 1528-15300F 2015.
U. R. Lalit, Shekhar Naphade, Atul Nanda, Sr. Advs., Kanhaiya
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 881

Singhal, Ms. Vani Singhal, Mehul Sharma, Prasanna, Siddhanta Mittal, A
Sachin Agarwal, Chaman Sharma, Surender Dhaka, Ms. Usha Nandini
V., Ad vs. for the Appellant.
Dayan Krishnan, Sr. Adv., Ms. Aparajita Singh, Karan Lahiri,
Manmeet Singh Gulati, Ms. B. Vijayalakshmi Menon, Rajesh Mahajan,
Peeyush Bhatra, Ms. Aakashi Lodha, Ms. Manvi Priya, Chi rag M. Shroff, B
Advs. for the Respondents.
The Judgment of the Court was delivered by

DIPAK MISRA, J. 1. The appellants in this batch of appeals
stand convicted forthe offences under Sections 302, 364, 20 I read with
Section 34 of the Indian Penal Code (!PC). This Court while hearing the C
special leave petitions on 17.08.2015 had passed the following order:-

"Delay condoned.

Having heard learned senior counsel for the petitioners at
great length, we are of the view, that the impugned orders
D
call for no interference whatsoever insofar as the conviction
of the petitioners is concerned. The conviction of the three
petitioners, as recorded by the courts below, is accordingly
upheld.
E
Issue notice, on the quantum of sentence, returnable after ·
six weeks."

2. On 16.06.2015 leave was granted. Thus, we are only concerned
with the legal defensibility and the justifiability of the imposition of
sentence. F

3. The arguments in these appeals commenced on .issues of law.
Mr. U.R. Lalit and Mr. shekhar Naphade. learned senior counsel
appearing for the appellant in Criminal Appeal Nos. 1531-1533of2015
and Mr. Atul Nanda, learned senior counsel app..:aring for the appellant
in Criminal Appeal Nos. 1528-1530of2015 questioned the propriety of G
the sentence as the 1-ligh Court has imposed a fixed term sentence, i.e.,
25 years for the offence under Section 302 IPC and 5 years for offence
under Section 201 JPC with the 5tipulation that both the sentences would
run consecutively. It is apt to note here that separate sentences have
1-1 .
882 SUPREME COURT REPORTS [2016] 8 S.C.R.

A been imposed in respect of other offences but they have been directed
to be concurrent. After advancing the arguments relating to the jurisdiction
of the High Court as well as this Court on imposition of fixed term/
period sentence, more so when the trial court has not imposed death
sentence, the learned counsel argued that the factual score in the instant
case did not warrant such harsh delineation as a consequence
B
disproportionate sentences have been imposed.

4. Keeping in view the chronology of advancement of arguments,
we think it apt to deal with the jurisdictional facet. Ifwe negative the
proposition advanced by the learned counsel for the appellants, then
c only we shall be required to proceed to deal with the facts as requisite to
be stated for the purpose of adjudicating the justifiability of imposition of
such sentence. If we accede to the first submission, then the second
aspect would not call for any deliberation. At this juncture, it is necessary
to state that the learned trial judge by order dated 30.05.2008 sentenced
Vikas Yadav and Vishal Yadav to life imprisonment as well as fine of
0
one lakh each under Section 302 IPC and, in default of payment of fine,
to undergo simple imprisonment for one year. They were sentenced to
undergo simple imprisonment forten years and fine of Rs. 50,000/-each
fortheir conviction under Section 364/34 IPC, in default to undergo simple
imprisonment for six months and rigorous imprisonment for five years
E and fine of Rs. 10,000/- each under Section 201/34 !PC, in default, simple
imprisonment for three months. All sentences were directed to run
concurrently. Sukhdev Yadav @ Pehalwan who was tried separately
because of his abscondence in SC No. 76 of2008 was convicted for the
offences under Sections 302/364/34 IPC and Section 201 and by order
dated 12.07.2011, he was sentenced to undergo life imprisonment and
F
fine of Rs. 10,000/- for commission of the offence under Section 302
IPC, in default, to undergo rigorous imprisonment for two years; rigorous
imprisonment for seven years and fine of Rs. 5,000/- for commission of
the offence under Section 364 IPC, in default, to suffer rigorous
imprisonment for six months; rigorous imprisonment for three years and
G fine ofRs. 5,000/- for his conviction under Section 201 IPC, in default,
to undergo further rigorous imprisonment for six months. All sentences
were directed to be concurrent.

5. Be it noted, the prosecution,- State ofNCT of Delhi preferred
H an appeal under Section 377 CrPC for enhancement of sentence of
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 883
[DIPAK MISRA, J.]

imprisonment of life to one of death for the offence under Section 302 A
IPC. The High Court addressed to number of issues, namely, (a) statutory
provisions and jurisprudence regarding imposition of the death penalty;
(b) death sentence jurisprudence - divergence in views; (c) life
imprisonment- meaning and nature of; (d) the authority of the judiciary
to regulate the power of the executive to remit the sentence or to put in B
other words jurisdiction of the court to direct minimum term sentence in
excess of imposition of 14 years; (e) ifthere are convictions for multiple
offences in one case, does the court have the option of directing that the
sentences imposed thereon shall run consecutively and not concurrently;
(f) honour killing- whether penalty of only the death sentence; (g) contours
of the jurisdiction of the High Court to.enhance a sentence imposed by C
the trial court and competency to pass orders under Section 357 of the
CrPC in the appeal by the State or revision by a complainant seeking
enhancement of sentence; (h) sentencing procedure and pre-sentencing
hearing nature of; (i) concerns for the victims - award of compensation
to heal and as a method ofreconciling victim to the offender; (j) State's D
liability to pay compensation; (k) fine and compensation - constituents,
reasonability and adequacy; (I) sentencing principles; (m)jurisdiction of
the appellate court while considering a prayer for enhancement of the
sentence; (n) if not death penalty, what would be an adequate sentence
in the present case; and (o) what ought to be the fitnes in the present
case. E

6. Apart from the said aspects, the High Court also addressed to
certain aspects which are specific to the case at hand to which we will
advert to at a later stage.
F
7. The High Court, after addressing the aspects which we have
catalogued and some other fact specific issues, imposed the following
sentences:-

"881. In view of the above discussion, we modify and enhance
the sentence imposed by the judgments dated 30111 May, 2008 upon the G
defendants Vikas Yadav, Vishal Yadav and 12m July, 2011 upon Sukhdev
Yadav and direct that they shall be liable to undergo the following
· sentences :-

H
884 SUPREME COURT REPORTS [2016] 8 S.C.R.

A
(I)

For Sentencesa-wardedto Sentence awarded to
commission each ofVikas Yadav & Sukhdev \'adav
B
of offences Vishal Yadav
uuder
Section Life imprisonment which Life imprisonment
302i34 IPC shall be 25 years ofactual which shall be 20 years
imprisonment wid1out of actual imprisonment
consideration ofremission, without consideration
c and fine ofRs. 501akh each of remission, and fine
of Rs.I 0,000!-
Upon default in payment of Upon default in
fine, they shall be liable to payment of fine, he
undergo rigorous shall be liable to
imprisonment of3 years. undergo simple
D imprisonment for one
month.
Section Rigorous imprisonment for 10 years rigorous
364/34 IPC l 0 years with a fine ofRs.2 imprisonmentwith fine
lakh each ofRs.5,00Q-
E . Upon detaultinpajmentof Upon defaultin
fine, they shall be liable to payment oftine, he
undergo rigorous shall be liable to
imprisonment for 6 months undergo simple
imprisonment for 15
days
F Section Rigorous imprisonment for 5 years rigorous
201.34 IPC 5 years and a fine Rs.2 lakh imprisonment with fine
each ofRs.5,0001-
Upon default in payment of Upon default in
fine, they shall be liable to payment offine, he
G
undergo rigorous shall be liable to
imprisonment for 6 months undergo simple
imprisonment for 15
days

H
VIK.AS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 885
fDIPAK MISRA, J.l

(II) It is directed that the sentences for conviction of the offences. A
under Section 302/34 and Section 364/34 IPC shall run concurrently.
The sentence under Section 201/34 IPC shall run consecutively to·the
other sentences for the discussion and reasons in paras 741to745 above.
(III) The amount of the fines shall be deposited with the trial .
court within a period of six months from today. B
(IV) We further direct that the fine amounts of Rs.50,00,000/-
of each ofVikas Yadav and Vishal Yadav when deposited with the trial
court, are forthwith disbursed in the following manner:

(i) To the Government of Uttar Rs.5,00,000/- from c
Pradesh towards investigation, the deposit of the
prosecution and defence of the fine of each of the
cases with regard to FIR defendants
No.192/2002 P.S. Ghaziaboo.
(ii) To the Govermnent of NCT of Rs25,00,000/- D
Delhi tow.irds prosecution, filing from the deposit of
and defence of litigation, the fine of each of
administration of courts and the defendants
witness protection with regard to
FIR No.192/2002 P.S.
Ghaziabad E
(iii) To Nilam Katara towards the Rs20,00,000/-
costs incurred by her in pursuing from the deposit of
the matter, filing petitions and the fine of each of
applications as well as defending the defendants
all cases after 16th! 17th F
Februazy, 2002 with regard to
FIR No.192/2002 in all courts.

(V) Amount of fines deposited by Sukhdev Yadav and other fines
deposited by Vikas Yadav and Vishal Yadav shall be forwarded to the G
Delhi Legal Services Authority to be utilised under the Victims
Compensation Scheme.

H
886 SUPREME COURT REPORTS [2016] 8 S.C.R.

A (VI) In case an application for parole or remission is moved by
the defendants before the appropriate government, notice thereof shall
be given to Nilam Katara as well as Ajay Katara by the appropriate
government and they shall also be heard with regard thereto before
passing of orders thereon.
B (VII) So far as Vikas Yadav is concerned, we also issue the
following directions:
(i) The period for the admission in AIIMS from I O•h October, 2011
to 4 h November, 2011 (both days included) shall not be counted as a
1

period for which he has undergone imprisonment. His records and nominal
c rolls shall be accordingly corrected by the jail authorities.
(ii) Vikas Yadav shall make payments of the following amounts to
the Government ofNCT of Delhi:

(i) Amounts paid to AIIMS Rs.50, 750!-
D (ii) Towards security Rs.l ,20,0121-
deploymcm duri112 AIIMS
(iii) OPDvisits Rs.50,000i-
(iv) Taxi fare Rs.18,5001-
Total : Rs.2,39,262/-
E
(VIII) So far as Vishal Yadav is concerned, we direct as
hereafter :-
(i) The periods of the admissions in the Batra Hospital totalling
F 320 days [32 days (from 7•h July, 2008 to 7'h August, 2008); 24 days
(from 14'h August, 2008 to 61hSeptember, 2008), 53 days (241hOctober,
2008 to 1sm December, 2008); I 00 days (from 25th February, 2009 to 61h
June, 2009); 71 days (from 7•h October, 2009 to 16'11 December, 2009);
36 days (from 29th September, 20 I0 to 3n1 November, 20 I 0); 4 days
(from J 4•h October, 2011 to J 7•h October, 2011 )] shall not be counted as
G a period which he has undergone imprisonment. His records and nominal
rolls shall be accordingly corrected by the jail authorities.
(ii) Vishal Yadav shall make payments of the following amounts
to the Government ofNCT of Delhi:

H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 887
fDIPAK MISRA, J.l

A
(i) Provision of secunty dunng Rs.14,75,184/-
the above seven hospital
admissions post conviction
(ii) During OPD hospital visits Rs.50,000i-
(iii) Post conviction visits on taxi Rs.14, 700/-
fare B
Total : Rs.15,39,884/-

(IX) The amounts directed to be paid by Vishal Yadav and Vikas
Yadav at Sr. Nos.(Vl) and (VII) above shall be deposited within four C
months of the passing of the present order.
(X) In the event of the failure to deposit the amount as directed at
Sr. Nos.(Vl), (VII) and (VIII), the defaulting defendant (Vikas Yadav
and Vishal Yadav) shall be liable to undergo rigorous imprisonment of
one year. It is made clear that these direc.tions are in addition to the D
substantive sentences imposed upon them."
8. We think it appropriate to deal with the aspect of legal
pennissibility of the imposition of sentence first as the learned senior
counsel appearing for the appellants had argued quite astutely with regard
to the non-acceptability of such fixed term sentences and other facets E
relating to it. After we answer the said issue, if needed, we shall dwell
upon the sustainability and warrantableness of the sentences in the facts
of the case.
9. Learned senior counsel for the appellants have advanced the
following propositions to bolster the first stand:- F
(i) When the Indian Penal Code provides for only two punishments,
i.e., imprisonment for life or death, the court by judge-made law cannot
introduce a third category of punishment.
(ii) The prescription of third category of punishment is contrary to
Sections 28 and 386 CrPC and Section 302 IPC. G
(iii) Prescription of sentence is within the domain of the legislature
and the court can only impose such sentence what has been provided
for by the legislature and not invent one.
(iv) Wherever the legislature has thought it appropriate, it has
H
888 SUPREME COURT REPORTS (2016) 8 S.C.R.

A provided sentences by providing certain years, such as, offences
punishable under Sections 376A, 3760 and 392 IPC; Section 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985; and when it is
· not provided for in the IPC in respect of Section 302 IPC, the court
cannot impose a third category of sentence as that would tantamount to
legislation by the judiciary.
8
(v) When the court imposes a third category of sentence, there is
either express or implied direction for not granting the remission as
provided under Section 433-A after expiry of 14 years which is legally
not permissible inasmuch as this Court in exercise of power under Article
142 of the Constitution cannot direct a statutory provision to be kept in
c abeyance as a mode of sentencing structure.
(vi) The Constitution Bench decisions in K.M. Nanavati v. State
of Bombay' and Sarai Cltandra Rab//(/ mu/ otlters v. K/l(lgem/ranatlt
Nath and others1 have not been considered by the majority in Union of
India v. V. Sriltaran alias Murugm1 and others' and it, therefore,
D requires reconsideration.
(vii) When the trial court has imposed the life sentence and the
question of commutation does not arise, as a logical corollary, imposition
of fixed term sentence is impermissible as has been held in Sahib
Hussain alias Saftib Jan v. State of Rajastlta11• and Gurvail Singh
alias Gala v. State of Punjab 5• In essence, in the absence ofa death
E
sentence, a fixed term sentence cannot be imposed. The appellate court,
assuming has the authority, can impose only such sentence which could
have been imposed by the trial court as has been clearly held in Jagat
Bahadur v. State ofMadltya Pradesil 6 and in S/umkar Kerba Jad/l(lv
and others v. Tiie State of Mallarashtra 7•
F (viii) The Court when imposes sentence by saying "fixed term
sentence", it takes away the power of the executive which is
constitutionally not permissible as per the pronouncements in K.M.
Nanavati (supra), Sarai Clumdra Rabfl(I (supra) and A.R. A11tu/ay
v. R.S. Naik mu/ a11otlter8 •
G I AIR 1961 SC 112
2 AIR 1961SC334
3
(2016)7SCC I
• (2013) 9 sec 118
'(2013) 10 sec 631
6
AIR 1966 SC 945
7
AIR 1971SC840
H • (1988) 2 sec 602
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 889
[DIPAK MISRA, J.]

(ix) There is remotely any warrant to direct the sentence for life A
and sentence imposed under Section 20 I !PC to run consecutively, and
it is a palpable error which cannot be countenanced, and in fact, it runs
counter to the Constitution Bench decision in Mutltummali11gam &
Ors. v. State represented by Insp. of Police9 •
(ix) The High Court has fallen into grave error by imposing 20 B
years of sentence on Sukhdev Yadav, whereas Vikas Yadav and Vishal
Yadav had been sentenced for 25 years which demonstrates total non-
application of mind.
(x) The issue of enhancement of sentence and fixed term was
not referred to the Constitution Bench but the Constitution Bench has c
dealt with the same and, therefore, the decision in V. Srilwrm1 (supra)
suffers from impropriety.
10. Mr. Dayan Krishnan, learned senior counsel appearing for
the State ofNCT Delhi, in his turn, submits that the judgment rendered
by the Constitution Bench in V. Srilwrm1 (supra) is absolutely correct D
and is a binding precedent from all spectrums and does not require
reconsideration. Learned senior counsel further argued that the judgment
rendered by the Constitution Bench does not run counter to the principles
set out in the earlier two judgments in K. Nmwvati (supra) and Slta11kar
Kerba Jadltav (supra) because the said judgments have been rendered
in altogether different contexts and the opinion expressed therein has to E
be understood regard being had to the factual score that arose therein.
According to the learned counsel for the State, the constitutional courts
have power to pass fixed term sentence in the interest of justice.
Defending the imposition of sentence in the case, Mr. Krishnan would
submit that when the State had preferred an appeal for enhancement of F
sentence, i.e., from imprisonment oflife to death sentence, the decision
of the High Court is absolutely flawless. It is argued by him that the
direction for the life sentence and the sentence imposed under Section
20 I IPC to be consecutive and not to run concurrently cannot be found
fault with as the High Court has ascribed adequate reasons for the same
and it is in consonance with the principle stated in Mutlluranutfingam G
(supra) and ifthere is any deviation therein, the same can be rectified by
this Court.
11. Ms. Aparajita Singh, learned counsel appearing for the
'2016 (7) SCALE 129
H
890 SUPREME COURT REPORTS [2016] 8 S.C.R.

A infonnant, supported the stand of the State and emphasized that in a
crime of honor killing stringent punishment deserves to be imposed.
12. Presently, we shall proceed to deal with the contentions, and
we make it clear the delineation thereof shall not be in strict seriatim as
the contentions in a way overlap. Section 28 CrPC reads as follows:-
B "28. Sentences wliicli Higli Courts and Sessions Judges
may pass.-
( 1) A High Court may pass any sentence authorised by
law.

c (2)A Sessions Judge or Additional Sessions Judge may pass
any sentence authorised by law; but any sentence of death
passed by any such Judge shall be subject to confirmation
by the High Court.
(3) An Assistant Sessions Judge may pass any sentence
D authorised by law except a sentence of death or of
imprisonment for life or of imprisonment for a term
exceeding ten years."
13. The submission of the learned senior counsel for the appellants
is that the High Court can pass any sentence "authorised by law" and a
Sessions Judge or an Additional Sessions Judge may pass any sentence
E
authorised by law but for any sentence of death passed by any such
Judge shall be subject to confirmation by the High Court and, therefore,
no court can.impose a sentence ifit is not authorised by law. The fulcrum
of the submission is that the said provision is substantive in nature and it
is not in the realm of adjective law. In this context, our attention has
F been drawn to Section 386 CrPC. The said provision reads as follows:-
"386. Power of the Appellate Court.- After perusing
such record and hearing the appellant or his pleader, if he
appears, and the Public Prosecutor, if he appears, and in
case of an appeal under section 377 or section 378, the
G accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering,
dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such
order and direct that further inquiry be made, or that the
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 891
fDIPAK MISRA, J.l

accused be re-tried or committed for trial, as the case may A
be, or find him guilty and pass sentence on him according
to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge
the accused, or order him to be re-tried by a Court B
of competent jurisdiction subordinate to such Appellate
Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or c
the extent, or the nature and extent, of the sentence, but
not so as to enhance the Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge
the accused or order him to be re-tried by a Court competent D
to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or
the extent, or the nature and extent, of the sentence, so as
to enhance or reduce the same; E

(d) in an appeal from any other order, alter or reverse such
order;
(e) make any amendment or any consequential or incidental
order that may be just or proper; Provided that the sentence F
shall not be enhanced unless the accused has had an
opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict
greater punishment for the offence which in its opinion the
accused has committed, than might have been inflicted for
that offence by the Court passing the order or sentence G
under appeal."
14. Elaborating on the same, it is urged that an appellate court can
impose a sentence what the trial Judge could have imposed. The appellate
jurisdiction which is classically called 'error jurisdiction' only embraces
H
892 SUPREME COURT REPORTS [2016] 8 S.C.R.

A to rectify the errors and thereafter impose the sentence. It may dismiss,
alter or enhance the sentence depending upon the fact situation when an
appeal is preferred, but it does not possess the jurisdiction to impose any
sentence that does not have the sanction of law. In this context, learned
senior counsel have drawn our attention to Section 53 IPC. It is as
follows:-
B
"53. Punishments.-The punishments to which offenders
are liable under the provisions of this Code are-
First - Death;
Secondly.-lmprisonment for life;
c
Fourthly -Imprisonment, which is of two descriptions,
namely:-
(1) Rigorous, that is, with hard labour;
(2) Simple;
D
Fifthly-Forfeiture of property;
Sixthly-Fine."
15. According to them, the court cannot travel beyond Section 53
IPC which deals with punishments. Section 302 IPC provides for
E punishment for murder. It is as follows:-
"302. Punishment for murder.-Whoever commits
murder shall be punished with death, or imprisonment for
life, and shall also be liable to fine."
16. Mr. Lalit and Mr. Naphade would contend that the court can
F either impose sentence of imprisonment for life or sentence of death but
any other fixed term sentence is totally inconceivable in terms of the
statute. In respect of an offence under Section 302, life is the minimum
and the maximum is the death sentence and, therefore, the court has a
choice between the two and is not entitled to follow any other path, for
G that would be violative of the sanctity of Article 21 of the Constitution
which clearly stipulates that no person shall be deprived of his life or
personal liberty except according to the procedure established by law.
Learned counsel for the appellants submit that imposition of sentence
for a fixed tenn is contrary to the procedure established by law and
hence, impermissible.
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 893
[DIPAK MISRA, J.]

17. We shall first see how the Constitution Bench in V. Sriltaran A
(supra) has dealt with this aspect. The three-Judge Bench in Union of
India v. V. Srilzaran alias Murugan and others' 0 framed certain
questions for consideration by the Constitution Bench. The Constitution
Bench in V. Sril1ara11 (supra) reproduced the said questions and
thereafter formulated the core questions for answering the same. After B
adverting to the same, the Court observed that the issues raised were of
utmost critical concern for the whole country as the decision on the
questions would determine the procedure for awarding sentence and
the criminal justice system. Thereafter, the Court referred to the authority
in Swamy Sltraddananda (2) v. State of Maharashtra" and framed
the following questions:- C
"2.1. Maintainability of this writ petition under Article 32 of
the Constitution by the Union ofindia.
2.2. (i) Whether imprisonment for life means for the rest
of one's life with any right to claim remission?
D
(ii) Whether as held in Shraddananda case (2), a special
category of sentence; instead of death; for a term exceeding
14 years and put that category beyond application of
remission can be imposed?
2.3. Whether the appropriate Government is permitted to E
grant remission under Sections 432/433 of the Criminal
Procedure Code, 1973 after the parallel power was
exercised under Article 72 by the President and under Article
161 by the Governor of the State or by the Supreme Court
under its constitutional power(s) under Article 32?
F
2.4. Whether the Union or the State has primacy for the
exercise of power under Section 432(7) over the subject-
matter enlisted in List III of the Seventh Schedule for grant
of remission?
2.5. Whether there can be two appropriate Governments
under Section 432(7) of the Code?
G

2.6. Whether the power under Section 432( I) can be
exercised suo motu, if yes, whether the procedure
'" (2014) 11sec1
11
(2008) 13 sec 767
H
894 SUPREME COURT REPORTS [2016) 8 S.C.R.

A prescribed under Section 432(2) is mandatory or not?
2.7. Whether the expression "consultation" stipulated in
Section 435( I) of the Code implies "concurrence"?"
18. We have reproduced the entire paragraph for the sake of
completeness and understanding. The issues that have been raised by
B Mr. Lalit and Mr. Naphade fundamentally relate to the issues in para
2.2. The majority in the Constitution Bench, after referring to the decisions
in Maru Ram v. Union of lntlia anc/ others'", Gopttl Vinayak Godse
v. State of Mallarashtra and otlters' 3 and State of Madhya Pradesh
v. Rutan Singh a11d others'", opined that the legal position is quite settled
c that the life imprisonment only means the entirety of the life unless it is
curtailed by remissions validly granted under the Criminal Procedure
Code by the appropriate Government or under Articles 72 and 161 of
the Constitution by the Executive Head viz. the President or the Governor
of the State respectively. The Court referred to the decision in A.s/10k
Kumar alias Golu v. Union of India and others' 5, wherein it was
D specifically ruled that the decision in Blwgiratlt v. Delhi
A.dministration 16 does not run counter to Godse (supra) and Maru
Ram (supra). The relevant paragraph from A.slwk Kumar (supra) is
reproduced below:-
"15. It will thus be seen from the ratio laid down in the
E aforesaid two cases that where a person has been sentenced
to imprisonment for life the remissions earned by him during
his internment in prison under the relevant remission rules
have a limited scope and must be confined to the scope and
ambit of the said rules and do not acquire significance until
F the sentence is remitted under Section 432, in which case
the remission would be subject to limitation of Section 433-
A of the Code, or constitutional power has been exercised
under Articles 72/161 of the Constitution. In Bhagirath case
the question which the Constitution Bench was required to
consider was whether a person sentenced to imprisonment
G for life can claim the benefit of Section 428 of the Code
12 (1981) 1 sec 101
13
AIR 1961 SC 600
" (1976) 3 sec 470
" (1991) 3 sec 498
H •• (1985) 2 sec 580
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 895
fDIPAK MISRA, J.l

which, inter alia, provides for setting off the period of A
detention undergone by the accused as an undertrial against
the sentence of imprisonment ultimately awarded to him''.
19. Referring to Section 57 IPC, .the decision in As/wk Kumar
(supra) reiterated the legal position as under:-
'9 . ... The provision contained in Section 57 that B
imprisonment for life has to be reckoned as equivalent to
imprisonment for 20 years is for the purpose of calculating
fractions of terms of punishment. We cannot press that
provision into service for a wider purpose.'
20. It has been held in V. Sriliarcm (supra) that the said C
observations are consistent with the ratio laid down in Gotlse (supra)
and Maru Ram (supra).
21. Thereafter, the majority in V. Sriliarcm (supra) quoted a
paragraph from Blragiratl1's case (supra) which pertained to set-off
under Section 428 CrPC which is to the following effect:- D
"I I .... The question of setting off the period of detention
undergone by an accused as an undertrial prisoner against
the sentence of life imprisonment can arise only if an order
is passed by the appropriate authority under Section 432 or
Section 433 of the Code. In the absence of such order, E
passed generally or specially, and apart from the provisions,
if any, of the relevant Jail Manual, imprisonment for life
would mean, according to the rule in Gopal VinayakGodse,
imprisonment for the remainder of life."
22. Thereafter, the Court in V. Srilwran (supra) observed:- F
"We fail to see any departure from the ratio of Godse case;
on the contrary the aforequoted passage clearly shows
approval of that ratio and this becomes further clear from
the final order passed by the Court while allowing the appeal/
writ petition. The Court directed that the period of detention . G
undergone by the two accused as undertrial prisoners would
be set off against the sentence of life imprisonment imposed
upon them, subject to the provisions contained in Section
433-A and, 'provided that orders have been passed by the
appropriate authority under Section 433 of the Criminal
H
896 SUPREME COURT REPORTS [2016] 8 S.C.R.

A Procedure Code'. These directions make it clear beyond
any manner of doubt that just as in the case of remissions
so also in the case of set-off the period of detention as
undertrial would enure to the benefit of the convict provided
the appropriate Government has chosen to pass an order
under Sections 432/433 of the Code. The ratio of Bhagirath
B
case, therefore, does not run counter to the ratio of this
Court in Godse or Maru Ram.
xxxxx xxxxx
61. Having noted the abovereferred to two Constitution
c Bench decisions in Godse and Maru Ram which were
consistently followed in the subsequent decisions in Sambha
Ji Krishan Jir, Ratan Singh, Ranjit Singh 18 , Ashok
Kumar and Subash Chander 19 • The first part of the first
question can be conveniently answered to the effect that
imprisonment for life in terms of Section 53 read with Section
D 45 of the Penal Code only means imprisonment for rest of
the life of the prisoner subject, however, to the right to claim
remission, etc. as provided under Articles 72 and 161 of the
Constitution to be exercisable by the President and the
·Governor 6fthe State and also as provided under Section
E 432 of the Criminal Procedure Code".
23. After so stating, the majority addressed to the concept of
remission. It opined that:-
"As far as remissions are concerned, it consists of two types.
One type of remission is what is earned by a prisoner under the Prison
F Rules or other relevant rules based on his/her good behaviour or such
other stipulations prescribed therein. The other remission is the grant of
it by the appropriate Government in exercise of its power under Section
432 of the Criminal Procedure Code. Therefore, in the latter ca~e when
a remission of the substantive sentence is granted under Section 432,
G then and then only giving credit to the earned remission can take place
and not otherwise. Similarly, in the case of a life imprisonment, meaning
thereby the entirety of one's life, unless there is a commutation of such
sentence for any specific period, there would be no scope to count the
"(1974) 1 sec 196
1• (1984) 1sec31

H 1
' (2001J 4 sec 458
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 897
fDIPAK MISRA, J.l

earned remission. In either case, it will again depend upon an answer to A
the second part of the first question based on the principles laid down in
Swamy Shraddananda (2). "
24. After dwelling upon the said aspect, the Court referred to the
principles stated in paragraphs 91 and 92 in Swamy Sltraddananda (2)
(supra). It adverted to the facts in Swamy Sltraddananda (2) (supra) B
and analysed that this Court had made a detailed reference to the
decisions in Bae/tan Singlt v. State of Punjab' 0 , Mac/1lli Singlt and
~tilers v. State of Punjab' 1 , and Jagmohan Singh v. State of U.P.''-
where the principle of rarest of the rare case was formulated. After
referring to the said decisions, the majority reproduced paragraphs 34, C
36, 43, 45, and 47 of Swamy Sltraddananda (2) (supra) and came to
hold that:-
"66. After noting the above principles, particularly culled out from
the decision in which the very principle, namely, "the rarest of rare cases",
or an "exceptional case" or an "extreme case", it was noted that even
thereafter, in reality in later decisions neither the rarest of the rare case D
principle nor Machhi Singh categories were followed uniformly and
consistently. In this context, the learned Judges also noted some of the
decisions, namely, Aloke Nath Dutta v. State of W.B. 13 This Court in
Swamy Shraddananda (2) also made a reference to a report called
"Lethal Lottery, The Death Penalty in India" compiled jointly by E
Amnesty International India and People's Union for Civil Liberties, Tamil
Nadu, and Puducherry wherein a study of the Supreme Court judgments
in death penalty cases from 1950 to 2006 was referred to and one of the
main facets made in the Report (Chapters 2 to 4) was about the Court's
Jack of uniformity and consistency in awarding death sentence. This
Court also noticed the ill effects it caused by reason of such F
inconsistencies and lamented over the same in the following words in
para 52: [Swamy Shraddananda (2) case, SCC p. 790]
"52. The inability of the criminal justice system to deal with all
major crimes equally effectively and the want of uniformity in the
sentencing process by the Court lead to a marked imbalance in the end G
results. On the one hand there appears a small band of cases in which

'" ( 1980) 2 sec 684
21
(1983) 3 sec 470
22
(1973) 1sec20
" (2007) 12 sec 230 H
898 SUPREME COURT REPORTS [2016] 8 S.C.R.

A the murder convict is sent to the gallows on confirmation of his death
penalty by this Court and on the other hand there is a much wider area
of cases in which the offender committing murder of a similar or a far
more revolting kind is spared his life due to lack of consistency by the
Court in giving punishments or worse the offender is allowed to slip
away unpunished on account of the deficiencies in the criminal justice
B
system. Thus, the overall larger picture gets asymmetric and lopsided
and presents a poor reflection of the system of criminal administration
ofjustice. This situation is a matter of concern for this Court and needs
to be remedied."
25. The larger Bench endorsed the anguish expressed by the Court
c and opined that the situation is a matter of serious concern for this Court
and it wished to examine whether the approach made thereafter by this
Court does call for any interference or change or addition or mere
confirmation. Be it noted, the three-Judge Bench in Swamy
Sliraddatianda (supra) took note of the plan devised by the accused,
D the betrayal of trust, the magnitude of criminality and the brutality shown
in the commission of the ghastly crime and the manner in which the
deceased was sedated and buried while she was alive. The Court, taking
into consideration the materials brought on record in entirety, imposed
the sentence of fixed term imprisonment instead of sentence of death.
E 26. The issue arose before the Constitution Bench with regard to
the mandate of Section 433 CrPC. The majority took note of the fact
that the said provision was considered at length and detailed reference
was made to Sections 45, 53, 54, 55, SSA, 57 and other related provisions
in the IPC in Swamy Sl1raddanandt1(2) (supra) to understand the
sentencing procedure prevalent in the Court. Thereafter, the majority
F reproduced paragraphs 91 and 92 from the said judgment which we
think are required to be reproduced to appreciate the controversy:-
"91. The legal position as enunciated in Kishori LaP',
Gopal Vinayak Godse, Maru Ram, Ratan Singh and
Shri Bhagwan~5 and the unsound way in which remission
G is actually allowed in cases oflife 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
" Kishori la/ v. King Emperor. 1914 SCC Online PC 81
H ~i (2001 >6 sec 296
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 899
fDIPAK MISRA, J.l

for a term in excess of fourteen years and to put that A
category beyond the application ofremission.
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 comes B
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 at the same
time, having regard to the nature of the crime, the Court c
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 option is
limited only to two punishments, one a sentence of D
imprisonment, for all intents and pm:poses, ofnot 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 expand the
options and to take over what, as a matter of fact, lawfully E
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. the sentence of
14 years' imprisonment would amount to no punishment at F
all."
[Emphasis supplied]
27. Thereafter, the majority adverted to the concurring opinion of
Fazal Ali, J. in Maru Ram's case and reproduced copiously from it and
opined thus:- G
"Keeping the above hard reality in mind, when we examine
the issue, the question is "whether as held in Shraddananda
(2), a special category of sentence; instead of death; for a
term exceeding 14 years and putting that category beyond
H
900 SUPREME COURT REPORTS (2016) 8 S.C.R.

A application of remission is good in law? When we analyse
the issue in the light of the principles laid down in very
many judgments starting from Godse, Maru Ram, Sambha
Ji Krishan Ji, Ratan Singh, it has now come to stay that
when in exceptional cases, death penalty is altered as life
sentence, that would only mean rest of one's lifespan".
B
28. At that juncture, the issue arose with regard to the interpretation
of Section 433-A CrPC. In that context, the majority opined:-
"In this context, the submission of the learned Solicitor
General on the interpretation of Section 433-A CrPC
c assumes significance. His contention was that under Section
433-A CrPC what is prescribed is only the minimum and,
therefore, there is no restriction to fix it at any period beyond
14 years and up to the end of one's lifespan. We find
substance in the said submission. When we refer to Section
433-A, we find that the expression used in the said section
D for the purpose of grant of remission relating to a person
convicted and directed to undergo life imprisonment, it
stipulates that "such person shall not be released from prison
unless he had served at least fourteen years of
imprisonment" (emphasis supplied). Therefore, when the
E minimum imprisonment is prescribed under the statute, there
will be every justification for the court which considers the
nature of offence for which conviction is imposed on the
offender for which offence the extent of punishment either
death or life imprisonment is provided for, it should be held
that there will be every justification and authority for the
F court to ensure in the interest of the public at large and the
society, that such person should undergo imprisonment for
a specified period even beyond 14 years without any scope
for remission. In fact, going by the caption of the said Section
43.3-A, it imposes a restriction on powers of remission or
G commutation in certain cases. For a statutory authority
competent to consider a case for remission after the
imposition of punishment by court oflaw it can be held so,
then a judicial forum which has got a wider scope for
considering the nature of offence and the conduct of the
offender including his mens rea to bestow its judicial sense
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 901
[DIPAK MISRA, J.]

and direct that such offender does not deserve to be released A
early and required to be kept in confinement for a longer
period, it should be held that there will be no dearth in the
authority for exercising such power in the matter of
imposition of the appropriate sentence befitting the criminal
act committed by the convict."
B
(Emphasis Supplied)
29. As we notice, there has been advertence to various provisions
ofIPC, namely, Sections 120-B(I ), 121, 132, 194, 195-A, 302, 305, 307
(Second Part), 376-A, 376-E, 396 and 364-A and certain other provisions
of other Acts. The Court observed that death sentence is an exception c
rather than a rule and where even after applying such great precautionary
prescription when the trial courts reach a conclusion to impose the
maximum punishment of death, further safeguards are provided under
the Criminal Procedure Code and the special Acts to make a still more
concretised effort by the higher courts to ensure that no stone is left
unturned before :he imposition of such capital punishments. After so D
stating, the majority referred to the report of Justice Malimath Committee
and Justice Verma Committee, and in that context, observed that:-
"91. We also note that when the Report of Justice Mali math
Committee was submitted in 2003, the learned Judge and
the members did not have the benefit of the law laid down E
in Swamy Shraddananda (2). Insofar as Justice Verma
Committee Report of2013 is concerned, the amendments
introduced after the said Report in Sections 3 70(6), 376-A,
3 76-D and 3 76-E, such prescription stating that life
imprisonment means the entirety of the convict's life does p
not in any way conflict with the well-thought out principles
stated in Swamy Shraddananda (2). In fact, Justice Verma
Committee Report only reiterated the proposition that a life
imprisonment means the whole of the remaining period o;
the convict's natural life by referring to Mohd. Munna 16 ,
Ranieshbhai Chandubhai Rathod (2) v. State of Gujarat"- G
and State of U.P. v. Sanjay Kumar 18 and nothing more.
Further, the said amendment can only be construed to
,. (2005) 1 sec 764
21
(2011) 2 sec 764
" (2012) s sec 537 H
""
902 SUPREME COURT REPORTS (2016] 8 S.C.R.

A tstablish that there should not be any reduction in the life
sentence and it should remain till the end of the convict's
lifespan.
30. The purpose of referring to the aforesaid analysis is only to
understand the gravity and magnitude of a case and the duty of the
B c;:ourt regard being had to the precedents and also the sanction of law.
31. Dealing with the procedure as a substantive part, the majority
opined that:-
"Such prescription contained in the Criminal Procedure
I
J c
Code, though procedural, the substantive part rests in the
Penal Code for the ultimate confinnation or modification or
alteration or amendment or amendment of the punishment.
Therefore. what is apparent is that the imposition of death
penalty or life imprisonment is substantively provided for in
the Penal Code. procedural part of it is prescribed in the
D Criminal Procedure Code and significantly one does not
conflict with the other. Having regard to such a dichotomy
i being set out in the Penal Code and the Criminal Procedure
l: Code, which in many respects to be operated upon in the
t. adjudication of a criminal case, the result of such thoroughly
defined distinctive features have to be clearly understood
E _ while operating the definite provisions, in particular, the
provisions in the Penal Code providing for capital punishment
and in the alternate the life imprisonment".
[Underlining is ours]
'--
F 32. We need not advert to other aspects that_ have been dwelt
upon by the Constitution Bench, for we are not concerned with the same.
The submission of the learned senior counsel for the appellants is that
there is an apparent error in the Constitution Bench decision as it has
treated the provisions of CrPC as procedural. On a reading of the
decision, it is manifest that the majority has explained how there is
G cohesive co-existence of CrPC and !PC. We may explain it in this
manner. Section 28 CrPC empowers the court to impose sentence
authorized by law. Section 302 !PC authorizes the court to either award
life imprisonment or death. As rightly submitted by Mr. Lalit and Mr.
Naphade, there is a minimum and maximum. Life imprisom,1ent as held
in Gopa/ J1nayak Gc.lse (supra), Rat1111 Singh (supra), Solum Lal v.
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 903
rDIPAK MISRA, J.l

Asha Ram and others 29 and Zahid Hussein mid others v. State of A
W.B. and another30 means the whole of the remaining period of the
convict's natural life. The convict is compelled to live in prison till the
end of his life. Sentence of death brings extinction oflife on a fixed day
after the legal procedure is over, including the ground of pardon or
remission which are provided under Articles 71 and 161 of the
8
Constitution. There is a distinction between the conferment of power
by a statute and conferment of power under the Constitution. The same
has been explained in Maru Ram (supra) and V. Sriharan (supra).
Recently, a two-Judge Bench in State of Gujarat & Anr. v. Lal Singh
@Manjit Singh & Ors. 31 in that context has observed thus:-
"In Maru Ram (supra) the constitutional validity of Section
c
433-A CrPC which had been brought in the statute.book in
the year 1978 was called in question. Section 433-A CrPC
imposed restrictions on powers of remission or commutation
in certain cases. It stipulates that where a sentence of
imprisonment for life is imposed on conviction of a person D
for an offence for which death is one of the punishments
provided by laws, or where a sentence of death imposed
on a person has been commuted under Section 433 into one
of imprisonment for life, such person shall not be released
from prison unless he has served at least fourteen years of
imprisonment. The majority in Maru Ram (supra) upheld E
the constitutional validity of the provision. The Court
distinguished the statutory exercise of power ofremission
and exercise of power by the constitutional authorities under
the Constitution, that is, Articles 72 and 161. In that context,
the Court observed that the power which is the creature of F
the Code cannot be equated with a high prerogative vested
by the Constitution in the.highest functionaries of the Union
and the States, for the source is different and the substance
is different. The Court observed that Section 433-A CrPC
cannot be invalidated as indirectly violative of Articles 72
and 161 of the Constitution. Elaborating further, the majority G
spoke to the following effect:-
" ... Wide as the power of pardon, commutation and
2•(19s1i 1sec106

Jo (2001 l 3 sec 750
Ji AIR 2016 SC 3197: 2016 (6) SCALE 105 H
904 SUPREME COURT REPORTS [2016] 8 S.C.R.

A release (Articles 72 and 161) is, it cannot run riot; for
no legal power can run unruly like John Gilpin on the
horse but must keep sensibly to a steady course. Here,
we come upon the second constitutional fundamental
which underlies the submissions of counsel. It is that
all public power, including constitutional power, shall
B
never be exercisable arbitrarily or mala fide and,
ordinarily, guidelines for fair and equal execution are
guarantors of the valid play of power.... "
33. In Kelwr Singlt and anotlter v. Union ofIndia and anotlter31
the Constitution Bench has opined that the power to pardon is part of the
C constitutional scheme and it should be so treated in the Indian Republic.
There has been further observation that it is a constitutional responsibility
of great significance to be exercised when the occasion arises in
accordance with the discretion contemplated by the context. The Court
has also held that exercise of the said power squarely falls within the
D judicial domain and can be exercised by the court by judicial review. In
Epuru Sudltakar and anotlter v. Govt. of A.P. and otlters33 , in the
concurring opinion, S.H. Kapadia, J. (as His Lordship then was) stated
thus:-
"Exercise of executive clemency is a matter of discretion
E and yet subject to certain standards. It is not a matter of
privilege. It is a matter of performance of official duty. It is
vested in the President or the Governor, as the case may
be, not forthe benefit of the convict only, but for the welfare
of the people who may insist on the performance of the
duty. This discretion, therefore, has to be exercised on public
F considerations alone. The President and the Governor are
the sole judges of the sufficiency of facts and of the
appropriateness of granting the pardons and reprieves.
However, this power is an enumerated power in the
Constitution and its limitations, if any, must be found in the
G Constitution itself. Therefore, the principle of exclusive
cognizance would not apply when and if the decision
impugned is in derogation of a constitutional provision. This
is the basic working test to be applied while granting pardons,
"l 1989) 1 sec 204
"(2006J s sec 161
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 905
[DIPAK MISRA, J.]

reprieves, remissions and commutations." A
And, again:-
" ... The Rule of Law is the basis for evaluation of all
decisions. The supreme quality of the Rule of Law is
fairness and legal certainty. The principle oflegality occupies
a central plan in the Rule of26 Law. Every prerogative has B
to be subject to the Rule of Law. That rule cannot be
compromised on the grounds of political expediency. To go
by such considerations would be subversive of the
fundamental principles of the Rule of Law and it would
amount to setting a dangerous precedent. The Rule of Law c
principle comprises a requirement of"Government according
to law". The ethos of "Government according to law"
requires the prerogative to be exercised in a manner which
is consistent with the basic principle of fairness and certainty.
Therefore, the power of executive clemency is not only for
the benefit of the convict, but while exercising such a power D
the President or the Governor, as the case may be, has to
keep in mind the effect of his decision on the family of the
victims, the society as a whole and the precedent it sets for
the future."
34. We have referred to the aforesaid aspect extensively as it has E
been clearly held that the power of the constitutional authorities under
Article 71 and Article 161 of the Constitution has to remain sacrosanct
but the power under Section 433-A CrPC which casts a restriction on
the appropriate functionary of the Government can judicially be dealt
with. F
35. To elaborate, though the power exercised under Article 71
and Article 161 of the Constitution is amenable to judicial review in a
limited sense, yet the Court cannot exercise such power. As far as the
statutory power under Section 433-A is concerned, it can be curtailed
when the Court is of the considered opinion thatthe fact situation deserves G
a sentence of incarceration which be for a fixed term so that power of
remission is not exercised. There are many an authority to support that
there is imposition of fixed term sentence to curtail the power ofremission
and scuttle the application for consideration of remission by the convict.
It is because in a particular fact situation, it becomes a penological
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906 SUPREME COURT REPORTS [2016] 8 S.C.R.

A necessity which is permissible within the concept of maximum and the
minimum. There is nQ dispute over the maximum, that is, death sentence.
However, as far as minimum is concerned the submission of the learned
counsel for the appellants is courts can say "imprisonment for life" and
nothing else. It cannot be kept in such a strait-jacket formula. The
court, as in the case at hand, when dealing with an appeal for enhancement
B
of sentence from imprisonment of life to death, can definitely say that
the convict shall suffer actual incarceration for a specific period. It is
within the domain ofjudiciary and such an interpretation is permissible.
Be it noted, the Court cannot grant a lesser punishment than the minimum
but can impose a punishment which is lesser than the maximum. It is
c within the domain of sentencing and constitutionally permissible.
36. We must immediately proceed to state that similar conclusion
has been reached by the majority in V. Srilwran (supra) and other cases,
Mr. Lalit and Mr. Naphade would submit that the said decision having
not taken note of the principles stated in K.M. Nmwvati (supra) and
D Sarai Chandra Rablla (supra) is not a binding precedent. In K.M.
Nanavati (supra), the question that arose before the Constitution Bench
pertained to the extent of the power conferred on the Governor of a
State under Article 161 of the Constitution; and whether the order of the
Governor can impinge on the judicial power of this Court with particular
reference to its power under Article 142 of the Constitution. Be it stated,
E the petitioner therein was convicted under Section 302 IPC and sentenced
to imprisonment for life. After the judgment was delivered by the High
Court and the writ was received by the Sessions Judge, he issued warrant
of arrest of the accused for the purpose of sending him to the police
officer in-charge of the City Sessions Court. The warrant was returned
F unserved with the report that it could not be served in view of the order
passed by the Governor of Bombay suspending the sentence upon the
petitioner. In the meantime, an application for leave to appeal to Supreme
Court was made soon after the judgment was pronounced by the High
Court and the matter was fixed for hearing. On that day, an unexecuted
warrant was placed before the concerned Bench which directed that
G the matter is to be heard by a larger Bench in view of the unusual and
unprecedented situation. A Special Bench of five Judges of the High
Court heard the matter and the High Court ultimately held that as the
sentence passed upon the accused had been suspended, it was not
necessary for the accused to surrender and, therefore, Order XX! Rule
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 907
[DlPAK MISRA, J.l

5 of the Supreme Court Rules would not apply to the case. The High A
Court opined that the order passed by the Governor was not found to be
unconstitutional. A petition was filed for special leave challenging the
conviction and sentence and an application was filed seeking exemption
stating all the facts. The matter was ultimately referred to the Constitution
Bench, and the larger Bench analyzing various facets of the Constitution,
B
came to hold thus:-
"21. In the present case, the question is limited to the
exercise by the Governor of his powers under Article 161
of the Constitution suspending the sentence during the
pendency of the special leave petition and the appeal to this
court; and the controversy has narrowed down to whether
c
for the period when this court is in seizin of the case the
Governor could pass the impugned order, having the effect
of suspending the sentence during that period. There can
be no doubt that it is open to the Governor to grant a full
pa~don at any time even during the pendency of the case in D
this court in exercise of what is ordinarily called "mercy
jurisdiction". Such a pardon after the accused person has
been convicted by the court has the effect of completely
absolving him from all punishment or disqualification
attaching to a conviction for a criminal offence. That power
is essentially vested in the head of the Executive, because E
the judiciary has no such "mercy jurisdiction". But the
suspension of the sentence forthe period when this court is
in seizin of the case could have been granted by this court
itself. If in respect of the same period the Governor also
has power to suspend the sentence, it would mean that both F
the judiciary and the executive would be functioning in the
same field at the same time leading to the possibility of
conflict of jurisdiction. Such a conflict was not and could
not have been intended by the makers of the Constitution.
But it was contended by Mr Seervai that the words of the
Constitution, namely, Article 161 do not warrant the G
conclusion that the power was in any way limited or fettered.
In our opinion there is a fallacy in the argument insofar as it
postulates what has to be established, namely, that the
Governor's power was absolute and not fettered in any
H
908 SUPREME COURT REPORTS [2016] 8 S.C.R.

A way. So long as the judiciary has the power to pass a
particular order in a pending case to that extent the power
of the Executive is limited in view of the words either of
Sections 40 I and 426 of the Code of Criminal Procedure
and Articles 142 and 161 of the Constitution. If that is the
correct interpretation to be put on these provisions in order
B
to harmonise them it would follow that what is covered in
Article 142 is not covered by Article 161 and similarly what
is covered by Section 426 is not covered by Section 401.
On that interpretation Mr Seervai would be right in his
contention that there is no conflict between the prerogative
c power of the sovereign state to grant pardon and the power
of the courts to deal with a pending cage judicially."
Andagain:-
"As a result of these considerations we have come to the
conclusion that the order of the Governor granting
D suspension of the sentence could on.ly operate until the
matter became sub judice in this court on the filing of the
petition for special leave to appeal. After the filing of such
a petition this court was seized of the case which would be
dealt with by it in accordance with law. It would then be for
E this Court, when moved in that behalf, either to apply Rule
5 of Order 2 I or to exempt the petitioner from the operation
of that Rule. It would be for this court to pass such orders
as itthought fit as to whether the petitioner should be granted
bail or should surrender to his sentence or to pass such
other or further orders as this court might deem fit in all the
F circumstances of the case. It follows from what has been
said that the Governor had no power to grant the suspension
of sentence forthe period during which the matter was sub
judice in this court."
37. Relying on the same, it is urged that when a constitutional
G court adds a third category of sentence, it actually enters into the realm
of Section 433-A CrPC which rests with the statutory authority.
According to the learned senior counsel for the appellants, after the
conviction is recorded and sentence is imposed, the court has no role at
the subsequent stage. But when higher sentence is imposed, there is an
H encroachment with the role of the executive. In this context, learned
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 909
fDIPAK MISRA, J.l

senior counsel have drawn our attention to the principles stated in another A
Constitution Bench judgment in Sarai Chandra Rablw (supra), wherein
it has been held that the effect of pardon is different than remission
which stands on adifferent footing altogether. The Constitution Bench,
explaining the same, proceeded to state thus:-
"4. .. . In the first place, an order of remission does not B
wipe out the offence; it also does not wipe out the conviction.
All that it does is to have an effect on the execution of the
sentence; though ordinarily a convicted person would have
to serve out the full sentence imposed by a court, he need-
not do so with respect to that part of the sentence which
has been ordered to be remitted. An order of remission c
thus does not in any way interfere with the order of the
court; it affects only the execution of the sentence passed
by the court and frees the convicted person from his liability
to undergo the full term of imprisonment inflicted by the
court, though the order of conviction and sentence passed D
by the court still stands as it was. The power to grant
remission is executive power and cannot have the effect
which the order of an appellate or revision al court would
have of reducing the sentence passed by the trial court and
substituting in its place the reduced sentence adjudged by
the appellate or revisional court. This distinction is well E
brought out in the following passage from Weater's
Constitutional Law on the effect of reprieves and pardons
vis-a-vis the judgment passed by the court imposing
punishment, at p. 176, para 134:
"A reprieve is a temporary suspension of the punishment F
fixed by law. A pardon is the remission of such
punishment. Both are the exercise of executive functions
and should be distinguished from the exercise ofjudicial
power over sentences. 'The judicial power and the
executive power over sentences are readily G
distinguishable,' observed Justice Sutherland. To render
a judgment is a judicial function. To carry the judgment
into effect is an executive function. To cut short a
sentence by an act of clemency is an exercise of executive
power which abridges the enforcement of the judgment
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910 SUPREME COURT REPORTS [2016] 8 S.C.R.

A but does not alter it qua judgment'."
Though, therefore, the effect of an order of remission is to
wipe out that part of the sentence of imprisonment which
has not been served out and thus in practice to reduce the
sentence to the period already undergone, in law the order
B of remission merely means that the rest of the sentence
need not be undergone, leaving the order of conviction by
the court and the sentence passed by it untouched. In this
view of the matter the order of remission passed in this
case though it had the effect that the appellant was released
from jail before he had served the full sentence of three
c years' imprisonment, and had actually served only about
sixteen months' imprisonment, did not in any way affect
the order of conviction and sentence passed by the court
which remained as it was. Therefore the terms of Section
7(b) would be satisfied in the present case and the appellant
D being a person convicted and sentenced to three years'
rigorous imprisonment would be disqualified, as five years
had not passed since his release and as the Election
Commission had not removed his disqualification."
38. The analysis made in the aforesaid passage is to be
E appropriately appreciated. In the said case, the controversy arose with
regard to the rejection of the nomination paper of the returned candidate
on the ground that he was not disqualified under Section 7(b) of the
Representation of the People Act, 1951. The Election Tribunal came to
hold that the nomination paper of the candidate was wrongly rejected
and the allegation pertaining to corrupt practice was not established.
F On the first count, the election was set aside. The successful candidate
preferred an appeal before the High Court which came to hold that the
nomination paper of the respondent before it was properly rejected.
However, it concurred with the view expressed as regards corrupt practice
by the tribunal. The rejection ofnomination paper of the candidate was
G found to be justified by the High Court as he had been sentenced to
undergo rigorous imprisonment for three years and five years had not
passed since his release. He was sentenced to three years but the
sentence was remitted by the government in exercise of power under
Section 401 of old Cr PC. The contention of the appellant before the
tribunal was that in view of the remission, sentence, in effect, was reduced
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 911
[DIPAK MISRA, J.]

to a period ofless than two years and, therefore, he could not be said to A
have incurred disqualification within the meaning of Section 7(b) of the
said Act. The High Court formed the opinion that the remission of
sentence did not have the same effect as free pardon and would not
have the effect on reducing the sentence passed on the appellant. In
that context, this Court has held what we have quoted hereinabove.
B
What is being sought to be argued on the basis of the aforequoted passage
is that the court does not have any role in the matter of remission. It is
strictly within the domain of the executive.
39. On a careful reading of both the decisions, we have no iota of
doubt in our mind that they are not precedents for the proposition that C
the court cannot impose a fixed term sentence. The power to grant
remission is an executive power and it cannot affect the appeal or
revisional power of the court. The powers are definitely distinct.
However, the language of Section 433-A Cr PC empowers the executive
to grant remission after expiry of 14 years and it only enables the convict
to apply for remission. There can be a situation as visualized in Swamy D
Sliraddananda (2) (supra).
40. Learned senior counsel would submit that it is a judicial
innovation or creation without sanction of law and according to them,
the majority view of the Constitution Bench is not a seemly appreciation
of Section 433-A CrPC. In our considered opinion, the majority view is E
absolutely correct and binding on us being the view of the Constitution
Bench and that apart, we do not have any reason to disagree with the
same for referring it to a larger Bench. We are of the convinced opinion
that the situation that has been projected in Swamy Sltraddananda (2)
(supra) and approved in V. Sriltaran (supra) speaks eloquently of
judicial experience and the fixed term sentence cannot be said to be F
unauthorized in law. Section 302 IPC authorizes imposition of death
sentence. The minimum sentence is imprisonment for life which means
till the entire period of natural life of the convict is over. The courts
cannot embark upon the power to be exercised by the Executive Heads
of the State under Article 71 and Article 161 of the Constitution. That G
remains in a different sphere and it has its independent legal sanctity.
The court while imposing the sentence oflife makes it clear that it means
in law whole of life. The executive has been granted power by the
legislature to grant remission after expiry of certain period. The court
could have imposed the death sentence. However, in a case where the
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912 SUPREME COURT REPORTS [2016] 8 S.C.R.

A court does not intend to impose a death sentence because of certain
factors, it may impose fixed term sentence keeping in view the public
concept with regard to deterrent punishment. It really adopts the view
of"expanded option", lesser than the maximum and within the expanded
option of the minimum, for grant of remission does not come in after
expiry of 14 years. It strikes a balance regard being had to the gravity
B
of the offence. We, therefore, repel the submission advanced by the
learned senior counsel for the appellants.
41. In this context, another submission deserves to be noted. It is
canvassed by the learned senior counsel for the appellants that the issue
of enhancement and scope of enhancement was not referred to the
c Constitution Bench. The reference order which has been quoted in V.
Sriharan (supra) has been brought to our notice to highlight the point
that in the absence of a reference by the concerned Bench, the
Constitution Bench could not have adverted to the said aspect. The said
submission is noted only to be rejected. The larger Bench has framed
D the issues which deserve to be answered and, as seen from the entire
tenor of the judgment, it felt that it is obliged to address the issue regard
being had to the controversy that arises in number of cases. In fact, as
is evincible, question Nos. (i) and (ii) of paragraph 2.2 have been
specifically posed in this manner. We do not think that there is any
impediment on the part of the Constitution Bench to have traversed on
E the said issues. In fact, in our view, the Constitution Bench has correctly
adverted to the same and clarified the legal position and we are bound
byit.
42. The next contention which is canvassed on behalf of the
appellants is that when the High Court exercised the power under Section
F 368 CrPC and thinks of commuting the death sentence, then only it can
pass a fixed term sentence· and not otherwise. In this regard, we have
been commended to the authorities in Sahib Hussain (supra) and Gurvail
Singh (supra). In Sahib Hussain (supra), the Court took note of the
decision in Shri Blwflw"n v. St"te of Raj"stlum 34 wherein this Court
G had commuted the death sentence imposed on the appellant therein and
directed that the appellant shall undergo the sentence of imprisonment
for life with the further direction that the appellant shall not be released
from the prison unless he had served out at least 20 years ofimprisonment
including the period already undergone by him. The authority in Pmk"s/1
" <2001 l 6 sec 296
H
VIK.AS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 913
fDIPAK MISRA, J.l

Dhawal Kliairnar (Patil) v. State of Maharas/1tra 35 was noticed A
wherein the Court set aside the death sentence and directed that the
appellant therein shall suffer imprisonment for life but he shall not be
released unless he had served out at least 20 years of imprisonment
including the period already undergone by him. The two-Judge Bench
referred to Ram Anup Singh and others v. State of Biliar36 , Nazir B
7
Khan and others vs. State of Delhi3 , Swamy Sliraddananda (2)
(supra), Haru Ghosh v. State of West BengaP 8 , Ramraj v. State of
Chhattisgarh 39 , Neel Kumar alias Anil Kumar v. State ofHaryamr 0,
Sandeep v. State of U.P. 41 and Gurvail Singh (supra) and held that:-
"lt is clear that since more than a decade, in many cases,
whenever death sentence has been commuted to life
c
imprisonment where the offence alleged is serious in nature,
while awarding life imprisonment, this Court reiterated
minimum years of imprisonment of20 years or 25 years or
30 years or 35 years, mentioning thereby, ifthe appropriate
Government wants to give remission, the same has to be D
considered only afterthe expiry of the said period .... "
Thereafter, the Court referred to Swamy S/tr(l(/dananda (2)
(supra) and the pronouncement in S/iri Blwgww1 (supra) and opined
thus:-
"36. It is clear that in Swamy Shraddananda, this Court E
noted the observations made by this Court in Jagmohan
Singh v. State of U.P. and five years after the judgment in
Jagmohan 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 F
Section 433-A another Constitution Bench of this Court in
Bachan Singh v. State of Punjab, 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 the Prisons Act,
G
"(2002) 2 sec 35
"(2002) 6 sec 686
'' (2003) s sec 461
"(2009) 15 sec 551
,. (2010) 1 sec 573
• (2012) s sec 766
4
41
(2012) 6 sec 101 H
914 SUPREME COURT REPORTS [2016] 8 S.C.R.

A Jail Manual, etc. and concluded that reasonable and proper
course would be to expand the option between 14 years'
imprisonment and death. The larger Bench has also
emphasised that: [Swamy Shraddananda (2) case, SCC
p. 805, para 92]
B "92 . ... the Court would take recourse to the expanded
option primarily because in the facts of the case, the
sentence of 14 years' imprisonment would amount to no
punishment at all."
In the light of the detailed discussion by the larger Bench,
c we are of the view that the observations made in Sangeet
case'J are not warranted. Even otherwise, the above
principles, as enunciated in Swamy Shraddananda are
applicable only when death sentence is commuted to life
imprisonment and not in all cases where the Court imposes
sentence for life."
D
43. Learned senior counsel have emphasized on the last part of
the aforequoted passage to buttress the stand that when the trial judge
had not imposed the death sentence, the question of commutation did
not arise and hence the High Court could not have imposed a fixed term
sentence and could have only affirmed the sentence of imprisonment
E for life.
44. In Gurvail Singh (supra), the Court was dealing with the
petition under Article 32 of the Constitution for issue of a direction to
convert the sentence of the petitioner from 30 years without remission
to a sentence of life imprisonment and further to declare that this Court
F is not competent to fix a particular number of years (with or without
remission) when it commutes the death sentence to life imprisonment
while upholding the conviction of the accused under Section 302 !PC.
The two-Judge Bench referred to the decision in Sangeet (supra) which
has also been referred in Sahib Hussain (supra) and, thereafter, the
G Court observed:-
"6. The issue involved herein has been raised before this
Court time and again. Two-Judge as well as three-Judge
Benches have several times explained the powers of this
Court in this regard and it has consistently been held that
H 42
SaJJ.geet v. State _of Ha_11,ana, (2013) 2 SCC 452
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 915
fDIPAK MISRA, J.l

the Court cannot interfere with the clemency powers A
enshrined under Articles 72 and 161 of the Constitution of
India or any rule framed thereunder except in exceptional
circumstances. So far as the remissions, etc. are concerned,
these are executive powers of the State under which, the
Court may issue such directions if required in the facts and
B
circumstances of a particular case."
After so stating, the Court referred to Swamy Sltraddananda
(2) (supra) and State of Uttar Pradesh. v. Sanjay Kumar 43 and
reproduced a passage from Sanjay Kumar (supra) which we .think
~eemly to quote:-
c
"24 .... The aforesaid judgments make it crystal clear that
thjs Court has merely found out the via media, where
considering the facts and circumstances of a particular case,
by way of which it has come to the conclusion that it was
not the 'rarest ofrare cases', warranting death penalty, but
a sentence of 14 years or 20 years, as referred to in the D
guidelines laid down by the States would be totally
inadequate. The life imprisonment cannot be equivalent to
imprisonment for 14 years or 20 years, rather it always
meant as the whole natural life. This Court has always
clarified that the punishment so awarded would be subject E
. to any order passed in exercise of the clemency powers'of
the President of India or the Governor of the State, as the
case may be. Pardons, reprieves and remissions are granted
in exercise of prerogative power. There is no scope of
judicial review of such orders except on very limited grounds,
for example, non-application of mind while passing the order; F
non-consideration ofrelevant material; or ifthe order suffers
from arbitrariness. The power to grant pardons and to
commute sentences is coupled with a duty to exercise the
same fairly and reasonably. Administration ofjustice cannot
be perverted by executive or political pressure. Of course, G
adoption of uniform standards may not be possible while
exercising the power of pardon. Thus, such orders do not
interfere with the sovereign power of the State. More so,
not being in contravention of any statutory or constitutional
"(2012) s sec 537
H
916 SUPREME COURT REPORTS [2016] 8 S.C.R.

A provision, the orders, even if treated to have been passed
under Article 142 of the Constitution do not deserve to be
labelled as unwarranted. The aforesaid orders have been
passed considering the gravity of the offences in those cases
that the accused would not be entitled to be considered for
premature release under the guidelines issued for that
B
purpose i.e. under the Jail Manual, etc. or even under
Section 433-A of the Code of Criminal Procedure."
45. Thereafter, the two-Judge Bench referred to the
pronouncement in Sahib Hussain (supra) and opined thus:-

c " 12. Thus, it is evident that the issue raised in this petition
has been considered by another Bench and after
reconsidering all the relevant judgments on the issue the
Court found that the observations made in Sangeet were
unwarranted i.e. no such observations should have been
made. This Court issued orders to deprive a convict from
D the benefit of remissions only in cases where the death
sentence has been commuted to life imprisonment and it
does not apply in all the cases wherein the person has been
sentenced to life imprisonment."
46. Mr. Krishnan, learned senior counsel appearing for the State,
E in his turn, has commended us to three passages from V. Sriltaran
(supra). They read as under:-
"! 03. In fact, while saying so we must also point out that
such exercise of power in the imposition of death penalty
or life imprisonment by the Sessions Judge will get the
F scrutiny by the Division Bench of the High Court mandatorily
when the penalty is death and invariably even in respect of
life imprisonment gets scrutinised by the Division Bench by
virtue of the appeal remedy provided in the Criminal
Procedure Code. Therefore, our conclusion as stated above
G can be reinforced by stating that the punishment part of
such specified offences are always examined at least once
after the Sessions Court's verdict by the High Court and
that too by a Division Bench consisting of two Hon'ble
Judges.
104. That apart, in most of such cases where death penalty
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 917
[DIPAK MISRA, J.]

or life imprisonment is the punishment imposed by the trial A
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
B
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 which derives the power under the
Penal Code, which prescribes the capital and alternate c
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 ofthe crime committed and the exercise ofjudicial
conscience befitting such offence found proved to have been
D
committed.
105. We, therefore, reiterate that, the power derived from
the Penal Code for any modified punishment within the
punishment provided for in the Penal Code for such specified
offences can only be exercised by the High Court and in
the event of further appeal only by the Supreme Court and E
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 F
and not by any other inferior Court".
Relying on the aforesaid passages, it is contended by him that the
decisions cited by the appellants are, no more good law and, in fact,
have been impliedly overruled in view of what has been stated by the
Constitution Bench. G
47. We do not think it appropriate to enter into the said debate. In
the instant case, the prosecution had preferred an appeal under Section
377 CrPC before the High Court for enhancement of sentence of
imposition of life to one of death. On a reading of the said provision,
there can be no trace of doubt that the High Court could have enhanced H
918 SUPREME COURT REPORTS [2016] 8 S.C.R.

A the sentence ofimposition oflife to death. In this context, we may usefully
refer to Jasltublw Bltaratsi11/1 Go/ti/ and otlters v. State of Gujarat"
wherein it has been ruled thus:-
" 12. It is needless for us to go into the principles laid down
by this Court regarding the enhancement of sentence as
B also about the award of sentence of death, as the law on
both these subjects is now well settled. There is undoubtedly
power of enhancement available with the High Court which,
however, has to be sparingly exercised. No hard and fast
rule can be laid down as to in which case the High Court
may enhance the sentence from life imprisonment to
c death .... "
Thus, the power is there but it has to be very sparingly used. In
the instant case, the High Court has thought it appropriate instead of
imposing death sentence to impose the sentence as it has done. Therefore,
the sentence imposed by the High Court cannot be found fault on that
D score.
48. At this stage we think it appropriate to deal with another facet
of the said submission. It is strenuously urged that the High Court can
impose the punishment what the trial court can impose. In Jagat
Bahadur (supra) it has been held that:-
E
"An appeal court is after all 'a Court of error', that is, a
court established for correcting an error. If, while purporting
to correct an error, the court were to do something which
was beyond the competence of the trying court, how could
it be said to be correcting an error of the trying court? No
F case has been cited before us in which it has been held that
the High Court, after setting aside an acquittal, can pass a
sentence beyond the competence of the trying court.
Therefore, both on principle and authority it is clear that the
::1wer of the appellate court to pass a sentence must be
G measured by the power of the court from whose judgment
an appeal has- been brought before it."
49. In Jadltav (supra) the Cout1 ruled that:-
"An appeal is a creature of a statute and the powers and
"' (1994) 4 sec 353
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 919
[DIPAK MISRA, J.]

jurisdiction of the appellate court must be circumscribed by A
the words of the statute. Atthe same time a Court of appeal
is a "Court of error" and its normal function is to correct
the decision appealed from and its jurisdiction should be
co-extensive with that of the trial court. It cannot and ought
not to do something which the trial court was not competent
B
to do. There does not seem to be any fetter to its power to
do what the trial court could do."
50. We have reproduced the said passages as the learned senior
counsel appearing for the appellant would contend as the court of appeal
is only a "Com:toferror" and its jurisdiction should be co-extensive with
that of the trial court. Both the decisions dealt with different kind of C
offences where the sentence has been prescribed to be imposed for a
particular by the trial court and in that context the Court held that the
appellate court could not have imposed a sentence beyond the competence
of the trial court. If the trial court has no jurisdiction to impose such a
sentence, the High Court as a "Court of error" cannot pass a different D
harsher sentence. There can be no dispute over the proposition stated in
the said two authorities. But in the case at hand, the appellants were
convicted under section 302 IPC and the trial court could have been
impose the sentence of death and that apart, the appeal has been preferred
by the State. Thus, the ratio laid down in the said authorities is not
applicable to the case at hand. E
51. The next submission that is put forth is that the decision in V.
Sriltaran (supra) runs counter to the principles stated in A.R. Antufoy
(supra). Explicating the said stand, it is argued that in the said case the
Constitution Bench had directed that the case of the petitioner should be
tried by the learned Judge of the High Court as he was tried for the F
offence under the Prevention of Corruption Act, 1988. The Bench of
seven-Judges recalled that order on three counts, namely, a trial under
the Prevention of Corruption Act, 1988 has to be held by a special Judge
appointed under the said Act and this Court has no jurisdiction to direct
the trial to be held by a High Court Judge; that the statutory right of the G
petitioner for filing an appeal to the High Court could not be taken away
by this Court; and that the earlier direction abridged the right of the
petitioner therein under Articles 14 and 21 of the Constitution. Drawing
an analogy it is contended that V. Sriharmt (supra) takes away the
statutory right of the convict to apply for commutation/remission under
H
920 SUPREME COURT REPORTS (2016] 8 S.C.R.

A Sections 432 and 433 CrPC, and also affects the right under Article 21
of the Constitution. Learned senior counsel for the appellants would
contend that the principles stated in A.R. Antulay (supra) have not been
kept in view in V. Sriltartm (supra) and, therefore, it is not a binding
precedent and a two-Judge Bench should either say that it is per incuriam
or refer it to a larger Bench. With regard to declaring a larger Bench
B
judgment per incuriam, learned senior counsel for the appellants have
drawn inspiration from the authority in Fibre Boards Private Limited,
Bangalore v. Commissioner of Income-Tax, Bangalore45 • In that
case, the two-Judge Bench referred to Mam/es/1war Prasad v.
Kan/1aiya La/46 and State of U.P. and anotlter v. Syntltetics and
c Chemicals Ltd. and anotlter7 and took note of the earlier Constitution
Bench judgment in State of Orissa v. M.A. Tulloch and Co. 48 , and
held thus:-
"35. The two later Constitution Bench judgments in Raya/a
Corpn. (P) Ltd. v. Director of Enforcement 49 and
D Kolhapur Canesugar Works Ltd. v. Union of India;o
also did not have the benefit of the aforesaid exposition of
the law. It is clear that even an implied repeal of a statute
would fall within the expression "repeal" in Section 6 of the
General Clauses Act. This is for the reason given by the
Constitution Bench in MA. Tulloch & Co. that only the
E form of repeal differs but there is no difference in intent or
substance. If even an implied repeal is covered by the
expression "repeal", it is clear that repeals may take any
form and so long as a statute or part of it is obliterated,
such obliteration would be covered by the expression
F "repeal" in Section 6 of the General Clauses Act."
52. Be it noted, the Court followed the principles stated in M.A.
Tulloch and Co. (supra) and not in Raya/a Corpn. (~)Ltd. (supra). In.
State of U.P. v. Synthetics and Chemicals Ltd.-'1 a two-Judge Bench
of this Court held that one particular conclusion of a Bench of seven-
G " (2015) 10 sec 333
"(1975) 2 sec 232
"(1991) 4 sec 139
48
(1964) 4 SCR 461
.. (1969) 2 sec 412
'" (2000J 2 sec 536
"{1991)4 sec 139
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 921
[DIPAK MISRA, J.]

Judges in Synthetics and Chemicals Ltd. and others v. State of U.P. A
and others·'2 as per incuriam. The two-Judge Bench in Synthetics
and Chemicals Ltd. (supra) opined thus:-
"36. The High Court, in our view, was clearly in error in
striking down the impugned provision which undoubtedly
falls within the legislative competence of the State, being B
referable to Entry 54 of List II. We are firmly of the view
that the decision of this Court in Synthetics 53 is not an
authority for the proposition canvassed by the assessee in
challenging the provision. This Court has not, and could not
have, intended to say that the Price Control Orders made
by the Central Government under the IDR Act imposed a c
fetter on the legislative power of the State under Entry 54
of List II to levy taxes on the sale or purchase of goods.
The reference to sales tax in paragraph 86 of that judgment
was merely accidental or per incuriam and has, therefore,
no effect on the impugned levy." D
53. The observations speak for themselves. We are not inclined
to enter into the doctrine of precedents and the principle of per incuriam
in the instant case. Suffice it to say that the grounds on which it is urged
that the Constitution Bench decision in V. Sriharan (supra) runs counter
to the larger Bench decision in A.R. Antulay (supra) are fallacious. In E
A.R. Antulay (supra), the High Court had no jurisdiction to try the case
under the Prevention of Corruption Act, 1988 and consequently, by virtue
of a direction the accused was losing the right to appeal. Both could not
have been done and that is why, the larger Bench reviewed the
Constitution Bench judgment. For better appreciation, we may reproduce
what Mukherjee, J. (as His Lordship then was) speaking forthree learned F
Judges had to say:-
" .. By reason of giving the directions on February 16, 1984
this Court had also unintentionally caused the appellant the
denial of rights under Article 14 of the Constitution by
denying him the equal protection of law by being singled G
out for a special procedure not provided for by law. When
these factors are brought to the notice of this Court, even if
there are any technicalities this Court should not feel shackled
" <1990) 1 sec 109
" (1990) 1 sec 109 H
922 SUPREME COURT REPORTS (2016] 8 S.C.R.

A and decline to rectify that injustice or otherwise the injustice
noticed will remain forever a blot on justice. It has been
said long time ago that "actus curiae neminem gravabit"
- an act of the court shall prejudice no man. This maxim is
founded upon justice and good sense and affords a safe
and certain guide for the administration of the law."
B
Andagain:-
"In the aforesaid view of the matter the appeal is allowed;
all proceedings in this matter subsequent to the directions
of this Court on 16-2-1984 as indicated before are set aside
c and quashed. The trial shall proceed in accordance with
law, that is to say under the Act of 1952 as mentioned
hereinbefore."
The majority concurred with the said opinion.
54. In the case at hand, the question of forum of trial does not
D arise. What is fundamentally argued is thatthe right of the appellants to
submit an application is abrogated. An attempt has been made to elevate
the same to a constitutional right. The right of an appeal and abrogation
thereof by a direction of this Court is totally different and that is the
principle which compelled the larger Bench to recall its order. They
E applied the principle of ex debito justitiae and passed the order
reproduced hereinabove.
55. Having adverted to the factual scenario, we have to understand
the obtaining situation. In the present context, a convict is not permitted
to submit an application under Section 433-A CrPC because of sentence
F imposed by a Court. There is no abrogation of any fundamental or
statutory right. If the imposition of sentence is justified, as a natural
corollary the principle of remission does not arise. The principle for
applying remission arises only after expiry of 14 years ifthe Court imposes
sentence of imprisonment for life. When there is exercise of expanded
option of sentence between imprisonment for life and death sentence, it
G comes within the sphere or arena of sentencing, We have already held
that the said exercise of expanded option is permissible as has been held
in many a judgment of this Court and finally by the Constitution Bench.
The said exercise, on a set of facts, has a rationale. It is based on a
sound principle. Series ofjudgments have been delivered by this Court
H stating in categorical terms that imprisonment for life means remaining
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 923
[DIPAK MISRA, J.]

of the whole period of natural life of the convict. The principle of exercise A
of expanded expansion has received acceptance because the Court when
it does not intend to extinguish the spark oflife of the convict by imposing
the death sentence. We have already discussed that facet earlier and
not accepted the submission to refer the matter to the larger Bench. We
have no hesitation in holding that the principles stated in A.R. Antulay
8
(supra) do not apply to the application to be preferred under Section
433-A CrPC, and, therefore, the judgment in V. Srilwrnn (supra) is a
binding precedent.
56. The next aspect that is required to be deliberated upon is the
factual score of the case that would include the genesis of crime, the
nature of involvement, the manner in which it has been executed, the C
antecedents of the appellants, the motive that has moved the appellants
to do away with a young life, the gravity and the social impact of the
crime, the suffering.ofthe family of the victim, the fear of the collective
when such a crime takes place, the category to which the High Court
has fitted it, after expressing its disinclination not to impose the death D
sentence and other connected factors.
57. It is submitted by the learned counsel for the appellants that
the imposition of fixed term sentence is highly disproportionate and
unjustified in the particular facts of the case, for as the conviction is
based on the circumstantial evidence and as per the materials brought E
on record only a single blow was inflicted not by any lethal weapon but
by a hammer. Though the High Court has referred to various aggravating
and mitigating circumstances, yet, it has misdirected itself by holding
that the motive of crime is "honour killing", That apart, the High Court
has taken into consideration the false plea ofalibi, intimidation of witnesses,
misleading of the police in the matter of recovery, intimidation of the F
public prosecutor, the factum ofabscondence, conviction in another case,
the inhuman treatment of the deceased, commission of murder while the
appellants had the trust of the deceased, the depravity of the mind,
reflection of cold bloodedness in commission of the crime, the brutality
that shocks the judicial conscience, absence of probability ofreformation G
of the convicts and such other aspects of which some are not relevant
and some have not been duly considered while imposing such harsh
punishment.
58. It is urged by them, the approach of the High Court dealing
with death penalty and arriving at the conclusion that the case is not a H
924 SUPREME COURT REPORTS [2016) 8 S.C.R.

A rarest of rare one has completely misdirected itself and, therefore, the
imposition of fixed term sentence is wholly unsustainable. They have
commended us to the authorities in Sltankar Kisanrao Kluule v. State
of Maltaraslttra-'4 , Oma alias Omprakaslt mu/ <motlier v. State of
Tamil Nadu-'-', Molt<!. Farooq Abdul Gafur and anotlter v. State of
Mallaraslttra-' 6, Mollinder Singh v. State of Punjab·" and Mangeslt
B
v. State of Maltaraslitra-'8•
59. Learned counsel for the State submits that the crime was
premeditated and diabolic in nature and the same is evincible from the
discussion of the judgment of conviction of the High Court and the said
findings are beyond assail as no leave has been granted in that regard
c and the Special Leave Petition has been dismissed. According to the
learned counsel for the State, the said findings which find place in the
judgment of conviction are not subject to criticism and can be relied
upon to describe the nature of commission of crime. Mr. Krishnan,
would further submit that the sentence imposed is not disproportionate.
D 60. On a careful scrutiny of the judgment of conviction, it is seen
that the High Court has taken note of the facts that the deceased Nitish
Katara and Bharti Yadav (sister of Vikas Yadav; first cousin sister of
Vishal Yadav and; daughter ofShri D.P. Yadav who was also the employer
ofSukhdev@Pehalwan) were in an intimate relationship aiming towards
E permanency; that the family members of Bharti Yadav, including Vikas
and Vishal Yadav, were opposed to this relationship; that the aversion
stemmed from the reason that Nitish Katara did not belong to the same
caste as that of Bharti Yadav, that his family belonged to the service
class and belonged to economically lower strata; that Vishal Yadav and
Sukhdev@ Pehalwan had not been invited to the wedding and had no
F reason for being there, other than perpetration of the crime; that Nitish
Katara was abducted from the wedding venue by the appellants with
the common intention to murder him; that in furtherance of their common
intention Nitish Katara was thereafter murdered by the appellants; that
after murdering Nitish Katara, the appellants removed his clothes, wrist
G watch and mobile from his person and set aflame his dead body with the
intention of preventing identification of the body and destroying evidence
,. (2013) s sec 546
"t20l3J 3 sec 440
"t2010) 14 sec 641
"(2013) 3 sec 294
"(2011) 2 sec 123
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 925
rrnPAK MISRA, J.l

of the commission of the offence; that immediately after the incident, A
the three appellants absconded; that the dead body ofNitish Katara was
found at 9.30 a.m. in the morning of l 7'h February, 2002 in a completely
burnt, naked and unidentifiable condition on the Shikharpur Road which
was recovered by the Khurja Police; that the body was having a lacerated
wound on the head, a fracture in the skull, laceration and hematoma in B
the brain immediately below the fracture; that Vikas and Vishal Yadav
deliberately misled the police and took them to three places in Alwar
(Rajasthan) to search for Tata Safari vehicle which was obviously not
there; that Vikas and Vishal Yadav jointly misled the police to the taxi
stand behind Shamshan Ghat( cremation ground) in Panipat to search
for the Tata Safari which was again not there, and, enroute to Chandigarh C
for the same purpose, got recovered the Tata Safari Vehicle bearing
registration No. PB-07H 0085 recovered from the burnt down factory
premises of Mis. A.B. Coltex Limited; that the appellant Sukhdev @
Pehalwan absconded for over three and half years despite extensive
searches, raids, issuance of coercive process, attachment even at his D
native village and that he could be arrested only on the 2J'd of February,
2005 after he fired at police patrol party.
61. From the aforesaid findings recorded by the High Court it is
vivid that crime was committed in a planned and cold blooded manner
with the motive that has emanated due to feeling of some kind uncalled
for and unwarranted superiority based on caste feeling that has blinded E
the thought of"choice available" to a sister - a representative of women
as a class. The High Court in its judgment of conviction has unequivocally
held that it is a "honour killing" and the said findings apart from being put
to rest, also gets support from the evidence brought on record. The
circumstantial evidence by which the crime has been established, clearly F
lead to one singular conclusion that the anger of the brother on the
involvement of the sister with the deceased, was the only motive behind
crime. While dwelling upon the facet of honour killing the High Court in
the judgment of conviction has held:-
"2023. The instant case manifests that even in a household G
belonging to the highest class in society, (one in which you
can make day trips with friends from Ghaziabad to Mumbai
just to celebrate a birthday; owns multiple businesses and
properties, luxury vehicles etc.) what can happen to even a
young, educated, articulate daughter if she attempted to
H
926 SUPREME COURT REPORTS [2016) 8 S.C.R.

A break away from the conventional caste confines and
explored a lifetime alliance with a member ofanother caste.
Especially one who was also perceived to be of a lesser
economic status.
2024. We have found that immediately after Shivani Gaur's
B wedding, Bharti was completely segregated and confined
by her family. On the I 7•h of February 2002 itself, she was
spirited away from her residence in Ghaziabad to Faridabad.
The police could record her statement under Section 161
of the Cr.P.C. only on the 2nd of March 2002 that too under
the eagle eye of her father, a seasoned politician. Shortly
c thereafter, she was sent out of India to U.K. and kept out
of court for over three and a half years. Her testimony is
evidence of the influence of her brothers and family as she
prevaricates over trivial matters and denies established facts
borne out by documentary evidence. Finally, when she must
D have been stretched to the utmost, she succumbs to their
pressures when she concedes a deviously put suggestion.
2025. Undoubtedly, the family ofNitish Katara has suffered
at his demise and thereafter. Having given our thought to
this issue, we are of the view that apart from the deceased
E and his family, there is one more victim in an "honour
killing"."
62. In this context we may refer with profit to the decision in
Lala SingIt v. State of U.P. and anotlter; 9 wherein it has been observed
that:-
F "The caste system is a curse on the nation and the sooner
it is destroyed the better. In fact, it is dividing the nation at
a time when We have to be united to face the challenges
before the nation unitedly. Hence, inter-caste marriages are
in fact in the national interest as they will result in destroying
G the caste system. However, disturbing news are coming
from several parts of the country that young men and women
who undergo inter-caste marriage, are threatened with
violence, or violence is actually committed on them. In our
opinion, such acts of violence or threats or harassment are
,. (2006) s sec 475
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 927
rmPAK MISRA, J.l

wholly illegal and those who commit them must be severely A
punished. This is a free and democratic country, and once
a person becomes a major he or she can marry whosoever
he/she likes."
Andagain:-
"We sometimes hear of"honour" killings of such persons B
who undergo inter-caste or inter-religious marriage of their
own free will. There is nothing honourable in such killings,
and in fact they are nothing but barbaric and shameful acts
of murder committed by brutal, feudal-minded persons who
deserve harsh punishment. Only in this way can we stamp c
out such acts of barbarism."
63. In Maya Kaur Baldevsingli Sardar and another v. State of
Maltaraslttra 60 this Court was constrained to observe thus:-
"26. We also notice that while judges tend to be extremely
harsh in dealing with murders committed on account of D
religious factors they tend to become more conservative
and almost apologetic in the case of murders arising out of
caste on the premise (as in this very case) that society should
be given time so that the necessary change comes about in
the normal course. Has this hands-off approach led to the E
creation of the casteless utopia or even a perceptible
movement in that direction? The answer is an emphatic
'No' as would be clear from mushrooming caste-based
organisations controlled and manipulated by self-appointed
commissars who have arrogated to themselves the right to
be the sole arbiters and defenders of their castes with the F
licence to kill and maim to enforce their diktat~ and bring in
line those who dare to deviate. Resultantly the idyllic
situation that we perceive is as distant as ever. In this
background is it appropriate that we throw up our hands in
despair waiting ad infinitum or optimistically a millennium G
or two for the day when good sense would prevail by a
normal evolutionary process or is it our duty to help out by
a push and a prod through the criminal justice system? We
feel that there can be only one answer to this question."
~· (2007) 12 sec 654
H
928 SUPREME COURT REPORTS [2016] 8 S.C.R.

A 64. In Arumugam Servai v. State of Tamil Nadu 61 , the Court
reiterated the principle stated in Lala Singlt(supra) and proceeded to
state that:-
"12. We have in recent years heard of "Khap Panchayats"
(known as "Katta Panchayats" in Tamil Nadu) which often
B decree or encourage honour killings or other atrocities in
an institutionalised way on boys and girls of different castes
and religion, who wish to get married or have been married,
or interfere with the personal lives of people. We are of the
opinion that this is wholly illegal and has to be ruthlessly
stamped out. As already stated in Lata Singh case3, there
c is nothing honourable in honour killing or other atrocities
and, in fact, it is nothing but barbaric and shameful murder.
Other atrocities in respect of personal lives of people
committed by brutal, feudal-minded persons deserve harsh
punishment. Only in this way can we stamp out such acts
D of barbarism and feudal mentality. Moreover, these acts
take the law into their own hands, and amount to kangaroo
courts, which are wholly illegal."
65. In Blta1:wan Dass v. State (NCT of Del/1i)62 the Court after
referring to Lata Singlt's case (supra) was in anguish to observe:-
E " ... .In our opinion honour killings, for whatever reason,
come within the category of the rarest of rare cases
deserving death punishment. It is time to stamp out these
barbaric, feudal practices which are a slur on our nation.
This is necessary as a deterrent for such outrageous,
F uncivilised behaviour. All persons who are planning to
perpetrate "honour" killings should know that the gallows
await them."
66. Be it stated, though the High Court treated the murder as
"honour killing", yet regard being had to other factors did not think
G appropriate to impose extreme penalty of death sentence. We may
hasten to clarify that we have highlighted the factum of''honour killing'',
as that is a seminal ground for imposing the fixed term sentence of
twenty-five years for the offences under section 302/34 IPG on the two
accused persons, who though highly educated in good educational
"' (2011) 6 sec 405
H "(2011) 6 sec 396
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 929
[DIPAK MISRA, J.]

institutions, had not cultivated the ability to abandon the depricable feel in gs A
and attitude for centuries. Perhaps, they have harboured the fancy that
it is an idea of which time had arrived from time immemorial and ought
to stay till eternity.
67. One may feel "My honour is my life" but that does not mean
sustaining one's honour at the cost of another. Freedom, independence, B
constitutional identity, individual choice and thought of a woman be a
wife or sister or daughter or mother cannot be allowed to be curtailed
definitely not by application of physical force or threat or mental cruelty
in the name of his self-assumed honour. That apart, neither the family
members nor the members of the collective has any right to assault the
boy chosen by the girl. Her individual choice is her self-respect and C
creating dent in it is destroying her honour. And to impose so called
brotherly or fatherly honor or class honor by eliminating her choice is a
crime of extreme brutality, more so, when it is done under a guise. It is a
vice, condemnable and deplorable perception of"honour", comparable
to medieval obsessive assertions. D
68. Apart from the issue of honour killing, the High Court has
also adjudicated to the brutal manner in which the crime has been
committed. Mr. Lal it, learned senior counsel has highlighted on infliction
of a single blow. The High Court appreciating the material brought on
record, has given a graphic description. E
69. The High Court has also taken note of the impact of post-
offence events and observed that the deceased was burnt to such a
point that his own mother could only suggest the identification from the
small size of one unburnt palm with fingers of the hand that the body
appeared to be that of her deceased son. The identification had to be F
confirmed by DNA testing. While imposing the sentence, the High Court
has been compelled to observe that the magnitude of vengeance of the
accused and the extent to which they had gone to destroy the body of
the deceased after his murder shows the brutality involved in the crime
and the maladroit efforts that were made to destroy the evidence. From
the evidence brought on record as well as the analysis made by the High G
Court, it is demonstrable about the criminal proclivity of the accused
persons, for they have neither the respect for human life nor did they
have any concern for the dignity of a dead person. They had deliberately
comatosed the feeling that even in death a person has dignity and when
one is dead deserves to be treated with dignity. That is the basic human H
930 SUPREME COURT REPORTS [2016] 8 S.C.R.

A right. The brutality that has been displayed by the accused persons clearly
exposes the depraved state of mind.
70. The conduct during the trial has also been emphasized by the
High Court because it is not an effect to protect one-self, but the arrogance
and the impunity shown in which they set up false defense and instilled
B shivering fear in the mind and heard of witnesses with the evil design of
defeating the prosecution case. In fact, as has been recorded by the
High Court, the public prosecutor was also not spared. The factum of
abscondance and non-cooperation with the investigating team and also
an maladroit effort to mislead the investigators have been treated as
aggravating circumstances on the basis of authorities in Praveen Kumar
c v State of Karnataka 63 and Yakub Abdul Razak Memon v State of
Maltaraslltra 64 •
71. The criminal antecedents of accused Vikas Yadav has been
referred to in detail by the High Court. He was prosecuted in "Jesica
Lal murder case" and convicted under Section 20 I/I 20-B IPC and
D sentenced to undergo rigorous imprisonment for four years and to pay a
fine ofRs.2000 and, in default, of payment of fine, to further undergo
imprisonment for three months. This Court in Sid/tart/ta Vasl1islit alias
Manu Sltarma v State (NCT of Delhi)6-' affirmed the conviction. The
conclusion reached while affirming the decision of the High Court, is as
E follows:-
"303. (9) The High Court has rightly convicted the other
two accused, namely, Amardeep Singh Gill @ Tony Gill
and Vikas Yadav after appreciation of the evidence of PWs
30and IOI."
F During the period, the said Vikas Yadav was on bail, he committed
the present crime.
72. Learned counsel for the appellants have submitted about the
conduct of the appellants in jail during their custody and have highlighted
that fourteen years in jail is of tremendous mental agony. In Maru Ram
G (supra), Krishna Iyer, J., to appreciate the despair in custody, thought it
apposite to reproduce the bitter expression, from the poem, namely, The
Ballad of Reading Gaol by Oscar Wilde. The poet wrote:-
63 (2003) 12 sec 199
"(2013) 13 sec 1
'"(2010)6SCC I
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 931
[DIPAK MISRA, J.l

"I know not whether Laws be right, A
Or whether Laws be wrong,
All that we know who lie in gaol
Is that the wall is strong;
And that each day is like a year, B

A year whose days are long."
(emphasis added)
In the said judgment, further lines from the poem have been
reproduced, which read thus:- C
"Something was dead in each of us,
And what was dead was Hope.
* * *
The vilest deeds like poison weeds D
Bloom well in prison air:
It is only what is good in Man"
Despite the aforesaid quotation in Maru Ram (supra), the Court
upheld the validity of Section 433-A. E
73. In V. Sriliaran (supra), the majority in the Constitution Bench
has succinctly stated thus:-
" As far as the argument based on ray of hope is concerned,
it must be stated that however much forceful the contention
may be, as was argued by Mr.Dwivedi, the learned senior F
counsel appearing for the State, it must be stated that such
ray of hope was much more for the victims who were done
to death and whose dependants were to suffer the aftermath
with no solace left. Therefore, when the dreams of such
victims in whatever manner and extent it was planned, with G
reference to oneself, his or her dependants and everyone
surrounding him was demolished in an unmindful and in some
case in a diabolic manner in total violation of the Ruie of
Law which is prevailing in an organized society, they cannot
be heard to say only their rays of home should prevail and
H
932 SUPREME COURT REPORTS [2016] 8 S.C.R.

A kept intact."
Andagain:-
"Therefore, we find no scope to apply the concept of ray
of hope to come for the rescue of such hardened, heartless
offenders, which if considered in their favour will only result
B in misplaced sympathy and again will be not in the interest
of the society. Therefore, we reject the said argument
outright."
The said conclusion meets the argument so assiduously propounded
by Mr. Lalit, learned senior counsel appearing forthe appellant.
c
74. The next contention that is canvassed pertains to non-application
of mind by the High Court while imposing the sentence, for two accused
persons have been sentenced for twenty-five years and Sukhdev, the
other appellant, has been sentenced to twenty years. The High Court,
while dealing with Vikas Yadav and Vishal Yadav has opined that they
D had misused the process oflaw while in jail and in their conduct there is
no sign of any kind of remorse or regret. As far as the Sukhdev is
concerned, the High Court has taken his conduct in jail which had been
chastened and punishment was imposed once. The High Court has
taken note of the fact that Sukhdev was the employee of the father of
E Vikas Yadav and he is a married man with five children and on account
of his incarceration, his family is in dire stress. A finding has been returned
that he is not a person of substantial means and has lesser paying capacity.
On the basis of these facts and circumstances, the High Court has drawn
a distinction and imposed slightly lesser sentence in respect ofSukhdev.

F 74A. Thus analyzed, we find that the imposition of fixed term
sentence on the appellants by the High Court cannot be found fault with.
In this regard a reference may be made to a passage from Guru
Bt1,.avaraj vs State of Karnataka 66 , wherein while discussing about
the co:icept of appropriate sentence, the Court has expressed thus:-
G "18 . .Just punishment is the collective cry of the society. While the
collective cry has to be kept uppermost in the mind, simultaneously the
principle of proportionality between the crime and punishment cannot be
totally brushed aside. The principle ofjust punishment is the bedrock of
sentencing in respect of a criminal offence. A punishment should not be
" (2013) 7 sec 545
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 933
[DIPAK MISRA, J.)

disproportionately excessive. The concept of proportionality allows a A
significant discretion to the Judge but the same has to be guided by
certain principles. In certain cases, the nature of culpability, the
antecedents of the accused, the factum of age, the potentiality of the
convict to become a criminal in future, capability of his reformation and
to lead an acceptable life in the prevalent milieu, the effect- propensity B
to become a social threat or nuisance, and sometimes lapse of time in
the commission of the crime and his conduct in the interregnum bearing
in mind the nature of the offence, the relationship between the parties
and attractability of the doctrine of bringing the convict to the value-
based social mainstream may be the guiding factors. Needless to
emphasise, these are certain illustrative aspects put forth in a condensed C
manner. We may hasten to add that there can neither be a straitjacket
formula nor a solvable theory in mathematical exactitude. It would be
dependent on the facts of the case and rationalized judicial discretion.
Neither the personal perception of a Judge nor self-adhered moralistic
vision nor hypothetical apprehensions should be allowed to have any D
play. For every offence, a drastic measure cannot be thought of. Similarly,
an offender cannot be allowed to be treated with leniency solely on the
ground of discretion vested in a court. The real requisite is to weigh the
circumstances in which the crimeincarcination meaning] has been
committed and other concomitant factors which we have indicated
hereinbefore and also have been stated in a number of pronouncements E
by this Court. On such touchstone, the sentences are to be imposed.
The discretion should not be in the realm of fancy. It should be embedded
in conceptual essence of just punishment."
75. Judged on the aforesaid parameters, we reiterate that the
imposition of fixed terms sentence is justified. F
76. The next submission pertains to the direction by the High Court
with regard to the sentence imposed under Section 201 to run
consecutively. Learned counsel for the appellants have drawn our
attention to the Constitution Bench decision in V. Srilwran (supra) .
The larger Bench was dealing with the following question:- G
"Whether consecutive life sentences can be awarded to a
convict on being found guilty of a series of murders for
which he has been tried in a single trial?"
77. Learned counsel appearing for the appellants have drawn out
H
934 SUPREME COURT REPORTS [20 I 6] 8 S.C.R.

A attention to the analysis whether a person sentenced to undergo
imprisonment for life when visited with the "term sentence" should suffer
them consecutively or concurrently. The larger Bench in that context
has held thus:-
"We do not, however, think so. The power of the Court to
B direct the order in which sentences will run is unquestionable
in view of the language employed in Section 31 of the Cr.P.C.
The Court can, therefore, legitimately direct thatthe prisoner
shall first undergo the term sentence before the
commencement of his life sentence. Such a direction shall
be perfectly legitimate and in tune with Section 31. The
c converse however may not be true for ifthe Court directs
the life sentence to start first it would necessarily imply
that the term sentence would run concurrently. That is
because once the prisoner spends his life in jail, there is no
question of his undergoing any further sentence."
D 78. In the instant case, the trial Court has imposed the life sentence
and directed all the sentences to be concurrent. The High Court has
declined to enhance the sentence from imprisonment for life to death,
but has imposed a fixed term sentence. It curtails the power of remission
after fourteen years as envisaged under Section 433-A. In such a situation,
E we are inclined to think that the principle stated by the aforesaid
Constitution Bench would apply on all fours. The High Court has not
directed that the sentence under Section 20 I /34 IPC shall run first and,
thereafter, the fixed term sentence will commence. Mr. Dayan Krishnan,
learned senior counsel appearing for the State has argued that this Court
should modify the sentence and direct that the appellants shall suffer
F rigorous imprisonment for the offence punishable under Section 201/34
!PC and, thereafter, suffer the fixed term sentences. Similar argument
hi!s been made in the written submission by the learned counsel for the
11! formant. As the High Court has not done it, we do not think that it will
be appropriate on the part of this Court in the appeal preferred by the
G appellants to do so. Therefore, on this score we accept the submission
of the learned counsel for the appellants and direct that the sentence
imposed for the offence punishable under Section 201/34 IPC shall run
concurrently with the sentence imposed for other offences by the High
Court.
H 79. The last plank of submission advanced by the learned counsel
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 935
[DIPAK MISRA, J.]

for the appellant pertains to imposition of fine by the High Court. The A
High Court has already given the reasons and also adverted to the paying
capacities. The concept of victim compensation cannot be marginalized.
Adequate compensation is required to be granted. The High Court has
considered all the aspects and enhanced the fine, determined the
compensation and prescribed the default clause. We are not inclined to B
interfere with the same.
80. Consequently, the appeals are disposed of with the singular
modification in the sentence i.e. the sentence under Section 201/34 !PC
shall run concurrently. Needless to say, all other se.ntences and directions
will remain intact.
c
Devika Gujral Appeals disposed of.