SHIVA KUMAR @ SHIVA @ SHIVAMURTHY versus STATE OF KARNATAKA

Citation: [2023] 4 S.C.R. 669 · Decided: 28-03-2023 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Case Partly allowed

Cited by 4 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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SHIVA KUMAR @ SHIVA @ SHIVAMURTHY
v.
STATE OF KARNATAKA
(Criminal Appeal No. 942 of 2023)
MARCH 28, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Penal Code, 1860 – ss.366, 376 and 302 – Power to impose
modified punishment – Appellant convicted u/ss. 366, 376 and 302
IPC – Trial Court sentenced the appellant to undergo rigorous
imprisonment for the rest of his life – High Court dismissed the
appeal preferred by the appellant challenging the conviction and
sentence – In appeal before the Supreme Court, appellant contended
that in view of the law laid down by the Constitutional Bench in the
case of Union of India v. V. Sriharan alias Murugan & Ors., a modified
sentence can be imposed only by the Constitutional Courts and not
by the Sessions Courts – Held: The Constitution Bench in the case
of V. Sriharan case 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 – Trial Court could not have directed that the
appellant shall not be released till the rest of his life – Even in a
case where capital punishment is not imposed, the Constitutional
Courts can always exercise the power of imposing a modified or
fixed-term sentence by directing that a life sentence shall be of a
fixed period of more than fourteen years – In the given circumstances
of the case, a fixed-term sentence for a period of thirty years
imposed.
Partly allowing the appeal, the Court
HELD : 1. While imposing a life sentence, if it is directed
that the accused shall not be released for a specific period, it
becomes a modified punishment.  In such a case, before the expiry
of the fixed period provided, the power to grant remission under
Cr.P.C. cannot be exercised. [Para 7][674-B]
2. What is held by the Constitution Bench, cannot be
construed in a narrow perspective.  The Constitution Bench has
   [2023] 4 S.C.R. 669
669
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SUPREME COURT REPORTS
[2023] 4 S.C.R.
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][676-
F-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,
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is no consideration by itself for deciding whether the accused
will fall in the category of the ‘rarest of the rare’ c

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