Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 814 OF 2023
Shiv Mangal Ahirwar …Appellant
versus
State of Madhya Pradesh ...Respondent
J U D G M E N T
ABHAY S. OKA, J.
1. Heard learned counsel for the parties.
FACTUAL ASPECTS
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2. This is a case where, on 15 March 2006, the
present appellant, along with other coaccused,
committed the murder of three persons. According to the
case of the prosecution, the incident occurred at about 7
Signature Not Verified
th
p.m. on 15 March 2006 at Village Khaira Kasar, PS
Digitally signed by
Indu Marwah
Date: 2023.04.13
17:44:56 IST
Reason:
Jujharnagar. It is alleged that the accused persons
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formed a wrongful assembly with the common object of
murdering Rambabu, Dileep and Babbu. The accused
were armed with deadly weapons, such as a country
made pistol, lance, javelin, battleaxe, axe and sticks.
Apart from killing three persons, they caused injuries to
one Bhola and Smt. Shanti. The Sessions Court
convicted the appellant for the offence under Section 302,
read with Section 149 (on three counts) of the Indian
Penal Code, 1860 (for short, ‘the IPC’). Three other co
accused were also convicted for the same offence. All the
accused were sentenced to undergo life imprisonment
with a direction that their imprisonment shall continue
for the rest of their lives. In the appeal preferred by the
present appellant, the High Court has confirmed the
sentence.
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
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passed by the Trial Court on 20 April 2010, his age was
about 25 years. He submitted that the present age of the
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appellant is 38 years. He submitted that in view of the
decision of the Constitution Bench in the case of Union
1
the
of India v. V. Sriharan alias Murugan & Ors. ,
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.
4. The learned Additional Advocate General appearing
for the respondent – State submitted that it is a case of
the brutal murder of three persons at a time. His
submission is that the appellant and other coaccused
were carrying deadly weapons with the intention of killing
three victims. He submitted that both the Courts
believed the testimony of the three prosecution witnesses,
namely Shanti Bai (PW3), Sangeeta (PW4) and Guddi
Bai (PW7). He would, therefore, submit that no
interference is called for. As regards the sentence, his
submission is that the High Court always had the power
to impose a modified punishment which will run through
the life of the appellant. After an application of mind, the
High Court has confirmed the view taken by the Sessions
Court, as far as the sentence of the appellant is
concerned. He pointed out that the trial of the five other
1 2016 (7) SCC 1
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accused was separated. This Court has confirmed their
rd
conviction and sentence by order dated 23 September
2022 in S.L.P. (Crl.) Diary No.16999 of 2022.
We have perused the judgments of both the Courts
5.
and depositions of material witnesses and, in particular,
the evidence of PW3, PW4 and PW7, who were the eye
witnesses. We find that in their crossexamination, no
material is brought on record to discredit their version.
After appreciating the evidence of these three
eyewitnesses, the Sessions Court and the High Court
found them to be trustworthy and therefore, their
evidence has been relied upon.
6. After having perused their evidence, we find no
reason to take a contrary view. Now, the only question
which survives is about the sentence.
This Court, in the case of
7. Shiva Kumar alias
2
, had
Shiva alias Shivamurthy v. State of Karnataka
an occasion to deal with the decision of the Constitution
1
Bench of this Court in the case of V. Sriharan . This
Court also considered its earlier decision in the case of
Swamy Shraddananda (2) alias Murali Manohar
3
. While considering the
Mishra v. State of Karnataka
2 2023 SCC Online SC 345
3 2008 (13) SCC 767
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law laid down by the Constitution Bench in the case of V.
1 2
, in , this Bench in
Sriharan Shiva Kumar’s case
paragraphs 11 to 13 held thus:
“ What is held by the Constitution
11.
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
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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.
1
cannot be construed to
Sriharan
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
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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.”
Hence, we have no manner of
13.
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 fixedterm
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. ”
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(emphasis added)
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 fixedterm sentence. The
question is whether the appellant should be directed to
undergo imprisonment till the end of his life.
After weighing all the relevant factors indicated in
11.
paragraph 9 above, we are of the opinion that a modified
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sentence for a period of 30 years deserves to be imposed
on the appellant.
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.
13. The appeal is, accordingly, partly allowed with no
order as to costs.
.…………………J.
(Abhay S. Oka)
..…………………J.
(Rajesh Bindal)
New Delhi;
April 13, 2023.
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