Madhya Pradesh High Court
Karan Singh vs The State Of M.P. on 30 June, 2021
Author: Prakash Shrivastava
1
Cr. Appeal No.262/2002
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case No. Cr. Appeal No.262/2002
Parties Name Karan Singh
Vs.
State of M.P.
Date of Order 30/06/2021
Bench Constituted Division Bench:
Justice Prakash Shrivastava
Justice Akhil Kumar Srivastava
Judgment delivered by Justice Prakash Shrivastava
Whether approved for Yes
reporting
Name of counsels for Shri Ahadulla Usmani, learned
parties counsel for the petitioner.
Shri S.K. Kashyap, Government
Advocate for the respondent.
Law laid down 1(i) Whether the sentence of
life imprisonment awarded to
the appellant means actual
sentence of 14 years or 20
years ?
Ans: Section 53 of the IPC
provides for sentence of
imprisonment of life and the
definition of life as contained
in Section 45 makes it clear
that life means the life of
human being till he breath his
last. A sentence for
imprisonment of life will run
for the entire life of the
convict unless the remission is
granted in accordance with
law.
(ii) Whether this Court can
2
Cr. Appeal No.262/2002
commute or reduce the
sentence giving the benefit of
remission ?
Ans: Section 432 of the Cr.P.C.
gives power to the
appropriate governemnt to
suspend or remit sentence
and Section 433 of the Cr.P.C.
empower the appropriate
government to commute the
sentence. The restrictions
imposed upon the power of
remission or commutation of
sentence is contained in
Section 433A of the Cr.P.C.
2. In terms of Section 433
Cr.P.C., the appropriate
government is empowered to
commute the sentence of a
convict for imprisonment for
life for a term not exceeding
14 years and in terms of
Section 433A Cr.P.C., the
power of remission or
commutation is restricted and
a convict with sentence of
imprisonment of life for an
offence for which death is one
of the punishment, cannot be
3
Cr. Appeal No.262/2002
released before completion of
atleast 14 years of
imprisonment. Section 432
and 433 of the Cr.P.C. also
reveal that the remission can
be granted only by the
appropriate government. Such
an exercise of power is an
executive discretion and the
same is not available to the
High Court in exercise of
review jurisdiction.
Significant paragraph 9 & 16.
numbers
JUDGMENT
30.06.2021
Per: Prakash Shrivastava, J.
By this appeal under Section 374(2) of Criminal
Procedure Code, 1973, appellant has challenged the judgment
dated 25th of January, 2002 passed by the Additional Sessions
Judge, Asdhta, District Sehore in Session Trial No.19/2001
convicting the appellant for offence under Section 363, 366, 376
and 376 of the IPC and sentencing him to imprisonment for life.
2. The prosecution story is that the appellant is son of Kamla
Bai's Uncle and was residing in her house for last two months.
On Wednesday, Kamla Bai had gone out of the house to work as
a labour and the appellant was in the house with the children. In
the evening when Kamla Bai came back, she found that her son
Babu aged about 5 years, daughter Akeela Bai aged about 8
years and Sarju Bai aged about 10 years were missing. She had
lodged the missing report on 14.09.2000 vide Exhibit P/23 in
Cr. Appeal No.262/2002
Police Chowki, Mehatwada, Police Station, Jawar and had
expressed the suspicion that the appellant had taken those
children. The children were recovered from the custody of the
appellant on 13.11.2000. On inquiry, Akeela Bai and Sarju Bai
had disclosed that the appellant used to commit rape upon them.
The statements of Sarju Bai, Babu, Kamla Bai and Shankarlal
were recorded by the police on 14.11.2000. The appellant was
arrested and medical examination of the appellant and Sarju Bai
and Akeela Bai was done. The clothes and semen slides were
also seized. After investigation, challan was filed. Appellant
had abjured the guilt and the trial had taken place. During the
trial, Abdul Hamid Qureshi (PW/16) had produced the record of
Central Jail, Bhopal and proved the earlier conviction of the
appellant under Sections 363, 366 and 376 of the IPC and the
fact that the appellant had earlier remained in custody in Central
Jail, Bhopal from 30.06.1991 to 12.06.2000.
3. The trial court after appreciating the occular as well as the
documentary evidence had found that the offences against the
appellant were proved and; accordingly' convicted and
sentenced the appellant in the manner indicated above.
4. Learned counsel for the appellant has submitted that the
appellant has falsely implicated in the matter and that the
appellant had already remained for a sufficient period in custody
after completing 14 years and; therefore, now he should be
released.
5. Learned counsel for the State has opposed the appeal and
has submitted that having regard to the nature of the case and
the material available, no ground for interference is made out.
Cr. Appeal No.262/2002
6. We have heard the learned counsel for the parties and
perused the record.
7. Akeela Bai (PW/7) is a minor aged about 10-12 years and
she in her Court statement has deposed that the appellant had
come to her house and had taken her on the pretext of going to
her mother. She has also stated that the appellant has taken
Sarju Bai her cousin sister and Babu her brother alongwith her
and had kept all three of them in Buddleia Forest and had
committed rape upon her and Sarju Bai. She has given the clear
description of the commission of rape by the appellant. She has
also disclosed that the appellant had kept them in Media, Deria
and other forests and used to commit rape of and on. She has
also stated that the appellant used to beat them in case of any
resistance. Similar is the statement of Sarju Bai (PW/8) who
had also given the description of commission of rape upon her
in her Court statement. The statements of Akeela Bai (PW/7)
and Sarju Bai (PW/8) and further corroborated it the statement
of PW/9 Babu who was the eye-witness of the entire incident.
Dr. (Smt.) Archna Soni (PW/3) had examined Sarju Bai and had
found swelling on her private parts and also found hymen
missing and expressed the possibility of sexual intercourse. As
per the X-Ray report (Ex.P/3), she has disclosed the age of Sarju
Bai to be around 10-12 years. Smt. Malti Arya (PW/6) had
medically examined Akeela Bai and has found old ruptured
hymen and had opined that she was subjected to sexual
intercourse since 1 and 1/2 - 2 months. As per the X-Ray report
(Exhibit P/10), she had opined that her age was 8-10 years. Dr.
Bharat Arya (PW/13) had medically examined the appellant and
had found him capable of doing sexual intercourse. Kamla Bai
(PW/10), mother of prosecutrix Akeela Bai had also disclosed
that the children were missing and that Akeela Bai and Sarju Bai
Cr. Appeal No.262/2002
had disclosed about the commission of rape by the appellant.
Madan(PW/4) had disclosed that the appellant had come to
Village Bapcha Varampt alongwith two girls and he had
informed this fact to Chowkidar Devi.
8. From the above material, it is clear that the trial Court has
not committed any error in reaching to the conclusion that the
appellant had committed offence under Section 363, 366, 376
and 376 of the IPC.
9. Coming to the question of sentence, the record reflects
that the appellant has suffered the actual sentence of 20 years 4
months and 11 days as on 26.03.2021 as reflected in the
communication dated 30th of March, 2021 received from the
Superintendent of Jail, Bhopal. As per the said communication,
he had also earned remission of 9 years 5 months and 15 days as
on 31.12.2020, therefore, following two issues arise for
consideration before this Court:-
(i) Whether the sentence of life imprisonment awarded
to the appellant means actual sentence of 14 years or 20 years ?
(ii) Whether this Court can commute or reduce the
sentence giving the benefit of remission ?
10. Section 53 of the IPC provides for life imprisonment as a
punishment as under:
"53. Punishments.--The punishments to which offenders are
liable under the provisions of this Code are--
First-Death
[Secondly-Imprisonment 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"
Cr. Appeal No.262/2002
11. Section 45 of Indian Penal Code defines "Life
Imprisonment" as under:
"45. "Life"- The word "life" denotes the life of a human being,
unless the contrary appears from the context."
12. Section 53 of the IPC provides for sentence of
imprisonment for life and the definition of 'life' as contained in
Section 45 makes it clear that life means the life of a human
being i.e. till he breaths his last. The Supreme Court in the
matter of Gopal Vinayak Godse vs. State of Maharashtra and
others reported in AIR 1961 SC 600 has held that a sentence
for transportation for life or imprisonment for life must prima
facie be treated as transportation or imprisonment for whole or
remaining period of convicted person's natural life. In the
matter of Maru Ram vs. Union of India and others reported in
(1981) 1 SCC 107, the Constitution Bench has followed the
earlier judgment in the case of Gopal Vinayak Godse(supra)
and reiterated in paragraph 72(4) that the imprisonment for life
lasts until the last breath and the prisoner can claim release only
if the remaining sentence is remitted by the government. The
above position of law was reiterated again by the Hon'ble
Supreme Court in the matter of State of M.P. vs. Ratan Singh
reported in (1976) 3 SCC 470. Hence, from the aforesaid
pronouncements, it is clear that a sentence for imprisonment of
life will run for the entire life of the convict unless the remission
is granted in accordance with law.
13. This takes us to the next question if this Court can grant
remission and release a life convict on completion of 14 years or
20 years of actual sentence.
14. Section 432 of the Cr.P.C. gives power to the appropriate
Government to suspend or remit sentence and Section 433 of the
Cr. Appeal No.262/2002
Cr.P.C. empowers the appropriate Government to commute the
sentence. Section 433 reads as under:
"433. Power to commute sentence.- The appropriate Government
may, without the consent of the person sentenced commute -
(a) a sentence of death, for any other punishment provided by
the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment for a
term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person might have
been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine."
15. The restriction imposed upon the power of remission or
commutation of sentence is contained under Section 433-A of the
Cr.P.C. which provides that:
"433A- Restriction on powers of remission or Commutation in
certain cases- Notwithstanding anything contained in section
432, 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 had served at least fourteen years of
imprisonment."
16. In terms of Section 433 Cr.P.C., the appropriate
government is empowered to commute the sentence of a convict
for imprisonment for life for a term not exceeding 14 years and
in terms of Section 433A Cr.P.C., the power of remission or
commutation is restricted and a convict with sentence of
imprisonment of life for an offence for which death is one of the
punishment, cannot be released before completion of atleast 14
years of imprisonment. Section 432 and 433 of the Cr.P.C. also
reveal that the remission can be granted only by the appropriate
government. Such an exercise of power is an executive
discretion and the same is not available to the High Court in
exercise of review jurisdiction.
Cr. Appeal No.262/2002
17. The Constitution Bench of the Supreme Court in the mat-
ter of Union of India vs. V. Sriharan @ Murugan and others
reported in (2016) 7 SCC 1 has held that the power of remission
vests with the State executive and the Court at best can only
give a direction to consider any claim for remission and cannot
grant any remission and provide for premature release. It has
further been held that -
"114. Therefore, it must be held that there is every scope
and ambit for the Appropriate Government to consider
and grant remission under Sections 432 and 433 of the
Criminal Procedure Code even if such consideration
was earlier made and exercised under Article 72 by the
President and under Article 161 by the Governor. As far
as the implication of Article 32 of the Constitution by this
Court is concerned, we have already held that the power
under Sections 432 and 433 is to be exercised by the Ap-
propriate Government statutorily, it is not for this Court
to exercise the said power and it is always left to be de-
cided by the Appropriate Government, even if someone
approaches this Court under Article 32 of the Constitu-
tion. We answer the said question on the above terms."
18. In the matter of Ratan Singh(supra), the Supreme Court
has held as under:
"9. From a review of the authorities and the statutory provisions of
the Code of Criminal Procedure the following propositions
emerge:
(1) that a sentence of imprisonment for life does not
automatically expire at the end of 20 years including the
remissions, because the administrative rules framed under
the various Jail Manuals or under the Prisons Act cannot
supersede the statutory provisions of the Indian Penal
Code. A sentence of imprisonment for life means a sentence
for the entire life of the prisoner unless the appropriate
Government chooses to exercise its discretion to remit
either the whole or a part of the sentence under Section
401 of the Code of Criminal Procedure;"
Cr. Appeal No.262/2002
19. Having regard to the aforesaid position in law, we are of
the opinion that the life sentence which is awarded to the
appellant is for a period of his entire remaining life till his last
breath and the power to grant remission lies with the State
Government. In view of the fact that the appellant has
completed more than 20 years of sentence, we are of the opinion
that the issue relating to release of the appellant after granting
the benefit of remission now needs to be considered by the
competent authority of the State Government in accordance with
law.
20. Hence, we dispose of the appeal affirming the conviction
and sentence of the appellant and by directing the competent
authority of the State Government to consider the release of the
appellant in accordance with law by granting the benefit of
remission. Let this exercise be completed by the competent
authority as expeditiously as possible preferably within a period
of three months from today.
(PRAKASH SHRIVASTAVA) (AKHIL KUMAR SRIVASTAVA)
JUDGE JUDGE
YS
Digitally signed by YOGESH
KUMAR SHRIVASTAVA
Date: 2021.07.01 15:07:01 +05'30'
