Sentence/Sentencing – Murder – Appropriate period of sentence to be imposed under the Swamy Shraddananda v. State of Karnataka [2008] 11 SCR 93 principle wherein it was held that to avoid a death sentence, the courts can device a graver form of imprisonment for life beyond fourteen years – Aggravating and mitigating circumstances – Relevant factors for arriving at the number of years which the convict will have to undergo before which remission could be sought – Trial Court sentenced the accused to death for the offence punishable u/s.302, IPC – High Court confirmed the conviction, however modified the death sentence to imprisonment for 30 years without remission following the Swamy Shraddananda line of cases – Correctness:

Held: Circumstances of the present case were by themselves consistent with the sole hypothesis that the accused and the accused alone was the perpetrator of the murders – On the aggravating side, act committed by the accused was pre-planned/ premeditated; he brutally murdered 4 unarmed and defenseless persons, one of whom was a child and the other an aged lady – By the act of the accused, three generations of single family lost their lives for no fault of theirs; nature of injuries inflicted on ‘L’ and two others highlights the brutality and cold-bloodedness of the act – On the mitigating side, the accused was quite young (28 years old) when he committed the act; the act committed was not for any gain or profit; he did not try to flee and in fact tried to commit suicide as he was overcome with emotions after the dastardly act; he had been in jail for 18 years and 4 months and the case was based on circumstantial evidence – Further, conduct report of the appellant indicated that no disciplinary actions were initiated against him in the prison and his conduct and behavior had been satisfactory so far – Judgment of the High Court is upheld insofar as the conviction of the appellant u/ss. 302, 449, 309 IPC is concerned – Sentence imposed for the offence u/ss. 449, 309, IPC also not interfered with – High Court was justified on the facts of the case in following Swamy Shraddananda principle while imposing sentence for the offence u/s.302 IPC – However, the sentence u/s.302 imposed by the High Court is modified 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. [Paras 13, 58-60]

Sentence/Sentencing – Murder – Remission – Commutation of death penalty to life imprisonment, however convict cannot be released on the expiry of 14 years (the normal benchmark for life imprisonment) – Aggravating and mitigating circumstances – Appropriate period of sentence to be imposed under the Swamy Shraddananda principle – Relevant factors for arriving at the number of years which the convict will have to undergo before which remission could be sought:

Held: 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, V. Sriharan and the line of cases which applied these judgments will have to be considered and principles, if any, set out therein have to be applied – There can be no straitjacket formulae – Pegging the point up to which remission powers cannot be invoked is an exercise that has to be carefully undertaken and the discretion should be exercised on reasonable grounds – The principle in Swamy Shraddananda as affirmed in V. Sriharan 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 – 27 previously decided cases applying the Swamy Shraddananda principle, surveyed – A journey through the cases 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 – Some of the relevant factors that the courts bear in mind for arriving at the number of years which the convict will have to undergo before which the remission powers could be invoked are number of deceased who were victims of that crime, their age and gender; the nature of injuries including sexual assault if any; the motive for which the offence was committed; whether the offence was committed when the convict was on bail in another case; the premeditated nature of the offence; the relationship between the offender and the victim; the abuse of trust if any; the criminal antecedents; and whether the convict, if released, would be a menace to the society – Some of the positive factors are age of the convict; the probability of reformation of convict; the convict not being a professional killer; the socioeconomic condition of the accused; the composition of the family of the accused and conduct expressing remorse – Additionally, the Court would be justified in considering the conduct of the convict in jail; and the period already undergone – Aforesaid factors not exhaustive but illustrative and each case would depend on the facts and circumstances therein. [Paras 26, 27, 57]

Evidence Act, 1872 – s.106 – According to the prosecution, appellant had illicit intimacy with ‘L’ however, after she tried to distance herself, the appellant was seriously aggrieved – Allegedly, on the fateful night he gained access into her house by making a hole in the eastern side wall of the house and murdered ‘L’ along with three others in the house – Appellant was the only other person inside the house, no cogent explanation came from him as to what transpired at the scene of occurrence:

Held: Evidence of the prosecution witnesses and even the version of the accused establishes his presence at the scene of occurrence – Appellant was the only other person inside the house, with the other three being dead and one ‘KA’, who was injured and unconscious and who later died in that state itself – There was no cogent and plausible explanation forthcoming from the accused as to what transpired at the scene of occurrence – This coupled with the fact that his relationship with the deceased ‘L’ was strained clearly point to his guilt – s.106 states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him – s.106 is not intended to relieve the prosecution of its duty – However, 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 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 but he miserably failed on that score. [Para 12 (xiv)]

Code of Criminal Procedure, 1973 – s.293 – Prosecution case was that there were writings on the wall and on certain objects in the southern room of the ground floor where the accused was found – Specimen of these writings was taken and referred to the handwriting expert – Handwriting Expert produced P-42 report – Appellant contended that the handwriting expert had not been examined:

Held: The submission flies in the face of s.293 – Exhibit P-42 Report was prepared by Dr. KPJ, Joint Director (Research), Forensic Science Laboratory, Thiruvananthapuram – The report was 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 s.293(4)(e) – Hence, the report Ex. P-42 is admissible even without the examination of Dr. KPJ. [Para 12 (vii)]

Criminal Law – Cases falling short of the rarest of the rare category – Sentencing – Principle laid down in Swamy Shraddananda v. State of Karnataka [2008] 11 SCR 93, discussed.

Evidence – Case based on circumstantial evidence – Principles to be kept in mind while convicting an accused – Discussed.