# Kum. Shubha @ Shubhashankar v. State of Karnataka & Anr

- **Citation:** 2025 INSC 830
- **Court:** Supreme Court of India
- **Decided:** 2025-07-14
- **Case number:** Criminal Appeal No. 1029 of 2011
- **Bench:** M.M. Sundresh, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kum-shubha-shubhashankar-v-state-of-karnataka-anr-38582
- **Pages:** 76

## Headnote

Whether in the facts and circumstances of the case, the conviction
of the appellants by the High Court u/s.302 read with s.120-B, IPC
and additionally, s.201, IPC for A-4 alone, is justified.
Headnotes†
Circumstantial Evidence - Penal Code, 1860 - ss.302 r/w 120B,
s.201 - A-4 and the deceased were engaged - Though A-4
was engaged to the deceased however, she was not willing
to get married to him and expressed her grievance to A-1,
her close friend - A-1 sought help from his cousin, A-3, who
roped in his friend, A-2 and the accused persons murdered the
deceased - Accused were convicted u/s.120B and sentenced
to life imprisonment; A-2 alone was convicted u/s.302 and A-4
was additionally convicted u/s.201 - High Court modified the
conviction of the appellants to one u/s.302 r/w s.120B and
confirmed the sentence of life imprisonment - Correctness:
Held: Eyewitnesses' account of the incident is discarded - The case
rests purely on circumstantial evidence - The link for circumstantial
evidence stands connected and proved, as the motive has been
duly established through the evidence of PW-23, a friend of A-4 from
Pre-University College who deposed in clear terms that A-4
confessed to him that she did not want to get married to the
deceased; the voluminous CDR stands proved through the evidence
of PW-24 and PW-25 and; the recovery of the weapon is also
proved - In view of the adequacy of the evidence on record, the
conviction of the appellants by the High Court u/s.302 read with
s.120-B, IPC and additionally, s.201, IPC for A-4 alone, as well as
the sentence of life imprisonment imposed upon them is confirmed -
However, the appellants are permitted to file appropriate petitions
* Author
860
[2025] 7 S.C.R.
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seeking to invoke the power of pardon u/Art.161 of the Constitution
of India. [Paras 54, 96, 98, 101]
Evidence Act, 1872 - s.65B(4) - Call Detail Records (CDR) -
Admissibility:
Held: Though the compliance of s.65B is mandatory however, there
is no straitjacket formula to arrive at the conclusion of such due
compliance, with specific reference to the CDR - It is the duty of
the concerned Court to satisfy itself on such compliance, by taking
due note of the requisite certificate produced u/s.65-B(4) coupled
with the oral evidence adduced by the competent officer on behalf
of the Telecom Service Provider - The one who speaks in support
of such certificates, should have no other interest in the case and
therefore, has to be considered as a Court witness - In the present
case, PW-24 and PW-25 were holding a 'responsible official position'
at the respective companies, as required u/s.65-B(4) - It is not
necessary for the said officers to be holding positions of technical
expertise, and is enough if they depose to the 'best of their knowledge
or belief' - Their testimonies with respect to the certificates and the
CDR remain clear, despite being subjected to exhaustive crossexamination and, mere discrepancies per se would not lead the
Court to hold that there was no due compliance - Also, there was no
specific denial or explanation offered by even the accused persons,
when presented with the overwhelming evidence on the numerous
calls/SMSes showing the unusually high number of communications
exchanged between the accused persons during the relevant period
of time - On facts, the CDR furnished by both Reliance and Airtel
are admissible in accordance with s.65-B(4). [Paras 64-66]
Evidence - Call Detail Records (CDR) - Evidentiary value:
Held: While CDR data may not be construed as a substantive
piece of evidence, it is certainly to be used for appropriate
corroboration - One has to see the attending circumstances to
decide the evidentiary value of CDR - In a given factual scenario,
the Court can place heavy reliance upon the same for the purpose
of rendering a conviction however, proving the guilt depends upon
the degree of probability. [Para 86]
Circumstantial Evidence - Motive - Relevance:
Held: When a case is founded

## Text

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[2025] 7 S.C.R. 859 : 2025 INSC 830
Kum. Shubha @ Shubhashankar
v.
State of Karnataka & Anr.
(Criminal Appeal No. 1029 of 2011)
14 July 2025
[M.M. Sundresh* and Aravind Kumar, JJ.]
Issue for Consideration
Whether in the facts and circumstances of the case, the conviction
of the appellants by the High Court u/s.302 read with s.120-B, IPC
and additionally, s.201, IPC for A-4 alone, is justified.
Headnotes†
Circumstantial Evidence - Penal Code, 1860 - ss.302 r/w 120B,
s.201 - A-4 and the deceased were engaged - Though A-4
was engaged to the deceased however, she was not willing
to get married to him and expressed her grievance to A-1,
her close friend - A-1 sought help from his cousin, A-3, who
roped in his friend, A-2 and the accused persons murdered the
deceased - Accused were convicted u/s.120B and sentenced
to life imprisonment; A-2 alone was convicted u/s.302 and A-4
was additionally convicted u/s.201 - High Court modified the
conviction of the appellants to one u/s.302 r/w s.120B and
confirmed the sentence of life imprisonment - Correctness:
Held: Eyewitnesses' account of the incident is discarded - The case
rests purely on circumstantial evidence - The link for circumstantial
evidence stands connected and proved, as the motive has been
duly established through the evidence of PW-23, a friend of A-4 from
Pre-University College who deposed in clear terms that A-4
confessed to him that she did not want to get married to the
deceased; the voluminous CDR stands proved through the evidence
of PW-24 and PW-25 and; the recovery of the weapon is also
proved - In view of the adequacy of the evidence on record, the
conviction of the appellants by the High Court u/s.302 read with
s.120-B, IPC and additionally, s.201, IPC for A-4 alone, as well as
the sentence of life imprisonment imposed upon them is confirmed -
However, the appellants are permitted to file appropriate petitions
* Author
860
[2025] 7 S.C.R.
Supreme Court Reports
seeking to invoke the power of pardon u/Art.161 of the Constitution
of India. [Paras 54, 96, 98, 101]
Evidence Act, 1872 - s.65B(4) - Call Detail Records (CDR) -
Admissibility:
Held: Though the compliance of s.65B is mandatory however, there
is no straitjacket formula to arrive at the conclusion of such due
compliance, with specific reference to the CDR - It is the duty of
the concerned Court to satisfy itself on such compliance, by taking
due note of the requisite certificate produced u/s.65-B(4) coupled
with the oral evidence adduced by the competent officer on behalf
of the Telecom Service Provider - The one who speaks in support
of such certificates, should have no other interest in the case and
therefore, has to be considered as a Court witness - In the present
case, PW-24 and PW-25 were holding a 'responsible official position'
at the respective companies, as required u/s.65-B(4) - It is not
necessary for the said officers to be holding positions of technical
expertise, and is enough if they depose to the 'best of their knowledge
or belief' - Their testimonies with respect to the certificates and the
CDR remain clear, despite being subjected to exhaustive crossexamination and, mere discrepancies per se would not lead the
Court to hold that there was no due compliance - Also, there was no
specific denial or explanation offered by even the accused persons,
when presented with the overwhelming evidence on the numerous
calls/SMSes showing the unusually high number of communications
exchanged between the accused persons during the relevant period
of time - On facts, the CDR furnished by both Reliance and Airtel
are admissible in accordance with s.65-B(4). [Paras 64-66]
Evidence - Call Detail Records (CDR) - Evidentiary value:
Held: While CDR data may not be construed as a substantive
piece of evidence, it is certainly to be used for appropriate
corroboration - One has to see the attending circumstances to
decide the evidentiary value of CDR - In a given factual scenario,
the Court can place heavy reliance upon the same for the purpose
of rendering a conviction however, proving the guilt depends upon
the degree of probability. [Para 86]
Circumstantial Evidence - Motive - Relevance:
Held: When a case is founded on circumstantial evidence, it is
imperative to establish the motive of the accused to commit the
[2025] 7 S.C.R.
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Kum. Shubha @ Shubhashankar v. State of Karnataka & Anr.
offence as it serves as the foundation of the evidentiary chain
that ultimately leads to the implication of the accused. [Para 55]
Evidence Act, 1872 - s.27:
Held: The recovery of the steel rod (M.O.11) was made at the
instance of A-2 which was witnessed by PW-30 (an independent
witness) who duly affixed his signature on the seizure mahazar
marked as Exhibit P-87 - Both the Courts rightly accepted the
evidence of PW-30 which cannot be eschewed solely on the ground
that the other panch witness was not examined by the prosecution,
despite being cited as a witness - The recovery of M.O.11 was
effected from a secluded place in a military compound - It was
picked up from the bush, on being identified by A-2 - Merely
because A-1 was also present during the recovery, it cannot be said
that the recovery was effectuated on the basis of joint disclosure
made by A-1 and A-2, and thus, is inadmissible - Moreover, the
voluntary statements of A-1 and A-2 were also recorded separately
and marked as Exhibits - The argument of the appellants that the
link required u/s.27 is missing due to the absence of the panch
witnesses while recording the disclosure statements of the accused
is also not accepted, on the facts of the case, as the presence
of the witness to the disclosure statement is not a mandate and
only one of prudence - The mere absence of the witness to the
disclosure statement is hardly sufficient to hold that the recovery
itself is doubtful. [Paras 87, 88]
Evidence - Reliability of - Duty of Courts:
Held: Evidence is the material for unearthing the truth which is the
foundational duty of the Court - In order to do so, a fact has to be
proved by taking due note of the matters made available before
the Court - To prove a fact, the adequate parameter is the degree
of probability - Thus, the evidence adduced before the Court, can
be accepted either in toto or in part - Furthermore, it can also be
rejected - A Court shall apply its mind to the evidence available
to arrive at a just conclusion. [Paras 47, 48]
Constitution of India - Art.161 - Power of Governor to grant
pardons, etc., and to suspend, remit or commute sentences
in certain cases - Objective of - Scope and ambit of power
u/Art.161 - Power u/Art.161 vis-à-vis ss.473, 474, Bharatiya
Nagarik Suraksha Sanhita, 2023 corresponding to ss.432, 433,
Code of Criminal Procedure, 1973. [Paras 14-16]
862
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Criminal Law - Causes, effect of crime and its remedy -
Offences committed by women, reasons - Discussed.
[Paras 4-12]
Case Law Cited
Sharad Birdhichand Sarda v. State of Maharashtra [1985] 1 SCR
88 : (1984) 4 SCC 116 - relied on.
Maru Ram v. Union of India and Ors. [1981] 1 SCR 1196 : (1981) 1
SCC 107; Shatrughan Chauhan and Anr. v. Union of India and Ors.
[2014] 1 SCR 609 : (2014) 3 SCC 1; Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal and Ors. [2020] 7 SCR 180 : (2020)
7 SCC 1; Sudershan Kumar v. State of H.P. (2014) 15 SCC 666;
Gireesan Nair and Ors. v. State of Kerala [2022] 8 SCR 599 :
(2023) 1 SCC 180; Ramkishan Mithanlal Sharma v. State of
Bombay [1955] SCR 903 : AIR 1955 SC 104; Manzoor v. State
of Uttar Pradesh (1982) 2 SCC 72; Harendra Rai v. State of Bihar
and Ors. [2023] 11 SCR 583 : (2023) 13 SCC 563; Sahabuddin
and Another v. State of Assam [2012] 13 SCR 1067 : (2012) 13
SCC 213; Anees v. State (NCT of Delhi) [2024] 6 SCR 164 : 2024
SCC OnLine SC 757; Kishore Bhadke v. State of Maharashtra
[2017] 1 SCR 330 : (2017) 3 SCC 760; Sajeev v. State of Kerala
[2023] 15 SCR 241 : 2023 SCC OnLine SC 1470; Rajesh Yadav
and Anr. v. State of U.P. [2022] 16 SCR 967 : (2022) 12 SCC 200;
Munish Mubar v. State of Haryana [2012] 9 SCR 193 : (2012)
10 SCC 464; State of Madhya Pradesh v. Chhaakki Lal and Anr.
[2018] 12 SCR 184 : (2019) 12 SCC 326 - referred to.
List of Acts
Penal Code, 1860; Constitution of India; Bharatiya Nagarik
Suraksha Sanhita, 2023; Evidence Act, 1872; Code of Criminal
Procedure, 1973.
List of Keywords
Murder of fiancé; Unwilling to marry; Circumstantial evidence;
Forced marriage; Engaged; Engagement ceremony; Fatal injuries
on head; Homicidal deathproved; Conspiracy; Eyewitnesses'
account discarded; Motive established; False plea of alibi; Plea
of alibi; Link for circumstantial evidence proved; Questionable
relationship; Destruction of evidence; Call Detail Records (CDR);
Telecom Service Provider (TSP); Section 65-B(4) of the Evidence
[2025] 7 S.C.R.
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Kum. Shubha @ Shubhashankar v. State of Karnataka & Anr.
Act, 1872; Article 161 of the Constitution of India; Right to seek
pardon; Recovery of steel rod; Disclosure statement; Degree of
probability; Court witness; Power to pardon, reprieve, respite,
remit; Statutory powers; Constitutional powers; Ocular evidence;
Unnatural conduct; Contradictions; Admissibility; Reliability;
Secondary evidence; Oral and documentary evidence; Certificate
produced under Section 65-B(4) of the Evidence Act, 1872;
Exhaustive cross-examination; Crime constitutes a mental rebellion
of norms and rules; Deviant behavior; Rebellion against the
regulatory norms; Deviant conduct; Shackled by social constraints;
Alienation; Feeling of disconnect from the community, society,
or social institutions; Alienated individuals; Breakdown of social
norms; Rapid social change; Offences committed by women;
Gendered response of victimization; Societal pressure; Unwarranted
marriage; Social constraint; Social stigma; Lack of education;
Inadequate financial support; Perceived notions about the value
system; Resistance against social order; Reform and rehabilitate
the deviant person; Poverty; Broken institutions; Treatment by
compassionate correction; Structural support; Opportunities for
genuine transformation; Facilitate an offender to be reintegrated
into society; Limited power of judicial review.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1029 of 2011
From the Judgment and Order dated 04.11.2010 of the High Court
of Karnataka at Bengaluru in CRLA No. 722 of 2010
With
Criminal Appeal No(s). 1030 and 1225 of 2011 and Criminal Appeal
No. 2943 of 2025
Appearances for Parties
Advs. for the Appellant:
R Nedumaran, S. Nagamuthu, Siddhartha Dave, Ranjit Kumar,
Jayant K. Sud, Sr. Advs. Y Arunagiri, Shreyas Kaushal,
M Sathishkumar, P. Soma Sundaram, T. V. Ratnam, Ms. Ranjeeta
Rohatgi, Nirnimesh Dube, Shreeyash Lalit, Ms. Sonia Dube, Lavam
Tyagi, Himanshu Vats, S. K. Kulkarni, M. Gireesh Kumar, Ankur
S. Kulkarni, Ms. Uditha Chakravarthy, Debdeep Banerjee, Kartik
Jasra, Prannit Stefano, Shayal Anand.
864
[2025] 7 S.C.R.
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Advs. for the Respondents:
Muhammed Ali Khan, A.A.G., Tomy Sebastian, Ms. Kiran Suri, Sr.
Advs., S.j. Amith, Punith B, Alwyn Sebastian, Ms. Vidushi Garg,
Dr. Mrs. Vipin Gupta, V. N. Raghupathy, Omar Hoda, Ms. Eesha
Bakshi, Uday Bhatia, Kamran Khan, Arjun Sharma, Ms. Jayanti
Singh, Ms. Gurbani Bhatia.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1.
The voice of a young ambitious girl, muffled by a forced family
decision, created the fiercest of turmoil in her mind. This, backed by
an unholy alliance of a mental rebellion and wild romanticism, led to
the tragic murder of an innocent young man, while simultaneously
destroying the lives of three others.
2.
A studied scrutiny of the charges, along with the evidence placed on
record led to the confirmation of the conviction rendered against the
appellants, by the High Court, for the major offence punishable under
Section 302 of the Indian Penal Code, 1860 (hereinafter referred to
as the "IPC") while upholding the decision delivered by the Court
of Sessions. The appellants who are before us seek to assail the
life sentence imposed upon them by the Division Bench of the High
Court of Karnataka.
3.
We have heard learned Senior Counsel Mr. Ranjit Kumar, Mr. S.
Nagamuthu, Mr. Siddhartha Dave, and Mr. R. Nedumaran appearing
for the appellants, and learned Additional Advocate General (AAG)
Mr. Muhammed Ali Khan and learned Senior Counsel Mr. Tomy
Sebastian appearing for the respondents, at considerable length.
In the process, all the documents placed on record along with the
written arguments, are also taken due note of.
CRIME AND ITS CAUSES
4.
A crime constitutes a mental rebellion of norms and rules that have
been created for the establishment of social order. It can be described
as a deviant behavior, triggered by causes which are both distant
and immediate. An idea of rebellion against the regulatory norms
[2025] 7 S.C.R.
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Kum. Shubha @ Shubhashankar v. State of Karnataka & Anr.
imposed by the society, thus, leads to a deviant conduct, which
often happens through social conditioning and a series of habits.
It is the strained mind, irked by alienation and material deprivation,
that ignores the moral stage, all while focusing on the avoidance of
punishment which might be the consequence of being in pursuit of
a self-justified solution to the predicament which afflicts them.
5.
There are multiple causes for a deviant behavior. To commit a crime,
there is always a cause which, very often, has no nexus with the
accused, who is shackled by social constraints thus, making him a
victim of his circumstances. Even the genealogy of individuals can
very well be influenced due to external environmental factors, such
as, family, economy, education and social mores. Deficiencies in
these factors are the primary causes for an offence that is ultimately
committed. But for these causes, an offence would not have been
committed, as it is nothing but a manifestation of the mind, body
and action. One can even say that multiple causes are responsible
for the crime, both external and internal, while an offender merely
plays a role in committing it.
6.
Alienation in different forms is one of the major causes for a crime
being committed, upon feeling a disconnect from the community,
society, or social institutions. Alienated individuals often feel powerless
and neglected, which can lead them to feel rejected by the society
and its social norms. The breakdown of social norms contributes to
a deviant behaviour, especially when individuals lack clear moral
guidance from their communities. Since law keeps changing from
time to time, what is legal, may not necessarily be moral. Rapid social
change, orchestrated by law, often creates conducive conditions for
criminal behaviour.
CRIME AND WOMEN
7.
We shall now concentrate specifically on the offences committed by
women. If the factors highlighted above are applied in the context of
a woman, it would result in heightened prejudices against her, leading
to a gendered response of victimization. A woman is pushed into a
dark corner by external elements, that contribute substantially to the
inequalities in her life. Thoughts of a woman would differ based on
the place, person and group that she interacts with. It is the social
norms and values which determine an action on her part, that is
nothing but a form of her expression.
866
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8.
We shall test this proposition through a simple example of a young
lady, who is desirous of spreading her ambitious wings, longing for
her own independence. A forced marriage, divorcing her from her
professional ambitions and curtailing her further education, would
certainly warrant a reaction. Such reactions would vary from one
woman to another, depending upon the circumstances. For instance,
a girl from a middle-class family might react differently compared to
one who hails from a poor, or even a rich family. Even amongst these
classifications, a decision made by a woman might vary depending
upon the impact brought about by the peculiar circumstances in
her life. Therefore, she might be put in a position where she would
have to choose either of the following options available to her.
After making an abortive attempt in getting the family to accept her
views, she may leave her parental home without notice, she may
turn violent, or even commit suicide. If societal pressure stops her
from undertaking any of these measures, and a marriage is forced
upon her, her agony would compound and escalate. An unwarranted
marriage thrust upon her is the worst form of alienation that she can
experience both mentally and physically.
9.
In such an instance, a possible solution from her point of view would
be different. Social constraint might play a decisive role. Factors such
as social stigma, lack of education, inadequate financial support, and
perceived notions about the value system, might trigger a variety
of responses. These factors do not merely limit her choices-they
distort her very perception of freedom, making resistance seem
impossible or even immoral. In some cases, she may internalize
these pressures, believing that compliance is her only option. In
others, she may resist in subtle, often invisible ways-through
quiet despair, emotional withdrawal, or even clandestine acts of
defiance.
EFFECT OF A CRIME AND ITS REMEDY
10. As a crime is perceived to be an act of resistance against social order,
its impact is also felt by society, accordingly. There are primarily two
ways to deal with a crime. It can be done either by merely punishing
the offender, or by reforming him. Punishment is to be seen from
the perspective of the society, as well as the offender. When the
punishment is supported by law, it acts as a deterrent to crimes
being committed in the society.
[2025] 7 S.C.R.
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11. A mere punishment per se would not constitute a remedy for an act of
crime. It might change the offender's legal or social status, but would
not be sufficient to address the root cause of his actions or remove the
psychological and emotional factors that made him commit the crime.
The idea therefore, is to reform and rehabilitate the deviant person
to bring him back into the fold of society. This reformative part, thus,
assumes a greater significance. It is more so, when the offender is
not entirely responsible for the causes which led to the crime.
12. Society, through its own systemic failures, inequalities, or neglect
often plays a role in shaping criminal behavior, and is also responsible
for the creation of such behaviour, whether through poverty, lack of
education, discrimination, or broken institutions. In that scenario, the
offender becomes a victim, requiring adequate measures for treatment
by compassionate correction, structural support, and opportunities
for genuine transformation. In an attempt to bring the individual back
into the social fold, responsibility has to be shared by every other
individual, ultimately rebuilding the bonds of community rather than
perpetuating cycles of alienation and punishment.
ARTICLE 161 OF THE CONSTITUTION OF INDIA, 1950
13. The Constitution of India, 1950 (hereinafter referred to as the
"Constitution") which is the supreme law of the land, encourages
the reformation of individuals, by granting them a new lease of life.
This is personified by Articles 72 and 161 of the Constitution which
empowers the constitutional authorities to grant pardon to convicts. In
light of this, we would like to specifically elaborate on the underlying
principles pertaining to the powers vested with the Governor under
Article 161 of the Constitution.
Article 161 of the Constitution
"161. Power of Governor to grant pardons, etc., and
to suspend, remit or commute sentences in certain
cases.-
The Governor of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment or
to suspend, remit or commute the sentence of any person
convicted of any offence against any law relating to a
matter to which the executive power of the State extends."
868
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14. Article 161 of the Constitution has an in-built laudable objective. This
Article emphasizes the role of the State to facilitate an offender to
be reintegrated into society, after realizing his mistake. This power
is sovereign, and is to be exercised on the advice of the Council
of Ministers. Thus, it grants the Constitutional Court only a limited
power of judicial review.
15. Though the power conferred under Article 161 of the Constitution
might sound similar to the statutory powers available under
Sections 473 and 474 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (hereinafter referred to as the "BNSS"), corresponding to
Sections 432 and 433 of the Code of Criminal Procedure, 1973
(hereinafter referred to as the "Cr.P.C'), its powers are much wider.
While statutory provisions govern classes of convicts collectively, the
prerogative of pardon is generally exercised discretely in specific
instances. Therefore, the scope of this power is much broader and
is to be applied on a case-to-case basis. A constitutional power
is fundamentally different and distinct from a statutory one. While
statutory powers are derived from laws enacted by legislatures
and remain subject to amendment or repeal, constitutional powers
originate from the Constitution itself. Therefore, the power to pardon,
reprieve, respite, remit etc. forms part of the constitutional ethos,
goal and culture. Unlike statutory provisions, which are tailored to
address specific scenarios or population demographics, constitutional
powers embody the State's commitment to a broader ethical vision -
one that prioritizes humanity and equity, even in the administration
of punishment.
Maru Ram v. Union of India and Ors., (1981) 1 SCC 107
"72. We conclude by formulating our findings:
(1) We repulse all the thrusts on the vires of Section 433-A.
Maybe, penologically the prolonged term prescribed by the
section is supererogative. If we had our druthers we would
have negatived the need for a fourteen-year gestation
for reformation. But ours is to construe, not construct, to
decode, not to make a code.
(2) We affirm the current supremacy of Section 433-A over
the Remission Rules and short-sentencing statutes made
by the various States.
[2025] 7 S.C.R.
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Kum. Shubha @ Shubhashankar v. State of Karnataka & Anr.
(3) We uphold all remissions and short-sentencing passed
under Articles 72 and 161 of the Constitution but release
will follow, in life sentence cases, only on government
making in order en masse or individually, in that behalf.
(4) We hold that Section 432 and Section 433 are
not a manifestation of Articles 72 and 161 of the
Constitution but a separate, though similar power, and
Section 433-A, by nullifying wholly or partially these
prior provisions does not violate or detract from the
full operation of the constitutional power to pardon,
commute and the like."
(emphasis supplied)
Shatrughan Chauhan and Anr. v. Union of India and Ors., (2014)
3 SCC 1
"16. Articles 72/161 of the Constitution entail remedy
to all the convicts and are not limited to only death
sentence cases and must be understood accordingly. It
contains the power of reprieve, remission, commutation
and pardon for all offences, though death sentence
cases invoke the strongest sentiment since it is
the only sentence that cannot be undone once it is
executed.
17. Shri Andhyarujina, learned Senior Counsel, who
assisted the Court as amicus commenced his submissions
by pointing out that the power reposed in the President
under Article 72 and the Governor under Article 161 of
the Constitution is not a matter of grace or mercy, but is
a constitutional duty of great significance and the same
has to be exercised with great care and circumspection
keeping in view the larger public interest. He referred to the
judgment of the US Supreme Court in Biddle v. Perovich
[71 L Ed 1161 : 274 US 480 (1927)] as also the judgments
of this Court in Kehar Singh v. Union of India, (1989) 1
SCC 204 : 1989 SCC (Cri) 86 and Epuru Sudhakar v.
State of A.P., (2006) 8 SCC 161 : (2006) 3 SCC (Cri) 438.
***
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19. In concise, the power vested in the President under
Article 72 and the Governor under Article 161 of the
Constitution is a constitutional duty. As a result, it is
neither a matter of grace nor a matter of privilege but
is an important constitutional responsibility reposed
by the People in the highest authority. The power
of pardon is essentially an executive action, which
needs to be exercised in the aid of justice and not in
defiance of it. Further, it is well settled that the power
under Articles 72/161 of the Constitution of India is
to be exercised on the aid and advice of the Council
of Ministers.
***
47. It is clear that after the completion of the judicial
process, if the convict files a mercy petition to the
Governor/President, it is incumbent on the authorities
to dispose of the same expeditiously. Though no timelimit can be fixed for the Governor and the President,
it is the duty of the executive to expedite the matter
at every stage viz. calling for the records, orders
and documents filed in the court, preparation of the
note for approval of the Minister concerned, and the
ultimate decision of the constitutional authorities. This
Court, in Triveniben v. State of Gujarat, (1989) 1 SCC
678 : 1989 SCC (Cri) 248, further held that in doing so,
if it is established that there was prolonged delay in the
execution of death sentence, it is an important and relevant
consideration for determining whether the sentence should
be allowed to be executed or not."
(emphasis supplied)
16. From the above, we would only clarify that, notwithstanding the
existence of a Circular or a Rule introduced by way of a statutory
power under Section 473 of the BNSS, the constitutional powers
granted under Article 161 of the Constitution, can also be exercised
in a given case. Thus, even in cases where statutory mechanisms
exist, the constitutional mandate under Article 161 of the Constitution
remains inviolable and exercisable, in order to ensure that justice in
individual cases is not constrained by procedural norms.
[2025] 7 S.C.R.
871
Kum. Shubha @ Shubhashankar v. State of Karnataka & Anr.
FACTUAL BACKGROUND
17. During the month of December 2003, Shubha Shankar (hereinafter
referred to as "A-4"), a young girl aged 20 years, was studying
in the 5th semester of integrated course, B.A., LL.B. at BMS Law
College, Bangalore. PW-10, B.S. Shankarnarayan, is the father
of A-4, and an Advocate. PW-12, Vijayalakshmi, is her mother.
Arun Verma (hereinafter referred to as "A-1") was also a student
of the same college as A-4, studying in the 1st semester. PW-22,
N. Dhanashekaran, is his father who was working as a Labour
Officer during the said period. At the relevant point of time, Dinesh
@ Dinakaran (hereinafter referred to as "A-3"), was a young man
aged 28 years, who had been recently married, and had a child.
PW-14, Uttam Prakash, is his father and PW-13, Bhavani, is his
wife. A-3 and A-1 are cousins, as the sister of PW-14 is the mother
of A-1. Venkatesh (hereinafter referred to as "A-2") was a teenager
aged 19 years. PW-17, Anandan, is his father. B.V. Girish (hereinafter
referred to as the "deceased") was a young man aged 26 years,
working as a software engineer at Intel. PW-6, B. Venkatesha, is his
father and PW-5, B.V. Ramesh is his elder brother.
18. A-4 and her family, along with the deceased and his family were
residents of the same locality in Bangalore, Karnataka. Considering
the long-standing cordial relations between the two families, the
parents of A-4 extended a proposal to the parents of the deceased
during the month of October 2003 for the marriage of A-4 with the
deceased. Both the families consented to the said proposal on
20.11.2003, and fixed the date of the engagement ceremony as
30.11.2003. As decided, the engagement ceremony of A-4 and the
deceased took place on 30.11.2003 at "Udupi Hall" in the presence
of their close friends and relatives. Several photographs, as well as
video footage, were captured during the ceremony. The marriage of
A-4 and the deceased was decided to be solemnized on 11.04.2004.
19. Two days after the engagement ceremony, on the evening of
03.12.2003, A-4 asked the deceased to take her for dinner to T.G.I.
Friday's Hotel (hereinafter referred to as "T.G.I.F. Hotel") which
was situated near Intel, the company where he was working. The
deceased agreed to take her and informed his parents and PW-5
about their plan. He picked her up from her house on his scooter
at around 06:30 PM, and subsequently, they went to have dinner
at T.G.I.F. Hotel.
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20. Post dinner, between 09:30 PM - 09:40 PM, the deceased and
A-4 informed their parents that they had eaten dinner and were
returning home. On their way back, they stopped at the "Air View
Point" located at the Airport Ring Road to watch the landing of
aeroplanes. At that time, the deceased received fatal injuries on his
head at the hands of an unknown assailant, who fled after inflicting
the injuries, using a steel rod. A-4, with the help of passers-by,
stopped a Maruti car, shifted the deceased to the backseat of the
car and admitted him in the Manipal Hospital located at the Airport
Road. A-4 informed her father PW-10 about the occurrence, who
in turn, passed on the information to PW-12. She also informed
PW-5 about the same. On receiving the information, PW-5 took
his parents and the mother of A-4 to the hospital. By then, PW-10
had also reached the hospital from his office. Around 02:00 AM
in the intervening night between 03.12.2003 and 04.12.2003, all
of them returned home except for PW-10 and PW-5 who stayed
back at the hospital. In the early morning of 04.12.2003, PW-6,
PW-12 and A-4 returned to the hospital. At about 08:05 AM, the
deceased was declared dead. PW-5 lodged a written complaint at
the police station, based on the information received from A-4, on
the basis of which the First Information Report (hereinafter referred
to as the "FIR") was registered against unknown persons for the
offence punishable under Section 302 of the IPC. The said FIR was
registered by the police Inspector PW-31, K.A. Nanaiah, who was
the 1st Investigating Officer (hereinafter referred to as the "I.O.").
Upon investigating, A-1 to A-4 were arrested on 25.01.2004. PW-31
continued the investigation till 17.02.2004, after which the case file
was handed over to Dawood Khan, PW-32, who was the subsequent
I.O. in the case. A chargesheet was filed on 17.04.2004, followed
by a supplementary one on 10.01.2005.
21. Charges were framed by the Trial Court against all the accused
persons under Section 120-B, and Section 302 read with Section
120-B of the IPC, while A-4 was additionally charged for the offence
punishable under Section 201 of the IPC. 33 witnesses out of 64
listed witnesses were examined before the Trial Court on behalf of
the prosecution, while 3 witnesses were examined on behalf of the
defence. In total, 111 Exhibits were marked by the prosecution and
17 Material Objects (hereinafter referred to as "M.O.") were placed
before the Trial Court. 64 Exhibits were marked by the defence. All
[2025] 7 S.C.R.
873
Kum. Shubha @ Shubhashankar v. State of Karnataka & Anr.
the accused were duly informed of the incriminating materials placed
against them during the course of recording their statement under
Section 313 of the Cr.P.C.
22. The case of the prosecution for proving the guilt of the accused before
the Trial Court was based on the premise that A-4 was not willing to
get married to the deceased and thus, expressed her grievance to
her close friend, A-1. A-1, upon seeing her plight, sought help from
his cousin, A-3. A-3 roped in his friend, A-2 in order to eliminate the
deceased, so as to stop his marriage with A-4 and thus, the accused
persons, in conspiracy with each other, committed the murder of
the deceased.
23. On 03.12.2003, A-4, while returning with the deceased on his
scooter after dinner, took him to the "Air View Point" located at the
Airport Ring Road to watch the landing of aeroplanes. A-1 and A-2
were following them on a scooter (M.O.12), as A-4 was constantly
updating A-1 regarding their whereabouts by way of continuous
SMSes. A-3 was continuously tracking and giving instructions to A-1
and A-2 throughout the evening by way of voice calls and so, all
the accused persons were in constant touch with each other right
before the occurrence, which took place sometime between 09:40
PM and 10:00 PM. While the deceased and A-4 were watching the
landing of aeroplanes, A-2 struck the deceased multiple times with
a steel rod (M.O.11), while A-1 was waiting for him on the scooter.
Then, A-2 sat on the scooter behind A-1 as the pillion rider and
they subsequently fled the scene. The occurrence was seen by
two eyewitnesses, PW-15 and PW-16. After the occurrence, the
deceased was admitted to the hospital by A-4, and he succumbed
to his injuries on the morning of the following day.
24. For proving the said theory, the prosecution mainly relied upon
the evidence of PW-8, PW-11 and PW-23 to establish motive, the
Call Detail Records (hereinafter referred to as the "CDR") showing
the extensive communications between the accused persons from
25.11.2003 to 04.12.2003, the eye-witness testimonies of PW-15
and PW-16, and the recovery of the steel rod and the scooter at the
instance of the accused.
25. PW-8, Hema is the beautician who applied mehendi for A-4 on
29.11.2003 and also dressed up A-4 for the engagement ceremony
on 30.11.2003. She deposed that at the time of applying mehendi
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[2025] 7 S.C.R.
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on 29.11.2003, A-4 hugged her and told her that she was not willing
to get married to the deceased, and requested her to do anything to
stop the marriage. A-4 also told PW-8 that even if the engagement
were to take place, she would run away and get married to her friend,
A-1. PW-8 informed about the same to PW-9, Umasashi who is the
maternal aunt of A-4. However, PW-9 asked PW-8 to keep quiet as
the engagement had already been fixed, and this would affect the
status of the family. PW-8 deposed that on 30.11.2003, when she
had gone to the house of A-4 for applying makeup, A-4 told her that
if Girish died, the engagement would stop and she would be able
to flee with A-1, and his associates would help them do so. PW-8
added that after the death of Girish, when she had gone to the house
of A-4 on 05.12.2003, A-4 told her that she had escaped from the
marriage as Girish had died as per her wishes, and she could live
happily for the next two years.
26. PW-11, Sheetal Rajagopal is a friend of A-4 from the days of her music
classes. She deposed that A-4 had not invited her to the engagement
ceremony. Thus, she was not aware of the same. However, she
stated that one Kamala, a servant who was working at the house
of A-4, informed her about the engagement and thus, PW-11 called
up A-4 over the telephone and congratulated her. However, A-4 told
her that she was unhappy with the idea of the said marriage, and
PW-11 made no further enquiry about it.
27. PW-23, Pramod Dixit is a friend of A-4 from Pre-University College.
He deposed that they were bosom friends, and in constant touch
with each other. He had also attended the engagement ceremony
on 30.11.2003. He stated that prior to the engagement, when he
had spoken to A-4 on the phone, she confided in him stating that
she did not like the lifestyle of the deceased as he disliked visiting
expensive hotels and restaurants, whereas she was someone who
wanted a fun-loving lifestyle. She also expressed to him that she
did not want to get married at such a young age.
28. The CDR brought on record by the prosecution showed that
voluminous calls/SMSes were exchanged between all the accused
persons during the period ranging from 25.11.2003 to 04.12.2003.
It showed continuous calls/SMSes, especially between A-1 and A-4.
29. PW-15 and PW-16 testified to the effect that at about 09:45 PM on
the night of 03.12.2003, when they were returning home on their
[2025] 7 S.C.R.
875
Kum. Shubha @ Shubhashankar v. State of Karnataka & Anr.
two-wheeler, they saw A-2 hit the deceased with a steel rod on the
back of his head, while A-4 was standing at a slight distance away
from them. The deceased then fell unconscious. On raising an
alarm, A-2 ran away and sat behind A-1 on the scooter, and they
fled the scene. PW-15 also added that he helped A-4 by stopping a
car which was passing by, and placed the deceased in the backseat
of the car with the help of an auto-rickshaw driver. He then drove
the scooter of the deceased to his house and with the help of his
tenant, informed the Intel security officers who came to his house
and collected the belongings of the deceased. PW-16 deposed that
he left with the two-wheeler of PW-15.
30. After the accused persons were arrested on 25.01.2004, M.O.11 and
M.O.12 which were used for the commission of the offence, were
recovered by PW-31 pursuant to the disclosure statements made
by A-1 and A-2 under Section 27 of the Indian Evidence Act, 1872
(hereinafter referred to as the "IEA").
31. On 13.07.2010, the Trial Court convicted the appellants for the
offence punishable under Section 120-B of the IPC and sentenced
them to undergo life imprisonment. A-2 alone was convicted and
sentenced to life for the offence punishable under Section 302 of
the IPC. Additionally, A-4 was convicted for the offence punishable
under Section 201 of the IPC and sentenced to undergo simple
imprisonment for a period of 3 years, with the sentences imposed to
run concurrently. The Trial Court rendered the conviction by accepting
all the materials put forth by the prosecution as discussed above,
with substantial reliance placed upon the CDR and eye-witness
testimonies. The Trial Court also found the plea of alibi raised by
A-1 to be false, and the evidence of PW-9, PW-10 and PW-12 to
not be reliable as they were interested witnesses.
32. Appeals were filed before the High Court, both by the State as
well as the appellants. While dismissing the appeals filed by the
appellants, the High Court was pleased to allow the appeal filed by
the State in part, while modifying the conviction of the appellants
to one under Section 302 read with Section 120-B of the IPC. The
sentence of life imprisonment imposed upon the appellants was
confirmed. Assailing the aforesaid decision of the High Court which
broadly concurred with that of the Trial Court, the present appeals
have been filed.
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ARGUMENTS OF THE APPELLANTS
33. For the sake of brevity, we propose to cumulatively deal with the
arguments made by the respective Senior Counsel appearing for
the appellants.
34. The testimonies of PW-15 and PW-16 have to be disbelieved as they
are planted witnesses. There is a delay in recording their statements
under Section 161 of the Cr.P.C, especially with respect to PW-16,
as his statement was recorded two months after the occurrence,
despite his availability throughout the said period. The conduct of
PW-15 also makes it difficult to believe his presence at the place of
occurrence as, instead of informing the police regarding the incident,
PW-15 took the scooter of the deceased to his house, leaving behind
his own two-wheeler with PW-16. Despite being an ex-serviceman,
he did not take any step whatsoever to report the incident to the
police. In fact, it is the I.O. who called him up on the morning of
the next day, even before the registration of the FIR by PW-5, and
asked him to give his statement as he was an eye-witness to the
incident. The source from which the police came to know about the
same remains unknown.