Question of law
3. The learned counsel appearing for the appellant has challenged the conviction on merits by contending that the identification of the accused is doubtful. His submission is that as far as the appellant is concerned, there is no convincing evidence of his involvement in the offence. His other submission is that at the time of the commission of the offence, the age of the appellant was about 20 years, and on the date of the order of conviction passed by the Trial Court on 20th April 2010, his age was about 25 years. He submitted that the present age of the appellant is 38 years. He submitted that in view of the decision of the Constitution Bench in the case of Union of India v. V. Sriharan alias Murugan & Ors [2016 (7) SCC 1], the Sessions Court had no jurisdiction to direct that the appellant shall undergo imprisonment for the rest of his life. His submission is that such a power could have been exercised only by the Constitutional Courts when there was a question of commuting the death sentence.
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7. This Court, in the case of Shiva Kumar alias Shiva alias Shivamurthy v. State of Karnataka [2023 SCC Online SC 345], had an occasion to deal with the decision of the Constitution Bench of this Court in the case of V. Sriharan1. This Court also considered its earlier decision in the case of Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka[2008 (13) SCC 767]. While considering the law laid down by the Constitution Bench in the case of V. Sriharan1, in Shiva Kumar’s case, this Bench in paragraphs 11 to 13 held thus:
“11. What is held by the Constitution Bench, cannot be construed in a narrow perspective. The Constitution Bench has held that there is a power which can be derived from the IPC to impose a fixed term sentence or modified punishment which can only be exercised by the High Court or in the event of any further appeal, by the Supreme Court and not by any other Court in this country. In addition, the Constitution Bench held that power to impose a modified punishment of providing any specific term of incarceration or till the end of convict’s life as an alternative to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior Court.
12. In a given case, while passing an order of conviction for an offence which is punishable with death penalty, the Trial Court may come to a conclusion that the case is not a ‘rarest of the rare’ case. In such a situation, depending upon the punishment prescribed for the offence committed, the Trial Court can impose other punishment specifically provided in Section 53 of the IPC. However, when a Constitutional Court finds that though a case is not falling in the category of ‘rarest of the rare’ case, considering the gravity and nature of the offence and all other relevant factors, it can always impose a fixed term sentence so that the benefit of statutory remission, etc. is not available to the accused. The majority view in the case of V. Sriharan1 cannot be construed to mean that such a power cannot be exercised by the Constitutional Courts unless the question is of commuting the death sentence. This conclusion is well supported by what the Constitution Bench held in paragraph 104 of its decision, which reads thus:
“104. That apart, in most of such cases where death penalty or life imprisonment is the punishment imposed by the trial court and confirmed by the Division Bench of the High Court, the convict concerned will get an opportunity to get such verdict tested by filing further appeal by way of special leave to this Court. By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of guilt of such specified grave offences and the imposition of penalty either death or life imprisonment, when comes under the scrutiny of the Division Bench of the High Court, it is only the High Court which derives the power under the Penal Code, which prescribes the capital and alternate punishment, to alter the said punishment with one either for the entirety of the convict’s life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience befitting such offence found proved to have been committed.”
13. Hence, we have no manner of doubt that even in a case where capital punishment is not imposed or is not proposed, the Constitutional Courts can always exercise the power of imposing a modified or fixed term sentence by directing that a life sentence, as contemplated by “secondly” in Section 53 of the IPC, shall be of a fixed period of more than fourteen years, for example, of twenty years, thirty years and so on. The fixed punishment cannot be for a period less than 14 years in view of the mandate of Section 433A of Cr.P.C.”
Constitutional courts have power
8. Though the Sessions Court could not have imposed a modified sentence by directing that the appellant shall be imprisoned for the rest of his life, the High Court could have certainly imposed such a punishment.
9. We find from the record that at the time of the commission of the offence, the age of the present appellant was only 20 years. When the appellant was convicted by the Sessions Court, his age was 25 years. As of now, he has undergone an actual sentence for a period of about 15 years and 3 months. The finding of the Trial Court is that there was no material placed on record by the prosecution to show that the appellant was involved in any other offence. However, this is a case of a very brutal offence committed by a group of accused who were armed with deadly weapons. They have killed three persons at a time and injured two.
10. Looking at the gravity of the offence, the High Court was justified in imposing a fixed term sentence. The question is whether the appellant should be directed to undergo imprisonment till the end of his life.
Sentence
12. Hence, we pass the following order:
i. The conviction of the appellant, under the impugned judgments, is upheld. However, the order of sentence is modified. We direct that the appellant shall undergo rigorous imprisonment for a fixed period of 30 years.
ii. The appellant will not be entitled to claim any statutory remission under the Code of Criminal Procedure, 1973.
Party
Shiv Mangal Ahirwar vs. State of Madhya Pradesh – CRIMINAL APPEAL NO. 814 OF 2023 – April 13, 2023,
https://main.sci.gov.in/supremecourt/2022/26765/26765_2022_16_1501_43499_Judgement_13-Apr-2023.pdf
