The bench of Justices Abhay S. Oka and Rajesh Bindal held in its judgment dated 28.03.2023 that, "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.  We 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.   It all depends on several factors.   The State Government failed in its endeavour to get capital punishment by way of filing an appeal."

Nothing the possibility of reformation of the accused, the Supreme Court held that, "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."

In this case the court noted the facts that the trial court sentenced the accused of rape and murder for imprisonment till his last breath u/s 366, 376 and 302 IPC and the same was affirmed by the high Court.

While deciding an important issue of the sentence to be awarded by the Trial Court for awarding sentence till last breath the Supreme Court took into consideration the judgments of  Union of   India   v.  V. Sriharan alias Murugan & Ors reported in  2016 (7) SCC 1, Swamy Shraddananda  (2)  alias  Murali  Manohar  Mishra v.  State of Karnataka reported in  2008 (13) SCC 767, Sahib Hussain alias Sahib Jan v. State of Rajasthan reported in  2013 (9) SCC 778, Gurvail Singh alias Gala v. State of Punjab reported in  2013 (10) SCC 631, and held that, "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."

Finally the Apex Court held that while passing an order of conviction for an offence which is punishable with death penalty, the Trial Court may come to a conclusion that the case is not a ‘rarest of the rare’ case. In such a situation, depending upon the punishment prescribed for the offence committed,  the  Trial Court can impose other punishment specifically provided in Section 53 of the IPC.  However, 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 fixed­term 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.

Case Details:-

CRIMINAL APPEAL NO. 942 OF 2023
Shiva Kumar @ Shiva @ Shivamurthy             …Appellant
versus
State of Karnataka    ...Respondent

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