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  

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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  

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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,  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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[(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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

64

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.

65

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  

66

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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