Swamy Shraddananda@Murali Monahar ... vs State Of Karnataka

1. Death to a cold blooded murderer or life, albeit subject to severe restrictions of personal liberty, is the vexed question that once again arises before this court. A verdict of death would cut the matter cleanly, apart from cutting short the life of the condemned person. But a verdict of imprisonment for life is likely to give rise to certain questions. (Life after all is full of questions!). How would the sentence of imprisonment 2 for life work out in actuality? The Court may feel that the punishment more just and proper, in the facts of the case, would be imprisonment for life with life given its normal meaning and as defined in section 45 of the Indian Penal Code. The Court may be of the view that the punishment of death awarded by the trial court and confirmed by the High Court needs to be substituted by life imprisonment, literally for life or in any case for a period far in excess of fourteen years. The Court in its judgment may make its intent explicit and state clearly that the sentence handed over to the convict is imprisonment till his last breath or, life permitting, imprisonment for a term not less than twenty, twenty five or even thirty years. But once the judgment is signed and pronounced, the execution of the sentence passes into the hands of the executive and is governed by different provisions of law. What is the surety that the sentence awarded to the convict after painstaking and anxious deliberation would be carried out in actuality? The sentence of imprisonment for life, literally, shall not by application of different kinds of remission, turn out to be the ordinary run of the mill life term that works out to no more than fourteen years. How can the sentence of imprisonment for life (till its full natural span) given to a convict as a substitute for the death sentence be viewed differently and segregated from the ordinary life imprisonment given as the sentence of first choice? These are the questions that arise for consideration in this case.

2. The conviction of the appellant, Swamy Shardanannda @ Murali Manohar Mishra under Sections 302 and 201 of the Indian Penal Code has attained finality and is no longer open to scrutiny. The appellant was convicted by the learned XXV City Sessions Judge, Bangalore City, under the aforesaid two sections by judgement and order dated 20 May, 2005 in SC No.212/1994. The Sessions Judge sentenced him to death for the offence of murder and to a term of five years rigorous imprisonment and fine of rupees ten thousand for causing disappearance of evidences of the offence; in default of payment of fine the direction was to undergo simple imprisonment for one year. The appellant's appeal (Criminal Appeal No.1086 of 2005) against the judgment and order passed by the trial court and the reference made by the Sessions Judge under section 366 of the Code of Criminal Procedure (Criminal Referred Case No.6 of 2005) were heard together by the Karnataka High Court. The High Court confirmed the conviction and the death sentence awarded to the appellant and by judgment and order dated 19 September, 2005 dismissed the appellant's appeal and accepted the reference made by the trial court without any modification in the conviction or sentence. Against the High Court judgment the appellant has come to this Court in this appeal. The Appeal was earlier heard by a bench of two judges. Both the honourable judges unanimously upheld the appellant's conviction for the two offences but they were unable to agree to the punishment meted out to 4 the appellant. S. B. Sinha J. felt that in the facts and circumstances of the case the punishment of life imprisonment, rather than death would serve the ends of justice. He, however, made it clear that the appellant would not be released from prison till the end of his life. M. Katju J., on the other hand, took the view that the appellant deserved nothing but death. It is thus on the limited, though very important and intractable question of sentence that this appeal has come before us.

4. Shakereh, the deceased victim of the crime, came from a highly reputed and wealthy background. She was the grand daughter of Sir Mirza Ismail, a former Dewan of the Princely State of Mysore and the daughter of Mr. Ghulam Hussain Namaze and Mrs. Gauhar Taj Namaze. She held vast and very valuable landed properties in her own right. Among her various properties was a bungalow at No.81, Richmond Road, Bangalore, constructed over nearly 38000 square foot of land that 5 she had got in Hiba (oral gift) from her parent's side. Another was a large piece of land measuring 40,000 square foot on Wellington Street that she had got in dowry at the time of marriage. Shakereh was married to Mr. Akbar Khaleeli, a member of the Indian Foreign Service. They had four daughters from the marriage. Shakereh came to know the appellant, Murali Manohar Mishra who called himself Swamy Shraddananda, for the first time in 1983 when she and her family were visiting the erstwhile Nawab of Rampur in New Delhi. The appellant was introduced as someone who was looking after the Rampur properties and was said to be quite adept in managing urban landed estates. Shakereh, at that time was facing some difficulties under the urban land ceiling law and she asked the appellant to come over to Bangalore and help her in sorting out the problems concerning her properties. Soon thereafter Akbar Khaleeli was posted as a diplomat to Iran. In those days Iran was not a family-station for Indian diplomats and hence, he went alone leaving Shakereh behind in Bangalore. The appellant then came to Bangalore and started living in a part of her house, 81 Richmond Road, purportedly to assist in the proper management of her properties. Apparently, more than helping in property matters he worked on her suppressed though strong desire for a son and was able to convince her that with his occult powers he could make her beget a son. In 1985, Shakereh and Akbar Khaleeli got divorced. Shakereh then proceeded to marry the appellant. She paid no 6 heed to the opposition from family and friends and finally got married to the appellant on 17 April, 1986 under the Special Marriage Act and the marriage was registered at the Sub-Registrar's Office, Mayo Hall, Bangalore. After marriage they lived together at 81 Richmond Road. For domestic chores they engaged a couple, a man called Raju to work as gardener-cum handyman and his wife Josephine to work as maid servant. They lived in the servant's quarter of the bungalow.

5. The daughters from the first marriage were most of the time staying abroad.

6. After marriage Shakereh not only showered her love and affection on the appellant but also her material wealth. She executed a testamentary will in his favour besides a general Power of Attorney appointing him as her agent and attorney. She opened a number of bank accounts jointly with the appellant and also took several bank lockers in their joint names. They also started together a private company called S. S. Housing Private Limited of which they alone were the partners.

7. Notwithstanding her matrimonial adventures Shakereh's relations with her daughters and her parents continued to be more or less as before. They met from time to time and kept in touch by speaking on the telephone at regular intervals.

8. Then by the end of May 1991, Shakereh suddenly and mysteriously disappeared. She was last met by her mother Mrs. Gauhar 7 Namaze (examined before the trial court as PW-25) on 13 April, 1991. Her daughter, Sabah Khaleeli (examined as PW-5) last spoke to her on telephone on 19 April, 1991 and according to the two servants, Raju and Josephine (PWs-18 & 19 respectively), they last saw her in the company of the appellant in the morning of 28 May, 1991. Thereafter, Shakereh was not seen or spoken to by anyone. At that time she was about forty years old.

9. When Sabah did not receive any call from her mother nor was she able to get through to her on telephone she enquired about her from the appellant who said that she had gone to Hyderabad. In June 1991, when she contacted again he told her that her mother had gone to Kutch to attend the wedding of a wealthy diamond merchant. A week later he told her that Shakereh was keeping a low profile due to some income tax problems. Exasperated by the evasive and vague replies by the appellant, Sabah came down to Bangalore but found no trace of her mother in her house. The appellant then said that Shakereh was pregnant and she had gone to the United States of America to deliver the child. He also said that she had got herself admitted in Roosevelt Hospital. Sabah made enquiries and came to learn that Roosevelt Hospital records did not show admission of anyone by the name of Shakereh or matching her description. She confronted the appellant and accused him of giving false information about her mother. He tried to explain that Shakereh 8 had, in fact, gone to London but she wanted to keep her whereabouts confidential. However all stories fabricated by the appellant about her mother lay totally exposed to Sabah when she called on him in a hotel room in Bombay and chanced upon the passport of her mother lying around. A glance at the passport made it clear that its holder had not gone to the United States or the United Kingdom or as a matter of fact anywhere out of the country. At this stage, she came to Bangalore and lodged a written complaint at Ashok Nagar Police Station where it was registered on 10 June 1992 simply as a woman missing complaint bearing Cr.No.417/1992.

10. The search for the `missing' woman started in a rather lukewarm way but the appellant thought that the time had come to start covering his flanks. He went to the court seeking anticipatory bail. In the bail petition he declared his total innocence and stated that perennial litigation with close relations drove Shakereh to acute depression and in that state, while he was away from Bangalore, she left the house in a fit of anger without leaving any signs as to where she was headed. He was able to obtain anticipatory bail, initially on certain condition that was later on greatly relaxed.

11. The investigation by Ashok Nagar police station did not yield any results but the persistence of Sabah paid off. In March 1994, the Central Crime Branch (C.C.B.), Bangalore took over the investigation of the 9 complaint about the `missing' Shakereh. The case came under the charge of C. Veeraiah, CPI, CCB (PW 37) who, suspecting the role of the appellant in the disappearance of Shakereh, subjected him to close interrogation. Under intense interrogation the appellant broke down and owned up to having killed Shakereh. He narrated in detail the manner of her killing and disposing of her body. He stated that he put the body of Shakereh inside a large wooden box (that he had earlier got made for the purpose) and got the box dropped into a pit (that he had got specially dug up) in the grounds of 81 Richmond Road just outside their common bed- room. He then got the pit filled up by earth and the ground-surface cemented and covered up with stone slabs. He volunteered to take the Investigating Officer (IO) to the place and identify the exact spot where Shakereh lay buried inside the wooden box. The appellant made the following statement before the IO on 28 March 1994.

The IO then obtained an exhumation order from the Magistrate and after completing the other legal formalities, on March 30, 1994 brought the 10 appellant to 81 Richmond Road along with the exhumation team. They were taken by the appellant to the rear of the house passing through the dinning hall and the kitchen. The place was open to the sky but was enclosed on all the four sides by high walls; the floor was made of kadapa slabs cemented at the joints. The place had no other access apart from the entry through the kitchen. There the appellant identified the exact spot where the wooden box, with the body of Shakereh inside it, lay buried and marked it with a piece of chalk. The exhumation process started at 10.30 a.m. and the whole process was video graphed (as per MO18).

12. As pointed out by the appellant, first the stone slabs were removed and the cemented portion below the slabs was broken up. Then the ground below was dug up and sure enough a large wooden box was found lying deep under. The box had inside it, on top, a foam mattress, a pillow and a bed-sheet. Under the mattress was a skeleton with a sleeping gown around it. The bones had all become disjointed. The skeleton and the long hair tufts lying around the skull were taken out and the forensic experts rearranged the bones and also fixed the skull and the mandibles. There was no doubt that it was a human skeleton. Mrs. Gauhar Taj Namaze identified a red stone ring and two black rings found in the wooden box (that must have slipped down the fingers after the flesh decayed away) as belonging to her daughter Shakereh. The sleeping 11 gown that was around the skeleton was identified by the maid as belonging to her mistress Shakereh.

14. The skull along with an undisputed photograph of Shakereh was sent to the Forensic Science Laboratory for matching and identification by Photo Superimposition method. The skeletal remains were subjected to D.N.A. fingerprinting. Both the tests gave the same result and left no room for doubt that the skeleton was of Shakereh.

17. In all the meetings of the S. S. Housing Company, he represented the presence of Shakereh and signed the proceedings for himself and for her as holder of her General Power of Attorney. The proceedings of the meetings were regularly sent to their Chartered Accountant.

62. We also got some enquiries made on the issue of premature release of a life convict in the State of Bihar and came to learn that the process follows basically a similar pattern. In Bihar too the order for early release of a convicted prisoner is passed by the State Government in the Department of Law (Justice) on the basis of recommendations made by the Bihar State Sentence Remission Board. But there also the significant thing is the conversion of life imprisonment into imprisonment for a fixed term. In this regard the Government Letter No.A/PM-03/81-550 dated 21 January, 1984 was brought to our notice. The letter begins by stating the Government decision that for grant of remission to a life convict and for his release from prison, imprisonment for life will be deemed to be imprisonment for a term of 20 years. Then in paragraph 1 in the letter, in its original form it was stated that a life convict would not be entitled to the benefit of set off under Section 428 of the Code of Criminal Procedure, 1973 for the period of incarceration as an under trial. Paragraph 1 of the letter was, however, deleted by letter No. 3115 dated 23 May, 1985 following the decision of this Court in Bhagirath vs. 52 Delhi Administration (supra). Paragraph 2 of the letter as it originally stood stipulated that an accused who is given the punishment of imprisonment for life in a capital offence or whose death sentence is commuted to life imprisonment under Section 433 of the Code as well as an accused who was awarded life sentence after 18 December, 1978 would be released from prison (a) only on completion of 14 years of actual imprisonment; and (b) when the total period of their imprisonment and the days of remission add up to 20 years. Paragraph 2 of this letter too was later deleted by Government letter No. 2939, dated 29 June, 2007 that provided that the decision to release a convict undergoing life imprisonment for a capital offence or whose death sentence is commuted to life imprisonment would be taken by the State Government or by the State Sentence Remission Board constituted by the Government.

[Emphasis added] In the note, it is further stated that in the event the appellant's sentence is modified to life imprisonment, his case for premature release would come up before the Advisory Board in January 2009. The Board shall 51 then make its recommendation in light of the instructions contained in Chapter XLIV of the Karnataka Prisons Manual. The recommendation of the Board will be examined by the Head of the Department and thereafter the State Government will pass appropriate orders regarding commutation of his sentence.

The legal position as enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Mau Ram, Ratan Singh and Shri Bhagwan and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.

69. In conclusion we agree with the view taken by Sinha J. We accordingly substitute the death sentence given to the appellant by the trial court and confirmed by the High court by imprisonment for life and direct that he shall not be released from prison till the rest of his life.

70. This appeal stands disposed off with the aforesaid directions and observations.