Shiva Kumar @ Shiva @ Shivamurthy vs State of Karnataka

2. What is held by the Constitution Bench, cannot be construed in a narrow perspective. The Constitution Bench has held that there is a power which can be derived from the IPC to impose a fixed term sentence or modified punishment which can only be exercised by the High Court or in the event of any further appeal, by the Supreme Court and not by any other Court in this country. In addition, the Constitution Bench held that power to impose a modified punishment of providing any specific term of incarceration or till the end of convict’s life as an alternative to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior Court. [Para 11][676F-G]

3. When a Constitutional Court finds that though a case is not falling in the category of ‘rarest of the rare’ case, considering the gravity and nature of the offence and all other relevant factors, it can always impose a fixed-term sentence so that the benefit of statutory remission, etc. is not available to the accused. The majority view in the case of V. Sriharan cannot be construed to mean that such a power cannot be exercised by the Constitutional Courts unless the question is of commuting the death sentence. [Para 12][677-A-C]

4. This Court has no manner of doubt that even in a case where capital punishment is not imposed or is not proposed, the Constitutional Courts can always exercise the power of imposing a modified or fixed-term sentence by directing that a life sentence, as contemplated by “secondly” in Section 53 of the IPC, shall be of a fixed period of more than fourteen years, for example, of twenty years, thirty years and so on. The fixed punishment cannot be for a period less than 14 years in view of the mandate of Section 433A of Cr.P.C. [Para 13][677-G-H; 678-A]

5. It is true that the Trial Court could not have directed that the appellant shall not be released till the rest of his life. The Trial Court noted the fact that on the date of conviction, the age of the appellant was 27 years and he had a wife and small child as well as aged parents. Considering these factors along with the fact that this was the first offence committed by the appellant, the Trial Court found that the case was not falling in the category of the ‘rarest of the rare’ cases. This Court must hasten to add that the fact that the accused has no antecedents, is no consideration by itself for deciding whether the accused will fall in the category of the ‘rarest of the rare’ cases. [Para 15][678-G-H; 679-A]

6. This is one case where a Constitutional Court must exercise the power of imposing a special category of modified punishment. The High Court expressed the view that the punishment imposed by the Trial Court was justified after considering the balance sheet of aggravating and mitigating circumstances. It is the duty of the Court to consider all attending circumstances. The Court, while considering the possibility of reformation of the accused, must note that showing undue leniency in such a brutal case will adversely affect the public confidence in the efficacy of the legal system. The Court must consider the rights of the victim as well. After having considered these circumstances, this Court is of the opinion that this is a case where a fixed-term sentence for a period of thirty years must be imposed. [Para 16][679-B-D]

Union of India v. V. Sriharan alias Murugan & Ors. 2016 (7) SCC 1 : [2015] 14 SCR 613 – followed. Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka 2008 (13) SCC 767 : [2008] 11 SCR 93; 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 : [2013] 17 SCR 983 – referred to.