Reading my notes on the hearing of the case, Swamy Shraddananda @ Murali Monahar Mishra v.State of Karnataka, in the light of the Amnesty International India’s report on death penalty (subject of the previous post), was an eye-opener. The case came up for hearing before a 3-Judge Bench of the Supreme Court (Coram: Justices B.N.Agrawal, G.S.Singvi and Aftab Alam) on April 30, following a split verdict by a Bench of Justice S.B.Sinha and Justice Markandey Katju last year. Both the Judges had confirmed his conviction, but differed on sentencing. The facts of the case may be gathered by reading the judgments. The judgments are here and here.

Justice Sinha, points to a weak link in the circumstantial evidence in paragraph 95 of his judgment. He also said in paragraph 97 that it can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident. It could, of course, be a rare incident. In Paragraph 99, he said in view of his partial confession to the High Court at the time of sentencing, life sentence would serve the ends of justice. In paragraph 100, he said life sentence must mean life sentence. Depending on the same facts, Justice Katju held that this was the rarest of rare case, and therefore, death penalty should be imposed on the appellant.

Sanjay Hegde, represented the State of Karnataka before the Bench, while U.R.Lalit represented the complainant. According to Hegde, no power of remission can be exercised by the State, before the accused completed 20 years in jail. Justice Aftab Alam pointed to Section 433A Cr.P.C. which restricts the power of remission/commutation, by laying down that the convict should have served at least 14 years in jail. He asked Hegde whether it was his submission that life is a substitute sentence for death and if it is, it should carry the same attributes.

During the hearing an interesting aspect of Section 54 and 55 IPC came to light. Section 54 says in every case in which sentence of death shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for any other punishment provided by this Code. Justice Alam asked whether it would mean a death sentence could be commuted to just fine, whereas under Section 55, life imprisonment can be commuted for a term not exceeding 14 years. Hegde agreed that it is a paradox. In case of death, there is leeway. He suggested that the Court can issue a directive to sentence an accused in line with the legislative policy under section 433A Cr.P.C. He also pointed out that S.433A does not mean the convict can be released immediately after he completed 14 y ears.

Hegde, applying the test laid down in Machhi Singh case, (1983), argued that this was an extremely brutal, grotesque, diabolical, murder executed in revoltingly dastardly manner. Justice Alam asked whether these were not subjective phrases. Hegde then narrated the facts of the case, to argue that the case fell under at least three of the five tests laid down in Machhi Singh.

U.R.Lalit, even while arguing for death penalty for the appellant, referred to the pre-Bachan Singh/Machhi Singh days as “good old days”. When Justice Alam asked him why he so considered the period, he said it was his personal view. He said the rarest of rare doctrine did incalculable harm to society. He said: “Assassins are hired, contract killings take place…” What he meant was that the doctrine was not deterrent enough. He was of the view that the direction in Paragraph 100 of Justice Sinha’s judgment (wherein he said life means life) will not whittle down the power of the executive to commute sentences. Otherwise, it will create tremendous imbalance, he said. Justice Alam said unless the period of sentence is determined, there can be no remission, as you can’t deduct from infinity. “If you accept life means life, there is no remission”, he said.

Lalit suggested that it was his personal view that even if one judicial authority (among trial court, High Court and Supreme Court) said death penalty should not be imposed, then it should not be imposed. But apparently differing from his personal view, (if one takes Justice Sinha’s view against imposing death penalty as a possible veto) he said death penalty is the right choice in this case. Justice Alam pointed out that the fact that the murder was pre-planned was itself not a requisite to call it as the rarest of rare case.

The submissions of the appellant’s counsel also deserve mention. He began suggesting that this was not the rarest of rare “circumstance”. Justice Agarwal sought to correct him, by suggesting that the test was whether it is the rarest of rare case, and not circumstance. Justice Singhvi asked him why he was called a “Swami”. The counsel said it was just like any other name. When the counsel suggested it was entirely based on circumstancial evidence, (a point which was also made by Justice Sinha to argue against death penalty), Justice Alam said he had already been found guilty by all the courts. Justice Alam asked him whether he supported Justice Sinha in Paragraph 100 wherein he said the appellant must be in jail for 20 years, or Justice Katju, who imposed death penalty. The limited choice posed by the Judge appeared to confound the counsel. The counsel then referred to exemplary record of the appellant during the imprisonment, to suggest that he could be reformed. But Justice Alam brushed it aside, to suggest that this could be a ground to consider remission. I wondered if the appellant had hired an experienced senior counsel, it would have made a difference between life and death.