2024 INSC 215

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1215 OF 2011

NAVAS @ MULANAVAS …Appellant (s)

Versus

STATE OF KERALA ...Respondent(s)

J U D G M E N T

K.V. Viswanathan, J.

1. The present Appeal arises out of the judgment of a

Division Bench of the High Court of Kerala at Ernakulam

in D.S.R. No. 4 of 2007 and Criminal Appeal No. 1620 of

2007 dated 09.02.2010. The Death Sentence Reference

and the Criminal Appeal arose out of the judgment of the

Court of the III Additional Sessions Judge (Adhoc), Fast

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Track Court No. 1, Thrissur in Sessions Case No. 491 of

2006.

2. The trial Court found the appellant (the sole accused)

guilty for the offences punishable under Sections 302 and

449 IPC for having committed the murder of Latha (aged 39

years), Ramachandran (aged 45 years), Chitra (aged 11

years) and Karthiayani Amma (aged 80 years) after

committing house-trespass. After committing the above

said act, the accused attempted to commit suicide for which

he was also found guilty under Section 309 IPC. The trial

Court sentenced the accused to death for the offence

punishable under Section 302 IPC. For the offence under

Section 449 IPC, the accused was sentenced to undergo

rigorous imprisonment for five years and to pay a fine of

Rs.1,000/- and, in default, to undergo simple imprisonment

for six months. The accused was also sentenced to undergo

simple imprisonment for two months and to pay a fine of

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Rs.500/- for the offence under Section 309 IPC, and in

default of the payment of fine to undergo simple

imprisonment for one month.

3. When the matter went for confirmation before the High

Court, the High Court, while confirming the conviction,

modified the sentence. The sentence of death was modified

and reduced to imprisonment for life with a further direction

that the accused shall not be released from prison for a

period of 30 (thirty) years including the period already

undergone with set off under Section 428 Cr.P.C. alone.

Aggrieved, the appellant is before us in the present appeal

by way of special leave.

Brief Facts:

4. The prosecution story, in brief, is that in the household

of the deceased Ramachandran, there were four people

residing. Apart from Ramachandran, there was his wife

Latha, their daughter Chitra and Ramachandran’s mother

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Karthiayani Amma. The appellant, according to the

prosecution, had, at an earlier point in time, illicit intimacy

with Latha so much so that Latha even became pregnant,

later leading to termination of pregnancy. It is the

prosecution case that after Latha tried to distance herself,

the appellant was seriously aggrieved, and they advert to an

occurrence of 03.02.2005 when the appellant is supposed to

have trespassed into the house where Latha lived and even

tried to harm her. They rely on Ext. P-9 to Ext.P-11

complaints.

5. The macabre incident, out of which the present case

arose, happened on the night intervening 03.11.2005 and

04.11.2005. It is alleged that the accused reached the house

of the deceased late at night on 03.11.2005. Having reached

the house, he made a hole in the eastern side wall of the

house and gained access into the house. It is the

prosecution case that, having gained access and being

armed with 2 (two) knives and an iron rod, he caused the

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death of Ramachandran and Chitra with the iron rod in the

upper floor room in the northern side of the house; that he

caused serious injuries to Karthiayani Amma in the northern

room on the ground floor (resulting in her death

subsequently) and caused the death of Latha with multiple

stab injuries in the hall near the stairs on the ground floor.

6. The prosecution case is that PW-1 Thankamani, the

domestic help, who had seen the family hale and hearty the

previous evening i.e., 03.11.2005, had come to sweep the

house on the morning of 04.11.2005 at around 07:00 a.m.

While sweeping the courtyard, she found that, unlike on

normal days when the family would come out of the house

in the morning, no one came out that day. While sweeping,

she found that a hole had been dug on the eastern side wall

of the house and to her horror also found that blood was

dripping from a pipe adjoining the western side wall of the

house. She raised an alarm resulting in the neighbours

converging on the property.

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7. It is PW-2 (Shyama Sundaran), a neighbour, who

called the police after witnessing the commotion outside the

house. PW-30 (KT Kumaran) the ASI rushed to the spot

with his police party and reached at 08:25 AM. He also

found a hole in the wall on the eastern side of the house and

also that telephone cable was cut. He instructed PW-6

(Balan) & PW-23 (Rajan) to break open the door on the

western side of the house first. PW-6 & PW-23 broke open

the outer door but found that the inner door was also locked

and it could not be opened. It was then decided to break

open the door on the front side of the house. PW-4

(Sandeep) removed the tile portion above the porch and

entered the porch. He then broke open the door using a

pestle and entered the poomukham (veranda). PW-4 then

broke the glass ventilator above the main door and inserted

his hand to open the door latch. As they entered, they found

Latha’s dead body in the passage near the stairs. The body

of Ramachandran and Chitra were found dead in the upper

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floor room on the northern side of the house. Karthiyani

Amma was found in the northern room on the ground floor

unconscious. PW-6 & PW-23 took Karthiyani Amma to

hospital. It was PW-32 (Ajaya Kumar), the Investigating

Officer of the case, who reached the spot at 09:15 AM and

saw blood droplets starting from the northern room on the

ground floor to the room on the south. When he opened the

door, he found the accused lying on the floor with a cut

injury on his left wrist.

8. PW-30, ASI registered the suo motu FIR and PW-32,

conducted the investigation. The appellant was sent up for

trial. In all, the prosecution examined 32 witnesses (PWs 1-

32) and proved Exhibits P1 to P45 series. Material Objects

[M.Os.] 1-122 were also marked by the prosecution. The

accused did not examine any defence witnesses; but proved

Exhibits D1-D5. The accused also gave a statement while

being examined under Section 313 Cr.P.C. At the Section

313 stage, he advanced a version to the effect that there was

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a pact between him and Latha to commit suicide; that he

had come to the house of Latha on 03.11.2005 with the

intention that both of them shall commit suicide; that Latha

had kept the door open as usual and he gained entry into the

house through such door; that after he entered the house, he

found Latha and others were all lying dead/injured; that on

account of grief, he had cut his left wrist in an attempt to

commit suicide and that he was found available in the house

in an unconscious state. The appellant was clearly implying

that somebody else had gained access into the house and

caused the death of all victims. It is then that he proceeded

to commit suicide.

9. The case entirely rests on circumstantial evidence.

Both the trial Court and the High Court have closely

marshalled the circumstantial evidence in the case to arrive

at the conclusion that the accused alone is responsible for

the death of the four deceased. Additionally, it also relied

on the fact that the accused having been found present in the

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house had offered no plausible and cogent explanation

about the sequence of events that had transpired inside,

leading to the sole and irresistible conclusion that the

accused has perpetrated the heinous crime.

Contentions:

10. We have heard Mr. Renjith B. Marar, learned counsel

for the appellant, who advanced elaborate arguments,

covering the entire spectrum by making available a chart

setting out the summary of the deposition of the prosecution

witnesses, the relevant exhibits marked and the argument of

the defence in separate columns. He mainly contended that

the case made out by the prosecution falls short of the proof

needed in a case which is based entirely on circumstantial

evidence. Learned counsel contended that with the available

evidence it would be unsafe to sustain the conviction and

pleaded for outright acquittal. The specific contentions of

the learned counsel challenging certain individual

circumstances have been dealt with hereinbelow while

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tabulating the circumstances. Alternatively, learned counsel

pleaded that the sentence of 30 years without remission is

excessive and prayed that the sentence may be appropriately

tailored to meet the ends of justice.

11. Shri Jayanth Muth Raj, learned senior counsel, for the

State vehemently rebutted the arguments of the counsel for

the appellant and contended that the trial Court and the High

Court have correctly arrived at the conclusion of guilt.

Learned senior counsel contended that the case actually

warranted death penalty but the High Court has modified it

to a sentence of imprisonment for 30 years without

remission for the offence under Section 302. According to

the learned senior counsel, the sentence did not deserve any

further modification.

Discussion:

12. We have carefully considered the submissions of the

learned counsel for the respective parties and have perused

the material on record, including the relevant original trial

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Court records. The circumstances that unerringly point to

the guilt of the appellant as it emerges from the deposition

of the witnesses and the duly proved exhibits can be

summarized as under:

(i) There was the incident on 03.02.2005 when the accused

allegedly trespassed into the house and had thrown a

koduval (curved sword) at deceased Latha. This highlights

the friction between the accused and deceased Latha. Ext.

P9 - P11 complaint of 03.02.2005 has been marked by the

prosecution. It also forms an important piece of evidence to

establish motive.

ii) PW-3, Raman, an auto driver, deposed that on the

night of 03.11.2005, the accused engaged his services to go

to Orumanayur. The accused asked him to stop at a place

called Muthenmavu (which is the place where the house of

the deceased was situated) and he paid him Rs.70/-. We

have seen the original deposition and it clearly records that

it was at 10.30 PM on the night of 03.11.2005 that the

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accused engaged the services of PW-3 at Guruvayur auto

stand to reach the area where the house of the deceased was

located. Mr. Renjith B. Marar, learned counsel, has

challenged the evidence of PW-3 on the ground that no test

identification parade was held and the identification was for

the first time at the police station. This submission need not

detain the court as nothing much turns on it. The presence

of the accused even otherwise, at the scene of occurrence

has been spoken to by PW-1, PW-2, PW-4, PW-6, PW-23,

PW-30 and PW-32, as has been discussed hereinbelow.

iii) PW-1 Thankamani has clearly spoken about the fact

that, on 03.11.2005, when she left the house after her work

at 7.30 p.m. all the deceased were hale and hearty. On the

morning of 04.11.2005, it was she who detected the

dripping of the blood from the pipe adjoining the western

wall, and a hole being made in the eastern side wall of the

house.

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iv) The evidence of PW-1, 2, 4, 6, 23, 30 and 32 speaks

about the appellant lying in the southern room of the house

and being taken to the hospital from there. PWs 1,2,4,6,23

& 30 also speak about the hole that has been made on the

eastern wall of the house. The seizure of M.O.

29,30,31,32,33 & 34 items i.e., 2 (two) knives, 2 (two) knife

sheaths, iron rod and bag recovered also contributes as a

link in the chain.

v) On 4.11.2005, M.O. 29 & 30 (Knives found in the

southern room on the ground floor where the accused was

found) were seized and taken into custody under Ext. P-12

(Scene Mahazar). M.O. 33 (Iron rod) was also seized and

taken from the northern room in the upper floor, vide the

same Ext. P-12.

vi) Another important circumstance is the report of the

Finger Print Expert (Ext.P-22). The Finger Print Expert has

opined that the chance finger print on the water bottle found

at the scene of the crime (marked as C-9 by the Expert) was

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identified as the left thumb impression of the appellant in

the slip made available with the Expert for verification

(marked as “S” by the expert). The Expert concluded in P-

22 that since the identical ridge characteristics are present in

their nature and relative possessions, the finger impressions

“C9” and “S” are identical i.e. that they are the impressions

of the same finger of the person. The Expert concluded

that, in his opinion, that the chance print marked as C-9 and

developed by him from the scene of crime on 04.11.2005 is

made by the left thumb of the appellant.

vii) The prosecution case is also that there were writings on

the wall and on certain objects in the southern room of the

ground floor where the accused was found. The writings

indicate that these were parting messages of the accused (as

the High Court labels them) since he had decided to commit

suicide. The writings were in the following words “Do not

enter here”; “Shyaman, you are a O, you should not desire

the ruppam of a woman, money will make people traitors,

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you are O, you should not destroy the local area”; The

mirror had the writing with pen on it reading 'Latha, I love

you' and same was underlined and below that it was written

'Salim, I love you' and 'Yahio I lo” and below that 'Shabna I

lo”; The aforesaid wall had one wall clock with the label

'Samaya Quartz' inside. On it, it was written with marker

pen 'Latha, I love you'; On the wall, below the clock, it was

written “My name is Nawas, reason for my death is Latha,

so myself and Latha decided to die together.....Confirm by

Navaz P.M.”; “Yahayikka knows that now I shall not be

there, wherever, no harm should happen to Yahayikka. I

may be an idiot”; “For Salim to know, even if I am not

there, you shall always be in my eyes”. Near to that it was

written “night =12 O’clock, I am at the house of Latha” in

two lines. Below that it was written “6 to 7= Finishing”; “I

have no role in the looting of 6 lakhs. I was present in the

said vehicle. This is true” and near to that it was written “for

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police to know where I was for all these days, no child

knows”.

Specimen of these writings was taken and referred to

the handwriting expert. The Handwriting Expert produced

P-42 report. PW-32, the Investigating Officer spoke about

the seizure of a mirror, a samaya quartz clock and the

November-December, 2005 page of Guruvayur Cooperative

Urban Bank Calendar. All these items had writings on them

at the scene of the crime. Twenty black and white

photographs of the handwritings were taken. These were

termed ‘question’ writings and marked by the Handwriting

Expert in the report for his reference as Q1, Q2, Q3, Q4,

Q5, Q5A, Q6, Q6A to Q6P. The Expert was also furnished

with the ‘standard’ writings by Appellant marked by the

Expert for his reference as S1 to S49. In Ext. P-42, the

Handwriting Expert concludes that, on comparison, the

‘question’ and ‘standard’ writings are by the same person.

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He concluded that they agree in general writing

characteristics such as skill, speed, spacing, relative size and

proportionate spelling errors. The Expert opined that

similarities found between the question and standard

writings are significant and numerous and there did not

exist any material differences. Only with regard to the

signature stamp in Q6(q), the expert concluded that it was

not possible to arrive at any definite conclusion regarding

the authorship for want of sufficient data on that score.

With regard to all others, it was concluded that the person

who wrote the blue enclosed writings stamped and marked

as ‘standard’ writings also wrote the red enclosed ‘question’

writings. The High Court has found that this aspect of

handwriting was not even seriously challenged by the

accused. Mr. Renjith B. Marar, learned counsel, contended

that the handwriting expert had not been examined. In

support thereof, he relies on the judgment of this Court in

Padum Kumar v. State of Uttar Pradesh, (2020) 3 SCC 35.

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The submission flies in the face of Section 293 of the Code

of Criminal Procedure. Exhibit P-42 Report is prepared by

Dr. K.P. Jayakumar, Joint Director (Research), Forensic

Science Laboratory, Thiruvananthapuram. The report is

duly marked and exhibited and proved as Exhibit P-42. The

Joint Director who occupies a position above the Deputy

Director and Assistant Director, is encompassed in the

phrase “Director” used in Section 293(4)(e). This position is

expressly settled by the judgment of this Court in Ammini

& Others v. State of Kerala, (1998) 2 SCC 301. The

relevant para of which is extracted hereinbelow:

“11. …..The trial court was also wrong in holding that the

report given by the Forensic Science Laboratory with

respect to the contents of MO 44 was not admissible in

evidence as it was signed by its Joint Director and not by

the Director. On a true construction of Section 293(4)

CrPC it has to be held that Joint Director is

comprehended by the expression “Director”. The

amendment made in clause (e) of Section 293(4) now

indicates that clearly. If the Joint Director was not

comprehended within the expression Director then the

legislature would have certainly named him while

amending the clause and providing that Section 293

applies to the Deputy Director or Assistant Director of a

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Central Forensic Science Laboratory or a State Forensic

Science Laboratory. A Joint Director is a higher officer

than a Deputy Director or an Assistant Director and,

therefore, it would be unreasonable to hold that a

report signed by Joint Director is not admissible in

evidence though a report signed by the Deputy

Director or Assistant Director is now admissible. In

our opinion the High Court was right in holding that the

report made by the Joint Director was admissible in

evidence and that it deserved to be relied upon.”

(Emphasis Supplied)

Hence, the report Ex. P-42 is admissible even without

the examination of Dr. K. P. Jayakumar. (See also

Bhupinder Singh v. State of Punjab, (1988) 3 SCC 513 &

State of H.P. v. Mast Ram, (2004) 8 SCC 660)

viii) The evidence of the doctors PWs-10 & 19, who

conducted the post-mortem of Latha & Chitra respectively,

fixed the timing of death between 6-18 hours prior to 6.25

PM on 04.11.2005. Evidence of PW-25, Doctor who

conducted post-mortem of Ramachandran stated that the

death occurred 12-18 hours prior to 6:25PM. This

synchronizes with the time that the accused made entry into

the house.

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ix) The hair strands found on the body of Chitra were

found to be similar and identical to the hair of the accused.

In Ext.P41(b), which is the report of Dr. R. Sreekumar,

Assistant Director (Biology) in the forensic laboratory, it is

opined that the hairs in Item 45 (hairs from the belly of

Chitra) are human scalp hairs which are similar to the

sample scalp hairs in Item 58 (a tuft of black hairs) which is

the combed hair and cut hair of the appellant. Challenging

the circumstances, Mr. Renjith B. Marar, learned counsel,

contends that PW-27 Annamma John does not speak about

the hair being seized and that there was no seizure memo

spoken to in her 161 statement. This submission has no

merit since Exhibit P-26 is the seizure mahazar of the

objects collected by PW-27 on 04.11.2005, the day the

sordid incident was unravelled. In the Inquest Report also

PW-14 mentions about the collection of hair from the body

of the deceased Chitra by PW-27.

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x) It is also important to note that the 2 (two) strands of hair

found on one of the knives, was found to be Latha’s as per

FSL Report (Ex. P. 41(b)).

xi) The testimonies of the Doctors PWs, 10, 19, 25 and

26, clearly bring out that the injuries sustained by the

deceased could be caused by means of M.O. 29, 30 and 33.

This is an additional circumstance.

xii) Ext.P41(c), which is the report of the Scientific

Assistant (Chemistry), FSL, Thiruvananthapuram, clearly

establishes that the black coloured ink in Item 66 (the

marker pen with trade brand label as Kolor Pik permanent

XL marker) and 67 (1 black coloured plastic cap) is similar

to the ink used in the black coloured writings in Item 63

(wooden frame) item 64 (wall clock) with trade label samay

and item 65 (calendar of Guruvayur Cooperative Urban

Bank). Item numbers referred to here are the ones given for

reference by the Scientific Assistant in her report. The

Marker pen (part of M.O. 95) was recovered from the

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southern room where the Appellant was found, and rightly

an inference has been drawn that the writings on M.O. 43

(Wall Clock) M.O. 90 (Mirror) and M.O. 94 (2005

Calendar) are the writings of the accused by using M.O 95

(marker pen)

xiii) At the site where the hole was drilled, soil/powder was

available. It is found in the forensic report that the

soil/powder on M.O. 34 bag (found in the room where the

accused was found) and seized as per Ext.P-12 scene

mahazar, was apparently similar to the soil/powder seized

near the hole. Equally so, in the M.O. 71 shirt belonging to

the accused, apparently similar soil/powder was found.

These are established by the FSL report (Exh. 41(a)).

Further, the nail clippings of the accused taken by PW-31

dated 14.11.2005 revealed apparently similar soil/powder to

the soil/powder found at the site of the hole as per FSL

report (Exh. 41(a)). This is a circumstance relied upon by

the prosecution to establish that the accused gained access

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through the hole that he dug. The argument of the accused

that the nail clippings were taken on 14.11.2005 and no

importance could be attached has rightly been rejected by

the High Court saying that it is not even the case of the

accused that the soil/powder detected from the hole at the

scene of occurrence was planted on his nail. Mr. Renjith B.

Marar, learned counsel for the appellant contended that

Exhibit P-41(a) report was not put in the Section 313

questioning in the context of the soil particles on the wall

tallying with the soil particles in the nail clippings and on

the shirt and the bag found in the room where the accused

was present. We have called for the original record and

examined the Section 313 statement and had the Malayalam

version read over to us. We have also seen the translated

version of Section 313. Exhibit P-41(a) was put in question

no. 52 but it was in the context of item 68 cable and as to

how it could be cut with the knives (item 22 and 23). To

that extent, Mr. Renjith B. Marar is right that the report was

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not put in this context. The report was put to the accused

albeit in the context of the cable and knives. However,

viewed in the conspectus of the other circumstances even if

this circumstance is eschewed, it will not make any

difference to the ultimate conclusion. The further argument

that there was no seizure memo for the nail clippings is

clearly incorrect. PW-31 Dr. Hitesh Shankar has clearly

deposed that he had collected the nail clippings and hair

samples and the blood of the accused-appellant and after

sealing and labeling them handed it over to the police

constable-4628. Exhibit P-45(i) marked by PW-32 Ajay

Kumar, Investigating Officer as part of the property list,

mentions about the collection of nail clippings, hair sample

and sodium fluoride tube. Hence, the contention that the

chain of custody is not established cannot be countenanced.

There is no reason to disbelieve PW-31 Dr. Hitesh Shankar

and the documents in support of the same.

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xiv) The evidence of the prosecution witnesses and even

the version of the accused establishes his presence at the

scene of occurrence. His explanation that deceased Latha

would always leave the door open for him to enter and that

when he entered, he found them already dead and lying on

the floor wounded has been found to be false. If the

appellant’s own case is that he entered the house that night,

no cogent explanation has been given as to who opened the

door. However, we have not gone by his version. His

presence at the scene of crime is established by the evidence

of PW-1, PW-2, PW-4, PW-6, PW-23, PW-30 and PW-32.

xv) The appellant was the only other person inside the

house, with the other three being dead and one Karthiayani

Amma, who was injured and unconscious and who later

died in that state itself. There is no cogent and plausible

explanation forthcoming from the accused as to what

transpired at the scene of occurrence on the night

intervening 03.11.2005 and 04.11.2005. This coupled with

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the fact that his relationship with the deceased Latha was

strained clearly point to his guilt. Section 106 of the Indian

Evidence Act, 1872 states that when any fact is especially

within the knowledge of any person, the burden of proving

that fact is upon him. We are conscious of the warning

administered by Justice Vivian Bose, rightly, in Shambhu

Nath Mehra vs. The State of Ajmer, 1956 SCR 199 to the

effect that Section 106 is not intended to relieve the

prosecution of its duty. However, Shambhu Nath Mehra

(supra) itself recognizes that in exceptional cases where it

could be impossible or at any rate disproportionately

difficult for the prosecution to establish the facts which are

especially within the knowledge of the accused, the burden

will be on the accused since he could prove as to what

transpired in such scenario, without difficulty or

inconvenience. In this case, when an offence like multiple

murders is committed inside a house in secrecy, the initial

burden has to be discharged by the prosecution. Once the

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prosecution successfully discharged the burden cast upon it,

the burden did shift upon the appellant being the only other

person inside the four corners of the house to offer a cogent

and plausible explanation as to how the offences came to be

committed. The appellant has miserably failed on that score.

This can be considered as a very important circumstance,

constituting a vital link in the chain.

13. Though the trial Court and the High Court have

adverted to few other circumstances, we are satisfied that

the circumstances set out hereinabove are by themselves

consistent with the sole hypothesis that the accused and the

accused alone is the perpetrator of these murders which

were most foul.

14. It is also to be noted that the law on the appreciation

of circumstantial evidence is well settled and it will be an

idle parade of familiar learning to deal with all the cases.

We do no more than set out the holding in Sharad

Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC

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116, which dealt with the panchsheel or the five principles

essential to be kept in mind while convicting an accused in

a case based on circumstantial evidence:

“153. A close analysis of this decision would show that

the following conditions must be fulfilled before a case

against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of

guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may

be” established. There is not only a grammatical but a

legal distinction between “may be proved” and “must be

or should be proved” as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC

793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the

observations were made: [SCC para 19, p. 807: SCC (Cri)

p. 1047]

“Certainly, it is a primary principle that the accused

must be and not merely may be guilty before a court can

convict and the mental distance between ‘may be’ and

‘must be’ is long and divides vague conjectures from sure

conclusions.”

(2) the facts so established should be consistent only

with the hypothesis of the guilt of the accused, that is to

say, they should not be explainable on any other

hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature

and tendency,

(4) they should exclude every possible hypothesis

except the one to be proved, and

(5) there must be a chain of evidence so complete as

not to leave any reasonable ground for the conclusion

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consistent with the innocence of the accused and must

show that in all human probability the act must have been

done by the accused.

154. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based on

circumstantial evidence.”

15. We are convinced that the circumstances presented in

evidence in this case more than meets the ingredients that

are required to be established. We find no reason to

interfere with the concurrent conviction recorded by the trial

Court and the High Court against the appellant for the

offences under Section 302 (murder), 449 (house-trespass)

and 309 (attempt to commit suicide) and we maintain the

conviction.

Discussion on Sentence:

16. Coming to the sentencing, while the trial Court

imposed the sentence of death, the High Court has modified

it to that of imprisonment for 30 years with no remission.

Mr. Renjith B. Marar, learned counsel, made an

impassioned plea as part of his alternative submission that

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imprisonment for 30 years without remission is excessive

and disproportionate. Mr. Jayanth Muth Raj, learned senior

counsel, left no stone unturned in contending that the

appellant has got away lightly and that he is fortunate to

have escaped the gallows.

17. The question before us is what should be the

appropriate sentence and whether the High Court was

justified in adopting the Swamy Shraddananda v. State of

Karnataka, (2008) 13 SCC 767 line of cases and even it

was justified whether the fixing of the quantum at 30 years

without remission was the appropriate sentence, in the facts

and circumstances of the case?

18. The trial court imposed the sentence of death as far as

the offence punishable under Section 302 IPC was

concerned. The trial court recorded that the appellant had

committed the murder of four persons; that the appellant

was blood-thirsty; that he had illicit love affair with

deceased Latha, the wife of deceased Ramachandran; that

31

she even became pregnant because of him and then fell out

with the appellant; that there was an attempt to cause

bodily injury earlier to Latha by throwing a koduval

(curved sword) on 03.02.2005; that the nature of the

injuries inflicted upon the deceased persons indicate that

the murders were committed in an extremely brutal and

dastardly manner; that they were premeditated and cold

blooded murders; that the entire family was eliminated

including an innocent child aged eleven years and a hapless

80 years old lady and that the collective conscience of the

community was shocked. The trial court also noted that the

accused attempted to commit suicide by cutting the vein in

his left forearm but however discarded that circumstance

and passed a sentence of death.

19. The High Court first recorded that there was no

question of interfering with the sentence under Sections

449 and 309 IPC and the question was only whether the

sentence of death ought to be confirmed or not. Thereafter,

32

the High Court delved into the balance sheet of aggravating

and mitigating circumstances. The High Court, while

recording the argument of the prosecution, noticed that

there was prior planning; that four lives were snuffed out

and the entire family was wiped out including a child and

an aged woman; that the deceased were unarmed and

defenceless and no provocation or resistance was offered

by them; that the offence was committed after

mischievously planning the operation and after gaining

access to the closed house in the night by making a hole on

the wall; that the incident reflected a dare devil attitude;

that the nature of weapons used by the accused, namely,

the knife and the iron bar is also taken as an aggravating

circumstance; that the nature and number of injuries

inflicted on deceased Latha (43 of which 38 were stab

injuries) was also an aggravating circumstance and that

there were prior instances of involvement by the accused in

attempting to assault Latha.

33

20. Dealing with the mitigating circumstance, the High

Court noticed the contention of the defence, to the effect

that there was no semblance of any element of gain, profit

or advantage for the accused; that rightly or wrongly the

accused was labouring under an impression of deprivation

in love; that the accused was in an extremely agitated and

excited state of mind; that there was indication to show

that at some point of time deceased Latha had herself

suggested commission of suicide together; that the

accused had no motive whatsoever against

Ramachandran, Chitra and Karthiayani Amma; that he

had great affection for Chitra and referred to

Ramachandran in endearing terms; that he had not used

any weapon against Karthiayani Amma; that he did not

make any attempt to flee from justice and in fact

attempted to commit suicide; that he was a young man of

twenty eight years; that he was still young and not lost to

34

civilization and humanity and the final contention of the

defence that he was not a menace to the society.

21. Thereafter, the High Court dealt with the precedents

laid down by this Court in Bachan Singh v. State of

Punjab (1980) 2 SCC 684, Machhi Singh v. State of

Punjab (1983) 3 SCC 470 to examine whether the litmus

test, namely, that the alternative option being

unquestionably foreclosed was fulfilled or not. Thereafter,

the High Court noticed the judgment of this Court in

Swamy Shraddananda (supra) and the holding thereon

that to avoid a sentence of death, it is possible for the

courts to device a graver form of sentence of

imprisonment for life beyond fourteen years which would

ensure that the society is insulated from the criminal for

such period as the court may specify, including if the facts

warranted, the entire rest of his life.

35

22. Thereafter applying Swamy Shraddananda (supra),

the High Court observed as follows:

"54. A question still remains whether the instant case is

one in which the graver alternatives of a life sentence are

also unquestionably foreclosed. We have rendered our

anxious consideration to all that all the relevant inputs.

We are unable to agree that all the options now available

can be said to be unquestionably foreclosed in the given

circumstances. In every case of death sentence, the court

must consider the purpose of the sentence. The theory of

reformation will have no place whatsoever in a case of

imposition of death sentence. In a case like the instant

one, the consideration of compensation/restoration cannot

also have any place, as all the members of the family

have been liquidated by the conduct of the accused. The

purpose of a death sentence - of eliminating the menace

to the society in the form of a hardened criminal and to

save society from the activities of such criminal may not

also have much role, given the alternative option of a life

sentence which will ensure that the accused does not

come into contact with the society thereafter.

59. Let it not be assumed that this court does not perceive

the instant one to be a serious and dastardly crime. We, to

say the least, are convinced that the offence committed

calls for societal abhorrence and disapproval. But, the

totality of circumstances instill in us the satisfaction that

this is not a case where the range of further options

available to the court after Swamy Shraddananda

(supra) are unquestionably foreclosed. Placing fetter on

the powers of the Executive under Section 432 and 433

Cr.P.C. for a prescribed period (and with due caution

administered that the powers under Article 72 and Article

36

161 should not be lightly invoked to get over the

prescription of such period fixed by this Court) a sentence

of imprisonment for life which shall ensure that the

offender does not get exposed to society for a period of

30 years can be imposed. We are not prescribing the

'entire rest of the life' as the period, as fixed by their

Lordships in Swamy Shraddananda (supra), considering

the totality of circumstances and because of the optimistic

faith in the infinite capacity of the human soul to repent

and reform."

Holding so, the High Court modified the sentence of death

to that of imprisonment for life with the further direction

that the accused shall not be released from prison for a

period of 30 (thirty) years including the period already

undergone with set off under Section 428 Cr.P.C. alone.

23. The State is not in appeal, having accepted the verdict

of the High Court. It is only the appellant who is in appeal.

It is his submission that the imposition of 30 (thirty) years

sentence without remission is excessive and the counsel

urges that a suitable lesser sentence be imposed under the

Swamy Shraddananda principle. This is the alternative

submission advanced.

37

24. Swamy Shraddananda (supra), since affirmed

subsequently in Union of India v. V. Sriharan alias

Murugan and Others, (2016) 7 SCC 1, resolved a judge’s

dilemma. Often it happens that a case that falls short of the

rarest of the rare category may also be one where a mere

sentence of 14 years (the normal benchmark for life

imprisonment) may be grossly disproportionate and

inadequate. The Court may find that while death penalty

may not be warranted keeping in mind the overall

circumstances, a proportionate penalty would be to fix the

period between 14 years and for the imprisonment till rest

of the life without remission. Addressing this issue

felicitously in Swamy Shraddananda (supra) Justice Aftab

Alam speaking for the court, held as follows:

“92. The matter may be looked at from a slightly different

angle. The issue of sentencing has two aspects. A

sentence may be excessive and unduly harsh or it may be

highly disproportionately inadequate. When an appellant

comes to this Court carrying a death sentence awarded by

the trial court and confirmed by the High Court, this

38

Court may find, as in the present appeal, that the case just

falls short of the rarest of the rare category and may feel

somewhat reluctant in endorsing the death sentence. But

at the same time, having regard to the nature of the crime,

the Court may strongly feel that a sentence of life

imprisonment subject to remission normally works out to

a term of 14 years would be grossly disproportionate and

inadequate. What then should the Court do? If the Court's

option is limited only to two punishments, one a sentence

of imprisonment, for all intents and purposes, of not more

than 14 years and the other death, the Court may feel

tempted and find itself nudged into endorsing the death

penalty. Such a course would indeed be disastrous. A far

more just, reasonable and proper course would be to

expand the options and to take over what, as a matter of

fact, lawfully belongs to the Court i.e. the vast hiatus

between 14 years' imprisonment and death. It needs to be

emphasised that the Court would take recourse to the

expanded option primarily because in the facts of the

case, the sentence of 14 years' imprisonment would

amount to no punishment at all.”

25. In V. Sriharan (supra), a Constitution Bench of this

Court affirmed the principle laid down in Swamy

Shraddananda (supra). It first affirmed the principle that

imprisonment for life meant imprisonment for rest of the

life, subject however, to the right to claim remission, as

provided in the Constitution and the statutes. It was further

held that the judgment in Swamy Shraddananda (supra)

39

did not violate any statutory prescription. The Court went

on to observe that all that Swamy Shraddananda (supra)

sought to declare was that within the prescribed limit of the

punishment of life imprisonment, having regard to the

nature of offence committed by imposing life

imprisonment for a specified period would be proportionate

to the crime as well as the interest of the victim. Thereafter,

in the same judgment Ibrahim Kalifulla, J., in a passage

which repays study held as under:

“98. While that be so, it cannot also be lost sight of that it

will be next to impossible for even the lawmakers to think

of or prescribe in exactitude all kinds of such criminal

conduct to fit into any appropriate pigeonhole for

structured punishments to run in between the minimum

and maximum period of imprisonment. Therefore, the

lawmakers thought it fit to prescribe the minimum and

the maximum sentence to be imposed for such diabolic

nature of crimes and leave it for the adjudication

authorities, namely, the Institution of Judiciary which is

fully and appropriately equipped with the necessary

knowledge of law, experience, talent and infrastructure to

study the detailed parts of each such case based on the

legally acceptable material evidence, apply the legal

principles and the law on the subject, apart from the

guidance it gets from the jurists and judicial

40

pronouncements revealed earlier, to determine from the

nature of such grave offences found proved and

depending upon the facts noted, what kind of punishment

within the prescribed limits under the relevant provision

would appropriately fit in. In other words, while the

maximum extent of punishment of either death or life

imprisonment is provided for under the relevant

provisions noted above, it will be for the courts to decide

if in its conclusion, the imposition of death may not be

warranted, what should be the number of years of

imprisonment that would be judiciously and judicially

more appropriate to keep the person under

incarceration, by taking into account, apart from the

crime itself, from the angle of the commission of such

crime or crimes, the interest of the society at large or

all other relevant factors which cannot be put in any

straitjacket formulae.”

(Emphasis Supplied)

It will be clear from the paragraph above that the question

of fixing the number of years within the maximum, in the

case of life imprisonment, was to be left to the courts. It

was mandated that the courts would with its experience,

knowledge of law, the talent and infrastructure after

studying the detailed parts of each case, with the guidance

from the jurists and judicial pronouncements revealed

earlier would decide judiciously about the period of

41

incarceration which the case warranted. It was also

indicated that for this, apart from the crime itself; the angle

of the commission of such crime or crimes; the interest of

society at large and all other relevant facts which cannot be

put in any straitjacket formulae would be taken into

account.

26. Once the court decides that the death penalty is not to

be imposed and also that the convict cannot be released on

the expiry of 14 years, the guidelines set out in Swamy

Shraddananda (supra), V. Sriharan (supra) and the line

of cases which have applied these judgments will have to

be considered and principles, if any, set out therein have to

be applied.

27. How much is too much and how much is too little?

This is the difficult area we have tried to address here. As

rightly observed, there can be no straitjacket formulae.

Pegging the point up to which remission powers cannot be

42

invoked is an exercise that has to be carefully undertaken

and the discretion should be exercised on reasonable

grounds. The spectrum is very large. The principle in

Swamy Shraddananda (supra) as affirmed in V. Sriharan

(supra) was evolved as the normally accepted norm of 14

years was found to be grossly disproportionate on the lower

side. At the same time, since it is a matter concerning the

liberty of the individual, courts should also guard against

any disproportion in the imposition, on the higher side too.

A delicate balance has to be struck. While undue leniency,

which will affect the public confidence and the efficacy of

the legal system, should not be shown, at the same time,

since a good part of the convict’s life with freedom is being

sliced away (except in cases where the Court decides to

impose imprisonment till rest of the full life), in view of his

incarceration, care should be taken that the period fixed is

also not harsh and excessive. While by the very nature of

the task mathematical exactitude is an impossibility, that

43

will not deter the Court from imposing a period of sentence

which will constitute “a just dessert” for the convict.

Precedents can be good pointers as advised in V. Sriharan

(supra). A survey of the previously decided cases applying

the Swamy Shraddananda (supra) principle would be a

safe and legitimate guide. It is in pursuance of that mandate

that we have made a survey of some of the cases to see

how Swamy Shraddananda (supra) had come to be

applied in the course of the last decade and a half.

28. In Swamy Shraddananda (supra) itself, on facts, after

finding that it was a murder of the wife in a systematic

preplanned manner coupled with the fact that it was a

murder for gain, this Court directed that the appellant

therein be not released from prison for the rest of his life.

29. In Haru Ghosh v. State of West Bengal, (2009) 15

SCC 551 which involved the murder of two individuals and

the attempt to murder the third by the accused who was out

44

on bail in another case, after conviction, this Court while

commuting the death penalty after taking into account the

aggravating and mitigating circumstances imposed a

sentence of 35 (thirty five) years of actual jail sentence

without remission. It was noted that commission of the

offence was not premeditated since he did not come armed

and that the accused was the only bread earner for his

family which included two minor children.

30. In Mulla & Another v. State of U.P., (2010) 3 SCC

508 the accused/appellant, along with other co-accused,

was found guilty of murdering five persons, including one

woman. This Court confirmed the conviction but modified

the sentence. This Court stressed on the fact that socio-

economic factors also constitute a mitigating factor and

must be taken into consideration as in the case the

appellants belonged to extremely poor background which

prompted them to commit the act. The sentence was

45

reduced from death to life imprisonment for full life,

subject to any remission by the Government for good

reasons.

31. In Ramraj v. State of Chhattisgarh, (2010) 1 SCC 573

which involved the murder of his wife, this Court imposed

a sentence of 20 (twenty) years including remissions.

32. In Ramnaresh and Others vs. State of Chhattisgarh.,

(2012) 4 SCC 257 the convicts were sentenced to death by

the lower court, with the High Court confirming the

sentence, on finding them guilty of raping and murdering

an innocent woman while she was alone in her house. This

Court confirmed the conviction but found the case did not

fall under the ‘rarest of rare’ category for awarding death

sentence. Ultimately, after setting out the well-established

principles and on consideration of the aggravating and

mitigating circumstances, this Court, while commuting the

46

sentence from death imposed a sentence of life

imprisonment of 21 (twenty one) years.

33. Neel Kumar v. State of Haryana, (2012) 5 SCC 766

was a case where the accused committed murder of his

own four-year old daughter. This Court, after considering

the nature of offence, age, relationship and gravity of

injuries caused, awarded the accused 30 (thirty) years in

jail without remissions.

34. In Sandeep v. State of Uttar Pradesh, (2012) 6 SCC

107 which involved the murder of paramour and the

unborn child (foetus), this Court, while considering the

facts and circumstances awarded a period of 30 (thirty)

years in jail without remission.

35. In Shankar Kisanrao Khade vs State of Maharashtra,

(2013) 5 SCC 546, the accused was convicted for raping

and murdering a minor girl aged eleven years and was

sentenced to death for conviction under S. 302 of IPC, life

47

imprisonment under S. 376, seven years RI under S. 366-A

and five years RI under S. 363 r/w S. 34. This Court

confirmed the conviction but modified the death sentence

to life imprisonment for natural life and all the sentences to

run consecutively.

36. Sahib Hussain v. State of Rajasthan, (2013) 9 SCC

778, concerned killing of five persons including three

children. This Court, taking note of the fact that the guilt

was established by way of circumstantial evidence and the

fact that the High Court had already imposed a sentence of

20 (twenty) years without remission, did not interfere with

the judgment of the High Court.

37. In Gurvail Singh & Anr. v. State of Punjab, (2013) 2

SCC 713 which involved the murder of four persons, this

Court weighed the mitigating factors i.e., age of the

accused and the probability of reformation and

rehabilitation, and aggravating factors i.e., the number of

48

deceased, the nature of injuries and the totality of facts and

circumstances directed that the imprisonment would be for

a period of 30 (thirty) years without remission.

38. In Alber Oraon v. State of Jharkhand, (2014) 12 SCC

306 which involved the murder by the accused of his live-

in partner and the two children of the partner, this Court,

even though it found the murder to be brutal, grotesque,

diabolical and revolting, applied the proportionality

principle and imposed a sentence of 30 (thirty) years over

and above the period already undergone. It was ordered

that there would be no remission for a period of 30 (thirty)

years.

39. In Rajkumar v. State of Madhya Pradesh, (2014) 5

SCC 353, which involved the rape and murder of helpless

and defenceless minor girl, this Court commuting the death

penalty imposed a sentence of 35 (thirty five) years in jail

without remission.

49

40. In Selvam v. State, (2014) 12 SCC 274, the accused

was found guilty of rape and murder of nine year old girl.

This Court imposed a sentence of imprisonment for a

period of 30 (thirty) years without any remission,

considering the diabolic manner in which the offence has

been committed against the child.

41. In Birju v. State of Madhya Pradesh, (2014) 3 SCC

421, the accused was involved in the murder of a one-year-

old child. This Court noted that various criminal cases were

pending against the accused but stated that it cannot be

used as an aggravating factor as the accused wasn’t

convicted in those cases. While commuting the death

penalty, this Court imposed a sentence of rigorous

imprisonment for a period of 20 (twenty) years over and

above the period undergone without remission, since he

would be a menace to the society if given any lenient

sentence.

50

42. In Tattu Lodhi v. State of Madhya Pradesh, (2016) 9

SCC 675 this Court was dealing with an appeal preferred

by the accused who was sentenced to death after he was

found guilty of committing murder of a minor girl and for

kidnapping and attempt to rape after destruction of

evidence. This Court reduced the sentence from death to

life imprisonment for a minimum 25 (twenty five) years as

it noted that there exists a possibility of the accused

committing similar offence if freed after fourteen years.

This Court also opined that the special category sentence

developed in Swamy Shradhanand (supra) serves a

laudable purpose which takes care of genuine concerns of

the society and helps the accused get rid of death penalty.

43. Vijay Kumar v. State of Jammu & Kashmir, (2019)

12 SCC 791 was a case where the accused was found guilty

of murder of three minor children of the sister-in-law of the

accused. This Court, taking note of the fact that the accused

51

was not a previous convict or a professional killer and the

motive for which the offence was committed, namely, the

grievance that the sister-in-law’s family was not doing

enough to solve the matrimonial problem of the accused,

imposed a sentence of life imprisonment till natural death

of the accused without remission.

44. In Parsuram v. State of Madhya Pradesh, (2019) 8

SCC 382, the accused had raped and murdered his own

student. The Trial Court sentenced the accused to death

which was affirmed by the High Court. This Court took

into consideration the mitigating factors i.e., that the

accused was twenty two years old when he committed the

act and the fact that there exists a possibility of reformation

and the aggravating factors i.e., that the accused abused the

trust of the family of the victim. After complete

consideration and reference to some precedents, this Court

imposed a sentence of thirty years without any remission.

52

45. In Nand Kishore v. State of Madhya Pradesh, (2019)

16 SCC 278, the accused was sentenced to death by the

Trial Court and the High Court for committing rape and

murder of minor girl aged about eight years old. This Court

noted the mitigating factors i.e., age of the accused at the

time of committing the act [50 years] and possibility of

reformation and imposed a sentence of imprisonment for a

period of 25 (twenty five) years without remission.

46. Swapan Kumar Jha v. State of Jharkhand and

Another, (2019) 13 SCC 579 was a case relating to

abduction of deceased for ransom and thereafter murder by

the accused. This Court took into consideration the

mitigating factors i.e., young age of the accused, possibility

of reformation and the convict not being a menace to

society. On the other side of the weighing scale, was the

fact that the accused had betrayed the trust of the deceased

who was his first cousin and the fact that the act was

53

premeditated. This Court modified the death sentence to

one of imprisonment for a period of 25 (twenty five) years

with remissions.

47. Raju Jagdish Paswan v. State of

Maharashtra, (2019) 16 SCC 380 was a case where the

accused was convicted for the rape and murder of minor

girl aged about nine years and sentenced to death by the

trial court which was affirmed by the High Court. This

Court noted the mitigating factors i.e., murder was not pre-

planned, young age of the accused, no evidence to show

that the accused is a continuing threat to society and the

aggravating factors i.e., the nature of the crime and the

interest of society, if petitioner is let out after fourteen

years, imposed a sentence of life imprisonment for 30

(thirty years) without remission.

48. In X v. State of Maharashtra, (2019) 7 SCC 1 the

accused was sentenced to death by this Court on his

54

conviction for committing rape and murder of two minor

girls who lived near his house. However, in review, the

question placed before the Court was whether post-

conviction mental illness be a mitigating factor. This Court

answered it in the affirmative but cautioned that in only

extreme cases of mental illness can this factor be taken into

consideration. The Court reduced the sentence from death

to life imprisonment for the remainder of his life as he still

poses as a threat to society.

49. In Irappa Siddappa Murgannavar v. State of

Karnataka, (2022) 2 SCC 801, this Court affirmed

conviction of the accused, inter alia, under S. 302 and 376

but modified the sentence from death to life imprisonment

for minimum 30 (thirty years). This Court stated that

mitigating factors such as young age of the accused, no

criminal antecedents, act not being pre-planned, socio-

economic background of the accused and the fact that

55

conduct of the accused inside jail was ‘satisfactory’

concluded that sufficient mitigating circumstances exists to

commute the death sentence.

50. In Shiva Kumar v. State of Karnataka, (2023) 9 SCC

817, this Court opined that the facts of the case shocked the

conscience of the Court. The accused was found guilty of

rape and murder of a twenty eight year old married woman

who was returning from her workplace. Despite noting that

the case did not fall under the ‘rarest of rare’ category, the

Court stated that while considering the possibility of

reformation of the accused, Courts held that showing undue

leniency in such a brutal case will adversely affect the

public confidence in the efficacy of the legal system. It

concluded that a fixed term of 30 (thirty years) should be

imposed.

51. In Manoj and Others v. State of Madhya Pradesh,

(2023) 2 SCC 353, the three accused were sentenced to

56

death by the lower court and confirmed by the High Court

on their conviction under Section 302 for committing

murder, during the course of robbery, of three women. This

Court, while modifying the sentence from death to life

imprisonment for a minimum 25 (twenty five) years, took

into consideration the non-exhaustive list of mitigating and

aggravating factors discussed in Bachan Singh (supra) to

establish a method of principled sentencing. This Court

also imposed an obligation on the State to provide material

disclosing psychiatric and psychological evaluation of the

accused which would help the courts understand the

progress of the accused towards reformation.

52. In Madan vs State of U.P., 2023 SCC OnLine SC

1473, this Court was dealing with a case wherein the

accused was sentenced to death, along with other co-

accused, for murdering six persons of his village. This

Court called for the jail conduct report and psychological

57

report of the accused which were satisfactory and depicted

nothing out of the ordinary. This Court also took into

consideration the old age of the accused and period

undergone [18 yrs.] as mitigating factors. This Court

concluded that the case did not fall under the rarest of rare

category and commuted the death sentence to life

imprisonment for minimum 20 (twenty years) including

sentence undergone.

53. In Sundar vs State by Inspector of Police- 2023 SCC

OnLine SC 310, this Court, while sitting in review,

commuted death sentence awarded to accused therein to

life imprisonment of minimum 20 (twenty years). The

accused had committed rape and murder of a 7-year-old

girl. Factors that influenced this Court to reach such a

decision were the fact that no court had looked at the

mitigating factors. It called for jail conduct and education

report from the jail authorities and found that the conduct

58

was satisfactory and that accused had earned a diploma in

food catering while he was incarcerated. Apart from the

above, the Court noted the young age of the accused, no

prior antecedents to reach a conclusion warranting

modification in the sentence awarded.

54. In Ravinder Singh vs State Govt. of NCT of Delhi-

(2024) 2 SCC 323, the accused was convicted under

Sections 376, 377 & 506 of the IPC for raping his own 9-

year-old daughter by the Sessions court and conviction was

confirmed by the High Court. The Sessions Court, while

imposing life imprisonment, also stated that the accused

would not be given any clemency by the State before 20

years. This Court clarified that, as discussed in V. Sriharan

(supra), the power to impose a special category sentence

i.e., a sentence more than 14 years but short of death

sentence can only be imposed by the High Court or if in

appeal, by this Court. Considering the nature of the

59

offence committed by the accused and the fact that if the

accused is set free early, he can be a threat to his own

daughter, this Court imposed a minimum 20 (twenty years)

life imprisonment without remissions.

55. A survey of the 27 cases discussed above indicates

that while in five cases, the maximum of imprisonment till

the rest of the life is given; in nine cases, the period of

imprisonment without remission was 30 years; in six cases,

the period was 20 years (In Ramraj (supra), this Court had

imposed a sentence of 20 years including remission); in

four cases, it was 25 years; in another set of two cases, it

was 35 years and in one case, it was 21 years.

56. What is clear is that courts, while applying Swamy

Shraddananda (supra), have predominantly in cases

arising out of a wide array of facts, keeping the relevant

circumstances applicable to the respective cases fixed the

range between 20 years and 35 years and in few cases have

60

imposed imprisonment for the rest of the life. So much for

statistics. Let us examine how the judgments guide us in

terms of discerning any principle.

57. A journey through the cases set out hereinabove shows

that the fundamental underpinning is the principle of

proportionality. The aggravating and mitigating

circumstances which the Court considers while deciding

commutation of penalty from death to life imprisonment,

have a large bearing in deciding the number of years of

compulsory imprisonment without remission, too. As a

judicially trained mind pores and ponders over the

aggravating and mitigating circumstances and in cases

where they decide to commute the death penalty they

would by then have a reasonable idea as to what would be

the appropriate period of sentence to be imposed under the

Swamy Shraddananda (supra) principle too. Matters are

not cut and dried and nicely weighed here to formulate a

61

uniform principle. That is where the experience of the

judicially trained mind comes in as pointed out in V.

Sriharan (supra). Illustratively in the process of arriving at

the number of years as the most appropriate for the case at

hand, which the convict will have to undergo before which

the remission powers could be invoked, some of the

relevant factors that the courts bear in mind are:- (a) the

number of deceased who are victims of that crime and their

age and gender; (b) the nature of injuries including sexual

assault if any; (c) the motive for which the offence was

committed; (d) whether the offence was committed when

the convict was on bail in another case; (e) the

premeditated nature of the offence; (f) the relationship

between the offender and the victim; (g) the abuse of trust

if any; (h) the criminal antecedents; and whether the

convict, if released, would be a menace to the society.

Some of the positive factors have been, (1) age of the

convict; (2) the probability of reformation of convict; (3)

62

the convict not being a professional killer; (4) the socio-

economic condition of the accused; (5) the composition of

the family of the accused and (6) conduct expressing

remorse.

These were some of the relevant factors that were kept

in mind in the cases noticed above while weighing the pros

and cons of the matter. The Court would be additionally

justified in considering the conduct of the convict in jail;

and the period already undergone to arrive at the number of

years which the Court feels the convict should, serve as

part of the sentence of life imprisonment and before which

he cannot apply for remission. These are not meant to be

exhaustive but illustrative and each case would depend on

the facts and circumstances therein.

58. How do these factors apply to the case at hand? The

act committed by the accused was pre -

planned/premeditated; the accused brutally murdered 4

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(four) persons who were unarmed and were defenseless,

one of whom was a child and the other an aged lady. It is

also to be noted that by the act of the accused, three

generations of single family have lost their lives for no

fault of theirs; Nature of injuries inflicted on Latha,

Ramachandran and Chitra highlights the brutality and cold-

bloodedness of the act.

59. On the mitigating side, the accused was quite young

when he committed the act i.e., 28 years old; The act

committed by the accused was not for any gain or profit;

accused did not try to flee and in fact tried to commit

suicide as he was overcome with emotions after the

dastardly act he committed; accused has been in jail for a

period of 18 years and 4 months and the case is based on

circumstantial evidence. We called for a conduct report of

the appellant from the Jail Authorities. The report dated

05.03.2024 of the Superintendent, Central Prison and

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Correctional Home, Viyyur, Thrissur has been made

available to us. The report indicates that ever since his

admission to jail, he had been entrusted with prison labour

work such as duty of barber, day watchman and night

watchman. Presently, he has been assigned the job as

convict supervisor for the last one and a half years. The

report clearly indicates that no disciplinary actions were

initiated against him in the prison and that the conduct and

behavior of the appellant in prison has been satisfactory so

far.

Conclusion:

60. For the reasons stated above, we uphold the

judgment of the High Cout insofar as the conviction of the

appellant under Sections 302, 449 and 309 IPC is

concerned. We also do not interfere with the sentence

imposed on the accused for the offence under Section 449

and Section 309 of IPC. We hold that the High Court was

justified on the facts of the case in following Swamy

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Shraddananda (supra) principle while imposing sentence

for the offence under Section 302 IPC. However, in view

of the discussion made above, we are inclined to modify

the sentence under Section 302 imposed by the High

Court from a period of 30 years imprisonment without

remission to that of a period of 25 years imprisonment

without remission, including the period already

undergone. In our view, this would serve the ends of

justice.

For the reasons stated above, the Appeal is partly

allowed in the above terms.

…....…………………J.

(B. R. Gavai)

…....…………………J.

(K.V. Viswanathan)

…..…………………J.

(Sandeep Mehta)

New Delhi;

March 18, 2024.