B.A.UMESH Vs REGR.GEN.HIGH COURT OF KARNATAKA
Bench: ALTAMAS KABIR,A.K. PATNAIK, , ,
Case number: Crl.A. No.-000285-000286 / 2011
Diary number: 10837 / 2009
Advocates: Vs
ANITHA SHENOY
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.285-286 OF 2011 (Arising out of SLP(Crl.)Nos.3131-3132 of 2009)
B.A. UMESH … APPELLANT
Vs.
REGR.GEN.HIGH COURT OF KARNATAKA … RESPONDENT
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. These Appeals have been filed by the Appellant
questioning the judgment and order dated 4th
October, 2007, passed by the Karnataka High Court
in Criminal Referred Case No.3 of 2006 and Criminal
Appeal No.2408 of 2006 rejecting the Appellant’s
appeal and confirming the death sentence awarded to
him by the Sessions Judge, Fast Track Court VII,
Bangalore City, in S.C.No.725 of 1999, by judgment
and order dated 26th October, 2006.
3. According to the prosecution, Jayashri, mother
of Suresh (P.W.2) and sister of Manjula (P.W.22),
was married to one Dr. Maradi Subbaiah who died
about two years prior to 28.02.1998 on which date
the incident which resulted in S.C.No.725 of 1999
is alleged to have occurred. After the death of
her husband, Jayashri and her son Suresh, were
staying in premises No.14/8 situated at
Dasarahalli, Bhuvaneshwarinagar, Bangalore, as a
tenant of one Lalitha Jaya (P.W.8). Suresh was
studying in Upper K.G. in Blossom English School.
His mother would drop him to school at Bagalkunte
2
at 8.30 a.m. and would bring him back at 1.00 p.m.
after classes were over.
4. On 28.2.1998, Jayashri took Suresh to school as
usual at 8.30 a.m. and brought him back at 1.00
p.m. and they had lunch together in the house.
After lunch, Suresh went out to play with his
friends and apart from Jayashri there was no one
else in the house. Suresh returned to the house at
about 5.00 p.m. and saw the accused, B.A. Umesh, in
the hall of the house who introduced himself as
“Uncle Venkatesh” and told Suresh that his mother,
Jayashri, was possessed by the devil and that he
had, therefore, tied her hands and was going to
bring a Doctor. The accused then left the house
with a bag filled with articles. According to the
prosecution, Basvaraju (P.W.10) and Natesh (P.W.11)
saw the accused going out of Jayashri’s house with
the bag on 28.2.1998 at about 4.30 p.m. Suresh
then went into the room and saw his mother lying
3
flat on the ground with blood on the floor and her
hands tied together with a sari at one end and the
other end of the sari was tied to a window. As she
did not respond to his voice, Suresh went to Kusuma
Shetty (C.W.7), a neighbour, and told her what he
had seen. Kusuma Shetty called Geetha Hegde
(C.W.6) and Lalitha Jaya (P.W.8) and together they
went near Jayashri’s house with Suresh and through
the window they saw Jayashri lying on the ground.
Lalitha Jaya then called Bylappa (P.W.7), a Police
Constable, living in the same locality who
telephoned Papanna (P.W.9), the Inspecting Officer,
who came to the place of occurrence with Police
Constable Garudappa (P.W.6). In the meantime, on
being informed, A. Kumar (P.W.14) a Police
Constable working in the Dogs Squad, Jagannath
(P.W.16), a Police Photographer and R. Narayanappa
(P.W.13) a Police Inspector and finger-print expert
arrived at the place of occurrence. B.N.
Nyamaagowda (P.W.29), the Investigating Officer,
4
found that Jayashri was lying dead on the floor
with her genitals exposed and blood oozing from her
vagina. The doors of an almirah in the house were
open and articles in the house were lying
scattered. He prepared a report and sent the same
through P.W.6 to the Police Station to register a
crime. P.W.6 took the said report to Peenya Police
Station and the same was registered as Crime No.108
of 1998. He then prepared a First Information
Report and sent the same to Court. A copy of the
F.I.R. was also sent to P.W.29, the Investigating
Officer. P.W.14 had come from the Dogs Squad with
Dhrona, a sniffer dog, who having sniffed the dead
body and Jayashri’s clothes went towards the
pipeline and returned. P.W.16, the Police
Photographer, took photographs of the dead body and
the scene of offence. P.W.13, the finger-print
expert, found finger-prints on a wall clock and
also on the handle of the almirah (Exts. P.14 and
P.15). P.W.29, thereafter, conducted inquest over
5
the dead body in the presence of Panch witnesses,
P.Ws.2, 3 and 4, and sent the dead body for Post-
mortem examination to Dr. Somashekar (P.W.26) who
after conducting the Post-mortem on Jayashri’s dead
body opined that death had occurred due to
smothering after commission of sexual assault.
5. On 2.3.1998 at about 2.30 p.m., on receipt of
an information in the Central Room that the public
had apprehended a thief, P.W.18 went to the spot
and came to learn that the person who had been
apprehended had tried to commit a robbery in the
house of Smt. Seeba and had caused bleeding
injuries to her person. On enquiry it transpired
that the name of the apprehended person was Umesh
Reddy and that he had committed many crimes at
various places, including the house of the
deceased. Umesh Reddy volunteered to show the
place where he had kept the robbed articles. He,
thereafter, revealed that his name was Venkatesh
6
and that he had taken the premises belonging to
P.Ws.5 and 17 on lease. According to the
prosecution, the appellant approached Maare Gowda
(P.W.4) to get him a place on rent and P.W.4 took
him to his relative M.R. Ravi (P.W.5) who along
with Jayamma (P.W.17) was the owner of a tenement
in which he agreed to rent a premises to the
appellant on a monthly rental of Rs.350/-. On the
agreed terms the appellant occupied the premises
belonging to P.Ws.5 and 17.
6. It is the further case of the prosecution that
the appellant voluntarily led the Police and the
Panchas P.Ws.12 and 29 to the premises under his
occupation as a tenant under P.Ws.5 and 17 and
showed them 191 articles, including 23 items said
to have been recovered from the house of the
deceased, which were seized under mahazar
(Ex.P.11). The remaining articles were seized in
connection with other cases registered against the
7
appellant. The body of the deceased was sent for
Post-mortem on 3.3.1998 and on the same day the
sample finger prints of the appellant was taken by
Mallaraja Urs (C.W.25) in the presence of P.W.29.
The appellant was sent for medical examination and
was examined by P.W.26 who issued the wound
certificate regarding the injuries found on the
body of the appellant. P.W.22, Manjula, the sister
of the deceased, identified the articles (M.Os.1 to
22) seized under mahazar (Ex.P.11) as articles
belonging to Jayashri and also stated that Jayashri
had been married to Dr. Maradi Subbaiah.
Thereafter, on the requisition of P.W.29 the Taluka
Executive Magistrate (P.W.24) conducted Test
Identification Parade on 30.3.1998 and P.Ws.2, 10,
11 and 17 identified the appellant at the said T.I.
Parade. The articles seized in the case were sent
by P.W.29 to the Forensic Science Laboratory and
after receiving the serology report, P.W.29
completed the investigation and filed Charge Sheet
8
against the appellant of having committed offences
punishable under Sections 376, 302 and 392 I.P.C.
The case was committed to the Court of Sessions and
charge was framed against the appellant under
Sections 376, 302 and 392 I.P.C. The appellant
pleaded not guilty to the charges and claimed to be
tried.
7. The prosecution examined 29 witnesses who
proved Exts. P1 to P48(a). During cross-
examination of P.Ws.5, 16, 17 and 18, the defence
proved Exts.D1 to D4 through the said witnesses.
M.Os. 1 to 32 were marked on behalf of the
prosecution. The statement of the appellant under
Section 313 Cr.P.C. was recorded. The defence of
the appellant was one of denial. No witness was
examined on behalf of the appellant. After
considering the submissions of the learned Public
Prosecutor and the learned counsel for the
appellant and after appraising the oral and
9
documentary evidence, the trial Court held that the
prosecution had proved beyond all reasonable doubt
that the appellant had committed the offences with
which he had been charged and found him guilty of
the offences punishable under Sections 376, 302 and
392 I.P.C. After hearing the appellant and the
learned counsel for the appellant on the question
of sentence, the trial Court sentenced the
appellant to suffer 7 years rigorous imprisonment
and to pay a fine of Rs.25,000/- and in default of
payment of the fine to suffer further rigorous
imprisonment of 2 years for the offence punishable
under Section 376 I.P.C. The appellant was also
sentenced to undergo 10 years rigorous imprisonment
and to pay a fine of Rs.25,000/- and in default of
payment of the fine to suffer further rigorous
imprisonment of 2 years for the offence punishable
under Section 392 I.P.C. The appellant was lastly
sentenced to death by hanging for the offence
punishable under Section 302 by the trial Court
10
which also made a reference to the High Court under
Section 366 Cr.P.C. for confirmation of the death
sentence, and the same was renumbered as Criminal
Reference Case No.3 of 2006. Being aggrieved by the
judgment of conviction and sentence passed against
him by the trial Court, the appellant also
preferred Criminal Appeal No.2408 of 2006.
8. The Reference and the Appeal were heard
together and upon a fresh look at the evidence on
record, and in particular the oral evidence of
P.W.2 (son of the deceased), P.W.3 (neighbour),
P.W.8 (landlady of the appellant), P.W.9 (Mazahar
witness), P.W.26 (doctor who conducted the Post-
mortem examination on the body of the deceased),
P.W.27 (Forensic Expert) and the Post-Mortem, FSL
and Serology Reports, dismissed the Appellant’s
Criminal Appeal No.2408 of 2006 and confirmed the
judgment of conviction dated 26.10.2006 passed by
the Sessions Judge, Fast Track Court-VII, Bangalore
11
City, in S.C.No.725 of 1999. Consequently, on the
finding that there was no possibility of the
appellant’s reformation in view of his conduct
despite his earlier convictions and punishment in
earlier cases of robbery, dacoity and rape, the
High Court held the present case to be one of the
rarest of rate cases which warranted confirmation
of the death penalty awarded by the trial Court,
and answered Criminal Reference Case No.3 of 2006
made by the Sessions Judge, Fast Track Court-VII,
Bangalore, by confirming the death sentence.
9. Appearing for the appellant, Ms. Kiran Suri,
learned advocate submitted that the appellant’s
conviction was based entirely on circumstantial
evidence which was itself based on inference which
was of no evidentiary value. Ms. Suri urged that
the prosecution had almost entirely relied on the
evidence of P.W.2, Suresh, the son of the deceased,
who was a minor of 7 years at the time of the
12
incident, and P.W.s 10 and 11, Basavaraju and
Natesh, who claimed to have seen the appellant
coming out of the house of the deceased and P.W.
17, Jayamma, the landlady of the appellant who
identified the appellant in the Test Identification
Parade.
10. Ms. Suri submitted that the other prosecution
witnesses were those who had been associated with
the investigation in one way or the other, such as
P.W. 13, Narayanappa, the finger-print expert who
found the finger-print of the appellant on the
handle of the almirah in the victim’s room, P.W.26,
the doctor who conducted the Post-mortem
examination on the body of the victim, P.W.27, D.
Siddaramaiah, Forensic Expert and P.W. 29, the
Investigating Officer in the case.
11. Ms. Suri contended that as far as P.W.2 is
concerned, he being a minor of 7 years when the
incident had taken place, his testimony would have
13
to be treated with caution. Ms. Suri also contended
that from an analysis of the evidence on record it
is extremely doubtful as to whether P.W.2 was at
all present when the deceased was killed. Ms. Suri
urged that had P.W.2 seen the appellant in the
house at the time of the incident, as stated in his
evidence, he would certainly have reacted in a
manner different from what has been indicated.
More importantly, if the appellant had been in the
house when P.W.2 is said to have seen him at the
time of the incident, nothing prevented him from
eliminating P.W.2, who was a minor child of seven,
in order to remove the only witness who could link
him with the murder, in the absence of any other
person in the house. Ms. Suri pointed out that not
only was P.W.2 7 years old when the incident had
occurred, but his evidence was taken 7 years
thereafter which raised doubts as to its
correctness and accuracy. Ms. Suri urged that even
the state in which he found his mother after the
14
appellant is said to have left the house, indicated
that he had come on the scene after the other
witnesses had come in and covered her body with a
sari. Even in respect of identification of the
appellant by P.W.2 at the Central Jail, Bangalore,
it was submitted that a photograph of the appellant
had been published in the newspapers throwing doubt
on such identification. Ms. Suri urged that the
same reasoning will also hold good as far as
identification of the appellant by P.Ws 10 and 11,
Basavaraju and Natesh, are concerned, since they
were only chance witnesses. While P.W.10 was
living in a house opposite to the rented
accommodation of the appellant, P.W.11 was a close
neighbour of the deceased, and it is only by chance
that they claim to have been present at the exact
moment when the appellant allegedly came out of the
house of the deceased. Ms. Suri submitted that as
had been held by this Court in Musheer Khan alias
Badshah Khan & Anr. Vs. State of Madhya Pradesh
15
[(2010) 2 SCC 748], the reliability of a Test
Identification Parade under Section 9 of the
Evidence Act, 1872, becomes doubtful when the same
is held much after the incident and when the
accused is kept in police custody during the
intervening period. Ms. Suri submitted that while
the incident is stated to have occurred on
28.2.1998, the T.I. Parade was conducted by the
Tehsildar K.S. Ramanjanappa (P.W.24) on 30.3.2005
about seven years after the incident had taken
place.
12. Ms. Suri then took up the question of recovery
of M.Os. 1 to 23 from the house of the appellant in
the presence of P.Ws. 4, 5 and 12. It was urged
that the evidence of P.W.4, Maare Gowda, the
appellant’s landlord, in cross-examination, was
sufficient to throw doubts over P.W.5 Ravi’s role
as a panch witness to the recovery of the articles
which were later identified as belonging to the
16
deceased by her elder sister Manjula (P.W.22). Even
as far as P.W.12 Manjunath is concerned, Ms. Suri
submitted that it was quite evident that he was not
an independent witness as he used to serve tea,
coffee and food to the people in Peenya Police
Station, including those in the lock-up, and was
available as a witness whenever called upon by the
police.
13. From the Mahazar prepared in the presence of
P.Ws 5 and 12, Ms. Suri pointed out item No.186
which was described as a cream-coloured panty with
mixed stains which was said to have been removed by
the appellant to have sexual intercourse with the
deceased and was thereafter worn by him while
returning home. Learned counsel submitted that in
his evidence P.W.29, the Investigating Officer, had
indicated that he had seized an underwear which was
white in colour and only subsequently another
cream-coloured underwear was shown to him which was
17
marked as M.O.32. Referring to the list of
Material Objects marked by the prosecution, Ms.
Suri pointed out M.O.28, which was shown as a white
underwear, while M.O.32 was shown as a cream-
coloured underwear. Ms. Suri submitted that No.23-
a design sari, M.O.25-white colour brassiere,
M.O.26-Red colour blouse and M.O.27-Red colour
cloth like tape, had been recovered from the body
of the deceased by P.W.26, Dr. M. Somasekar, who
conducted the Post-mortem examination on the body
of the deceased and proved the same in his
evidence. Ms. Suri submitted that there was no
mention of recovery of any panty or underwear from
the body of the deceased during the Post-mortem
examination. On the other hand, M.O.28, which was
a white underwear and certain blood samples
(M.Os.29 and 30) had been proved by the forensic
expert, D. Siddaramaiah (P.W.27), which established
the fact that the white underwear M.O.28 and not
M.O.32, the cream-coloured panty which the accused
18
is alleged to have worn after sexually assaulting
the deceased, had been sent to the Serologist for
examination. Ms. Suri submitted that the cream-
coloured panty was subsequently introduced in the
investigation by P.W.29, inasmuch as, in his
evidence P.W.27 clearly stated that the white
underwear (M.O.28) did not contain any trace of
semen. Ms. Suri also pointed out that in his
evidence P.W.29 had stated that while drawing up
the Mahazar he had seized one underwear. On the
basis of the evidence led by the prosecution the
said underwear could only have been M.O.28 listed
in the Mahazar, which was sent to F.S.L. and was
proved by P.W.27, on which traces of human blood
had been found, but not semen. It was during his
examination-in-chief that a cream-coloured panty
which had not been sent to the F.S.L., was shown to
P.W.29 and was marked M.O.32. Ms. Suri submitted
that since the white underwear was shown as M.O.28
in the Mahazar, the same could only be taken into
19
consideration in appraising the evidence.
14. Ms. Suri then addressed the third aspect of the
prosecution case relating to lifting of the finger
print of the appellant from the handle of the
almirah in the room of the deceased. It was
contended that the procedure adopted for obtaining
the finger print of the appellant by P.W.25, while
he was in custody, for the purpose of comparison
with the finger print lifted from the handle of the
almirah in the room of the deceased, left
sufficient room for doubt about the authenticity of
the finger print taken from the appellant for the
purpose of comparison. It was submitted that
rather curiously all the other finger prints in the
room, including the one taken from the wall clock,
were smudged and were of no use for the purpose of
comparison, which also gave rise to doubts as to
whether the finger prints alleged to have been
taken from the handle of the almirah in the room of
20
the deceased, had actually been lifted from the
said place. Ms. Suri submitted that the finger
print of the appellant taken by P.W.25 when the
appellant was in custody, should have been taken
before a Magistrate to ensure its authenticity.
Furthermore, although, the said finger print was
taken on 8.3.1998, the same was sent to the F.S.L.
only on 15.3.1998.
15. Referring to the provisions of the
Identification of Prisoners Act, 1920, Ms. Suri
submitted that Section 2(a) defined “measurements”
to include finger impressions and Section 2(b)
defined “Police Officer” to mean an officer in
charge of a police station, a police officer making
an investigation or any other police officer not
below the rank of Sub-Inspector. Learned counsel
also pointed out that Section 4 of the Act provided
for the taking of measurements of non-convicted
persons, which under Section 5 could be ordered by
21
a Magistrate if he was satisfied that the same was
for the purpose of investigation. Ms. Suri,
however, also pointed out that in State of Uttar
Pradesh Vs. Ram Babu Misra [(1980) 2 SCC 343], this
Court while considering the provisions of Section 5
of the above Act and Section 73 of the Indian
Evidence Act, 1872, held that Section 73 did not
permit a Court to give a direction to the accused
to give specimen writings for anticipated necessity
for comparison in a proceeding which may later be
instituted in the court. Direction under Section
73 to any person present in the court to give
specimen writings is to be given for the purpose of
enabling the court to compare and not for the
purposes of enabling the Investigating or other
agency to make any comparison of such handwriting.
Ms. Suri also referred to the decision of this
Court in Mohd. Aman & Anr. Vs. State of Rajasthan
[(1997) 10 SCC 44], where finger prints of the
accused found on a brass jug seized from the house
22
of the deceased were kept in the police station for
five days without any justifiable reason.
Furthermore, the specimen finger prints of the
accused had not been taken before or under the
order of the Magistrate and, accordingly, the
conviction based on the evidence of the finger
prints of the accused on the brass jug were held to
be not sustainable. Ms. Suri also referred to the
decision in Musheer Khan’s case (supra), where the
question of the evidentiary value of a finger-print
expert was considered apart from the question of
identification and it was held that such evidence
fell within the ambit of Section 45 of the Evidence
Act, 1872. In other words, the evidence of a
finger print expert is not substantive evidence and
can only be used to corroborate some items of
substantive evidence which are otherwise on record
and could not, therefore, have been one of the main
grounds for convicting the appellant of the
offences with which he had been charged.
23
16. Regarding the charge of rape, Ms. Suri
submitted that there was no evidence to connect the
appellant with the offence. Not only were there no
eye-witnesses, but even the oral evidence relied
upon by the prosecution or the Material Objects
seized from the scene of the crime or recovered
from the body of the victim during Post-mortem
examination or from the appellant, established the
commission of rape on the deceased by the
appellant.
17. Ms. Suri submitted that having regard to the
state of the evidence adduced by the prosecution,
no case could be said to have been made out against
the appellant either under Section 302 or under
Sections 392 and 376 I.P.C.
18. Coming to the question of sentencing, Ms. Suri
submitted that even if the conviction of the
appellant under Sections 302, 392 and 376 I.P.C.
24
was to be accepted, the case did not fall within
the category of “rarest of rare cases”, which
merits imposition of the death penalty. In order
that a death sentence be passed on an accused, the
court has to keep in mind various factors such as :
(1) that the murder of the deceased was
not premeditated;
(2) that the accused did not have any previous criminal record so as to draw a conclusion that the accused was a menace to society;
(3) that the death was caused in a fit of passion;
(4) that the accused was of young age and there was nothing on record to indicate that he would not be capable of reform; and
(5) that the death was not as a part of conspiracy or with the intention of causing death.
25
19. Ms. Suri submitted that the two Hon’ble Judges
of the Karnataka High Court hearing the Criminal
Appeal differed on the question of awarding death
penalty to the appellant. Learned counsel
submitted that Justice V.G. Sabhahit confirmed the
death sentence imposed by the trial Court upon
holding that there was something uncommon about the
crime in the present case which renders the
sentence of imprisonment for life inadequate.
Justice Sabhahit held that the commission of the
offence not only of rape but also of murder and
theft indicated that the appellant was not only
cruel, heartless, unmerciful and savage, but also
brutal, pitiless, inhuman, merciless and barbarous,
considering the fact that he had taken undue
advantage of a helpless woman. However, Justice
R.B. Naik, while agreeing with the conviction of
the appellant by the trial Court, was of the view
that as a rule death sentence should be imposed
only in the rarest of rare cases in order to
26
eliminate the criminal from society, but the same
object could also be achieved by isolating the
criminal from society by awarding life imprisonment
for the remaining term of the criminal’s natural
life. Ms. Suri submitted that on account of the
difference of opinion of the two Hon’ble Judges,
the question of sentencing was referred to a third
judge, the Hon’ble Mr. Justice S.R. Bannurmath,
who, in Criminal Reference Case No.3 of 2006,
concurred with the view taken by Justice Sabhahit
and confirmed the death penalty imposed by the
trial Court.
20. Ms. Suri submitted that in order to have a
deterrent effect on social crimes, the view taken
by Justice Naik was more acceptable as it would
have effect not only in removing the accused from
society, but would also enable him to realize the
gravity of the offence committed by him.
27
21. In support of her submissions, Ms. Suri firstly
relied on the decision of this Court in Ronny alias
Ronald James Alwaris & Ors. Vs. State of
Maharashtra [(1998) 3 SCC 625], where despite
conviction under Sections 302, 449, 347, 394,
376(2)(g), Sections 467, 471 and 201 read with
Section 34 I.P.C., this Court while upholding the
conviction held that it was not possible to
identify the case as being a rarest of rare case
and, accordingly, commuted the death sentence
imposed on the accused to life imprisonment.
Reference was also made to the decision of this
Court in Om Prakash Vs. State of Haryana [(1999) 3
SCC 19], where upon conviction under Sections 302
and 307 read with Section 34 I.P.C. and Section
27(3) of the Arms Act, the accused was sentenced to
death for committing the brutal murder of seven
persons belonging to one family for the purpose of
taking revenge. This Court taking into account the
mental condition and age of the accused held that
28
it could not be treated to be one of the rarest of
rare cases and accordingly, commuted the death
sentence to one of imprisonment for life.
22. In addition to the above, Ms. Suri also
referred to (1) Akhtar Vs. State of U.P. [(1999) 6
SCC 60]; (2)Bantu alias Naresh Giri Vs. State of
M.P. [(2001) 9 SCC 615]; (3) Surendra Pal
Shivbalakpal Vs. State of Gujarat [(2005) 3 SCC
127]; (4) Kulwinder Singh Vs. State of Punjab
[(2007) 10 SCC 455]; and (5) Sebastian alias
Chevithiyan Vs. State of Kerala [(2010) 1 SCC 58].
In each of the said cases, this Court commuted the
death sentence to life imprisonment on account of
the circumstances which could not be included
within the category of rarest of rare cases which
merited the death penalty.
23. Ms. Suri submitted that in the instant case
also there is nothing on record to indicate that
the appellant had any premeditated design to cause
29
the death of the victim or that the circumstances
indicated that the offence had been committed in a
manner which brought it within the ambit of “rarest
of rare cases”, for which anything less than the
death penalty would be inadequate. Ms. Suri
submitted that taken at its face value all that can
be said of the prosecution case is that the
appellant committed rape and murder of the deceased
while committing theft at the same time, which did
not make such offence one of the rarest of rare
cases, which merited the death penalty.
24. Appearing for the State, Ms. Anitha Shenoy,
learned Advocate, submitted that although the
appellant’s conviction was based on circumstantial
evidence, such evidence had established a
conclusive chain which clearly establish that no
one other than the appellant could have committed
rape on the deceased and, thereafter, cause her
death, besides committing theft of various articles
30
from the house of the deceased. Ms. Shenoy
submitted that the manner in which the murder had
been committed after raping the deceased and his
previous history of conviction in both rape and
theft cases, as also his subsequent conduct after
this incident, did not warrant interference with
the death penalty awarded to the appellant.
25. Ms. Shenoy submitted that from the Inquest
Report it appears that the body of Jayashri was
found in the bedroom lying on her back. Both her
hands had been bound with a yellow, green and red-
coloured flower designed sari and the other end of
the sari had been tied to an inner window bar in
the room. The tongue of the deceased was found to
be protruding and both the eyes were closed. A
designed sari was on the body and a pink-coloured
blouse and white brassiere was on her shoulders. A
red tape-like cloth was near the head of the
deceased and there was bleeding from the deceased’s
31
genitals and blood was also found on the floor. In
addition, there were injuries on her right breast
and abrasions near her right elbow and stomach.
Ms. Shenoy also referred to the deposition of P.W.9
who was a Mahazar witness, wherein it was stated
that the deceased Jayashri was lying naked, there
were abrasions on her body and both of her hands
were tied with a red tape lengthy cloth and the
other end was tied to a window. There were scratch
marks on her breasts and blood oozing out of her
genitals. What was also stated was that there were
strangulation marks on her neck. Ms. Shenoy
submitted that the Inquest Report and the Mahazar
of the scene of occurrence was further corroborated
by the evidence of P.W.1 (Police), P.W.2 (son of
deceased), P.W.3 (a neighbour), P.W.8 (landlady of
the deceased) and P.W.29 (the Investigating
Officer). Ms. Shenoy then urged that the Post-
mortem report indicated that there was a faint
ligature mark present on the front and sides of the
32
neck over the thyroid cartilage in front 2 inches
away from the right ear and 2.5 inches from the
left ear. The other injuries noted were :
“1. Laceration on the inner aspect of the upper lip meddle 1 c.m. x 0.5 c.m. x- ray 5 c.m.
2. In both lips abrasion on inner aspect present.
3. Abrasion three number present on upper part of right side chest.
4. Laceration over left nostril with adjacent abrasion.
5. Scratch marks present over chest upper and middle region and over right breast and below right breast.
6. Abrasion over right forearm outer back aspect near the elbow and wrist.
7. Abrasion over left elbow outer aspect.
8. Upon dissection patches of contusion seen on chest wall front.
Genital region blood stains seen at the vaginal outlet. Laceration of vagina 1 c.m. in length from vaginal outlet on the posterior wall was present. Semen like material was present in the vagina, which was collected and sent for Micro
33
Biological examination which shows the presence of sperms.”
26. Ms. Shenoy also referred to the chemical
examiner’s report, wherein it was opined that the
vaginal smear sent for microbiological examination
showed presence of spermatozoa. Ms. Shenoy pointed
out that according to the opinion of P.W.26, Dr. M.
Somashekar, who conducted the Post-mortem
examination on the deceased, death was due to
asphyxia as a result of smothering and evidence of
violent sexual intercourse and attempted
strangulation. Ms. Shenoy further submitted that
in his evidence P.W.26 had mentioned the fact that
while stating the facts about the incident, the
appellant had stated that he pushed the victim and
removed her clothes, tied her hands and committed
theft.
27. On the question of the extra-judicial
confession said to have been made by the appellant
34
before P.W.26, Ms. Shenoy referred to the decision
of this Court in M.A. Antony v. State of Kerala
[(2009) 6 SCC 220], in which, in a similar
situation, the extra-judicial confession made to a
doctor was accepted upon rejection of the defence
claim that such confession had been made in the
presence of police officers. This Court held that
there was no evidence at all to suggest that any
policeman was present when the appellant made the
confessional statement before the doctor, whereupon
such confession could have been kept out of
consideration. Ms. Shenoy submitted that even in
the instant case there is nothing on record to
indicate that the confessional statement said to
have been made by the appellant before P.W.26 Dr.
Somashekar was made in the presence of any police
personnel. There was also no suggestion in cross-
examination of P.W.26 that at the time of
examination of the appellant for evidence of sexual
intercourse either any force was used or any police
35
personnel was present when he is said to have made
the confessional statement to P.W.26.
28. Ms. Shenoy then submitted that the question
relating to the reliability of an extra-judicial
confession also came up for the consideration of
this Court in Ram Singh v. Sonia & Ors. [(2007) 3
SCC 1] in which case also the value of an extra-
judicial confession made before a stranger came up
for consideration and it was held that such a
submission could not be accepted since in several
decisions this Court had held that an extra-
judicial confession made even to a stranger cannot
be eschewed from consideration if the Court found
it to be truthful and voluntarily made before a
person who had no reason to make a false statement.
Similar was the view of this Court in Gura Singh v.
State of Rajasthan [(2001) 2 SCC 205], wherein it
was observed that despite inherent weakness of an
extra-judicial confession as an item of evidence,
36
it cannot be ignored that such confession was made
before a person who had no reason to state falsely
and to whom it is made in the circumstances which
tend to support the statement. Several other
decisions on this point were referred to by Ms.
Shenoy which did not, however, detain us, as they
are in the same vein as the decisions already
cited.
29. On the question of identification which has
been one of the main pillars of the prosecution
case in order to weave a chain of circumstantial
evidence which in clear terms pointed towards the
guilt of the accused, the prosecution examined the
minor son of the deceased, Suresh (P.W.2) and P.Ws
4, 5, 11 and 17, who were near the place of
occurrence at the relevant point of time. Ms.
Shenoy submitted that except for P.W.2, the minor
son of the deceased who is stated to have actually
seen the accused in the room where the deceased was
37
lying, all the other witnesses had seen the
appellant at some time or the other before the
commission of the crime. As far as P.W.2 is
concerned, Ms. Shenoy submitted that the incident
was so graphic that it left an indelible imprint in
his mind and that the evidence of all the witnesses
who identified the appellant conclusively
establishes the presence of the appellant in the
house of the deceased at the time of the commission
of rape, murder and theft and in further
establishing that Umesh Reddy, the appellant is the
same person who introduced himself as Venkatesh to
P.Ws.2, 4, 5, 11 and 17.
30. Regarding the conducting of the Test
Identification Parade by the Tehsildar, P.W.24, it
was submitted that no irregularity could be pointed
out on behalf of the defence to discredit the same.
31. The fourth question which had been indicated by
Ms. Shenoy regarding the identification of the
38
finger-prints taken from the handle of the steel
almirah kept in the room of the deceased, where the
charged offences had been committed, clearly
establishes the presence of the appellant in the
said room. Ms. Shenoy submitted that there was no
acceptable explanation from the side of the defence
to explain the finger prints of the appellant on
the handle of the almirah which was in the room of
the deceased. Ms. Shenoy urged that once the
presence of the appellant was established in the
room when and where the offences were perpetrated,
the chain of circumstantial evidence was to a large
extent almost complete and was completed with the
recovery of the articles stolen from the room of
the deceased, in the room rented to the appellant
by Jayamma (P.W.17).
32. Ms. Shenoy submitted that apart from the
aforesaid circumstances in commission of the
offences with which the appellant had been charged,
39
the subsequent incidents leading to the arrest of
the appellant could not be discounted. Ms. Shenoy
pointed out that while the offences in relation to
the instant case were committed on 28.2.1998, on
2.3.1998 the appellant was apprehended by local
people living in Officers’ Model Colony. From the
deposition of P.W.18, A.S.I. Peenya Police Station,
it is revealed that on receipt of a communication
from the Police Control Room that a thief had been
caught by the public in S.M. Road in Officers’
Model Colony, he had gone there and was informed
that the thief, who was later identified as the
appellant, had tried to robe the house of one Seeba
by forcibly entering her house and inflicting blood
injuries on her. Ms. Shenoy submitted that the
evidence of P.W.18 was duly corroborated by the
evidence of P.W.20, Head Constable Laxminarasappa,
attached to the Vidhan Soudha security who was
present when the accused was apprehended.
40
33. Responding to the submissions made by Ms. Suri
in support of the defence case, Ms. Shenoy
submitted that the minor discrepancies in the
evidence of P.W.2 and P.W.17 relating to
identification of the appellant and recovery of
various items belonging to the deceased from the
house of the appellant, could not discredit their
evidence, on account of the facts that the
deposition was recorded seven years after the
incident had occurred. Ms. Shenoy submitted that
in view of the evidence of other witnesses, minor
lapses could not and did not take away from the
case as made out by the prosecution and accepted by
the Trial Court as well as the High Court. Ms.
Shenoy then submitted that in any event two items
of jewellery, viz., the gold gundas and leg chain,
which were on the body of the deceased and had been
recovered from the appellant, had been duly
identified by P.W.2, Suresh. Lastly, on the
question of sentence, Ms. Shenoy referred to and
41
relied upon the various decisions of this Court
beginning with Bachan Singh v. State of Punjab
[(1980) 2 SCC 684] and Machhi Singh Vs. State of
Punjab [(1983) 2 SCC 470], which were subsequently
consistently followed in the other decisions cited
by Ms. Shenoy.
34. Ms. Shenoy submitted that the constitutionality
of the death penalty for murder provided in Section
302 I.P.C. and the sentencing procedure embodied in
Section 354(3) of the Criminal Procedure Code,
1973, had been considered in the case of Bachan
Singh Vs. State of Punjab [(1980) 2 SCC 684], on
reference by a Constitution Bench of this Court and
the constitutional validity of the imposition of
death penalty under Section 302 I.P.C. was upheld
with Hon’ble Bhagwati J., giving a dissenting
judgment. The other challenge to the
constitutionality of Section 354(3) Cr.P.C. was
42
also rejected, though certain mitigating factors
were suggested as under:
“Dr. Chitale has suggested these mitigating factors:
Mitigating circumstances.— In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”
43
The said mitigating circumstances as suggested
by learned counsel, Dr. Chitale, were held to be
relevant circumstances to which great weight in the
determination of sentence was required to be given.
It was also observed in the majority decision as
follows :
“There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. “We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.” Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency — a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along
44
the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”
35. Ms. Shenoy submitted that the Constitution
Bench was fully aware of the concern for the
dignity of human life and that taking of a life
through law’s instrumentality ought not to be
resorted to except in the rarest of rare cases,
when none of the mitigating circumstances could
justify the imposition of a lesser penalty.
36. Ms. Shenoy then referred to the decision of
this Court in Machhi Singh Vs. State of Punjab
[(1983) 3 SCC 470], wherein a Bench of Three Judges
had occasion to apply the decision in Bachan
Singh’s case (supra) in regard to four of the
twelve accused who were sentenced to death. This
Court rejected the appeals filed by the said
45
accused and confirmed the death sentence awarded to
three of the appellants. While confirming the death
sentence awarded to the said three accused, the
Court culled out certain propositions from Bachan
Singh’s case, as extracted hereinbelow :
“In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for
46
life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”
37. This Court then went on to observe that in
order to apply the said guidelines the following
questions could be asked and answered :
“In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?”
47
38. Ms. Shenoy submitted that in the aforesaid
case, the Court took into consideration the
calculated and cold blooded murders of innocent
defenceless women, children, veterans and newly-
married couples in an exceptionally depraved,
heinous, horrendous and gruesome manner for
reprisal, as a result of family feud, with a view
to wipe out the entire family and relatives of the
opponent, in which circumstances only death
sentence and not life imprisonment would be
adequate.
39. Ms. Shenoy submitted that the propositions
enunciated in Bachan Singh’s case (supra) and
Machhi Singh’s case (supra) have been consistently
followed in subsequent cases involving death
sentence with minor variations with regard to the
circumstances in which the murders were committed
and mitigating factor, if any. For example, in the
case of Holiram Bordoloi Vs. State of Assam [(2005)
48
3 SCC 793], this Court observed that there was
nothing on record to show that there was any
repentance by him at any point of time nor was any
attempt made to give an explanation to the
occurrence even while being questioned under
Section 235(2) Cr.P.C., the accused had nothing to
say at the point of sentence. It was also observed
that there was no spark of any kindness or
compassion and the mind of the appellant was brutal
and the entire incident would have certainly
shocked the collective conscience of the community.
On the basis of such observation, this Court held
that there was no mitigating circumstance to
refrain from imposing the death penalty on the
appellant. Ms. Shenoy also referred to the decision
of this Court in Dilip Premnarayan Tiwari & Anr.
Vs. State of Maharashtra [(2010) 1 SCC 775],
wherein while considering confirmation of death
sentence awarded to some of the accused, this Court
had observed that in a death sentence matter, it is
49
not only the nature of crime, but the background of
the criminal, his psychology, his social condition
and his mind set for committing the offence, were
also relevant.
40. Ms. Shenoy submitted that applying the tests
indicated in Bachan Singh’s case (supra), the facts
of the present case were not covered by any of the
mitigating circumstances enunciated in the two sets
of cases and all subsequent cases following the
same and consequently, there could be no reason for
commuting the death sentence awarded to the
appellant and the appeal was, therefore, liable to
be dismissed.
41. Since the conviction of the appellant is based
on circumstantial evidence leading to the awarding
of the death sentence to him along with his
conviction under Sections 376 and 392 I.P.C., we
have carefully looked into the evidence adduced by
the prosecution with care and caution. That
50
Jayashri, the mother of P.W.2, was murdered inside
her house on 28.2.1998 between 4.30 and 5.00 p.m.
is not disputed, nor is it disputed that P.W.2
Suresh, the son of the deceased, came back to the
house after playing with his friends at about 5.00
p.m. and discovered the body of his mother lying on
the ground stained with blood, with both her hands
tied with a sari at one end, while the other end of
the sari was tied to a window. It has also been
established that after discovering his mother’s
body in the above manner, Suresh went to Kusuma
Shetty, a neighbour and told her what he had seen.
On receiving the said information, Kusuma Shetty
called Geetha Hegde and Lalitha Jaya and together
they went to Jayashri’s house with Suresh and
through the window they saw Jayashri lying on the
ground. Lalitha Jaya who was later examined as
P.W.8 by the prosecution has deposed that she
called Bylappa (P.W.7), a Police Constable, living
in the same locality, who telephoned Papanna
51
(P.W.9), the Inspecting Officer, who then came to
the place of occurrence with Police Constable
Gurudappa (P.W.6). It also transpires from the
evidence that on receiving information, P.W.14, a
Police Constable working in the Dogs Squad, P.W.16,
a Police Photographer and P.W.13, a Police
Inspector and Finger-Prints Expert, arrived at the
scene of occurrence. Thereafter, B.N. Nyamaagowda
(P.W.29), the Investigating Officer of the case,
along with Papanna (P.W.9), who was a Mazahar
witness, went inside the room and found the
deceased Jayashri lying naked on the ground with
abrasions on her body and both her hands tied in
the manner indicated hereinbefore. In addition, it
was also found, which finding was also indicated in
the Inquest Report that the tongue of the deceased
protruded a little. There were scratch marks on
her breasts and blood oozing out of her genitals.
There were also strangulation marks on her neck.
That the death of the victim was homicidal has been
52
amply proved by the Post-mortem report of the
Doctor (P.W.26), who was of the opinion that the
death was due to asphyxia as a result of smothering
and evidence of violent sexual intercourse and
attempted strangulation. In addition, it may be
added that the appellant Umesh was also examined by
P.W.26 for evidence of sexual intercourse and
during such examination the appellant confessed
that he had pushed the victim and removed her
cloths, tied her hands and committed theft.
42. The nature of the victim’s death having been
established to be homicidal in nature, it is now to
be seen as to whether the circumstantial evidence
on which reliance has been placed by the trial
Judge in convicting the appellant and was also
accepted by the High Court while confirming the
same, makes out a complete chain of events to
establish beyond all reasonable doubt that it was
the appellant and the appellant alone, who could
53
have committed the offences with which he was
charged. In this regard, the evidence of P.W.2,
Suresh, the minor son of the deceased, is of great
importance, notwithstanding the fact that he was
about 7 years old when the incident had occurred.
He has very clearly depicted the manner in which
after returning from playing with his friends he
found the appellant, who described himself as
Venkatesh uncle, coming out of the room in which he
and his mother lived. He has also narrated, without
any ambiguity, the statement made by the appellant
that his mother being possessed by the devil, the
appellant had to tie her hands and was going to
call a doctor. He also disclosed that while leaving
the house the accused was carrying several things
in a bag, including a VCR that was in the house.
He also identified the accused in a T.I. Parade
conducted at the Central Jail by Tehsildar (P.W.24)
and also in the Court room while deposing. In
addition, P.W.2 also identified a VCR, gold case
54
watch, clock and anklets, saris and other things as
belonging to his mother. His evidence has remained
unshaken on cross-examination. The evidence of
P.W.2 was corroborated by the evidence of Basvaraju
(P.W.10) who lived in a rented house almost
opposite to the rented house of the deceased
Jayashri. He has stated that the deceased being a
tenant in the opposite house was familiar to him
and that the distance separating the two premises
would be about 30 feet. Although, described as a
chance witness by the defence, he has explained his
presence in his house at 2.00 p.m. on 28th February,
1998, having completed his work in the first shift.
His explanation is quite plausible and he has
stated without hesitation that he had seen the
accused coming out of the house of the deceased
with a bag and proceeding towards the pipe line.
He also identified the accused in Court as being
the person whom he had seen coming out of
Jayashri’s house on the day of the incident at
55
about 4.30 p.m. The said witness also identified
the accused in the T.I. Parade conducted by the
Tehsildar (P.W.24).
43. The evidence of Natesh (P.W.11) further
corroborated the evidence of P.W.2 regarding the
presence of the accused in the house of the
deceased at the time of the incident. He too lives
in a house opposite to the house of the deceased at
a distance of about 50 feet. He too has been
described as a chance witness by the defence, but
has explained his presence in the premises at the
relevant time. In his evidence he has stated that
at about 4.30-5.00 p.m. he saw a person coming out
of the house of the deceased and proceeding towards
the pipe line. He too identified the appellant in
Court as being the person who had come out of the
house of the deceased on the said date. He was
also one of the witnesses, who identified the
appellant in the T.I. Parade conducted by P.W.24.
56
The evidence of P.Ws 2, 10 and 11 as to the
presence of the appellant at the place of
occurrence on 28.2.1998 at the relevant time has
been duly accepted by the trial Court as well as
the High Court and nothing has been shown to us on
behalf of the appellant to disbelieve the same.
44. In fact, the identification of the appellant by
P.Ws 2, 10 and 11 is further strengthened by his
identification by Jayamma (P.W.17) who has also
deposed regarding the seizure of various items from
the rented premises of the appellant, such as gold
ornaments, suitcases, a television set and clothes.
45. Manjula (P.W.22), the elder sister of the
deceased Jayashri also identified some of the
articles seized by the Investigating Officer from
the house of the appellant, as belonging to her
deceased sister Jayashri. Such items included a
VCR, a pair of gold beads, 4 gold bangles, one pair
57
of silver anklets and 15 to 20 silk and ordinary
saris.
46. Maare Gowda (P.W.4), who had been approached by
the appellant for a rented premises and who
introduced the appellant to Ravi (P.W.5) identified
the accused Umesh Reddy to be the same person who
had approached him for a rented accommodation
stating that his name was Venkatesh. He was also
one of the witnesses to the seizure of various
items by the Investigating Officer. He has stated
that after arresting the appellant, the Peenya
Police had brought him to the rented accommodation
in which he was staying and on the instructions of
the police inspector, the appellant opened the door
of the house with his own key, and, thereafter,
upon entering the house, the police seized various
items such as suitcases, saris, panties, VCR, TV
and antenna, pants, shirts, ornaments and cash.
Much the same statements were made by Ravi (P.W.5),
58
the owner of the house which had been rented out to
the appellant. He corroborated the evidence of
P.W.4 that the said witness had brought the
appellant to him for the purpose of renting a
house. P.W.5 was also a witness to the seizure.
47. Lalitha Jaya (P.W.8) who was the landlady of
the deceased, corroborated the prosecution story
that Suresh (P.W.2) on seeing the body of his
mother lying on the ground in the room rushed to
Kusuma Shetty (C.W.8), who has not, however, been
examined by the prosecution, who rushed to P.W.8
and told her of the incident. All of them went to
the house of the deceased and saw Jayashri lying on
the ground on her back through the window and
thereafter they went to the house of Bylappa
(P.W.7) and informed him about the incident.
48. All the witnesses who claimed to be present at
or near the place of occurrence remained unshaken
in cross-examination, thereby completing the chain
59
of circumstantial evidence in a manner that clearly
indicates that no one other than the appellant
committed the offences with which he was charged.
The trial Court has also relied upon the extra-
judicial confession made by the appellant to Dr.
Somashekar (P.W.26), who examined him as to his
sexual capacity, to the effect that he had pushed
down the victim, removed her clothes, tied her
hands and committed theft in the house.
49. The aforesaid position is further strengthened
by the Forensic Report and that of the Finger-Print
Expert to establish that the finger prints which
had been lifted by P.W.13 from the handle of the
steel almirah in the room, matched the finger print
of the appellant which clearly established his
presence inside the house of the deceased. The
explanation attempted to be given for the presence
of the finger prints on the handle of the almirah
situated inside the room of the deceased does not
60
inspire any confidence whatsoever. In a way, it is
the said evidence which scientifically establishes
beyond doubt that the appellant was present in the
room in which the deceased was found after her
death and had been identified as such not only by
P.W.2, who actually saw him in the house
immediately after Jayashri was murdered, but also
by P.Ws 10 and 11, who saw him coming out of the
house at the relevant point of time with the bag in
his hand. The finger print of the appellant found
on the handle of the almirah in the room of the
deceased proves his presence in the house of the
deceased and that he and no other caused Jayashri’s
death after having violent sexual intercourse with
her against her will.
50. Apart from causing the death of the victim, the
evidence also points to the commission of rape of
the deceased by the appellant. That the deceased
was lying naked with blood oozing out of her
61
genitals and both her hands tied by a sari at one
end clearly indicates violent sexual intercourse
with the deceased. The presence of semen-like
material in her vagina, which was found during the
Post-mortem examination, was collected and sent for
micro-biological examination and showed the
presence of sperms. The presence of spermatozoa in
the vaginal smear which was sent for micro-
biological examination and the presence of blood
stains at the vaginal outlet together with
laceration of the vagina from the vaginal outlet on
the posterior wall establishes and confirms the
charge of violent sexual intercourse, viz., rape.
In addition to the above, the examination of the
accused by P.W.26, the doctor, who conducted the
Post-mortem examination, discloses laceration on
the inner aspect of the upper lip and inner
abrasions in both lips, scratch abrasions over the
right side of the face. Abrasions over the front of
right shoulder and over the right side at the back
62
of the neck of the appellant indicated that the
same could have been caused due to resistance and
strengthens the case of the prosecution of forced
sexual intercourse with the victim against her
wishes.
51. Even after committing the above-mentioned
offences, the appellant robed various articles,
including jewellery and a VCR set from the house of
the deceased, and even made up a suitable story
about his presence in the house in order to impress
a young child who happened to notice him as he was
leaving the house. The remorseless attitude of the
appellant is further evident from the fact that
after having committed such heinous offences on
28.2.1998, within two days on 2.3.1998 he attempted
a similar crime in the house of one Seeba and was
caught by the public while trying to escape, as
evidenced by P.Ws 18 and 20.
63
52. Ms. Suri has raised certain questions relating
to the identification of the appellant by P.Ws 2,
10, 11 and 17. It has been submitted that the
picture of the appellant had been published in the
newspapers after the incident. There may have been
some substance in the aforesaid submission had it
not been for the fact that being the immediate
neighbours of the appellant, P.Ws 10 and 11 had
occasion to see the appellant earlier. As far as
P.W.17 is concerned, she was the appellant’s
landlady at the relevant point of time. The
decision in Musheer Khan’s case (supra) cited by
Ms. Suri is not, therefore, of any help to the
appellant’s case.
53. On the question of recovery of M.Os.2 to 23
from the rented premises of the appellant, though
an attempt has been made to discredit the role of
P.W.5 Ravi as a panch witness, we see no reason to
disbelieve the same since such recovery was also
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witnessed by P.W.22, Manjula, the sister of the
deceased, who also identified the recovered
articles.
54. As to the procedure adopted by the
Investigating Officer for obtaining the finger-
print of the appellant through P.W. 25 who was
serving as Constable in Peenya Police Station at
the relevant time, the same has been considered
and dealt with by the High Court in its impugned
judgment. It has been stated that such a procedure
was available under the Karnataka Police Manual
read with Section 5 of the Identification of
Prisoners Act, 1920, and that it had been duly
proved that the finger-print recovered from the
handle of the almirah in the room of the deceased
matched the right finger print of the appellant.
In that view of the matter, the submission of Ms.
Suri on this point must also be rejected.
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55. We, therefore, have no hesitation in confirming
the conviction of the Appellant under Sections 376,
392 and 302 IPC.
56. On the question of sentence we are satisfied
that the extreme depravity with which the offences
were committed and the merciless manner in which
death was inflicted on the victim, brings it within
the category of rarest of rare cases which merits
the death penalty, as awarded by the Trial Court
and confirmed by the High Court. None of the
mitigating factors as were indicated by this Court
in Bachan Singh’s case (supra) or in Machhi Singh’s
case (supra) are present in the facts of the
instant case. The appellant even made up a story
as to his presence in the house on seeing P.W.2
Suresh, who had come there in the meantime. Apart
from the above, it is clear from the recoveries
made from his house that this was not the first
time that he had committed crimes in other premises
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also, before he was finally caught by the public
two days after the present incident, while trying
to escape from the house of one Seeba where he made
a similar attempt to rob and assault her and in the
process causing injuries to her. As has been
indicated by the Courts below, the antecedents of
the appellant and his subsequent conduct indicates
that he is a menace to society and is incapable of
rehabilitation. The offences committed by the
appellant were neither under duress nor on
provocation and an innocent life was snuffed out by
him after committing violent rape on the victim.
He did not feel any remorse in regard to his
actions, inasmuch as, within two days of the
incident he was caught by the local public while
committing an offence of a similar type in the
house of one Seeba.
57. In such circumstances, we do not think that
this is a fit case which merits any interference.
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The Appeals are, accordingly, dismissed and the
death sentence awarded to the Appellant is also
confirmed. Steps may, therefore, be taken to carry
out the sentence.
…………………………………………J. (ALTAMAS KABIR)
…………………………………………J. (A.K. PATNAIK)
New Delhi Dated:01.02.2011
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