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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 2083-2084 OF 2008

Sahib Hussain @ Sahib Jan               .... Appellant(s)

Versus

State of Rajasthan     .... Respondent(s)

J U D G M E N T P.Sathasivam,J.

1) These appeals are directed against the final judgment  

and order  dated 05.03.2008 passed by  the High  Court  of  

Judicature  for  Rajasthan  at  Jaipur  in  Criminal  Death  

Reference No. 1 of 2007 and Criminal Appeal Nos. 91 and 92  

of 2008 whereby the High Court disposed of the appeals filed  

by the appellant herein against the order of conviction and  

sentence  dated  13.12.2007  passed  by  the  Court  of  

Additional Sessions Judge (Fast Track), Serial No. 1, Jaipur,  

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District  Jaipur  (Rajasthan)  by  commuting  the  sentence  of  

death to imprisonment for life.   

2) Brief facts:

a) It  is  an unfortunate incident of killing of five persons  

who were residing at  Bharti  Colony,  Kunda,  Tehsil  Aamer,  

District Jaipur, Rajasthan.     

b) On  27.10.2006,  at  10.30  p.m.,  one  Zafar  (PW-1)-the  

informant,  who was also residing at the above said place,  

while  on  his  way  back  home  found  the  appellant  herein  

talking  to  one  Satish  (PW-4)  that  he  had  finished  Seema  

Bhabhi (sister-in-law) and also killed the three children and  

Munna Mawali.   On hearing this,  PW-1 went towards their  

house and found that Munna Mawali was lying in a pool of  

blood on the Chabutra outside his room and his nephew Kalu  

was lying dead inside the room and the bodies of Seema–the  

wife  of  Munna,  Isha-son  of  Lalu  Chacha  and  Sonu-son  of  

Munna were lying in pool of blood in the other room.  After  

seeing  this,  he  ran  towards  Satish  (PW-4)  and asked him  

about the appellant herein.  PW-4 informed him that he ran  

towards the Highway after changing the clothes.  Thereafter,  

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PW-1 informed the same to Ballu Bhai @ Ballu (PW-2) over  

telephone.  After some time, a written report was handed  

over to the S.H.O., Police Station, Aamer by PW-1, at 12.30  

a.m.   Munna Mawali  was removed to the hospital  by the  

police but he died on the way.  

c)  On  the  basis  of  the  said  information,  a  case  being  

Crime No. 466/2006 under Section 302 of the Indian Penal  

Code, 1860 (in short ‘the IPC) was registered against Sahib  

Hussain.    Post  mortem on  the  dead  bodies  was  also  

performed.  After investigation and filing of chargesheet, the  

case  was  committed  to  the  Court  of  Additional  Sessions  

Judge  (Fast  Track),  Serial  No.  1,  Jaipur,  District  Jaipur  

(Rajasthan)  and  numbered  as  Session  Case  No.  90/2006.  

During trial, it came to the knowledge of the court that there  

was  a  scuffle  between  the  appellant  herein  and  Seema  

(since deceased) on the day of Eid which resulted in such a  

gruesome  act.   However,  taking  note  of  circumstantial  

evidence,  the  Additional  Sessions  Judge,  by  order  dated  

13.12.2007, convicted the appellant-accused for the offence  

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punishable under Section 302 of IPC and sentenced him to  

death.  

d) Aggrieved  by  the  said  order,  the  appellant-accused  

preferred appeals being Criminal Appeal Nos. 91 and 92 of  

2008 before the High Court.  Death Reference No. 1 of 2007  

under Section 366 of the Code of Criminal Procedure, 1973  

(in short ‘the Code) was also preferred by the trial court for  

confirmation of the death sentence.  By impugned judgment  

dated 05.03.2008, the High Court disposed of the appeals  

filed by the appellant-accused by commuting the sentence of  

death to the imprisonment for life and also made a direction  

that he shall not be released from the prison unless he serve  

out at least 20 years of imprisonment including the period  

already undergone and also he shall not get the benefit of  

any remission either by the State or by the Government of  

India on any auspicious occasion.

e) Aggrieved  by  the  said  order,  the  appellant  preferred  

these appeals from jail by way of special leave before this  

Court.

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3) Heard Mr. Pijush K. Roy, learned amicus curiae for the  

appellant-accused  and  Ms.  Archana  Pathak  Dave,  learned  

counsel for the State of Rajasthan.

Contentions:

4) (a) Mr.  Pijush K. Roy, learned  amicus, after taking us  

through  the  entire  materials,  submitted  that  there  is  no  

direct eye witness to speak about the incident and the case  

of  the  prosecution  entirely  rests  upon  circumstantial  

evidence.  According to him, the circumstances relied on by  

the prosecution have not been satisfactorily established and,  

in  any  event,  the  circumstances  said  to  have  been  

established against the appellant do not provide a complete  

chain  to  bring  home the  guilt  against  the  appellant.   He  

further  submitted that  the FIR itself  is  doubtful,  there are  

contradictions with regard to the place where the accused  

has first of all disclosed about the incident to Satish (PW-4),  

a  number  of  infirmities  in  the  statements  of  witnesses  in  

respect of the fact that the place of incident was surrounded  

by many housesholds, no reliable person was examined on  

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the side of the prosecution and recovery of weapon (Axe),  

clothes, pair of chappal etc. are doubtful, hence, he prayed  

for acquittal of the appellant-accused. Alternatively, Mr. Roy  

contended that the High Court was not justified in passing  

the  order  taking  away  the  right  of  remission  by  the  

Government before completion of 20 years’ of imprisonment.

(4)(b) On  the  other  hand,  Ms.  Archana  Pathak  Dave,  

learned counsel for the State, after taking us through all the  

materials  submitted  that  the  prosecution  has  fully  

established  various  circumstances  which  speak  about  the  

guilt of the appellant including the recoveries, extra judicial  

confession, conduct of the appellant mentioning false name  

at  the time of  his  arrest  etc.   She further  submitted that  

there is no denial in his statement under Section 313 of the  

Code that he was absconding from the scene of occurrence  

till  he was arrested and the evidence of  PWs 1 & 4 with  

regard to the same are also consistent  and reliable.   Ms.  

Archana also submitted that taking note of the fact that the  

appellant caused the death of 5 persons and the High Court  

has commuted the death sentence into life  imprisonment,  

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based on  various  earlier  decisions  of  this  Court,  the  High  

Court justified in imposing restrictions in granting remission  

before completion of 20 years’ of imprisonment.

5) We have carefully considered the rival contentions and  

perused  all  the  materials  including  oral  and  documentary  

evidence.

Discussion:

6) It  is  not in dispute that in the incident in question 5  

persons,  viz.,  Seema,  Munna Mawali,  Kalu,  Isha and Sonu  

died and as per the  post mortem reports, the deaths were  

due to multiple injuries on various parts of the bodies.  It is  

also not in dispute that there is no direct eye witness to the  

incident which occurred around 10.30 p.m., on 27.10.2006.  

Even in the absence of eye-witness to the incident, if various  

circumstances  prove  that  the  appellant-accused  was  

responsible  and  involved  in  the  gruesome  murders,  the  

decision of the Court based on such circumstances cannot  

be  faulted  with.   However,  we  have  to  see  whether  the  

circumstances relied on by the prosecution have been fully  

established or not?

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7) The  post  mortem report,  ante mortem injuries  noted  

therein and the  evidence of  doctors concerned show that  

all the five deaths were homicidal in nature.  Since the above  

aspect is not seriously disputed, there is no reason to refer  

the nature of injuries and the ultimate opinion of the doctor  

who conducted the post mortem.

8) The prosecution heavily relied on the evidence of Jafar  

(PW-1) and Satish (PW-4).  PW-1, in his evidence has stated  

that he used to reside with one Ballu Bhai in Bharti Colony  

Kunda,  Aamer.   According  to  him,  Ballu  Bhai  had  many  

elephants and he used to ride one of his elephant.  Munna  

and  Munna  Mawali  (since  deceased)  were  also  elephant  

riders.   He  further  explained  that  on  the  day  of  the  

occurrence,  around 10.30 p.m.,  while he was going to his  

home,  he  noticed  the  appellant-accused  talking  to  Satish  

(PW-4) that he had committed the murder of Seema Bhabai,  

Munna  Mawalai  and  three  children.   On  hearing  this,  he  

immediately rushed to their house and noticed that Munna  

Mawali was lying outside his room in pool of blood and inside  

the rooms, Seema and three children were lying dead.  In  

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addition  to  the  evidence  of  PW-1,  one  Satish,  who  was  

examined as PW-4, supported the testimony of Jafar (PW-1).  

In his evidence, he explained that he was an elephant rider  

and used to ride the elephant of Ballu Bhai and also residing  

at  the above said place.   He further  stated that  at  about  

10.30  p.m.,  the  appellant-accused  came  to  him  and  

disclosed about the incident.

9) A perusal of the entire evidence of PWs 1 & 4, though  

they did not witness the occurrence, as rightly observed by  

the High Court,  the manner in which they deposed before  

the Court and the details stated by them are acceptable and  

there is no valid reason to disbelieve their statements.  Their  

evidence very clearly establishes that the appellant-accused  

was the person who was involved in the incident occurred.

10) The  prosecution  heavily  relied  on  the  extra  judicial  

confession.   The extra  judicial  confession,  though a  weak  

type of  evidence,  can form the basis  for  conviction if  the  

confession  made  by  the  accused  is  voluntary,  true  and  

trustworthy.  In other words, if it inspires the confidence, it  

can  be  acted  upon.   We  have  already  noted  that  the  

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appellant-accused mentioned the details of the incident to  

Satish (PW-4) and the courts below accepted his version as  

reliable and trustworthy.  Ms. Archana, learned counsel for  

the State took us through the entire evidence of Satish (PW-

4) and on going through the same, we are satisfied that his  

evidence is reliable, acceptable and inspires our confidence.  

We have already noted that the evidence of PW-4 supports  

the stand taken by PW-1.  It is also on record that PW-4 was  

the friend of the appellant-accused and they were residing in  

the  same  area.   In  those  circumstances,  the  confession  

made by the appellant to PW-4 can be acted upon along with  

other material evidence.

11) Let us consider the recoveries made and relied upon by  

the prosecution for proving the case.  It is the case of the  

prosecution  that  the  appellant-accused  was  arrested  on  

28.10.2006,  at  10.30 a.m.   On the basis  of  his  disclosure  

statement, a blood stained axe got recovered vide recovery  

memo (Exh. P-10) and the clothes worn by him, which were  

concealed  in  a  room,  got  recovered  vide  recovery  memo  

(Exh. P-11) in the presence of Mohd. Salim @ Ballu (PW-2)  

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and Abdul  Majid  (PW-3).   Further,  a  pair  of  blood stained  

chappal was also seized vide recovery memo (Ex.P-8).  On  

going through the evidence of PWs 2 & 3, both the courts  

below  found  that  the  recoveries  are  acceptable  and  

concluded  that  there  is  no  reason  to  disbelieve  their  

statements.

12) Another important aspect relied on by the prosecution  

is the conduct of the appellant-accused.  Though it may not  

be a main link in the chain of circumstances to prove the  

guilt  of  the  appellant-accused,  however,  absconding  from  

the scene would establish the guilt of the accused and rule  

out hypothesis of innocence.  In the case on hand, it  has  

come  out  from  the  evidence  that  immediately  after  the  

incident, he left village Kunda and boarded a bus to Delhi.  

However, he was arrested at 2.20 a.m., on 28.10.2006, at  

old Barrier Shahjahanpur.  It has come out from the evidence  

of Murari Lal (PW-16), sub-Inspector, Kotwali Jhunjhunu that  

on  28.10.2006,  at  about  2.00  a.m.,  Commanding  Officer,  

Behrod, informed him that one Sahib Hussain had absconded  

after committing murder of 5 persons.  He further explained  

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that he recorded the said information in Rojnamcha (Exh. P-

51).  According to him, around 2.20 a.m., he stopped a bus  

at Shahjahanpur Barrier which was proceeding to Delhi from  

Jaipur and the appellant was sitting in that bus.  When he  

asked the appellant about his identity, initially, he gave his  

name as Zakir Hussain but when he got panicked, it raised  

suspicion in his mind.  On being interrogated, he disclosed  

his correct name as Sahib Hussain and, thereafter, he was  

handed over to Police Station Aamer.   There is  no proper  

explanation  by  the  appellant-accused  even  under  Section  

313 statement for his sudden departure from the scene and  

going to Delhi.  In the absence of any reason, the conduct of  

the appellant supports the case of the prosecution.

13) Another aspect which goes against the conduct of the  

appellant which relates to the earlier paragraph is that when  

he was questioned by PW-16 in the bus, which was going to  

Delhi from Jaipur, he suppressed his original name and gave  

his name as Zakir Hussain and only on further interrogation,  

he disclosed his original  name.   As rightly pointed out  by  

learned  counsel  for  the  State,  there  was  no  reason  to  

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suppress his original name and furnish false name to PW-16.  

These aspects go against his conduct and support the case  

of the prosecution.   

14) As  regards  motive,  the  prosecution  relied  on  the  

evidence of Jafar (PW-1) - the informant, that the appellant  

had a quarrel with Seema (the deceased) on the day of Eid.  

The above statement of Jafar (PW-1) gets corroboration from  

the evidence of Satish (PW-4) who deposed before the Court  

that  on  the  day  of  Eid  there  was  a  quarrel  between  the  

deceased and the accused.  As rightly pointed out by learned  

counsel for the State, the above incident cannot be ruled out  

in  view of  the  fact  that  while  the  appellant  was inflicting  

blows using an axe on the person of Seema, Munna Mawali,  

Kalu, Isha and Sonu arrived there to help her but they were  

also done to death.   

15) Another  important  aspect  which  supports  the  

prosecution theory is the FSL report and DNA report which  

matches with the blood group of the deceased and the blood  

group found on the chappals, pant, shirt and axe.  According  

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to us, as rightly concluded by the courts below, the above  

reports support the case of the prosecution.

16) In addition to the same, we also verified the statement  

of  the  accused  recorded  under  Section  313  of  the  Code  

which shows that the appellant has neither denied nor stated  

about  the  incriminating  circumstances  relied  on  by  the  

prosecution.

17) Though  Mr.  Roy,  learned  counsel  for  the  appellant-

accused has stated that the FIR itself is doubtful, on going  

through the same, along with other materials relied on by  

the  prosecution,  we  are  satisfied  that  the  FIR  was  not  

deliberately withheld by the prosecution.  Learned counsel  

for the appellant has also pointed out that non-examination  

of Munna-the husband of the deceased Seema, is fatal to the  

case of the prosecution.  It is true that the prosecution could  

have  examined  Munna,  however,  in  view  of  various  

circumstances stated by the prosecution, we are of the view  

that  merely  because  one  person  was  not  examined,  the  

entire case of the prosecution cannot be thrown out.  We are  

satisfied  that  all  the  circumstances  relied  on  by  the  

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prosecution  are  reliable,  acceptable  and  connect  the  

appellant-accused in respect of the guilt in question.  We are  

in  agreement  with  the  conclusion  arrived  at  by  the  High  

Court.

18) Regarding  the  alternative  argument,  viz.,  that  the  

direction of the High Court that the appellant shall  not be  

released from prison unless he has served out 20 years of  

imprisonment  including  the  period  already  undergone  by  

him and not entitled to the benefit of any remission either  

from  the  State  or  from  the  Government  of  India  on  any  

auspicious occasion, let us consider various earlier decisions  

of this Court on this aspect.  In other words, we are posing a  

question  whether  the  courts  are  warranted  to  limit  the  

remission power under the Code for whatsoever reasons?

19) In the case of Shri Bhagwan vs. State of Rajasthan  

(2001) 6 SCC 296, this Court held as under:  

“24 Therefore, in the interest of justice, we commute the  death  sentence imposed upon the  appellant  and  direct  that  the  appellant  shall  undergo  the  sentence  of  imprisonment for life. We further direct that the appellant  shall  not  be  released  from  the  prison  unless  she  had  served out at least  20 years  of imprisonment including  the period already undergone by the appellant.”

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20) In  Prakash Dhawal Khairnar (Patil) vs.  State of  

Maharashtra With State of Maharashtra vs. Sandeep @  

Babloo Prakash Khairnar (Patil) (2002)  2  SCC 35,  this  

Court held as under:

“24….In  this  case  also,  considering  the  facts  and  circumstances,  we  set  aside  the  death  sentence  and  direct that for murders committed by him, he shall served  out  at  least  20  years of  imprisonment  including  the  period already undergone by him.”

21) In  Ram Anup Singh and  Ors.  vs.  State  of  Bihar  

(2002) 6 SCC 686, a three-Judge Bench of this Court held as  

follows:

“27…..Therefore,  on  a  careful  consideration  of  all  the  relevant  circumstances  we  are  of  the  view  that  the  sentence  of  death  is  not  warranted  in  this  case.  We,  therefore, set aside the death sentence awarded by the  Trial Court and confirmed by the High Court to appellants  Lallan  Singh  and  Babban  Singh.  We  instead  sentence  them  to  suffer  rigorous  imprisonment  for  life  with  the  condition  that  they  shall  not  be  released  before  completing  an  actual  term  of  20  years including  the  period already undergone by them.”

22) In  Nazir Khan and Ors. vs. State of Delhi (2003) 8  

SCC 461, this Court concluded,  

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“44….Considering  the  gravity  of  the  offence  and  the  dastardly  nature  of  the  acts  and  consequences  which  have flown out and, would have flown in respect, of the  life  sentence,  incarceration  for  the  period  of  20 years  would be appropriate. The accused appellants would not  be entitled to any remission from the, aforesaid period of  20 years.”

23) In  Swamy Shraddananda  (2)  @ Murali  Manohar  

Mishra  vs. State of Karnataka, (2008) 13 SCC 767, this  

aspect has been considered in detail by a three-Judge Bench  

of this Court which we are going to refer in the later part of  

our order.  

24) In  Haru Ghosh vs.  State of West Bengal (2009) 15  

SCC 551, this Court held as under:  

“43. That leaves us with a question as to what sentence  should  be  passed.  Ordinarily,  it  would  be  the  imprisonment  for  life.  However,  that  would  be  no  punishment  to  the  appellant/accused,  as  he  is  already  under the shadow of sentence of  imprisonment for  life,  though he has been bailed out by the High Court. Under  the circumstance, in our opinion, it will be better to take  the  course  taken  by  this  Court  in  the  case  of  Swamy  Shraddananda (cited supra), where the Court referred to  the hiatus between the death sentence on one part and  the life imprisonment,  which actually might come to 14  years'  imprisonment.  In  that  case,  the  Court  observed  that the convict must not be released from the prison for  rest of his life or for the actual term, as specified in the  order, as the case may be.  44. We do not propose to send the appellant/accused for  the  rest  of  his  life;  however,  we  observe  that  the  life  imprisonment in case of the appellant/accused shall not  be less  than 35 years  of  actual  jail  sentence,  meaning  

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thereby, the appellant/accused would have to remain in  jail for minimum 35 years.  45.  With  this  observation,  the  appeal  is  disposed  of,  however,  the  death  sentence  is  not  confirmed  and  instead,  would  be substituted by  the  sentence that  we  have indicated.”

25) In  Ramraj  @  Nanhoo  @  Bihnu vs.  State  of  

Chhattisgarh (2010) 1 SCC 573, this Court held,

“25.  In  the  present  case,  the  facts  are  such  that  the  petitioner is fortunate to have escaped the death penalty.  We do not think that this is a fit case where the petitioner  should  be  released  on  completion  of  14  years  imprisonment. The petitioner's case for premature release  may be taken up by the concerned authorities after he  completes  20 years imprisonment, including remissions  earned.”

26) Neel Kumar @ Anil Kumar vs. The State of Haryana  

(2012) 5 SCC 766, this Court held as follows:  

“39. Thus, in the facts and circumstances of the case, we  set  aside  the  death  sentence  and  award  life  imprisonment. The Appellant must serve a  minimum of  30 years in jail without remissions, before consideration  of his case for pre-mature release.”

27) In  Sandeep  vs.  State of UP (2012) 6 SCC 107,  this  

Court observed as follows:  

“75. Taking note of the above decision and also taking  into account the facts and circumstances of the case on  hand, while holding that the imposition of death sentence  to  the  accused  Sandeep  was  not  warranted  and  while  awarding  life  imprisonment  we  hold  that  accused  Sandeep  must  serve  a  minimum  of  30  years in  jail  without  remissions  before  consideration  of  his  case  for  

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premature release.”

28) In  the case of  Gurvail  Singh @ Gala and Anr.  vs.  

State of Punjab (2013) 2 SCC 713, this Court concluded:

“20….Considering the totality of facts and circumstances  of this case we hold that imposition of death sentence on  the Appellants was not warranted but while awarding life  imprisonment to the Appellants,  we hold that they must  serve a minimum of thirty years in jail without remission.  The sentence awarded by the trial court and confirmed by  the  High  Court  is  modified  as  above.  Under  such  circumstance, we modify the sentence from death to life  imprisonment.  Applying  the  principle  laid  down  by  this  Court  in  Sandeep (supra),  we are of  the view that  the  minimum  sentence  of  thirty  years  would  be  an  adequate punishment, so far as the facts of this case are  concerned.”

29) It  is  clear  that  since  more  than  a  decade,  in  many  

cases, whenever death sentence has been commuted to life  

imprisonment where the offence alleged is serious in nature,  

while  awarding  life  imprisonment,  this  Court  reiterated  

minimum years of imprisonment of 20 years or 25 years or  

30 years or 35 years, mentioning thereby, if the appropriate  

Government wants to give remission,  the same has to be  

considered  only  after  the  expiry  of  the  said  period.   No  

doubt, the said aspect was not agreeable by this Court in the  

case of Sangeet and Anr. vs. State of Haryana (2013) 2  

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SCC 452 in which it was held as under:

“54. A reading of some recent decisions delivered by  this Court seems to suggest that the remission power of  the  appropriate  Government  has  effectively  been  nullified  by awarding sentences of  20 years,  25 years  and  in  some  cases  without  any  remission.  Is  this  permissible?  Can  this  Court  (or  any  Court  for  that  matter)  restrain  the  appropriate  Government  from  granting remission of a sentence to a convict? What this  Court  has  done  in  Swamy  Shraddananda and  several  other cases, by giving a sentence in a capital offence of  20 years or 30 years imprisonment without remission, is  to effectively injunct the appropriate Government from  exercising its power of remission for the specified period.  In  our  opinion,  this  issue  needs  further  and  greater  discussion,  but  as  at  present  advised,  we  are  of  the  opinion  that  this  is  not  permissible.  The  appropriate  Government  cannot  be  told  that  it  is  prohibited  from  granting  remission  of  a  sentence.  Similarly,  a  convict  cannot be told that he cannot apply for a remission in his  sentence, whatever the reason.”

In this case, though the Division Bench raised a doubt about  

the  decision  of  a  three-Judge  Bench  in  Swamy  

Shraddananda (supra),  yet  the  same  has  not  been  

referred  to  a  larger  Bench.   In  Swamy  Shraddananda  

(supra), after  taking  note  of  remissions  by  various  State  

Governments without adequate reasons or  even on flimsy  

grounds, in order to set right the same, a three-Judge Bench  

analysed  all  the  relevant  aspects  including  the  earlier  

decisions and discussed them in the following paragraphs:

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“88. It is thus to be seen that both in Karnataka and Bihar  remission is granted to life convicts by deemed conversion  of  life  imprisonment  into  a  fixed  term of  20  years.  The  deemed conversion of life imprisonment into one for fixed  term by executive orders issued by the State Governments  apparently flies in the face of a long line of decisions by  this  Court  and  we  are  afraid  no  provision  of  law  was  brought to our notice to sanction such a course. It is thus  to  be  seen  that  life  convicts  are  granted  remission  and  released from prison on completing the fourteen-year term  without any sound legal basis. One can safely assume that  the position would be no better in the other States. This  Court can also take judicial notice of the fact that remission  is allowed to life convicts in the most mechanical manner  without  any  sociological  or  psychiatric  appraisal  of  the  convict and without any proper assessment as to the effect  of the early release of a particular convict on the society.  The grant of remission is the rule and remission is denied,  one may say, in the rarest of rare cases.

89. Here, it may be noted that this has been the position  for a very long time. As far back as in 1973, in Jagmohan  Singh a Constitution Bench of this Court made the following  observation:  

“14. … In the context of our criminal law which punishes  murder, one cannot ignore the fact that life imprisonment   works out in most cases to a dozen years of imprisonment   and  it  may  be  seriously  questioned  whether  that  sole   alternative  will  be an adequate substitute  for  the death  penalty.”                                                   (emphasis added)

Five years after  Jagmohan, Section 433-A was inserted in  the  Code  of  Criminal  Procedure,  1973  imposing  a  restriction  on the power  of  remission  or  commutation  in  certain  cases.  After  the  introduction  of  Section  433-A  another Constitution Bench of this Court in  Bachan Singh  made the following observation:  

“156. It may be recalled that in  Jagmohan this Court had  observed that, in practice, life imprisonment amounts to 12  years in prison. Now, Section 433-A restricts the power of  remission and commutation conferred on the appropriate  Government under Sections 432 and 433, so that a person  who is sentenced to imprisonment for life or whose death  

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sentence is commuted to imprisonment for life must serve  actual imprisonment for a minimum of 14 years.” Thus all that is changed by Section 433-A is that before its  insertion an imprisonment for life in most cases worked out  to a dozen years of imprisonment and after its introduction  it  works  out  to  fourteen  years'  imprisonment.  But  the  observation in  Jagmohan that this cannot be accepted as  an  adequate  substitute  for  the  death  penalty  still  holds  true.

90. Earlier  in  this  judgment  it  was  noted  that  in  the  decision in Shri Bhagwan there is a useful discussion on the  legality  of  remission  in  the  case  of  life  convicts.  The  judgment in  Shri Bhagwan, refers to and quotes from the  earlier  decision in  State of  M.P. v.  Ratan Singh which in  turn  quotes  a  passage  from  the  Constitution  Bench  decision  in  Gopal  Vinayak Godse.  It  will  be profitable  to  reproduce here the extract from Ratan Singh:  

“4.  As  regards the first  point,  namely,  that  the  prisoner  could be released automatically on the expiry of 20 years  under the Punjab Jail Manual or the Rules framed under the  Prisons Act, the matter is no longer res integra and stands  concluded  by  a  decision  of  this  Court  in  Gopal  Vinayak  Godse v.  State of Maharashtra, where the Court, following  a decision of the Privy Counsel in Pandit Kishori Lal v. King  Emperor observed as follows:  

‘4.  … Under that section a person transported for life or  any other terms before the enactment of the said section  would  be  treated  as  a  person  sentenced  to  rigorous  imprisonment for life or for the said term. 5. If so the next question is whether there is any provision  of  law  whereunder  a  sentence  for  life  imprisonment,  without any formal remission by appropriate Government,  can be automatically treated as one for a definite period.  No  such  provision  is  found  in  the  Penal  Code,  Code  of  Criminal  Procedure  or  the  Prisons  Act.  … A  sentence  of  transportation for life or imprisonment for life must prima  facie be treated as transportation or imprisonment for the  whole  of  the remaining period of  the convicted person's  natural life.’ The Court further observed thus:  

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‘7. … But the Prisons Act does not confer on any authority   a power to commute or remit sentences; it provides only  for  the  regulation  of  prisons  and  for  the  treatment  of  prisoners confined therein.  Section 59 of  the Prisons Act  confers a power on the State Government to make rules,  inter  alia,  for  rewards  for  good  conduct.  Therefore,  the  rules made under the Act should be construed within the  scope of the ambit of the Act. … Under the said rules the  order  of  an  appropriate  Government  under  Section  401,  Criminal Procedure Code, are a prerequisite for a release.  No other rule has been brought to our notice which confers  an  indefeasible  right  on  a  prisoner  sentenced  to  transportation for  life to an unconditional  release on the  expiry of a particular term including remissions. The rules  under the Prisons Act do not substitute a lesser sentence  for a sentence of transportation for life.

8.  … The question  of  remission is  exclusively  within  the  province of the appropriate Government; and in this case it  is  admitted  that,  though  the  appropriate  Government  made certain remissions under Section 401 of the Code of  Criminal  Procedure,  it  did not  remit the entire sentence.  We, therefore, hold that the petitioner has not yet acquired  any right to release.’

It  is,  therefore,  manifest  from the decision  of  this  Court  that the Rules framed under the Prisons Act or under the  Jail Manual do not affect the total period which the prisoner  has  to  suffer  but  merely  amount  to  administrative  instructions regarding the various remissions to be given to  the  prisoner  from  time  to  time  in  accordance  with  the  rules. This Court further pointed out that the question of  remission of the entire sentence or a part of it lies within  the exclusive domain of the appropriate Government under  Section 401 of the Code of Criminal Procedure and neither  Section 57 of the Penal Code nor any Rules or local Acts  can stultify the effect of the sentence of life imprisonment  given by the court under the Penal Code. In other words,  this Court has clearly held that a sentence for life would  ensure till the lifetime of the accused as it is not possible to  fix a particular period the prisoner's death and remissions  given  under  the  Rules  could  not  be  regarded  as  a  substitute for a sentence of transportation for life.”

            (emphasis supplied)

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Further,  in  para  23,  the  judgment  in  Shri  Bhagwan  observed as follows:  

“23. In Maru Ram v. Union of India a Constitution Bench of  this Court reiterated the aforesaid position and observed  that the inevitable conclusion is that since in Section 433-A  we deal only with life sentences, remissions lead nowhere  and  cannot  entitle  a  prisoner  to release.  Further,  in  Laxman  Naskar v.  State  of  W.B.,  after  referring  to  the  decision of  Gopal Vinayak Godse v.  State of Maharashtra,  the Court  reiterated that  sentence for  ‘imprisonment  for  life’  ordinarily  means imprisonment for  the whole of  the  remaining period of the convicted person's natural life; that  a convict undergoing such sentence may earn remissions  of  his  part  of  sentence under the Prison Rules but such  remissions in the absence of  an order of  an appropriate  Government remitting the entire balance of his sentence  under  this  section  does  not  entitle  the  convict  to  be  released automatically before the full life term if served. It  was  observed  that  though  under  the  relevant  Rules  a  sentence  for  imprisonment  for  life  is  equated  with  the  definite period of 20 years, there is no indefeasible right of  such prisoner to be unconditionally released on the expiry  of  such particular  term, including  remissions  and that  is  only for the purpose of working out the remissions that the  said sentence is equated with definite period and not for  any other purpose.”

    (emphasis supplied)

91. The legal position as enunciated in  Pandit Kishori Lal,  Gopal  Vinayak  Godse,  Maru Ram,  Ratan Singh and  Shri  Bhagwan and  the  unsound  way  in  which  remission  is  actually allowed in cases of life imprisonment make out a  very strong case to 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  

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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  subject to remission normally works out to a term of 14  years would be grossly disproportionate and inadequate.  What then should  the  Court  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  emphasised  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.

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 rare cases. This would only  be  a  reassertion  of  the  Constitution  Bench  decision  in  Bachan Singh besides  being  in  accord  with  the  modern  trends in penology.

94. In  the  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. 95. In conclusion, we agree with the view taken by Sinha, J.  We accordingly substitute the death sentence given to the  appellant  by  the  trial  court  and  confirmed  by  the  High  Court by imprisonment for life and direct that he shall not  be released from prison till the rest of his life.”

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30) It is clear that in Swamy Shraddananda (supra), this  

Court  noted  the  observations  made  by  this  Court  in  

Jagmohan Singh vs. State of U.P., (1973) 1 SCC 20 and 5  

years after the judgment in Jagmohan’s case, Section 433-

A  was inserted in  the  Code imposing a  restriction on the  

power of remission or commutation in certain cases.  After  

the introduction of Section 433-A another Constitution Bench  

of this Court in Bachan Singh  vs. State of Punjab, (1980)  

2 SCC 684, with reference to power with regard to Section  

433-A  which  restricts  the  power  of  remission  and  

commutation  conferred  on  the  appropriate  Government,  

noted various provisions of Prisons Act,  Jail Manual etc. and  

concluded that reasonable and proper course would be to  

expand  the  option  between  14  years  imprisonment  and  

death. The larger Bench has also emphasized that “the Court  

would  take  recourse  to  the  extended  option  primarily  

because in the facts of the case the sentence of 14 years’  

imprisonment would amount to no punishment at all.”  In the  

light of the detailed discussion by the larger Bench, we are  

of the view that the observations made in Sangeet’s case  

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(supra) are  not  warranted.   Even  otherwise,  the  above  

principles,  as  enunciated  in  Swami  Shraddananda  

(supra) are  applicable  only  when  death  sentence  is  

commuted to life imprisonment and not in all cases where  

the Court imposes sentence for life.

31) Taking  note  of  the  fact  that  the  prosecution  has  

established  the  guilt  by  way  of  circumstantial  evidence,  

analyzed and discussed earlier, and of the fact that in the  

case on hand 5 persons died and also of the fact that the  

High  Court  commuted  the  death  sentence  into  life  

imprisonment  imposing certain restrictions, the decision of  

the High Court cannot be faulted with and in the light of well  

reasoned  judgments  over  a  decade,  we  agree  with  the  

conclusion arrived at by the High Court including the reasons  

stated therein.     

32) Consequently, both the appeals fail and are dismissed.

33) We record our appreciation for the assistance rendered  

by learned amicus curiae and the counsel for the State.  

………….…………………………J.   

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               (P. SATHASIVAM)                                           

       ………….…………………………J.                  (M.Y. EQBAL)  

NEW DELHI; APRIL 18, 2013.

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