CRIMIMINAL PROCEDURE CODE

CONTINUOUS ASSESSMENT-III
Swamy Shraddananda @ Murali Manohar Mishra
v. State of Karnataka- A CASE ANALYSIS

SUBMITTED ON: 31st March 2016

WORD COUNT: 3903

SUBMITTED BY: - SUBMITTED TO:-

Aiswarya Murali, Mr Renjith Thomas
Roll No. 1262 Faculty of Law
(4th Semester)BA LLB

1
 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................3
AN INSIGHT IN TO THE FACTS OF THE CASE..................................................................5
APPLICATION OF THE CODE...............................................................................................7
ISSUES AT CONSIDERATION................................................................................................9
ANALYSIS OF THE JUDGEMENT AND REASONINGS...................................................10
THE AUTHORS VALUATION OF THE CASE...................................................................14
CONCLUSION........................................................................................................................15

2
 INTRODUCTION

The efficiency of the connectivity of the world has gone beyond our imagination and the
debate on punishments and human rights violation has arrived on this soil as well. When
Yakub Abdul Razak Memon was hung to death on 30 July 2015, there was a huge hue and
cry in the nation. Many protested against this and this gave rise to the heated discussion on
whether death penalty is legally justified. The discussion escalated from "State-sponsored
killing" reduces citizens to murderers to "There is no evidence that death penalty serves as a
deterrent: to the contrary in fact. All it does is exact retribution: unworthy of a Government." 1
Such debate and discussions had actually vent ways for more than 160 countries to abolish
death penalty in law or in practice. Yet India is one of the 58 countries which still hands out
the death penalty, according to a UN reports.2

The background of this case did not mainly trigger the debate of justification of death penalty,
but the requirement of courts to lay down guidelines wherein death penalty is to be awarded
and also the need to analyses the cases from fact to fact basis. The discussion in this case
mainly encircles around the magnitude of the punishment to be awarded for the brutal cold-
blooded murder by the Appellant. Main dilemma rests upon the issue of sentencing has two
aspects, a sentence may be excessive and unduly harsh or it may be highly disproportionately
inadequate3, one may without any dispute shall agree that this dilemma was successfully
solved by the judges through this judgment. They found the case to slightly fall short of the
rare of rarest case which is also another main subject matter of deliberation in this case.
The grave nature and irreversibility of the nature of death penalty has been discussed in this
case. One cannot deny the fact that death penalty is often applied in a discriminatory manner,
in violation of the principle of non-discrimination. The arbitrary application of the death
penalty being another subject of concern. The death penalty is often used in a disproportional

1 http://www.outlookindia.com/article/the-noose-casts-a-shameful-shadow/294979, Last seen

on 18th September 2015.

2 http://www.firstpost.com/politics/death-penalty-anomaly-amid-debate-yakub-memon-
varun-gandhi-support-abolition-2375454.html, Last seen on 18th September 2015.

3 Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka, AIR 2008, SC 3096

3
manner against the poor, minorities and members of racial, ethnic, political and religious
groups.4

In this case analysis the author shall be first analysing the background and essential facts
pertaining to the case, the legal aspect involved and the holding of the Court and finally the
author concludes her analysis through several recommendations, criticism and her opinion
regarding the judgement. Also suggesting the scope of the judgement that could have
traversed through a different route.

4 K. D. Gaur, The Indian Penal Code, (Universal Law Publishers)

4
 AN INSIGHT IN TO THE FACTS OF THE CASE

PARTIES TO THE CASE:

The appellant is the accused, Swamy Shraddananda @ Murali Manohar Mishra
The State of Karnataka is the Respondent

PROCEDURAL FACTS OF THE CASE:

HISTORY OF THE CASE

The fact of the entire case is centred upon the cold blooded murder of one person
Shakereh, the rich lady who owned assets worth millions. She was previously married
to Mr. Akbar Khaleeli, with whom she had four daughters. She divorced him and
decided to marry the accused who had come to Bangalore so as to assist the deceased
in the proper management of her properties. He had also convinced her that he had
occult powers to give her a much desired son.
Out of love Shakereh had given a major portion of her assets in the name of the
accused in the form of property, joint bank accounts and locker.
On one fine day in May in the year of 1991 she had suddenly disappeared from the
world.
Her daughters incessant search for her beloved mother, in spite of the misinformation
provided by the accused lead to her filing a written complaint for missing woman.
The Central Crime Branch started their investigation and through intense interrogation
of the appellant, he made his confession that he had brutally murdered by putting her
to sleep with the help of sleeping pills and burring her body while still being alive just
outside their bedroom, which was later covered with cement, hence committing the
crime in a highly stealthy and clandestine fashion.
Later through the information given by the accused, the Investigation Officers through
intense interrogation wherein he confessed, they proceeded to their bunglow and
recovered all that he had mentioned exactly at the same place.
Along with the large amount of evidences which were unearthed, the appellant was
charged with the murder of the deceased.

5
 The prosecution proved its case by producing 39 witnesses and examined them and
also submitted a large number of exhibits in the form of both material and
documentary

APPEALS

This case is an appeal filed by the Appellant against the Order of the trial court and
the reference made by the Session Judge under Section 366.
Without any modification in the conviction or sentence, the High Court confirmed the
death penalty and accepted the reference made by Trial Court.
On appeal, the Division Bench unanimously upheld the Appellants conviction for
both the offences but there was difference of opinion about the punishment meted out
to the Appellant. Jus. Markandey Katju took the view that the appellant deserved
nothing but death.
Both the honourable judges unanimously upheld the appellant's conviction for the two
offences but they were unable to agree to the punishment meted out to the appellant.
Hence the Appellant has sort an appeal before this Honble Supreme Court.

6
 APPLICATION OF THE CODE

The relevance of this case under the criminal procedure code is high. Large number of
sections within the code are covered in this case.

Section 235(2) comes into picture where it is discussed under various case laws, so as
to decide the special circumstances in which the death penalty is awarded and
criterion of rare of rarest cases. The section is relevant here as it is limited by
Section 360 of the code.
Section 354(3) mandates the requirement for the courts to state reasons for offences
that are punished with death or life imprisonment and especially for death, special
reasons to be recorded. From the case of Bachan Singh 5 which is discussed in great
length, the court makes the observation that special reasons would mean
exceptional reasons. Exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal. On conviction for murder and other
capital offences punishable in the alternative with death under the Penal Code, the
extreme penalty should be imposed only in extreme cases.
Section 366 imposes the requirement of sessions court in cases of where in death
penalty is awarded, requires to submit proceedings to high court for confirmation and
the same was done in this case.

The most important sections pertinent to this case are Sections 432,433 and 433A. The
major portion of this case relies on these sections. Section 432 of the Code of Criminal
Procedure deals with the power to suspend or remit sentences and Section 433 with the
power to commute sentences. Section 433A, that was inserted in the Code by an
amendment made in 1978, imposes restriction on powers of remission or commutation in
certain cases.

5 Bachan Singh v State of Punjab (1980) 2 SCC. 684

7
 As discussed in the case of Jagmohan 6 which is the Court had observed that, in practice,
life imprisonment amounts to 12 years in prison. Section 433A restricts the power of
remission and commutation conferred on the appropriate Government under Sections 432
and 433, so that a person who is sentenced to imprisonment for life or whose death
sentence is commuted to imprisonment for life must serve actual imprisonment for a
minimum of 14 years.

6 Jagmohan Singh v. State of U.P, AIR 1972 SC139

8
 ISSUES AT CONSIDERATION

The important issues dealt by this case mainly were:

Whether absolute, inflexible guidelines are to be laid down by the Courts so as to

decide upon the sentence especially in the case of death penalty?

What is the surety that the sentence awarded to the convict after painstaking and
anxious deliberation would be carried out in actuality? The sentence of imprisonment
for life, literally, shall not by application of different kinds of remission, turn out to be
the ordinary run of the mill life term that works out to no more than fourteen years.
How can the sentence of imprisonment for life (till its full natural span) given to a
convict as a substitute for the death sentence be viewed differently and segregated
from the ordinary life imprisonment given as the sentence of first choice?

9
 ANALYSIS OF THE JUDGEMENT AND REASONINGS

The judgement was carefully written after excessive discussions and deliberation by eminent
judges. A wide number of cases containing positions that discusses on death penalty and life
imprisonment has been taken into account. Since it is important to take into consideration a
wide range of cases with similar fact scenario, so as to categorise the rare of rarest cases to
decide whether death penalty is to be awarded or not. The nature of the crime and the
intensity of the punishment to be decided upon is a highly challenging act in such a fact
scenario, wherein there is fine line for a case to be the rare of rarest cases.

The case is more of factual based, as the question is regarding deciding of the intensity of the
punishment to be awarded to the cold blooded murder. The factual scenario of this case is
filled with drama. It is indeed a rainbow of human feelings and all his vices are contained in
it. There is trust, love, lust, gluttony, fraud, desperation, instigation and fraud.

Pondering upon the argument put forth by the learned Counsel for the respondent that the
accused deserves a punishment nothing less than death. It fully paves the way into the
discussion of legal validity of death penalty and cases wherein it can be awarded which is the
soul of the deliberations.

The two important cases that the judges use so as to discuss is that of Macchi Singh 7 and that
of Bachan Singh8.

Throughout both cases the courts maintained the position that a straight jacket formula cannot
be laid down for sentencing a person to death. It is to remain flexible and responsive to each
case on its merits. The court maintained that the plurality of cases even within a single
category makes it beyond the anticipatory capacity of the human calculus. Hence the

7 Macchi Singh v State of Punjab, (1983) 3 S.C.C,470.

8 Supra Note3

10
standardisation of the sentencing process tends to sacrifice justice at the altar of blind
uniformity.9

Yet coming back to deciding of awarding death penalty, Bachan Singhs principle is relied on
wherein rarest of rare cases is the sole criterion and reiterated in Macchi Singh as well. It
further deliberated on this principle, expanding it and demarcating it into three different
categories as

A] Manner of commission of murder

B] Motive for commission of murder

C] Anti-social or socially abhorrent nature of the crime

D] Magnitude of crime

E] Personality of victim of murder

Hence the background of the rare of rarest cases to be decided under the light of these five
categories. Hence Macchi Singh10 has finally categorised which was not done before in other
such cases. Yet the Honble court wishes to maintain that this categorisation cannot be taken
as inflexible or absolute. But it can act as a guideline, yet to be further deliberated upon and
to be applied to fact to fact basis. The court cited the deficiency of the criminal justice
system in punishing all those who are guilty as well as the inconsistencies in the sentencing
process even while following Bachan Singh, to say that capital punishment must be reserved
for exceptional cases only. In light of the irrevocability of the punishment, a slight hesitation
led them to commute the Appellants death sentence.

The importance of motive comes into picture when the punishment for a crime is to be
decided. Motive has been weighed high in this case as well. The various evidences that has
been submitted by the prosecution is with relation to this.

It is clear from the following acts of the Appellant that his main motive of the murder was his
unending thirst for the deceaseds material wealth. Soon after the commission of the murder,
it was found that he had went about selling off the properties of the deceased as fast as
possible. The joint bank accounts were simply used to deposit large sums being the sale

9 Jagmohan Singh v. State of U.P, AIR 1972 SC139

10 Macchi Singh v State of Punjab, (1983) 3 S.C.C,470.

11
proceeds of the lands sold by him and to withdraw the amounts as soon as those were
credited to the account. Also, in all the meetings of the S. S. Housing Company, he
represented the presence of Shakereh and even signed the proceedings for her as holder of her
General Power of Attorney. He also forged in replies to the queries of the Income Tax
authorities, with a fake signature of Shakereh.

The court also swiftly handled the sensitive issue of the need to save the sentence of death
from the vice of arbitrariness. The Court took a stand by rejecting the other submission that
unless it precisely defined the scope of Section 354(3) and clearly marked the types of grave
murders and capital offences there would always be the chance of imposition of death penalty
in an arbitrary and whimsical manner.

The ratio decidendi itself of the case being On conviction for murder and other capital
offences punishable in the alternative with death under the Penal Code, the extreme penalty
should be imposed only in extreme cases.

The author, after the detailed analysis of the case strongly feels that the manner in which the
victim was treated, the physical and mental agony given by the murderer, and the manner in
which it was executed plays a very important role so as to decide the intensity of the
punishment to be awarded. As held by the Honble judges that even though it is undeniable
that the crime committed was inhumane and was a cold blooded murder. Yet the plan devised
by the murderer was such that the victim could in any case not know till her last breath that
she was betrayed by the one she trusted most. The murderer also ensured that the killing did
not cause any mental or physical pain to the victim.

There is also a case of confession wherein the Appellant partially confessed before the High
Court and also before the investigating Officer which lead to the recovery of all the essential
evidences so as to unsolved the mysterious case.

This makes the case less graver and motive less depraved.

Yet the Judges believe that it is a case that deserves nothing less than a life imprisonment.
The punishment does not deserves to be remitted to less than fourteen years. The Court felt
that life imprisonment that, subject to remission, works out to only 14 years would be
grossly disproportionate and inadequate. Accordingly, they sentenced the appellant to
imprisonment for the rest of his life without any remission.

12
The plea of the learned counsel for Appellant that he had already spent 11 years in jail and
was an exemplary prisoner and hence his sentence from death penalty was to be remitted to
life imprisonment was taken into consideration by the Court. For this purpose several case
laws were referred so as to arrive to a proper decision. Began with the case of Dalbir Singh
and Ors. v. State of Punjab11, the courts observation was quoted regarding the remission of
death penalty to life imprisonment wherein the accused has been incarcerated for 10-14 years.
The Honble Court decided to give a formal recognition to this. Other five cases holding
similar principles were also discussed.

From the discussion of seven case laws, the Court was lead to a position of modifying the
death sentence to life imprisonment or in some instances imprisonment for a term of twenty
years with the further direction that the convict must not be released from prison for the rest
of his life or before actually serving out the term of twenty years, as the case may be, mainly
on two premises; one, an imprisonment for life, in terms of Section 53 read with Section 45
of the Penal Code meant imprisonment for the rest of life of the prisoner and two, a convict
undergoing life imprisonment has no right to claim remission.

The Court just before arriving to the conclusion also discussed on various cases that dealt
with sentencing, computation and. Leading to an extensive discussion on sections 432, 433 ,
433A , 434 and 435 of the Criminal Procedure Code. The Court skilfully dealt with the
question of how remission can be applied to imprisonment for life. The way in which
remission is allowed, it can only apply to a fixed term and life imprisonment, being for the
rest of life, is by nature indeterminate.

The case concludes with the difficulty in deciding between death penalty and remission of the
punishment to 14 years. It brings in the instance wherein a sentence may be excessive and
unduly harsh or it may be highly disproportionately inadequate. The court is reluctant to
reduce the punishment for such a brutal cold blooded murder to a mere 14 years but at same
time is reluctant to go for death penalty the case falling short of the rare of rarest case as it
would be grossly unjust and irreversible.

Hence the Court comes to a firm stand that the Appellant shall not be released from the prison
until his death, thereby awarding the most just punishment to the Appellant. Meeting the ends
of real and complete justice.

11

13
 THE AUTHORS VALUATION OF THE CASE

APPRECIATION OF THE JUDGEMENT

The judgment is by far one of the most logical, fair and coherent one. It clearly well evident
that true justice has been met. Death penalty is a gross and inhumane punishment and should
be sparingly awarded for the most gruesome crimes. According to the author, the Honble
Judges in this case were successful to analyse the fact scenario in depth and come to a
conclusion that it was a step less than the rare of rarest cases and hence they were freed
from the diabolic clutches of death penalty. Awarding Death Penalty to just ace his death and
does not leave any room for the murderer for self-introspection. Yet life imprisonment would
mean than the murderer shall spent his whole life knowing the grievousness of his act and
living with the guilt of it which would serve the very purpose of retribution. The case laws
discussed were highly pertinent and the courts ensured that they differed from them wherever
the facts took a different route. Hence they were successful in giving the most just award for
this case.

CRITICISM OF THE JUDGEMENT

A decision no matter how well made is always subject to criticism just because there is
always scope of improvement. The anti- death penalty debaters shall always resort to this
case. Whereas the pro-death penalty debaters would always find a fault. Moreover when it
comes to judicial decision there is always this scope open for critics to pool in their views.

14
Even though the case attempted to solve the issue of laying down a definite guideline so as to
decide on sentences such as death penalty, the author finds that throughout the case the
position remained ambivalent. Did not take a strong stand, when it is looked from a point of
view of its capability of being a precedent. Hence there is very less scope for generalization
as the judgement is more of based on this particular factual scenario. Yet it might be
indicative to the readers of the case that the Judges have intentionally not generalised the
solution rather the best suited award was given. Which is the very purpose of serving justice.
But compared to others this is one of those few judgments where the critics might find it
difficult to find a lacunae. The judgement is perfect example of just and neutral decision.

CONCLUSION

The debate on the need and desirability of retaining the death penalty has been overshadowed
by much intellectual exertion on the nature of the crime involved, its gravity, its heinousness
and the fatalities it caused. The time has come to end this debate once and for all by
ascending to a moral position that there shall be no death penalty on the statute book.

The scope of analysis of this case scenario is high amidst of present debate of the legal
validity of death sentence. The case successfully explored various avenues required to arrive
at a conclusion much needed for this case. One may find that it importantly relied on the
decision of Bachan Singh12 and also gave official recognition to various other cases which
required much attention. The Courts were moved by the compassionate sentiments of human
feelings ruling that sentence of death should not be passed except in rarest of the rare cases.
The present case falls short of the rarest of rare' category but at the same time the court
believed that life imprisonment of 14 year with remission is inadequate punishment, there
should be an extended option. In short, the court held that life imprisonment can be for whole
life of the accused.

During the course of analysis of the case it helped us to learn closely various provisions under
the Criminal Procedure Code as well as provisions under many other statutes. It also helped

12 Bachan Singh v State of Punjab(1980) 2 SCC. 684

15
us to understand the basis of death penalty being awarded and the very jurisprudence of
punishment itself.

The status of capital punishment as a human rights issue may not have reached an overall
consensus as of yet, but the current trend abolishing its use points to it becoming an accepted
human rights issue in the near future. The very idea that The use of the death penalty
undermines human dignity is gaining prominence in our legal framework as well.
Subsequent changes in the near future is expected out of it.

Capital punishment is seldom employed. Even though it may be a crime against the society
and the brutality of the crime shocks the judicial conscience. The court wishes to reiterate that
a sentence or pattern of sentence which fails to take due account of the gravity of the offence
can seriously undermine respect for law.13

13 Amrik Singh v. State of Punjab, 1989 S.C.C. (Cr.) 41 at p.42

16