# VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC

- **Citation:** [2016] 8 S.C.R. 872
- **Court:** Supreme Court of India
- **Decided:** 2016-10-03
- **Case number:** Criminal Appeal Nos. 1531-1533 of2015
- **Bench:** Dipak Misra, C. Nagappan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vikas-yadav-v-state-of-u-p-and-ors-etc-etc-31449
- **Pages:** 64

## Headnote

Sentence/Sentencing:
Fixed term sentence - Imposition of, permissibility - Held: It
C is within the domain of judiciary to direct that convict shall suffer
actual incarnation for a specific period- Fixed term sentence cannot
be said to be unauthorised in law.
Principle of sentencing - Held: The appellate court cannot
impose a sentence beyond the competence of the trial court - If the
D trial court has no jurisdiction to impose a particular sentence, the
High Court as a "Court of error" cannot pass a different harsher
sentence.
Sentencing in multiple offences - Concurrent or consecutive
- In the instant case, trial court imposed life sentence and directed
E all the sentences to run concurrent - High Court declined to enhance
the sentence from imprisonment for life to death, but imposed a
fixed term sentence -
Whether a person sentenced to undergo
imprisonment for life when visited with the 'term sentence' should
suffer them consecutively or concurrently - Held: High Court did
F not direct that the sentence u/ss.201134 !PC shall run first and,
thereafter, the fixed term sentence will commence - As the High
Court has not done it, it is held inappropriate in the appeal preferred
by the appellants to do so - Therefore, sentence imposed for the
offence punishable ulss.201134 !PC to run concurrently with the
sentence imposed for other offences by the High Court """' Penal
G Code, 1860 - ss.201134.
H
Fixed term sentence - lmpositio11 of - Honour killing - Nitish
Katara case - High Court imposed a fixed term sentence i.e. 25
years for offence uls.302 !PC -Appellant's plea that the court can
either impose sentence of imprisonment for life or sentence of death
872
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
873
but it is not permissible to impose any other fixed term sentence -
A
Held: The circumstantial evidence by which the crime was
established, clearly led to one singular conclusion that the anger
of the accused persons on the involvement of the sister with the
deceased, was the only motive behind crime - Crime was committed
in planned and cold blooded manner with a motive that emanated B
from unwarranted superiority based on caste feeling that blinded
the thought of choice available to a sister - The factum of "honour
killing" was a seminal ground for imposing the fixed term sentence
of twenty-five years for the offences under ss.302134 !PC on the
two accused persons, who though highly educated had not
cultivated the ability to abandon the depricable feelings and attitude
C
prevailing for centuries - Even after murdering the victim-deceased,
the accused displayed their vengeance by destroying the body of
the deceased which demonstrated the criminal tendency for they
had neither respect for human life nor any concern for the dignity
of a dead person - The brutality displayed by accused persons D
clearly exposed depraved state of mind - Imposition of fixed term
on appellants cannot be found fault with.
Code of Criminal Procedure, 1973: s.433-A - Exercise of
power under, scope - Held: Statutory power uls. 433-A can be
curtailed when the Court is of the considered opinion that the fact
situation deserves a sentence of incarnation which be for a fixed
E
term so that power of remission is not exercised - Sentence/
Sentencing.
Constitution of India: Arts. 71and161 -Judicial review, scope
- Held: The courts cannot embark 11pon the power to be exercised
by the Executive Heads of the State under Art. 71 and Art.161 of the
F
Constitution.
Disposing of the appeals, the Court
HELD: 1.1. Though the power exercised under Article 71
and Article 161 of the Constitution is amenable to judicial review
G
.in a limited sense, yet the Court cannot exercise such power.
Section 433-A CrPC empowers the executive to grant remission
after expiry of 14 years. The statutory power under Section 433A can be curtailed when the Court is of the considered opinion
that the fact situation deserves a sentence of incarceration which
H
874
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SUPREME CO

## Text

_Characters 0–39,947 of 138,145. This is a partial read: ask again with offset=39947 for what follows._

A
B
[2016] 8 S.C.R. 872
VIKAS YADAV
v.
STATE OF U.P. AND ORS. ETC. ETC.
(Criminal Appeal Nos. 1531-1533 of2015)
OCTOBER 03, 2016
[DIPAK MISRA AND C. NAGAPPAN, JJ.]
Sentence/Sentencing:
Fixed term sentence - Imposition of, permissibility - Held: It
C is within the domain of judiciary to direct that convict shall suffer
actual incarnation for a specific period- Fixed term sentence cannot
be said to be unauthorised in law.
Principle of sentencing - Held: The appellate court cannot
impose a sentence beyond the competence of the trial court - If the
D trial court has no jurisdiction to impose a particular sentence, the
High Court as a "Court of error" cannot pass a different harsher
sentence.
Sentencing in multiple offences - Concurrent or consecutive
- In the instant case, trial court imposed life sentence and directed
E all the sentences to run concurrent - High Court declined to enhance
the sentence from imprisonment for life to death, but imposed a
fixed term sentence -
Whether a person sentenced to undergo
imprisonment for life when visited with the 'term sentence' should
suffer them consecutively or concurrently - Held: High Court did
F not direct that the sentence u/ss.201134 !PC shall run first and,
thereafter, the fixed term sentence will commence - As the High
Court has not done it, it is held inappropriate in the appeal preferred
by the appellants to do so - Therefore, sentence imposed for the
offence punishable ulss.201134 !PC to run concurrently with the
sentence imposed for other offences by the High Court """' Penal
G Code, 1860 - ss.201134.
H
Fixed term sentence - lmpositio11 of - Honour killing - Nitish
Katara case - High Court imposed a fixed term sentence i.e. 25
years for offence uls.302 !PC -Appellant's plea that the court can
either impose sentence of imprisonment for life or sentence of death
872
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
873
but it is not permissible to impose any other fixed term sentence -
A
Held: The circumstantial evidence by which the crime was
established, clearly led to one singular conclusion that the anger
of the accused persons on the involvement of the sister with the
deceased, was the only motive behind crime - Crime was committed
in planned and cold blooded manner with a motive that emanated B
from unwarranted superiority based on caste feeling that blinded
the thought of choice available to a sister - The factum of "honour
killing" was a seminal ground for imposing the fixed term sentence
of twenty-five years for the offences under ss.302134 !PC on the
two accused persons, who though highly educated had not
cultivated the ability to abandon the depricable feelings and attitude
C
prevailing for centuries - Even after murdering the victim-deceased,
the accused displayed their vengeance by destroying the body of
the deceased which demonstrated the criminal tendency for they
had neither respect for human life nor any concern for the dignity
of a dead person - The brutality displayed by accused persons D
clearly exposed depraved state of mind - Imposition of fixed term
on appellants cannot be found fault with.
Code of Criminal Procedure, 1973: s.433-A - Exercise of
power under, scope - Held: Statutory power uls. 433-A can be
curtailed when the Court is of the considered opinion that the fact
situation deserves a sentence of incarnation which be for a fixed
E
term so that power of remission is not exercised - Sentence/
Sentencing.
Constitution of India: Arts. 71and161 -Judicial review, scope
- Held: The courts cannot embark 11pon the power to be exercised
by the Executive Heads of the State under Art. 71 and Art.161 of the
F
Constitution.
Disposing of the appeals, the Court
HELD: 1.1. Though the power exercised under Article 71
and Article 161 of the Constitution is amenable to judicial review
G
.in a limited sense, yet the Court cannot exercise such power.
Section 433-A CrPC empowers the executive to grant remission
after expiry of 14 years. The statutory power under Section 433A can be curtailed when the Court is of the considered opinion
that the fact situation deserves a sentence of incarceration which
H
874
A
B
c
D
E
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G
H
SUPREME COURT REPORTS
[2016] 8 S.C.R.
be for a fixed term so that power of remission is not exercised.
There are many an authority to support that there is imposition
of fixed term sentence to curtail the power of remission and scuttle
the application for consideration of remission by the convict. It is
because in a particular fact situation, it becomes a penological
necessity which is permissible within the concept of maximum
and the minimum. There is no dispute over the maximum, that
is, death sentence.
· The court, as in the case at hand, when
dealing with an appeal for enhancement of sentence from
imprisonment of life to death, can definitely say that the convict
shall suffer actual incarceration for a specific period. It is within
the domain of judiciary and such an interpretation is permissible.
The Court cannot grant a lesser punishment than the minimum
but can impose a punishment which is lesser than the maximum.
[Para 35][905-F-H; 906-A-C]
1.2. The fixed term sentence cannot be said to be
unauthorized in law. Section 302 IPC authorizes imposition of
death sentence. The minimum sentence is imprisonment for life
which means till the entire period of natural life of the convict is
over. That remains in a different sphere and it has its independent
legal sanctity.
The executive has been granted power by the
legislature to grant remission after expiry of certain period. The
court could have imposed the death sentence. However, in a
case where the court does not intend to impose a death sentence
because of certain factors, it may impose fixed term sentence
keeping in view the public concept with regard to deterrent
punishment.
It really adopts the view of "expanded option",
lesser than the maximum and within the expanded option of the
minimum, for grant of remission docs not come in after expiry of
14 years. It strikes a balance regard being had to the gravity of
the offence. [Para 40)(911-F-H; 912-A-B]
Union of India v. V. Sriharan alias Murugan and others
(2016) 7 sec 1 - followed.
2. The appellate court cannot impose a sentence beyond
the competence of the trial court. If the trial court has no
jurisdiction to impose such a sentence, the High Court as a
"Court of error" cannot pass a different harsher sentence. But
in the case at hand, the appellants were convicted under section
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
875
302 IPC and the trial court could have been impose the sentence A
of death. [Para 50][919-D-E]
Jashubha Bharatsinh Gohil and others v. State of
Gujarat (1994) 4 SCC 353 - relied on.
Jagat Bahadur v. State of Madhya Pradesh AIR 1966
SC 945: 1966 SCR 822;
Shankar Kerba Jadhav and
others v. The State of Maharashtra AIR (1971) SC 840:
1970 (2) SCR 227; A.R. Antulay v. R.S. Naik and
another (1988) 2 SCC 602: 1988 (1) Suppl. SCR 1 -
held inapplicable.
3. The crime was committed in a planned and cold blooded
manner with the motive that has emanated due to feeling of some
kind uncalled for and unwarranted superiority based on caste
feeling that has blinded tpe thought of "choice available" to a
sister - a representative of women as a class. The High Court in
B
c
its judgment of conviction has unequivocally held that it is a D
"honour killing" and the said findings apart from being put to
rest, also gets support from the evidence brought on record. The
circumstantial evidence by which the crime was established,
clearly led to one singular conclusion that the anger of the brother
on the involvement of the sister with the deceased, was the only
motive behind crime. The High Court treated the murder as
E
"honour killing", yet regard being had to other factors did not
think appropriate to impose extreme penalty of death sentence.
The factum of"honour killing" was a seminal ground for imposing
the fixed term sentence of twenty-five years for the offences under
section 302/34 IPC on the two accused persons, who though
highly educated in good educational institutions, had not cultivated
the ability to abandon the depricable feelings and attitude for
centuries. The High Court also took note of the impact of postoffence events and observed that the deceased was burnt to such
a point that his own mother could only suggest the identification
from the small size of one unburnt palm with fingers of the hand
that the body appeared to be that of her deceased son. The
identification had to be confirmed by DNA testing. While imposing
F
G
the sentence, the High Court was compelled to observe that the
magnitude of vengeance of the accused and the extent to which
they had gone to destroy the body of the deceased after his murder H
876
SUPREME COURT REPORTS
[2016] 8 S.C.R.
A shows the brutality involved in the crime and the maladroit efforts
that were made to destroy the evidence. The evidence on record
as well as the analysis made by the High Court demonstrate the
criminal proclivity of the accused persons, for they have neither
the respect for human life nor did they have any concern for the
B dignity of a dead person. They had deliberately comatosed the
feeling that even in death a person has dignity and when one is .
dead deserves to be treated with dignity. That is the basic human
right. The brutality that has been displayed by the accused
persons clearly exposes the depraved state of mind. [Paras 61,
c
D
E
F
66 and 69][925-E-F; 928-G-H; 929-A, E-H; 930-A]
Lata Singh v. State of U. P. and another (2006) 5 SCC
475: 2006 (3)
Suppl. SCR 350; Maya Kaur
Baldevsingh Sardar and another v.
State of
Maharashtra (2007) 12 SCC 654: 2007 (10) SCR 752;
Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC
405: 2011 (5) SCR 488; Bha?;J11an Dass 1( State (NCT
of Delhi) (2011) 6 sec 396: 2011 (6) scR 330 -
relied on.
Shankar Kisanrao Khade v. State of Maharashtra
(2013) 5 SCC 546: 2013 (6) SCR 949; Oma alias
Omprakash and another v. State of Tamil Nadu (2013)
3 SCC 440: 2012 (13) SCR 740; Mohd. Farooq Abdul
Gafur and another v. State of Maharashtra (2010) 14
SCC 641: 2009 (12) SCR 1093; Mohinder SinRh" State
of Punjab (2013) 3 SCC 294: 2013 (3) SCR 90;
Mangesh v. State of Maharashtra (2011) 2 SCC 123:
2011 (1) SCR 72 - referred to.
4. The conduct during the trial was also emphasized by the
High Court because it is not an effect to protect one-self, but the
arrogance and the impunity shown in which they set up false
defense and instilled shivering fear in the mind of witnesses with
G the evil design of defeating the prosecution case. In fact, as was
recorded by the High Court, the public prosecutor was also not
spared. The factum of abscondance and non-cooperation with
the investigating team and also an maladroit effort to mislead the
investigators were treated as aggravating circumstances. [Para
H 70][930-A-CJ
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
Praveen Kumar v. State of Karnataka (2003) 12 SCC
199; Yakub Abdul Razak Memon v.
State of
Maharashtra (2013) 13 SCC 1: 2013 (15) SCR 1;
Sidhartha Vashisht alias Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1: 2010 (4) SCR 103 - relied
on.
877
A
B
5. The High Court, while dealing with two accused opined
that. they had misused the process of law while in jail and in their
conduct there is no sign of any kind of remorse or regret. Thus,
the imposition of fixed term sentence on the appellants by the
High Court cannot be found fault with. The sentence imposed for
the offence punishable under Section 201/34 IPC shall run C
concurrently with the sentence imposed for other offences by
the High Court. [Paras 74, 74A and 78)[932-D, F; 934-G-H]
Maru Ram v. Union of India and others (1981) 1 SCC
107; Guru Basavaraj ,. State of Karnataka (2013) 7
sec 545 - relied on.
K.M Nanavati v. State of Bombay AIR 1961 SC 112:
1.961 SCR 497; Sarai Chandra Rabha and others v.
Khagendranath Nath and others AIR 1961 SC 334:
1961 SCR 133; Sahib Hussain alias Sahib Jan v. State
of Rajasthan (2013) 9 SCC 778: 2013 (2) SCR 1019;
Gurvail Singh alias Gala v. State of Punjab (2013) 10
SCC 631; Muthuramalingam & Ors. v. State represented
by Insp. of Police 2016 (7) SCALE 129; Union of India
v. V. Sriharan alias Murugan and others (2014) 11 SCC
1; Sli•a111y Shraddananda (2) v. State of Maharashtra
(2008) 13 SCC 767: 2008 (11) SCR 93; Gopal Vinayak
Godse v. State of Maharashtra and others AIR 1961
SC 600: 1961 SCR 440; State of Madhya Pradesh v.
Ratan Singh and others (1976) 3 SCC 470: 1976 (0)
Suppl. SCR 552; Ashok Kumar alias Golu v. Union of
India and others (1991) 3 SCC 498: 1991 (2) SCR
858; Bhagirath v. Delhi Administration (1985) 2 SCC
580: 1985 (3) SCR 743; Bachan Singh v. State of ,f
Punjab (1980) 2 SCC 684; Machhi Singh and others
v. State of Punjab (1983) 3 SCC 470: 1983 (3) SCR
413; Jagmohan Singh v. State of U.P. (1973) 1 SCC
D
E
F
G
H
878
A
B
c
D
E
F
G
H
1961
SUPREME COURT REPORTS
[2016] 8 S.C.R.
20: 1973 (2) SCR 541; Sohan Lal v. Asha Ram and
others (1981) 1 SCC 106; Zahid Hussein and others v.
State of W.B. and another (2001) 3 SCC 750: 2001 (2)
SCR 442; State of Gujarat & Anr. v. Lal Singh@ Manjit
Singh & Ors. AIR 2016 SC 3197:2016 (6) SCALE
105; Kehar Singh and another v. Union of India and
another (1989) 1 SCC 204:1988 (3) Suppl. SCR 1102;
Epuru Sudhakar and another v. Govt. of A.P. and others
(2006) 8 sec 161:2006 (7) Suppl. SCR 81; Shri
Bhagwan v. State of Rajasthan (2001) 6 SCC 296: 2001
(3) SCR 656; Prakash Dhm1,al Khairnar (Patil) l( State
of Maharashtra (2002) 2 SCC 35:2001 (5) Suppl.
SCR 612; Ram Anup Singh and others v. State of Bihar
(2002) 6 SCC 686; Nazir Khan and others vs. State of
Delhi (2003) 8 sec 461: 2003 (2) Suppl. SCR 884;
Haru Ghosh v. State of West Bengal (2009) 15 SCC
551: 2009 (13) SCR 847; Ramraj v. State of
Chhattisgarh (2010) 1 SCC 573: 2009 (16) SCR 367;
Neel Kumar alias Anil Kumar v. State of Haryana
(2012) 5 SCC 766: 2012 (5) SCR 696; Sandeep v.
State of U.P. (2012) 6 SCC 107: 2012 (5) SCR 952;
State of Uttar Pradesh. v. Sanjay Kumar 2012 8 SCC
537: 2012 (7) SCR 359; Fibre Boards Private Limited,
Bangalore v. Commissioner of Income-Tax, Bangalore
Mamleshwar Prasad v. Kanhaiya Lal (1975) 2 SCC 232:
1975 (3) SCR 834; State of U.P. and another v.
Synthetics and Chemicals Ltd. and another (1991) 4
SCC 139; State of Orissa v. MA. Tulloch and Co. (1964)
4 SCR 461; Synthetics and Chemicals Ltd. and others
v. State of U.P. and others (1990) 1 SCC 109: 1989 (1)
Suppl. SCR 623 - referred to.
Case Law Reference
SCR 497
referred to
Para 9(vi)
1961 SCR 133
referred to
Para 9(vi)
(2016) 1 sec 1
followed
Para 9(vi)
2013 (2) SCR 1019
referred to
Para 9(vii)
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
879
(2013) 10 sec 631
referred to
Para 9(vii)
A
1966 SCR 822
held inapplicable
Para 9(vii)
1970 (2) SCR 227
held inapplicable
Para 9(vii)
1988 (1) Snppl. SCR 1
held inapplicable
Para 9(viii)
2016 (7) SCALE 129
referred to
Para 9(ix)
B
(2014) 11 sec 1
referred to
Para 17
2008 (11) SCR 93
referred to
Para 17
<1?81) 1 sec 101
relied on
Para 18
1961 SCR 440
referred to
Para 18
c
1976 (0) Suppl. SCR 552
referred to
Para 18
1991 (2) SCR 858
referred to
Para 18
1985 (3) SCR 743
referred to
Para 18
(1980) 2 sec 684
referred to
D
Para 24
1983 (3) SCR 413
referred to
Para 24
1973 (2) SCR 541
referred to
Para24
(1981) 1 sec 106
referred to
Para 32
E
2001 (2) SCR 442
referred to
Para32
2016 (6) SCALE 105
referred to
Para32
1988 (3) Suppl. SCR 1102
referred to
Para33
2006 (7) Suppl. SCR 81
referred to
Para33
F
2001 (3) SCR 656
referred to
Para42
2001 (5) Suppl. SCR 612
referred to
Para 42
(2002) 6 sec 686
referred to
Para 42
2003 (2) Suppl. SCR 884
referred to
Para42
G
2009 (13) SCR 847
referred to
Para 42
2009 (16) SCR 367
referred to
Para 42
2012 (5) SCR 696
referred to
Para 42
H
880
SUPREME COURT REPORTS
[2016] 8 S.C.R.
A 2012 (5) SCR 952
referred to
Para 42
2012 (7) SCR 359
referred to
Para 44
(1994) 4 sec 353
relied on.
Para47
2015 (8) SCR 906
referred to
Para 51
B
1975 (3) SCR 834
referred to
Para 51
(1991) 4 sec 139
referred to
Para 51, 52
(1964) 4 SCR 461
referred to
Pant 51
1989 (1) Suppl. SCR 623
referred to
Para 52
c 2013 (6) SCR 949
referred to
Para 58
2012 (13) SCR 740
referred to
Para 58
2009 (12) SCR 1093
referred to
Para 58
2013 (3) SCR 90
referred to
Pa1·a 58
D 2011 (1) SCR 72
referred to
Para 58
2006 (3) Suppl. SCR 350
relied on
Para 62
2007 (10) SCR 752
relied on
Para 63
E
2011 (5) SCR 488
relied on
Para 64
2011 (6) SCR 330
relied on
Para 65
(2003) 12 sec 199
relied on
Para 70
2013 (15) SCR 1
relied on
Para 70
F
2010 (4) SCR 103
relied on
Para 71
(2013) 1 sec 545
relied on
Para 70A
CRIMINAL APPLLLATE JURISDICTION: Criminal Appeal
Nos. l531-1533of2015.
G
From the Judgment and Order dated 02.04.2014 of the High Court
of Delhi at New Delhi in Criminal Revision Petition No. 369 of2008.
WITH
Crl.A. Nos. 1528-15300F 2015.
U. R. Lalit, Shekhar Naphade, Atul Nanda, Sr. Advs., Kanhaiya
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
881
Singhal, Ms. Vani Singhal, Mehul Sharma, Prasanna, Siddhanta Mittal,
A
Sachin Agarwal, Chaman Sharma, Surender Dhaka, Ms. Usha Nandini
V., Ad vs. for the Appellant.
Dayan Krishnan, Sr. Adv., Ms. Aparajita Singh, Karan Lahiri,
Manmeet Singh Gulati, Ms. B. Vijayalakshmi Menon, Rajesh Mahajan,
Peeyush Bhatra, Ms. Aakashi Lodha, Ms. Manvi Priya, Chi rag M. Shroff,
B
Advs. for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The appellants in this batch of appeals
stand convicted forthe offences under Sections 302, 364, 20 I read with
Section 34 of the Indian Penal Code (!PC). This Court while hearing the
C
special leave petitions on 17.08.2015 had passed the following order:-
"Delay condoned.
Having heard learned senior counsel for the petitioners at
great length, we are of the view, that the impugned orders
call for no interference whatsoever insofar as the conviction
of the petitioners is concerned. The conviction of the three
petitioners, as recorded by the courts below, is accordingly
upheld.
Issue notice, on the quantum of sentence, returnable after ·
six weeks."
2. On 16.06.2015 leave was granted. Thus, we are only concerned
with the legal defensibility and the justifiability of the imposition of
sentence.
3. The arguments in these appeals commenced on .issues of law.
D
E
F
Mr. U.R. Lalit and Mr. shekhar Naphade. learned senior counsel
appearing for the appellant in Criminal Appeal Nos. 1531-1533of2015
and Mr. Atul Nanda, learned senior counsel app..:aring for the appellant
G
in Criminal Appeal Nos. 1528-1530of2015 questioned the propriety of
the sentence as the 1-ligh Court has imposed a fixed term sentence, i.e.,
25 years for the offence under Section 302 IPC and 5 years for offence
under Section 201 JPC with the 5tipulation that both the sentences would
run consecutively. It is apt to note here that separate sentences have
1-1 .
882
SUPREME COURT REPORTS
[2016] 8 S.C.R.
A
been imposed in respect of other offences but they have been directed
to be concurrent. After advancing the arguments relating to the jurisdiction
of the High Court as well as this Court on imposition of fixed term/
period sentence, more so when the trial court has not imposed death
sentence, the learned counsel argued that the factual score in the instant
B
c
case did not warrant such harsh delineation as a consequence
disproportionate sentences have been imposed.
4. Keeping in view the chronology of advancement of arguments,
we think it apt to deal with the jurisdictional facet. Ifwe negative the
proposition advanced by the learned counsel for the appellants, then
only we shall be required to proceed to deal with the facts as requisite to
be stated for the purpose of adjudicating the justifiability of imposition of
such sentence. If we accede to the first submission, then the second
aspect would not call for any deliberation. At this juncture, it is necessary
to state that the learned trial judge by order dated 30.05.2008 sentenced
0
Vikas Yadav and Vishal Yadav to life imprisonment as well as fine of
one lakh each under Section 302 IPC and, in default of payment of fine,
to undergo simple imprisonment for one year. They were sentenced to
undergo simple imprisonment forten years and fine of Rs. 50,000/-each
fortheir conviction under Section 364/34 IPC, in default to undergo simple
E
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imprisonment for six months and rigorous imprisonment for five years
and fine of Rs. 10,000/- each under Section 201/34 !PC, in default, simple
imprisonment for three months. All sentences were directed to run
concurrently.
Sukhdev Yadav @ Pehalwan who was tried separately
because of his abscondence in SC No. 76 of2008 was convicted for the
offences under Sections 302/364/34 IPC and Section 201 and by order
dated 12.07.2011, he was sentenced to undergo life imprisonment and
fine of Rs. 10,000/- for commission of the offence under Section 302
IPC, in default, to undergo rigorous imprisonment for two years; rigorous
imprisonment for seven years and fine of Rs. 5,000/- for commission of
the offence under Section 364 IPC, in default, to suffer rigorous
imprisonment for six months; rigorous imprisonment for three years and
fine ofRs. 5,000/- for his conviction under Section 201 IPC, in default,
to undergo further rigorous imprisonment for six months. All sentences
were directed to be concurrent.
5. Be it noted, the prosecution,- State ofNCT of Delhi preferred
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an appeal under Section 377 CrPC for enhancement of sentence of
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
883
[DIPAK MISRA, J.]
imprisonment of life to one of death for the offence under Section 302
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IPC. The High Court addressed to number of issues, namely, (a) statutory
provisions and jurisprudence regarding imposition of the death penalty;
(b) death sentence jurisprudence - divergence in views; (c) life
imprisonment- meaning and nature of; ( d) the authority of the judiciary
to regulate the power of the executive to remit the sentence or to put in
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other words jurisdiction of the court to direct minimum term sentence in
excess of imposition of 14 years; ( e) ifthere are convictions for multiple
offences in one case, does the court have the option of directing that the
sentences imposed thereon shall run consecutively and not concurrently;
(f) honour killing-whether penalty of only the death sentence; (g) contours
of the jurisdiction of the High Court to.enhance a sentence imposed by
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the trial court and competency to pass orders under Section 357 of the
CrPC in the appeal by the State or revision by a complainant seeking
enhancement of sentence; (h) sentencing procedure and pre-sentencing
hearing nature of; (i) concerns for the victims - award of compensation
to heal and as a method ofreconciling victim to the offender; (j) State's D
liability to pay compensation; (k) fine and compensation - constituents,
reasonability and adequacy; (I) sentencing principles; (m)jurisdiction of
the appellate court while considering a prayer for enhancement of the
sentence; (n) if not death penalty, what would be an adequate sentence
in the present case; and ( o) what ought to be the fitnes in the present
case.
6. Apart from the said aspects, the High Court also addressed to
certain aspects which are specific to the case at hand to which we will
advert to at a later stage.
7. The High Court, after addressing the aspects which we have
catalogued and some other fact specific issues, imposed the following
sentences:-
"881. In view of the above discussion, we modify and enhance
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the sentence imposed by the judgments dated 30111 May, 2008 upon the G
defendants Vikas Yadav, Vishal Yadav and 12m July, 2011 upon Sukhdev
Yadav and direct that they shall be liable to undergo the following
· sentences :-
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[2016] 8 S.C.R.
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(I)
For
Sentencesa-wardedto
Sentence awarded to
commission
each ofVikas Yadav &
Sukhdev \'adav
B
of offences
Vishal Yadav
uuder
Section
Life imprisonment which
Life imprisonment
302i34 IPC
shall be 25 years of actual
which shall be 20 years
imprisonment wid1out
of actual imprisonment
consideration of remission,
without consideration
c
and fine ofRs. 501akh each of remission, and fine
of Rs.I 0,000!-
Upon default in payment of Upon default in
fine, they shall be liable to
payment of fine, he
undergo rigorous
shall be liable to
imprisonment of3 years.
undergo simple
imprisonment for one
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month.
Section
Rigorous imprisonment for
10 years rigorous
364/34 IPC
l 0 years with a fine ofRs.2 imprisonmentwith fine
lakh each
ofRs.5,00QE
Upon detaultinpajmentof Upon defaultin
.
fine, they shall be liable to
payment oftine, he
undergo rigorous
shall be liable to
imprisonment for 6 months
undergo simple
imprisonment for 15
days
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Section
Rigorous imprisonment for
5 years rigorous
201.34 IPC
5 years and a fine Rs.2 lakh imprisonment with fine
each
ofRs.5,0001Upon default in payment of Upon default in
fine, they shall be liable to
payment of fine, he
undergo rigorous
shall be liable to
imprisonment for 6 months
undergo simple
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imprisonment for 15
days
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VIK.AS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
885
fDIPAK MISRA, J.l
(II) It is directed that the sentences for conviction of the offences. A
under Section 302/34 and Section 364/34 IPC shall run concurrently.
The sentence under Section 201/34 IPC shall run consecutively to·the
other sentences for the discussion and reasons in paras 741to745 above.
(III) The amount of the fines shall be deposited with the trial .
court within a period of six months from today.
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(IV) We further direct that the fine amounts of Rs.50,00,000/-
of each ofVikas Yadav and Vishal Yadav when deposited with the trial
court, are forthwith disbursed in the following manner:
(i)
(ii)
To the Government of Uttar
Pradesh towards investigation,
prosecution and defence of the
cases
with
regard
to
FIR
No.192/2002 P.S. Ghaziaboo.
To the Govermnent of NCT of
Delhi tow.irds prosecution, filing
and
defence
of
litigation,
administration of courts and
witness protection with regard to
FIR
No.192/2002
P.S.
Ghaziabad
(iii) To Nilam Katara towards the
costs incurred by her in pursuing
the matter, filing petitions and
applications as well as defending
all
cases
after
16th! 1 7th
Februazy, 2002 with regard to
FIR No.192/2002 in all courts.
Rs.5,00,000/- from
the deposit of the
fine of each of the
defendants
Rs25,00,000/-
from the deposit of
the fine of each of
the defendants
Rs20,00,000/-
from the deposit of
the fine of each of
the defendants
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(V) Amount of fines deposited by Sukhdev Yadav and other fines
deposited by Vikas Yadav and Vishal Yadav shall be forwarded to the
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Delhi Legal Services Authority to be utilised under the Victims
Compensation Scheme.
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(VI) In case an application for parole or remission is moved by
the defendants before the appropriate government, notice thereof shall
be given to Nilam Katara as well as Ajay Katara by the appropriate
government and they shall also be heard with regard thereto before
passing of orders thereon.
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(VII) So far as Vikas Yadav is concerned, we also issue the
following directions:
(i) The period for the admission in AIIMS from I O•h October, 2011
to 41h November, 2011 (both days included) shall not be counted as a
period for which he has undergone imprisonment. His records and nominal
c rolls shall be accordingly corrected by the jail authorities.
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(ii) Vikas Yadav shall make payments of the following amounts to
the Government ofNCT of Delhi:
(i)
Amounts paid to AIIMS
Rs.50, 750!-
(ii)
Towards security
Rs.l ,20,0121deploymcm duri112 AIIMS
(iii) OPDvisits
Rs.50,000i-
(iv) Taxi fare
Rs.18,5001Total :
Rs.2,39,262/-
(VIII) So far as Vishal Yadav is concerned, we direct as
hereafter :-
(i) The periods of the admissions in the Batra Hospital totalling
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320 days [32 days (from 7•h July, 2008 to 7'h August, 2008); 24 days
(from 14'h August, 2008 to 61h September, 2008), 53 days (241h October,
2008 to 1 sm December, 2008); I 00 days (from 25th February, 2009 to 61h
June, 2009); 71 days (from 7•h October, 2009 to 16'11 December, 2009);
36 days (from 29th September, 20 I 0 to 3n1 November, 20 I 0);
4 days
(from J 4•h October, 2011 to J 7•h October, 2011 )] shall not be counted as
G a period which he has undergone imprisonment. His records and nominal
rolls shall be accordingly corrected by the jail authorities.
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(ii) Vishal Yadav shall make payments of the following amounts
to the Government ofNCT of Delhi:
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
887
fDIPAK MISRA, J.l
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(i)
Provision of secunty dunng
Rs.14,75,184/-
the above seven hospital
admissions post conviction
(ii)
During OPD hospital visits
Rs.50,000i-
(iii) Post conviction visits on taxi
Rs.14, 700/-
fare
B
Total
:
Rs.15,39,884/-
(IX) The amounts directed to be paid by Vishal Yadav and Vikas
Yadav at Sr. Nos.(Vl) and (VII) above shall be deposited within four
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months of the passing of the present order.
(X) In the event of the failure to deposit the amount as directed at
Sr. Nos.(Vl), (VII) and (VIII), the defaulting defendant (Vikas Yadav
and Vishal Yadav) shall be liable to undergo rigorous imprisonment of
one year. It is made clear that these direc.tions are in addition to the
D
substantive sentences imposed upon them."
8. We think it appropriate to deal with the aspect of legal
pennissibility of the imposition of sentence first as the learned senior
counsel appearing for the appellants had argued quite astutely with regard
to the non-acceptability of such fixed term sentences and other facets
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relating to it. After we answer the said issue, if needed, we shall dwell
upon the sustainability and warrantableness of the sentences in the facts
of the case.
9. Learned senior counsel for the appellants have advanced the
following propositions to bolster the first stand:-
F
(i) When the Indian Penal Code provides for only two punishments,
i.e., imprisonment for life or death, the court by judge-made law cannot
introduce a third category of punishment.
(ii) The prescription of third category of punishment is contrary to
Sections 28 and 386 CrPC and Section 302 IPC.
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(iii) Prescription of sentence is within the domain of the legislature
and the court can only impose such sentence what has been provided
for by the legislature and not invent one.
(iv) Wherever the legislature has thought it appropriate, it has
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provided sentences by providing certain years, such as, offences
punishable under Sections 376A, 3760 and 392 IPC; Section 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985; and when it is
· not provided for in the IPC in respect of Section 302 IPC, the court
cannot impose a third category of sentence as that would tantamount to
legislation by the judiciary.
(v) When the court imposes a third category of sentence, there is
either express or implied direction for not granting the remission as
provided under Section 433-A after expiry of 14 years which is legally
not permissible inasmuch as this Court in exercise of power under Article
142 of the Constitution cannot direct a statutory provision to be kept in
abeyance as a mode of sentencing structure.
(vi) The Constitution Bench decisions in K.M. Nanavati v. State
of Bombay' and Sarai Cltandra Rab//(/ mu/ otlters v. K/l(lgem/ranatlt
Nath and others1 have not been considered by the majority in Union of
India v. V. Sriltaran alias Murugm1 and others' and it, therefore,
requires reconsideration.
(vii) When the trial court has imposed the life sentence and the
question of commutation does not arise, as a logical corollary, imposition
of fixed term sentence is impermissible as has been held in Sahib
Hussain alias Saftib Jan v. State of Rajastlta11• and Gurvail Singh
alias Gala v. State of Punjab5• In essence, in the absence ofa death
sentence, a fixed term sentence cannot be imposed. The appellate court,
assuming has the authority, can impose only such sentence which could
have been imposed by the trial court as has been clearly held in Jagat
Bahadur v. State of Madltya Pradesil6 and in S/umkar Kerba Jad/l(lv
and others v. Tiie State of Mallarashtra 7•
(viii) The Court when imposes sentence by saying "fixed term
sentence", it takes away the power of the executive which is
constitutionally not permissible as per the pronouncements in K.M.
Nanavati (supra), Sarai Clumdra Rabfl(I (supra) and A.R. A11tu/ay
v. R.S. Naik mu/ a11otlter8 •
I AIR 1961 SC 112
2 AIR 1961SC334
3 (2016)7SCC I
• (2013) 9 sec 118
'(2013) 10 sec 631
6 AIR 1966 SC 945
7 AIR 1971SC840
• (1988) 2 sec 602
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
889
[DIPAK MISRA, J.]
(ix) There is remotely any warrant to direct the sentence for life
A
and sentence imposed under Section 20 I !PC to run consecutively, and
it is a palpable error which cannot be countenanced, and in fact, it runs
counter to the Constitution Bench decision in Mutltummali11gam &
Ors. v. State represented by Insp. of Police9•
(ix) The High Court has fallen into grave error by imposing 20
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years of sentence on Sukhdev Yadav, whereas Vikas Yadav and Vishal
Yadav had been sentenced for 25 years which demonstrates total nonapplication of mind.
(x) The issue of enhancement of sentence and fixed term was
not referred to the Constitution Bench but the Constitution Bench has c
dealt with the same and, therefore, the decision in V. Srilwrm1 (supra)
suffers from impropriety.
10. Mr. Dayan Krishnan, learned senior counsel appearing for
the State ofNCT Delhi, in his turn, submits that the judgment rendered
by the Constitution Bench in V. Srilwrm1 (supra) is absolutely correct
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and is a binding precedent from all spectrums and does not require
reconsideration. Learned senior counsel further argued that the judgment
rendered by the Constitution Bench does not run counter to the principles
set out in the earlier two judgments in K. Nmwvati (supra) and Slta11kar
Kerba Jadltav (supra) because the said judgments have been rendered
in altogether different contexts and the opinion expressed therein has to
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be understood regard being had to the factual score that arose therein.
According to the learned counsel for the State, the constitutional courts
have power to pass fixed term sentence in the interest of justice.
Defending the imposition of sentence in the case, Mr. Krishnan would
submit that when the State had preferred an appeal for enhancement of F
sentence, i.e., from imprisonment oflife to death sentence, the decision
of the High Court is absolutely flawless. It is argued by him that the
direction for the life sentence and the sentence imposed under Section
20 I IPC to be consecutive and not to run concurrently cannot be found
fault with as the High Court has ascribed adequate reasons for the same
and it is in consonance with the principle stated in Mutlluranutfingam
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(supra) and ifthere is any deviation therein, the same can be rectified by
this Court.
11. Ms. Aparajita Singh, learned counsel appearing for the
'2016 (7) SCALE 129
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infonnant, supported the stand of the State and emphasized that in a
crime of honor killing stringent punishment deserves to be imposed.
12. Presently, we shall proceed to deal with the contentions, and
we make it clear the delineation thereof shall not be in strict seriatim as
the contentions in a way overlap. Section 28 CrPC reads as follows:-
"28. Sentences wliicli Higli Courts and Sessions Judges
may pass.-
( 1) A High Court may pass any sentence authorised by
law.
(2)A Sessions Judge or Additional Sessions Judge may pass
any sentence authorised by law; but any sentence of death
passed by any such Judge shall be subject to confirmation
by the High Court.
(3) An Assistant Sessions Judge may pass any sentence
authorised by law except a sentence of death or of
imprisonment for life or of imprisonment for a term
exceeding ten years."
13. The submission of the learned senior counsel for the appellants
is that the High Court can pass any sentence "authorised by law" and a
Sessions Judge or an Additional Sessions Judge may pass any sentence
authorised by law but for any sentence of death passed by any such
Judge shall be subject to confirmation by the High Court and, therefore,
no court can.impose a sentence ifit is not authorised by law. The fulcrum
of the submission is that the said provision is substantive in nature and it
is not in the realm of adjective law. In this context, our attention has
been drawn to Section 386 CrPC. The said provision reads as follows:-
"386. Power of the Appellate Court.- After perusing
such record and hearing the appellant or his pleader, if he
appears, and the Public Prosecutor, if he appears, and in
case of an appeal under section 377 or section 378, the
accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering,
dismiss the appeal, or may-
( a) in an appeal from an order or acquittal, reverse such
order and direct that further inquiry be made, or that the
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC.
891
fDIPAK MISRA, J.l
accused be re-tried or committed for trial, as the case may
A
be, or find him guilty and pass sentence on him according
to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge
the accused, or order him to be
re-tried by a Court
of competent jurisdiction subordinate to such Appellate
Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or
the extent, or the nature and extent, of the sentence, but
not so as to enhance the Same;
( c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge
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the accused or order him to be re-tried by a Court competent
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to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or
the extent, or the nature and extent, of the sentence, so as
to enhance or reduce the same;
( d) in an appeal from any other order, alter or reverse such
order;
( e) make any amendment or any consequential or incidental
order that may be just or proper; Provided that the sentence
shall not be enhanced unless the accused has had an
opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict
greater punishment for the offence which in its opinion the
accused has committed, than might have been inflicted for
that offence by the Court passing the order or sentence
under appeal."
14. Elaborating on the same, it is urged that an appellate court can
impose a sentence what the trial Judge could have imposed. The appellate
jurisdiction which is classically called 'error jurisdiction' only embraces
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to rectify the errors and thereafter impose the sentence. It may dismiss,
alter or enhance the sentence depending upon the fact situation when an
appeal is preferred, but it does not possess the jurisdiction to impose any
sentence that does not have the sanction of law. In this context, learned
senior counsel have drawn our attention to Section 53 IPC. It is as
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follows:-
"53. Punishments.-The punishments to which offenders
are liable under the provisions of this Code areFirst -
Death;
Secondly.-lmprisonment for life;
Fourthly -Imprisonment, which is of two descriptions,
namely:-
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly-Forfeiture of property;
Sixthly-Fine."
15. According to them, the court cannot travel beyond Section 53
IPC which deals with punishments. Section 302 IPC provides for
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punishment for murder. It is as follows:-
"302. Punishment for murder.-Whoever commits
murder shall be punished with death, or imprisonment for
life, and shall also be liable to fine."
16. Mr. Lalit and Mr.