VIKAS YADAV versus STATE OF U.P. AND ORS. ETC. ETC.
[2016] 8 S.C.R. 872, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Ratio
A 
B 
[2016] 8 S.C.R. 872 
VIKAS YADAV 
v. 
STATE OF U.P. AND ORS. ETC. ETC. 
(Criminal Appeal Nos. 1531-1533 of2015) 
OCTOBER 03, 2016 
[DIPAK MISRA AND C. NAGAPPAN, JJ.] 
Sentence/Sentencing: 
Fixed term sentence - Imposition of, permissibility - Held: It 
C is within the domain of judiciary to direct that convict shall suffer 
actual incarnation for a specific period- Fixed term sentence cannot 
be said to be unauthorised in law. 
Principle of sentencing - Held: The appellate court cannot 
impose a sentence beyond the competence of the trial court - If the 
D trial court has no jurisdiction to impose a particular sentence, the 
High Court as a "Court of error" cannot pass a different harsher 
sentence. 
Sentencing in multiple offences - Concurrent or consecutive 
- In the instant case, trial court imposed life sentence and directed 
E all the sentences to run concurrent - High Court declined to enhance 
the sentence from imprisonment for life to death, but imposed a 
fixed term sentence -
Whether a person sentenced to undergo 
imprisonment for life when visited with the 'term sentence' should 
suffer them consecutively or concurrently - Held: High Court did 
F not direct that the sentence u/ss.201134 !PC shall run first and, 
thereafter, the fixed term sentence will commence - As the High 
Court has not done it, it is held inappropriate in the appeal preferred 
by the appellants to do so - Therefore, sentence imposed for the 
offence punishable ulss.201134 !PC to run
concurrently with the 
sentence imposed for other offences by the High Court """' Penal 
G Code, 1860 - ss.201134. 
H 
Fixed term sentence - lmpositio11 of - Honour killing - Nitish 
Katara case - High Court imposed a fixed term sentence i.e. 25 
years for offence uls.302 !PC -Appellant's plea that the court can 
either impose sentence of imprisonment for life or sentence of death 
872
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
873 
but it is not permissible to impose any other fixed term sentence -
A 
Held: The circumstantial evidence by which the crime was 
established, clearly led to one singular conclusion that the anger 
of the accused persons on the involvement of the sister with the 
deceased, was the only motive behind crime - Crime was committed 
in planned and cold blooded manner with a motive that emanated B 
from unwarranted superiority based on caste feeling that blinded 
the thought of choice available to a sister - The factum of "honour 
killing" was a seminal ground for imposing the fixed term sentence 
of twenty-five years for the offences under ss.302134 !PC on the 
two accused persons, who though highly educated had not 
cultivated the ability to abandon the depricable feelings and attitude 
C 
prevailing for centuries - Even after murdering the victim-deceased, 
the accused displayed their vengeance by destroying the body of 
the deceased which demonstrated the criminal tendency for they 
had neither respect for human life nor any concern for the dignity 
of a dead person - The brutality displayed by accused persons D 
clearly exposed depraved state of mind - Imposition of fixed term 
on appellants cannot be found fault with. 
Code of Criminal Procedure, 1973: s.433-A - Exercise of 
power under, scope - Held: Statutory power uls. 433-A can be 
curtailed when the Court is of the considered opinion that the fact 
situation deserves
a sentence of incarnation which be for a fixed 
E 
term so that power of remission is not exercised - Sentence/ 
Sentencing. 
Constitution of India: Arts. 71and161 -Judicial review, scope 
- Held: The courts cannot embark 11pon the power to be exercised 
by the Executive Heads of the State under Art. 71 and Art.161 of the 
F 
Constitution. 
Disposing of the appeals, the Court 
HELD: 1.1. Though the power exercised under Article 71 
and Article 161 of the Constitution is amenable to judicial review 
G 
.in a limited sense, yet the Court cannot exercise such power. 
Section 433-A CrPC empowers the executive to grant remission 
after expiry of 14 years. The statutory power under Section 433-
A can be curtailed when the Court is of the considered opinion 
that the fact situation deserves a sentence of incarceration which 
H
874 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
be for a fixed term so that power of remission is not exercised. 
There are many an authority to support that there is imposition 
of fixed term sentence to curtail the power of remission and scuttle 
the application for consideration of remission by the convict. It is 
because in a particular fact situation, it becomes a penological 
necessity which is permissible within the concept of maximum 
and the minimum. There is no dispute over the maximum, that 
is, death sentence. 
· The court, as in the case at hand, when 
dealing with an appeal for enhancement of sentence from 
imprisonment of life to death, can definitely say that the convict 
shall suffer actual incarceration for a specific period. It is within 
the domain of judiciary and such an interpretation is permissible. 
The Court cannot grant a lesser punishment than the minimum 
but can impose a punishment which is lesser than the maximum. 
[Para 35][905-F-H; 906-A-C] 
1.2. The fixed term sentence cannot be said to be 
unauthorized in law. Section 302 IPC authorizes imposition of 
death sentence. The minimum sentence is imprisonment for life 
which means till the entire period of natural life of the convict is 
over. That remains in a different sphere and it has its independent 
legal sanctity. 
The executive has been granted power by the 
legislature to grant remission after expiry of certain period. The 
court could have imposed the death
sentence. However, in a 
case where the court does not intend to impose a death sentence 
because of certain factors, it may impose fixed term sentence 
keeping in view the public concept with regard to deterrent 
punishment. 
It really adopts the view of "expanded option", 
lesser than the maximum and within the expanded option of the 
minimum, for grant of remission docs not come in after expiry of 
14 years. It strikes a balance regard being had to the gravity of 
the offence. [Para 40)(911-F-H; 912-A-B] 
Union of India v. V. Sriharan alias Murugan and others 
(2016) 7 sec 1 - followed. 
2. The appellate court cannot impose a sentence beyond 
the competence of the trial court. If the trial court has no 
jurisdiction to impose such a sentence, the High Court as a 
"Court of error" cannot pass a different harsher sentence. But 
in the case at hand, the appellants were convicted under section
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
875 
302 IPC and the trial court could have been impose the sentence A 
of death. [Para 50][919-D-E] 
Jashubha Bharatsinh Gohil and others v. State of 
Gujarat (1994) 4 SCC 353 - relied on. 
Jagat Bahadur v. State of Madhya Pradesh AIR 1966 
SC 945: 1966 SCR 822; 
Shankar Kerba Jadhav and 
others v. The State of Maharashtra AIR (1971) SC 840: 
1970 (2) SCR 227; A.R. Antulay v. R.S. Naik and 
another (1988) 2 SCC 602: 1988 (1) Suppl. SCR 1 -
held inapplicable. 
3. The crime was committed in a planned and cold blooded 
manner with the motive that has emanated due to feeling of some 
kind uncalled for and unwarranted superiority based on caste 
feeling that has blinded tpe thought of "choice available" to a 
sister - a representative of women as a class. The High Court in 
B 
c 
its judgment of conviction has unequivocally held that it is a D 
"honour killing" and the said findings apart from being put to 
rest, also gets support from the evidence brought on record. The 
circumstantial evidence by which the crime was established, 
clearly led to one singular conclusion that the anger of the brother 
on the involvement of the sister with the deceased, was the only 
motive behind crime. The High Court treated the murder as 
E 
"honour killing", yet regard being had to other factors did not 
think appropriate to impose extreme penalty of death sentence. 
The factum of"honour killing" was a seminal ground for imposing 
the fixed term
sentence of twenty-five years for the offences under 
section 302/34 IPC on the two accused persons, who though 
highly educated in good educational institutions, had not cultivated 
the ability to abandon the depricable feelings and attitude for 
centuries. The High Court also took note of the impact of post-
offence events and observed that the deceased was burnt to such 
a point that his own mother could only suggest the identification 
from the small size of one unburnt palm with fingers of the hand 
that the body appeared to be that of her deceased son. The 
identification had to be confirmed by DNA testing. While imposing 
F 
G 
the sentence, the High Court was compelled to observe that the 
magnitude of vengeance of the accused and the extent to which 
they had gone to destroy the body of the deceased after his murder H
876 
SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
A shows the brutality involved in the crime and the maladroit efforts 
that were made to destroy the evidence. The evidence on record 
as well as the analysis made by the High Court demonstrate the 
criminal proclivity of the accused persons, for they have neither 
the respect for human life nor did they have any concern for the 
B dignity of a dead person. They had deliberately comatosed the 
feeling that even in death a person has dignity and when one is . 
dead deserves to be treated with dignity. That is the basic human 
right. The brutality that has been displayed by the accused 
persons clearly exposes the depraved state of mind. [Paras 61, 
c 
D 
E 
F 
66 and 69][925-E-F; 928-G-H; 929-A, E-H; 930-A] 
Lata Singh v. State of U. P. and another (2006) 5 SCC 
475: 2006 (3) 
Suppl. SCR 350; Maya Kaur 
Baldevsingh Sardar and another v. 
State of 
Maharashtra (2007) 12 SCC 654: 2007 (10) SCR 752; 
Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC 
405: 2011 (5) SCR 488; Bha?;J11an Dass 1( State (NCT 
of Delhi) (2011) 6 sec 396: 2011 (6) scR 330 -
relied on. 
Shankar Kisanrao Khade v. State of Maharashtra 
(2013) 5 SCC 546: 2013 (6) SCR 949; Oma alias 
Omprakash and another v. State of Tamil Nadu (2013) 
3 SCC 440: 2012 (13) SCR 740; Mohd. Farooq Abdul 
Gafur and another v. State of Maharashtra (2010) 14 
SCC 641: 2009 (12) SCR 1093; Mohinder SinRh" State 
of Punjab (2013) 3 SCC 294: 2013 (3) SCR 90; 
Mangesh v. State of
Maharashtra (2011) 2 SCC 123: 
2011 (1) SCR 72 - referred to. 
4. The conduct during the trial was also emphasized by the 
High Court because it is not an effect to protect one-self, but the 
arrogance and the impunity shown in which they set up false 
defense and instilled shivering fear in the mind of witnesses with 
G the evil design of defeating the prosecution case. In fact, as was 
recorded by the High Court, the public prosecutor was also not 
spared. The factum of abscondance and non-cooperation with 
the investigating team and also an maladroit effort to mislead the 
investigators were treated as aggravating circumstances. [Para 
H 70][930-A-CJ
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
Praveen Kumar v. State of Karnataka (2003) 12 SCC 
199; Yakub Abdul Razak Memon v. 
State of 
Maharashtra (2013) 13 SCC 1: 2013 (15) SCR 1; 
Sidhartha Vashisht alias Manu Sharma v. State (NCT of 
Delhi) (2010) 6 SCC 1: 2010 (4) SCR 103 - relied 
on. 
877 
A 
B 
5. The High Court, while dealing with two accused opined 
that. they had misused the process of law while in jail and in their 
conduct there is no sign of any kind of remorse or regret. Thus, 
the imposition of fixed term sentence on the appellants by the 
High Court cannot be found fault with. The sentence imposed for 
the offence punishable under Section 201/34 IPC shall run C 
concurrently with the sentence imposed for other offences by 
the High Court. [Paras 74, 74A and 78)[932-D, F; 934-G-H] 
Maru Ram v. Union of India and others (1981) 1 SCC 
107; Guru Basavaraj ,. State of Karnataka (2013) 7 
sec 545 - relied on. 
K.M Nanavati v. State of Bombay AIR 1961 SC 112: 
1.961 SCR 497; Sarai Chandra Rabha and others v. 
Khagendranath Nath and others AIR 1961 SC 334: 
1961 SCR 133; Sahib Hussain alias Sahib Jan v. State 
of Rajasthan (2013) 9 SCC 778: 2013 (2) SCR 1019; 
Gurvail Singh alias Gala v. State of Punjab (2013) 10 
SCC 631; Muthuramalingam & Ors. v. State represented 
by Insp. of Police 2016 (7) SCALE 129; Union of India 
v. V. Sriharan alias Murugan and others (2014) 11 SCC 
1; Sli•a111y Shraddananda (2) v. State of Maharashtra 
(2008) 13 SCC 767: 2008 (11)
SCR 93; Gopal Vinayak 
Godse v. State of Maharashtra and others AIR 1961 
SC 600: 1961 SCR 440; State of Madhya Pradesh v. 
Ratan Singh and others (1976) 3 SCC 470: 1976 (0) 
Suppl. SCR 552; Ashok Kumar alias Golu v. Union of 
India and others (1991) 3 SCC 498: 1991 (2) SCR 
858; Bhagirath v. Delhi Administration (1985) 2 SCC 
580: 1985 (3) SCR 743; Bachan Singh v. State of ,f 
Punjab (1980) 2 SCC 684; Machhi Singh and others 
v. State of Punjab (1983) 3 SCC 470: 1983 (3) SCR 
413; Jagmohan Singh v. State of U.P. (1973) 1 SCC 
D 
E 
F 
G 
H
878 
A 
B 
c 
D 
E 
F 
G 
H 
1961 
SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
20: 1973 (2) SCR 541; Sohan Lal v. Asha Ram and 
others (1981) 1 SCC 106; Zahid Hussein and others v. 
State of W.B. and another (2001) 3 SCC 750: 2001 (2) 
SCR 442; State of Gujarat & Anr. v. Lal Singh@ Manjit 
Singh & Ors. AIR 2016 SC 3197:2016 (6) SCALE 
105; Kehar Singh and another v. Union of India and 
another (1989) 1 SCC 204:1988 (3) Suppl. SCR 1102; 
Epuru Sudhakar and another v. Govt. of A.P. and others 
(2006) 8 sec 161:2006 (7) Suppl. SCR 81; Shri 
Bhagwan v. State of Rajasthan (2001) 6 SCC 296: 2001 
(3) SCR 656; Prakash Dhm1,al Khairnar (Patil) l( State 
of Maharashtra (2002) 2 SCC 35:2001 (5) Suppl. 
SCR 612; Ram Anup Singh and others v. State of Bihar 
(2002) 6 SCC 686; Nazir Khan and others vs. State of 
Delhi (2003) 8 sec 461: 2003 (2) Suppl. SCR 884; 
Haru Ghosh v. State of West Bengal (2009) 15 SCC 
551: 2009 (13) SCR 847; Ramraj v. State of 
Chhattisgarh (2010) 1 SCC 573: 2009 (16) SCR 367; 
Neel Kumar alias Anil Kumar v. State of Haryana 
(2012) 5 SCC 766: 2012 (5) SCR 696; Sandeep v. 
State of U.P. (2012) 6 SCC 107: 2012 (5) SCR 952; 
State of Uttar Pradesh. v. Sanjay Kumar 2012 8 SCC 
537: 2012 (7) SCR 359; Fibre Boards Private Limited, 
Bangalore v. Commissioner of Income-Tax, Bangalore 
Mamleshwar Prasad v. Kanhaiya Lal (1975) 2 SCC 232: 
1975 (3) SCR 834; State of U.P. and another v. 
Synthetics and Chemicals Ltd. and another (1991) 4 
SCC 139; State of Orissa v. MA. Tulloch
and Co. (1964) 
4 SCR 461; Synthetics and Chemicals Ltd. and others 
v. State of U.P. and others (1990) 1 SCC 109: 1989 (1) 
Suppl. SCR 623 - referred to. 
Case Law Reference 
SCR 497 
referred to 
Para 9(vi) 
1961 SCR 133 
referred to 
Para 9(vi) 
(2016) 1 sec 1 
followed 
Para 9(vi) 
2013 (2) SCR 1019 
referred to 
Para 9(vii)
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
879 
(2013) 10 sec 631 
referred to 
Para 9(vii) 
A 
1966 SCR 822 
held inapplicable 
Para 9(vii) 
1970 (2) SCR 227 
held inapplicable 
Para 9(vii) 
1988 (1) Snppl. SCR 1 
held inapplicable 
Para 9(viii) 
2016 (7) SCALE 129 
referred to 
Para 9(ix) 
B 
(2014) 11 sec 1 
referred to 
Para 17 
2008 (11) SCR 93 
referred to 
Para 17 
<1?81) 1 sec 101 
relied on 
Para 18 
1961 SCR 440 
referred to 
Para 18 
c 
1976 (0) Suppl. SCR 552 
referred to 
Para 18 
1991 (2) SCR 858 
referred to 
Para 18 
1985 (3) SCR 743 
referred to 
Para 18 
(1980) 2 sec 684 
referred to 
D 
Para 24 
1983 (3) SCR 413 
referred to 
Para 24 
1973 (2) SCR 541 
referred to 
Para24 
(1981) 1 sec 106 
referred to 
Para 32 
E 
2001 (2) SCR 442 
referred to 
Para32 
2016 (6) SCALE 105 
referred to 
Para32 
1988 (3) Suppl. SCR 1102 
referred to 
Para33 
2006 (7) Suppl. SCR 81 
referred to 
Para33 
F 
2001 (3) SCR 656 
referred to 
Para42 
2001 (5) Suppl. SCR 612 
referred to 
Para 42 
(2002) 6 sec 686 
referred to 
Para 42 
2003 (2) Suppl. SCR 884 
referred to 
Para42 
G 
2009 (13) SCR 847 
referred to 
Para 42 
2009 (16) SCR 367 
referred to 
Para 42 
2012 (5) SCR 696 
referred to 
Para 42 
H
880 
SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
A 2012 (5) SCR 952 
referred to 
Para 42 
2012 (7) SCR 359 
referred to 
Para 44 
(1994) 4 sec 353 
relied on. 
Para47 
2015 (8) SCR 906 
referred to 
Para 51 
B 
1975 (3) SCR 834 
referred to 
Para 51 
(1991) 4 sec 139 
referred to 
Para 51, 52 
(1964) 4 SCR 461 
referred to 
Pant 51 
1989 (1) Suppl. SCR 623 
referred to 
Para 52 
c 2013 (6) SCR 949 
referred to 
Para 58 
2012 (13) SCR 740 
referred to 
Para 58 
2009 (12) SCR 1093 
referred to 
Para 58 
2013 (3) SCR 90 
referred to 
Pa1·a 58 
D 2011 (1) SCR 72 
referred to 
Para 58 
2006 (3) Suppl. SCR 350 
relied on 
Para 62 
2007 (10) SCR 752 
relied on 
Para 63 
E 
2011 (5) SCR 488 
relied on 
Para 64 
2011 (6) SCR 330 
relied on 
Para 65 
(2003) 12 sec 199 
relied on 
Para 70 
2013 (15) SCR 1 
relied on 
Para 70 
F 
2010 (4) SCR 103 
relied on 
Para 71 
(2013) 1 sec 545 
relied on 
Para 70A 
CRIMINAL APPLLLATE JURISDICTION: Criminal Appeal 
Nos. l531-1533of2015. 
G 
From the Judgment and Order dated 02.04.2014 of the High Court 
of Delhi at New Delhi in Criminal Revision Petition No. 369 of2008. 
WITH 
Crl.A. Nos. 1528-15300F 2015. 
U. R. Lalit, Shekhar Naphade, Atul Nanda, Sr. Advs., Kanhaiya 
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
881 
Singhal, Ms. Vani Singhal, Mehul Sharma, Prasanna, Siddhanta Mittal, 
A 
Sachin Agarwal, Chaman Sharma, Surender Dhaka, Ms. Usha Nandini 
V., Ad vs. for the Appellant. 
Dayan Krishnan, Sr. Adv., Ms. Aparajita Singh, Karan Lahiri, 
Manmeet Singh Gulati, Ms. B. Vijayalakshmi Menon, Rajesh Mahajan, 
Peeyush Bhatra, Ms. Aakashi Lodha, Ms. Manvi Priya, Chi rag M. Shroff, 
B 
Advs. for the Respondents. 
The Judgment of the Court was delivered by 
DIPAK MISRA, J. 1. The appellants in this batch of appeals 
stand convicted forthe offences under Sections 302, 364, 20 I read with 
Section 34 of the Indian Penal Code (!PC). This Court while hearing the 
C 
special leave petitions on 17.08.2015 had passed the following order:-
"Delay condoned. 
Having heard learned senior counsel for the petitioners at 
great length, we are of the view, that the impugned orders 
call for no interference whatsoever insofar as the conviction 
of the petitioners is concerned. The conviction of the three 
petitioners, as recorded by the courts below, is accordingly 
upheld. 
Issue notice, on the quantum of sentence, returnable after · 
six weeks." 
2. On 16.06.2015 leave was granted. Thus, we are only concerned 
with the legal defensibility and the justifiability of the imposition of 
sentence. 
3. The arguments in these appeals commenced on .issues of law. 
D 
E 
F 
Mr. U.R. Lalit and Mr. shekhar Naphade. learned senior counsel 
appearing for the
appellant in Criminal Appeal Nos. 1531-1533of2015 
and Mr. Atul Nanda, learned senior counsel app..:aring for the appellant 
G 
in Criminal Appeal Nos. 1528-1530of2015 questioned the propriety of 
the sentence as the 1-ligh Court has imposed a fixed term sentence, i.e., 
25 years for the offence under Section 302 IPC and 5 years for offence 
under Section 201 JPC with the 5tipulation that both the sentences would 
run consecutively. It is apt to note here that separate sentences have 
1-1 .
882 
SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
A 
been imposed in respect of other offences but they have been directed 
to be concurrent. After advancing the arguments relating to the jurisdiction 
of the High Court as well as this Court on imposition of fixed term/ 
period sentence, more so when the trial court has not imposed death 
sentence, the learned counsel argued that the factual score in the instant 
B 
c 
case did not warrant such harsh delineation as a consequence 
disproportionate sentences have been imposed. 
4. Keeping in view the chronology of advancement of arguments, 
we think it apt to deal with the jurisdictional facet. Ifwe negative the 
proposition advanced by the learned counsel for the appellants, then 
only we shall be required to proceed to deal with the facts as requisite to 
be stated for the purpose of adjudicating the justifiability of imposition of 
such sentence. If we accede to the first submission, then the second 
aspect would not call for any deliberation. At this juncture, it is necessary 
to state that the learned trial judge by order dated 30.05.2008 sentenced 
0 
Vikas Yadav and Vishal Yadav to life imprisonment as well as fine of 
one lakh each under Section 302 IPC and, in default of payment of fine, 
to undergo simple imprisonment for one year. They were sentenced to 
undergo simple imprisonment forten years and fine of Rs. 50,000/-each 
fortheir conviction under Section 364/34 IPC, in default to undergo simple 
E 
F 
G 
imprisonment
for six months and rigorous imprisonment for five years 
and fine of Rs. 10,000/- each under Section 201/34 !PC, in default, simple 
imprisonment for three months. All sentences were directed to run 
concurrently. 
Sukhdev Yadav @ Pehalwan who was tried separately 
because of his abscondence in SC No. 76 of2008 was convicted for the 
offences under Sections 302/364/34 IPC and Section 201 and by order 
dated 12.07.2011, he was sentenced to undergo life imprisonment and 
fine of Rs. 10,000/- for commission of the offence under Section 302 
IPC, in default, to undergo rigorous imprisonment for two years; rigorous 
imprisonment for seven years and fine of Rs. 5,000/- for commission of 
the offence under Section 364 IPC, in default, to suffer rigorous 
imprisonment for six months; rigorous imprisonment for three years and 
fine ofRs. 5,000/- for his conviction under Section 201 IPC, in default, 
to undergo further rigorous imprisonment for six months. All sentences 
were directed to be concurrent. 
5. Be it noted, the prosecution,- State ofNCT of Delhi preferred 
H 
an appeal under Section 377 CrPC for enhancement of sentence of
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
883 
[DIPAK MISRA, J.] 
imprisonment of life to one of death for the offence under Section 302 
A 
IPC. The High Court addressed to number of issues, namely, (a) statutory 
provisions and jurisprudence regarding imposition of the death penalty; 
(b) death sentence jurisprudence - divergence in views; (c) life 
imprisonment- meaning and nature of; ( d) the authority of the judiciary 
to regulate the power of the executive to remit the sentence or to put in 
B 
other words jurisdiction of the court to direct minimum term sentence in 
excess of imposition of 14 years; ( e) ifthere are convictions for multiple 
offences in one case, does the court have the option of directing that the 
sentences imposed thereon shall run consecutively and not concurrently; 
(f) honour killing-whether penalty of only the death sentence; (g) contours 
of the jurisdiction of the High Court to.enhance a sentence imposed by 
C 
the trial court and competency to pass orders under Section 357 of the 
CrPC in the appeal by the State or revision by a complainant seeking 
enhancement of sentence; (h) sentencing procedure and pre-sentencing 
hearing nature of; (i) concerns for the victims - award of compensation 
to heal and as a method ofreconciling victim to the offender; (j) State's D 
liability to pay compensation; (k) fine and compensation - constituents, 
reasonability and adequacy; (I) sentencing principles; (m)jurisdiction of 
the appellate court
while considering a prayer for enhancement of the 
sentence; (n) if not death penalty, what would be an adequate sentence 
in the present case; and ( o) what ought to be the fitnes in the present 
case. 
6. Apart from the said aspects, the High Court also addressed to 
certain aspects which are specific to the case at hand to which we will 
advert to at a later stage. 
7. The High Court, after addressing the aspects which we have 
catalogued and some other fact specific issues, imposed the following 
sentences:-
"881. In view of the above discussion, we modify and enhance 
E 
F 
the sentence imposed by the judgments dated 30111 May, 2008 upon the G 
defendants Vikas Yadav, Vishal Yadav and 12m July, 2011 upon Sukhdev 
Yadav and direct that they shall be liable to undergo the following 
· sentences :-
H
884 
SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
A 
(I) 
For 
Sentencesa-wardedto 
Sentence awarded to 
commission 
each ofVikas Yadav & 
Sukhdev \'adav 
B 
of offences 
Vishal Yadav 
uuder 
Section 
Life imprisonment which 
Life imprisonment 
302i34 IPC 
shall be 25 years of actual 
which shall be 20 years 
imprisonment wid1out 
of actual imprisonment 
consideration of remission, 
without consideration 
c 
and fine ofRs. 501akh each of remission, and fine 
of Rs.I 0,000!-
Upon default in payment of Upon default in 
fine, they shall be liable to 
payment of fine, he 
undergo rigorous 
shall be liable to 
imprisonment of3 years. 
undergo simple 
imprisonment for one 
D 
month. 
Section 
Rigorous imprisonment for 
10 years rigorous 
364/34 IPC 
l 0 years with a fine ofRs.2 imprisonmentwith fine 
lakh each 
ofRs.5,00Q-
E 
Upon detaultinpajmentof Upon defaultin 
. 
fine, they shall be liable to 
payment oftine, he 
undergo rigorous 
shall be liable to 
imprisonment for 6 months 
undergo simple 
imprisonment for 15 
days 
F 
Section 
Rigorous imprisonment for 
5 years rigorous 
201.34 IPC 
5 years and a fine Rs.2 lakh imprisonment with fine 
each 
ofRs.5,0001-
Upon default in payment of Upon default in 
fine, they shall be liable to 
payment of fine, he 
undergo rigorous 
shall be liable to 
imprisonment for 6 months 
undergo simple 
G 
imprisonment for 15 
days 
H
VIK.AS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
885 
fDIPAK MISRA, J.l 
(II) It is directed that the sentences for conviction of the offences. A 
under Section 302/34 and Section 364/34 IPC shall run concurrently. 
The sentence under Section 201/34 IPC shall run consecutively to·the 
other sentences for the discussion and reasons in paras 741to745 above. 
(III) The amount of the fines shall be deposited with the trial . 
court within a period of six months from today. 
B 
(IV) We further direct that the fine amounts of Rs.50,00,000/-
of each ofVikas Yadav and Vishal Yadav when deposited with the trial 
court, are forthwith disbursed in the following manner: 
(i) 
(ii) 
To the Government of Uttar 
Pradesh towards investigation, 
prosecution and defence of the 
cases 
with 
regard 
to 
FIR 
No.192/2002 P.S. Ghaziaboo. 
To the Govermnent of NCT of 
Delhi tow.irds prosecution, filing 
and 
defence 
of 
litigation, 
administration of courts and 
witness protection with regard to 
FIR 
No.192/2002 
P.S. 
Ghaziabad 
(iii) To Nilam Katara towards the 
costs incurred by her in pursuing 
the matter, filing petitions and 
applications as well as defending 
all 
cases 
after 
16th! 1 7th 
Februazy, 2002 with regard to 
FIR No.192/2002 in all courts. 
Rs.5,00,000/- from 
the deposit of the 
fine of each of the 
defendants 
Rs25,00,000/-
from the deposit of 
the fine of each of 
the defendants 
Rs20,00,000/-
from the deposit of 
the fine of each of 
the defendants 
c 
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F 
(V)
Amount of fines deposited by Sukhdev Yadav and other fines 
deposited by Vikas Yadav and Vishal Yadav shall be forwarded to the 
G 
Delhi Legal Services Authority to be utilised under the Victims 
Compensation Scheme. 
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A 
(VI) In case an application for parole or remission is moved by 
the defendants before the appropriate government, notice thereof shall 
be given to Nilam Katara as well as Ajay Katara by the appropriate 
government and they shall also be heard with regard thereto before 
passing of orders thereon. 
B 
(VII) So far as Vikas Yadav is concerned, we also issue the 
following directions: 
(i) The period for the admission in AIIMS from I O•h October, 2011 
to 41h November, 2011 (both days included) shall not be counted as a 
period for which he has undergone imprisonment. His records and nominal 
c rolls shall be accordingly corrected by the jail authorities. 
D 
E 
(ii) Vikas Yadav shall make payments of the following amounts to 
the Government ofNCT of Delhi: 
(i) 
Amounts paid to AIIMS 
Rs.50, 750!-
(ii) 
Towards security 
Rs.l ,20,0121-
deploymcm duri112 AIIMS 
(iii) OPDvisits 
Rs.50,000i-
(iv) Taxi fare 
Rs.18,5001-
Total : 
Rs.2,39,262/-
(VIII) So far as Vishal Yadav is concerned, we direct as 
hereafter :-
(i) The periods of the admissions in the Batra Hospital totalling 
F 
320 days [32 days (from 7•h July, 2008 to 7'h August, 2008); 24 days 
(from 14'h August, 2008 to 61h September, 2008), 53 days (241h October, 
2008 to 1 sm December, 2008); I 00 days (from 25th February, 2009 to 61h 
June, 2009); 71 days (from 7•h October, 2009 to 16'11 December, 2009); 
36 days (from 29th September, 20 I 0 to 3n1 November, 20 I 0); 
4
days 
(from J 4•h October, 2011 to J 7•h October, 2011 )] shall not be counted as 
G a period which he has undergone imprisonment. His records and nominal 
rolls shall be accordingly corrected by the jail authorities. 
H 
(ii) Vishal Yadav shall make payments of the following amounts 
to the Government ofNCT of Delhi:
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
887 
fDIPAK MISRA, J.l 
A 
(i) 
Provision of secunty dunng 
Rs.14,75,184/-
the above seven hospital 
admissions post conviction 
(ii) 
During OPD hospital visits 
Rs.50,000i-
(iii) Post conviction visits on taxi 
Rs.14, 700/-
fare 
B 
Total 
: 
Rs.15,39,884/-
(IX) The amounts directed to be paid by Vishal Yadav and Vikas 
Yadav at Sr. Nos.(Vl) and (VII) above shall be deposited within four 
C 
months of the passing of the present order. 
(X) In the event of the failure to deposit the amount as directed at 
Sr. Nos.(Vl), (VII) and (VIII), the defaulting defendant (Vikas Yadav 
and Vishal Yadav) shall be liable to undergo rigorous imprisonment of 
one year. It is made clear that these direc.tions are in addition to the 
D 
substantive sentences imposed upon them." 
8. We think it appropriate to deal with the aspect of legal 
pennissibility of the imposition of sentence first as the learned senior 
counsel appearing for the appellants had argued quite astutely with regard 
to the non-acceptability of such fixed term sentences and other facets 
E 
relating to it. After we answer the said issue, if needed, we shall dwell 
upon the sustainability and warrantableness of the sentences in the facts 
of the case. 
9. Learned senior counsel for the appellants have advanced the 
following propositions to bolster the first stand:-
F 
(i) When the Indian Penal Code provides for only two punishments, 
i.e., imprisonment for life or death,
the court by judge-made law cannot 
introduce a third category of punishment. 
(ii) The prescription of third category of punishment is contrary to 
Sections 28 and 386 CrPC and Section 302 IPC. 
G 
(iii) Prescription of sentence is within the domain of the legislature 
and the court can only impose such sentence what has been provided 
for by the legislature and not invent one. 
(iv) Wherever the legislature has thought it appropriate, it has 
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SUPREME COURT REPORTS 
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provided sentences by providing certain years, such as, offences 
punishable under Sections 376A, 3760 and 392 IPC; Section 20 of the 
Narcotic Drugs and Psychotropic Substances Act, 1985; and when it is 
· not provided for in the IPC in respect of Section 302 IPC, the court 
cannot impose a third category of sentence as that would tantamount to 
legislation by the judiciary. 
(v) When the court imposes a third category of sentence, there is 
either express or implied direction for not granting the remission as 
provided under Section 433-A after expiry of 14 years which is legally 
not permissible inasmuch as this Court in exercise of power under Article 
142 of the Constitution cannot direct a statutory provision to be kept in 
abeyance as a mode of sentencing structure. 
(vi) The Constitution Bench decisions in K.M. Nanavati v. State 
of Bombay' and Sarai Cltandra Rab//(/ mu/ otlters v. K/l(lgem/ranatlt 
Nath and others1 have not been considered by the majority in Union of 
India v. V. Sriltaran alias Murugm1 and others' and it, therefore, 
requires reconsideration. 
(vii) When the trial court has imposed the life sentence and the 
question of commutation does not arise, as a logical corollary, imposition 
of fixed term sentence is impermissible as has been held in Sahib 
Hussain alias Saftib Jan v. State of Rajastlta11• and Gurvail Singh 
alias Gala v. State of Punjab5• In essence, in the absence ofa
death 
sentence, a fixed term sentence cannot be imposed. The appellate court, 
assuming has the authority, can impose only such sentence which could 
have been imposed by the trial court as has been clearly held in Jagat 
Bahadur v. State of Madltya Pradesil6 and in S/umkar Kerba Jad/l(lv 
and others v. Tiie State of Mallarashtra 7• 
(viii) The Court when imposes sentence by saying "fixed term 
sentence", it takes away the power of the executive which is 
constitutionally not permissible as per the pronouncements in K.M. 
Nanavati (supra), Sarai Clumdra Rabfl(I (supra) and A.R. A11tu/ay 
v. R.S. Naik mu/ a11otlter8 • 
I AIR 1961 SC 112 
2 AIR 1961SC334 
3 (2016)7SCC I 
• (2013) 9 sec 118 
'(2013) 10 sec 631 
6 AIR 1966 SC 945 
7 AIR 1971SC840 
• (1988) 2 sec 602
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
889 
[DIPAK MISRA, J.] 
(ix) There is remotely any warrant to direct the sentence for life 
A 
and sentence imposed under Section 20 I !PC to run consecutively, and 
it is a palpable error which cannot be countenanced, and in fact, it runs 
counter to the Constitution Bench decision in Mutltummali11gam & 
Ors. v. State represented by Insp. of Police9• 
(ix) The High Court has fallen into grave error by imposing 20 
B 
years of sentence on Sukhdev Yadav, whereas Vikas Yadav and Vishal 
Yadav had been sentenced for 25 years which demonstrates total non-
application of mind. 
(x) The issue of enhancement of sentence and fixed term was 
not referred to the Constitution Bench but the Constitution Bench has c 
dealt with the same and, therefore, the decision in V. Srilwrm1 (supra) 
suffers from impropriety. 
10. Mr. Dayan Krishnan, learned senior counsel appearing for 
the State ofNCT Delhi, in his turn, submits that the judgment rendered 
by the Constitution Bench in V. Srilwrm1 (supra) is absolutely correct 
D 
and is a binding precedent from all spectrums and does not require 
reconsideration. Learned senior counsel further argued that the judgment 
rendered by the Constitution Bench does not run counter to the principles 
set out in the earlier two judgments in K. Nmwvati (supra) and Slta11kar 
Kerba Jadltav (supra) because the said judgments have been rendered 
in altogether different contexts and the opinion expressed therein
has to 
E 
be understood regard being had to the factual score that arose therein. 
According to the learned counsel for the State, the constitutional courts 
have power to pass fixed term sentence in the interest of justice. 
Defending the imposition of sentence in the case, Mr. Krishnan would 
submit that when the State had preferred an appeal for enhancement of F 
sentence, i.e., from imprisonment oflife to death sentence, the decision 
of the High Court is absolutely flawless. It is argued by him that the 
direction for the life sentence and the sentence imposed under Section 
20 I IPC to be consecutive and not to run concurrently cannot be found 
fault with as the High Court has ascribed adequate reasons for the same 
and it is in consonance with the principle stated in Mutlluranutfingam 
G 
(supra) and ifthere is any deviation therein, the same can be rectified by 
this Court. 
11. Ms. Aparajita Singh, learned counsel appearing for the 
'2016 (7) SCALE 129 
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SUPREME COURT REPORTS 
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infonnant, supported the stand of the State and emphasized that in a 
crime of honor killing stringent punishment deserves to be imposed. 
12. Presently, we shall proceed to deal with the contentions, and 
we make it clear the delineation thereof shall not be in strict seriatim as 
the contentions in a way overlap. Section 28 CrPC reads as follows:-
"28. Sentences wliicli Higli Courts and Sessions Judges 
may pass.-
( 1) A High Court may pass any sentence authorised by 
law. 
(2)A Sessions Judge or Additional Sessions Judge may pass 
any sentence authorised by law; but any sentence of death 
passed by any such Judge shall be subject to confirmation 
by the High Court. 
(3) An Assistant Sessions Judge may pass any sentence 
authorised by law except a sentence of death or of 
imprisonment for life or of imprisonment for a term 
exceeding ten years." 
13. The submission of the learned senior counsel for the appellants 
is that the High Court can pass any sentence "authorised by law" and a 
Sessions Judge or an Additional Sessions Judge may pass any sentence 
authorised by law but for any sentence of death passed by any such 
Judge shall be subject to confirmation by the High Court and, therefore, 
no court can.impose a sentence ifit is not authorised by law. The fulcrum 
of the submission is that the said provision is substantive in nature and it 
is not in the realm of adjective law. In this context, our
attention has 
been drawn to Section 386 CrPC. The said provision reads as follows:-
"386. Power of the Appellate Court.- After perusing 
such record and hearing the appellant or his pleader, if he 
appears, and the Public Prosecutor, if he appears, and in 
case of an appeal under section 377 or section 378, the 
accused, if he appears, the Appellate Court may, if it 
considers that there is no sufficient ground for interfering, 
dismiss the appeal, or may-
( a) in an appeal from an order or acquittal, reverse such 
order and direct that further inquiry be made, or that the
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
891 
fDIPAK MISRA, J.l 
accused be re-tried or committed for trial, as the case may 
A 
be, or find him guilty and pass sentence on him according 
to law; 
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge 
the accused, or order him to be 
re-tried by a Court 
of competent jurisdiction subordinate to such Appellate 
Court or committed for trial, or 
(ii) alter the finding, maintaining the sentence, or 
(iii) with or without altering the finding, alter the nature or 
the extent, or the nature and extent, of the sentence, but 
not so as to enhance the Same; 
( c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge 
B 
c 
the accused or order him to be re-tried by a Court competent 
D 
to try the offence, or 
(ii) alter the finding maintaining the sentence, or 
(iii) with or without altering the finding, alter the nature or 
the extent, or the nature and extent, of the sentence, so as 
to enhance or reduce the same; 
( d) in an appeal from any other order, alter or reverse such 
order; 
( e) make any amendment or any consequential or incidental 
order that may be just or proper; Provided that the sentence 
shall not be enhanced unless the accused has had an 
opportunity of showing cause against such enhancement: 
Provided further that the Appellate Court shall not inflict 
greater punishment for the offence which in its opinion the
accused has committed, than might have been inflicted for 
that offence by the Court passing the order or sentence 
under appeal." 
14. Elaborating on the same, it is urged that an appellate court can 
impose a sentence what the trial Judge could have imposed. The appellate 
jurisdiction which is classically called 'error jurisdiction' only embraces 
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SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
A 
to rectify the errors and thereafter impose the sentence. It may dismiss, 
alter or enhance the sentence depending upon the fact situation when an 
appeal is preferred, but it does not possess the jurisdiction to impose any 
sentence that does not have the sanction of law. In this context, learned 
senior counsel have drawn our attention to Section 53 IPC. It is as 
B 
c 
D 
follows:-
"53. Punishments.-The punishments to which offenders 
are liable under the provisions of this Code are-
First -
Death; 
Secondly.-lmprisonment for life; 
Fourthly -Imprisonment, which is of two descriptions, 
namely:-
(1) Rigorous, that is, with hard labour; 
(2) Simple; 
Fifthly-Forfeiture of property; 
Sixthly-Fine." 
15. According to them, the court cannot travel beyond Section 53 
IPC which deals with punishments. Section 302 IPC provides for 
E 
punishment for murder. It is as follows:-
"302. Punishment for murder.-Whoever commits 
murder shall be punished with death, or imprisonment for 
life, and shall also be liable to fine." 
16. Mr. Lalit and Mr. Naphade would contend that the court can 
F 
either impose sentence of imprisonment for life or sentence of death but 
any other fixed term sentence is totally inconceivable in terms of the 
statute. In respect of an offence under Section 302, life is the minimum 
and the maximum is the death sentence and, therefore, the court has a 
choice between the two and is not entitled to follow any other
path, for 
G 
that would be violative of the sanctity of Article 21 of the Constitution 
which clearly stipulates that no person shall be deprived of his life or 
personal liberty except according to the procedure established by law. 
Learned counsel for the appellants submit that imposition of sentence 
for a fixed tenn is contrary to the procedure established by law and 
hence, impermissible. 
H
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
893 
[DIPAK MISRA, J.] 
17. We shall first see how the Constitution Bench in V. Sriltaran 
A 
(supra) has dealt with this aspect. The three-Judge Bench in Union of 
India v. V. Srilzaran alias Murugan and others' 0 framed certain 
questions for consideration by the Constitution Bench. The Constitution 
Bench in V. Sril1ara11 (supra) reproduced the said questions and 
thereafter formulated the core questions for answering the same. After 
B 
adverting to the same, the Court observed that the issues raised were of 
utmost critical concern for the whole country as the decision on the 
questions would determine the procedure for awarding sentence and 
the criminal justice system. Thereafter, the Court referred to the authority 
in Swamy Sltraddananda (2) v. State of Maharashtra" and framed 
the following questions:-
C 
"2.1. Maintainability of this writ petition under Article 32 of 
the Constitution by the Union ofindia. 
2.2. (i) Whether imprisonment for life means for the rest 
of one's life with any right to claim remission? 
(ii) Whether as held in Shraddananda case (2), a special 
category of sentence; instead of death; for a term exceeding 
14 years and put that category beyond application of 
remission can be imposed? 
2.3. Whether the appropriate Government is permitted to 
grant remission under Sections 432/433 of the Criminal 
Procedure Code, 1973 after the parallel power was 
exercised under Article 72 by the President
and under Article 
161 by the Governor of the State or by the Supreme Court 
under its constitutional power(s) under Article 32? 
2.4. Whether the Union or the State has primacy for the 
exercise of power under Section 432(7) over the subject-
matter enlisted in List III of the Seventh Schedule for grant 
of remission? 
2.5. Whether there can be two appropriate Governments 
under Section 432(7) of the Code? 
2.6. Whether the power under Section 432( I) can be 
exercised suo motu, if yes, whether the procedure 
'" (2014) 11sec1 
11 (2008) 13 sec 767 
D 
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894 
SUPREME COURT REPORTS 
[2016) 8 S.C.R. 
A 
prescribed under Section 432(2) is mandatory or not? 
B 
c 
2.7. Whether the expression "consultation" stipulated in 
Section 435( I) of the Code implies "concurrence"?" 
18. We have reproduced the entire paragraph for the sake of 
completeness and understanding. The issues that have been raised by 
Mr. Lalit and Mr. Naphade fundamentally relate to the issues in para 
2.2. The majority in the Constitution Bench, after referring to the decisions 
in Maru Ram v. Union of lntlia anc/ others'", Gopttl Vinayak Godse 
v. State of Mallarashtra and otlters'3 and State of Madhya Pradesh 
v. Rutan Singh a11d others'", opined that the legal position is quite settled 
that the life imprisonment only means the entirety of the life unless it is 
curtailed by remissions validly granted under the Criminal Procedure 
Code by the appropriate Government or under Articles 72 and 161 of 
the Constitution by the Executive Head viz. the President or the Governor 
of the State respectively. The Court referred to the decision in A.s/10k 
Kumar alias Golu v. Union of India and others'5, wherein it was 
D specifically ruled that the decision in Blwgiratlt v. Delhi 
A.dministration 16 does not run counter to Godse (supra) and Maru 
Ram (supra). The relevant paragraph from A.slwk Kumar (supra) is 
reproduced below:-
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"15. It will thus be seen from the ratio laid down in the 
aforesaid two cases that where a person has been sentenced 
to
imprisonment for life the remissions earned by him during 
his internment in prison under the relevant remission rules 
have a limited scope and must be confined to the scope and 
ambit of the said rules and do not acquire significance until 
the sentence is remitted under Section 432, in which case 
the remission would be subject to limitation of Section 433-
A of the Code, or constitutional power has been exercised 
under Articles 72/161 of the Constitution. In Bhagirath case 
the question which the Constitution Bench was required to 
consider was whether a person sentenced to imprisonment 
for life can claim the benefit of Section 428 of the Code 
12 (1981) 1 sec 101 
13 AIR 1961 SC 600 
" (1976) 3 sec 470 
" (1991) 3 sec 498 
•• (1985) 2 sec 580
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
895 
fDIPAK MISRA, J.l 
which, inter alia, provides for setting off the period of 
A 
detention undergone by the accused as an undertrial against 
the sentence of imprisonment ultimately awarded to him''. 
19. Referring to Section 57 IPC, .the decision in As/wk Kumar 
(supra) reiterated the legal position as under:-
'9 . ... The provision contained in Section 57 that 
imprisonment for life has to be reckoned as equivalent to 
imprisonment for 20 years is for the purpose of calculating 
fractions of terms of punishment. We cannot press that 
provision into service for a wider purpose.' 
B 
20. It has been held in V. Sriliarcm (supra) that the said C 
observations are consistent with the ratio laid down in Gotlse (supra) 
and Maru Ram (supra). 
21. Thereafter, the majority in V. Sriliarcm (supra) quoted a 
paragraph from Blragiratl1's case (supra) which pertained to set-off 
under Section 428 CrPC which is to the following effect:-
D 
"I I .... The question of setting off the period of detention 
undergone by an accused as an undertrial prisoner against 
the sentence of life imprisonment can arise only if an order 
is passed by the appropriate authority under Section 432 or 
Section 433 of the Code. In the absence of such order, 
passed generally or specially, and apart from the provisions, 
if any, of the relevant Jail Manual, imprisonment for life 
would mean, according to the rule in Gopal VinayakGodse, 
imprisonment for the
remainder of life." 
22. Thereafter, the Court in V. Srilwran (supra) observed:-
"We fail to see any departure from the ratio of Godse case; 
on the contrary the aforequoted passage clearly shows 
approval of that ratio and this becomes further clear from 
the final order passed by the Court while allowing the appeal/ 
writ petition. The Court directed that the period of detention . 
undergone by the two accused as undertrial prisoners would 
be set off against the sentence of life imprisonment imposed 
upon them, subject to the provisions contained in Section 
433-A and, 'provided that orders have been passed by the 
appropriate authority under Section 433 of the Criminal 
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SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
Procedure Code'. These directions make it clear beyond 
any manner of doubt that just as in the case of remissions 
so also in the case of set-off the period of detention as 
undertrial would enure to the benefit of the convict provided 
the appropriate Government has chosen to pass an order 
under Sections 432/433 of the Code. The ratio of Bhagirath 
case, therefore, does not run counter to the ratio of this 
Court in Godse or Maru Ram. 
xxxxx 
xxxxx 
61. Having noted the abovereferred to two Constitution 
Bench decisions in Godse and Maru Ram which were 
consistently followed in the subsequent decisions in Sambha 
Ji Krishan Jir, Ratan Singh, Ranjit Singh 18, Ashok 
Kumar and Subash Chander19• The first part of the first 
question can be conveniently answered to the effect that 
imprisonment for life in terms of Section 53 read with Section 
45 of the Penal Code only means imprisonment for rest of 
the life of the prisoner subject, however, to the right to claim 
remission, etc. as provided under Articles 72 and 161 of the 
Constitution to be exercisable by the President and the 
·Governor 6fthe State and also as provided under Section 
432 of the Criminal Procedure Code". 
23. After so stating, the majority addressed to the concept of 
remission. It opined that:-
" As far as remissions are concerned, it consists of two types. 
One type of remission is what is earned by a prisoner under the Prison 
F 
Rules or
other relevant rules based on his/her good behaviour or such 
other stipulations prescribed therein. The other remission is the grant of 
it by the appropriate Government in exercise of its power under Section 
432 of the Criminal Procedure Code. Therefore, in the latter ca~e when 
a remission of the substantive sentence is granted under Section 432, 
G then and then only giving credit to the earned remission can take place 
and not otherwise. Similarly, in the case of a life imprisonment, meaning 
thereby the entirety of one's life, unless there is a commutation of such 
sentence for any specific period, there would be no scope to count the 
"(1974) 1 sec 196 
1• (1984) 1sec31 
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1' (2001J 4 sec 458
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
897 
fDIPAK MISRA, J.l 
earned remission. In either case, it will again depend upon an answer to 
A 
the second part of the first question based on the principles laid down in 
Swamy Shraddananda (2). " 
24. After dwelling upon the said aspect, the Court referred to the 
principles stated in paragraphs 91 and 92 in Swamy Sltraddananda (2) 
(supra). It adverted to the facts in Swamy Sltraddananda (2) (supra) 
B 
and analysed that this Court had made a detailed reference to the 
decisions in Bae/tan Singlt v. State of Punjab'0, Mac/1lli Singlt and 
~tilers v. State of Punjab' 1, and Jagmohan Singh v. State of U.P.''-
where the principle of rarest of the rare case was formulated. After 
referring to the said decisions, the majority reproduced paragraphs 34, 
C 
36, 43, 45, and 47 of Swamy Sltraddananda (2) (supra) and came to 
hold that:-
"66. After noting the above principles, particularly culled out from 
the decision in which the very principle, namely, "the rarest of rare cases", 
or an "exceptional case" or an "extreme case", it was noted that even 
thereafter, in reality in later decisions neither the rarest of the rare case 
D 
principle nor Machhi Singh categories were followed uniformly and 
consistently. In this context, the learned Judges also noted some of the 
decisions, namely, Aloke Nath Dutta v. State of W.B. 13 This Court in 
Swamy Shraddananda (2) also made a reference to a report called 
"Lethal Lottery, The
Death Penalty in India" compiled jointly by 
Amnesty International India and People's Union for Civil Liberties, Tamil 
Nadu, and Puducherry wherein a study of the Supreme Court judgments 
E 
in death penalty cases from 1950 to 2006 was referred to and one of the 
main facets made in the Report (Chapters 2 to 4) was about the Court's 
Jack of uniformity and consistency in awarding death sentence. This 
Court also noticed the ill effects it caused by reason of such 
inconsistencies and lamented over the same in the following words in 
para 52: [Swamy Shraddananda (2) case, SCC p. 790] 
F 
"52. The inability of the criminal justice system to deal with all 
major crimes equally effectively and the want of uniformity in the 
sentencing process by the Court lead to a marked imbalance in the end 
G 
results. On the one hand there appears a small band of cases in which 
'" ( 1980) 2 sec 684 
21 (1983) 3 sec 470 
22 (1973) 1sec20 
" (2007) 12 sec 230 
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[2016] 8 S.C.R. 
A the murder convict is sent to the gallows on confirmation of his death 
penalty by this Court and on the other hand there is a much wider area 
of cases in which the offender committing murder of a similar or a far 
more revolting kind is spared his life due to lack of consistency by the 
Court in giving punishments or worse the offender is allowed to slip 
B 
c 
away unpunished on account of the deficiencies in the criminal justice 
system. Thus, the overall larger picture gets asymmetric and lopsided 
and presents a poor reflection of the system of criminal administration 
of justice. This situation is a matter of concern for this Court and needs 
to be remedied." 
25. The larger Bench endorsed the anguish expressed by the Court 
and opined that the situation is a matter of serious concern for this Court 
and it wished to examine whether the approach made thereafter by this 
Court does call for any interference or change or addition or mere 
confirmation. Be it noted, the three-Judge Bench in Swamy 
Sliraddatianda (supra) took note of the plan devised by the accused, 
D the betrayal of trust, the magnitude of criminality and the brutality shown 
in the commission of the ghastly crime and the manner in which the 
deceased was sedated and buried while she was alive. The Court, taking 
into consideration the materials brought on record in entirety, imposed 
the sentence of fixed term imprisonment instead of sentence of death. 
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26. The issue arose before the Constitution Bench with regard to 
the mandate of Section 433 CrPC. The majority took note of the fact 
that the said provision was considered at length and detailed reference 
was made to Sections 45, 53, 54, 55, SSA, 57 and other related provisions 
in the IPC in Swamy Sl1raddanandt1(2) (supra) to understand the 
sentencing procedure prevalent in the Court. Thereafter, the majority 
reproduced paragraphs 91 and 92 from the said judgment which we 
think are required to be reproduced to appreciate the controversy:-
"91. The legal position as enunciated in Kishori LaP', 
Gopal Vinayak Godse, Maru Ram, Ratan Singh and 
Shri Bhagwan~
5 and the unsound way in which remission 
is actually allowed in cases oflife 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 
" Kishori la/ v. King Emperor. 1914 SCC Online PC 81 
~i (2001 > 6 sec 296
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
fDIPAK MISRA, J.l 
for a term in excess of fourteen years and to put that 
category beyond the application ofremission. 
92. The matter may be looked at from a slightly different 
angle. The issue of sentencing has two aspects. A sentence 
may be excessive and unduly harsh ~or it may be highly 
disproportionately inadequate~. When an appellant comes 
to this Court carrying a death sentence awarded by the 
trial court and confirmed by the High Court, this Court may 
find, as in the present appeal, that the case just falls short 
of the rarest of the rare category and may feel somewhat 
reluctant in endorsing the death sentence. But at the same 
time, having regard to the nature of the crime, the Court 
may strongly feel that a sentence of life imprisonment 
subject to remission normally works out to a term of 14 
years would be grossly disproportionate and inadequate. 
What then should the Court do? If the Court's option is 
limited only to two punishments, one a sentence of 
imprisonment, for all intents and pm:poses, ofnot more than 
14 years and the other death. the Court may feel tempted 
and find itself nudged into endorsing the death penalty. Such 
a course would indeed be disastrous. A far more just, 
reasonable and proper course would be to expand the 
options and to take over what, as a matter of fact, lawfully 
belongs to the Court i.e. the vast hiatus between 14 years' 
imprisonment and death. It needs to be
emphasised that 
the Court would take recourse to the expanded option 
primarily because in the facts of the case. the sentence of 
14 years' imprisonment would amount to no punishment at 
all." 
[Emphasis supplied] 
27. Thereafter, the majority adverted to the concurring opinion of 
Fazal Ali, J. in Maru Ram's case and reproduced copiously from it and 
899 
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opined thus:-
G 
"Keeping the above hard reality in mind, when we examine 
the issue, the question is "whether as held in Shraddananda 
(2), a special category of sentence; instead of death; for a 
term exceeding 14 years and putting that category beyond 
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application of remission is good in law? When we analyse 
the issue in the light of the principles laid down in very 
many judgments starting from Godse, Maru Ram, Sambha 
Ji Krishan Ji, Ratan Singh, it has now come to stay that 
when in exceptional cases, death penalty is altered as life 
sentence, that would only mean rest of one's lifespan". 
28. At that juncture, the issue arose with regard to the interpretation 
of Section 433-A CrPC. In that context, the majority opined:-
"In this context, the submission of the learned Solicitor 
General on the interpretation of Section 433-A CrPC 
assumes significance. His contention was that under Section 
433-A CrPC what is prescribed is only the minimum and, 
therefore, there is no restriction to fix it at any period beyond 
14 years and up to the end of one's lifespan. We find 
substance in the said submission. When we refer to Section 
433-A, we find that the expression used in the said section 
for the purpose of grant of remission relating to a person 
convicted and directed to undergo life imprisonment, it 
stipulates that "such person shall not be released from prison 
unless he had served at least fourteen years of 
imprisonment" (emphasis supplied). Therefore, when the 
minimum imprisonment is prescribed under the statute, there 
will be every justification for the court which considers the 
nature of offence for which conviction is imposed on the
offender for which offence the extent of punishment either 
death or life imprisonment is provided for, it should be held 
that there will be every justification and authority for the 
court to ensure in the interest of the public at large and the 
society, that such person should undergo imprisonment for 
a specified period even beyond 14 years without any scope 
for remission. In fact, going by the caption of the said Section 
43.3-A, it imposes a restriction on powers of remission or 
commutation in certain cases. For a statutory authority 
competent to consider a case for remission after the 
imposition of punishment by court oflaw it can be held so, 
then a judicial forum which has got a wider scope for 
considering the nature of offence and the conduct of the 
offender including his mens rea to bestow its judicial sense
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
[DIPAK MISRA, J.] 
and direct that such offender does not deserve to be released 
early and required to be kept in confinement for a longer 
period, it should be held that there will be no dearth in the 
authority for exercising such power in the matter of 
imposition of the appropriate sentence befitting the criminal 
act committed by the convict." 
(Emphasis Supplied) 
29. As we notice, there has been advertence to various provisions 
ofIPC, namely, Sections 120-B(I ), 121, 132, 194, 195-A, 302, 305, 307 
(Second Part), 3 76-A, 376-E, 396 and 364-A and certain other provisions 
901 
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of other Acts. The Court observed that death sentence is an exception c 
rather than a rule and where even after applying such great precautionary 
prescription when the trial courts reach a conclusion to impose the 
maximum punishment of death, further safeguards are provided under 
the Criminal Procedure Code and the special Acts to make a still more 
concretised effort by the higher courts to ensure that no stone is left 
unturned before :he imposition of such capital punishments. After so 
D 
stating, the majority referred to the report of Justice Malimath Committee 
and Justice Verma Committee, and in that context, observed that:-
"91. We also note that when the Report of Justice Mali math 
Committee was submitted in 2003, the learned Judge and 
the members did not have the benefit of the law laid down 
E 
in Swamy Shraddananda (2).
Insofar as Justice Verma 
Committee Report of2013 is concerned, the amendments 
introduced after the said Report in Sections 3 70( 6), 3 76-A, 
3 76-D and 3 76-E, such prescription stating that life 
imprisonment means the entirety of the convict's life does 
p 
not in any way conflict with the well-thought out principles 
stated in Swamy Shraddananda (2). In fact, Justice Verma 
Committee Report only reiterated the proposition that a life 
imprisonment means the whole of the remaining period o; 
the convict's natural life by referring to Mohd. Munna16, 
Ranieshbhai Chandubhai Rathod (2) v. State of Gujarat"-
G 
and State of U.P. v. Sanjay Kumar18 and nothing more. 
Further, the said amendment can only be construed to 
,. (2005) 1 sec 764 
21 (2011) 2 sec 764 
" (2012) s sec 537 
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tstablish that there should not be any reduction in the life 
sentence and it should remain till the end of the convict's 
lifespan. 
30. The purpose of referring to the aforesaid analysis is only to 
understand the gravity and magnitude of a case and the duty of the 
B c;:ourt regard being had to the precedents and also the sanction of law. 
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31. Dealing with the procedure as a substantive part, the majority 
opined that:-
"Such prescription contained in the Criminal Procedure 
Code, though procedural, the substantive part rests in the 
Penal Code for the ultimate confinnation or modification or 
alteration or amendment or amendment of the punishment. 
Therefore. what is apparent is that the imposition of death 
penalty or life imprisonment is substantively provided for in 
the Penal Code. procedural part of it is prescribed in the 
Criminal Procedure Code and significantly one does not 
conflict with the other. Having regard to such a dichotomy 
being set out in the Penal Code and the Criminal Procedure 
Code, which in many respects to be operated upon in the 
adjudication of a criminal case, the result of such thoroughly 
defined distinctive features have to be clearly understood 
_ while operating the definite provisions, in particular, the 
provisions in the Penal Code providing for capital punishment 
and in the alternate the life imprisonment". 
[Underlining is ours] 
32. We need not advert
to other aspects that_ have been dwelt 
upon by the Constitution Bench, for we are not concerned with the same. 
The submission of the learned senior counsel for the appellants is that 
there is an apparent error in the Constitution Bench decision as it has 
treated the provisions of CrPC as procedural. On a reading of the 
decision, it is manifest that the majority has explained how there is 
G cohesive co-existence of CrPC and !PC. We may explain it in this 
manner. Section 28 CrPC empowers the court to impose sentence 
authorized by law. Section 302 !PC authorizes the court to either award 
life imprisonment or death. As rightly submitted by Mr. Lalit and Mr. 
Naphade, there is a minimum and maximum. Life imprisom,1ent as held 
H in Gopa/ J1nayak Gc.lse (supra), Rat1111 Singh (supra), Solum Lal v. 
"" 
'--
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
903 
rDIPAK MISRA, J.l 
Asha Ram and others29 and Zahid Hussein mid others v. State of A 
W.B. and another30 means the whole of the remaining period of the 
convict's natural life. The convict is compelled to live in prison till the 
end of his life. Sentence of death brings extinction oflife on a fixed day 
after the legal procedure is over, including the ground of pardon or 
remission which are provided under Articles 71 and 161 of the 
8 
Constitution. There is a distinction between the conferment of power 
by a statute and conferment of power under the Constitution. The same 
has been explained in Maru Ram (supra) and V. Sriharan (supra). 
Recently, a two-Judge Bench in State of Gujarat & Anr. v. Lal Singh 
@Manjit Singh & Ors. 31 in that context has observed thus:-
"In Maru Ram (supra) the constitutional validity of Section 
433-A CrPC which had been brought in the statute.book in 
the year 1978 was called in question. Section 433-A CrPC 
imposed restrictions on powers of remission or commutation 
in certain cases. It stipulates that where a sentence of 
imprisonment for life is imposed on conviction of a person 
for an offence for which death is one of the punishments 
provided by laws, or where a sentence of death imposed 
on a person has been commuted under Section 433 into one 
of imprisonment for life, such person shall not be released 
from prison unless he has served at least fourteen years of 
imprisonment. The
majority in Maru Ram (supra) upheld 
the constitutional validity of the provision. The Court 
distinguished the statutory exercise of power ofremission 
and exercise of power by the constitutional authorities under 
the Constitution, that is, Articles 72 and 161. In that context, 
the Court observed that the power which is the creature of 
the Code cannot be equated with a high prerogative vested 
by the Constitution in the.highest functionaries of the Union 
and the States, for the source is different and the substance 
is different. The Court observed that Section 433-A CrPC 
cannot be invalidated as indirectly violative of Articles 72 
and 161 of the Constitution. Elaborating further, the majority 
spoke to the following effect:-
" ... Wide as the power of pardon, commutation and 
2•(19s1i 1sec106 
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Ji AIR 2016 SC 3197: 2016 (6) SCALE 105 
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release (Articles 72 and 161) is, it cannot run riot; for 
no legal power can run unruly like John Gilpin on the 
horse but must keep sensibly to a steady course. Here, 
we come upon the second constitutional fundamental 
which underlies the submissions of counsel. It is that 
all public power, including constitutional power, shall 
never be exercisable arbitrarily or mala fide and, 
ordinarily, guidelines for fair and equal execution are 
guarantors of the valid play of power .... " 
33. In Kelwr Singlt and anotlter v. Union of India and anotlter31 
the Constitution Bench has opined that the power to pardon is part of the 
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constitutional scheme and it should be so treated in the Indian Republic. 
There has been further observation that it is a constitutional responsibility 
of great significance to be exercised when the occasion arises in 
accordance with the discretion contemplated by the context. The Court 
has also held that exercise of the said power squarely falls within the 
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judicial domain and can be exercised by the court by judicial review. In 
Epuru Sudltakar and anotlter v. Govt. of A.P. and otlters33 , in the 
concurring opinion, S.H. Kapadia, J. (as His Lordship then was) stated 
thus:-
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"Exercise of executive clemency is a matter of discretion 
and yet subject to certain standards. It is not a matter of 
privilege. It is a matter of performance of official duty. It is 
vested in the President
or the Governor, as the case may 
be, not forthe benefit of the convict only, but for the welfare 
of the people who may insist on the performance of the 
duty. This discretion, therefore, has to be exercised on public 
considerations alone. The President and the Governor are 
the sole judges of the sufficiency of facts and of the 
appropriateness of granting the pardons and reprieves. 
However, this power is an enumerated power in the 
Constitution and its limitations, if any, must be found in the 
Constitution itself. Therefore, the principle of exclusive 
cognizance would not apply when and if the decision 
impugned is in derogation of a constitutional provision. This 
is the basic working test to be applied while granting pardons, 
"l 1989) 1 sec 204 
"(2006J s sec 161
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
905 
[DIPAK MISRA, J.] 
reprieves, remissions and commutations." 
A 
And, again:-
" ... The Rule of Law is the basis for evaluation of all 
decisions. The supreme quality of the Rule of Law is 
fairness and legal certainty. The principle oflegality occupies 
a central plan in the Rule of26 Law. Every prerogative has 
to be subject to the Rule of Law. That rule cannot be 
compromised on the grounds of political expediency. To go 
by such considerations would be subversive of the 
fundamental principles of the Rule of Law and it would 
amount to setting a dangerous precedent. The Rule of Law 
principle comprises a requirement of"Government according 
to law". The ethos of "Government according to law" 
requires the prerogative to be exercised in a manner which 
is consistent with the basic principle of fairness and certainty. 
Therefore, the power of executive clemency is not only for 
the benefit of the convict, but while exercising such a power 
the President or the Governor, as the case may be, has to 
keep in mind the effect of his decision on the family of the 
victims, the society as a whole and the precedent it sets for 
the future." 
34. We have referred to the aforesaid aspect extensively as it has 
been clearly held that the power of the constitutional authorities under 
Article 71 and Article 161 of the Constitution has to remain sacrosanct 
but the power under Section 433-A CrPC which casts a restriction on 
the
appropriate functionary of the Government can judicially be dealt 
with. 
35. To elaborate, though the power exercised under Article 71 
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and Article 161 of the Constitution is amenable to judicial review in a 
limited sense, yet the Court cannot exercise such power. As far as the 
statutory power under Section 433-A is concerned, it can be curtailed 
when the Court is of the considered opinion thatthe fact situation deserves 
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a sentence of incarceration which be for a fixed term so that power of 
remission is not exercised. There are many an authority to support that 
there is imposition of fixed term sentence to curtail the power ofremission 
and scuttle the application for consideration of remission by the convict. 
It is because in a particular fact situation, it becomes a penological 
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necessity which is permissible within the concept of maximum and the 
minimum. There is nQ dispute over the maximum, that is, death sentence. 
However, as far as minimum is concerned the submission of the learned 
counsel for the appellants is courts can say "imprisonment for life" and 
nothing else. It cannot be kept in such a strait-jacket formula. The 
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court, as in the case at hand, when dealing with an appeal for enhancement 
of sentence from imprisonment of life to death, can definitely say that 
the convict shall suffer actual incarceration for a specific period. It is 
within the domain of judiciary and such an interpretation is permissible. 
Be it noted, the Court cannot grant a lesser punishment than the minimum 
but can impose a punishment which is lesser than the maximum. It is 
within the domain of sentencing and constitutionally permissible. 
36. We must immediately proceed to state that similar conclusion 
has been reached by the majority in V. Srilwran (supra) and other cases, 
Mr. Lalit and Mr. Naphade would submit that the said decision having 
not taken note of the principles stated in K.M. Nmwvati (supra) and 
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Sarai Chandra Rablla (supra) is not a binding precedent. In K.M. 
E 
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Nanavati (supra), the question that arose before the Constitution Bench 
pertained to the extent of the power conferred on the Governor of a 
State under Article 161 of the Constitution; and whether the order of the
Governor can impinge on the judicial power of this Court with particular 
reference to its power under Article 142 of the Constitution. Be it stated, 
the petitioner therein was convicted under Section 302 IPC and sentenced 
to imprisonment for life. After the judgment was delivered by the High 
Court and the writ was received by the Sessions Judge, he issued warrant 
of arrest of the accused for the purpose of sending him to the police 
officer in-charge of the City Sessions Court. The warrant was returned 
unserved with the report that it could not be served in view of the order 
passed by the Governor of Bombay suspending the sentence upon the 
petitioner. In the meantime, an application for leave to appeal to Supreme 
Court was made soon after the judgment was pronounced by the High 
Court and the matter was fixed for hearing. On that day, an unexecuted 
warrant was placed before the concerned Bench which directed that 
G 
the matter is to be heard by a larger Bench in view of the unusual and 
unprecedented situation. A Special Bench of five Judges of the High 
Court heard the matter and the High Court ultimately held that as the 
sentence passed upon the accused had been suspended, it was not 
necessary for the accused to surrender and, therefore, Order XX! Rule 
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VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
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[DlPAK MISRA, J.l 
5 of the Supreme Court Rules would not apply to the case. The High 
A 
Court opined that the order passed by the Governor was not found to be 
unconstitutional. A petition was filed for special leave challenging the 
conviction and sentence and an application was filed seeking exemption 
stating all the facts. The matter was ultimately referred to the Constitution 
Bench, and the larger Bench analyzing various facets of the Constitution, 
came to hold thus:-
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"21. In the present case, the question is limited to the 
exercise by the Governor of his powers under Article 161 
of the Constitution suspending the sentence during the 
pendency of the special leave petition and the appeal to this 
court; and the controversy has narrowed down to whether 
for the period when this court is in seizin of the case the 
Governor could pass the impugned order, having the effect 
of suspending the sentence during that period. There can 
be no doubt that it is open to the Governor to grant a full 
pa~don at any time even during the pendency of the case in 
this court in exercise of what is ordinarily called "mercy 
jurisdiction". Such a pardon after the accused person has 
been convicted by the court has the effect of completely 
absolving him from all punishment or disqualification 
attaching to a conviction for a criminal offence. That power 
is essentially vested in the head of the Executive, because 
the judiciary
has no such "mercy jurisdiction". But the 
suspension of the sentence forthe period when this court is 
in seizin of the case could have been granted by this court 
itself. If in respect of the same period the Governor also 
has power to suspend the sentence, it would mean that both 
the judiciary and the executive would be functioning in the 
same field at the same time leading to the possibility of 
conflict of jurisdiction. Such a conflict was not and could 
not have been intended by the makers of the Constitution. 
But it was contended by Mr Seervai that the words of the 
Constitution, namely, Article 161 do not warrant the 
conclusion that the power was in any way limited or fettered. 
In our opinion there is a fallacy in the argument insofar as it 
postulates what has to be established, namely, that the 
Governor's power was absolute and not fettered in any 
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way. So long as the judiciary has the power to pass a 
particular order in a pending case to that extent the power 
of the Executive is limited in view of the words either of 
Sections 40 I and 426 of the Code of Criminal Procedure 
and Articles 142 and 161 of the Constitution. If that is the 
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correct interpretation to be put on these provisions in order 
to harmonise them it would follow that what is covered in 
Article 142 is not covered by Article 161 and similarly what 
is covered by Section 426 is not covered by Section 401. 
On that interpretation Mr Seervai would be right in his 
contention that there is no conflict between the prerogative 
power of the sovereign state to grant pardon and the power 
of the courts to deal with a pending cage judicially." 
Andagain:-
"As a result of these considerations we have come to the 
conclusion that the order of the Governor granting 
suspension of the sentence could on.ly operate until the 
matter became sub judice in this court on the filing of the 
petition for special leave to appeal. After the filing of such 
a petition this court was seized of the case which would be 
dealt with by it in accordance with law. It would then be for 
this Court, when moved in that behalf, either to apply Rule 
5 of Order 2 I or to exempt the petitioner from the operation 
of that Rule. It would be for this court to pass such orders 
as itthought fit as to whether the petitioner
should be granted 
bail or should surrender to his sentence or to pass such 
other or further orders as this court might deem fit in all the 
circumstances of the case. It follows from what has been 
said that the Governor had no power to grant the suspension 
of sentence forthe period during which the matter was sub 
judice in this court." 
37. Relying on the same, it is urged that when a constitutional 
G 
court adds a third category of sentence, it actually enters into the realm 
of Section 433-A CrPC which rests with the statutory authority. 
According to the learned senior counsel for the appellants, after the 
conviction is recorded and sentence is imposed, the court has no role at 
the subsequent stage. But when higher sentence is imposed, there is an 
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encroachment with the role of the executive. In this context, learned
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
909 
fDIPAK MISRA, J.l 
senior counsel have drawn our attention to the principles stated in another 
A 
Constitution Bench judgment in Sarai Chandra Rablw (supra), wherein 
it has been held that the effect of pardon is different than remission 
which stands on adifferent footing altogether. The Constitution Bench, 
explaining the same, proceeded to state thus:-
"4. .. . In the first place, an order of remission does not 
wipe out the offence; it also does not wipe out the conviction. 
All that it does is to have an effect on the execution of the 
sentence; though ordinarily a convicted person would have 
to serve out the full sentence imposed by a court, he need-
not do so with respect to that part of the sentence which 
has been ordered to be remitted. An order of remission 
thus does not in any way interfere with the order of the 
court; it affects only the execution of the sentence passed 
by the court and frees the convicted person from his liability 
to undergo the full term of imprisonment inflicted by the 
court, though the order of conviction and sentence passed 
by the court still stands as it was. The power to grant 
remission is executive power and cannot have the effect 
which the order of an appellate or revision al court would 
have of reducing the sentence passed by the trial court and 
substituting in its place the reduced sentence adjudged by 
the appellate or revisional court. This distinction is well
brought out in the following passage from Weater's 
Constitutional Law on the effect of reprieves and pardons 
vis-a-vis the judgment passed by the court imposing 
punishment, at p. 176, para 134: 
"A reprieve is a temporary suspension of the punishment 
fixed by law. A pardon is the remission of such 
punishment. Both are the exercise of executive functions 
and should be distinguished from the exercise of judicial 
power over sentences. 'The judicial power and the 
executive power over sentences are readily 
distinguishable,' observed Justice Sutherland. To render 
a judgment is a judicial function. To carry the judgment 
into effect is an executive function. To cut short a 
sentence by an act of clemency is an exercise of executive 
power which abridges the enforcement of the judgment 
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but does not alter it qua judgment'." 
Though, therefore, the effect of an order of remission is to 
wipe out that part of the sentence of imprisonment which 
has not been served out and thus in practice to reduce the 
sentence to the period already undergone, in law the order 
of remission merely means that the rest of the sentence 
need not be undergone, leaving the order of conviction by 
the court and the sentence passed by it untouched. In this 
view of the matter the order of remission passed in this 
case though it had the effect that the appellant was released 
from jail before he had served the full sentence of three 
years' imprisonment, and had actually served only about 
sixteen months' imprisonment, did not in any way affect 
the order of conviction and sentence passed by the court 
which remained as it was. Therefore the terms of Section 
7(b) would be satisfied in the present case and the appellant 
being a person convicted and sentenced to three years' 
rigorous imprisonment would be disqualified, as five years 
had not passed since his release and as the Election 
Commission had not removed his disqualification." 
38. The analysis made in the aforesaid passage is to be 
appropriately appreciated. In the said case, the controversy arose with 
regard to the rejection of the nomination paper of the returned candidate 
on the ground that he was not disqualified under Section 7(b) of the
Representation of the People Act, 1951. The Election Tribunal came to 
hold that the nomination paper of the candidate was wrongly rejected 
and the allegation pertaining to corrupt practice was not established. 
On the first count, the election was set aside. The successful candidate 
preferred an appeal before the High Court which came to hold that the 
nomination paper of the respondent before it was properly rejected. 
However, it concurred with the view expressed as regards corrupt practice 
by the tribunal. The rejection ofnomination paper of the candidate was 
G 
found to be justified by the High Court as he had been sentenced to 
undergo rigorous imprisonment for three years and five years had not 
passed since his release. He was sentenced to three years but the 
sentence was remitted by the government in exercise of power under 
Section 401 of old Cr PC. The contention of the appellant before the 
tribunal was that in view of the remission, sentence, in effect, was reduced 
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VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
911 
[DIPAK MISRA, J.] 
to a period ofless than two years and, therefore, he could not be said to 
A 
have incurred disqualification within the meaning of Section 7(b) of the 
said Act. 
The High Court formed the opinion that the remission of 
sentence did not have the same effect as free pardon and would not 
have the effect on reducing the sentence passed on the appellant. In 
that context, this Court has held what we have quoted hereinabove. 
What is being sought to be argued on the basis of the aforequoted passage 
B 
is that the court does not have any role in the matter of remission. It is 
strictly within the domain of the executive. 
39. On a careful reading of both the decisions, we have no iota of 
doubt in our mind that they are not precedents for the proposition that 
C 
the court cannot impose a fixed term sentence. The power to grant 
remission is an executive power and it cannot affect the appeal or 
revisional power of the court. The powers are definitely distinct. 
However, the language of Section 433-A Cr PC empowers the executive 
to grant remission after expiry of 14 years and it only enables the convict 
to apply for remission. There can be a situation as visualized in Swamy 
D 
Sliraddananda (2) (supra). 
40. Learned senior counsel would submit that it is a judicial 
innovation or creation without sanction of law and according to them, 
the majority view of the Constitution Bench is not a seemly
appreciation 
of Section 433-A CrPC. In our considered opinion, the majority view is 
E 
absolutely correct and binding on us being the view of the Constitution 
Bench and that apart, we do not have any reason to disagree with the 
same for referring it to a larger Bench. We are of the convinced opinion 
that the situation that has been projected in Swamy Sltraddananda (2) 
(supra) and approved in V. Sriltaran 
(supra) speaks eloquently of 
judicial experience and the fixed term sentence cannot be said to be 
F 
unauthorized in law. Section 302 IPC authorizes imposition of death 
sentence. The minimum sentence is imprisonment for life which means 
till the entire period of natural life of the convict is over. The courts 
cannot embark upon the power to be exercised by the Executive Heads 
of the State under Article 71 and Article 161 of the Constitution. That 
G 
remains in a different sphere and it has its independent legal sanctity. 
The court while imposing the sentence oflife makes it clear that it means 
in law whole of life. The executive has been granted power by the 
legislature to grant remission after expiry of certain period. The court 
could have imposed the death sentence. However, in a case where the 
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court does not intend to impose a death sentence because of certain 
factors, it may impose fixed term sentence keeping in view the public 
concept with regard to deterrent punishment. It really adopts the view 
of"expanded option", lesser than the maximum and within the expanded 
option of the minimum, for grant of remission does not come in after 
expiry of 14 years. It strikes a balance regard being had to the gravity 
of the offence. We, therefore, repel the submission advanced by the 
learned senior counsel for the appellants. 
41. In this context, another submission deserves to be noted. It is 
canvassed by the learned senior counsel for the appellants that the issue 
of enhancement and scope of enhancement was not referred to the 
Constitution Bench. The reference order which has been quoted in V. 
Sriharan (supra) has been brought to our notice to highlight the point 
that in the absence of a reference by the concerned Bench, the 
Constitution Bench could not have adverted to the said aspect. The said 
submission is noted only to be rejected. The larger Bench has framed 
D 
the issues which deserve to be answered and, as seen from the entire 
tenor of the judgment, it felt that it is obliged to address the issue regard 
being had to the controversy that arises in number of cases. In fact, as 
is evincible, question Nos. (i) and (ii) of paragraph 2.2 have been 
specifically posed in this manner. We do not think
that there is any 
impediment on the part of the Constitution Bench to have traversed on 
E 
the said issues. In fact, in our view, the Constitution Bench has correctly 
adverted to the same and clarified the legal position and we are bound 
byit. 
F 
42. The next contention which is canvassed on behalf of the 
appellants is that when the High Court exercised the power under Section 
368 Cr PC and thinks of commuting the death sentence, then only it can 
pass a fixed term sentence· and not otherwise. In this regard, we have 
been commended to the authorities in Sahib Hussain (supra) and Gurvail 
Singh (supra). In Sahib Hussain (supra), the Court took note of the 
decision in Shri Blwflw"n v. St"te of Raj"stlum34 wherein this Court 
G 
had commuted the death sentence imposed on the appellant therein and 
directed that the appellant shall undergo the sentence of imprisonment 
for life with the further direction that the appellant shall not be released 
from the prison unless he had served out at least 20 years ofimprisonment 
including the period already undergone by him. The authority in Pmk"s/1 
H 
" <2001 l 6 sec 296
VIK.AS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
913 
fDIPAK MISRA, J.l 
Dhawal Kliairnar (Patil) v. State of Maharas/1tra 35 was noticed 
A 
wherein the Court set aside the death sentence and directed that the 
appellant therein shall suffer imprisonment for life but he shall not be 
released unless he had served out at least 20 years of imprisonment 
including the period already undergone by him. The two-Judge Bench 
referred to Ram Anup Singh and others v. State of Biliar36, Nazir 
B 
Khan and others vs. State of Delhi37, Swamy Sliraddananda (2) 
(supra), Haru Ghosh v. State of West BengaP8, Ramraj v. State of 
Chhattisgarh39, Neel Kumar alias Anil Kumar v. State of Haryamr0, 
Sandeep v. State of U.P. 41 and Gurvail Singh (supra) and held that:-
"lt is clear that since more than a decade, in many cases, 
whenever death sentence has been commuted to life 
imprisonment where the offence alleged is serious in nature, 
while awarding life imprisonment, this Court reiterated 
minimum years of imprisonment of20 years or 25 years or 
30 years or 35 years, mentioning thereby, ifthe appropriate 
Government wants to give remission, the same has to be 
considered only afterthe expiry of the said period .... " 
Thereafter, the Court referred to Swamy S/tr(l(/dananda (2) 
(supra) and the pronouncement in S/iri Blwgww1 (supra) and opined 
thus:-
"36. It is clear that in Swamy Shraddananda, this Court 
noted the observations made by this Court in Jagmohan 
Singh v. State of U.P. and
five years after the judgment in 
Jagmohan case, Section 433-A was inserted in the Code 
imposing a restriction on the power of remission or 
commutation in certain cases. After the introduction of 
Section 433-A another Constitution Bench of this Court in 
Bachan Singh v. State of Punjab, with reference to power 
with regard to Section 433-A which restricts the power of 
remission and commutation conferred on the appropriate 
Government, noted various provisions of the Prisons Act, 
"(2002) 2 sec 35 
"(2002) 6 sec 686 
'' (2003) s sec 461 
"(2009) 15 sec 551 
,. (2010) 1 sec 573 
4• (2012) s sec 766 
41 (2012) 6 sec 101 
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A 
Jail Manual, etc. and concluded that reasonable and proper 
course would be to expand the option between 14 years' 
imprisonment and death. The larger Bench has also 
emphasised that: [Swamy Shraddananda (2) case, SCC 
p. 805, para 92] 
B 
"92 . ... the Court would take recourse to the expanded 
option primarily because in the facts of the case, the 
sentence of 14 years' imprisonment would amount to no 
punishment at all." 
In the light of the detailed discussion by the larger Bench, 
c 
we are of the view that the observations made in Sangeet 
case'J are not warranted. Even otherwise, the above 
principles, as enunciated in Swamy Shraddananda are 
applicable only when death sentence is commuted to life 
imprisonment and not in all cases where the Court imposes 
sentence for life." 
D 
E 
43. Learned senior counsel have emphasized on the last part of 
the aforequoted passage to buttress the stand that when the trial judge 
had not imposed the death sentence, the question of commutation did 
not arise and hence the High Court could not have imposed a fixed term 
sentence and could have only affirmed the sentence of imprisonment 
for life. 
44. In Gurvail Singh (supra), the Court was dealing with the 
petition under Article 32 of the Constitution for issue of a direction to 
convert the sentence of the petitioner from 30 years without remission 
to a sentence of life imprisonment and further to declare that this Court 
F 
is not
competent to fix a particular number of years (with or without 
remission) when it commutes the death sentence to life imprisonment 
while upholding the conviction of the accused under Section 302 !PC. 
The two-Judge Bench referred to the decision in Sangeet (supra) which 
has also been referred in Sahib Hussain (supra) and, thereafter, the 
G 
Court observed:-
"6. The issue involved herein has been raised before this 
Court time and again. Two-Judge as well as three-Judge 
Benches have several times explained the powers of this 
Court in this regard and it has consistently been held that 
H 
42 SaJJ.geet v. State _of Ha_11,ana, (2013) 2 SCC 452
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
fDIPAK MISRA, J.l 
the Court cannot interfere with the clemency powers 
enshrined under Articles 72 and 161 of the Constitution of 
India or any rule framed thereunder except in exceptional 
circumstances. So far as the remissions, etc. are concerned, 
these are executive powers of the State under which, the 
Court may issue such directions if required in the facts and 
circumstances of a particular case." 
After so stating, the Court referred to Swamy Sltraddananda 
(2) (supra) and State of Uttar Pradesh. v. Sanjay Kumar43 and 
reproduced a passage from Sanjay Kumar (supra) which we .think 
~eemly to quote:-
"24 .... The aforesaid judgments make it crystal clear that 
thjs 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 ofrare 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 ofrelevant material; or ifthe 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 
"(2012) s sec 537 
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[2016] 8 S.C.R. 
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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 
B 
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premature release under the guidelines issued for that 
purpose i.e. under the Jail Manual, etc. or even under 
Section 433-A of the Code of Criminal Procedure." 
45. Thereafter, the two-Judge Bench referred to the 
pronouncement in Sahib Hussain (supra) and opined thus:-
" 12. Thus, it is evident that the issue raised in this petition 
has been considered by another Bench and after 
reconsidering all the relevant judgments on the issue the 
Court found that the observations made in Sangeet were 
unwarranted i.e. no such observations should have been 
made. This Court issued orders to deprive a convict from 
the benefit of remissions only in cases where the death 
sentence has been commuted to life imprisonment and it 
does not apply in all the cases wherein the person has been 
sentenced to life imprisonment." 
46. Mr. Krishnan, learned senior counsel appearing for the State, 
in his turn, has commended us to three passages from V. Sriltaran 
(supra). They read as under:-
"! 03. In fact, while saying so we must also point out that 
such exercise of power in the imposition of death penalty 
or life imprisonment
by the Sessions Judge will get the 
scrutiny by the Division Bench of the High Court mandatorily 
when the penalty is death and invariably even in respect of 
life imprisonment gets scrutinised by the Division Bench by 
virtue of the appeal remedy provided in the Criminal 
Procedure Code. Therefore, our conclusion as stated above 
can be reinforced by stating that the punishment part of 
such specified offences are always examined at least once 
after the Sessions Court's verdict by the High Court and 
that too by a Division Bench consisting of two Hon'ble 
Judges. 
104. That apart, in most of such cases where death penalty
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
[DIPAK MISRA, J.] 
or life imprisonment is the punishment imposed by the trial 
court and confirmed by the Division Bench of the High 
Court, the convict concerned will get an opportunity to get 
such verdict tested by filing further appeal by way of special 
leave to this Court. By way of abundant caution and as per 
the prescribed law of the Code and the criminal 
jurisprudence, we can assert that after the initial finding of 
guilt of such specified grave offences and the imposition-of 
penalty either death or life imprisonment, when comes under 
the scrutiny of the Division Bench of the High Court, it is 
only the High Court which derives the power under the 
Penal Code, which prescribes the capital and alternate 
punishment, to alter the said punishment with one either for 
the entirety of the convict's life or for any specific period 
of more than 14 years, say 20, 30 or so on depending upon 
the gravity of the crime committed and the exercise of judicial 
conscience befitting such offence found proved to have been 
committed. 
105. We, therefore, reiterate that, the power derived from 
the Penal Code for any modified punishment within the 
punishment provided for in the Penal Code for such specified 
offences can only be exercised by the High Court and in 
the event of further appeal only by the Supreme Court and 
not by any other Court in this country. To put it differently, 
the power to impose a modified punishment
providing for 
any specific term of incarceration or till the end of the 
convict's life as an alternate to death penalty, can be 
exercised only by the High Court and the Supreme Court 
and not by any other inferior Court". 
Relying on the aforesaid passages, it is contended by him that the 
decisions cited by the appellants are, no more good law and, in fact, 
have been impliedly overruled in view of what has been stated by the 
Constitution Bench. 
4 7. We do not think it appropriate to enter into the said debate. In 
the instant case, the prosecution had preferred an appeal under Section 
917 
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377 CrPC before the High Court for enhancement of sentence of 
imposition of life to one of death. On a reading of the said provision, 
there can be no trace of doubt that the High Court could have enhanced 
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[2016] 8 S.C.R. 
A 
the sentence ofimposition oflife to death. In this context, we may usefully 
refer to Jasltublw Bltaratsi11/1 Go/ti/ and otlters v. State of Gujarat" 
wherein it has been ruled thus:-
B 
c 
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" 12. It is needless for us to go into the principles laid down 
by this Court regarding the enhancement of sentence as 
also about the award of sentence of death, as the law on 
both these subjects is now well settled. There is undoubtedly 
power of enhancement available with the High Court which, 
however, has to be sparingly exercised. No hard and fast 
rule can be laid down as to in which case the High Court 
may enhance the sentence from life imprisonment to 
death .... " 
Thus, the power is there but it has to be very sparingly used. In 
the instant case, the High Court has thought it appropriate instead of 
imposing death sentence to impose the sentence as it has done. Therefore, 
the sentence imposed by the High Court cannot be found fault on that 
score. 
48. At this stage we think it appropriate to deal with another facet 
of the said submission. It is strenuously urged that the High Court can 
impose the punishment what the trial court can impose. In Jagat 
Bahadur (supra) it has been held that:-
"An appeal court is after all 'a Court of error', that is, a 
court established for correcting an error. If, while purporting 
to correct an error, the court were to do something which 
was beyond the competence of the
trying court, how could 
it be said to be correcting an error of the trying court? No 
case has been cited before us in which it has been held that 
the High Court, after setting aside an acquittal, can pass a 
sentence beyond the competence of the trying court. 
Therefore, both on principle and authority it is clear that the 
::1wer of the appellate court to pass a sentence must be 
measured by the power of the court from whose judgment 
an appeal has- been brought before it." 
49. In Jadltav (supra) the Cout1 ruled that:-
"An appeal is a creature of a statute and the powers and 
"' (1994) 4 sec 353
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
[DIPAK MISRA, J.] 
jurisdiction of the appellate court must be circumscribed by 
the words of the statute. Atthe same time a Court of appeal 
is a "Court of error" and its normal function is to correct 
the decision appealed from and its jurisdiction should be 
co-extensive with that of the trial court. It cannot and ought 
not to do something which the trial court was not competent 
to do. There does not seem to be any fetter to its power to 
do what the trial court could do." 
50. We have reproduced the said passages as the learned senior 
counsel appearing for the appellant would contend as the court of appeal 
919 
A 
B 
is only a "Com:toferror" and its jurisdiction should be co-extensive with 
that of the trial court. Both the decisions dealt with different kind of C 
offences where the sentence has been prescribed to be imposed for a 
particular by the trial court and in that context the Court held that the 
appellate court could not have imposed a sentence beyond the competence 
of the trial court. If the trial court has no jurisdiction to impose such a 
sentence, the High Court as a "Court of error" cannot pass a different 
D 
harsher sentence. There can be no dispute over the proposition stated in 
the said two authorities. But in the case at hand, the appellants were 
convicted under section 302 IPC and the trial court could have been 
impose the sentence of death and that apart, the appeal has been preferred 
by the
State. Thus, the ratio laid down in the said authorities is not 
applicable to the case at hand. 
E 
51. The next submission that is put forth is that the decision in V. 
Sriltaran (supra) runs counter to the principles stated in A.R. Antufoy 
(supra). Explicating the said stand, it is argued that in the said case the 
Constitution Bench had directed that the case of the petitioner should be 
tried by the learned Judge of the High Court as he was tried for the 
offence under the Prevention of Corruption Act, 1988. The Bench of 
seven-Judges recalled that order on three counts, namely, a trial under 
the Prevention of Corruption Act, 1988 has to be held by a special Judge 
appointed under the said Act and this Court has no jurisdiction to direct 
F 
the trial to be held by a High Court Judge; that the statutory right of the 
G 
petitioner for filing an appeal to the High Court could not be taken away 
by this Court; and that the earlier direction abridged the right of the 
petitioner therein under Articles 14 and 21 of the Constitution. Drawing 
an analogy it is contended that V. Sriharmt (supra) takes away the 
statutory right of the convict to apply for commutation/remission under 
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Sections 432 and 433 CrPC, and also affects the right under Article 21 
of the Constitution. Learned senior counsel for the appellants would 
contend that the principles stated in A.R. Antulay (supra) have not been 
kept in view in V. Sriltartm (supra) and, therefore, it is not a binding 
precedent and a two-Judge Bench should either say that it is per incuriam 
or refer it to a larger Bench. With regard to declaring a larger Bench 
judgment per incuriam, learned senior counsel for the appellants have 
drawn inspiration from the authority in Fibre Boards Private Limited, 
Bangalore v. Commissioner of Income-Tax, Bangalore45• In that 
case, the two-Judge Bench referred to Mam/es/1war Prasad v. 
Kan/1aiya La/46 and State of U.P. and anotlter v. Syntltetics and 
Chemicals Ltd. and anotlter7 and took note of the earlier Constitution 
Bench judgment in State of Orissa v. M.A. Tulloch and Co. 48, and 
held thus:-
"35. The two later Constitution Bench judgments in Raya/a 
Corpn. (P) Ltd. v. Director of Enforcement49 and 
Kolhapur Canesugar Works Ltd. v. Union of India;o 
also did not have the benefit of the aforesaid exposition of 
the law. It is clear that even an implied repeal of a statute 
would fall within the expression "repeal" in Section 6 of the 
General Clauses Act. This is for the reason given by the 
Constitution Bench in MA. Tulloch & Co. that only the 
form of repeal differs but there is no
difference in intent or 
substance. If even an implied repeal is covered by the 
expression "repeal", it is clear that repeals may take any 
form and so long as a statute or part of it is obliterated, 
such obliteration would be covered by the expression 
"repeal" in Section 6 of the General Clauses Act." 
52. Be it noted, the Court followed the principles stated in M.A. 
Tulloch and Co. (supra) and not in Raya/a Corpn. (~)Ltd. (supra). In. 
State of U.P. v. Synthetics and Chemicals Ltd.-'1 a two-Judge Bench 
of this Court held that one particular conclusion of a Bench of seven-
" (2015) 10 sec 333 
"(1975) 2 sec 232 
"(1991) 4 sec 139 
48 (1964) 4 SCR 461 
.. (1969) 2 sec 412 
'" (2000J 2 sec 536 
"{1991)4 sec 139
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
[DIPAK MISRA, J.] 
Judges in Synthetics and Chemicals Ltd. and others v. State of U.P. 
and others·'2 as per incuriam. The two-Judge Bench in Synthetics 
and Chemicals Ltd. (supra) opined thus:-
"36. The High Court, in our view, was clearly in error in 
striking down the impugned provision which undoubtedly 
falls within the legislative competence of the State, being 
referable to Entry 54 of List II. We are firmly of the view 
that the decision of this Court in Synthetics53 is not an 
authority for the proposition canvassed by the assessee in 
challenging the provision. This Court has not, and could not 
have, intended to say that the Price Control Orders made 
by the Central Government under the IDR Act imposed a 
fetter on the legislative power of the State under Entry 54 
of List II to levy taxes on the sale or purchase of goods. 
The reference to sales tax in paragraph 86 of that judgment 
was merely accidental or per incuriam and has, therefore, 
no effect on the impugned levy." 
53. The observations speak for themselves. We are not inclined 
to enter into the doctrine of precedents and the principle of per incuriam 
in the instant case. Suffice it to say that the grounds on which it is urged 
that the Constitution Bench decision in V. Sriharan (supra) runs counter 
to the larger Bench decision in A.R. Antulay (supra) are fallacious. In 
A.R. Antulay (supra), the High Court had no jurisdiction to try the case 
under the
Prevention of Corruption Act, 1988 and consequently, by virtue 
of a direction the accused was losing the right to appeal. Both could not 
have been done and that is why, the larger Bench reviewed the 
Constitution Bench judgment. For better appreciation, we may reproduce 
what Mukherjee, J. (as His Lordship then was) speaking forthree learned 
Judges had to say:-
" .. By reason of giving the directions on February 16, 1984 
this Court had also unintentionally caused the appellant the 
denial of rights under Article 14 of the Constitution by 
denying him the equal protection of law by being singled 
out for a special procedure not provided for by law. When 
these factors are brought to the notice of this Court, even if 
there are any technicalities this Court should not feel shackled 
" < 1990) 1 sec 109 
" (1990) 1 sec 109 
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and decline to rectify that injustice or otherwise the injustice 
noticed will remain forever a blot on justice. It has been 
said long time ago that "actus curiae neminem gravabit" 
- an act of the court shall prejudice no man. This maxim is 
founded upon justice and good sense and affords a safe 
and certain guide for the administration of the law." 
Andagain:-
"In the aforesaid view of the matter the appeal is allowed; 
all proceedings in this matter subsequent to the directions 
of this Court on 16-2-1984 as indicated before are set aside 
c 
and quashed. The trial shall proceed in accordance with 
law, that is to say under the Act of 1952 as mentioned 
hereinbefore." 
The majority concurred with the said opinion. 
54. In the case at hand, the question of forum of trial does not 
D arise. What is fundamentally argued is thatthe right of the appellants to 
submit an application is abrogated. An attempt has been made to elevate 
the same to a constitutional right. The right of an appeal and abrogation 
thereof by a direction of this Court is totally different and that is the 
principle which compelled the larger Bench to recall its order. They 
E 
applied the principle of ex debito justitiae and passed the order 
reproduced hereinabove. 
F 
55. Having adverted to the factual scenario, we have to understand 
the obtaining situation. In the present context, a convict is not permitted 
to submit an application under Section
433-A CrPC because of sentence 
imposed by a Court. There is no abrogation of any fundamental or 
statutory right. If the imposition of sentence is justified, as a natural 
corollary the principle of remission does not arise. The principle for 
applying remission arises only after expiry of 14 years ifthe Court imposes 
sentence of imprisonment for life. When there is exercise of expanded 
option of sentence between imprisonment for life and death sentence, it 
G comes within the sphere or arena of sentencing, We have already held 
that the said exercise of expanded option is permissible as has been held 
in many a judgment of this Court and finally by the Constitution Bench. 
The said exercise, on a set of facts, has a rationale. It is based on a 
sound principle. Series of judgments have been delivered by this Court 
H stating in categorical terms that imprisonment for life means remaining
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
923 
[DIPAK MISRA, J.] 
of the whole period of natural life of the convict. The principle of exercise 
A 
of expanded expansion has received acceptance because the Court when 
it does not intend to extinguish the spark oflife of the convict by imposing 
the death sentence. We have already discussed that facet earlier and 
not accepted the submission to refer the matter to the larger Bench. We 
have no hesitation in holding that the principles stated in A.R. Antulay 8 
(supra) do not apply to the application to be preferred under Section 
433-A CrPC, and, therefore, the judgment in V. Srilwrnn (supra) is a 
binding precedent. 
56. The next aspect that is required to be deliberated upon is the 
factual score of the case that would include the genesis of crime, the 
nature of involvement, the manner in which it has been executed, the 
C 
antecedents of the appellants, the motive that has moved the appellants 
to do away with a young life, the gravity and the social impact of the 
crime, the suffering.ofthe family of the victim, the fear of the collective 
when such a crime takes place, the category to which the High Court 
has fitted it, after expressing its disinclination not to impose the death 
D 
sentence and other connected factors. 
57. It is submitted by the learned counsel for the appellants that 
the imposition of fixed term sentence is highly disproportionate and 
unjustified in the particular facts of the case, for as
the conviction is 
based on the circumstantial evidence and as per the materials brought 
E 
on record only a single blow was inflicted not by any lethal weapon but 
by a hammer. Though the High Court has referred to various aggravating 
and mitigating circumstances, yet, it has misdirected itself by holding 
that the motive of crime is "honour killing", That apart, the High Court 
has taken into consideration the false plea ofalibi, intimidation of witnesses, 
misleading of the police in the matter of recovery, intimidation of the 
public prosecutor, the factum ofabscondence, conviction in another case, 
the inhuman treatment of the deceased, commission of murder while the 
appellants had the trust of the deceased, the depravity of the mind, 
reflection of cold bloodedness in commission of the crime, the brutality 
that shocks the judicial conscience, absence of probability ofreformation 
of the convicts and such other aspects of which some are not relevant 
and some have not been duly considered while imposing such harsh 
punishment. 
F 
G 
58. It is urged by them, the approach of the High Court dealing 
with death penalty and arriving at the conclusion that the case is not a H
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[2016) 8 S.C.R. 
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rarest of rare one has completely misdirected itself and, therefore, the 
imposition of fixed term sentence is wholly unsustainable. They have 
commended us to the authorities in Sltankar Kisanrao Kluule v. State 
of Maltaraslttra-'4, Oma alias Omprakaslt mu/ <motlier v. State of 
Tamil Nadu-'-', Molt<!. Farooq Abdul Gafur and anotlter v. State of 
B 
c 
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Mallaraslttra-'6, Mollinder Singh v. State of Punjab·" and Mangeslt 
v. State of Maltaraslitra-'8• 
59. Learned counsel for the State submits that the crime was 
premeditated and diabolic in nature and the same is evincible from the 
discussion of the judgment of conviction of the High Court and the said 
findings are beyond assail as no leave has been granted in that regard 
and the Special Leave Petition has been dismissed. According to the 
learned counsel for the State, the said findings which find place in the 
judgment of conviction are not subject to criticism and can be relied 
upon to describe the nature of commission of crime. Mr. Krishnan, 
would further submit that the sentence imposed is not disproportionate. 
60. On a careful scrutiny of the judgment of conviction, it is seen 
that the High Court has taken note of the facts that the deceased Nitish 
Katara and Bharti Yadav (sister of Vikas Yadav; first cousin sister of 
Vishal Yadav and; daughter ofShri D.P. Yadav who was also the employer 
ofSukhdev@Pehalwan) were in an intimate relationship aiming
towards 
permanency; that the family members of Bharti Yadav, including Vikas 
and Vishal Yadav, were opposed to this relationship; that the aversion 
stemmed from the reason that Nitish Katara did not belong to the same 
caste as that of Bharti Yadav, that his family belonged to the service 
class and belonged to economically lower strata; that Vishal Yadav and 
Sukhdev@ Pehalwan had not been invited to the wedding and had no 
reason for being there, other than perpetration of the crime; that Nitish 
Katara was abducted from the wedding venue by the appellants with 
the common intention to murder him; that in furtherance of their common 
intention Nitish Katara was thereafter murdered by the appellants; that 
after murdering Nitish Katara, the appellants removed his clothes, wrist 
G 
watch and mobile from his person and set aflame his dead body with the 
intention of preventing identification of the body and destroying evidence 
,. (2013) s sec 546 
"t20l3J 3 sec 440 
"t2010) 14 sec 641 
"(2013) 3 sec 294 
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"(2011) 2 sec 123
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
925 
rrnPAK MISRA, J.l 
of the commission of the offence; that immediately after the incident, 
A 
the three appellants absconded; that the dead body ofNitish Katara was 
found at 9.30 a.m. in the morning of l 7'h February, 2002 in a completely 
burnt, naked and unidentifiable condition on the Shikharpur Road which 
was recovered by the Khurja Police; that the body was having a lacerated 
wound on the head, a fracture in the skull, laceration and hematoma in 
B 
the brain immediately below the fracture; that Vikas and Vishal Yadav 
deliberately misled the police and took them to three places in Alwar 
(Rajasthan) to search for Tata Safari vehicle which was obviously not 
there; that Vikas and Vishal Yadav jointly misled the police to the taxi 
stand behind Shamshan Ghat( cremation ground) in Panipat to search 
for the Tata Safari which was again not there, and, enroute to Chandigarh 
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for the same purpose, got recovered the Tata Safari Vehicle bearing 
registration No. PB-07H 0085 recovered from the burnt down factory 
premises of Mis. A.B. Coltex Limited; that the appellant Sukhdev @ 
Pehalwan absconded for over three and half years despite extensive 
searches, raids, issuance of coercive process, attachment even at his 
D 
native village and that he could be arrested only on the 2J'd of February, 
2005 after he fired at police patrol party. 
61. From the aforesaid findings recorded by the High Court it is 
vivid that crime
was committed in a planned and cold blooded manner 
with the motive that has emanated due to feeling of some kind uncalled 
for and unwarranted superiority based on caste feeling that has blinded 
the thought of"choice available" to a sister -a representative of women 
as a class. The High Court in its judgment of conviction has unequivocally 
held that it is a "honour killing" and the said findings apart from being put 
to rest, also gets support from the evidence brought on record. The 
circumstantial evidence by which the crime has been established, clearly 
lead to one singular conclusion that the anger of the brother on the 
involvement of the sister with the deceased, was the only motive behind 
crime. While dwelling upon the facet of honour killing the High Court in 
the judgment of conviction has held:-
"2023. The instant case manifests that even in a household 
belonging to the highest class in society, (one in which you 
can make day trips with friends from Ghaziabad to Mumbai 
just to celebrate a birthday; owns multiple businesses and 
properties, luxury vehicles etc.) what can happen to even a 
young, educated, articulate daughter if she attempted to 
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break away from the conventional caste confines and 
explored a lifetime alliance with a member ofanother caste. 
Especially one who was also perceived to be of a lesser 
economic status. 
2024. We have found that immediately after Shivani Gaur's 
wedding, Bharti was completely segregated and confined 
by her family. On the I 7•h of February 2002 itself, she was 
spirited away from her residence in Ghaziabad to Faridabad. 
The police could record her statement under Section 161 
of the Cr.P.C. only on the 2nd of March 2002 that too under 
the eagle eye of her father, a seasoned politician. Shortly 
thereafter, she was sent out of India to U.K. and kept out 
of court for over three and a half years. Her testimony is 
evidence of the influence of her brothers and family as she 
prevaricates over trivial matters and denies established facts 
borne out by documentary evidence. Finally, when she must 
have been stretched to the utmost, she succumbs to their 
pressures when she concedes a deviously put suggestion. 
2025. Undoubtedly, the family ofNitish Katara has suffered 
at his demise and thereafter. Having given our thought to 
this issue, we are of the view that apart from the deceased 
and his family, there is one more victim in an "honour 
killing"." 
62. In this context we may refer with profit to the decision in 
Lala Sing It v. State of U.P. and anotlter;9 wherein it has been observed 
that:-
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"The caste
system is a curse on the nation and the sooner 
it is destroyed the better. In fact, it is dividing the nation at 
a time when We have to be united to face the challenges 
before the nation unitedly. Hence, inter-caste marriages are 
in fact in the national interest as they will result in destroying 
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the caste system. However, disturbing news are coming 
from several parts of the country that young men and women 
who undergo inter-caste marriage, are threatened with 
violence, or violence is actually committed on them. In our 
opinion, such acts of violence or threats or harassment are 
,. (2006) s sec 475 
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VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
927 
rmPAK MISRA, J.l 
wholly illegal and those who commit them must be severely 
A 
punished. This is a free and democratic country, and once 
a person becomes a major he or she can marry whosoever 
he/she likes." 
Andagain:-
"We sometimes hear of"honour" killings of such persons 
who undergo inter-caste or inter-religious marriage of their 
own free will. There is nothing honourable in such killings, 
and in fact they are nothing but barbaric and shameful acts 
of murder committed by brutal, feudal-minded persons who 
deserve harsh punishment. Only in this way can we stamp 
out such acts of barbarism." 
63. In Maya Kaur Baldevsingli Sardar and another v. State of 
Maltaraslttra60 this Court was constrained to observe thus:-
"26. We also notice that while judges tend to be extremely 
harsh in dealing with murders committed on account of 
religious factors they tend to become more conservative 
and almost apologetic in the case of murders arising out of 
caste on the premise (as in this very case) that society should 
be given time so that the necessary change comes about in 
the normal course. Has this hands-off approach led to the 
creation of the casteless utopia or even a perceptible 
movement in that direction? The answer is an emphatic 
'No' as would be clear from mushrooming caste-based 
organisations controlled and manipulated by self-appointed 
commissars who have arrogated to themselves the right to 
be the sole
arbiters and defenders of their castes with the 
licence to kill and maim to enforce their diktat~ and bring in 
line those who dare to deviate. Resultantly the idyllic 
situation that we perceive is as distant as ever. In this 
background is it appropriate that we throw up our hands in 
despair waiting ad infinitum or optimistically a millennium 
or two for the day when good sense would prevail by a 
normal evolutionary process or is it our duty to help out by 
a push and a prod through the criminal justice system? We 
feel that there can be only one answer to this question." 
~· (2007) 12 sec 654 
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64. In Arumugam Servai v. State of Tamil Nadu61 , the Court 
reiterated the principle stated in Lala Singlt(supra) and proceeded to 
state that:-
"12. We have in recent years heard of "Khap Panchayats" 
(known as "Katta Panchayats" in Tamil Nadu) which often 
decree or encourage honour killings or other atrocities in 
an institutionalised way on boys and girls of different castes 
and religion, who wish to get married or have been married, 
or interfere with the personal lives of people. We are of the 
opinion that this is wholly illegal and has to be ruthlessly 
stamped out. As already stated in Lata Singh case3, there 
is nothing honourable in honour killing or other atrocities 
and, in fact, it is nothing but barbaric and shameful murder. 
Other atrocities in respect of personal lives of people 
committed by brutal, feudal-minded persons deserve harsh 
punishment. Only in this way can we stamp out such acts 
of barbarism and feudal mentality. Moreover, these acts 
take the law into their own hands, and amount to kangaroo 
courts, which are wholly illegal." 
65. In Blta1:wan Dass v. State (NCT of Del/1i)62 the Court after 
referring to Lata Singlt's case (supra) was in anguish to observe:-
" ... .In our opinion honour killings, for whatever reason, 
come within the category of the rarest of rare cases 
deserving death punishment. It is time to stamp out these 
barbaric, feudal practices which are a slur on our
nation. 
This is necessary as a deterrent for such outrageous, 
uncivilised behaviour. All persons who are planning to 
perpetrate "honour" killings should know that the gallows 
await them." 
66. Be it stated, though the High Court treated the murder as 
"honour killing", yet regard being had to other factors did not think 
G 
appropriate to impose extreme penalty of death sentence. We may 
hasten to clarify that we have highlighted the factum of''honour killing'', 
as that is a seminal ground for imposing the fixed term sentence of 
twenty-five years for the offences under section 302/34 IPG on the two 
accused persons, who though highly educated in good educational 
"' (2011) 6 sec 405 
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"(2011) 6 sec 396
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
929 
[DIPAK MISRA, J.] 
institutions, had not cultivated the ability to abandon the depricable feel in gs 
A 
and attitude for centuries. Perhaps, they have harboured the fancy that 
it is an idea of which time had arrived from time immemorial and ought 
to stay till eternity. 
67. One may feel "My honour is my life" but that does not mean 
sustaining one's honour at the cost of another. Freedom, independence, 
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constitutional identity, individual choice and thought of a woman be a 
wife or sister or daughter or mother cannot be allowed to be curtailed 
definitely not by application of physical force or threat or mental cruelty 
in the name of his self-assumed honour. That apart, neither the family 
members nor the members of the collective has any right to assault the 
boy chosen by the girl. Her individual choice is her self-respect and 
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creating dent in it is destroying her honour. And to impose so called 
brotherly or fatherly honor or class honor by eliminating her choice is a 
crime of extreme brutality, more so, when it is done under a guise. It is a 
vice, condemnable and deplorable perception of"honour", comparable 
to medieval obsessive assertions. 
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68. Apart from the issue of honour killing, the High Court has 
also adjudicated to the brutal manner in which the crime has been 
committed. Mr. Lal it, learned senior counsel has highlighted on infliction 
of a single blow. The High Court appreciating the
material brought on 
record, has given a graphic description. 
E 
69. The High Court has also taken note of the impact of post-
offence events and observed that the deceased was burnt to such a 
point that his own mother could only suggest the identification from the 
small size of one unburnt palm with fingers of the hand that the body 
appeared to be that of her deceased son. The identification had to be 
F 
confirmed by DNA testing. While imposing the sentence, the High Court 
has been compelled to observe that the magnitude of vengeance of the 
accused and the extent to which they had gone to destroy the body of 
the deceased after his murder shows the brutality involved in the crime 
and the maladroit efforts that were made to destroy the evidence. From 
the evidence brought on record as well as the analysis made by the High 
G 
Court, it is demonstrable about the criminal proclivity of the accused 
persons, for they have neither the respect for human life nor did they 
have any concern for the dignity of a dead person. They had deliberately 
comatosed the feeling that even in death a person has dignity and when 
one is dead deserves to be treated with dignity. That is the basic human 
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right. The brutality that has been displayed by the accused persons clearly 
exposes the depraved state of mind. 
70. The conduct during the trial has also been emphasized by the 
High Court because it is not an effect to protect one-self, but the arrogance 
and the impunity shown in which they set up false defense and instilled 
shivering fear in the mind and heard of witnesses with the evil design of 
defeating the prosecution case. In fact, as has been recorded by the 
High Court, the public prosecutor was also not spared. The factum of 
abscondance and non-cooperation with the investigating team and also 
an maladroit effort to mislead the investigators have been treated as 
aggravating circumstances on the basis of authorities in Praveen Kumar 
v State of Karnataka63 and Yakub Abdul Razak Memon v State of 
Maltaraslltra64 • 
71. The criminal antecedents of accused Vikas Yadav has been 
referred to in detail by the High Court. He was prosecuted in "Jesica 
Lal murder case" and convicted under Section 20 I/I 20-B IPC and 
D 
sentenced to undergo rigorous imprisonment for four years and to pay a 
fine ofRs.2000 and, in default, of payment of fine, to further undergo 
imprisonment for three months. This Court in Sid/tart/ta Vasl1islit alias 
Manu Sltarma v State (NCT of Delhi)6-' affirmed the conviction. The 
conclusion reached while affirming the decision of the High Court, is as 
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follows:-
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"303. (9) The
High Court has rightly convicted the other 
two accused, namely, Amardeep Singh Gill @ Tony Gill 
and Vikas Yadav after appreciation of the evidence of PWs 
30and IOI." 
During the period, the said Vikas Yadav was on bail, he committed 
the present crime. 
72. Learned counsel for the appellants have submitted about the 
conduct of the appellants in jail during their custody and have highlighted 
that fourteen years in jail is of tremendous mental agony. In Maru Ram 
(supra), Krishna Iyer, J., to appreciate the despair in custody, thought it 
apposite to reproduce the bitter expression, from the poem, namely, The 
Ballad of Reading Gaol by Oscar Wilde. The poet wrote:-
63 (2003) 12 sec 199 
"(2013) 13 sec 1 
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VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
931 
[DIPAK MISRA, J.l 
"I know not whether Laws be right, 
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Or whether Laws be wrong, 
All that we know who lie in gaol 
Is that the wall is strong; 
And that each day is like a year, 
A year whose days are long." 
(emphasis added) 
In the said judgment, further lines from the poem have been 
B 
reproduced, which read thus:-
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"Something was dead in each of us, 
And what was dead was Hope. 
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The vilest deeds like poison weeds 
Bloom well in prison air: 
It is only what is good in Man" 
Despite the aforesaid quotation in Maru Ram (supra), the Court 
D 
upheld the validity of Section 433-A. 
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73. In V. Sriliaran (supra), the majority in the Constitution Bench 
has succinctly stated thus:-
" As far as the argument based on ray of hope is concerned, 
it must be stated that however much forceful the contention 
may be, as was argued by Mr.Dwivedi, the learned senior 
counsel appearing for the State, it must be stated that such 
ray of hope was much more for the victims who were done 
to death and whose dependants were to suffer the aftermath 
with no solace left. Therefore, when the dreams of such 
victims in whatever manner and extent it was planned, with 
reference to oneself, his or her dependants and everyone 
surrounding him was demolished in an unmindful and in some 
case in a diabolic manner in total violation of the Ruie of 
Law which is prevailing in an organized society, they cannot 
be heard to say only
their rays of home should prevail and 
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[2016] 8 S.C.R. 
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kept intact." 
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Andagain:-
"Therefore, we find no scope to apply the concept of ray 
of hope to come for the rescue of such hardened, heartless 
offenders, which if considered in their favour will only result 
in misplaced sympathy and again will be not in the interest 
of the society. Therefore, we reject the said argument 
outright." 
The said conclusion meets the argument so assiduously propounded 
by Mr. Lalit, learned senior counsel appearing forthe appellant. 
74. The next contention that is canvassed pertains to non-application 
of mind by the High Court while imposing the sentence, for two accused 
persons have been sentenced for twenty-five years and Sukhdev, the 
other appellant, has been sentenced to twenty years. The High Court, 
while dealing with Vikas Yadav and Vishal Yadav has opined that they 
D had misused the process oflaw while in jail and in their conduct there is 
no sign of any kind of remorse or regret. As far as the Sukhdev is 
concerned, the High Court has taken his conduct in jail which had been 
chastened and punishment was imposed once. The High Court has 
taken note of the fact that Sukhdev was the employee of the father of 
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Vikas Yadav and he is a married man with five children and on account 
of his incarceration, his family is in dire stress. A finding has been returned 
that he is not a person of substantial means and has lesser paying capacity. 
On the basis of these facts and
circumstances, the High Court has drawn 
a distinction and imposed slightly lesser sentence in respect ofSukhdev. 
74A. Thus analyzed, we find that the imposition of fixed term 
sentence on the appellants by the High Court cannot be found fault with. 
In this regard a reference may be made to a passage from Guru 
Bt1,.avaraj vs State of Karnataka66 , wherein while discussing about 
the co:icept of appropriate sentence, the Court has expressed thus:-
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"18 . .Just punishment is the collective cry of the society. While the 
collective cry has to be kept uppermost in the mind, simultaneously the 
principle of proportionality between the crime and punishment cannot be 
totally brushed aside. The principle of just punishment is the bedrock of 
sentencing in respect of a criminal offence. A punishment should not be 
H 
" (2013) 7 sec 545
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
933 
[DIPAK MISRA, J.) 
disproportionately excessive. The concept of proportionality allows a 
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significant discretion to the Judge but the same has to be guided by 
certain principles. In certain cases, the nature of culpability, the 
antecedents of the accused, the factum of age, the potentiality of the 
convict to become a criminal in future, capability of his reformation and 
to lead an acceptable life in the prevalent milieu, the effect- propensity 
B 
to become a social threat or nuisance, and sometimes lapse of time in 
the commission of the crime and his conduct in the interregnum bearing 
in mind the nature of the offence, the relationship between the parties 
and attractability of the doctrine of bringing the convict to the value-
based social mainstream may be the guiding factors. Needless to 
emphasise, these are certain illustrative aspects put forth in a condensed 
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manner. We may hasten to add that there can neither be a straitjacket 
formula nor a solvable theory in mathematical exactitude. It would be 
dependent on the facts of the case and rationalized judicial discretion. 
Neither the personal perception of a Judge nor self-adhered moralistic 
vision nor hypothetical apprehensions should be allowed to have any 
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play. For every offence, a drastic measure cannot be thought of. Similarly, 
an offender cannot be allowed to be treated with leniency solely on the 
ground of discretion vested in a court. The
real requisite is to weigh the 
circumstances in which the crimeincarcination meaning] has been 
committed and other concomitant factors which we have indicated 
hereinbefore and also have been stated in a number of pronouncements 
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by this Court. On such touchstone, the sentences are to be imposed. 
The discretion should not be in the realm of fancy. It should be embedded 
in conceptual essence of just punishment." 
75. Judged on the aforesaid parameters, we reiterate that the 
imposition of fixed terms sentence is justified. 
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76. The next submission pertains to the direction by the High Court 
with regard to the sentence imposed under Section 201 to run 
consecutively. Learned counsel for the appellants have drawn our 
attention to the Constitution Bench decision in V. Srilwran (supra) . 
The larger Bench was dealing with the following question:-
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"Whether consecutive life sentences can be awarded to a 
convict on being found guilty of a series of murders for 
which he has been tried in a single trial?" 
77. Learned counsel appearing for the appellants have drawn out 
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[20 I 6] 8 S.C.R. 
A attention to the analysis whether a person sentenced to undergo 
imprisonment for life when visited with the "term sentence" should suffer 
them consecutively or concurrently. The larger Bench in that context 
has held thus:-
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"We do not, however, think so. The power of the Court to 
direct the order in which sentences will run is unquestionable 
in view of the language employed in Section 31 of the Cr.P.C. 
The Court can, therefore, legitimately direct thatthe prisoner 
shall first undergo the term sentence before the 
commencement of his life sentence. Such a direction shall 
be perfectly legitimate and in tune with Section 31. The 
converse however may not be true for ifthe Court directs 
the life sentence to start first it would necessarily imply 
that the term sentence would run concurrently. That is 
because once the prisoner spends his life in jail, there is no 
question of his undergoing any further sentence." 
78. In the instant case, the trial Court has imposed the life sentence 
and directed all the sentences to be concurrent. The High Court has 
declined to enhance the sentence from imprisonment for life to death, 
but has imposed a fixed term sentence. It curtails the power of remission 
after fourteen years as envisaged under Section 433-A. In such a situation, 
we are inclined to think that the principle stated by the aforesaid 
Constitution Bench would apply on all fours. The High Court has not
directed that the sentence under Section 20 I /34 IPC shall run first and, 
thereafter, the fixed term sentence will commence. Mr. Dayan Krishnan, 
learned senior counsel appearing for the State has argued that this Court 
should modify the sentence and direct that the appellants shall suffer 
rigorous imprisonment for the offence punishable under Section 201/34 
!PC and, thereafter, suffer the fixed term sentences. Similar argument 
hi!s been made in the written submission by the learned counsel for the 
11! formant. As the High Court has not done it, we do not think that it will 
be appropriate on the part of this Court in the appeal preferred by the 
G appellants to do so. Therefore, on this score we accept the submission 
of the learned counsel for the appellants and direct that the sentence 
imposed for the offence punishable under Section 201/34 IPC shall run 
concurrently with the sentence imposed for other offences by the High 
Court. 
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79. The last plank of submission advanced by the learned counsel
VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. 
935 
[DIPAK MISRA, J.] 
for the appellant pertains to imposition of fine by the High Court. The 
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High Court has already given the reasons and also adverted to the paying 
capacities. The concept of victim compensation cannot be marginalized. 
Adequate compensation is required to be granted. The High Court has 
considered all the aspects and enhanced the fine, determined the 
compensation and prescribed the default clause. We are not inclined to 
B 
interfere with the same. 
80. Consequently, the appeals are disposed of with the singular 
modification in the sentence i.e. the sentence under Section 201/34 !PC 
shall run concurrently. Needless to say, all other se.ntences and directions 
will remain intact. 
Devika Gujral 
Appeals disposed of. 
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