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Death and if not life, death or life, life and if not death, is the swinging progression of the criminal jurisprudence in India as far as capital punishment is concerned. The Code of Criminal Procedure, 1898, under Section 367(5) reads: “If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.”= Imprisonment for life of a convict is till the end of his biological life as held by the Constitution Bench in Gopal Vinayak Godse vs. The State of Maharashtra and Others[37] case (supra). Hence, there is no point in saying that the sentences would run consecutively. However, we make it clear that in case the sentence of imprisonment for life is remitted or commuted to any specified period (in any case, not less than fourteen years in view of Section 433A of the Cr.PC.), the sentence of imprisonment under Section 307 of IPC shall commence thereafter.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40743 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 165-166 OF 2011 Sunil Damodar Gaikwad … Appellant (s) Versus State of Maharashtra … Respondent (s) J U D G M E N T KURIAN, J.: 1. Death and if not life, death or life, life and if not death, … Continue reading
Section 367(5) reads= Death and if not life, death or life, life and if not death, is the swinging progression of the criminal jurisprudence in India as far as capital punishment is concerned. The Code of Criminal Procedure, 1898, under Section 367(5) reads: “If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.”= In the above facts and circumstances of the case, while upholding the conviction of the appellant under Section 302 and Section 307 of IPC, we modify the sentence as follows: a) For offence under Section 302 of IPC, the appellant is sentenced to life imprisonment. b) For offence under Section 307 of IPC, the appellant is convicted to imprisonment for a period of seven years. 28. Imprisonment for life of a convict is till the end of his biological life as held by the Constitution Bench in Gopal Vinayak Godse vs. The State of Maharashtra and Others[37] case (supra). Hence, there is no point in saying that the sentences would run consecutively. However, we make it clear that in case the sentence of imprisonment for life is remitted or commuted to any specified period (in any case, not less than fourteen years in view of Section 433A of the Cr.PC.), the sentence of imprisonment under Section 307 of IPC shall commence thereafter. 29. The appeals are allowed as above.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40743 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 165-166 OF 2011 Sunil Damodar Gaikwad … Appellant (s) Versus State of Maharashtra … Respondent (s) J U D G M E N T KURIAN, J.: 1. Death and if not life, death or life, life and if not death, … Continue reading
HINDU SUCCESSION ACT – Section 23 – Special provision relating to dwelling houses – Omission of by Hindu Succession (Amendment) Act, 2005 – Effect of – Constitution of India, Article 136. Will – Proof of – Concurrent finding that it was validly proved – No reason to differ with the same. CONSTRUCTION OF STATUTES: Report of the Law Commission may be looked into for the purpose of construction of a statute – But the same would not prevail over a clear and unambiguous provision. In this appeal, the question involved was as to the effect of the amendment made to Hindu Succession Act, 1956 by the Amending Act, 2005 thereby omitting Section 23 of the Hindu Succession Act, which was a special provision relating to dwelling houses.= Dismissing the appeal, the Court HELD:1. Section 23 of the Hindu Succession Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, this Court fails to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. Where a partition has not taken place, Sub-section (5) of Section 3 shall apply. [Para 22] [1019-B-F] `174th Report of the Law Commission’, referred to. 2.1. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. [Paras 22 and 23] [1020-F- G] 2.2. It is now a well-settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered. [Para 24] [1021-A-B] 3. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, could have been applied provided it takes away somebody’s vested right. Restrictive right contained in Section 23 of the Act, cannot be held to remain continuing despite the 2005 Act. [Para 25] [1021-C-D] Eramma v. Verrupanna AND OTHERS (1966) 2 SCR 626; The State of Orissa v. Bhupendra Kumar Bose AND OTHERS AIR 1962 SC 945; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India AND ANOTHER (2006) 2 SCC 740; Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni AND OTHERS AIR 1960 SC 794; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry AIR 1961 SC 29; State of Punjab AND OTHERS v. Bhajan Kaur AND OTHERS 2008 (8) SCALE 475; Vishwant Kumar v. Madan Lal Sharma AND ANOTHER (2004) 4 SCC 1; Subodh S. Salaskar v. Jayprakash M. Shah AND ANOTHER 2008 (11) SCALE 42; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector AND Etio AND OTHERS (2007) 5 SCC 447; Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 and M/s Kesho Ram AND Co. AND OTHERS etc. v. Union of India AND OTHERS (1989) 3 SCC 151, held inapplicable. Kolhapur Canesugar Works Ltd. AND ANOTHER v. Union of India AND OTHERS (2000) 2 SCC 536, referred to. 4.1. Institution of a suit is not barred. What is barred is actual partition by metes and bounds. [Para 26] [1031-A] 4.2. A right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible. [Para 28] [1033-C-D] 4.3. In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to that of the male heirs. Gender equality is recognized by the world community in general in the human rights regime. [Para 29] [1033-F] Sheela Devi AND OTHERS v. Lal Chand AND ANOTHER (2006) 8 SCC 581, held inapplicable. Shyam Sunder AND OTHERS v. Ram Kumar AND ANOTHER (2001) 8 SCC 24; Narashimaha Murthy v. Susheelabai (Smt) and Others (1996) 3 SCC 644 and Anuj Garg AND OTHERS v. Hotel Association of India AND OTHERS AIR 2008 SC 663, referred to. Bhe AND OTHERS v. The Magistrate, Khayelisha AND OTHERS (2004) 18 BHRC 52 (South African Constitutional Court), referred to. 5. It is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India as the fact remains that Section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. Respondents may file a new suit and obtain a decree for partition. [Para 29] [1034-E-F] 6. Both the courts below have considered all the essential ingredients of proof of Will, viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. There is no reason to differ therewith. [Para 31] [1037-C-D] Case Law Reference: (1966) 2 SCR 626 held inapplicable Para 22 AIR 1962 SC 945 held inapplicable Para 25 (2006) 2 SCC 740 held inapplicable Para 25 AIR 1960 SC 794 held inapplicable Para 25 AIR 1961 SC 29 held inapplicable Para 25 2008 (8) SCALE 475 held inapplicable Para 25 (2000) 2 SCC 536 referred to Para 25 (2004) 4 SCC 1 held inapplicable Para 26 2008 (11) SCALE 42 held inapplicable Para 26 (2007) 5 SCC 447 held inapplicable Para 26 (1988) 4 SCC 284 held inapplicable Para 26 (1989) 3 SCC 151 held inapplicable Para 26 (2006) 8 SCC 581 held inapplicable Para 26 (2001) 8 SCC 24 referred to Para 26 (1996) 3 SCC 644 referred to Para 27 (2004) 18 BHRC 52 referred to Para 29 AIR 2008 SC 663 referred to Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2535 of 2009. From the Judgment AND Order dated 29.01.2007 of the High Court of Judicature at Madras in O.S.A. Nos.196 and 197 of 2001. K.V. Viswanathan, P.B. Suresh and Vipin Nair (for Temple Law Firm) for the Appellant. K. Kamamoorthy, B.P. Balaji, N. Shoba, Sriram J. Thalapathy and Adhi Venkataraman for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2535 OF 2009 [Arising out of SLP (Civil) No. 9221 of 2007] G. Sekar …Appellant Versus Geetha & Ors. …Respondents J U D G M E N T S.B. SINHA, J : 1. Leave granted. 2. Effect of the amendment in the … Continue reading
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