Shiv Mangal Ahirwar v. State of Madhya Pradesh

1. Heard learned counsel for the parties.

FACTUAL ASPECTS

2. This is a case where, on 15th March 2006, the present appellant, along with other co­accused, committed the murder of three persons. According to the case of the prosecution, the incident occurred at about 7 p.m. on 15th March 2006 at Village Khaira Kasar, PS Jujharnagar. It is alleged that the accused persons Criminal Appeal No.814 of 2023 formed a wrongful assembly with the common object of murdering Rambabu, Dileep and Babbu. The accused were armed with deadly weapons, such as a country­ made pistol, lance, javelin, battle­axe, axe and sticks. Apart from killing three persons, they caused injuries to one Bhola and Smt. Shanti. The Sessions Court convicted the appellant for the offence under Section 302, read with Section 149 (on three counts) of the Indian Penal Code, 1860 (for short, ‘the IPC’). Three other co­ accused were also convicted for the same offence. All the accused were sentenced to undergo life imprisonment with a direction that their imprisonment shall continue for the rest of their lives. In the appeal preferred by the present appellant, the High Court has confirmed the sentence.

3. The learned counsel appearing for the appellant has challenged the conviction on merits by contending that the identification of the accused is doubtful. His submission is that as far as the appellant is concerned, there is no convincing evidence of his involvement in the offence. His other submission is that at the time of the commission of the offence, the age of the appellant was about 20 years, and on the date of the order of conviction passed by the Trial Court on 20th April 2010, his age was about 25 years. He submitted that the present age of the appellant is 38 years. He submitted that in view of the decision of the Constitution Bench in the case of Union of India v. V. Sriharan alias Murugan & Ors.1, the Sessions Court had no jurisdiction to direct that the appellant shall undergo imprisonment for the rest of his life. His submission is that such a power could have been exercised only by the Constitutional Courts when there was a question of commuting the death sentence.

4. The learned Additional Advocate General appearing for the respondent – State submitted that it is a case of the brutal murder of three persons at a time. His submission is that the appellant and other co­accused were carrying deadly weapons with the intention of killing three victims. He submitted that both the Courts believed the testimony of the three prosecution witnesses, namely Shanti Bai (PW­3), Sangeeta (PW­4) and Guddi Bai (PW­7). He would, therefore, submit that no interference is called for. As regards the sentence, his submission is that the High Court always had the power to impose a modified punishment which will run through the life of the appellant. After an application of mind, the High Court has confirmed the view taken by the Sessions Court, as far as the sentence of the appellant is concerned. He pointed out that the trial of the five other 1 2016 (7) SCC 1 accused was separated. This Court has confirmed their conviction and sentence by order dated 23rd September 2022 in S.L.P. (Crl.) Diary No.16999 of 2022.

5. We have perused the judgments of both the Courts and depositions of material witnesses and, in particular, the evidence of PW­3, PW­4 and PW­7, who were the eye­ witnesses. We find that in their cross­examination, no material is brought on record to discredit their version. After appreciating the evidence of these three eyewitnesses, the Sessions Court and the High Court found them to be trustworthy and therefore, their evidence has been relied upon.

6. After having perused their evidence, we find no reason to take a contrary view. Now, the only question which survives is about the sentence.

7. This Court, in the case of Shiva Kumar alias Shiva alias Shivamurthy v. State of Karnataka[2], had an occasion to deal with the decision of the Constitution Bench of this Court in the case of V. Sriharan[1]. This Court also considered its earlier decision in the case of Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka[3]. While considering the

3 2008 (13) SCC 767 law laid down by the Constitution Bench in the case of V. Sriharan[1], in Shiva Kumar’s case[2], this Bench in paragraphs 11 to 13 held thus:

13. Hence, we have no manner of doubt that even in a case where capital punishment is not imposed or is not proposed, the Constitutional Courts can always exercise the power of imposing a modified or fixed­term sentence by directing that a life sentence, as contemplated by “secondly” in Section 53 of the IPC, shall be of a fixed period of more than fourteen years, for example, of twenty years, thirty years and so on. The fixed punishment cannot be for a period less than 14 years in view of the mandate of Section 433A of Cr.P.C.” (emphasis added)

8. Though the Sessions Court could not have imposed a modified sentence by directing that the appellant shall be imprisoned for the rest of his life, the High Court could have certainly imposed such a punishment.