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IN SUPREME COURT OF INDIA Page 1 of 8

CASE NO.:
Appeal (crl.) 454 of 2006

PETITIONER:
Swamy Sharaddanandea @ Murali Monahar Mishra

RESPONDENT:
State of Karnataka

DATE OF JUDGMENT: 18/05/2007

BENCH:
Markandey Katju

JUDGMENT:
J U D G M E N T

MARKANDEY KATJU, J.

1. I have perused the judgment of my learned brother Hon’ble S.B.

Sinha, J. in this case. The facts of the case have been narrated in the
judgment of my learned brother and hence I am not referring to them except
where necessary.

2. While I entirely agree with my learned brother that the conviction of

the appellant under Section 302 and other provisions of IPC imposed by the
Trial Court and High Court deserves to be upheld, I express my inability
with my learned brother that the death sentence imposed by the Trial Court
and confirmed by the High Court should be reduced to life sentence. In my
opinion this case falls within the category of rarest of rare cases and hence
the appellant deserves death sentence.

3. In Aloke Nath Dutta & Ors. vs. State of West Bengal 2006(13)
SCALE 467 a Division Bench of this Court referred to the Constitution
Bench judgment of this Court in Bachan Singh vs. State of Punjab AIR
1980 SC 898 in which it is laid down that death penalty should only be
imposed in the rarest of rare cases. In Machi Singh vs. State of Punjab
1983 (3) SCC 470 (vide paragraphs 32 to 37) a 3 Judge Bench of this Court
gave the following illustrations of murders which fall within the category of
’rarest of rate cases’ and hence deserved death penalty.

(i) When the murder is committed in an extremely

brutal, grotesque, diabolical, revolting or dastardly
manner so as to arouse intense and extreme
indignation of the community.

(ii) When the murder is committed for a motive which

evinces total depravity and meanness; e.g. murder
by hired assassin for money or reward; or cold-
blooded murder for gains of a person vis-‘-vis
whom the murderer is in a dominating position or
in a position of trust; or murder is committed in the
course of betrayal of the motherland.

(iii) When murder of a member of a Scheduled Caste

or minority community, etc. is committed not for
personal reasons but in circumstances which
arouse social wrath; or in cases of "bride-burning"
or "dowry deaths" or when murder is committed in
order to remarry for the sake of extracting dowry
once again to marry another woman on account of
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infatuation.

(iv) When the crime is enormous in proportion. For

instance when multiple murders, say of all or
almost all the members of a family or a large
number of persons of a particular caste,
community, or locality, are committed.

(v) When the victim of murder is an innocent child, or

a helpless woman or old or infirm person or a
person vis-‘-vis whom the murderer is in a
dominating position, or a public figure generally
loved and respected by the community.

4. In Bachan Singh’s case (supra), the Constitution bench observed that

the death penalty contemplated by Section 302 IPC is not unreasonable or
against the public interest, and it does not violate Articles 19 or 21 of the
Constitution. In the same decision it was also observed (vide para 201) that
judicial discretion cannot be fettered by attempting to make an exhaustive
enumeration one way or the other. Hence, it follows that the 5 principles
referred to in Aloke Nath Dutta’s case (supra) justifying award of death
penalty can only be treated as illustrative and not exhaustive.

5. In Holiram Bordoloi vs. State of Assam 2005 (3) SCC 793 this
Court observed that pre-planned, calculated, cold-blooded murder has
always been regarded as one of an aggravated kind. A murder diabolically
conceived and cruelly executed would justify the imposition of the death
penalty on the murderer.

6. In my opinion the facts of the present case clearly fall within the
category of rarest of rare cases as laid down by the Constitution Bench
Judgment in Bachan Singh’s case and in Machi Singh’s case (supra). It
clearly comes within the first, second and fifth categories mentioned above,
and it falls under the category of rarest of rare cases deserving death
sentence.

7. No doubt as observed in paragraph 173 of the judgment in

Aloke Nath Dutta’s case (Supra) there has been a growing demand in the
international fora that the death penalty should be abolished. However, in
my opinion, in India the death penalty cannot be abolished by a judicial
verdict as death sentence is contemplated by the Constitution and the I.P.C.
Thus Article 72(1)(c) of the Constitution specifically mentions that the
President of India has the power to grant pardons, reprieves or suspension of
any death sentence. Similarly Article 72(3) also contemplates the power in
the Governor of the State to suspend, remit or commute a death sentence.
Hence if we hold that the Courts have no power to impose a death sentence
we will really be amending the Constitution by a judicial verdict. Again, if
we hold that the Courts have no power to impose death sentence merely
because the death sentence has been abolished in some foreign countries in
Europe or because there is a demand in the international fora that death
sentence should be abolished, we will be really amending the Constitution
by a judicial verdict. In my opinion this Court has no power to amend the
Constitution by a judicial verdict. The Constitution can only be amended by
Parliament in the manner prescribed by Article 368 of the Constitution. This
Court cannot arrogate to itself the power of Parliament under the
Constitution and must maintain self-restraint. Moreover, what has happened
in foreign countries cannot be automatically applied to our country where
the situation is different.

8. No doubt Parliament can abolish the death sentence by deleting it as

one of the punishments prescribed in the I.P.C or other statutes, but this
Court cannot do so. The Court cannot legislate or amend the law. There is
broad separation of powers under the Constitution and this Court must not
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ordinarily encroach into the legislative or executive domain as held by us in
Indian Drugs & Pharmaceuticals Ltd. Vs. The Workman of Indian
Drugs & Pharmaceuticals Ltd. 2007(1) SCC 408.

9. In my opinion the facts of the present case clearly fall within the
principle of the first, second and fifth category mentioned earlier in this
judgment and thus this case falls within the category of the rarest of rare
cases. It is a case of a pre-planned and cold blooded murder diabolically
conceived and cruelly executed.

10. Before coming to the facts of the case I would also like to say that
there cannot be an absolute principle of law that merely because there has
been a long lapse of the time from the commission of the offence and the
final conviction and sentence by this Court the death penalty can never be
imposed. It all depends on the facts of each case. It is well known that
now-a-days a long interval of time frequently occurs between the
commission of the offence and the final conviction by this Court (because of
the delays in the trial, appeals, etc.), and hence if we lay down any absolute
principle of law that merely because of this long interval death penalty
cannot be imposed then in all such cases merely because of lapse of time
death penalty cannot be imposed even though the murder was cold blooded,
diabolical and heinous. This again would be amending the Constitution by a
judicial verdict. Moreover this would give encouragement to the accused
and their lawyers to delay proceedings in Court (by unnecessary
adjournments, interlocutory applications, etc.) to avoid the death penalty. I,
therefore, cannot agree with the view that merely because a long lapse of
time has occurred between the commission of the offence and the final
decision of this Court the death penalty cannot be imposed.

11. I also do not agree with the observations in paragraph 173 of the
Aloke Nath Dutta’s case (Supra) that in cases of circumstantial evidence
ordinarily the death penalty should not be awarded. In my opinion no such
absolute proposition of the law can be been laid down. It all depends on the
facts of each case. Criminals have been hanged even on the basis of
circumstantial evidence. Hence I cannot agree that we can lay down any
such absolute proposition as was laid down in Aloke Nath Dutta’s case
(Supra). There is no principle of law that only direct evidence is strong and
reliable while circumstantial evidence is weak and unreliable.
Circumstantial evidence can be as strong and reliable as direct evidence, but
the only requirement is that the prosecution must establish beyond
reasonable doubt that there is a chain of links which connects the accused
with the crime.

12. I may now deal with the facts of the present case which clearly shows
the diabolical, cold blooded, evil mind of the appellant who has acted in a
most depraved, malevolent and condemnable manner, taking advantage of a
lady’s innocence.

13. The deceased Smt. Shakereh was married to one Mr. Akbar Khaleeli
who was in the Indian Foreign Service. They had four daughters. In 1983
the deceased along with her children visited the Nawab of Rampur who was
evidently a friend of the deceased and her husband. The accused was at that
time assisting the Rampur royal family in the management of their landed
properties and he was introduced to the Khaleeli family. After getting
acquainted with them the accused gained their confidence. Since certain
matters relating to the properties of the deceased at Bangalore needed to be
sorted out she sought assistance of the accused having regard to his alleged
expertise in dealing with property matters. The deceased Smt. Shakereh
who comes from a good family had inherited huge properties including
House No.81, Richmond Road, Bangalore, and other properties.

14. Since, Mr.Akbar Khaleeli had to go to Iran on his posting as a

diplomat, Smt. Shakereh came to Bangalore. The accused also came to
Bangalore and was provided accommodation in the same house. It is stated
that Shakereh had only daughters and she longed for a son. The accused
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made her believe that he could bless her with a son. In 1985, Akbar Khaleeli
and Smt. Shakereh divorced, and a few months thereafter the deceased
married the accused and both started living together in House No.81,
Richmond Road, Bangalore.

15. However, even after divorce and second marriage of Smt. Shakereh
her relationship with her parents and daughters remained unaffected and she
was in regular touch with her daughter Sabah, P.W. 5 by talking with her
over telephone or meeting her personally. Sabah was a model and publisher
of a fashion magazine in Mumbai, and she would regularly telephone her
mother, sometimes twice a day. She would also get telephone calls regularly
from her mother. However, from May 1991, the deceased became
unavailable and when Sabah tried to contact her on telephone, the accused
informed her that her mother had gone to Hyderabad for the marriage of a
relative. Telephone calls from the deceased to Sabah also stopped coming
from May 1991. After four or five days Sabah again telephoned to her
mother’s house at Bangalore, and this time she was told by the accused that
Shakereh had gone to Kutch for a marriage of a big diamond merchant.
Again after four or five days Sabah telephoned to her mother’s house. This
time the accused told her that her mother was facing income tax problems
and hence she was not in a position to talk to anyone.

16. Since Sabah was not able to speak to her mother despite repeated
endeavours and since telephone calls from her mother stopped coming to
her, she came from Mumbai to Bangalore and went to House No.81,
Richmond Road. She asked the accused as to where her mother was. The
accused told her that since her mother was longing for a male baby she had
become pregnant and wanted a peaceful atmosphere for nine months. When
Sabah asked where her mother had gone, the accused told her she was
admitted in Roosevelt Hospital, New York, since it was the best hospital.
Sabah then asked the accused to give the telephone number and address of
the hospital where her mother was admitted, but the accused refused to give
her the address or telephone number saying that since her mother wanted a
peaceful atmosphere the telephone number and address were unnecessary.
Later Sabah contacted the Roosevelt hospital at New York through a friend
and came to know that no woman of the name Shakereh was admitted in the
hospital. Sabah then confronted the accused and told him that there was no
one in the name of her mother in the hospital and asked the accused to tell
her where her mother was. The accused told Sabah that since her mother
was pregnant and wanted to keep it a secret and rest for nine months so he
could not give her the correct address. Sabah then asked the accused to at
least allow her to speak with her mother on telephone so that she could hear
her mother’s voice, but the accused did not do that. Sabah came to
Bangalore but did not find her mother there. At Bangalore whenever any
telephone rang the accused used to lift the receiver and tell Sabah that the
telephone was from her mother, but before Sabah could go near the
telephone, the telephone used to get disconnected and the accused told her
that the call was from her mother.

17. Sabah then returned to Mumbai. Thereafter, the accused visited

Mumbai two or three times where he used to stay at Taj hotel, which is a
very costly hotel with two or three persons. These two or three persons were
women. In December 1991, the accused came to Mumbai and stayed at Sea
Rock hotel (which is also a very expensive hotel). The accused told Sabah
that he had come to attend a marriage. Sabah went to the room of the
accused in the hotel and saw her mother’s passport there which showed that
her mother had not left India for any foreign country since 1989. The
accused told Sabah that her mother was in India and asked her to be patient
for some more months. In March 1992, Sabah rang the accused and told
him that it was already nine months since the time the accused told her that
Shakereh was pregnant and now he had to tell her the whereabouts of her
mother otherwise she would lodge a police complaint. To that, the accused
told Sabah to remain patient and he would inform her in a day or two. After
two or three days the accused informed her that her mother had given birth
to a male child. When Sabah asked him to give the address of her mother
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the accused evaded the question and told her to wait for some more time.
The accused then asked Sabah to come to Bangalore where she could meet
Shakereh and the child. Accordingly, Sabah informed the accused the date
of her journey and came to Bangalore by air but did not find either the
accused, her mother or the child at house No. 81, Richmond Road. After
four hours of her arrival in the house, the accused came to the house and told
Sabah that he along with Shakereh were waiting for her at the airport and
when they did not find Sabah there, the accused left Shakereh in the farm
house. The accused then told Sabah that her mother would be coming the
next day and there was no need to lodge any complaint.

18. Since the accused did not produce Shakereh and did not give Sabah
the whereabouts of her mother, Sabah returned to Mumbai and then again
came to Bangalore and lodged an FIR in Ashoknagar police station on
10.6.1992 stating that her mother had been missing.

19. The investigation was entrusted to the Central Crime Branch (CCB),
Bangalore on 26.3.1994 since the Ashok Nagar police did not make serious
efforts in the matter. The Central Crime Branch suspecting the role of the
accused in the disappearance of Smt. Shakereh arrested the accused on
28.3.1994 and interrogated him thoroughly. It is stated that during
interrogation the accused broke down and made the voluntary statement as
per Ex. P.175 disclosing that he had drugged Smt. Shakereh, put her in a
coffin like big box and had buried the box in the backyard of the house i.e.
House No. 81, Richmond Road, Bangalore.

20. The Investigating Officer then sought for necessary permission from
the Sub-Divisional Magistrate for exhumation and on 30.3.1994 exhumation
proceedings were conducted at 81, Richmond Road, Bangalore as pointed
out by the accused. At the exhumation, apart from the Taluka Executive
Magistrate, Mahazar witnesses, investigating team, a doctor trained in
forensic medicine were present. After the exact place was marked by a
chalk indicating the place as the place of burial of the box containing the
body of Smt. Shakereh, the marked area was dug up after removal of some
stone slabs and after considerable digging, a big wooden box lying inside
was noticed. On removing the planks of the lid, it was noticed that the box
contained a foam bed and a bed-sheet on the top. The same were removed
and underneath it, skeletal remains with nightie, long hair and feminine
articles like bangles, rings etc. were noticed. The skeletal remains were
subjected to autopsy.

21. To confirm whether the skeleton was that of Smt. Shakereh, the skull
was sent to a forensic science laboratory along with a photograph of Smt.
Shakereh. The Investigating Officer also sought the opinion of the experts
through DNA finger printing etc. The experts confirmed that the skeleton
indeed was that of Smt. Shakereh. The investigating team not only recorded
the statements of witnesses (the servants, relatives etc.) but also the people
with whom the accused had dealings about the properties of the deceased,
the bank officials etc. as to the financial aspects and transaction of both the
accused and the deceased. A large number of documentary records were
also collected. The accused was then charged under Sections 302/201 IPC.

22. As many as 39 witnesses were examined by the trial court. The trial
court after considering the entire evidence sentenced the accused to death
and the death sentence was confirmed by the High Court.

23. It has been submitted by the learned counsel for the appellant that
there are no eyewitnesses in the case. In my opinion, there is convincing
circumstantial evidence to establish the guilt of the accused.

24. As already stated above, it is not correct to say that only direct
evidence is strong evidence while circumstantial evidence is weak
evidence. Both kinds of evidence can be strong in a given situation. The
only requirement in circumstantial evidence is that the chain of links
connecting the accused with the crime should be established beyond
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reasonable doubt. In my opinion, in this case the facts clearly establish the
chain of circumstances linking the accused with the crime. These
circumstances are as follows:

(i) The deceased was living with the accused in house

No.81, Richmond Road, at the time when she
disappeared. No one else was there as even the
servants had left (in the circumstances mentioned
below).

(ii) During this period the deceased is alleged to have

executed a Will and a General Power of Attorney
in favour of the accused, and a large number of
bank accounts in different banks were opened in
joint names of the accused and the deceased. The
bank lockers were also in the joint names. They
started a private firm called S.S. Housing Private
Limited of which they were the only shareholders.
All these facts establish the strong motive of the
accused who wanted to grab the property of the
deceased.

(iii) Till May 1991 whenever possible PW5 Sabah,

daughter of the deceased used to call the deceased
over the phone and talk with her or meet her
personally whenever she was in Bangalore and the
deceased would also telephone Sabah regularly,
but after May 1991 she was not allowed to talk to
her mother on telephone whenever she called her,
nor did the deceased call her. Instead, the accused
gave evasive and contradictory replies whenever
Sabah used to telephone to try to talk to her
mother. The accused said all kinds of lies, e.g.
that the deceased had gone to Hyderabad, then on
the next occasion that she had gone to Kutch,
thereafter that she was pregnant and had gone to
Roosevelt Hospital, New York, but on enquiry
when Sabah came to know that there was no such
lady in the name of Shakereh in the hospital, he
admitted that he had given a false statement etc.
All these facts point to the guilt of the accused who
kept telling lies constantly on every occasion
whenever Sabha contacted him.

(iii) It appears that the accused saw an opportunity to

kill the deceased when the maid-servant PW19
Josephine and her husband PW18 Raju received a
telegram informing them that the sister-in-law of
PW18 was sick in Andhra Pradesh and they were
required to go to that place. They got leave from
Shakereh and went to Andhra Pradesh. Thus,
Shakereh was left alone in the house with the
accused and he got that opportunity to kill her.

(iv) The dead body of Shakereh was found in the

backyard of the house at the pointing out of the
deceased. The statement of the accused was made
before the Executive Magistrate PW 3. It has
come in evidence that the accused had gone to a
carpenter to get a box with wheels, which he kept
in the guest house. This was the box utilized for
burying the body.

(v) During the investigation, it was disclosed that right

from 1991 the accused alone had been operating
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the joint bank accounts and was not only
depositing the sale proceeds of the lands sold by
him after May 1991, but also withdrawing large
sums of money and had literally cleaned the bank
lockers jointly owned by him and the deceased.

(vi) On 30.3.1992 and 31.3.1992 the accused sold 34

plots out of the property belonging to the deceased
in the capacity of General Power of Attorney
holder to various people under registered sale
deeds for valuable considerations

(vii) In meetings/proceedings of the SS Housing

Company, he represented the presence of the
deceased for each of the meetings and signed
himself alone on her behalf as a General Power of
Attorney holder and these proceedings were
regularly sent to their Chartered Account.

(viii) The accused also replied to the queries of Income

Tax Authorities during 1993 one of which
purportedly contains his signature and the
signature of Smt. Shakereh which is apparently
forged.

(ix) The accused suddenly became very rich after May

1991 (the time of disappearance of the deceased)
which is evident from the fact that he had done
huge property and financial transactions which
benefited him, he started staying in very expensive
hotels in Bombay etc. with women, etc. (including
the then Miss India vide statement of P.W.37 at
para 29)

25. From the facts stated above it is evident that the deceased was not
seen alive from May 1991 onwards and no one was able to speak to her on
telephone, whereas, till May 1991 her daughter Sabah was regularly in
contact with her. The accused was living with Shakereh as her husband and
when contacted by PW5 Sabah he told all kinds of lies about the whereabout
of Smt. Shakereh.

26. The fact that Shakereh was murdered is indisputable. If she had met a
natural death, there was no question of her being buried in the backyard of
the house without intimating any of her relatives including her daughter and
parents. There is abundant expert evidence to establish that the skeleton
discovered in the box in the backyard was that of the deceased Shakereh.
There is also uncontroverted evidence that the said box in which her body
was kept was got prepared by the accused himself prior to the death of Smt.
Shakereh. In my opinion, there is no manner of doubt that the accused killed
Shakereh and secretly buried her in the manner mentioned above in the
backyard of the house. The fact that he kept the death news of the deceased
secret and he told lies repeatedly to her daughter Sabah (as stated above),
proves his guilty mind. His act of selling valuable property of the deceased
worth crores of rupees within a short time of the death of Shakreh with the
help of a defunct General Power of Attorney and the other material on
record clearly establish the guilt of the accused beyond reasonable doubt. In
my opinion, the prosecution has convincingly succeeded in establishing all
the links in the chain of circumstances linking the accused with the crime.

27. In my opinion, this is case of a cold blooded, calculated, diabolical

murder by the accused of an innocent lady who came from a good family,
but unfortunately due to her infatuation fell into his clutches.

28. Learned counsel for the appellant submitted that there was no reason
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for the appellant to murder the deceased since the deceased had executed a
will in his favour. In my opinion, this argument is not tenable because it is
well settled that a will comes into operation only on the death of the testator.
The deceased was only in her forties, and her natural death may have
occurred several decades later. The appellant was obviously not willing to
wait for so long before he could grab her property and hence he decided to
murder her. No doubt no poisonous substance was detected in the skeleton
of the deceased and hence the prosecution case that the accused mixed
poison in her tea could not be firmly established. However, even if the exact
method of murder has not been established by the prosecution, I have no
manner of doubt that it was the appellant who murdered the deceased.

29. During the course of hearing of the case we asked learned counsel for
the appellant as to what was the profession or qualification of the accused,
but he could not give any satisfactory answer. It seems to us that the
accused is a cold-blooded, scallywag and rascal who had no proper
qualification or profession. Such diabolical and cunning rogues are to be
found in abundance nowadays. It is the total commercialization of society
which is responsible for this recent phenomenon. People have become
greedy and wish to amass wealth by short cuts, even by committing heinous
crimes. The appellant had changed his name and had become a ’Swamy’.
By some dubious means he had ingratiated himself into the house of the
Nawab of Rampur and there he developed contact with the deceased, who
was evidently having differences with her husband. The accused pretended
to be a very simple and innocent person and this made the deceased start
depending on him, particularly for looking after her property matters. The
deceased brought the accused to her house in Bangalore where the deceased
married her and thereafter he determined to grab all her property after killing
her. All the property transactions in this connection and other evidence
(narrated above) point only to this conclusion. The accused is an
unmitigated and diabolical rogue who could go to any extent, including
murder to achieve his object of grabbing huge amount of property of the
deceased. He was in a dominating position over the deceased who had
become dependant on him, and he took full advantage of this situation. He
had motive and opportunity for committing this ghastly crime.

30. In my opinion, this case clearly comes within the category of rarest of
rare cases and there will be gross travesty of justice if the death sentence is
not affirmed. Hence, I dismiss this appeal and confirm the death sentence on
the accused.