TaxTMI 
TaxTMI 
2008 (7) TMI 1131
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....acts of the case, would be imprisonment for life with life given its normal meaning and as defined in Section 45 of the Indian Penal Code. The Court may be of the view that the punishment of death awarded by the trial court and confirmed by the High Court needs to be substituted by life imprisonment, literally for life or in any case for a period far in excess of fourteen years. The Court in its judgment may make its intent explicit and state clearly that the sentence handed over to the convict is imprisonment till his last breath or, life permitting, imprisonment for a term not less than twenty, twenty five or even thirty years. But once the judgment is signed and pronounced, the execution of the sentence passes into the hands of the executive and is governed by different provisions of law. What is the surety that the sentence awarded to the convict after painstaking and anxious deliberation would be carried out in actuality? The sentence of imprisonment for life, literally, shall not by application of different kinds of remission, turn out to be the ordinary run of the mill life term that works out to no more than fourteen years. How can the sentence of imprisonment for life (til....
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....s a man's vile greed coupled with the devil's cunning; a woman's craving for a son, coupled with extreme credulity and gullibility and a daughter's deep and abiding love for her mother coupled with remarkable perseverance to see through the lies behind her mother's mysterious disappearance. But a man's life can not be decided in three sentences and we must see the prosecution case, as established up to this Court in some greater detail. 4. Shakereh, the deceased victim of the crime, came from a highly reputed and wealthy background. She was the grand daughter of Sir Mirza Ismail, a former Dewan of the Princely State of Mysore and the daughter of Mr. Ghulam Hussain Namaze and Mrs. Gauhar Taj Namaze. She held vast and very valuable landed properties in her own right. Among her various properties was a bungalow at No. 81, Richmond Road, Bangalore, constructed over nearly 38000 square foot of land that she had got in Hiba (oral gift) from her parent's side. Another was a large piece of land measuring 40,000 square foot on Wellington Street that she had got in dowry at the time of marriage. Shakereh was married to Mr. Akbar Khaleeli, a member of the Indian....
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.... relations with her daughters and her parents continued to be more or less as before. They met from time to time and kept in touch by speaking on the telephone at regular intervals. 8. Then by the end of May 1991, Shakereh suddenly and mysteriously disappeared. She was last met by her mother Mrs. Gauhar Namaze (examined before the trial court as PW-25) on 13 April, 1991. Her daughter, Sabah Khaleeli (examined as PW-5) last spoke to her on telephone on 19 April, 1991 and according to the two servants, Raju and Josephine (PWs-18 & 19 respectively), they last saw her in the company of the appellant in the morning of 28 May, 1991. Thereafter, Shakereh was not seen or spoken to by anyone. At that time she was about forty years old. 9. When Sabah did not receive any call from her mother nor was she able to get through to her on telephone she enquired about her from the appellant who said that she had gone to Hyderabad. In June 1991, when she contacted again he told her that her mother had gone to Kutch to attend the wedding of a wealthy diamond merchant. A week later he told her that Shakereh was keeping a low profile due to some income tax problems. Exasperated by the evasive and ....
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.... killing and disposing of her body. He stated that he put the body of Shakereh inside a large wooden box (that he had earlier got made for the purpose) and got the box dropped into a pit (that he had got specially dug up) in the grounds of 81 Richmond Road just outside their common bed- room. He then got the pit filled up by earth and the ground-surface cemented and covered up with stone slabs. He volunteered to take the Investigating Officer (IO) to the place and identify the exact spot where Shakereh lay buried inside the wooden box. The appellant made the following statement before the IO on 28 March 1994. If I am taken I will show the place where the wooden box was prepared and the person who prepared it, the persons who transported the box and the people who helped in digging out the pit and the crow bar, spade, pan used for digging pit, the cement bags and the spot where Shakereh is buried and I exhume the dead body of the deceased and show you. The statement what all I had earlier given to Ashok Nagar police was a false statement given intentionally just to escape myself. The IO then obtained an exhumation order from the Magistrate and after completing the other ....
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....a clearing through which the wooden box containing Shakereh's body was pushed out of the room and into the pit. He also produced before the IO pills of eight different kinds and the cheque books of different bank accounts. 16. The other aspect of the case is equally significant in that it provides the motive for the murder. It came to light during investigation that after Shakereh disappeared (or, in retrospect, was killed by the appellant) he went about selling off her properties as fast as possible. On 30 and 31 March, 1992, in two days, the appellant sold 34 plots carved out of Shakereh's properties to various people under registered sale- deeds using the General Power of Attorney executed by her in his favour. The joint bank accounts were simply used to deposit large sums being the sale proceeds of the lands sold by him and to withdraw the amounts as soon as those were credited to the account. Needless to say that from May 1991, it was the appellant alone who operated the joint bank accounts. He also literally cleaned out the bank lockers that Shakereh had taken in their joint names. 17. In all the meetings of the S. S. Housing Company, he represented the presence....
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....g information in the morning regarding a death in their family in a village in Andhra Pradesh asked permission for leave and some money in advance. However, before giving them the money asked for and letting them go, the appellant got the large wooden box brought from the guest house to the bedroom by Raju (with the help of three or four other persons called for the purpose) where, according to Raju, he saw Shakereh (for the last time) lying on the bed, deep in sleep. After the servants had gone away and the field was clear the appellant transferred Shakereh along with the mattress, the pillow and the bed sheet from the bed to the box, in all probability while she was still alive. He then shut the lid of the box and pushed it through the opening made in the wall into the pit, dug just outside the room, got the pit filled up with earth and the surface cemented and covered with stone slabs. 21. What the appellant did after committing murder of Shakereh was, according to Mr. Hegde even more shocking. He continued to live, like a ghoul, in the same house and in the same room and started a massive game of deception. To Sabah, who desperately wanted to meet her mother or at least to t....
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....d to be drawn into making any standardisation or categorisation of cases for awarding death penalty? It was strongly urged before the Court that in order to save the sentence of death from the vice of arbitrariness it was imperative for the Court to lay down guide lines, to mark and identify the types of murder that would attract the punishment of death, leaving aside the other kinds of murder for the lesser option of the sentence of imprisonment for life. In Jagmohan the Court turned down the submission observing (in paragraph 25 of the judgment) as follows: In India this onerous duty is cast upon Judges and for more than a century the Judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter of sentence is as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion ....
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.... of death sentence. In the lengthy discussion on the issue, the Court gave over half a dozen different reasons against the argument urging for standardisation and categorisation of cases; it also cited the American experience to show the futility of any such undertaking. A perusal of that part of the judgment shows that a very strong plea was made before the Court for standardisation and categorisation of cases for the purpose of death sentence. Nonetheless the Court remained resolute in its refusal to undertake the exercise. In this regard the court agreed with the view earlier taken in Jagmohan and observed that it was not possible to make an exhaustive enumeration of aggravating or mitigating circumstances which should be taken into consideration when sentencing an offender. It extracted the passage from Jagmohan that quoted with approval the observation from an American decision in McGautha v. California (1971) 402 US 183 The infinite variety of cases and facets to each case would make general standards either meaningless `boiler plate' or a statement of the obvious that no Jury/Judge would need. It also reiterated the observation in Jagmohan that such "standard....
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....han, this Court had held that this sentencing discretion is to be exercised judicially on well-recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By "well-recognised principles" the Court obviously meant the principles crystallized by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan - as we have discussed already - do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also. Earlier in the judgment while reaffirming Jagmohan, subject of course to certain adjustments in view of the legislative changes (section 354(3) the Court observed: The expression "special reasons" in the context of this prov....
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....or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance: I. Manner of commission of murder When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for commission of murder When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property o....
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.... Singh was rendered on 20 July, 1983, nearly twenty five years ago, that is to say a full generation earlier. A careful reading of the Machhi Singh categories will make it clear that the classification was made looking at murder mainly as an act of maladjusted individual criminal(s). In 1983 the country was relatively free from organised and professional crime. Abduction for Ransom and Gang Rape and murders committed in course of those offences were yet to become a menace for the society compelling the Legislature to create special slots for those offences in the Penal Code. At the time of Machhi Singh, Delhi had not witnessed the infamous Sikh carnage. There was no attack on the country's Parliament. There were no bombs planted by terrorists killing completely innocent people, men, women and children in dozens with sickening frequency. There were no private armies. There were no mafia cornering huge government contracts purely by muscle power. There were no reports of killings of social activists and `whistle blowers'. There were no reports of custodial deaths and rape and fake encounters by police or even by armed forces. These developments would unquestionably find a mor....
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....re the Court. But to look at a case in this perspective this Court has hardly any field of comparison. The court is in a position to judge `the rarest of rare cases' or an `exceptional case' or an `extreme case' only among those cases that come to it with the sentence of death awarded by the trial court and confirmed by the High Court. All those cases that may qualify as the rarest of rare cases and which may warrant death sentence but in which death penalty is actually not given due to an error of judgment by the trial court or the High Court automatically fall out of the field of comparison. More important are the cases of murder of the worst kind, and their number is by no means small, in which the culprits, though identifiable, manage to escape any punishment or are let off very lightly. Those cases never come up for comparison with the cases this Court might be dealing with for confirmation of death sentence. To say this is because our Criminal justice System, of which the court is only a part, does not work with a hundred percent efficiency or anywhere near it, is not to say something remarkably new or original. But the point is, this Court, being the highest cour....
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.... matter of fact. 32. The same point is made in far greater detail in a report called, "Lethal Lottery, The Death Penalty in India" compiled jointly by Amnesty International India and Peoples Union For Civil Liberties, Tamil Nadu & Puducherry. The report is based on the study of Supreme Court judgments in death penalty cases from 1950 to 2006. One of the main points made in the report (see chapter 2 to 4) is about the Court's lack of uniformity and consistency in awarding death sentence. 33. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the judges constituting the bench. 34. 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 results. On the one hand there appears a small band of cases in which 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 whi....
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....y is simply not acceptable to this Court. What then is the answer? The answer lies in breaking this standardisation that, in practice, renders the sentence of life imprisonment equal to imprisonment for a period of no more than 14 years; in making it clear that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court. This Court, therefore, must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but also by the High Courts, being the superior Courts in their respective States. A suggestion to this effect was made by this Court nearly thirty years ago in Dalbir Singh and Ors. v. State of Punjab 1979CriLJ1058 . In paragraph 14 of the judgment this Court held and observed as follows: 14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the ....
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....r for imprisonment of Krishan Lal for the remaining period of his life. This Court took note of the counsel's submission as follows: Faced with the situation Mr. U.R. Lalit, Senior Counsel appearing for the aforesaid respondents submitted that instead of depriving Krishan Lal (A-1) of his life, the Court can pass appropriate order to deprive the aforesaid accused person of his liberty throughout his life. Upon instructions, the learned Senior Counsel submitted that the said Krishan Lal, if sentenced to life imprisonment would never claim his premature release or commutation of his sentence on any ground. We record such a submission made on behalf of the said accused, upon instructions. (Emphasis added) This Court accepted the plea made by the counsel and passed the following order: However, in the peculiar circumstances of the case, apprehending imminent danger to the life of Subhash Chander and his family in future, taking on record the statement made on behalf of Krishan Lal (A-1), we are inclined to hold that for him the imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall not be entitled to any commutation or p....
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....llant claimed to be joint family property. In the totality of circumstances this Court set aside the death sentence awarded to the appellant but directed that for the murders committed by him, he would suffer imprisonment for life and further that he would not be released from prison until he had served out at least 20 years of imprisonment including the period already undergone by him. For giving such a direction, the court referred to the decisions in Shri Bhagwan (supra) and Dalbir Singh v. The State of Punjab 1979CriLJ1058 . 43. In Ram Anup Singh and Ors. v. State of Bihar 2002CriLJ3927, there were a father and his two sons before this Court. They had killed the father's brother, the brother's wife, his daughter and his son-in-law. On conviction for the murders the father was sentenced to life imprisonment but the two sons were given the death penalty. This Court once again interfered and set aside the death sentence awarded by the trial court and confirmed by the High Court to the two sons and instead sentenced them to suffer rigorous imprisonment for life with the condition that they would not be released before completing an actual term of 20 years including the p....
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....isions of Terrorist and Disruptive Activities (Prevention) Act (TADA) with different terms of imprisonment for those offences. This Court, however, commuted the death sentence of the three appellants but having regard to the gravity of the offences and the dastardly nature of their acts directed for their incarceration for a period of 20 years with the further direction that the accused-appellants would not be entitled to any remission from the term of 20 years. Reference was made to the earlier decisions in Ashok Kumar v. Union of India 1991CriLJ2483 and Sat Pal v. State of Haryana 1993CriLJ314 . 48. On a perusal of the seven decisions discussed above and the decisions referred to therein it would appear that this Court modified the death sentence to imprisonment for life or in some cases imprisonment for a term of twenty years with the further direction that the convict must not be released from prison for the rest of his life or before actually serving out the term of twenty years, as the case may be, mainly on two premises; one, an imprisonment for life, in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for the rest of life of the prisoner and ....
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....priate government' would formalize the matter by passing an appropriate order under Section 433(c) of the Code of Criminal Procedure. This Court, on appeal by the State, held that the question of remission lay within the domain of the appropriate government and it was not open to the High Court to give a direction of that kind. In the case of Prem Raj the Court referred to two earlier decisions in Delhi Administration v. Manohar Lal 2002CriLJ4295 and State of Punjab v. Kesar Singh 1996CriLJ3586 and in paragraph 13 of the decision observed as follows: An identical question regarding exercise of power in terms of Section 433 of the Code was considered in Delhi Admn. (now NCT of Delhi) v. Manohar Lal. The Bench speaking through one of us (Doraiswamy Raju,J.) was of the view that exercise of power under Section 433 was an executive discretion. The High Court in exercise of its revisional jurisdiction had no power conferred on it to commute the sentence imposed where a minimum sentence was provided for the offence. In State of Punjab v. Kesar Singh this Court observed as follows [though it was in the context of Section 433(b)]: (SCC pp.595-96, para 3) The mandate o....
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....espectively. Section 55A defines "appropriate Government". Section 57 provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. It is now conclusively settled by a catena of decisions that the punishment of imprisonment for life handed down by the Court means a sentence of imprisonment for the convict for the rest of his life. (See the decisions of this Court in Gopal Vinayak Godse v. The State of Maharashtra and Ors. 1961CriLJ736a (Constitution Bench); Dalbir Singh and Ors. v. State of Punjab 1979CriLJ1058 ; Maru Ram v. Union of India 1980CriLJ1440 (Constitution Bench); Naib Singh v. State of Punjab 1983CriLJ1345 ; Ashok Kumar alias Golu v. Union of India 1991CriLJ2483 ; Laxman Naskar (Life Convict) v. State of W.B. 2000CriLJ4017 ; Zahid Hussein v. State of West Bengal 2001CriLJ1692 ; Kamalanantha v. State of Tamil Nadu AIR2005SC2132 ; Mohd. Munna v. Union of India 2005CriLJ4124 and C.A. Pious v. State of Kerala 2007CriLJ4697 ). 55. It is equally well-settled that Section 57 of the Penal Code does not in any way limit the punishment of imprisonment for life to a term of twenty years. Se....
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.... jail the prisoners are given some days' remission on a monthly, quarterly or annual basis. The days of remission so earned by a prisoner are added to the period of his actual imprisonment (including the period undergone as an under trial) to make up the term of sentence awarded by the Court. This being the position, the first question that arises in mind is how remission can be applied to imprisonment for life. The way in which remission is allowed, it can only apply to a fixed term and life imprisonment, being for the rest of life, is by nature indeterminate. 59. Mr. U. U. Lalit, learned Counsel appearing for the Informant, suggested that for applying remission to a sentence of imprisonment for life it would be necessary to first commute the sentence to a fixed term, say for a term of 20 years and then to apply the remissions earned by the prisoner to the commuted period and that would work out to 14 years of actual incarceration. 60. To throw light on the question Mr. Hegde submitted a note on remission of sentences of imprisonment as followed in the State of Karnataka, with specific reference to the facts of this case. The note also encloses the relevant extracts from....
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....ral of Prisons who later forwards them to the Government for passing final orders. That is how the sentence of life imprisonment is commuted for a term of 20 years or less as per provisions of Sections 54 and 55 of the IPC and Section 433A Cr. P. C. It is further stated in the note as follows: Experience shows that in respect of life convicts an assumption can be made that the total sentence is 20 years and if the convict earns all categories of remissions in the normal course it may come to 6 years which is less than one third of 20 years. This is also in consonance with Order 214(C) of the Prisons Manual which for the purposes of the rules deems a sentence of imprisonment for life to be a sentence of imprisonment for twenty years. [Emphasis added] In the note, it is further stated that in the event the appellant's sentence is modified to life imprisonment, his case for premature release would come up before the Advisory Board in January 2009. The Board shall then make its recommendation in light of the instructions contained in Chapter XLIV of the Karnataka Prisons Manual. The recommendation of the Board will be examined by the Head of the Department a....
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....eemed conversion of life imprisonment into one for fixed term by executive orders issued by the State Governments apparently flies in the face of a long line of decisions by this Court and we are afraid no provision of law was brought to our notice to sanction such a course. It is thus to be seen that life convicts are granted remission and released from prison on completing the fourteen year term without any sound legal basis. One can safely assume that the position would be no better in the other States. This Court can also take judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any sociological or psychiatric appraisal of the convict and without any proper assessment as to the effect of the early release of a particular convict on the society. The grant of remission is the rule and remission is denied, one may say, in the rarest of the rare cases. 64. Here, it may be noted that this has been the position for a very long time. As far back as in 1973, in Jagmohan Singh (supra) a Constitution Bench of this Court made the following observation: In the context of our criminal law which punishes murderer, one cannot....
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....the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term. If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. X X X A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life. The Court further observed thus: But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act....Under the said rules the order of an appropriate Govern....
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....ra 1961CriLJ736a, the court reiterated that sentence for "imprisonment for life" ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitled the convict to be released automatically before the full life term if served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose. The legal position as enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Mau Ram, Ratan Singh and Shri Bhagwan and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to....