Let us today discuss a very important judgment from 2008. The #Swamy #Shraddananda case -

Link -

https://indiankanoon.org/doc/989335/ 

The facts of the case are that Shakereh, (deceased victim) of the crime, came from a highly reputed and wealthy background and held vast & very valuable landed properties in her own right. Among her various properties was a bungalow at No.81, Richmond Road, Bangalore.

Shakereh was married to Mr. Akbar Khaleeli, a member of the Indian Foreign Service. They had 4 daughters from the marriage. Shakereh came to know the appellant, Murali Manohar Mishra who called himself #Swamy #Shraddananda.

She knew Swamy alias Murli from 1983 when she and her family were visiting the erstwhile Nawab of Rampur in New Delhi. The appellant was introduced as someone who was looking after the Rampur properties and was said to be quite adept in managing urban landed estates.

Shakereh, at that time was facing some difficulties under the urban land ceiling law and she asked the appellant to come over to Bangalore and help her in sorting out the problems concerning her properties. Soon thereafter Akbar Khaleeli was posted as a diplomat to Iran alone.

The appellant then came to Bangalore and started living in a part of her house, 81 Richmond Road, purportedly to assist in the proper management of her properties.

Apparently, more than helping in property matters he worked on her suppressed though strong desire for a son and was able to convince her that with his occult powers he could make her beget a son.

In 1985, Shakereh and Akbar Khaleeli got divorced. Shakereh then proceeded to marry the appellant. She paid no heed to the opposition from family and friends and finally got married to the appellant in 1986 under the Special Marriage Act.

After marriage they lived together at 81 Richmond Road. The daughters from the first marriage were most of the time staying abroad.

After marriage Shakereh not only showered her love and affection on the appellant but also her material wealth.

She executed a testamentary will in his favour besides a general Power of Attorney appointing him as her agent and attorney.

She opened a number of bank accounts jointly with the appellant and also took several bank lockers in their joint names.

They also started together a private company called S. S. Housing Private Limited of which they alone were the partners.

Notwithstanding her matrimonial adventures Shakereh's relations with her daughters and her parents continued to be more or less as before.

They met from time to time and kept in touch by speaking on the telephone at regular intervals.

By the end of May 1991, Shakereh suddenly and mysteriously disappeared. She was last met by her mother Mrs. Gauhar Namaze on 13 April, 1991.

Her daughter, Sabah Khaleeli last spoke to her on telephone on 19 April, 1991 & according to 2 servants, they last saw her in the company of the appellant in the morning of 28 May, 1991. Thereafter, Shakereh was not seen or spoken to by anyone. At that time she was 40 years old.

On enquiry by family members, the appellant kept misguiding them by fabricating stories. FIR was lodged at Bangalore as a woman missing complaint. In March 1994, the Central Crime Branch (C.C.B.), Bangalore took over the investigation of the complaint about the `missing' Shakereh

Under intense interrogation the appellant broke down and owned up to having killed Shakereh. He narrated in detail the manner of her killing and disposing of her body.

He stated that he put the body of Shakereh inside a large wooden box (that he had earlier got made for the purpose) and got the box dropped into a pit (that he had got specially dug up) in the grounds of 81 Richmond Road just outside their common bed- room.

He then got the pit filled up by earth and the ground-surface cemented and covered up with stone slabs. He volunteered to take the Investigating Officer (IO) to the place and identify the exact spot where Shakereh lay buried inside the wooden box.

The IO then obtained an exhumation order from the Magistrate and after completing the other legal formalities, on March 30, 1994 brought the appellant to 81 Richmond Road along with the exhumation team.

They were taken by the appellant to the rear of the house passing through the dinning hall and the kitchen. The place was open to the sky but was enclosed on all the four sides by high walls; the floor was made of kadapa slabs cemented at the joints.

The place had no other access apart from the entry through the kitchen. There the appellant identified the exact spot where the wooden box, with the body of Shakereh inside it, lay buried and marked it with a piece of chalk.

As pointed out by appellant, first the stone slabs were removed and the cemented portion below the slabs was broken up. Then the ground below was dug up & sla large wooden box was found lying deep under. The box had inside it, on top, a foam mattress, a pillow and a bed-sheet

Under the mattress was a skeleton with a sleeping gown around it. The bones had all become disjointed. The skeleton and the long hair tufts lying around the skull were taken out and the forensic experts rearranged the bones and also fixed the skull and the mandibles.

There was no doubt that it was a human skeleton. Mother of the deceased identified a red stone ring and two black rings found in the wooden box (that must have slipped down the fingers after the flesh decayed away) as belonging to her daughter Shakereh.

The sleeping gown that was around the skeleton was identified by the maid as belonging to her mistress Shakereh. The post mortem examination was held on the same day.

The skull along with an undisputed photograph of Shakereh was sent to FSL for matching/identification by Photo Superimposition method. The skeletal remains were subjected to D.N.A. fingerprinting. Both tests gave the same result and affirmed that the skeleton was of deceased.

It came to light during investigation that after Shakereh disappeared (or, in retrospect, was killed by the appellant) he went about selling off her properties as fast as possible.

On 30 and 31 March, 1992, in two days, the appellant sold 34 plots carved out of Shakereh's properties to various people under registered sale- deeds using the General Power of Attorney executed by her in his favour.

The joint bank accounts were simply used to deposit large sums being the sale proceeds of the lands sold by him and to withdraw the amounts as soon as those were credited to the account.

Needless to say that from May 1991, it was the appellant alone who operated the joint bank accounts. He also literally cleaned out the bank lockers that Shakereh had taken in their joint names.

In all the meetings of the S. S. Housing Company, he represented the presence of Shakereh and signed the proceedings for himself and for her as holder of her General Power of Attorney. The proceedings of the meetings were regularly sent to their Chartered Accountant.

The appellant was convicted by TC u/s 302, 201 IPC and was sentenced to death. HC in appeal and reference u/s 366 CrPC confirmed the conviction and the death sentence in 2005 without any modification in the conviction or sentence.

Against the High Court judgment the appellant went to SC appeal. A 2 judge bench upheld the conviction but rendered separate opinions on sentencing.

Sinha J. felt that the punishment of life imprisonment, rather than death would serve the ends of justice but made it clear that the appellant will not be released from prison till the end of his life. Katju J, on the other hand, took the view that the appellant deserved death.

A 3 judge bench of the SC thereafter, speaking through Aftab Alam J affirmed the view of Sinha J.

An interesting proposition laid down was that the Court can substitute a death sentence by life imprisonment or by a term in excess of 14 years & direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order

Please also see V.Sriharan judgment by a 5 judge bench in this regard.