Supreme Court Affirms Conviction Of Woman For Fiance's Murder; Allows Her & Aides To Seek Governor's Pardon

The bench of Justice MM Sundresh and Justice Aravind Kumar was hearing an appeal against the decision of the Karnataka High Court, which upheld the conviction of the appellants under S. 302 IPC read with S.120 B IPC and a life sentence imposed upon them.

The case pertains to the murder committed by a young college-going woman, Shubha, of her fiancé (deceased) with the help of her close friend Arun Verma, along with two others, Venkatesh and Dinesh @ Dinakaran.

The deceased was attacked on the night of December 3, 2003, when he was out for dinner with Shubha, when 3 other accused came and inflicted fatal injuries on the head of the deceased with the help of a steel rod and fled from the spot.

Notably, the Court observed that Shubha's motive for conspiring to kill the deceased was because she was being forced into marriage by her parents against her will and confided this in her close friend Arun

While the Apex Court upheld the conviction, it took a sympathetic stand towards the appellants and granted them an opportunity to seek a pardon from the Governor of Karnataka. 

Notably, Article 161 elaborates on the power of the Governor to grant a pardon or commute sentences for any offence. It reads:

“The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”

Article 161 Embodies State's Larger Vision Of Administering Punishments With Equity & Humanity :

The Court interpreted that the purpose of Article 161 is, from a reformatory standpoint, there the criminal has the scope of improving and can be integrated back into society. It observed that such a power is sovereign and constitutional courts only have a limited scope to interfere in it : 

"Article 161 of the Constitution has an in-built laudable objective. This Article emphasizes the role of the State to facilitate an offender to be reintegrated into society, after realizing his mistake. This power is sovereign, and is to be exercised on the advice of the Council of Ministers. Thus, it grants the Constitutional Court only a limited power of judicial review."

The Court went a step ahead to analyse that while there are other statutory remedies which are similar to the powers under Article 161, like Sections 473 and 474 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponding to Sections 432 and 433 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C'), they cannot be equated to Article 161. 

Drawing a contrast between the statutory powers to commute a sentence and constitutional powers under Article 161, the Court held that the latter has a wider scope. The distinction was based on (1) Statutory powers would apply, definingly as per the words of the provisions, only to a certain class of convicts, while Article 161 is based on the discretion of the Governor; 

(2) Statutory powers derive their authority from the legislation, while the powers under Article 161 are based upon the Constitutional ethos itself and (3) thus the former deals with legislation-oriented purposes, while the latter is aimed at ensuring equity and humanity are considered while reviewing the issue of punishment. 

"While statutory provisions govern classes of convicts collectively, the prerogative of pardon is generally exercised discretely in specific instances. Therefore, the scope of this power is much broader and is to be applied on a case-to-case basis." 

"A constitutional power is fundamentally different and distinct from a statutory one. While statutory powers are derived from laws enacted by legislatures and remain subject to amendment or repeal, constitutional powers originate from the Constitution itself. Therefore, the power to pardon, reprieve, respite, remit etc. forms part of the constitutional ethos, goal and culture. Unlike statutory provisions, which are tailored to address specific scenarios or population demographics, constitutional powers embody the State's commitment to a broader ethical vision – one that prioritizes humanity and equity, even in the administration of punishment."

Powers Under Article 161 Can Be Exercised Irrespective Of Procedural Law Limitations 

The Court also placed reliance on two previous decisions, namely Maru Ram v. Union of India and Ors., and Shatrughan Chauhan and Anr. v. Union of India and Ors.

In Maru Ram, the Court observed “We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar power, and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.”

Here, the bench was considering the challenge to the constitutional validity of S.433A CrPC (restriction on powers of remission) and the issue of whether the President can exercise his personal discretion under Article 72 ( Powers of Presidential Pardon)

In Shatrughan Chauhan, the Court explained how Articles 72 and 161 vested a constitutional responsibility upon the President or Governor. It held :

19. In concise, the power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is a constitutional duty. As a result, it is neither a matter of grace nor a matter of privilege but is an important constitutional responsibility reposed by the People in the highest authority. The power of pardon is essentially an executive action, which needs to be exercised in the aid of justice and not in defiance of it. Further, it is well settled that the power under Articles 72/161 of the Constitution of India is to be exercised on the aid and advice of the Council of Ministers.

47. It is clear that after the completion of the judicial process, if the convict files a mercy petition to the Governor/President, it is incumbent on the authorities to dispose of the same expeditiously. Though no time-limit can be fixed for the Governor and the President, it is the duty of the executive to expedite the matter at every stage viz. calling for the records, orders and documents filed in the court, preparation of the note for approval of the Minister concerned, and the ultimate decision of the constitutional authorities.

In Chauhan's case the bench was hearing a batch of petitions seeking a writ of declaration declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the President of India is unconstitutional and to set aside the death sentence imposed upon the petitioners by commuting the same to imprisonment for life. 

The bench thus concluded that powers under Article 161 can be exercised irrespective of there being any rules or circulars made under Section 473 of the BNSS. It was stressed that the execution of justice cannot be limited by procedural rules alone when there exist constitutional powers in parallel. 

"We would only clarify that, notwithstanding the existence of a Circular or a Rule introduced by way of a statutory power under Section 473 of the BNSS, the constitutional powers granted under Article 161 of the Constitution, can also be exercised in a given case. Thus, even in cases where statutory mechanisms exist, the constitutional mandate under Article 161 of the Constitution remains inviolable and exercisable, in order to ensure that justice in individual cases is not constrained by procedural norms."

Why The Bench Upheld The Conviction?

On September 13, 2010, the Trial Court convicted all 4 appellants under S. 120 B IPC (criminal conspiracy) and Venkatesh, alone was convicted and sentenced to life for the offence under S. 302 . Shubha was additionally convicted and sentenced for 3 years simple imprisonment for the offence under S. 201 (causing disappearance of evidence/ giving false information to screen an offender), with sentences imposed to run concurrently.

Both the State and the Appellants appealed against the decision before the High Court. Dismissing the appeal of the appellants, the High Court allowed the appeal of the State in part. The Court modified the conviction of the appellants to one under Section 302 read with Section 120-B of the IPC. The sentence of life imprisonment imposed upon the appellants was confirmed.

The present bench upheld the conviction. While it rejected the credibility of the two eyewitnesses' testimony, who were apparently present at the spot because of their unnatural conduct during the incident, the bench proceeded to uphold the guilt on the basis of circumstantial evidence.

The Court relied on the 5 golden principles laid down in the decision in Sharad Birdhichand Sarda v. State of Maharashtra, which held the following factors for testing the credibility of any circumstantial evidence :

(1) “the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

The Court held that there was circumstantial evidence to establish the guilt of the appellant on the basis of the following reasons : (1) motive of Shubha was proved by the statement of her close friend Pramod Dixit who clearly stated that Shubha confessed to him about her unwillingness to marry the deceased; (2) the Call Detail Records (CDR) were proven admissible under Section 65-B(4) of the Indian Evidence Act (IEA) considering the certificates furnished by Airtel and Reliance;

(3) The CDR proved that the communications between the accused persons during the engagement ceremony of Shubha, at the time of the incident and even immediately after the incident were 'astounding';

(4) Recovery of the scooter and the iron steel used for attacking the deceased was upheld. The bench held that just because two of the accused (Arun and Venkatesh) were present during the time of recovery of the steel rod, it cannot be said that the recovery was done as per a joint disclosure and is inadmissible under S. 27 of IEA. It noted that separate 'voluntary' statements of the two appellants were also recorded.

The Court placed reliance on the decision in Kishore Bhadke v. State of Maharashtra which held that “When two persons in custody are interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact which was reduced into writing, such disclosure by two or more persons in police custody do not go out of the purview of Section 27 altogether.”

(5) The delay in sending the steel rod for FSL analysis was rejected as a ground to discard the evidence. The Court relied on the decision in State of Madhya Pradesh v. Chhaakki Lal and Anr where it is held that “ Such delay in sending the recovered weapons to FSL could only be an omission or lapse on the part of the Investigating Officer. Such omissions or lapses in the investigation cannot be a ground to discard the prosecution case, which is otherwise credible and cogent.”

(6) The Court also found that the absence of the messages on the phones, coupled with the failure of the accused to offer a sufficient explanation for their extensive communications right before the incident, especially by Shubha and Aru,n would establish the offence under S. 201 IPC.

(7) The Court rejected the plea of alibi taken by Arun that he was at the hospital to see his father-in-law at the night of the incident. It was noted that the hospital discharge summary did not show the presence of arun. The medical superintendent's statement disclosed that the hospital did not maintain any visitor records.

The Court thus concluded “the appeals stand dismissed by confirming the conviction of the appellants rendered by the High Court under Section 302 read with Section 120-B of the IPC and additionally, Section 201 of the IPC for A-4 alone. The sentence of life imprisonment imposed upon them also stands confirmed.”

Appellants Allowed To Seek Pardon Under Article 161

The bench, however, granted an opportunity to the appellants to seek a pardon from the Karnataka Governor, considering that the crime was committed by Shubha (A-4) out of frustration of being forced to marry against her will. While acknowledging that her crime cannot be condoned, the bench also considered that 22 years have lapsed since the incident. 

“Ultimately, A-4 was unable to make a decision for herself, despite being an individual who had attained majority. Having said so, we cannot condone her action as it resulted in the loss of an innocent life of a young man. We would only state at this juncture, that A-4 was made to commit this offence by adopting the wrong course of action in order to address her problem. Years have rolled on since the occurrence of the crime, which was in 2003.”

“In light of the same, we would like to facilitate the appellants' right to seek pardon by permitting them to file appropriate petitions before His Excellency the Hon'ble Governor of Karnataka. We would only request the constitutional authority to consider the same, which we hope and trust would be done by taking note of the relevant circumstances governing the case.”

The Court granted eight weeks' time from the date of the judgment for the appellants to file appropriate petitions seeking to invoke the power of pardon under Article 161 of the Constitution. Until the appellants' pardon petitions are considered, their sentences have been suspended by the court.