VIKAS YADAV v. STATE OF U.P. ETC. ETC & Ors.

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. Crl.A. Nos. 1528-15300F 2015. WITH U. R. Lalit, Shekhar Naphade, Atul Nanda, Sr. Advs., Kanhaiya G 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. 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 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 D E F G 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 case did not warrant such harsh delineation as a consequence disproportionate sentences have been imposed. B

#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 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 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. c 0 E F G

#5. Be it noted, the prosecution,- State ofNCT of Delhi preferred an appeal under Section 377 CrPC for enhancement of sentence of H VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. [DIPAK MISRA, J.] 883 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) 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. E

#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:- F "881. In view of the above discussion, we modify and enhance 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. Sentence awarded to Sukhdev \'adav (I) Sentencesa-wardedto For commission each ofVikas Yadav & of offences Vishal Yadav Section 302i34 IPC Life imprisonment Life imprisonment which shall be 25 years of actual which shall be 20 years imprisonment wid1out of actual imprisonment consideration of remission, without consideration and fine ofRs. 501akh each of remission, and fine Section 364/34 IPC . Section 201.34 IPC of Rs.I 0,000!- Upon default in payment of Upon default in fine, they shall be liable to undergo rigorous imprisonment of3 years. payment of fine, he shall be liable to undergo simple imprisonment for one month. imprisonmentwith fine ofRs.5,00Q- Rigorous imprisonment for 10 years rigorous l 0 years with a fine ofRs.2 lakh each Upon detaultinpajmentof Upon defaultin payment oftine, he fine, they shall be liable to undergo rigorous shall be liable to imprisonment for 6 months undergo simple imprisonment for 15 Rigorous imprisonment for 5 years rigorous 5 years and a fine Rs.2 lakh Upon default in payment of Upon default in payment of fine, he fine, they shall be liable to undergo rigorous shall be liable to imprisonment for 6 months undergo simple imprisonment with fine ofRs.5,0001- imprisonment for 15 A B c D E F G H VIK.AS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. fDIPAK MISRA, J.l 885 (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. (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) regard To the Government of Uttar Pradesh towards investigation, prosecution and defence of the to FIR cases with No.192/2002 P.S. Ghaziaboo. To the Govermnent of NCT of Delhi tow.irds prosecution, filing litigation, administration of courts and witness protection with regard to FIR No.192/2002 P.S. Ghaziabad defence (iii) To Nilam Katara towards the costs incurred by her in pursuing the matter, filing petitions and applications as well as defending 16th! 1 7th Februazy, 2002 with regard to FIR No.192/2002 in all courts. Rs.5,00,000/- 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 B c D E 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. H 886 SUPREME COURT REPORTS [2016] 8 S.C.R. 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. (ii) Vikas Yadav shall make payments of the following amounts to the Government ofNCT of Delhi: (i) Amounts paid to AIIMS (ii) Towards security deploymcm duri112 AIIMS Rs.50, 750!- Rs.l ,20,0121- (iii) OPDvisits (iv) Taxi fare Rs.50,000i- Rs.18,5001- : Rs.2,39,262/- Total D E (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. (ii) Vishal Yadav shall make payments of the following amounts to the Government ofNCT of Delhi: H VIKAS YADAV v. STATE OF U.P. AND ORS. ETC. ETC. fDIPAK MISRA, J.l (i) Provision of secunty dunng the above seven hospital admissions post conviction (ii) During OPD hospital visits (iii) Post conviction visits on taxi Rs.14,75,184/- Rs.50,000i- Rs.14, 700/- Total : Rs.15,39,884/- 887 A B (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:- (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. (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 F G H 888 SUPREME COURT REPORTS (2016) 8 S.C.R. A 8 c D E F 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 Punjab 5 • 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 Pradesil 6 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 • G H