Case: Swamy Sharaddanandea @ Murali Monahar Mishra Vs. State of Karnataka

1. Appellant herein was convicted and sentenced to death for committing murder of his wife on or about 28.05.1991 at their residential house situate at 81, Richmond Road, Bangalore. The deceased was earlier married to one Akbar Khaleeli who was in the diplomatic service in the Government of India. She had four daughters. The deceased along with her children in the year 1983 visited the Maharaja of Rampur. There she was introduced to the appellant. Appellant at the relevant time was assisting the Rampur royal family. In regard to the management of her landed properties, the deceased sought for his assistance. She had inherited huge properties including House No. 81, Richmond Road, Bangalore from her mother. She had inherited some other properties during her marriage. Some litigations in respect of the said properties had been going on.2. Mr. Khaleeli on his assignment as diplomat of Iran went to the said country. The deceased together with her daughters started living at Bangalore. Appellant came there. He was also staying in the same house. The deceased desired for a son and she was made to believe by the appellant that he was capable of blessing her with a son. Akbar Khaleeli and the deceased separated in the year 1985. The deceased thereafter married the appellant on 17.04.1986. They started living together at the said house. She had executed a General Power of Attorney and a Will in his favour. However, despite her marriage with the appellant, the deceased was maintaining her relationship with her parents and daughters. Mrs. Sabah Khaleeli, second daughter of the deceasedhad all along been in touch with her.3. It is not in dispute that from 28.05.1991, the deceased was not seen.had been trying to contact her on phone. She was informed by the appellant that the deceased had gone to Hyderabad. In June 1991, when contacted, she was informed that her mother had gone to Kutch to attend a wedding. A week thereafter it was informed to her that the deceased had been lying low owing to some income tax problems. She, being exasperated with the said explanations, came down to Bangalore. She did not find her mother there. She was told that the deceased being pregnant had gone to United States of America for delivery of the child. She was told to have been admitted in Roosevelt Hospital. She made verifications thereabout through her acquaintances and came to know that no such woman had ever been admitted to the said hospital. Appellant being confronted thereto, informed her that the deceased had gone to London as she had wanted to keep it as a secret. However, in 1992, when she met the accused at Mumbai, noticed the passport of her mother lying in the room of the hotel which confirmed that the deceased had not visited USA or London as represented to her by the appellant on earlier occasions.4. She ultimately informed the Ashok Nagar Police Station by giving a written complaint about missing of her mother. A missing complaint was registered on 10.06.1992. No serious effort, however, was made to find out the whereabouts of the deceased.approached the higher authorities resulting in the investigation of the matter being entrusted to the Central Crime Branch. Apprehending arrest, Appellant obtained anticipatory bail with a condition that he would attend the police between 6 p.m. to 8 p.m. on every Monday and shall also make him available to the police. He applied for relaxation of the said condition and by an order dated 3.12.1993, it was directed that the appellant shall appear before the police authorities on every Monday once in three months.5. The investigation was entrusted to one C. VeeraiahaHe suspected the appellant herein. He was interrogated on 28.03.1994, whereupon he made a voluntary statement which was marked as Ex.He stated in great details as to the manner in which he had killed his wife and disposed of her dead body. He also disclosed as to how a wooden box of size 2 x 7 x 2 was made, a pit was dug and how the dead body was buried there. He narrated that how with the help of Raju he had put the box into the pit covered with mud and on the next day with the help of some masons brought by the said Raju kadapa stone slabs were put on the pit and the adjacent land and cemented the place.6. In the said statement, heI am taken I will show the place where the wooden box was prepared and the person who prepared it, the persons who transported the box and the people who helped in digging out the pit and the crow bar, spade, pan used for digging pit, the cement bags and the spot where Shakerah is buried and I exhume the dead body of the deceased and show you. The statement what all I had earlier given to Ashoknagar Police was a false statement given intentionally just to escape myself.An Executive Magistrate Syed Ejaj Ahmadwas called for exhumation of the dead body. He asked a doctor to conduct exhumation proceeding. On 30.03.1994, Dr. Nissar Ahmedcame to the place of occurrence for the said purpose. Appellant was asked as to whether he was ready to show the spot as per his earlier statement. The entire proceeding of exhumation of the dead body wasIt took place at about 10.30 a.m. on the said day. Appellant with a chalk piece marked the spot. Coolies accompanying the party as per instructions of the appellant himself, dug the earth of the said place whereupon a box was noticed. The plank of the lid of the wooden box was removed. A bed, a nighty, pillow and bed sheets were recovered. Channaiah who had come along with Dr. Nissar Ahmed removed the scalp, skull and hairs of the head which were detached from the skull and other bone pieces. He also removed the pieces of the bones. Another Doctor Shri Thiruvanakkarasu also came there. They joined the bones and fixed the skull and mandible in orderly manner. It was found to be that of a human skeleton. The mother of the deceased Smt. Gauhar Taj Namazie identified a ring which was embedded with red stone and two other black rings as belonging to the deceased. The nighty which was recovered was identified to be belonging to the deceased by the maid servant who had been working in the house.8. The post mortem examination commenced at 4.45 p.m. on 30.03.1994 which ended at about 6 p.m.9. Appellant was, thereafter, charged for commission of murder of his wife. Before the learned Trial Judge, 39 prosecution witnesses were examined. There was noto the occurrence. The prosecution was based on circumstantial evidence.10. The learned Trial Judge, as noticed hereinbefore, found the appellant guilty of commission of offence under Sections 302 and 201 of the Indian Penal Code and sentenced him to death.11. Appellant preferred an appeal before the High Court. A reference was also made by the learned Judge in terms of Section 366 of the Code of Criminal Procedure.12. The circumstances which were found to be existing by the High Court for proving commission of the offence are said to beMotive Murder for gain(b) The deceased Shakereh was last seen alive in May 1991 when she was residing at No. 81, Richmond Road, Bangalore along with accused and his wife.(c) Strange conduct of the accused afterA wooden box (MO.5) was got prepared and brought to the house by the accused.(e) Discovery of the wooden box containing a skeleton and feminine articles buried in the backyard of the said house of the accused and the deceased in furtherance of information furnished by the accused.(f) Fixing the identity of the skeleton as that of the deceased with the help of skull and the admitted undisputed photograph of Mrs. Shakereh by photomethod.(g) Fixing the identity of the skeleton as that of the deceased on the basis of DNA finger printing.(h) Identifying some of the articles like MOs. 5, 6, 8, 11 to 17 along with the skeleton in the box as belonging to the deceased.(i) The last circumstance put forth i.e., the attempt of the accused to mislead or to give false explanation.Before the High Court, a contention was raised that before imposition of sentence, the appellant had not been granted adequate opportunity to make a representation as was mandatorily required under(2) of Section 235 of the Code of Criminal Procedure, 1973. The High Court gave the appellant an opportunity of being heard. Before the High Court, the appellant accepted that he was instrumental in burying the dead bodyaccused submitted that he is innocent and has been illegally convicted. He submitted that as the family members of the deceased (parents and daughters) had filed number of cases against the deceased, she was mentally depressed and was taking number of sedative pills/ drugs; that she died naturally in May 1991 and as he feared adverse consequences, especially repercussions from her family members and community people, he buried her body in the backyard of his house without informing anybody. He submitted that though this fact was not stated by him in the trial court, as he could not bear it any more and after thinking over the matter for the last few years, he has decided to come out with this truth. He submitted that as he is innocent, his conviction be set aside and he be acquitted. So far as the sentence is concerned, he submitted that as now he is 61 years old and suffering from serious ailments like diabetes, hypertension and hernia and as he is in custody for the last 11 years, mercy be shown to him by reducing the capital punishment, if ever the court decides to convict him.The High Court, however, affirmed the judgment of conviction and sentence.

Reasoning:
17. We have not doubt that the death of the deceased was homicidal in nature. The identity of the dead body has also been established. The circumstances in which the deceased married the appellant have also not been disputed. Their marriage was proved byT.H. Lokeshminarayana. Appellant also did not deny or dispute that he had been living with the deceased at all material times at 81, Richmond Road, Bangalore. It has furthermore not been disputed that she had not been seen on and from 28.05.1991.18. We have noticed hereinbefore the circumstances which are said to have been found by the courts below. The law in this behalf is now no longer res integra.20. In regard to the circumstantial evidence in a case of death by poisoning, this Courtfar as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:(1) there is a clear motive for an accused to administer poison to the deceased,(2) that the deceased died of poison said to have been administered,(3) that the accused had the poison in his possession,(4) that he had an opportunity to administer the poison to the. All the internal organs were found to be decomposed and liquefied. He, however, reserved his opinion in regard to the cause of death pending chemical analysis. The doctor preserved skull and mandible for super imposition and visera and hair for chemical analysis report and bone marrow hair and soft tissues for DNA Fingerprinting.44. The learned counsel appearing on behalf of the appellant, in our opinion, was not correct to contend that only because the investigating team having regard to the purported confession made by the appellant had already known that a dead body had been buried in the house, Section 27 of the Evidence Act would not be attracted. In his statements before the investigating officer, he made a confession; but what was admissible in evidence his only that part which would come within the purview of Section 27 of the Evidence Act and not the rest. The court while analyzing the evidence and appreciating the same cannot take note of confession made before the police.47. The various circumstances leading to the pointing out the guilt of the appellant and appellant alone have been enumerated by us hereinbefore. From our discussions, it is evident that each of the circumstances had been established, the cumulative effect whereof would show that all the links in the chain are complete and the conclusion of the guilt is fully established.48. We are not oblivious of the fact that there is a material difference distance between may be and must be and furthermore in a case of this nature the evidence must be considered with more than ordinary care lest the shocking nature of crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and. We do not have a sentencing policy, unlike some other countries. England has the concept of "guideline judgments" which is considered as a judge managed sentencing model rather than a statute induced one. Section 354 (3) suggests that Indian law furthers statute induced sentencing guidance in part. Therefore it has to be given full colour.61. In our country, therefore, each case may have to be considered on its own merit.66. It is to be appreciated here that statutorily decided minimum sentence takes into account the basic value of the crime and suffice to outweigh the profit of the offence.. It would, therefore, appear that cases where death penalty is upheld are those where murder was committed of a large number of persons or by more than one person in a brutal or systematic manner.83. With utmost respect, I am of the opinion that the doctrine of proportionality which is often referred to in the judicial pronouncements in regard to the sentencing policy required to be judicially adopted should not apply in a case of imposition of capital punishment. Precedent should not be contrary to Parliamentary law; far less the decision of a Constitution bench of this Court89. It has been a fundamental point in numerous studies in the field of Death Penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as full proof incidences and the fact that the same are circumstantial evidence based must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.95. Second point relates to planning which went into committing the murder. It is agreed that accused deliberately came close to the beautiful and wealthy lady. He must have had his intentions and calculations in that regard. To that extent intention behind the marriage can be imputed. But to infer from that the murder was amurder will be going a bit too far as he did not know the opportune date when the servant would be leaving the house. He could not have known the servants would receive a telegram and ask for leave. Without their leaving the place, the plan, if there was any, could not have been executed. This is one weak link in the hypothesis that the murder was meticulously planned.g the abovementioned other characteristics of the crime, we now delve into whether this instance can be categorized as a "rarest of rare" murder. The question is whether murder of wife for the purpose of usurping property is a rarest of rare crime statistically.It is not to say that rarest of rare doctrine only has a statistical dimension i.e. incidence of particular type of murder in a given sample; rarest of rare benchmark can also be used in the context of other parameters such a brutality, planning, societys reaction at all. Facets relating to nature of the crime have already been explained in terms of the few parameters mentioned just now. Therefore we attend to the incidence aspect. 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.98. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The same should not factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative factor.99. In fact, Appellant should not have been heard at that stage. The stage of hearing an accused under Section 235(2) of the Code is after the judgment of conviction is pronounced and not prior thereto. Appellant herein made a confession before the High Court. The High Court took the same into consideration in the main judgment which could not be done. He had been brought before the High Court only for purpose of fulfilling the requirement of(2) of Section 235 of the Code of Criminal Procedure. His Statement was taken during midst of hearing. He knew the implications thereof. Despite the same, he made a categorical statement that he was responsible for burring the dead body. He gave an explanation, which might not have found favour with the High Court, but the fact that he had made a confession at least accepting a part of the offence could not have been ignored at least for the purpose of imposition of punishment. He is more than 64 years old. He is in custody for a period of 16 years. The death sentence was awarded to him by the trial court in terms of its judgment dated 20.05.2005. In a situation of this nature, we are of the opinion that imposition of a life imprisonment for commission of the crime under Section 302 shall serve the ends of justice.102. However, before parting with this case, we may notice that a prayer was made by Smt. Sabhah Khaleeli (daughter of the deceased) that the mortal remains of Smt. Shakereh (deceased) including skull are required by the family of the deceased for burial and obsequies ceremony. The High Court has issued such a direction. As the family of the deceased and in particular Smt. Sabah Khaleelidesires to perform burial and other obsequies ceremonies, we direct that the order of the High Court, in this behalf, may be implemented, as expeditiously as possible.