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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.