# SWAMY SHRADDANANDA@MURALI MANOHAR MISHRA v. ST A TE OF KARNA TAKA

- **Citation:** [2007] 7 S.C.R. 616
- **Court:** Supreme Court of India
- **Decided:** 2007
- **Case number:** Criminal Reference No. and Criminal Appeal No. 06 of2005
- **Bench:** S.B. Sinha, Markandey Kat Ju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/swamy-shraddananda-murali-manohar-mishra-v-st-a-te-of-karna-taka-23219
- **Pages:** 54

## Headnote

Penal Code, 1860-ss. 302 and 201-Murder of wife-Circumstantial
evidence-Conviction and death sentence by Court beloW-:Jn appeal-HELD
C Per Sinha J : Conviction justified-On facts there is one weak link in the
hypoihesis that the murder was meticulously planned-Taking an overall
view death sentence altered to life imprisonment-Per Katju, J. : Jn view of
difference of opinion, matter referred to larger Bench-Evidence Act, 1872s, 27-Code of Criminal Procedure, 1973-s. 235 (2)-Sentencing-Death
D sentence-Principle of Proportionality.
The appellant-accused was prosecuted for murder of his wife. According
to prosecution, the deceased was a rich and beautiful muslim lady. She was
married and had four daughters. When she met the appellant, she sought his
assistance to manage her properties. Appellant came to the deceased and
E started living with her. The deceased got separated from her husband.
Thereafter appellant married the deceased. She executed General Power of
Attorney and Will in favour of the appellant. Despite the marriage, the parents
and one of the daughters (PW 5) of the deceased were in her contact. PW 5
lost contact with the deceased since May 1991. Several times, when she fried
to contact the deceased, she was mislead by the appellant about her
F whereabouts. When she was convinced that the appellant is telling a lie, she
filed a complaint in Police Station about missing of the deceased. Thereafter
appellant had sought anticipatory bail, and the same was granted to him. The
case was given to Central Crime Branch. When the appellant was interrogated,
he confessed to have drugged the deceased and putting her in a wooden box
'G had buried her in the backyard of the house.
H
At the instance of the appellant, the body of.the deceased was exhumed.
-The proceedings of the exhumation was videographed. The articles found in
the box were identified by the mother and servant of the deceased as belonging
616
-+-
•
SWAMY SHRADDANANDA@ MURALI MANOHAR MISHRA 1·. ST A TE OF KARNATAKA
617
~
... "t
to the deceased. The skeletal remains were subjected to autopsy. PW 1, a doctor A
had conducted Photo Superimposition Method Test on the skull. Investigating
team recorded the statements of the witnesses including those who had dealing
about the properties of the deceased. Documentary evidence was collected.
Accused was charged u/ss. 302/201 IPC. Trial court finding him guilty B
of commission of offence u/ss. 302 and 201 IPC, sentenced him to death. In
appeal and death reference, High Court heard the appellant- accused on the
""'
question of sentence in view of his pleas that he was not given opportunity of •
~
hearing before imposition of sentence. Appellant in his statement accepted to
be instrumental in burying the dead body. The High Court confirmed the
conviction as well as the sentence. Hence the present appeal.
c
In view of the difference in opinion on the question of sentence, referring
the matter to the larger Bench, the Court
HELD: Per Sinha, J. I.I. The various circumstances leading to the
pointing out the guilt of the appellant have been established, the cumulative D
.....\
effect whereof would show that all the links in the chain are complete and the
-\'
conclusion of the guilt is fully established. [Para 47] [643-A]
Alolce Nath Dutta and Ors. v. State of West Bengal, (2006) 13 SCALE
467, relied on.
E
Sharad Birdhichand Sardo v. State of Maharashtra, AIR (1984) SC
1622, referred to.
1.2. The death of the deceased was homicidal in nature. The identity of
the dead body has also been established. The circumstances in which the ,F
'
deceased married the appellant have also not been disputed. Their marriage
,
was proved by PW-8. Appellant also did not deny or dispute that he had been
..,.,
living with the deceased at all material times at the address where the incident
allegedly took place. It has furthermore not been disputed that she had not
been seen on and from 28.05.1991. It has also not been seriously disputed
that the deceased

## Text

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A
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SWAMY SHRADDANANDA@MURALI MANOHAR MISHRA
v.
ST A TE OF KARNA TAKA
MAY 18,2007
[S.B. SINHA AND MARKANDEY KAT JU, JJ.]
Penal Code, 1860-ss. 302 and 201-Murder of wife-Circumstantial
evidence-Conviction and death sentence by Court beloW-:Jn appeal-HELD
C Per Sinha J : Conviction justified-On facts there is one weak link in the
hypoihesis that the murder was meticulously planned-Taking an overall
view death sentence altered to life imprisonment-Per Katju, J. : Jn view of
difference of opinion, matter referred to larger Bench-Evidence Act, 1872s, 27-Code of Criminal Procedure, 1973-s. 235 (2)-Sentencing-Death
D sentence-Principle of Proportionality.
The appellant-accused was prosecuted for murder of his wife. According
to prosecution, the deceased was a rich and beautiful muslim lady. She was
married and had four daughters. When she met the appellant, she sought his
assistance to manage her properties. Appellant came to the deceased and
E started living with her. The deceased got separated from her husband.
Thereafter appellant married the deceased. She executed General Power of
Attorney and Will in favour of the appellant. Despite the marriage, the parents
and one of the daughters (PW 5) of the deceased were in her contact. PW 5
lost contact with the deceased since May 1991. Several times, when she fried
to contact the deceased, she was mislead by the appellant about her
F whereabouts. When she was convinced that the appellant is telling a lie, she
filed a complaint in Police Station about missing of the deceased. Thereafter
appellant had sought anticipatory bail, and the same was granted to him. The
case was given to Central Crime Branch. When the appellant was interrogated,
he confessed to have drugged the deceased and putting her in a wooden box
'G had buried her in the backyard of the house.
H
At the instance of the appellant, the body of.the deceased was exhumed.
-The proceedings of the exhumation was videographed. The articles found in
the box were identified by the mother and servant of the deceased as belonging
616
-+-
•
SWAMY SHRADDANANDA@ MURALI MANOHAR MISHRA 1·. ST A TE OF KARNATAKA
617
~
... "t
to the deceased. The skeletal remains were subjected to autopsy. PW 1, a doctor A
had conducted Photo Superimposition Method Test on the skull. Investigating
team recorded the statements of the witnesses including those who had dealing
about the properties of the deceased. Documentary evidence was collected.
Accused was charged u/ss. 302/201 IPC. Trial court finding him guilty B
of commission of offence u/ss. 302 and 201 IPC, sentenced him to death. In
appeal and death reference, High Court heard the appellant- accused on the
""'
question of sentence in view of his pleas that he was not given opportunity of •
~
hearing before imposition of sentence. Appellant in his statement accepted to
be instrumental in burying the dead body. The High Court confirmed the
conviction as well as the sentence. Hence the present appeal.
c
In view of the difference in opinion on the question of sentence, referring
the matter to the larger Bench, the Court
HELD: Per Sinha, J. I.I. The various circumstances leading to the
pointing out the guilt of the appellant have been established, the cumulative D
.....\
effect whereof would show that all the links in the chain are complete and the
-\'
conclusion of the guilt is fully established. [Para 47] [643-A]
Alolce Nath Dutta and Ors. v. State of West Bengal, (2006) 13 SCALE
467, relied on.
E
Sharad Birdhichand Sardo v. State of Maharashtra, AIR (1984) SC
1622, referred to.
1.2. The death of the deceased was homicidal in nature. The identity of
the dead body has also been established. The circumstances in which the ,F
'
deceased married the appellant have also not been disputed. Their marriage
,
was proved by PW-8. Appellant also did not deny or dispute that he had been
..,.,
living with the deceased at all material times at the address where the incident
allegedly took place. It has furthermore not been disputed that she had not
been seen on and from 28.05.1991. It has also not been seriously disputed
that the deceased was last seen in the company of the appellant.
G
[Paras 17 and 32) [633-E, 638-B)
1.3. The Court is not oblivious of the fact that there is a material
-·~
difference between 'may be' and 'must be' and furthermore in a case of this
nature the evidence must be considered with more than ordinary care lest
H
618
SUPREME COURT REPORTS
(2007] 7 S.C.R.
...
<:
A the shocking nature of crime induce an instinctive reaction against a
dispassionate judicial scrutiny of the facts and law. (Para 48) (643-B-C)
,,.-4
Kashmira.Singh v. State of Madhya Pradesh, AIR (1952) SC 159, relied
Oil.
B
1.4. If it is proved that the deceased died in an unnatural circumstance
in her bed room, which was occupied only by her and her husband, law requires
the husband to offer an explanation in this behalf. Absence of any explanation
by the husband would lead to an inference which would lead to a circumstance
,._
against the accused. (Para 36) (639-C)
--+
c
Raj Kumar Prasad Tamarkar v. State of Bihar and Anr., (2007) l SCALE
19, relied on.
1.5. As the interrogation of the appellant, while in custody of the police,
revealed the possibility of the deceased having been buried in the backyard of
her residential house, the Investigating Officer requested the Sub-Divisional
D Magistrate to conduct exhumation proceedings, who in turn, authorized the
Ta Iuka Executive Magistrate (PW-3) to do so. Confession of the accused was
not admissible in evidence. What was admissible only was that part of the
)>..
confession leading to the discovery of fact in terms of Section 27 of the lbdian
~-
Evidence Act The proceedings were conducted in the presence of the accused,
E which were videographed and marked as M0-18. Discovery of the last remains
of the deceased was .'1 relevant fact, which was, thus, admissible in evidence.
Appellant had pinpointed the exact place which was to be dug up. He marked
the exact area. He also made an oral statement that the box was buried beneath
the area so marked, location whereof showed that it was a big area, flooring
of which had been well plastered with cement having Cuddapah stone slabs.
F The video showed that the slabs had been laid there much earlier and were
not of recent origin. [Paras 38 and 39) (640-E, G; 641-B-C)
-,..
Aloke Nath Dutt and Ors. v. State of West Bengal, (2006) 13 SCALE
467; Pulukuri Kottayya v. King Emperor, AIR (1947) PC 67; Jajfar Hussain
G
Dastagir v. State of Maharashtra, (1969) 2 SCC 872; Shamshuk Kanwar v.
State of U.P .• (1995) 4 SCC 430 and State of Maharashtra v. Damu, (2000) 6
sec 269, relied on.
. ..
Shri Shankar Gopal Patil and Ors. v. The State of Maharashtra, (2000)
5 Bom. CR 360, referred to.
~A
H
J
....
;
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SWAMY SHRADDANAl'\DA@ MURALI MANOHAR MISHRA v. STATE Of KARNATAKA
619
1.6. It cannot be said that only because the investigating team having A
regard to the purported confession made by the appellant had already known
that a dead body had been buried in the house, Section 27 of the Evidence Act
would not be attracted. In his statements before the investigating officer,
appellant made a confession; but what was admissible in evidence is only that
part which would come within the purview of Section 27 of the Evidence Act
and not the rest The court while analyzing the evidence and appreciating the B
same cannot take note of confession made before the police.
(Para 4411642-E, Fl
1. 7. What was, therefore, relevant for the purpose of Section 27 of the
Evidence Act was that at the instance of the appellant himself a particular
place which had been pin pointed by him had been dug and remains ofa body C
and other articles were recovered. (Para 461 (642-H)
1.8. The prosecution .case must rest on the other materials brought
before the court from the confession. It is also not permissible to start with
the confession and find corroborative evidence thereof and come back to the D
confession again for the purpose of arriving at a conclusion of guilt.
(Para 45) (642-G)
2.1. Rarest of rare doctrine only has a statistical dimension i.e. incidence
of particular type of murder in a given sample, rarest of rare benchmark can
also be used in the context of other parameters such a brutality, planning, E
society's reaction et all. It can not be conclusively said that murder of wife
for usurping property is a particularly rarest of rare incident It could, of
course, be a rare incident. (Para 971 (656-H; 657-A-BI
2.2. There may be cases and cases where even on circumstantial
evidence, a death penalty may be imposed. No universal rule is meant to be F
laid down. !Para 861 (653-C-D)
Bishnu Prasad Sinha and Anr. v. State of Assam, (2007) 2 SCALE 42,
referred to.
2.3. It has been a fundamental point in numerous studies in the field of G
Death Penalty jurisprudence that cases where the sole basis of conviction is ·
circumstantial evidence, have far greater chances of turning out to be wrongful
convictions, later on, in comparison to ones which are based on fitter sources
of proof. Convictions based on seemingly conclusive circumstantial evidence
should not be presumed as full proof incidences and the fact that the same H
620
SUPREME COURT REPOR rs
(2007) 7 S.C.R.
"
A are circumstantial evidenc~ based must be a definite factor at the sentencing
stage deliberations, ~onsidering that capital punishment is unique in its total
irrevocabi/ity. Any characteristic of trial, such as conviction solely resting
.
'
on circumstantial evidence, which contributes to the uncertainty in the
culpability calculus, must attract negative attention while deciding maximum
B
penalty for murder. f Para 891 f 654-H; 655-A-BI
.......
Merritt v. State, 52 Ga. 82, 85 (1874) and Jackson v. State, 14 Ala. 26,
29-30 (1883); United States v. Quinones, 205 F. Supp. 2d 256, 267 S.D.N.Y.
(2002), referred to.
>
_)
c
S.M. Phillipps, Famous Cases of Circumstantial Evidence with an
Introduction on the Theory of Presumptive Proof 50-52 (1875), referred to.
,,...
2.4. In the instant case, confession before police was taken as a gospel
truth. It seems that the judicial mind has a role to play in that behalf in
imposition of sentence. f Para 93( f 655-Hf
D
2.5. Another aspect which needs to be considered is, as according to
the rule that sentencing should involve analysis about the nature of crime as
>-
well as the accused is the effect of two pointers relating to the nature of crime.
~
Firstly, the case does not seem to be an instance of what is called a diabolical
murder. Second point relates to planning which went into committing the
E murder. It is agreed that accused deliberately came close to the beautiful and
wealthy lady. He must have had his intentions and calculations in that regard.
To that extent intention behind the marriage can be imputed. Butto infer from
that the murder was a pre-planned murder will be going a bit too far as he did
not know the opportune date when the servant would be leaving the house. He
F
could not have known the servants would receive a telegram and ask for leave.
Without their leaving the place, the plan, ifthere was any, could not have been
executed. This is one weak link in the hypothesis that the murder was
....
't·
meticulously planned. f Paras 94 and 9511656-A-B; D-El
Kashmir Singh v. State of Himachal Pradesh, (19901Supp1 SCC 133,
G relied on.
Simon and Ors. v. State of Karnataka, 1200412 SCC 694, referred to •
.... '·
2.6. There is growing demand in the international fora and in particular
•
the second Optional Protocol to the International Covenants on Civil and
r~ -
H Political Rights and the Protocol to the American Constitution on Human
SW AM,. SHRADDANANDA@ MURALI MANOHAR MISHRA>: STA TE OF KARNATAKA
621
L
.... .,
Rights abolished that death penalty should be abolished. (Para 50) (643-EI
A
'
Mithu v. State of Punjab, (1983) 2 SCR 6903, referred to.
: /
Reyes v. R., (2002) UKPC 11 : 12 BHRC 219; Hughes, R. v. (Saint Lucia),
(2002) UKPC 12, Fox v. The Queen, (2002) 2 AC 284, Bowe v. The Queen,
(2006) 1WLR1623 and Coard and Ors. v. The Attorney General (Grenada), B
(2007) UKPC 7, referred to.
~'
2.7. The jurisdiction to impose death penalty should not be invoked
+-
unless there exists an extra-ordinary situation to find that it comes within
the purview of "rarest of rare" cases. The approach of the courts should not c
be to confine its thought process to the identification of a "rare" case. The
expression "rarest of rare" case has been evolved by a Constitution Bench of
this Court and, thus, demands a meaningful application. (Para 52) (643-G-Hl
Bachan Singh v. State of Punjab, (198311 SCR 145, followed.
D
Aloke Nath Dutta and Ors. v. State of West Bengal, (20061 3 SCALE
~
467, relied on •
.,
2.8. Scholarship on sentencing which has been quite diverse in its
'
prescriptions certainly has consensus on the point that any decision oh E
sentencing aspect would require assessi"g more than one variables and single
minded pursuit of any one sentencing ideal would be discounting on other
equally urgent parameters and objectives. India does not have a sentencing
policy, unlike some other countries. Section 354 (3) Cr. P.C. suggests that
Indian law furthers statute induced sentencing guidance in part Therefore it
F
has to be given full colour. In our country, therefore, each case may have to
be considered on its own merit. (Paras 58, 59 and 61) (646-C, D, FJ
Harbans Singh v. Union of India, AIR (1982) SC 849, referred to.
The Queen v. Julie McGinley and Michael Monaghan, (2003) NICC t G
and Furman v. Georgia, 408 U.S. 238 (1972) referred to.
Halliday Report of 2001 (Making Punishments Work) referred to.
2.9. There is a clear and discernible necessity of caution to set the
maximum punishment in an olfence. And also by Implication there must be H
622
SUPREME COURT REPORTS
[2007) 7 S.C.R.
A intensive and exhaustive inquiry into accused related parameters before
employing the maximum sentence by a court of law. Therefore discretion to
the judiciary in this respect (to declare the maximum punishment) is of utmost
critical and seminal value. Reasons must be detailed setting clearly why any
punishment other than the maximum punishment will not suffice. This is a
B general and age-old rule of sentencing which has been statutorily recogniud
under section 354(3) Cr.P.C. [Para 681 [649-F-Gl
2.10. The law itself mandates that for imposing death sentence, special
reasons are to be assigned. Imposition of death punishment is an exception in
terms of sub-section (3) of Section 354 of the Code of Criminal Procedure.
c Whereas for commission of other offences, one or other theory, justly or
otherwise may be taken recourse to, a large number of factors are required
to be home in mind for awarding death penalty. The doctrine of proportionality
which is often referred to in the judicial pronouncements in regard to the
sentencing policy required to be judicially adopted should not apply in a case
of imposition of capital punishment. Precedent should not be contrary to
D Parliamentary law; far less the decision ofa Constitution bench of this Court.
(Paras 75 and 83] (650-H; 651-A; 652-FJ
Rajendra Prasad v. State of U.P .. [19791 3 SCR 646; Bhimashya and
Ors. v. Smt. Janabi @Janawwa, (2006) 14 SCALE 27; State of Rajasthan v.
E Kheraj Ram, (2003) 8 SCC 224; Bablu@ Mubarik Hussain v. State of
Rajasthan, (2006) 14 SCALE 15 and Shivu and Anr. v. R.G. I:igh Court of
Karnataka and Anr., (2007) 3 SCALE 157, referred to.
'Principles of Penal Law' by Bentham; 'Of Crimes and Punishments' by
F
Beccana, referred to.
2.11. Cases where death penalty has been upheld by this Court are those
where murder was committed ofa large number of persons or by more than
one person in a brutal or systematic manner. [Para 81) (642-E, F) (652-D)
G
Renuka Bai alias Rinku alias Ratan and Anr. v. State of Maharashtra,
(2006) 7 SCC 442 and Ram Singh v. Sonia & Ors .. (2007) 3 SCALE 106,
referred to.
2.12. In criminal cases character of accused is immaterial by the
mandate of sections 53 and 54 of Evidence Act. The same should not be a
H factor in the discussions at the sentencing stage. If that be so, bad character
l
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,......
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..
.__
...,.
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SWAMY SHRAODA:'-.A:'-.UA •!!- ML.RALi MANUHAR MISHRA •·. STAT!:. Of KAMAT AKA
623
.. ·-+
of the accused by itself should not be a determinative factor .
A
!Para 9811657-C)
2.13. At the stage of hearing before High Court th~ stage of hearing an
accused under Section 235(2) of the Cr.P.C. is after the judgment of conviction
is pronounced and not prior thereto. Appellant herein made a confession before
the High Court. The High Court took the same into consideration in the main B
judgment which could not be done. He had been brought before the High Court
...
only for purpose of fulfilling the requirement of sub-section (2) of Section
~
235 Cr.P.C. His Statement was taken during midst of hearing. He knew the
implications thereof. Despite the same, he made a categorical statement that
he was responsible for burying the dead body. He gave an explanation, which c
might not have found favour with the High Court, but the fact that he had
made a confession at least accepting a part of the offence could not have been
ignored at least for the purpose of imposition of punishment He is more than
64 years' old. He is in custody for a period of 16 years. The death sentence
was awarded to him by the trial court in terms of its judgment dated
20.05.2005. In a situation of this nature, imposition of a life imprisonment D
for commission of the crime under Section 302 shall serve the ends of justice.
....
!Para 9911657-D-FI
....
2.14. However, while saying so, it is directed that in a case of this nature
'life sentence' must be meant to be 'life sentence'. Such a direction can be
given by the Court !Para 10011657-GJ
E
Subhash Chander v. Krishan Lal and Ors., 12001) 4 SCC 458, relied
on.
Ram Anup Singh and Ors. v. State of Bihar, 12002) 6 SCC; Prakash
F
Dhawal Khairnar (Patil) v. State of Maharashtra, (2002) 2 SCC 35, Shri
~
Bhagwan v. State of Rajasthan, (20011 6 SCC 296 and Mohd. Munno etc. v.
Union of India and Ors. etc., (2005) 7 SCC 417 686, referred to.
Acharaparambath Pradeepan & Anr. v. State of Kera/a, (2006) 13
SCALE 600; Bishnu Prasad Sinha and Anr. v. State of Assam, (2007) 2 SCALE G
42; Amarjit Singh v. State of Punjab, AIR (2006) SCW 5712; Sahdeo and
Ors. v. State ofU.P., [2004) 10 SCC 682 and Raju v. State of Haryana, 120011
. 9 sec 50, referred to.
··~
Per Markandey Katju, J
H
'624
SUPREME COURT REPORTS
(2007) 7 S.C.R.
A
I.I. The conviction of the appellant under Section 302 and other
-r-~
provisions of IPC imposed by the trial Court and High Court deserves to be ·
upheld. There is convincing circumstantial evidence to establish the guilt of
the accused. This is case of cold blooded, calculated, diabolical murder by the
accused of an innocent lady who came from a good family but unfortunately
B
due to her infatuation fell into his clutches.
(Paras 1, 23 and 27) (658-E; 665-C; 668-A)
1.2. It is not correct to say that only direct evidence is strong evidence
while circumstantial evidence is weak evidence. Both kinds of evidence can
,.
+
be strong in a given situation. The only requirement in circumstantial evidence
is that the chain of links connected the accused with the crime should be
c established beyond reasonable doubt. In this case the facts clearly establish
the chain of circumstances linking the accused with the crime.
(Para 24) (665-D-EJ
I .J. From the facts of the case, it is evident that the deceased was not
...
Sfln alive from May 1991 onwards and no one was able to speak to her on
1,.
D
.••'"
telephone, whereas, till May 1991 her daughter PW 5 was regularly in contact
with her. Accused was living with the deceased as her husband and when
/....
contacted by PW S he told all kinds of lies about the whereabout of the
-jdeceased. (Para 25) f 667-DJ
E
1.4. The fact that the deceased was murdered is indisputable. If she had
met a natural death, there was no question of her being buried in the backyard
of the house without intimating any of her relatives including her daughter
and parents. There is abundant expert evidence to establish that the skeleton
discovered in the box in the backyard was that of the deceased. There is also
F
uncontroverted evidence that the said box in which her body was kept was got
prepared by the accused himself prior to the death of the deceased. There is
no manner of doubt that the accused killed the deceased and secretly buried
f
her in the bac~yard of the. house. The fact that he kept the death news of the
deceased secret and he told lies repeatedly to her daughter, PW 5 proves his
guilty mind. His act of selling valuable property of the deceased worth crores
G ofrupees within a short time of the death of the deceased with the help ofa
defunct General Power of Attorney and the other material on re~ord clearly
establish the guilt of the accused beyond reasonable doubt. The prosecution _
has convincingly succeeded in establishing all the links in the chain of
-
circumstances linking the accused with the crime.
.,.-.
(Para 261 (667-E-HI
H
-
SW M1Y SHRADDANAl'>OA (!!' MURALI MANOHAR MISHRA •. ST ATE m 11.ARNATAKA
625
1.5. It cannot be said that there was no reason for the appellant to murder A
the deceased since the deceased had executed a will in his favour. It is well
settled that a will comes into operation only on the death of the testator. The
deceased was only in her forties, and her natural death may have occurred
several decades later. The appellant was obviously not willing to wait for so
long before he could grab her property and hence he decided to murder her. B I
No doubt no poisonous substance was detected in the skeleton of the deceased,>
and hence the prosecution case that the accused mixed poison in her tea could
not be firmly established. However, even ifthe exact method of murder has
not been established by the prosecution, there is no doubt that it was the
appellant who murdered the deceased. (Para 28) 1668-B-C)
1.6. Appellant was in a dominating position over the deceased who had
become dependant on him, and he took full advantage of this situation. He had
motive and opportunity for committing this ghastly crime.
(Para 29) (668-G-H)
c
2.1. The facts of the present case clearly fall within the category of rarest D
of rare cases, deserving death sentence. It is a case of pre-planned and cold
blooded murder diabolically conceived and cruelly executed.
(Paras 6 and 9) (659-H; 660-G-H)
Bachan Singh v. State of Punjab, (1983) l SCR 145, followed.
Machi Singh v.State of Punjab, (198313 SCC 470 and Holiram Bord/oi
v. State of Assam, (200513 SCC 793, relied on.
Aloke Nath Dutta and Ors. v. State of West Bengal, (2006) 13 SCALE
467, referred to.
2.2. No doubt there has been a growing demand in the international for
a that the death penalty should be abolished. However, in India the death penalty
cannot be abolished by a judicial verdict as death sentence is contemplated by
E
F
the Constitution and the l.P.C. Thus Article 72 (l)(c) of the Constitution
specifically mentions that the President of India has the power to grant G
pardons, reprieves or suspension of any death sentence; Similarly Article 72
(3) also contemplates the power in the Governor of the State of suspend, remit
or commute a death sentence. Hence, it is held that the Courts have no power
to impose a death sentence it would be amending the Constitution by a judicial
verdict. Again, if it is held that the Courts have no power to impose death H
626
SUPREME COURT REPORTS
£2007] 7 S.C.R.
A . sentence merely because the death sentence has been abolished· in some
!'foreign countries in Europe or because there is a demand in the international
fora.that death sentence should be abolished, it would be really amending the
Constitution. This Court has no power to amend the Constitution by a judicial
verdict. The Constitution can only be amended by Parliament in the manner
B prescribed by article 368 of the Constitution. This Court cannot arrogate to
itself the power of Parliament under the Constitution and must maintain selfrestraint. Moreover, what has happened in foreign countries cannot be
automatically applied to our country where the situation is different.
[Para 71 [660-B-EJ
C
Aloke Nath Dutta's and Ors. v. State of West Bengal, (2006) 13 SCALE
D
467, dissented with
2.3. The Court cannot legislate or amend the law. There is broad
separation of powers under the Constitution and this Court must riot ordinarily
encroach into the legislative or executive domain.
[Para 8J (660-F)
Indian Drugs and Pharmaceuticals Ltd. v. The Workman of Indian Drugs
and Pharmaceuticals Ltd., (20071 I' SCC 408, relied on.
2.4. There cannot be an absolute principle of law that merely because
E there has been a long lapse of the time from the commission of the offence
and the final conviction and sentence by this Court the death penalty can never
be imposed. It all depends on the facts of each case. It is well known that nowa-days a long interval of time frequently occurs between the commission of
the offence and the final conviction by this Court (because of the delays in the
trial, appeals, etc.) and hence any absolute principle of law that merely because
F of this long interval death penalty cannot be imposed is laid down, then in all
--
+
;....
such cases merely because of lapse of time death penalty ~an not be imposed
1
even though the murder was cold blooded, diabolical and' heinous. This again
would be amending the Constitution by a judicial verdict. Moreover this would
give encouragement to the accused and their lawyers to delay proceedings in
G Court (by unnecessary adjournments, interlocutory applications, etc.) to avoid
~he death penalty. [Para I0[ (661-A-CJ
· 2.5. It also cannot be said that in cases of circumstantial evidence
ordinarily the death penalty should not be awarded. No such absolute
-r _i
proposition of the law can be laid down. It all depends on the facts of each
H case. Criminals have been hanged even on the basis of circumstantial evidence.
SWAMY SHRADDAl'ANDA@MURALI MANOHAR MISHRA v. ST All: OF KARNAT AKA [S.B. SINHA. J.] 627
.....,._ -+·
There is no principle of law that only direct evidence is strong and reliable A
while circumstantial evidence is weak and unreliable. Circumstantial evidence
can be as strong aqd reliable as direct evidence, but the only requirement is
that the prosecution must establish beyond reasonable doubt that there is a
chain of links which connects the accused with the crime.
(Para lll 1661-E-Fl B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 454 of
......
2006 .
...
From the Judgment and Order dated 19.9.2005 of the High Court of
Kamataka in Criminal Reference No. and Criminal Appeal No. 06 of2005 and
1086 of2005 respectively.
c
'
Alok Vagrecha, Viresh Kumar Yadav, Banay K. Das and Varindar Kumar
Sharma for the Appellant.
Sanjay R. Hegde, Anil Kumar Mishra and Vikrant Yadav for the
Respondent.
D
.-,
U.U. Lalit, Rana Mukherjee, Siddharth Gautam and Goodwill Indeevar
~
for the Intervenor.
The Judgment of the Court was delivered by
S.B. SINHA, J. I. Appellant herein was convicted and sentenced to E
death for committing murder of his wife on or about 28.05.1991 at their
residential house situate at 81, Richmond Road, Bangalore. The deceased was
earlier married to one Akbar Khaleeli who was in the diplomatic service in the
Government of India. She had four daughters. The deceased along with her
children in ·the year 1983 visited the Maharaja of Rampur. There she was F
-
introduced to the appellant. Appellant at the relevant time was assisting the
\>
Rampur royal family. In regard to the management of her landed properties,
...
the deceased sought for his assistance. She had inherited huge properties
including House No. 81, Richmond Road, Bangalore from her mother. She had
inherited some other properties during her marriage. Some litigations in respect
of the said properties had been going on.
G
2. Mr. Khaleeli on his assignment as diplomat of Iran went to the said
country. The deceased together with her daughters started living at Bangalore.
"-'<
Appellant came there. He was also staying in the same house. The deceased
desired for a son and she was made to believe by the appellant that he was
capable of blessing her with a son. Akbar Khaleeli and the deceased separated H
628
SUPREME COURT REPORTS
[2007) 7 S.C.R.
A :n the year l 985. The deceased thereafter married the appellant on 17 .04.1986.
-----
They started living together at the said house. She had executed a General
Power of Attorney and a Will in his favour. However. despite her marriage
with the appellant, the deceased was maintaining her relationship with her
parents and daughters. Mrs. Sabah Khaleeli, second daughter of the deceased
B
(PW-5) had all along been in touch with her.
f
3. It is not in dispute that from 28.05.1991, the deceased was not seen.
PW-5 had been trying to contact her on phone. She was infonned by the
4.
appellant that the deceased had gone to Hyderabad. In June 1991, when_
+
contacted, she was informed that her mother had gone to Kutch to attend a
c wedding. A week thereafter it was informed to her that the deceased had been
lying low owing to some income tax problems. She, being exasperated with
the said explanations, came down to Bangalore. She did not find her mother
)
there. She was told that the deceased being pregnant had gone to United
States of America for delivery of the child. She was told to have. been
admitted in Roosevelt Hospital. She made verifications thereabout through
-"'
D her acquaintances and came to know that no such woman had ever been
admitted to the said hospital. Appellant being confronted thereto, informed
~·
her that the deceased had gone to London as she had wanted to keep it as
+
a secret. However, in 1992, when she met the accused at Mumbai, noticed the
passport of her mother lying in the room of the hotel which confinned that
E the deceased had not visited USA or London as represented to her by the
appellant on earlier occasions.
4. She ultimately informed the Ashok Nagar Police Station by giving a
written complaint about missing of her mother. A missing complaint was
registered on 10.06.1992. No serious effort, however, was made to find out the
F whereabouts of the deceased. PW-5 approached the higher authorities resulting
in the investigation of the matter being entrusted to the Central Crime Branch.
-
Apprehending arrest, Appellant obtained anticipatory bail with a condition
-f
·~
that he would attend the police between 6 p.m. to 8 p.m. on every Monday
and shall also make him available to the police. He applied for relaxation of
r
the said condition and by an order dated 3.12.1993, it was. directed that the
G appellant shall appear before the police authorities on every Monday once
. in three months.
15. The investigation was entrusted to one C. Veeraiaha (PW-37). He
r
suspected the appellant herein. He was interrogated on28.03.1994, whereupon
H he made a voluntary statement which was marked as Ex. P-175. He stated in
>Y<AM\ 'HMUUAl>AC-.UAly} MURALI MAl>UHARMlSHRA v. STATE m KAR.,'-AI A1'.A l> 8 'i1'HA. J J 629
great details as to the manner in which he had killed his wife and disposed A
-.. '+
bf her dead body. He also disclosed as to how a wooden box of size 2 x 7
x 2 was made. a pit was dug and how the dead body was buried there. He
narrated that how with the help of Raju he had put the box into the pit
covered with mud and on the next day with the help of some masons brought
by the said Raju kadapa stone slabs were put on the pit and the adjacent land B
and cemented the place.
6. In the said statement, he stated:
~
~
"If I am taken I will show the place where the wooden box was
prepared and the person who prepared it, the persons who transported c
the box and the people who helped in digging out the pit and the crow
bar, spade, pan used for digging pit, the cement bags and the spot
where Shakerah is buried and I exhume the dead body of the deceased
and show you. The statement what all I had earlier given to Ashnknagar
Police was a false statement given intentionally just to escape myself."
D
7. An Executive Magistrate Syed Ejaj Ahmad (PW-3) was called for
-~
exhumation of the dead body. He asked a doctor to conduct exhumation
·+
proceeding. On 30.03.1994, Dr. Nissar Ahmed (PW-14) came to the place of
occurrence for the said purpose. Appellant was asked as to whether he was
ready to show the spot as per his earlier statement. The entire proceeding of E
exhumation of the dead body was video-graphed. It took place at about I 0.30
a.m. on the said day. Appellant with a chalk piece marked the spot. Coolies
accompanying the party as per instructions of the appellant himself, dug the
earth of the said place whereupon a box was noticed. The plank of the lid of
the wooden box was removed. A bed, a nighty, pillow and bed sheets were
recovered. Channaiah who had come along with Dr. Nissar Ahmed removed F
the scalp, skull and hairs of the head which were detached from the skull and
_/ +
other bone pieces. He also removed the pieces of the bones. Another Doctor
Shri Thiruvanakkarasu also came there. They joined the bones and fixed the
skull and mandible in orderly manner. It was found to be that of a human
skeleton. The mother of the deceased Smt. Gauhar Taj Namazie identified a
ring which was embedded with red stone and two other black rings as G
belonging to the deceased. The nighty which was recovered was identified
to be belonging to the deceased by the maid servant who had been working
'
in the house.
r - ~
H
630
SUPREME COURT REPORTS
(2007) 7 S.C.R.
A
8. The post mortem examination commenced at 4.45 p.m. on 30.03.1994
which ended at about 6 p.m.
9. Appellant was, thereafter, charged for commission of murder of his
wife. Before the learned Trial Judge, 39 prosecution witnesses were examined.
There was no eye-witness to the occurrence. The prosecution was based on
B circumstantial evidence.
10. The learned Trial Judge, as noticed hereinbefore, found the appellant
guilty of commission of offence under Sections 302 and 20 l of the Indian
Penal Code and sentenced him to death.
c
l l. Appellant preferred an appeal before the High Court. A reference
was also made by the learned Judge in terms of Section 366 of the Code of
Criminal Procedure.
12. The. circumstances which were found to be existing by the High
D
Court for proving commission of the offence are said to be :
"(a) Motive - Murder for gain
(b) The deceased Shakereh was last seen alive in May 199 l when she
was residing at No. 81, Richmond Road, Bangalore along with accused
and his wife.
E
(c) Strange conduct of the accused after 28-5-91
(d) A wooden box (M0.5) was got prepared and brought to the house
by the accused.
F
( e) Discovery of the wooden box containing a skeleton and feminine
articles buried in the backyard of the said house of the accused and
the deceased in furt~erance of information furnished by the accused.
(t) Fixing. the identity of the skeleton as that of the deceased with the
help of skull and the admitted undisputed photograph of Mrs. Shakereh
G
by photo Super-imposition method.
(g) Fixing the identity of the skeleton as that of the deceased on the
. basis of DNA finger printing.
(h) Identifying some of the articles like MOs. 5, 6, 8, 11 to 17 along
H
with the skeleton in the box as belonging to the deceased.
I--
"'
-r-
~~
+
.,
I"
-+
" '
T
~
r=
.JI
(
SWAMY SHRADDAJIOANDA@MURALI MA!l;OHAR MISHRA"· STATE OF KARl'ATAKA [S.B Sll"HA. J.) 63 J
.....
~
(i) The last circumstance put forth i.e., the attempt of the accused to A
mislead or to give false explanation."
13. Before the High Court, a contention was raised that before imposition
of sentence, the appellant had not been granted adequate opportunity to
make a representation as was mandatorily required under Sub-section (2) of
Section 235 of the Code of Criminal Procedure, 1973. The High Court gave the B
appellant an opportunity of being heard. Before the High Court, the appellant
-
accepted that he was instrumental in burying the dead body stating:
_..,.
"The accused submitted that he is innocent and has been illegally
convicted. He submitted that as the family members of the deceased c
(parents and daughters) had filed number of cases against the
deceased, she was mentally depressed and was taking number of
sedative pills/ drugs; that she died naturally in May 1991 and as he
feared adverse consequences, especially repercussions from her family
members and community people, he buried her body in the backyard
-·
of his house without informing anybody. He submitted that though D
this fact was not stated by him in the trial court, as he could not bear
L...i,
it any more and after thinking over the matter for the last few years,
+
he has decided to come out with this truth. He submitted that as he
is innocent, his conviction be set aside and he be acquitted. So far
as the sentence is concerned, he submitted that as now he is 61 years
old and suffering from serious ailments like diabetes, hypertension E
and hernia and as he is in custody for the last 11 years, mercy be
shown to him by reducing the capital punishment, if ever the court
decides to convict him."
14. The High Court, however, affirmed the judgment of conviction and
F
sentence.
- -+
15. Mr. Alok Vagrecha, learned counsel appearing on behalf of the
appellant raised the following contentions in support of this appeal:
/
(i)
A First Information Report having been already lodged by PW5, a second report by the Investigating Officer - PW-37 lodged G
on 28.03 .1994 (Ex. P-171) was illegal.
-
(ii)
The purported recovery of the wooden box containing some
-~
articles and the bones which were not admissible in evidence
under Section 27 of the Indian Evidence Act as the location of
the dead body was already known, the purported statement made H
A
B
c
D
E
F
G
632
(iii)
(iv)
(v)
(vi)
(vii)
SUPREME COURT REPORTS
[2007) 7 S.C.R.
by the appellant (Ex. P 175) being wholly inadmissible in evidence,
consequent recovery of the dead body would also be inadmissible.
In this connection our attention has been drawn to the fact that
the appellant was given an opportunity to have the services of
a lawyer during interrogation.
If the prosecution case is true that the appellant had administered
sedative to the deceased on 28.05.1991 in the afternoon, the
courts below should have also taken into consideration that in.
view of the statement of the investigating officer that the appellant
at about the same time on 28 .05 .1991 was found to be in the
company of one Rekha Handa, a former Miss India, the
prosecution case must be held to have not been proved as
against the appellant.
A Will and General Power of Attorney having already been
executed by the deceased, the appellant could not have any
motive to kill her.
The purported circumstances on the basis whereof the judgment
of conviction and sentence have been rendered does not complete
all the links in the chain as tbere had been (a) no recovery of
drug; (b) motive had not been proved; and (c) there was no proof
that she died of poisoning.
The purported recovery of drug on 31.03 .1994 by the Investigating
Officer was wholly inadmissible in evidence.
The High Court having recorded that the deceased did not meet
any violent death, the impugned judgment cannot be sustained
and in any event the death sentence should not have beeri
imposed.
(viii) The High Court committed a serious illegality in relying upon the
statement made by the appellant before it as being confession of
his guilt although the same was meant to be used for the purpose
of hearing on the question of sentence only.
16. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the
State, on the other hand, supported the judgment.