Paragraph numbers below are the court’s original numbering, recovered from the source text.
51. Recently, the Privy Council in Reyes v. R. (2002) UKPC 11 : 12 BHRC 219 and Hughes, R. v. (Saint Lucia) (2002) UKPC 12, noticing the decision of this Court in Mithu v. State of Punjab, [ 1983] 2 SCR 6903, opined that the mandatory death punishment is unconstitutional. {See also Fox v. The Queen (2002) 2 AC 284, Bowe v. The Queen (2006) I WLR 1623 and Coard & Ors. v. The Attorney General (Grenada), (2007) UKPC 7].
52. Abolition of death penalty is not being and, in fact, cannot be advocated; but what requires serious consideration is as to whether the jurisdiction should not be invoked unless there exists an extra-ordinary situation G to find that it comes within the purview of "rarest of rare" cases. The approach of the courts should not be to confine its thought process to the identification of a "rare" case. The expression "rarest of rare" case has been evolved by a Constitution Bench of this Court and, thus, demands a meaningful application. (2007) 7 S.C.R. · t
53. It is interesting to note that Bhagwati, J. in Bachan Singh v. State of Punjab, [ 1982] 3 SCC 24, while expressing his dissenting opinion, noticed f ~1 as under : " … This arbitrariness in the imposition of death penalty is considerably accentuated by the fragmented Bench structure of our courts where Benches are inevitably formed with different permutations and· combinations from time to time and cases relating to the offence of murder come up for hearing sometimes before one Bench, sometimes before another sometimes before a third and so on. Professor Blackshield has in his article on Capital Punishment in India published c in Volume 21 ot the Journal of the Indian Law Institute pointed out how the practice of Bench formation contributes to arbitrariness in the imposition of death penalty. It is well known that so far as the Supreme Court is concerned, while the number of Judges has increased over the years, the number of Judges on Benches which hear capital punishment cases has actually decreased. Most cases are now heard by two-Judge Benches. Professor Blackshield has abstracted 70 cases in which the Supreme Court had to choose between life and death while sentencing an accused for the offence of murder and analysing ,_ these 70 cases he has pointed out that during the period April 28, 1972 to March 8, 1976 only 11 Judges of the Supreme Court participated in 10 per cent or more .:>f the cases. He has listed these 11 Judges in an ascending order of leniency based on the proportion for each Judge of plus votes (i.e. votes for the death sentence) to total votes and pointed out that these statistics show how the judicial response to the question of life and death varies from judge to judge. It is significant to note that out of 70 cases analysed by Professor Blackshield, 37 related to the period subsequent to the coming into force of Section 354, sub-section (3) of the Code of Criminal Procedure, 1973. If a similar exercise is performed with reference to cases decided by the Supreme Court after March 8, 1976, that being the date up to which the survey carried out by Professor Blackshield was limited, the analysis will reveal the same pattern of incoherence and arbitrariness, the decision to kill or not to kill being guided to a large extent by the composition of the Bench. Take for example Rajendra Prasad case decided on February 9, 1979. In th is case, the death sentence imposed on Rajendra Prasad was commuted to life imprisonment by a majority , / 1~~ consisting of Krishna Iyer, J. and Desai, J., A.P. Sen, J. dissented and was of the view that the death sentence should be confirmed. Similarly SWAMY SHRADDAl\A~DA (!!! MURALI MA1'0HAR MISHRA "· ST A TE OF KARNAT AKA [S.B.
SINHA. J.) 64 5 in one of the cases before us, namely, Bachan Singh v. State of A Punjab, when it was first heard by a Bench consisting of Kailasam and Sarkaria, JJ., Kailasam, J. was definitely of the view that the majority decision in Rajendra Prasad case9 was wrong and that is why he referred that case to the Constitution Bench. So also in Dalbir Singh v. State of Punjab, the majority consisting of Krishna Iyer, J. and Desai, J. took the view that the death sentence imposed on Dalbir B Singh should be commuted to life imprisonment while A.P. Sen, J. stuck to the original view taken by him in Rajendra Prasad case 9 and was inclined to confirm the death sentence, It will thus be seen that the exercise of discretion whether to inflict death penalty or not depends to a considerable extent on the value system and social C philosophy of the Judges constituting the Bench … "
54. We are not oblivious of a line of decisions of this Court where the doctrine of proportionality has been applied, even in the matter of awarding death penalty. [See State of Rajasthan v. Kheraj Ram, [2003] 8 SCC 224, Bablu @Mubarik Hussain v. State ofRajasthan, [2006] 14 SCALE 15 and Shivu and D Anr. v. R.G. High Court of Karnataka and Anr .. [2007] 3 SCALE 157]
55. In this case we need not go into the correctness or otherwise of the said view. Although it is also not necessary to do so, we may notice some development of law in this regard.
56. Criminal Justice Act 1991 of England famously hailed doctrine of proportionality as the guiding principle. But since the 199 I legislation, field of sentencing has seen much reform and Criminal Justice Act of2003 presents a fresh set of sentencing objectives. Section 142 of the Act delineates the following as the purposes of sentencing: "142 Purposes of sentencing (1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing- (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (2007) 7 S.C.R. (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences."
57. In this context, a reference should also be made of the Halliday B Report of2001 (Making Punishments Work) which has some interesting insights to offer on the sentencing structure in England and Wales. In the same vein, a White Paper in 2002 has made a case of reforms and suggested a shift from the proportionality principle.
58. In fine, scholarship on sentencing which has been quite diverse in C its prescriptions certainly has consensus on the point that any decision Qn sentencing aspect would require assessing more than one variables and single minded pursuit of any one sentencing ideal would be discounting on other equally urgent parameters and objectives.
59. We do not have a sentencing policy, unlike some other countries. D England has the concept of "guideline judgments" which is considered as a judge managed sentencing model rather than a statute induced one. Section 354 (3) suggests that Indian law furthers statute induced sentencing guidance in part. Therefore it has to be given full colour.
60. We have no practice of referring such matters to superior courts for E laying down the guidelines relating to imposition of sentence under various situations. [See The Queen v. Julie McGinley and Michael Monaghan, (2003) NICC I]
61. In our country, therefore, each case may have to be considered on F its own merit.
62. It may be of some interest to note that Furman v. Georgia [408 U.S. 238 (1972)] ruled on the requirement for a degree of consistency in the application of the death penalty. Justice Stewart held that: "The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute SW A~IY SHRADDAl'ANDA ii!! MURALI MANOHAR MISHRA v. STATE OF KARNA T AKA [S.B. SINHA. l ] 64 7 renunciation of all that is embodied in our concept of humanity. ….. • •••••••• These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in l 967 and l 968, many just as B reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed."
63. Justice Brennan while interpreting Eighth Amendment (Amendment VIII: (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted) of US Constitution observes in c Furman: "In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause – that the State must not arbitrarily inflict a severe punishment. This principle D derives from the notion that the State does not respect human dignity …. when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words "cruel and unusual punishments" imply condemnation of the arbitrary infliction of severe punishments."
64. It is important to refer to Harbans Singh v. Union of India AIR ( 1982) SC 849 at this juncture. In that case three people were sentenced to death by the trial court for playing an equal part in jointly murdering a family of four persons. The sentence of all the three was confirmed by the High Court. Each of them moved to the Supreme Court by different Special Leave F Petitions before three separate benches. One of the accused's petition was dismissed and he was actually executed. Another's petition was allowed and his death sentence was commuted to life imprisonment. And the petition of the third one was also dismissed. He filed a review petition, which was also dismissed, and the Executive refused clemency. He then moved another petition before the Supreme Court bringing to light this arbitrariness. The Supreme G Court recommended the President to commute his sentence. Chandrachud J. while lamenting the death of dead accus~d said: .. ~ "The fate of Jeeta Singh has a posthumous moral to tell. He cannot profit by the direction which we propose to give because he is now beyond the process of human tribunals." (2007) 7 S.C.R.
65. Bentham's discourse on determination of minimum punishment and maximum punishment serves as a yardstick in this context. Bentham in his landmark treatise Principles of Penal Law propose to establish a proportion between crimes and punishments. But he cautions against an oracular understanding than an instructive one. We here further go in the details of what doctrine of proportionality holds in the realm of sentencing. The first B rule of proportionality mandates: c "The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence." While talking of minimum punishment Bentham observes: "Punishments may be too small or too great; and there are reasons for not making them too small, as well as not making them too great. The terms minimum and maximum may serve to mark the two extremes of this question, which require equal attention. With a view of marking out the limits of punishment on the side of the first of these extremes, we may lay it down as a rule:- That the value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence. By the profit of the crime, must be understood not only pecuniary profit, but every advantage real or apparent, which has 9perated as a motive to the commission of the crime."
66. It is to be appreciated here that statutorily decided minimum sentence takes into account the basic value of the crime and suffice to outweigh the profit of the offence. The moot question relates to parameters to decide the maximum punishment. Setting the trail of caution on the side of determination of maximum punishment Bentham posits: "Punishment, whatever shape it may assume, is an evil… The minimum of punishment is more clearly marked than its maximum. What is too little is more clearly observed than what is tuo much. What is not sufficient is easily seen, but it is not possible so exactly to distinguish an excess. An approximation only can be attained. The · irregularities in the force of temptations, compel the legislator to increase his punishments till they are not merely sufficient to restrain the ordinary desires of men; but also the violence of their desires -."( ,_. r SW A.'\IY SHRADDANANDA@ MURALI MANOHAR MISHRA v. STA TE OF KARN AT AKA [S.B. Sll\llA. J.] 649 … ' when unusually excited. The greatest danger lies in an error on the minimum side, because in this case the punishment is inefficacious; but this error is least likely to occur, a slight degree of attention sufficing for its escape; and when it does exist, it is at the same time clear and manifest, and easy to be remedied. An error on the maximum side, on the contrary, is that B to which legislators and men in general are naturally inclined-antipathy, or a want of compassion for individuals who are represented as dangerous and vile, pushes them onward to an undue severity. It is on this side therefore, that we should take the most preparations, as on this side there has been shown the greatest disposition to err." c
67. On the same point Beccaria in his historic work Of Crimes and Punishments denounced retributive basis of punishment. "The aim of punishment can only be to prevent the criminal committing new crimes against his countrymen, and to keep others from doing likewise. Punishments, therefore, and the method of inflicting them, D should be chosen in due proportion to the crime so as to make the most efficacious and lasting impression on the minds of men, and the least painful impressions on the body of the criminal. For a punishment to be efficacious, it is enough that the disadvantage of the punishment should exceed the advantage anticipated from the E crime; in which excess should be calculate the certainty of punishment and the loss of the expected benefit. Everything beyond this, accordingly, is superfluous, and therefore tyrannical."
68. There is a clear and discernible necessity of caution to set the maximum punishment in an offence. And also by implication there must be intensive and exhaustive inquiry into accused related parameters before employing the maximum sentence by a court of law. Therefore discretion to the judiciary in this respect (to declare the maximum punishment) is ofutmost critical and seminal value. Reasons must be detailed setting clearly why any punishment other than the maximum punishment will not suffice. This is a G general and age-old rule of sentencing which has been statutorily recognized under section 354(3).
69. Reference to the decision of other jurisdictions and/or the recent trend in the international fora has not been referred to by way of precedents or even a persuasive value but the court in this age cannot afford to put down H (2007) 7 S.C.R. A blinkers on its window to the outside world. c
70. It is noteworthy to mention here the Law Commission in its Report of 1967 took the view that capital punishment acted as a deterrent to crime. While it conceded that statistics did not prove these so-called deterrent effects. It also said that figures did not disprove them either.
71. Tracing the judicial vie 'I on Death Penalty, one can start with the Jagmohan Singh case (1973) where it agreed with the Law Commission that capital punishment should be retained. But subsequent cases such as those of Ediga Anamma (1974) and Rajendra Prasad (1979) saw dissenting voices being raised in this court. These led to a hearing of the Bachan Singh ( 1980) case by a Constitutional Bench.
72. In Rajendra Prasad v. State of U.P. [1979] 3 SCR 646, it was held that the special reasons necessary for imposing a de_ath penalty must relate not to the crime .but to the criminal. It could be awarded only if the security of the state· and society, public order in the interest of the general public compelled that course.
73. The death penalty was abolished in 1965 in the U.K. Member-states of the European Union cannot have the death penalty. In Canada, after the abolition of the death penalty in 1976, the homicide rate declined. In 2000, there were 542 homicides in Canada – 16 fewer than in 1998 and 159 fewer than in 1975 (one year prior to the abolition of capital punishment). In 1997, the Attorney-General of Massachusetts said: "there is not a shred of credible evidence that the death penalty lowers the murder rate. In fact, without the death penalty the murder rate in Massachusetts is about half the national average."
74. The South African Constitutional Court unanimously ruled in 1995 that the death penalty for murder violated the country's Constitution. More than 118 countries have abolished the death penalty either in law or practice. The second optional protocol to the International Civil.Covenant, which came into force in 1991, mandates the abolition of the death penalty.
75. Whatever may be the "merits", "demerits" or "criticism", one cannot hope for unjustness in society. Deterring or preventive theory may not have . any application at all in respect of imposition of death sentence. The law itself mandates that for imposing death sentence, special reasons are to be assigned. Imposition of death punishment is an exception in terms of sub-section (3) …<( f ….. SW AMY SHRADDANANDA@ MURALI MANOHAR MISHRA •·. ST ATE OF KARNA TAKA [S.B. SINHA. J.j 651 of Section 354 of the Code of Criminal Procedure. Whereas for commission A . of other offences, one or other theory, justly or otherwise may be taken recourse to, a large number of factors are required to be borne in mind for awarding death penalty.
76. In Renuka Bai alias Rinku alias Rotan and Anr. v. State of Maharashtra, [2006] 7 sec 442, Balakrishnan, J. (as the teamed Chief Justice B then was) while imposing a death sentence in a case where the appellants had kidnapped seven children and committed their murder in a most ,dastardly manner also noticed: "36 … We have carefully considered the whole aspect of the case and are also alive to the new trends in the sentencing system in C criminology … " (Emphasis .supplied)
77. Similarly in Bhimashya and Ors. v. Smt. Janabi @Janawwa, [2006) 14 SCALE 27, Dr. Pasayat, J. took into consideration the overall global view D imparting death penalty.
78. This new trend, thus, must be taken into consideration only for awarding appropriate punishment.
79. We may also note that in Ram Singh v. Sonia & Ors., [2007) 3 SCALE 106 imposition of a death penalty has been upheld in the case where the accused had not only put an end to the life of her step brother and his whole family which included three tiny tots of 45 days, 2 – 1/2 years and 4 years but also her own father, mother and sister in a very diabolic manner so as to deprive her father from giving the property to her step brother and his family. It was, in the aforementioned extraordinary situation, held: " … The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims' side indicates the cold- blooded and premeditated approach of the accused to cause death of G the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the c;ct was diabolic of most superlative degree in conception and cruel in execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mind set which can be amenable for any reformation … " (Emphasis supplies)
80. Yet again, another Division Bench of this Court in Shivu (supra) has B upheld the death penalty where the accused was charged with Sections 302 and 376 read with Section 34 of the Indian Penal Code. In that case, the repeated attempts were made by two accused aged 20 and 22 years to commit rape on Lakkamma, daughter of one Puttegowda (PW-7). They were caught but only had been admonished. Yet again, they attempted to commit rape on PW-10 who was the daughter of Jayamma (PW-I). The accused persons, C however, escaped any punishment even then at the instance of village elders and their family members and instead Panchayat of village elders was called on each occasion and accused were directed to mend their ways. The court found that emboldened by the escapes from punishment in those two incidents, the accused committed rape on the deceased a young girl of hardly 18 years D and to avoid detection committed heinous and brutal act of her murder.
81. It would, therefore, appear that cases where death penalty is upheld are those where murder was committed of a large number of persons or by more than one person in a brutal or systematic manner.
82. Bhagwati, J. in his dissenting opinion in Bachan Singh (supra) pointed out one; A/oke Nath Dutta (supra) has also pointed out other instances.
83. With utmost respect, I am of the opinion that the doctrine of proportionality which is often referred to in the judicial pronouncements in p regard to the sentencing policy required to be judicially adopted should not apply in a case of imposition of capital punishment. Precedent should not be contrary to Parliamentary law; far less the decision of a Constitution bench of this €ourt.
84. We may, however, notice that the question in regard to the death G penalty again came up for consideration before this Court iit Acharaparambath Pradeepan & Anr. v. State of Kera/a, [2006] 13 SCALE 600 and Bishnu Prasad Sinha and Anr. v. State of Assam, [2007] 2 SCALE 42 wherein Aioke Nath Dutta (supra) was reiterated.
85. In Bishnu Prasad Sinha (supra), it was observed : f …. SWAMY SHRADDANANDA@MURALI MANOHARMISHRA "·STATE Of KARNATAKA (SB. SINHA. I] 653 "The question which remains is as to what punishment should be A …. -\ awarded. Ordinarily, thi,s Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, B death penalty would not be awarded. Moreover, the appellant No.1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt." (See also Amarjit Singh v. State of Punjab, AIR (2006) SCW 5712) c
86. We may, however, hasten to add that no universal rule is meant to be laid down as even in Bishnu Prasad Sinha (supra), the word "ordinarily" has been used. There may be cases and cases where even on circumstantial evidence, a death penalty may be imposed.
87. In Sahdeo & Ors. v. State of UP. (2004] 10 SCC 682, this Court D opined: "t "As regards the sentence of death imposed on five accused persons by the sessions court, which was confirmed by the appellate court, the counsel for the appellants, Shri Sushi I Kumar submitted that E in the absence of clear and convincing evidence regarding the complicity of the accused, these appellants could not be visited with the death penalty, while the counsel for the State submitted that this is a ghastly incident in which eight persons were done to death and the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly F i and the common object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is no clear evidence by the use of whose fire-arm all the six deceased persons died as a result of firing in the bus.
It is also pertinent to note that the investigating agency failed to produce clear G and distinct evidence to prove the actual overt acts of each of the accused. The failure to examine the driver and conductor of the bus, the failure to seize the bus and the absence of a proper 'mahzar', are all lapses on the part of investigating agency. Moreover, the doctor who gave evidence before the court was not properly cross-examined regarding the nature of the injuries. Some more details could have H c r2007) 7 S.C.R. been collected as to how the incident might have happened inside the bus. These facts are pointed out to show that the firing may have been caused by the assailants even while they were still standing on the footboard of the bus and some of the appellants may not, in fact, have had an occasion to use the fire-arm, though they fully shared the common object of the unlawful assembly.
Imposition of the death penalty on each of the five appellants may not be justified under such circumstances. We take this view in view of the peculiar circumstanc,es of the case and it shou Id not be understood to mean that the accused persons are not to be convicted under Section 302 read with Section 149 and the death penalty cannot be imposed in the absence of various overt acts by individual accused persons. In view of the nature and circumstances of the case, we commute the death sentence imposed on A-I Sahdeo, A-4 Subhash, A-5 Chandraveer, A-7 Satyapal and A-10 Parvinder to imprisonment for life."
88. In Raju v. State o/Haryana, [2001) 9 SCC 50, it has been opined by D this Court : "However, the next question is whether this would be a rarest of rare cases where extreme punishment of death is required to be imposed. In the present case, from the con~essional statement made by the accused, it would appear that there was no intention on the part of the accused to commit the murder of the deceased child. He caused injury to the deceased by giving two brick blows as she stated that she would disclose the incident at her house. It is true that learned Sessions Judge committed error in recording the evidence of SI Shakuntala, PW 15 with regard to the confessional statement made to her, but in any set of circumstances, the evidence on record discloses that the accused was not having an intention to commit the murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty."
89. It has been a fundamental point in numerous studies in the field of Death Penalty jurisprudence that cases where the sole basis of conviction is ….. t SWAMY SHRADOA!IOANDA @MURALI MA~OHAR MISHRA '" STATE Of KARNAT AKA (SB. Sl!IOHA. J.) 655 circumstantial evidence, have far greater-chances of turning out to be wrongful A convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as full proof incidences and the fact that the same are circumstantial evidence based must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on B circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.
90. One of the older cases in this league dates back to 1874, Merritt v. C State, 52 Ga. 82, 85 (1874) where the Supreme Court of Georgia described the applicable law in Georgia as follows: "By the penal code of this state the punishment of murder shall be death, except when the conviction is founded solely on circumstantial testimony. When the conviction is had solely on circumstantial D testimony, then it is discretionary with the presiding judge to impose the death penalty or to sentence the defendant to imprisonment in the penitentiary for life, unless the jury . . . shall recommend that the defendant be imprisoned in the penitentiary for life; in that case the presiding judge has no discretion, but is bound to commute the punishment from death to imprisonment for life in the penitentiary."
91. Later case of Jackson v. State, 74 Ala. 26, 29-30 ( 1883) followed the aforementioned case. [Also see S.M. Phillipps, Famous Cases of Circumstantial Evidence with an Introduction on the Theory of Presumptive Proof 50-52 (1875)]
92. In United States v. Quinones, 205 F. Supp. 2d 256, 267 S.D.N.Y. (2002) the court remarked: "Many states that allow the death penalty permit a conviction based solely on circumstantial evidence only if such evidence excludes to G a moral certainty every other reasonable inference except guilt."
93. In the instant case, confession before police was taken as a gospel truth. It seems that the judicial mind has a role to play in that behalf in imposition of sentence. (2007f 7 S.C.R.
94. Another aspect whiCh needs to be considered as according to the Bachan Singh Rule (that sentencing should involve analysis about the nature · – of crime as well as the accused) which require consideration, is the effect of two pointers relating to the nature of crime. Firstly, the case does not seem to be an instance of what is called a diabolical murder. We come across cases of murdering wife by burning for non-fulfillment of dowry, preceded by B continuous torture. Simon and Ors. v. State o/Karnataka, [2004] 2 SCC 694 noting the ''all murders are cruef' observation in Bachan Singh (supra) puts the law on death penalty in perspective as: c "The Constitution Bench said that though all murders are cruel but cruelty may vary in its degree of culpability and it is only then the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist." 95, Second point relates to planning which went into committing the murder. It is agreed that accused deliberately came close to the beautiful and D wealthy lady. He must have had his intentions and calculations in that regard. To that extent intention behind the marriage can be imputed. But to infer from that the murder was a pre-planned murder will be going a bit too far as he did not know the opportune date when the servants would be leaving the house. He could not have known the servants would receive a telegram and ask for leave. Without their leaving the place, the plan, if there was any, could E not have been executed. This is one weak link in the hypothesis that the murder was meticulously planned.
96. In Kashmir Singh v. State of Himachal Pradesh, [1990] Supp I SCC 133 the Court held: "There was no infirmity in appraisal of the facts and circumstances and the circumstantial evidence by .the courts below in arriving at the conclusion that the accused-appellant has committed the crime under Section 302 IPC. But considering the fact that it was not a pre- meditated and cold-blooded murder, and also because the appellant appeared before the Sessions Judge and made a confessional statement, the sentence is converted from death to life imprisonment."
97. Keeping the abovementioned other characteristics of the crime, we now delve into whether this instance can be categorized as a "rarest of rare" murder. The question is whether murder of wife for the purpose of usurping H property is a rarest of rare crime statistically. It is not to say that rarest of rare t t SWAMY SHRADDANANDA (!!< ~tliRALI MANOHAR MISHRA 1•. STATE OF KARNATAKA [S.B. SINHA. J] 657 doctrine only has a statistical dimension i.e. incidence of particular type of A murder in a given sample; rarest of rare benchmark. can also be used in the – context of other parameters such a brutality, planning, society's reaction et al. Facets relating to nature of the crime have already been explained in terms of the few parameters mentioned just now. Therefore we attend to the incidence aspect. It can not- be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident. It could, of course, be a rare B incident.
98. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The same should not be a factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative C factor.
99. In fact, Appellant should not have been heard at that stage. The stage of hearing an accused under Section 235(2) of the Code is after the judgment of conviction is pronounced·and not prior thereto. Appellant herein D made a confession before the High Court. The High Court took the same into consideration in the main judgment which could not be done. He had been brought before the High Court only for purpose of fulfilling the requirement of sub-section (2) of Section 235 of the Code of Criminal Procedure. His Statement was taken during midst of hearing. He knew the implications thereof. Despite the same, he made a categorical statement that he was responsible E for burring the dead body. He gave an explanation, which might not have found favour with the High Court, but the fact that he had made a confession at least accepting a part of the offence could not have been ignored at least for the purpose of imposition of punishment.
He is more than 64 years' old. He is in custody for a period of 16 years. The death sentence was awarded to him by the trial court in terms of its judgment dated 20;05.2005. In a situation of this nature, we are of the opinion that imposition of a life imprisonment for commission of the crime under Section 302 shall serve the ends of justice. JOO. However, while saying so, we direct that in a case of this nature G 'life sentence' must be meant to be 'life sentence'. Such a direction can be given, as would appear from some precedents. {See Subhash Chander v. _ Krishan Lal and Ors., [2001] 4 SCC 458}. lOl. Yet again in Ram Anup Singh and Ors. v. State of Bihar, [2002] 6 SCC 686, this Court directed that the accused shall remain in jail for a period H SUPREME COURT REPOR°TS {2007) 7 S.C.R. A of not less than 20 years. [See Prakash Dhawal Khairnar (Patil) v. State of Maharashtra, (2002) 2 SCC 35, Shri Bhagwan v. State of Rajasthan, (2001] 6 SCC 296 and Mohd Munno etc. v. Union of India & Ors. etc., [2005) 7 SCC 417).
I 02. However, before parting with this case, we may notice that a prayer B was made by Smt. Sabhah Khaleeli (daughter of the deceased) that the mortal remains ofSmt. Shakereh (deceased) including skull are required by the family of the deceased for burial and obsequies ceremony. The High Court has issued such a direction. As the family of the deceased and in particular Smt. Sabah Khaleeli (PW-5) desires to perform burial and other obsequies C ceremonies, we direct that the order of the High Court, in this behalf, may be implemented, as expeditiously as possible. 103. For the reasons aforementioned, the appeal is dismissed, subject to the modification· in sentence, as directed hereinbefore. MARKANDEY KAT JU, J. I. J have perused the judgment of my learned brother Hon'ble S.B. Sinha, J. in this case. The facts of the case have been narrated in the judgment of my learned brother and hence I am not referring to them except where necessary. 2.
While I entirely agree with my learned brother that the conviction of E the appellant under Section 302 and other provisions of IPC imposed by the Trial Court and High Court deserves to be upheld, I express my inability with my learned brother that the death senten · ~ imposed by the Trial Court and confirmed by the High Court should be reduced to life sentence .. In my opinion this case falls within the category of rarest of rare cases and hence the appellant deserves death sentence. 3. In Aloke Nath Dutta & Ors. v. State of West Bengal, (2006) 13 SCALE 467 a Division Bench of this Court referred to the Constitution Bench judgment of this Court in Bachan Singh v. State of Punjab, AIR (1980) SC 898 in which it is laid down that death penalty should only be imposed in the rarest of rare cases. In Machi Singh v. State of Punjab. (1983) 3 SCC 470 (vide paragraphs 32 to 37) a 3 Judge Bench of this Court gave the following illustrations of murders which fall within the category of 'rarest of rate cases' and hence deserved death penalty.
(i) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense ….., ~ ·"' – SWAMY SHRAOOA!'.Al"OA ($ Mt;RALI MA!l.OHAR MISHRA •·. ST AT!'. Of KA!l.'iA l AKA lKA lJ\;, l.I and extreme indignation of the community. (ii) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the B motherland. (iii) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of "bride- burning" or "dowry deaths" or when murder is committed in c order to r~marry for the sake of extracting dowry once again to marry another woman on account of infatuation.
(iv) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular cast~. community, or D locality, are committed. (v) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the· murderer is in a dominating position, or a public figure generally _loved and respected by the community. 4. In Bachan Singh 's case (supra), the Constitution bench observed that the death penalty contemplated by Section 302 IPC is not unreasonable or against the public interest, and it does not violate Articles 19 or 21 of the Constitution. In the same decision it was also observed (vide para 401} that judicial discretion cannot be fettered by attempting to make an exhaustive F enumeration one way or the other. Hence, it follows that the 5 principles referred to in Aloke Nath Dutta 's case (supra) justifying award of death penalty can only be treated as illustrative and not exhaustive. 5.
In Holiram Bordoloi v. State of Assam, [2005] 3 SCC 793 this Court observed that pre-planned, calculated, cold-blooded murder has always been G regarded as one of an aggravated kind. A murder diabolically conceived and cruelly executed would justify the imposition of the death penalty on the murderer. 6. In IJlY opinion the facts of the present case clearly fall within the (2007) 7 S.C.R .. A category of rarest of rare cases as laid down by the Constitution Bench Judgment in Bachan Singh 's case and in Machi Singh 's case (supra). It clearly comes within the first, second and fifth categories mentioned above, and it falls under the category of rarest of rare cases deserving death sentence. 7. No doubt as observed in paragraph 173 of the judgment in Aloke B Nath Dutta 's case (Supra) there has been a growing demand in the international fora that the death penalty should be abolished. However, in my opinion, in India the death penalty cannot be abolished by a judicial verdict as death sentence is contemplated by the Constitution and the l.P.C.
Thus Article 72( I)( c) of the Constitution specifically mentions that the President of India c has the power to grant pardons, reprieves or suspension of any death sentence. Similarly Article 72(3) also contemplates the power in the Governor of the State to suspend, remit or commute a death sentence. Hence if we hold that the Courts have no power to impose a death sentence we wiH really be amending the Constitution by a judicial verdict. Again, if we hold that the Courts have no power to impose Jeath sentence merely because the death D sentence has been abolished in some foreign countries in Europe or because there is a demand in the international fora that death sentence should be abolished, we w.ill be really amending the Constitution by a judicial verdict. In my opinion this Court has no power to amend the Constitution by a judicial verdict. The Constitution can only be amended by Parliament in the manner E prescribed by Article 368 of the Constitution.
This Court cannot arrogate to itself the power of Parliament under the Constitution and must maintain self- restraint. Moreover, what has happened in foreign countries cannot be automatically applied to our country where the situation is different. 8. No doubt Parliament can abolish the death sentence by deleting it as F one of the punishments prescribed in the 1.P.C or other statutes, but this Court cannot do so. The Court cannot legislate or amend the law. There is broad separation of powers under the Constitution and this Court must not ordinarily encroach into the legislative or executive domain as held by us in Indian Drugs & Pharmaceuticals ltd. v. The Workman of Indian Drugs & Pharmaceuticals Ltd. (2007] I SCC 408. 9. In my opinion the facts of the present case clearly fall within the principle of the first, second and fifth category mentioned earlier in this judgment and thus this case falls within the category of the rarest of rare cases.
It is a case of a pre-planned and cold blooded murder diabolically conceived and cruelly executed. r SW AMY SHRADDANANDA @MURALI MANOHAR MISHRA v. STA TE OF KARNA TAKA (KATJU. J.J _,,, ' IO. Before coming to the facts of the case I would also like to say that A there cannot be an absolute principle of law that merely because there has been a long lapse of the time from the commission of the.offence and the final conviction and sentence by this Court the death penalty can never be imposed. It all depends on the facts of each case. It is well known that now-a-days a long interval of time frequently occurs between the commission of the offence and the final conviction by this Court (because of the delays in the trial, B appeals, etc.), and hence if we lay down any absolute principle of law that merely because of this long interval death penalty cannot be imposed then y in all such cases merely because of lapse of time death penalty cannot be imposed even though the murder was cold blooded, diabolical and heinous.
This again would be amending the Constitution by a judicial verdict:Moreover c this would give encour~gement to the accused and their lawyers to delay proceedings in Court (by unnecessary adjournments, interlocutory applications, etc.) to avoid the death penalty. I, therefore, cannot agree with the view that merely because a long lapse of time has occurred between the commission of the offence and the final decision of this Court the death penalty cannot be imposed. 11. I also do not agree with the observations in paragraph 173 of the …. Aloke Nath Dutta 's case (Supra) that in cases of circumstantial evidence ordinarily the death penalty should not be awarded. In my opinion no such absolute proposition of the law can be been laid down. It all depends on the facts of each case. Criminals have been hanged even on the basis of circumstantial evidence. Hence I cannot agree that we can lay down any such absolute proposition as was laid down in Aloke Nath Dutta's case (Supra).
There is no principle of law that only direct evidence is strong and reliable while circumstantial evidence is weak and unreliable. Circumstantial evidence can be as strong and reliable as direct evidence, but the only requirement is F that the prosecution must establish beyond reasonable doubt that there is a chain of links which connects the accused with the crime. 12. I may now deal with the facts of the present case which clearly __. shows the diabolical, cold blooded, evil mind of the appellant who has acted __, in a most depraved, malevolent and condemnable manner, taking advantage G of a lady's innocence . 13. The deceased Smt. Shakereh was married to one Mr. Akbar Khaleeli who was in the Indian Foreign Service. They had four daughters. In 1983 the deceased along with her children visited the Nawab of Rampur who was A evidently a friend of the deceased and her husband. The accused was at that ,….. time assisting the Rampur royal family in the management of their landed properties and he was introduced to the Khaleeli family.
After getting acquainted with them the accused gained their confidence. Since certain matters relating to the properties of the deceased at Bangalore needed to be sorted out she sought assistance of the accused having regard to his alleged expertise in dealing with property matters. The deceased Smt. Shakereh who comes from a good family had inherited huge properties including House No.81, Richmond Road, Bangalore, and other properties. 14. Since, Mr.Akbar Khaleeli had to go to Iran on his posting as a c diplomat, Smt. Shakereh came to Bangalore. The accused also came to Bangalore and was provided accommodation in the same house. It is stated that Shakereh had only daughters and she longed for a son. The accused made her believe that he could bless her with a son. In 1985, Akbar Khaleeli and Smt. Shakereh divorced, and a few months thereafter the deceased married the accused and both started living together in House No.81, Richmond Road, D Bangalore. 15.
However, even after divorce and second marriage of Smt. Shakereh _.. her relationship with her parents and daughters remained unaffected and she was in regular touch with her daughter Sabah, P.W. 5 by talking with her over telephone or meeting her personally. Sabah was a model and publisher of a fashion magazine in Mumbai, and she would regularly telephone her mother, sometimes twice a day. She would also get telephone calls regularly from her mother. However, from May 1991, the deceased became unavailable and when .l Sabah tried to contact her on telephone, the accused informed her that her mother had gone to Hyderabad for the marriage of a relative. Telephone calls F from the deceased to Sabah also stopped coming from May 1991. After four or five days Sabah again telephoned to her mother's house at Bangalore, and this time she was told by the accused that Shakereh had gone to Kutch for a marriage of a big diamond merchant.
Again after four or five days Sabah telephoned to her mother's house. This time the accused told her that her mother was facing income tax problems and hence she was not in a position G to talk to anyone. 16. Since Sabah was not able to speak to her mother despite repeated endeavours and since telephone calls from her mother stopped coming to her, t- she came from Mumbai to Bangalore and went to House No.81, Richmond Road. She asked the accused as to where her mother was. The accused told SWAMY SHRADDANANDA @ Ml'RAll MANOHAR MISHRA 1·. ST ATE OF KARNA T AKA [KA TJU.J] ……. ' her that since her mother was longing for a male baby she had become A pregnant and wanted a peaceful atmosphere for nine months. When Sabah asked where her mother had gone, the accused told her she was admitted in Roosevelt Hospital, New York, since it was the best hospital. Sabah then asked the accused to give the telephone number and address of the hospital where her mother was admitted, but the accused refused to give her the address or telephone number saying that since her mother wanted a peaceful B atmosphere the telephone number and address were unnecessary.
Later Sabah contacted the Roosevelt hospital at New York through a friend and came to know that no woman of the name Shakereh was admitted in the hospital. Sabah then confronted the accused and told him that there was no one in the name of her mother in the hospital and asked the accused to tell her where c her mother was. The accused told Sabah that since her mother was pregnant and wanted to keep it a secret and rest for nine months so he could not give her the correct address. Sabah then asked the accused to at least allow her to speak with her mother on telephone so that she could hear her mother's voice, but the accused did not do that. Sabah came to Bangalore but did not find her mother there. At Bangalore whenever any telephone rang the accused D used to lift the receiver and tell Sabah that the telephone was from her mother, but before Sabah could go near the telephone, the telephone used to get disconnected and the accused told her that the call was from her mother. 17.
Sabah then returned to Mumbai. Thereafter, the accused visited Muobai two or three times where he used to stay at Taj hotel, which i:: a very costly hotel with two or three persons. These two or three persons. were women. In December I 99 I, t!le accused came to Mumbai and stayed at Sea Rock hotel (which is also a very expensive hotel). The accused told Sabah that he had come to attend a marriage. Sa bah went to the room of the accused in the hotel and saw her mother's passport there which showed that her F mother had not left India for any foreign country since 1989. The accused told Sabah that her mother was in India and asked her to be patient for some more months. In March 1992, Sabah rang the accused and told him that it was already nine months since the time the accused told her that Shakereh was pregnant and new he had to tell her the whereabouts of her mother otherwise she would lodge a police complaint.
To that, the accused told Sabah to remain G patient and he would inform her in a day or two. After two or three days the …. accused informed her that her mother had given birth to a male child. When Sabah asked him to give the address of her mother the accused evaded the question and told her to wait for some more time. The accused then asked (2007) 7 S.C.R. A Sabah to come to Bangalore where she could meet Shakereh and the child'. Accordingly, Sabah informed the accused the date of her journey and came to Bangalore by air but ·did not find either the accused, her mother or the child at house No. 81, Richmond Road. After four hours of her arrival in the house, the accused came to the house and told Sabah that he. along with Shakereh were waiting for her at the airport and when they did not find Sabah there, B the accused left Shakereh in the farm house. The accused then told Sabah that her mother would be coming the next day and there was no need to lodge any complaint. 18.
Since the accused did not produce Shakereh and did not give Sabah C the whereabouts of her mother, Sabah returned to Mumbai and then again came to Bangalore and lodged an FIR in Ashoknagar police station on 10.6.1992 stating that her mother had been missing. 19. The investigation was entrusted to the Central Crime Branch (CCB), Bangalore on 26.3.1994 since the Ashok Nagar police did not make serious D efforts in the matter. The Central Crime Branch suspecting the role of the accused in the disappearance of Smt. Shakereh arrested the accused. on 28.3 .1994 and interrogated him thoroughly. It is stated that during interrogatiot:t the accused broke down and made the voluntary statement as per Ex. P.175 disclosing that he had drugged Smt. Shakereh, put her in a coffin like big box and had buried the box in the backyard of the house i.e. House No. 81, E Richmond Road, Bangalore. 20. The Investigating Officer then sought for necessary permission from the Sub-Divisional Magistrate for exhumation and on 30.3.1994 exhumation proceedings were conducted at 8 I, Richmond Road, Bangalor~ as pointed out by the accused.
At the exhumation, apart from the Taluka Executive Magistrate, F Mahazar witnesses, investigatirtg team, a doctor trained in forensic medicine were present. After the exact place was marked by a chalk indicating the place as the place of burial of the box containing the body of Smt. Shakereh, the marked area was dug up after removal of some stone slabs and after considerable digging, a big wooden box lying inside was noticed. On removing G the planks of the lid, it was noticed that the box contained a foam bed and a bed-sheet on the top. The same were removed and underneath it, skeletal remains with nightie, long hair and feminine articles like bangles, rings etc. were noticed. The skeletal remains were subjected to autopsy. 2 I. To confirm whether the skeleton was that of Smt. Shakereh, the skull H was sent to a forensic science laboratory along with a photograph of Smt. SW AMY SHRADDANANDA@ MURALI MANOHAR MISHRA v. STATE OF KAAAAT AKA (KA TJU.
J.) _Shakereh. The Investigating Officer also sought the opinion of the experts A ….,. ' through DNA finger printing . etc. The ex~rts confirmed that the skeleton indeed was that of Smt. Shakereh. The investigating team not only recorded the statements of witnesses (the servants, relatives etc.) but also the people with whom the accused had dealings about the properties of the deceased, the bank officials etc. as to the financial aspects and transaction of both the accused and the deceased. A large number of documentary records were also B collected. The accused was then charged under Sections 302/201 IPC. 22. As many as 39 witnesses were examined by the trial court. The trial court after considering the entire evidence sentenced. the accused to death and the death sentence was confirmed by the High Gourt. c 23. It has been submitted by the learned counsel for the appellant that there are no eyewitnesses in the case.
In my opinion, there is convincing circumstantial evidence to establish the guilt of the accused. 24. As already stated. above, it is not correct to say that only direct D evidence is strong evidence while circumstantial evidence is weak evidence. Both kinds of evidence can be strong in a given situation. The only requirement in circumstantial evidence is !hat the chain of links connecting the accused with the crime should be established beyond reasonable doubt. In my opinion, in this case the facts clearly establish the chain of circumstances linking the accused with the crime. These circumstances are as follows: (i) The deceased was living with the accused in house No.81, Richmond Road, at the time when she disappeared. No one else was there as even the servants had left (in the circumstances mentioned below). (ii) During this period the deceased is alleged to have executed a F Will and a General Power of Attorney in favour of the accused, and a large number of bank accounts in different banks were opened in joint names of the accused and the deceased.
The bank lockers were also in the joint names. They started a private firm called S.S. Housing Private Limited of which they were the G only shareholders. All these facts establish the strong motive of the accused who wanted to grab the property of the deceased. (in) Till May 1991 whenever possible PW5 Sabah, daughter of the deceased used to call the deceased over the phone and talk with • .. her or meet her personally whenever she was in Bangalore and H' [2007) 7 S.C.R. the deceased would also telephone Sabah regularly, but after May 1991 she was not allowed to talk to her mother on telephone r ,,_ whenever she called her, nor did the deceased call her. Instead, the accused gave evasive and contradictory replies whenever Sabah used to telephone to try to talk to her mother. The accused said all kinds of lies, e.g. that the deceased had gone to Hyderabad, then on the next occasion that she had gone to Kutch, thereafter that she was pregnant and had gone to Roosevelt Hospital, New York, but on enquiry when Sabah came to know that there was no such lady in the name of Shakereh in the hospital, he admitted 1' that he had given a false statement etc.
All these facts point to c the guilt of the accused who kept telling lies constantly on every occasion whenever Sabha contacted him. (iii) It appears that the accused saw an opportunity to kill the deceased when the maid-servant PW19 Josephine and her husband PWI8 Raju received a telegram informing them that the sister-in-law of PW18 was sick in Andhra Pradesh and they were required to go to that place. They got leave from Shakereh and went to Andhra Pradesh. Thus, Shakereh was left ak'1e in the house with the -accused and he got that opportunity to kill her. (iv) The dead body of Shakereh was found in the backyard of the house at the pointing out of the deceased. The statement of the accused was made before the Executive Magistrate PW 3. It has come in evidence that the accused had gone to a carpenter to get a box with wheels, which he kept in the guest house. This was the box utilized for burying the body.
(v) During the investigation, it was disclosed that right from 1991 the accused alone had been operating the joint bank accounts and was not only depositing the sale proceeds of the lands sold by him after May 1991, but also withdrawing large sums of money and had literally cleaned the bank lockers jointly owned by him and the deceased. (vi) On 30.3.1992 and 31.3.1992 the accused sold 34 plots out of the property belonging to the deceased· in the capacity of General Power of Attorney holder to various people under registered sale deeds for valuable considerations. f (vii) In meetings/proceedings of the SS Housing Company, he SW AMY SHRADDANANDA@ MURALI MANOHAR MISHRA •·. ST ATE OF KARNAT AKA [KAT JU. J.] ….. ' represented the presence of the deceased for each of the meetings A l and signed himself alone on her behalf as a General Power of Attorney holder and these proceedings were regularly sent to their Chartered Account.
(viii) The accused also replied to the queries oflncome Tax Authorities during 1993 one of which purportedly contains his signature and B the signature of Smt. Shakereh which is apparently forged. (ix) The accused suddenly became very rich after May 1991 (the time 't of disappearance of the deceased) which is evident from the fact that he had done huge property and financial transactions which benefited him, he started staying in very expensive hotels in c Bombay etc. with women, etc. (including the then Miss India vide statement of P.W.37 at para 29) 25. From the facts stated above it is evident that the deceased was not seen alive from May 1991 onwards and no one was able to speak to her on telephone, whereas, till May 1991 her daughter Sabah was regularly in contact D with her. The accused was living with Shakereh as her husband and when contacted by PWS Sabah he told all kinds of lies about the whereabout ~f Smt. Shakereh. 26.
The fact that Shakereh was murdered is indisputable. If she had met E a natural death, there was no question of her being buried in the backyard of the house without intimating any of her relatives including her daughter and parents. There is abundant expert evidence to establish that the skeleton discovered in the box in the backyard was that of the deceased Shakereh. There is also uncontroverted evidence that the said box in which her body was kept was got prepared by the accused himself prior to the death of Smt. F Shakereh. In my opinion, there is no manner of doubt that the accused killed Shakereh and secretly buried her in the manner mentioned above in the backyard of the house. The fact that he kept the death news of the deceased secret and he told lies repeatedly to her daughter Sabah (as stated above), proves his guilty mind. His act of selling valuable property of the deceased G worth crores of rupees within a short time of the death of Shakreh with the help of a defunct General Power of Attorney and the other material on record _clearly establish the guilt of the accused beyond reasonable doubt.
In my opinion, the prosecution has convincingly succeeded in establishing all the …, links in the chain of circumstances linking the accused with the crime. 12007) 7 S.C.R. 27. In my opinion, this is case of a ~old blooded, calculated, diabolical l: …….. murder by the accused of an innocent lady who came from a good family, but·> r unfortunately due to her infatuation fell into his clutches. 28. Learned counsel for the appellant submitted that there was no reason for the appellant to murder the deceased since the deceased had executed a will in his favour. In my opinion, this argument is not tenable because it is well settled that a will comes into operation only on the death of the testator. The deceased was only in her forties, and her natural death · may have occurred several decades later. The appellant was obviously not willing to wait for so long before he could grab her property and hence he c decided to murder her.
No doubt no poisonous substance was detected in the skeleton of the deceased and hence the prosecution case that the accused mixed poison in her tea could not be finnly established. However, even if the exact method of murder has not been established by the prosecution, I have no manner of doubt that it was the ll.ppellant who murdered the deceased. 29. During the course of hearing of the case we asked learned counsel for the appellant as to what was the profession or qualification of the accused,; but he could not give any satisfactory answer. It seems to us that the accused is a cold-blooded, scallywag and rascal who had no proper qualificatio~ or t profession. Such diabolical and cunning rogues are to be found in abundance nowadays. It is the total commercialization of society which is responsible for this recent phenomenon. People have become greedy and wish to amass wealth by short cuts, even by committing heinous crimes.
The appellant had changed his name and had become a 'Swamy'. By some dubious means he had ingratiated himself into the house of the Nawab of Rampur and there he developed contact with the deceased, who was evidently having differences • with her husband. The accused pretended to be a very simple and innocent person and this made the deceased start depending on him, particularly for looking after her property matters. The deceased brought the accused to her house in Bangalore where the deceased married her and thereafter he determined to grab all her property after killing her. All the property transactions in this G connection and other evidence (narrated above) point only to this conclusion. The accused is an unmitigated and diabolical rogue who could go to any extent, including murder to achieve his object of grabbing huge amount of property of the deceased. He was in a dominating position over the deceas'ed who had become dependan~ on him, and he took full advantage of this r situation.
He had motive and opportunity for committing this ghastly crime. ; ….. SW AMY SHRAOOANANDA@ MURALI MANOHAR MISHRA v. STATE Of KARNATAKA IKATIU. J.) 30. In my opinion, this case clearly comes within the category of rarest A of rare cases and there will be gross travesty of justice if the death sentence is not affirmed. Hence, I dismiss this appeal and confirm the death sentence on the accused. ORDER In view of the difference of opinion with regard to the quantam of B punishment, the matter is referred to larger Bench. K.K.T. · Referred to larger Bench. …..