B.A.UMESH Vs REGR.GEN.HIGH COURT OF KARNATAKA
Bench: RANJAN GOGOI,PRAFULLA C. PANT,A.M. KHANWILKAR
Case number: Review Petition (crl.) 135-136 of 2011
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL MISC.PETITION NOS. 4213-4214 OF 2016
IN
REVIEW PETITION (CRIMINAL) NOS. 135-136 OF 2011
IN
CRIMINAL APPEAL NOS. 285-286 OF 2011
B.A. Umesh … Petitioner
Versus
Registrar General, High Court of Karnataka … Respondent
J U D G M E N T
Prafulla C. Pant, J.
Review Petition (Criminal) Nos. 135-136 of 2011 are
heard in open court, as prayed in Criminal Miscellaneous
Petition Nos. 4213-4214 of 2016, in the light of decision of this
Court in Mohd. Arif and others v. The Registrar, Supreme
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Court of India and others (2014) 9 SCC 737. The Review
Petitions were earlier dismissed by circulation vide order dated
07.09.2011 affirming the dismissal of Criminal Appeal Nos.
285-286 of 2011, whereby death sentence awarded to the
review petitioner, stood affirmed.
2. Brief facts of the case are that Jayashri (deceased), after
death of her husband, used to live with her son PW-2 Suresh,
aged seven years, in Bhuvaneshwarinagar, Bangalore, as a
tenant of PW-8 Lalitha Jaya. On 28.02.1998 as usual the
deceased brought back her son at 1.00 p.m. from the school.
After lunch at home, the son went out to play with his friends.
When PW-2 Suresh returned home at about 5.00 p.m., he
noticed that petitioner B.A. Umesh going out through hall and
told him that he was “uncle Venkatesh”. He (petitioner)
further told him that his mother (deceased) was possessed
with some evil spirits, as such, he had tied her hands and was
going to bring a doctor. Thereafter, the petitioner left the
house with a bag. PW-10 Basvaraju and PW-11 Natesh also
saw the petitioner going out of the house with the bag. When
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Suresh went into the room, he saw his mother lying flat on the
ground with blood on the floor. She was tied with a saree at
one end, and the other end was tied with the window. As the
deceased did not respond to call of her son Suresh, he went to
the neighbour CW-7 Kusuma Shetty, and told her as to what
he had seen. Kusuma Shetty called CW-6 Geetha Hegde and
PW-8 Lalitha Jaya and all the three saw through window that
Jayashri was lying on the ground. Thereafter PW-8 Lalitha
Jaya called PW-7 Bylappa, a police constable, who used to live
in the locality. In turn, PW-7 Bylappa rang PW-9 Inspector
Papanna, who came to the spot with PW-6 Constable
Garudappa. The police personnel saw Jayashri lying dead on
the floor with genitals exposed and blood oozing from her
vagina. Articles in the house were lying scattered. The dog
squad, a photographer and a finger print expert were called at
the place of incident. Crime No. 108 of 1998 was registered at
the police station Peenya Circle, Yashvanthpur Sub Division
Taluk Bangalore District, Bangalore City and PW-29 Inspector
B.N. Nyamagowda took up the investigation. PW-14 A.
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Kumar, police constable from dog squad, PW-16 Jaganath,
photographer, and PW-13 R. Narayanappa, finger print expert
of the police department prepared their reports. The dead
body was sealed and inquest report was prepared in the
presence of PW-2 Suresh, PW-3 Lakshmamma, and PW-4
Maare Gowda, and the same was sent for post mortem
examination. PW-26 Dr. Somashekar conducted autopsy on
the dead body and opined that the deceased was smothered
after commission of sexual assault. On 02.03.1998 at about
2.30 p.m., petitioner B.A. Umesh was arrested while
committing another robbery in the house of Smt. Seeba. On
interrogation, he disclosed having committed several crimes at
various places. He also made disclosure about the robbed
articles. The police took him to the house, where he used to
live as tenant, to verify the disclosures made by him about the
robbed articles kept by him. As many as 191 articles,
including 23 items stolen from the house of the deceased, were
recovered by the police from said house, and a mahazar (Ext.
P-11) was prepared. PW-22 Manjula, sister of the deceased
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identified the articles seized. The Test Identification Parade
was held on 30.03.1998 by PW-24 K.S. Ramanjanappa,
Taluka Executive Magistrate, whereafter the seized items were
sent for examination to Forensic Science Laboratory. On
completion of investigation, a charge-sheet was filed against
the petitioner for his trial in respect of offences punishable
under Sections 376, 302 and 392 of Indian Penal Code (IPC).
On committal of case to the Court of Sessions, the charge with
three heads was framed against the petitioner/accused who
pleaded not guilty and claimed to be tried.
3. Prosecution produced twenty nine witnesses and their
evidence was recorded by the trial court whereafter the same
was put to the petitioner B.A. Umesh under Section 313 of
Criminal Procedure Code (Cr.P.C.) and opportunity was given
to him to adduce the evidence in defence. After hearing the
parties the trial court (Sessions Judge, Fast Trek Court-VII,
Bangalore) vide its judgment and order dated 26.10.2006,
convicted the accused/petitioner under Sections 302, 376 and
392 IPC. (We are not discussing the prosecution evidence in
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detail as the Review Petition is pressed only on the point of
sentence.)
4. The trial court heard the parties on the quantum of
sentence, and considering gravity of offence and criminal
history of the accused and other aggravating and mitigating
circumstances, vide order dated 27.10.2006, the
convict/petitioner (B.A. Umesh) was sentenced to death under
Section 302 IPC and he was directed to be hanged by neck till
he is dead. The trial court further awarded sentence of
rigorous imprisonment for a period of seven years to the
convict and directed him to pay fine of Rs.25,000/- under
Section 376 IPC. He was further sentenced to rigorous
imprisonment for a period of ten years and was directed to pay
fine of Rs.25,000/- under Section 392 IPC. The record was
sent to the High Court of Karnataka under Section 366 Cr.P.C.
for confirmation of death sentence. The Reference was
registered as Reference No. 3 of 2006. The convict filed
Criminal Appeal No. 2408 of 2006 under Section 374(2)
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Cr.P.C. against his conviction and sentence recorded by the
trial court.
5. The High Court heard the parties on the Criminal
Reference No. 3 of 2006 and Criminal Appeal No. 2408 of
2006, and disposed of the same vide common judgment and
order dated 04.10.2007. The conviction of the petitioner was
affirmed by the High Court on all the three counts, i.e. under
Sections 302, 376 and 392 IPC. However, on the point of
sentence, one of the Hon’ble Judges (Hon’ble Mr. Justice R.B.
Naik) while agreeing with sentence on other counts, directed
the sentence of imprisonment for life on the charge of murder
with the observation that the convict shall not be entitled to
any remission, and his imprisonment shall remain until the
term of his natural life. The another Hon’ble Judge, who was
part of the Bench (Hon’ble Mr. Justice V.G. Sabhahit)
confirmed the conviction and sentence of the petitioner on all
the three counts, as awarded by the trial court, including the
sentence of death under Section 302 IPC. In view of difference
of opinion, the matter was heard by the third Judge (Hon’ble
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Mr. Justice S.R. Bannurmath) under Section 392 Cr.P.C.
After hearing the parties, the third Judge agreed with Hon’ble
Mr. Justice V.G. Sabhahit that it is a case of “rarest of rare”
category and, vide judgment and order dated 18.2.2009,
confirmed the sentence of death, and dismissed the criminal
appeal.
6. Aggrieved by the above mentioned judgment and order of
the High Court, Criminal Appeal Nos. 285-286 of 2011 were
filed before this Court on behalf of the petitioner, and after
hearing the parties, the same were dismissed vide judgment
and order dated 01.02.2011 (reported in (2011) 3 SCC 85 as
B.A. Umesh v. Registrar General, High Court of
Karnataka). Thereafter, the petitioner filed Review Petition
(Crl.) Nos. 135-136 of 2011. After consideration of the same
(by circulation), opining again that it is a case of rarest of rare,
this Court declined to interfere with the judgment and order
dated 01.02.2011 passed in the criminal appeals.
Consequently, these Criminal Miscellaneous Petitions were
filed, for open hearing, after law laid down by this Court in
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2014 dealing with the matter of death sentence in Mohd. Arif
(supra).
7. At the time of open hearing Ms. Kiran Suri, learned
senior counsel appearing for the petitioner, submitted that she
is confining her submissions only on the point of sentence of
death, and pleaded for commutation of sentence to
imprisonment for life. Referring to law laid down in Bachan
Singh v. State of Punjab [(1980) 2 SCC 684] and Machhi
Singh v. State of Punjab [(1983) 3 SCC 470], following
mitigating circumstances are pointed out on behalf of the
petitioner: -
(i) The accused was young (aged about 30 years) at the time
of alleged incident.
(ii) The petitioner/accused left seven years boy (PW-2)
unharmed.
(iii) The murder was not premeditated.
(iv) One of the Judges of the High Court, on sentence opined
that the convict be sentenced to imprisonment for life.
(v) The case is of circumstantial evidence.
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(vi) Previous criminal history is not of rape and murder.
8. In addition to above, it is contended on behalf of the
petitioner (Review Applicant) that since no separate date for
hearing on sentence was given in the present case by the trial
court, as such for violation of Section 235(2) Cr.P.C., the
sentence of death cannot be affirmed. We have considered the
argument of Ms. Suri. It is true that the convict has a right to
be heard before sentence. There is no mandate in Section
235(2) Cr.P.C. to fix separate date for hearing on sentence. It
depends on the facts and circumstances as to whether a
separate date is required for hearing on sentence or parties
feel convenient to argue on sentence on the same day. Had
any party pressed for separate date for hearing on the
sentence, or both of them wanted to be heard on some other
date, situation could have been different. In the present case,
the parties were heard on sentence by both the courts below,
and finally by this Court, as is apparent from the judgment
under review. As such, merely for the reason that no separate
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date is given for hearing on the sentence, the Review Petition
cannot be allowed.
9. In Dagdu and others v. State of Maharashtra1
Goswami, J. observes as under: -
“90. I would particularly emphasise that there is no mandatory direction for remanding any case in Santa Singh v. State of Punjab [(1976) 4 SCC 190] nor is remand the inevitable recipe of Section 235(2), Code of Criminal Procedure, 1973. Whenever an appeal Court finds that the mandate of Section 235(2), Cr P C for a hearing on sentence had not been complied with, it, at once, becomes the duty of the appeal Court to offer to the accused an adequate opportunity to produce before it whatever materials he chooses in whatever reasonable way possible. Courts should avoid laws’ delay and necessarily inconsequential remands when the accused can secure full benefit of Section 235(2), Cr P C even in the appeal Court, in the High Court or even in this Court. We have unanimously adopted this very course in these appeals.”
10. In another Three Judge Bench case in Tarlok Singh v.
State of Punjab2, at para 4, Krishna Iyer, J. writes: -
“4. In Santa Singh v. State of Punjab this Court considering Section 235(2), Cr PC held that the hearing contemplated by that sub-section is not confined merely to hearing oral submissions but
1 (1977) 3 SCC 68 (para 90) 2 (1977) 3 SCC 218
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extends to giving an opportunity to the prosecution and the accused to place before the Court facts and materials relating to the various factors bearing on the question of sentence and, if they are contested by either side, then to produce evidence for the purpose of establishing the same. Of course, in that particular case this Court sent the case back to the Sessions Court for complying with Section 235(2), Cr PC. It may well be that in many cases sending the case back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice. In such cases it may be more appropriate for the appellate Court to give an opportunity to the parties in terms of Section 235(2) to produce the materials they wish to adduce instead of going through the exercise of sending the case back to the trial court. This may, in many cases, save time and help produce prompt justice.”
11. In Deepak Rai v. State of Bihar3, yet another Three
Judge Bench case, Dattu, J. observes in paragraph 54 as
under: -
“54. Herein, it is not the case of the appellants that the opportunity to be heard on the question of sentence separately as provisioned for under Section 235(2) of the Code was not provided by the courts below. Further, the trial court has recorded and discussed the submissions made by the appellants and the prosecution on the said question and thereafter, rejected the possibility of awarding a punishment less harsh than the death penalty. However, the High Court while confirming the
3 (2013) 10 SCC 421
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sentence has recorded reasons though encapsulated. The High Court has noticed the motive of the appellants being non-withdrawal of the case by the informant and the ghastly manner of commission of crime whereby six innocent persons as young as 3 year old were charred to death and concluded that the incident shocks the conscience of the entire society and thus deserves nothing lesser but death penalty.”
12. In the same case (Deepak Rai v. State of Bihar)
quoting Lord Denning, this Court further observes: -
“98. On the question of striking a delicate balance between the proportionality of crime to the sentencing policy, Lord Denning has observed4 as follows on the very purpose of imposition of a punishment:
“…. The punishment is the way in which society expresses its denunciation of wrongdoing; and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority or citizens for them. It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive and nothing else … The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not.”
4 Ed.: Lord Denning, Master of the Rolls of the Court of Appeal in England, speaking to the Royal Commission on Capital Punishment in 1950
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13. It is further submitted on behalf of the petitioner that
though the testimony of the child (PW-2) aged about seven
years could be sufficient for holding the petitioner guilty of
offence for conviction but the death sentence should not be
imposed on the basis of testimony of seven years old child. We
are unable to accept this proposition. If the statement of the
witness, aged seven years, has been found natural,
trustworthy and without any chance of being tutored, it
cannot be taken lightly as mitigating circumstances,
particularly, in the facts and circumstances of the present
case.
14. It is further argued by Ms. Suri that the probability that
the accused would commit further criminal acts of violence
and the probability that the accused cannot be reformed are
the two factors which the State has not proved. It is further
submitted that in the present case if the life sentence is
commuted to imprisonment for natural life of the petitioner,
the above two factors would lose their significance since the
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petitioner is going to remain in jail for the rest of his life. It is
further argued that it is not the accused who has to prove the
mitigating factors but it is for the prosecution to prove that the
extreme penalty of death needs to be inflicted. It is contended
that the reasons given in the order sought to be reviewed are
not sufficient as to why life imprisonment is an inadequate
punishment.
15. Ms. Kiran Suri, learned senior counsel for the petitioner
referred to the case Aftab Ahmad Khan v. State of
Hyderabad5, and submitted that since two of the Hon’ble
Judges hearing the matter of confirmation of death sentence,
in the High Court, differed, as such on this ground alone,
sentence of death can be commuted to imprisonment for life.
However, in our opinion the case of Aftab Ahmad Khan
(supra), is of little help to the petitioner for the reason that in
the present case the Hon’ble Judge, who opined that the
convict be awarded the sentence of imprisonment for life,
himself observed that it is a case of rarest of rare category, and
5 AIR 1954 SC 436
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it was further observed by him that by making the petitioner
to serve imprisonment for natural life, it will be more painful
for him to serve the same. Our attention is also drawn to the
case of Suthendraraja alias Suthenthira Raja alias
Santhan and others v. State through DSP/CBI, SIT,
Chennai6. We have gone through the same and it is sufficient
to say that the majority view in said case does not support the
argument advanced on behalf of the petitioner. The learned
counsel for the petitioner also invited our attention to a recent
unreported decision of this Court in Tuttu Lodhi @ Pancham
Lodhi Vs. State of Madhya Pradesh in Criminal Appeals
Nos.292-293 of 2014 decided on September 16, 2016. In that
case, the Court opined that the facts of the case did not make
out a “rarest of rare” case to confirm the death sentence. On
that basis, the Court proceeded to award sentence of
imprisonment for total actual period of 20 years. But the facts
of present case are different. And now we would discuss the
aggravating circumstances of this case.
6 (1999) 9 SCC 323
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16. Ms. Anitha Shenoy, learned counsel appearing for the
respondent, pointed out following aggravating circumstances
in support of maintaining the death sentence: -
(i) The murder was committed by strangulating a
defenseless woman, after raping her violently.
(ii) The petitioner committed robbery in addition to
committing rape and murder.
(iii) The petitioner is not illiterate rustic villager, rather he is
an ex-police official.
(iv) The convict/petitioner has a criminal history of 21 cases,
with seven convictions.
(v) After the incident, the emboldened accused-petitioner
has committed another robbery within just two days and
was arrested by the police, as proved by PW-18
Siddagangaiah and PW-20 Lakshminarasappa.
(vi) Not only the antecedents of the accused are alarming, it
is also a case where the accused fled twice from lawful
custody which shows no chances of his reformation.
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17. Ms. Shenoy further submitted that the petitioner was a
police constable who was dismissed from service on
15.02.1997 after he was found guilty of misconduct. It is
further stated that the petitioner, after escaping from judicial
custody on 18.07.1997, has committed the crime in question
on 28.02.1998. It is further submitted that the petitioner who
committed yet another crime of robbery on 02.03.1998, i.e.
within two days after the present incident, was convicted in
the subsequent case also on 17.05.1999, and said conviction
was affirmed by the appellate court, and finally Special Leave
Petition (Crl.) No. ……. Of 2011 (Crl. M.P. No. 23691) was
dismissed on 09.12.2011, by this Court.
18. We have considered the mitigating and aggravating
circumstances mentioned above. The following chart of
history of seven convictions recorded against the petitioner is
placed before us which shows that there is little hope of
rehabilitation and reformation of the petitioner: -
S. No .
Police Station
Crime No.
Sessions cases
Conviction/ Acquittal
Offences Remarks
1. Peenya P.S. 301/97 9th ACMM Convicted 454-380 RI for 4
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B’lore City Court CC No.1358/97
IPC years and fine of Rs.5000/-
2. Gandhinagar P.S.
115/97 Principal JMFC Court, Bellary CC No.68/98
Convicted 224 IPC S.I. for 2 years and fine of Rs.1000/-
3. Peenya P.S. B’lore City
108/98 FTC 7, B’lore City SC No. 725/99
Convicted 376-392- 302 IPC
Death sentence
4. Peenya P.S. B’lore City
111/98 FTC 1, B’lore City SC No.417/01
Convicted 394-511 IPC
RI for 7 years and fine of Rs.2000/-
5. Brucept P.S. Bellary
349/98 JMFC Court Bellary
Convicted 224 IPC RI for 3 months
6. Yeshwantha pur P.S. B’lore City
296/02 3rd Tr. Court B’lore City
Convicted 41 Cl.(d) 102 Cr.P.C. & 379-411- 224 IPC
RI for 90 days
7. Yelahanka P.S. B’lore City
09/99 CMM Court B’lore City CC No.393/03
Convicted 379 IPC RI for 6 months and fine of Rs.1000/-
(We have not taken note of cases in which the petitioner
was acquitted. However, it is also pointed out by learned
counsel for the State of Karnataka that the cases in which the
petitioner was acquitted includes Sessions Case No. 40 of
2000 relating to offences punishable under Sections 366A,
379, 376, 302 and 201 read with Section 34 IPC, in which
case victim was pushed into a car, and after snatching her
earrings, her legs were tied, and rape was committed before
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committing murder. In said case, which related to the
incident of 06.12.1996, petitioner was acquitted vide judgment
and order dated 07.08.2004. It is further submitted by the
learned counsel that after arrest of the petitioner on
17.07.1997, during custody in said case, on 18.07.1997 the
petitioner escaped from jail for which he was convicted on the
charge under Section 224 IPC.)
19. Having gone through the criminal history of the
petitioner, we are of the view that age of 30 years (at the time
of incident), in the present facts and circumstances of the case
cannot be a ground to show any kind of leniency on sentence.
As far as the fact as to leaving PW-2 Suresh (seven years old
child) unharmed is concerned, it is apparent that actually the
child was left unharmed not because of any compassion on
the part of the petitioner. Rather he was on a hasty retreat
from the place of incident. The petitioner appears to have
committed number of crimes and also escaped from the lawful
custody before commission of this crime. The worst is that the
petitioner has committed crimes not only before the incident,
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but also within two days, subsequent to the incident, i.e.
another robbery in connection with which he was
apprehended by the public and handed over to the police.
Taken together, all the above, reveals that the petitioner is a
menace and has become threat to the society. On overall
analysis of facts and circumstances of the case, gravity of the
offence, and the manner in which the crime is committed read
with the antecedents of petitioner who is an ex-police official,
we do not find sufficient reason to review or modify the order
of affirmation of death sentence in the present case.
20. Therefore, on careful comparison of aggravating and
mitigating circumstances in the present case, as above, and
keeping in view the principle of law laid down by this Court on
the point, we are of the firm opinion that the aggravating
circumstances are grave and far more serious as against the
mitigating circumstances pointed out on behalf of the
petitioner. As such, even after open hearing, we are not
inclined to allow the Review Petitions or modify the judgment
and order passed by this Court in Criminal Appeal Nos.
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285-286 of 2011 dismissed by this Court on 01-02-2011.
Accordingly the Review Petition (Criminal) Nos. 135-136 of
2011 stand dismissed. The Criminal Miscellaneous Petitions
stand disposed of.
……………….....…………J. [Ranjan Gogoi]
.……………….……………J. [Prafulla C. Pant]
.……………….……………J. New Delhi; [A. M. Khanwilkar] October 03, 2016.