Mahender @ Dabbu vs State (Govt Of Nct Of Delhi)
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 24.09.2026
Pronounced on: 04.11.2026
Uploaded on: 04.11.2026
# CNR No. DLHC010451562026
+ W.P.(CRL) 2943/2026 & CRL.M.(BAIL) 1806/2026
MAHENDER @ DABBU .....Petitioner
Through: Mr.Rishi Malhotra, Sr. Adv.
with Ms.Amuiya, Mr.Shivansh
Maini, Mr.Saurabh Kumar
Gupta and Ms.Shweta Sharma,
Advs.
versus
STATE (GOVT OF NCT OF DELHI) .....Respondent
Through: Mr.Amol Sinha, ASC with
Mr.Kshitiz Garg, Mr.Anshul
Sharma, Mr.Nitish Dhawan and
Mrs.Chavi Lazarus, Advs. with
SI Parveen, PS Subhash Place
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE ARUN BHARDWAJ
J U D G M E N T
NAVIN CHAWLA, J.
1. This petition has been filed by the petitioner under Article 226
of the Constitution of India read with Section 482 of the Code of
Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) [Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as
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‘BNSS’)], praying for the following reliefs:
“A. Issue a Writ, Order or direction in the
nature of Certiorari to quash the order of
sentence dated 13.05.2011 in SC no. 145/2008
and direct the Ld. Trial Court to re-hear the
petitioner on order of sentence keeping in view
the law laid down in Union of India v. V.
Sriharan @ Murugan & Ors., (2016) 7 SCC 1.
B. Set aside order of sentence dated
13.05.2011 in SC no. 145/2008 arising out of
FIR no. 109/2008 u/s 302 IPC, P.S Saraswati
Vihar being unconstitutional and arbitrary in
teeth of decision laid down by the Hon'ble
Supreme Court in Union of India v. V.
Sriharan@Murugan & Ors., (2016) 7 SCC 1.”
2. By an order dated 12.05.2011 passed by the learned Additional
Sessions Judge-01, (North-West District), Rohini Courts, Delhi
(hereinafter referred to as ‘Trial Court’) in SC No.145/2008, titled
State v. Mahender @ Dabbu, arising out from FIR No.109/2008
registered at Police Station: Saraswati Vihar under Section 302 of the
Indian Penal Code, 1860 (hereinafter referred to as ‘ IPC ’), the
petitioner herein had been convicted for commission of offence
punishable under Section 302 of the IPC on the case of the
prosecution, as under:
"On 29.02.2008 on receiving the DD No. 17A,
IO SI Daya Chand along with Constable Amar
Singh went to petrol pump, Britannia Chowk,
J.J. Colony, Shakurpur where no eye witness
or complainant met them. In the meantime,
PCR control room informed that the injured
was removed by PCR van Commander 21 to
Bhagwan Mahavir Hospital. IO along with
constable Amar Singh reached the hospital
and collected the MLC of injured Jyoti, w/o
Mahender@ Dabbu aged 24 years, r/o. G-23,
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J.J. Colony, Shakurpur, Delhi. Doctor had
mentioned on the MLC alleged history of 7 5%
acid burn and declared her unfit for statement
and result on the nature of injuries as
grievous. No eye witness met them at the
hospital. IO prepared rukka on DD No. 17A
and handed over the same to Constable Amar
Singh for registration of FIR, who left the
hospital. During the investigation, doctor
handed over the burnt clothes of injured Jyoti,
in a sealed parcel along with sample seal. In
the meantime Constable Amar Singh returned
back to the hospital and handed over the copy
of FIR and original Rukka to the IO. IO along
with Constable Amar Singh Nath again went
to the place of incident and took into the
possession some burnt clothes lying at the
spot, which were smelling like acid and turned
it into clothes parcels and sealed and seized
with the seal of DCS. IO prepared the site plan
of the spot and informed the SDM about the
incident. SDM, Model Town went to the LNJP
hospital and recorded the statement of the
injured Jyoti and made inquiries from her.
Thereafter IO recorded the statement of the
witness and tried to search the accused but the
accused could not be traced. On 05.03.2008,
accused surrendered himself before the court.
The court made inquiries from the police and
remanded him to the police custody for one
day. Thereafter he was formally arrested and
send in the judicial custody where his
disclosure statement was recorded. IO
prepared the site plan at the instance of the
accused and tried to search the acid bottle,
which could not be traced. IO recorded the
statement of witnesses and deposited the case
property to malkhana. On 12.04.2008, IO
received the information from the LNJP
hospital that injured Jyoti has expired. The
offence thereafter was converted from section
307 IPC to section 302 IPC and further
investigation was handed over to Inspector
Ajay Kumar. Thereafter on 13.04.2008
M.Z.Ansari, Executive Magistrate, Model
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Town reached the hospital and recorded the
statement of the witness in respect to
identification of dead body of Jyoti. Executive
Magistrate prepared the inquest report and
directed for the post-mortem of the deceased
Jyoti and prepared scaled site plan of the spot
through draftsman. After the completion of the
investigation IO filed the charge sheet before
the concerned court. "
3. The learned Trial Court, while convicting the petitioner herein,
relied upon the dying declaration of the deceased (Ex.PW-15/A),
recorded by Shri B.S. Thakur, Deputy Director, then posted as Sub
Divisional Magistrate (SDM), Division Model Town, Delhi. The same
was found corroborated by the testimonies of PW-8/ Sanjay , PW-
12/ Head Constable Devi Dutt , and PW-16/ ASI Nain Singh , to whom
the deceased had also informed that acid had been thrown on her by
her husband, that is, the petitioner herein.
4. By the order dated 13.05.2011 passed in the above Session
Case, the learned Trial Court sentenced the petitioner to undergo
rigorous imprisonment for life along with fine of Rs.10,000/- and in
default of payment of fine, simple imprisonment for one year for
offence punishable under Section 302 of the IPC. Relying upon the
judgment of the Supreme Court in Swami Shraddhanand v. State
Karnataka , 2008 (13) SCC 767, the learned Trial Court further held
that the appropriate sentence of imprisonment for life in the present
case was that the petitioner has to undergo actual sentence of 35 years
and grant of remission shall not be considered till the actual sentence
of 35 years is completed.
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5. Aggrieved by the said orders of conviction and sentence, the
petitioner preferred an appeal under Section 374 of the Code of
Criminal Procedure, 1973, being Crl.A. 788/2011, titled Mahender v.
State , which came to be dismissed by this Court vide its judgment
dated 01.11.2013. This Court had also placed reliance, not only on the
dying declaration made by the deceased to the SDM (PW-15), but also
on the testimony of PW-12/ Head Constable Devi Dutt . We quote from
the judgment of this Court as under:-
“8. The present case is primarily based on
two dying-declarations of the deceased.
Firstly, when she was being taken to the LNPJ
hospital and secondly, when she gave her
statement to the Sub-Divisional Magistrate. In
her statement made to the SDM, she had
th
categorically stated that on 29 February,
2008 at about 8.30 a.m. Mahender gave a
telephonic call to her that at 10 . 00 a.m. both of
them will go to Tis Hazari to meet their lawyer
who was to prepare divorce papers and for
that the accused also told the deceased to
bring photo and certificate. The call was
repeated by Mahender at 10.30 a.m. telling the
deceased to come at Telephone Exchange,
Ring Road Bus Stand with the papers and
when she had reached at the said place,
Mahender- accused met her and started
enquiring as to why she was taking divorce
from him, at which, she had replied that since
he had ruined her life after subjecting her to
harassment, therefore, she would not like to
live with him. On this, she started looking
towards other side when Mahender had
poured acid on her from a bottle containing
acid. She started crying and felt complete
darkness in front of her eyes. She could gain a
little consciousness to find that she was
brought to the hospital by the police. In her
this statement, she also disclosed that she was
residing with her parents and her first
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marriage had taken place in the year 2001
with one Mr. Arun and there was a male child
aged 6 years born out of the said wedlock. She
also stated that after two years of her
marriage with Mr. Arun, her marriage ended
th
with divorce. She also stated that on 28
September, 2005 she had married the present
appellant Mahender @ Dabbu in a Court and
thereafter she started living with Mahender in
a rented accommodation. She also stated that
just after one year of marriage, Mahender
started harassing her and had also thrown her
out of the matrimonial home. Thereafter she
started residing with her parents. She also
stated that Mahender paid repeated visits to
her and extended threats by saying that he will
physically eliminate her if she dared to take
any step to divorce him. She also stated that
earlier Mahender used to ask for the divorce
but when she gave her willingness then he
started extending threats to kill her. A portion
of the dying-declaration is also in question-
answer form. To a question whether she was in
her full senses?, she replied that she was in
her full senses. She was also put a question as
to whether Mahender was carrying acid when
she had met with him? She replied stating that
he was hiding acid in his jacket in a cream
colour bottle and he was also carrying divorce
papers which he got signed from her few days
back. When questioned as to how she knew
that it was Mahender who has thrown acid at
her? She replied that when Mahender had
thrown something at her then she saw that her
clothes and the papers, which she were
holding in her hands, got burnt and gradually
her eyes got glued and thereafter she felt that
Mahender had poured acid at her. The
deceased had clearly stated that she was the
wife of Mahender and her husband had poured
acid at her.
9. The PCR Form-I wherein the first
dying-declaration recorded was proved on
record as Ex. PW-12/A1 in the deposition of
PW-12 Head Constable Devi Dutt, 2091, PCR,
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North West Zone, PCR, Delhi. PW-12 in his
cross-examination stated that he had received
a call from Mobile No.9891847761 informing
him that acid was thrown on a lady near
Petrol Pump, Britannia Chowk, J.J. Colony,
Shakurpur, Delhi on 29th February, 2008 at
about 11.08 a.m. This witness further stated
that the said message was transmitted to PCR
van and a PCR van reached the spot at about
11.16 a.m. on the same day and then Incharge
PCR van transmitted the message to the Police
Control Room that they were proceeding
towards hospital with the said lady. The said
witness also deposed that after the lady was
admitted in LNJP Hospital, Incharge PCR van
gave back information to the Police . Control
Room informing that the injured had informed
him that her husband had poured acid on her.
He also informed the Police Control Room
that doctor had disclosed that the injured had
received 75% burn injuries. There is no reason
to disbelieve the statement of PW-12 and the
PCR Form No.1, proved on record as Ex. PW-
12/A1, which also records the first dying-
declaration of the deceased. The testimony of
PW-12 also remained unrebutted as the
defence did not choose to cross-examine the
said witness. Similarly, the second dying-
declaration which was recorded before the
SDM and was proved on record as Ex. PW-15/
A in the deposition of PW-15 also remained
unchallenged as the appellant did not choose
to cross-examine the said material witness.
PW-15 in his deposition categorically deposed
about the fitness of the victim to give her
statement. He also deposed that her statement
was recorded in his presence and under his
directions, on the questions as were put by him
to her. He also deposed that the deceased Jyoti
had put thumb impression at point „C‟ and had
signed at point „D‟ on Ex. PW-15/A. The
defence utterly failed to rebut or challenge the
testimonies of the said two important
witnesses, who proved on record; the said two
dying-declarations as Exs. PW-12/A and PW-
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15/A.
xxx
17. In the light of the above legal position,
there is no reason to disbelieve the said dying-
declaration made by the deceased, one before
Incharge, PCR van proved on record as Ex.
PW-12/A1 and the other dying-declaration
made by the deceased before the SDM, proved
on record as Ex.PW-15/A. Both the said dying-
declarations were made by her truthfully and
voluntarily without being tutored or prompted
by any person and there is no reason for this
Court to raise any suspicion over the same.
The contention raised by the counsel for the
appellant with regard to his challenge to the
said two dying-declarations has no merit and
deserve an outright rejection.
xxx
27. In the light of the aforesaid discussion
we find our self fully satisfied that the said two
dying declarations were made by the deceased
voluntarily and truthfully, free from any kind
of tutoring or prompting, and they were duly
recorded by the Incharge, PCR van and the
SDM. The learned Trial Court has rightly
convicted the appellant for the offence
committed by him under Section 302 IPC.”
6. On the question of sentence, this Court, in fact, prefaced its
judgment by taking note of the horrifying form of gender-based
violence and a phenomenon growing in India, which is of acid attack.
We would quote from the judgment as under:-
“2. One of the most horrifying forms of
gender-based violence, a growing
phenomenon in India, is acid attack. Though
acid attack is a crime which can be committed
against any man or woman, it has a specific
gender dimension in India. Most of the
reported acid attacks have been committed on
women, particularly young women, for
spurning suitors, for rejecting proposals of
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marriage, for denying dowry etc. The acid is
used with malicious intent to take revenge,
disfigure and harm the person. Some men ego
will not allow them to accept rejection and
when their advances are spurned they retaliate
by throwing acid at the woman. An acid attack
is a terrifying experience. Acid melts human
flesh and even bones. It causes excruciating
pain and terror. The victims are left mutilated
and scarred for the rest of their lives. Some
suffer permanent disabilities such as blindness
and some victims even die as a result of their
injuries. The attacks are made possible by the
easy availability of cheap acids as cleaning
fluid or for use in the cotton industry. Dealing
with this cruellest menace, the Hon‟ble
Supreme Court in a recent case of Laxmi vs.
Union of India and Others reported in 2012
(9) SCALE 291 directed the State governments
and the Union territories to make appropriate
rules for the sale of acid in states and union
territories respectively. The Hon‟ble Apex
Court also directed the government to take
appropriate measures for proper treatment,
after care, rehabilitation and payment of
compensation to the victims of acid attack.”
7. The petitioner challenged the said judgment before the Supreme
Court by way of SLP (Crl.) No.6040/2014, titled Mahender@ Dabbu
v. State (Govt. of NCT Delhi) , which came to be dismissed by the
Supreme Court vide its order dated 01.08.2014, finding no reason to
interfere with the judgment of this Court.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
8. The petitioner has now filed the present petition by placing
reliance on the judgments of the Supreme Court in Union of India v.
V. Sriharan @ Murugan & Ors. , (2016) 7 SCC 1; Shiva Kumar
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Alias Shiva Alias Shivamurthy v. State of Karnataka , (2023) 9 SCC
817; Vikas Chaudhary v. State (NCT of Delhi) , (2023) 19 SCC 144,
and Ravinder Singh v. State Government of NCT of Delhi , (2024) 2
SCC 323, wherein the Supreme Court has held that the Trial Court
does not have a power to impose a fixed term sentence or a modified
punishment on the accused, and that the same can be imposed only by
the High Court or, in the event of further appeal, by the Supreme
Court and not by any other court. It has been held that the power to
impose a modified punishment of providing any specific term of
incarceration or till the end of the convict’s life as an alternative to the
death penalty, can be exercised only by the High Court and Supreme
Court and not by any other subordinate court. The learned senior
counsel for the petitioner submits that, therefore, the sentence awarded
by the learned Trial Court was without jurisdiction and void.
9. Placing reliance on the judgment of the Supreme Court in
Kanishk Sinha & Anr. v. State of West Bengal & Anr. , 2025 SCC
OnLine SC 443, he submits that as the judgment of the Supreme Court
in V. Sriharan @ Murugan (supra) was not held by it to apply only
prospectively, the same would have retrospective operation.
Therefore, merely because the sentence awarded to the petitioner
stood confirmed by this Court and the SLP thereagainst stood
dismissed by the Supreme Court prior to the said judgment, would be
no ground to deny the benefit of the same to the petitioner.
10. He, therefore, prays that the order on sentence dated 13.05.2011
passed by the learned Trial Court be set aside and the learned Trial
Court be directed to re-hear the petitioner on the order on sentence.
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SUBMISSIONS ON BEHALF OF THE RESPONDENT:
11. On the other hand, the learned Additional Standing Counsel
appearing for the respondent submits that the order on sentence having
been confirmed by this Court by dismissing the appeal filed by the
petitioner, and by the Supreme Court, by dismissing the SLP filed by
the petitioner, cannot be interfered with in a writ jurisdiction by this
Court. In support of his plea, he places reliance on the judgment of
the Supreme Court in Neeta Singh & Ors. v. State of Uttar Pradesh
& Ors. , 2024 SCC OnLine SC 5761.
12. On the merits of the writ petition, he submits that the imposition
of a fixed-term sentence has been accepted by the Supreme Court way
back in its judgment in Dalbir Singh & Ors. v. State of Punjab ,
(1979) 3 SCC 745, and reiterated in Swamy Shraddananda v. State of
Karnataka , (2008) 13 SCC 767. He submits that the subsequent
judgment of the Supreme Court in V. Sriharan @ Murugan (supra)
does not invalidate the concept of a modified or special category life
sentence, but in fact, affirms the same, with the only difference being
that it can be imposed only by the High Court or the Supreme Court
and not by any Court subordinate thereto. He submits that this is only
a question of forum and not of power.
13. He submits that, at the time when the order on sentence was
passed by the learned Trial Court, the imposition of a special category
sentence had already been recognised by the Supreme Court in Dalbir
Singh (supra) and Swamy Shraddananda (supra) and, therefore, the
subsequent restriction placed by the Supreme Court in V. Sriharan @
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Murugan (supra) would not invalidate the same.
ANALYSIS & FINDINGS:
14. We have considered the submissions made by the learned
counsels for the parties.
15. In Swamy Shraddananda (supra), the Supreme Court took note
of the large gap between a sentence of life imprisonment, curtailed by
the provision relating to remission, and the death sentence, and
explored the 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. It took note of its earlier
decision in Dalbir Singh (supra), wherein the Court had also
advocated that at the option of the convicting court, the sentence of
imprisonment lasting as long as life lasts can be awarded. The Court
also took note of Section 45 of the IPC and Sections 53, 54, 55, 55A
and 57 of the IPC, as also Articles 72 and 161 of the Constitution of
India, dealing with the powers of the President of India and the
Governors of the States, respectively, to grant pardon, reprieves,
respites or remissions of punishment or to suspend, remit or to
commute the sentence of any person convicted for an offence, as also
Sections 432, 433A, 434 and 435 of the Cr.P.C. and the power of
remission contained in the Prison Acts and the Rules, and observed as
under:-
“ 91 . 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
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actually allowed in cases of life imprisonment
make out a very strong case to make a special
category for the very few cases where the
death penalty might be substituted by the
punishment of imprisonment for life or
imprisonment for a term in excess of fourteen
years and to put that category beyond the
application of remission.
92. The matter may be looked at from a
slightly different angle. The issue of sentencing
has two aspects. A sentence may be excessive
and unduly harsh or it may be highly
disproportionately inadequate. When an
appellant comes to this court carrying a death
sentence awarded by the trial court and
confirmed by the High Court, this Court may
find, as in the present appeal, that the case just
falls short of the rarest of the rare category
and may feel somewhat reluctant in endorsing
the death sentence. But at the same time,
having regard to the nature of the crime, the
Court may strongly feel that a sentence of life
imprisonment that subject to remission
normally works out to a term of 14 years
would be grossly disproportionate and
inadequate. What then the Court should do? If
the Court's option is limited only to two
punishments, one a sentence of imprisonment,
for all intents and purposes, of not more than
14 years and the other death, the court may
feel tempted and find itself nudged into
endorsing the death penalty. Such a course
would indeed be disastrous. A far more just,
reasonable and proper course would be to
expand the options and to take over what, as a
matter of fact, lawfully belongs to the court,
i.e., the vast hiatus between 14 years'
imprisonment and death. It needs to be
emphasized that the Court would take recourse
to the expanded option primarily because in
the facts of the case, the sentence of 14 years
imprisonment would amount to no punishment
at all.
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93. Further, the formalisation of a special
category of sentence, though for an extremely
few number of cases, shall have the great
advantage of having the death penalty on the
statute book but to actually use it as little as
possible, really in the rarest of the rare cases.
This would only be a reassertion of the
Constitution Bench decision in Bachan Singh
(supra) besides being in accord with the
modern trends in penology.
94. In light of the discussions made above
we are clearly of the view that there is a good
and strong basis for the Court to substitute a
death sentence by life imprisonment or by a
term in excess of fourteen years and further to
direct that the convict must not be released
from the prison for the rest of his life or for the
actual term as specified in the order, as the
case may be.”
16. In V. Sriharan @ Murugan (supra), a Constitution Bench of
the Supreme Court considered the following questions:-
“(i) As to whether the imprisonment for life
means till the end of convict‟s life with or
without any scope for remission?
(ii) Whether a special category of sentence
instead of death for a term exceeding 14 years
can be made by putting that category beyond
grant of remission?”
17. In answer to question (i), it was held that imprisonment for a
life, in terms of Section 53 read with Section 45 of the IPC, only
means imprisonment for rest of the life of the prisoner, subject,
however, to the right to claim remission, etc., as provided under
Articles 72 and 161 of the Constitution of India, to be exercisable by
the President and the Governor, and also as provided under Section
432 of the Cr.P.C. The Supreme Court then considered its earlier
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judgment in Swamy Shraddananda (supra) and, while endorsing the
anguish expressed by the Court therein, upheld the imposition of life
imprisonment for a specified period, having regard to the nature of the
offence committed. In answer to question (ii), the Court, however,
held that it is only the High Court, and on further appeal, only the
Supreme Court, and not any other Court in this country, which derives
the power under the IPC, 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 depending on the gravity of the crime committed and the
exercise of judicial conscious befitting such an offence found proved
to have been committed. We quote from the judgment as under:-
“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
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to have been committed.
105. We, therefore, reiterate that the power
derived from the Penal Code for any modified
punishment within the punishment provided
for in the Penal Code for such specified
offences can only be exercised by the High
Court and in the event of further appeal only
by the Supreme Court and not by any other
court in this country. To put it differently, the
power to impose a modified punishment
providing for any specific term of
incarceration or till the end of the convict's life
as an alternate to death penalty, can be
exercised only by the High Court and the
Supreme Court and not by any other inferior
court.”
18. The above limitation on the power of the Trial Court, however,
at the same time, accepting such power of imposing a fixed-term
sentence on the convict to be vested with the High Court and the
Supreme Court, has been reiterated by the Supreme Court in Shiva
Kumar (supra), wherein it has been held as under:-
“10. While answering the question, the
Constitution Bench (majority view) in V.
Sriharan held that imprisonment for life in
terms of Section 53 read with Section 45 IPC
means imprisonment for the rest of the life of
the convict. In such a case, right to claim
remission, commutation etc. in accordance
with law will always be available. Thereafter,
in paragraph 105, the Constitution Bench held
thus:
“105. We, therefore, reiterate that the
power derived from the Penal Code for
any modified punishment within the
punishment provided for in the Penal
Code for such specified offences can only
be exercised by the High Court and in the
event of further appeal only by the
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Supreme Court and not by any other court
in this country. To put it differently, the
power to impose a modified punishment
providing for any specific term of
incarceration or till the end of the
convict's life as an alternate to death
penalty, can be exercised only by the High
Court and the Supreme Court and not by
any other inferior court.”
(emphasis supplied)
11. What is held by the Constitution Bench
in V. Sriharan, 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 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. Sriharan cannot be
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construed to mean that such a power cannot
be exercised by the Constitutional Courts
unless the question is of commuting the death
sentence.
13. 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.”
(emphasis supplied)
14. 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 IPC, shall be of a
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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.”
19. In Vikas Choudhary (supra), the Supreme Court again placing
reliance on V. Sriharan @ Murugan (supra), held as under:-
“17. It is thus clear that Sriharan, approved
an alternative third sentencing option in cases
where the accused are convicted of serious
and grave crimes which carried with it the
option of capital sentence. Realising that a life
sentence per se can lead to early release of the
accused upon their undergoing the minimum
sentence prescribed under Section 433-A, and
highlighting that the asymmetry in State rules
with respect to minimum incarceration in
different kinds of life sentences, this Court
decided to retain to itself (and the High
Courts) the option of imposing what Sriharan,
termed as “special” or “fixed term
sentences”. This was seen as serving the
following purposes:
17.1. As a feasible alternative in capital cases
where the Court was of the opinion that death
sentence is inappropriate, and:
17.2. That the Court was of the opinion that
there were elements in the crime and/or the
conduct of the criminal which warranted
imposition of a mandatory sentence beyond a
minimum of 14 years prescribed by the Code
of Criminal Procedure.
17.3. Where the Court felt, independently,
that the serious nature of the crime and the
manner of its commission warranted a special
sentence, whereby the State‟s discretion in
releasing the offender, should be curtailed so
that the convict is not let out before
undergoing a specified number of years, of
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incarceration .
18. It is hence clear that the trial courts, are
foreclosed from imposing such a modified or
specific term sentence, or life imprisonment
for the remainder of the convict‟s life, as an
alternative to death penalty. The court, when
trying an offence punishable by death penalty
or life imprisonment, has merely these two
options. While the principles evolved in
Sriharan are clear, there are nevertheless
issues which still remain unexplored and
unresolved. Whenever the State proposes and
urges for imposition of death sentence, it has
to, perforce provide material to facilitate the
court to carry out the exercise of balancing the
aggravating factors with the mitigating
circumstances - the test propounded in Bachan
Singh and examined in many cases; the recent
trend being that the reformative element
acquires equal attention. The obligation to
carry out this balancing interest is upon the
courts imposing the sentence in the first
instance i.e. the trial courts; the prosecution
(per Bachan Singh) is also under an obligation
to show that the mitigating circumstances are
absent especially that there are no chances of
reformation of the accused. Since this exercise
is mandated whenever a heinous capital crime
is committed, at the stage of conviction, the
court has no idea that the prosecution may
urge for capital sentence. When that stage
occurs, and the prosecution seeks a capital
sentence, the court has to carry out the
exercise of conducting a review of aggravating
circumstances (which are already on the
record, being factors that lead to the
conviction of the accused) and balancing the
mitigating circumstances (which are not
matters of the record and have to be adduced
by the prosecution and the accused).
xxx
21. Since the judgment in Sriharan reserves
the power to impose special or fixed term
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sentences (which may be longer than the
minimum specified in Section 433-A CrPC -
i.e. may extend to considerably long periods,
such as 30 years), with only the High Courts
and this Court, it is imperative that this
exercise is carried out even in cases where the
accused might eventually not be imposed the
death sentence. To put it simply - although the
trial courts are not empowered to impose such
special sentences, yet at the stage when they
arrive at findings of guilt in the case of a
heinous offence, what would be the nature of
the sentence imposed eventually, is unknown;
therefore, the prosecution would have to
inform the court, and present relevant
materials (as elaborated in Manoj), in case the
death sentence is proposed. In that event, if
ultimately death sentence is not imposed, it is
open to the State (or the aggrieved party,
under Section 372 CrPC) to appeal against the
trial court judgment on the point of sentence;
at that stage the evaluation before the High
Court would be nuanced, and informed with
full materials, about the convict, which
otherwise it would not have the benefit of.
Further, if considerable time has elapsed since
the trial stage at which this exercise was
undertaken, the appellate court should direct
that a fresh attempt be made, to take into
account the contemporaneous progress, if any,
made by the convict.
22. In view of the above discussion, it is
held that wherever the prosecution is of the
opinion that the crime an accused is convicted
for, is so grave that death sentence is
warranted, it should carry out the exercise of
placing the materials, in terms of Manoj, for
evaluation. In case this results in imposition of
death sentence, at the stage of confirmation,
the High Court would have the benefit of
independent evaluation of these materials. On
the other hand, if death sentence is not
imposed, then, the High Court may still be in a
position to evaluate, if the sentence is
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adequate, and wherever appropriate and just,
impose a special or fixed term sentence, in the
course of an appeal by the State or by the
complainant/informant. Given the imperative
need for such material to form a part of the
court‟s consideration, it has to be emphasised
that in case the trial court has failed to carry
out such exercise (for whatever reason), the
High Court has to call for such material while
considering an appeal filed by the State or
complainant for enhancement of sentence
(whether resulting in imposition of capital
punishment, or a term sentence).”
20. In Ravinder Singh (supra), the above proposition was reiterated
by the Supreme Court in the following words:-
“22. In this context, we may note that the
observations made in Swamy Shraddananda
and V. Sriharan clearly indicate the existence
of such power, though the Court stopped short
of declaring so and linked the special category
sentences passed in those cases to substitution
for a death sentence. As pointed out in Swamy
Shraddananda, the Court would take recourse
to the expanded option primarily because the
life sentence of 14 years' imprisonment may
amount to no imprisonment . at all in a given
case. This observation is wide enough to take
within its ambit all sentences of life
imprisonment. Similarly, in V. Sriharan, the
majority opinion noted that there is no
prohibition in the Penal Code, where death
penalty or life imprisonment is provided for,
that imprisonment cannot be imposed for a
specified period within the said life span and
when life imprisonment means the whole life
span of the convict, the court which is
empowered to impose the said punishment
would also have the power to specify the
period up to which the said sentence of life
should remain, befitting the nature of crime.
Again, this edict would hold good for all
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sentences of life imprisonment. No doubt, the
majority opinion also linked it to capital
punishment, by observing that such special
category of sentences could be substituted for
death. More recently, in Shiva Kumar, this
Court affirmed that even in a case where
capital punishment is not "proposed",
constitutional courts would have the power to
impose a modified or fixed-term sentence.
23. The above observations manifest the
applicability of the same principle in cases
where the maximum punishment prescribed by
law is imprisonment for life with nothing
further. Even in such cases, it would be a
parody of justice to allow the convicts so
sentenced to avail the benefit of remissions
and the like, liberally conferred by the State,
and cut short the length of their life sentence
to a mere 14 years. We are, therefore, of the
considered opinion that the law laid down in
Swamy Shraddananda and V. Sriharan with
regard to special category sentencing to life
imprisonment in excess of 14 years by fixing a
lengthier term would be available to the High
Courts and this Court, even in cases where the
maximum punishment, permissible in law and
duly imposed, is life imprisonment with
nothing further. We must, however, hasten to
add that exercise of such power must be
restricted to grave cases, where allowing the
convict sentenced to life imprisonment to seek
release after a 14-year-term would tantamount
to trivialising the very punishment imposed on
such convict. Needless to state, cogent reasons
have to be recorded for exercising such power
on the facts of a given case and such power
must not be exercised casually or for the mere
asking.”
21. Recently, in Ramasrey alia Fakkad v. State of Uttar Pradesh ,
2026 SCC OnLine SC 1402, the Supreme Court again considered the
above issue and held that sentence for remainder of natural life is
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valid.
22. In Naval Kishore & Anr. v. State of Punjab , 2026 SCC OnLine
SC 2000, the Supreme Court, while reiterating that the Trial Court did
not have the power to impose punishment for a fixed period, and
finding that the High Court had affirmed the sentence imposed by the
Trial Court without examining the competence of the Trial Court to
impose such a sentence, proceeded to consider the appropriate
sentence to be awarded in the given facts of that case. Applying the
sentencing principle to the facts of the given case, the Court modified
the sentence to rigorous imprisonment for a period of 25 years without
the benefit of statutory remission. We quote from the judgment as
under:-
“25. In light of the decisions considered
hereinabove, we are of the view that there is
no doubt that the Trial Court was competent to
impose the punishment of imprisonment for life
upon the appellants for the offence under
Section 302 read with Section 34 IPC,
however, at the same time, the Trial Court was
not competent to impose a special category
sentence that the appellants “to remain in
prison till rest of their life”, which in
substance and effect, excludes the statutory
power of remission or commutation.
Therefore, the High Court, while affirming the
sentence imposed by the Trial Court, did not
examine the competence of the Trial Court to
impose such a sentence and thus, to that
extent, the impugned judgment requires
interference of this Court.
26. Having held that the direction issued by
the Trial Court that the appellants shall
“remain in prison till rest of their life” cannot
be sustained, the next question that arises for
our consideration is as to the sentence to be
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imposed upon the appellants having regard to
the facts and circumstances of the present
case.
27. As noted hereinabove, the power to
impose a special category of sentence,
whereby a convict is required to undergo
imprisonment for a specified period beyond
the ordinary remission or commutation
regime, is vested only in the Constitutional
Courts. In this regard, paragraph 79 of Navas
(supra), reproduced hereinabove, is relevant,
wherein this Court provides for the sentencing
principles and considerations that guide the
exercise of such power and it is held that the
power is to be exercised sparingly and upon a
holistic consideration of the facts and
circumstances of each case, including the
nature and gravity of the offence, the
circumstances in which the offence was
committed, the role attributable to the
accused, the period of incarceration already
undergone, the conduct of the convict while in
custody and the prospects of rehabilitation of
the convict.
28. We are of the view that the offence in
the present case involves the premeditated
murder of three persons, including two minor
children, which aggravates the seriousness of
the offence. Further, the manner in which the
offence was committed, i.e. by inflicting
injuries on their throats and other body parts
by sharp-edged weapons, is also a
circumstance which cannot be lost sight of
while determining the appropriate sentence.
29. At the same time, sentencing is not an
exercise which can be determined solely by the
nature of the crime. We are of the view that the
Court must balance the circumstances of the
offence with the circumstances of the accused
and thus, the sentence must be proportionate
to the crime while also preserving the
possibility of reformation and rehabilitation of
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the accused, wherever the circumstances of the
case permit.
30. In the present case, the appellants have
undergone a substantial period of
incarceration. The custody certificates placed
on record show that, as on 08.07.2026, Naval
Kishore had undergone an actual period of
custody of 12 years, 5 months and 20 days,
including the period of custody undergone as
an undertrial, whereas Jyoti Kumar had
undergone an actual period of custody of 11
years, 6 months and 9 days.
31. Furthermore, the conduct of the
appellants during their incarceration is also a
relevant consideration. We have perused the
conduct certificates issued in respect of both
the appellants, which were called for by this
Court vide order dated 26.05.2026. The
certificates indicate that the conduct of both
the appellants has remained satisfactory. They
have maintained good discipline, complied
with the prison rules and regulations and their
behaviour towards the prison staff and fellow
inmates has also been found to be satisfactory.
32. Therefore, having regard to the gravity
of the offence, the fact that three persons were
killed including two minor children, the
respective roles attributed to the appellants,
the substantial period of incarceration already
undergone by them, their satisfactory conduct
during custody and the fact that the present
proceedings are confined to the question of
sentence, the ordinary imprisonment for life
subject to the statutory remission or
commutation regime would not adequately
meet the ends of justice, whereas,
imprisonment for the remainder of the natural
life of the appellants would be
disproportionate in the circumstances of the
present case. In our considered view, the ends
of justice would be adequately met by altering
the sentence of the appellants awarded by the
Trial Court, i.e. rigorous imprisonment for life
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and “to remain in prison till rest of their life”,
to the sentence of rigorous imprisonment for a
period of 25 years, without any statutory
remission.
33. In view of the above discussion,
Question (A) is answered in the negative. The
Trial Court was competent to impose the
punishment of imprisonment for life upon the
appellants under Section 302 read with
Section 34 IPC, however, it was not competent
to direct that the appellants shall “remain in
prison till rest of their life”. Accordingly,
Question (B) is answered and while exercising
our powers as a Constitutional Court, we alter
the sentence of the appellants from rigorous
imprisonment for life with the direction that
they shall “remain in prison till rest of their
life” to the sentence of rigorous imprisonment
for a period of 25 years without the benefit of
statutory remission. At this stage, it is required
to be observed that as on 08.07.2026,
appellant No.1 had already undergone a
period of custody of 12 years, 5 months and 20
days and appellant No.2 had already
undergone a period of custody of 11 years, 6
months and 9 days.
34. Accordingly, the conviction of the
appellants under Section 302 read with
Section 34 of the IPC is affirmed. However,
the sentence imposed upon the appellants by
the Trial Court, which was affirmed by the
High Court, is modified to the extent indicated
above. The direction requiring the appellants
“to remain in prison till the rest of their life”
is hereby set aside and in substitution thereof,
both the appellants are sentenced to undergo
rigorous imprisonment for a period of 25
years, without the benefit of any statutory
remission.”
23. In the present case, the High Court and, for that matter, even the
Supreme Court, did not have the benefit of the judgment of V.
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Sriharan @ Murugan (supra) at the time when the sentence awarded
to the petitioner was confirmed by the High Court and SLP filed there-
against was dismissed by the Supreme Court. Be that as it may, the
High Court, in its judgment dated 01.11.2013, considered the gravity
of the allegations made against the petitioner herein and as he was
found guilty of having thrown acid on his wife resulting in her death,
upheld the sentence awarded to him.
24. The sentence having been affirmed by the High Court, which
admittedly, even as per the judgment of the Supreme Court in V.
Sriharan @ Murugan (supra) and the other judgments that we have
referred to hereinabove, has the power to impose a fixed-term
sentence on a convict, and the said order having been affirmed by the
Supreme Court by dismissing the SLP filed there-against, we see no
reason in the present Writ Petition to interfere with the sentence
awarded to the petitioner.
25. Accordingly, we find no merit in the present petition. The same
alongwith the pending application is dismissed. There shall be no
order as to costs.
NAVIN CHAWLA, J
ARUN BHARDWAJ, J
NOVEMBER 4, 2026/ ns/ rv /as
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