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2013 DIGILAW 607 (SC)

Phoolwati v. State of Haryana

2013-05-17

B.S.CHAUHAN, DIPAK MISRA

body2013
ORDER : These appeals have been preferred against the impugned judgment and order dated 17.12.2004 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 194-DB of 2002 by way of which, the High Court has rejected the Murder Reference No. 1 of 2002, however, awarded the life imprisonment to the appellants herein, and has issued a direction that all the three appellants, who have been awarded the death sentence by the trial court, would undergo sentence of 25 years without remissions keeping in view the heinous nature of the offence committed by them. 2. Facts and circumstances giving rise to these appeals are that: A. A very heinous incident occurred on 20.12.1996 wherein six accused persons committed murder of all the six members of a family. Only one minor girl survived unhurt. After investigation and completion of the other legal requirements, the charges were framed against them under Sections 302, 148, 149 and 449 of Indian Penal Code, 1860 (hereinafter referred to as `the IPC'). B. The incident occurred due to a land dispute as it was alleged that the crops sown by one Om Parkash stood destroyed by the assailants. The Sessions Court vide judgment and order dated 8.2.2002 had awarded death sentence to Sadhu, Pada, Har Kishan while awarding the life imprisonment to other three accused i.e. Rohtas, Phoolwati and Babli. C. While dealing with the murder reference, the High Court vide impugned judgment and order dated 17.12.2004, declined to confirm the death reference and converted the death sentence to life imprisonment. However, considering the gravity of the offence, put a condition that they would serve minimum 25 years without remissions. Hence, these appeals. 3. Shri Varinder Kumar Sharma, learned counsel appearing on behalf of the appellants, has submitted that the High Court had no competence to put such a condition. While serving the sentence, their case could have been considered for premature release under the provisions of Sections 432, 433 and 433-A of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Cr.P.C.') and, therefore, this condition is liable to be set aside. 4. Shri Vikas Sharma, learned standing counsel appearing for the State of Haryana, has opposed the appeal contending that the entire family had been eliminated and the High Court has taken a lenient view while converting the death sentence into life imprisonment. 4. Shri Vikas Sharma, learned standing counsel appearing for the State of Haryana, has opposed the appeal contending that the entire family had been eliminated and the High Court has taken a lenient view while converting the death sentence into life imprisonment. Therefore, the High Court was justified in imposing such a condition. Therefore, no interference is required. 5. The issue involved herein is no more res-integra. This Court in State of Uttar Pradesh v. Sanjay Kumar, III (2012) CCR 579 (SC) : VI (2012) SLT 492 : III (2012) DLT (Crl.) 565 (SC) : (2012) 8 SCC 537 , examined the issue at length. While placing reliance upon the earlier judgments of this Court in Swamy Shraddananda v. State of Karnataka, III (2008) CCR 186 (SC) : VI (2008) SLT 322 : III (2008) DLT (Crl.) 571 (SC) : AIR 2008 SC 3040 ; Ramraj v. State of Chhattisgarh, I (2010) CCR 41 (SC) : IX (2009) SLT 161 : I (2010) DLT (Crl.) 5 (SC) : AIR 2010 SC 420 ; Mulla v. State of U.P., I (2010) CCR 381 (SC) : I (2010) SLT 710 : I (2010) DLT (Crl.) 645 (SC) : AIR 2010 SC 942 ; and Rameshbhai Chandubhai Rathod v. State of Gujarat, II (2011) SLT 52 : I (2011) CCR 379 (SC) : AIR 2011 SC 803 , wherein it has been held that where death sentence seems to be excessive and unduly harsh and life imprisonment is highly disproportionally inadequate, the court may find out a via media and instead of giving or confirming the death sentence awarded by the trial court may award a particular period of punishment as in a particular case, 14 years or 20 years may be found to be too less considering the gravity of the offence. The court may further impose a condition that State authorities will not grant them the benefit of remission and may not consider the case of premature release as per the sentencing policy adopted by the State. 6. The court may further impose a condition that State authorities will not grant them the benefit of remission and may not consider the case of premature release as per the sentencing policy adopted by the State. 6. In Jayawant Dattatraya Suryarao v. State of Maharashtra, VII (2001) SLT 664 : IV (2001) CCR 277 (SC) : (2001) 10 SCC 109 , this Court after having conjoint reading of Sections 432, 33 and 433-A CrPC, and taking into account the facts of the case particularly that the appellant therein had committed a heinous act of terrorism and brutal murder of two police constables who were on duty to guard the person to whom they wanted to kill held that they could not be awarded death sentence and thus, commuted the same to imprisonment for life but directed that the accused therein would not be entitled to any commutation or premature release under Section 433- A CrPC, the Prisons Act, the Jail Manual or any other statute and the rules made for the purpose of commutation and remissions. 7. In State of Haryana v. Jagdish, II (2010) CCR 20 (SC) : II (2010) SLT 643 : II (2010) DLT (Crl.) 26 (SC) : (2010) 4 SCC 216 , this Court dealt with the issue of clemency power elaborately and held that such powers are unfettered and absolute. Where the State authority frames rules under Article 161 of the Constitution, the case of the convict is required to be considered under the said rules. Even if the life convict does not satisfy the requirements of the remission rules or of the short sentencing scheme, there can be no prohibition for the President or the Governor of the State, as the case may be, to exercise the power of clemency vested in them, under the provisions of Articles 72 and 161 of the Constitution. Therefore, this Court while passing such orders never meant that clemency power could not be exercised by the President/Governor. The order of the Court in such an eventuality always remains subject to the said clemency powers. 8. In view of the above, this Court in Sanjay Kumar (supra) reached the following conclusion: "In view of the above, we reach the inescapable conclusion that the submissions advanced by the learned counsel for the State are unfounded. The order of the Court in such an eventuality always remains subject to the said clemency powers. 8. In view of the above, this Court in Sanjay Kumar (supra) reached the following conclusion: "In view of the above, we reach the inescapable conclusion that the submissions advanced by the learned counsel for the State are unfounded. The aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the "rarest of rare cases", warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. The life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds, for example, non-application of mind while passing the order; non-consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under the Jail Manual, etc. or even under Section 433-A CrPC." 9. The case is squarely covered by the aforesaid judgment. We do not see any cogent reason to interfere with. or even under Section 433-A CrPC." 9. The case is squarely covered by the aforesaid judgment. We do not see any cogent reason to interfere with. The appeals lack merit and are, accordingly, dismissed. Appeal dismissed.